Agenda packet — Apple Valley City Council, November 14, 2023 (part 2 of 2)

Ordinance 567
minimize impacts to existing neighborhoods.

Section 4. Section 9.28.040, Table 9.28.040-A of the Apple Valley Municipal Code is hereby amended to modify both No. 5 “Minimum lot depth (ft)” and No. 6. “Minimum corner lot depth (ft)” from 275’ to 170’ in the RE-3/4 zoning district.

Section 5. Based upon the facts presented within the staff analysis, public testimony and pursuant to Government Code Section 65863(b), the Town Council of the Town of Apple Valley, California, finds that the proposed land use designation is consistent with the General Plan goals and policies.

Section 6. Find that the changes proposed by Development Code Amendment DCA 2022-003 and Zone Change ZC 2022-005 is consistent with the Goals and Policies of the Town of Apple Valley adopted General Plan
Section 7. The Town Council has reviewed and considered the Final IS/MND and administrative record for the Project, including all oral and written comments received during the comment period.

A. The Town Council finds that the Final IS/MND and the administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the Town’s Local CEQA Guidelines.

B. Based on the whole record before it, including, without limitation, the Final IS/MND and the administrative record, including all written and oral evidence presented to the Town Council, the Town Council finds that all environmental impacts of the Project are less than significant with mitigation. The Town Council further finds that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in significant environmental impacts. The Town Council finds that the Final IS/MND contains a complete, objective and accurate reporting of the environmental impacts associated with the Project and reflects the independent judgment and analysis of the Town Council.

C. No new significant environmental effects have been identified in the Final IS/MND and any changes to the Final IS/MND, including the replacement of mitigation measures with equal or more effective measures pursuant to Section 15074.1, in response to comments or otherwise, do not constitute substantial revisions requiring recirculation under State CEQA Guidelines section 15073.5.

D. The Town Council approves and adopts the IS/MND for Development Code Amendment DCA 2022-003 and Zone Change ZC 2022-005 pursuant to Public Resources Code section 21080, subdivision (c).

E. Pursuant to Public Resources Code section 21081.6, the Town Council approves and adopts the Mitigation Monitoring and Reporting Program prepared for the Project.

F. The Town Council directs staff to file a Notice of Determination with the San Bernardino County Clerk and the Office of Planning and Research within five (5) working days of approval of the Project.

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Ordinance 567
Section 8. Amend the Official Zoning Districts Map as shown on Exhibit “A”.

Approved and Adopted by the Town Council of the Town of Apple Valley this 12th day of December 2023.

Scott Nassif, Mayor

Ms. La Vonda M. Pearson, Town Clerk
Approval as to Form Approval as to Content
________________________ _________________________
Thomas Rice, Town Attorney Douglas B. Robertson, Town Manager

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Ordinance 567

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TOWN OF APPLE VALLEY

RECOMMENDED CONDITIONS OF APPROVAL
DCA 2022-003, GPA 2022-007, ZC 2022-005, & TTM 20453
Please note: Many of the suggested Conditions of Approval presented herewith are provided for informational purposes and are otherwise required by the Municipal Code. Failure to provide a Condition of Approval herein that reflects a requirement of the Municipal Code does not relieve the applicant and/or property owner from full conformance and adherence to all requirements of the Municipal Code.

Planning Division Conditions of Approval
P1. This tentative subdivision shall comply with the provisions of the State Subdivision Map Act and the Town Development Code. This tentative approval shall expire three (3) years from the date of approval by the Planning Commission/Town Council. A time extension may be approved in accordance with the State Map Act and Town Ordinance, if an extension application is filed and the appropriate fees are paid thirty (30) days prior to the expiration date. The Tentative Parcel Map becomes effective ten (10) days from the date of the decision unless an appeal is filed as stated in the Town’s Development Code.

P2. Prior to approval of the Final Map, the following agencies shall provide written verification to the Planning Division that all pertinent conditions of approval and applicable regulations have been met:

Apple Valley Fire Protection District
Liberty Utilities
Apple Valley Public Works Division
Apple Valley Engineering Division
Apple Valley Planning Division
P3. The applicant shall defend at his sole expense (with attorneys approved by the Town) and indemnify the Town against any action brought against the Town, its agents, officers or employees resulting from or relating to this approval. The applicant shall reimburse the Town, its agents, officers or employees for any judgment, court costs and attorney's fees which the Town, its agents, officers or employees may be required to pay as a result of such action. The Town may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the applicant of these obligations under this condition.

P4. A payment in the amount of $2,814.00 shall be collected to cover the filing fees of the Notice of Determination (NOD). This amount includes a handling fee of $50.00 as required by the County Clerk, and as of January 1, 2023, a fee of $2,764.00 is required for the filing of a NOD with the California Department of Fish and Wildlife.

The check shall be made payable to the Clerk of the Board of Supervisors. Please note that this fee increases each year.

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P5. Tentative Tract Map TTM 20453 shall adhere to all Estate Residential ¾ (RE-3/4) site development standards and all requirements of the Development Code.

P6. Approval of Development Code Amendment 2022-003, General Plan Amendment 2022-007, Zone Change 2022-005, and Tentative Tract Map TTM 20453 by the Planning Commission is understood as acknowledgement of Conditions of Approval by the applicant, unless an appeal is filed in accordance with Section

9.12.250, Appeals, of the Town of Apple Valley Development Code.

P7. A separate Development Permit (DP), approved by the Planning Commission, is required prior to new single-family residential construction. The submittal shall include a Development Plan consisting of plot plans, a minimum of four (4) floor plans with a minimum of twelve (12) building elevations demonstrating a variety of heights, setbacks, roof shapes and trim to create visually pleasing aesthetics within a cohesive design. The building elevations shall be consistent with the architectural design standards (non-infill) in Chapter 9.31 of the Development Code. The DP submittal shall include the landscaping plans, as well as designs for the equestrian trails, parkways, retention basin and community park. Such designs shall be substantially consistent with the inspiration board and shall incorporate features shown on the inspiration board, including but not limited to active and passive recreational amenities, a swimming pool, a community center, and an attractive entry statement. The Lifeline Trails shall be constructed along the east side of Deep Creek and north side of Del Oro Roads consistent with the adopted multi-use and equestrian trails standards. Buffers in the form of parkways shall be provided along the north and east boundaries of the subdivision.

P8. If the tract/parcel map is adjacent to existing development, a fence/wall plan shall be submitted with the grading and landscape/irrigation plans to identify how new fencing or walls will relate to any existing fences or walls located around the perimeter of the tract/parcel map. The developer shall be required to connect to the existing fencing/walls or collaborate with the adjacent property owners to provide new fencing/walls and remove the existing fence/wall, both options at the developer’s expense. Double fencing shall be avoided, and review and approval of the fencing/wall plan is required prior to issuance of grading permits.

P9. Prior to recordation of Final Map, three sets of detailed landscaping and irrigation plans for the parkway area and subdivision entrances, prepared by a qualified licensed landscape professional, shall be submitted to the Planning Division for review and approval. The landscape and irrigation plans shall be prepared in compliance with the applicable landscape section of the Town Development Code.

P10. Landscaping shall be installed in accordance with Chapter 9.75, Water Conservation Landscape Regulations of the Development Code. Xeriscape landscaping techniques are encouraged for use in parkway areas, which typically consists of drought tolerant, native type plants, trees and groundcover. Tract areas which back onto rights-of-way shall be landscaped as required by Subsection

9.75.040.E, “Landscape Improvement Requirements”. Final landscape and

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irrigation plans shall be submitted and installed for each individual unit, prior to issuance of occupancy permits
P11. If a phased development is proposed, prior to the issuance of a grading permit or recordation of the first final map, whichever occurs first, the developer shall submit a final phasing and construction plan covering the entire Tentative Map for review and approval by the Planning Division. The plan shall specifically address the following:
a) Vehicular access for each map or phase of development. Each map and/or phase of development shall have 2 points of vehicular access for fire and other emergency equipment, and for routes of escape which will safely handle evacuations as required by the Development Code.
b) Submit a master grading plan that addresses grading for each phase of development. The approved conceptual grading plan shall be provided to the Engineering and Building and Safety Division and shall be used as a guideline for subsequent detailed grading plans for individual units or phases of the Tentative Map. The plan shall include techniques to be used to prevent erosion and sedimentation during and after grading. The master grading plan shall also identify areas where temporary grading occurs on any phase other than the one being graded for development.
c) Identify all street improvements to be constructed by phase. d) Submit a master utility plan that identifies all water and sewer facilities to be constructed for each phase of development.
e) Identify all drainage improvements to be constructed by phase.

P12. All subdivision walls proposed for construction along the perimeter of the property lines shall be constructed of decorative slump stone, split face or other decorative masonry material. Prior to the issuance of a grading permit, Developer/applicant shall submit detailed plans showing all proposed walls for this subdivision subject to approval by the Director of Economic and Community Development (or designee).

P13. Any fence that may be required along the drainage channel/easement shall be decorative in design. Chain link is not considered decorative.

P14. A copy of the final grading plan shall be submitted to the planning division for review and approval:
a) All on-site cut and fill slopes shall be limited to a maximum slope ratio of 2 to 1 and a maximum vertical height of thirty (30) feet. Setbacks from top and bottom of slopes shall be a minimum of one-half the slope height. b) Slopes shall be contour graded to blend with existing natural contours. c) Slopes shall be a part of the downhill lot when within or between individual lots.

P15. All slopes over three (3) feet in height shall be landscaped and irrigated according to Town Standards. The retention shall be landscape consistent with the development code.

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P16. All mitigation measures described in the Initial Study Mitigation Negative Declaration will be implemented as part of the project.

P17. Prior to the issuance of a grading permit, the applicant shall demonstrate compliance with MDAQMD regulations for the control of fugitive dust emissions by preparing and submitting a Dust Control Plan for review and approval by MDAQMD.

The Dust Control Plan shall describe all fugitive dust control measures to be implemented before, during and after any dust generating activity. The measures described in the plan shall be made condition of approval of the ground disturbing permits.

P18. Pre-Construction Survey. Within 14 days prior to ground disturbance, the Applicant will retain a qualified biologist to conduct burrowing owl surveys within the area to be disturbed. The survey will be performed by walking parallel transects spaced no more than 20 meters apart and will be focused on detecting burrows that are occupied, or are suitable for occupation, by the burrowing owl. The results of the surveys, including graphics showing the locations of any active burrows detected and any avoidance measures required, will be submitted to the Town of Apple Valley and the California Department of Fish & Wildlife (CDFW) within 14 days following completion of the surveys. If active burrows are detected, the following take avoidance measures will be implemented:
a) If burrowing owls are observed using burrows on-site during the non-breeding season (September through January, unless determined otherwise by a qualified biologist based on field observations in the region), occupied burrows will be left undisturbed, and no construction activity will take place within 300 feet of the burrow where feasible (see below).
b) If avoiding disturbance of owls and owl burrows on-site is infeasible, owls will be excluded from all active burrows through the use of exclusion devices placed in occupied burrows in accordance with protocols established in CDFW’s Staff Report on Burrowing Owl Mitigation (2012). Specifically, exclusion devices, utilizing one-way doors, will be installed in the entrance of all active burrows.

The devices will be left in the burrows for at least 48 hours to ensure that all owls have been excluded from the burrows. Each of the burrows will then be excavated by hand and/or mechanically and refilled to prevent reoccupation.

Exclusion will continue until the owls have been excluded from the disturbance area, as determined by a qualified biologist.
c) Any active burrowing owl burrows detected on-site during the breeding season (February through August, unless determined otherwise by a qualified biologist based on field observations in the region), will not be disturbed. Construction activities will not be conducted within 300 feet of an active onsite burrow at this season.

P19. The developer shall submit and obtain approval from Planning of a signed letter agreeing to include as a condition of all construction contracts/subcontracts

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requirements to reduce noise impacts during construction, which shall include the following vehicle and equipment emissions and other impacts to air quality by implementing the following measures and submitting documentation of compliance:

The developer/construction contractors shall do the following:
a) During the project site excavation and grading, the construction contractors shall equip all construction equipment, fixed or mobile, with properly operating and maintained mufflers, consistent with the manufacture’s standards. b) The construction contractor shall place all stationary construction equipment so that emitted noise is directed away from the noise sensitive receptors nearest the project site.
c) The construction contractor shall limit all construction-related activities that would result in high noise levels between the hours of 7:00 a.m. and 6:00 p.m., Monday through Saturday excluding holidays.
d) The construction contractor shall locate equipment staging in areas that will create the greatest distance between construction-related noise sources and noise sensitive receptors nearest the project site during all project construction. e) The construction contractor shall limit haul truck deliveries to the same hours specified for construction equipment. To the extent feasible, haul routes shall not pass sensitive land uses or residential dwellings.

P20. Covenants, Conditions, and Restrictions (CC&Rs) shall be reviewed by Planning prior to final approval of the Final Map. The CC&Rs shall include a Homeowners Association and shall contain provisions for liability insurance and methods of maintaining open space, community park, private roads, retention basins, gated entry areas, subdivision perimeter walls, and decorative block walls subject to approval by the Director of Economic Development and Community Development (or designee), the Town Engineer and the Town Attorney.

P21. Prior to recordation of the Final Map, the Developer/applicant shall submit detailed plans showing all proposed walls for this subdivision, including the gated entry areas, subdivision perimeter walls, and decorative block walls. Subdivisions perimeter walls shall be articulated by regularly spaced pilasters or landscape insets, decorative caps, and landscaping, subject to approval by the Director of Economic and Community Development (or designee).

P22. Prior to any ground disturbance, the developer shall obtain an incidental take permit or make payment of the fees listed under the Western Joshua Tree Conservation Act as applicable to remove or relocate a Joshua Tree from the California Department of Fish and Wildlife (CDFW). Should the CDFW protections be lifted, any disturbance to Joshua Trees is subject to the provisions of the Development Code, and the requirements of this condition.

P23. If the community park within the subdivision is offered to the Town for public use, the park shall be relocated to the perimeter for better public access as approved by the Director of Economic and Community Development.

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Park District Conditions of Approval
PR1. This project is subject to applicable Quimby Fees as determined by the Town.

Quimby Fees shall be collected at time of issuance of building permit and shall be the fee adopted by the Town Council at the time of permit issuance.

Environmental & Regulatory Compliance Conditions of Approval ER1. Pursuant to AVMC § 8.19.020(a) et seq., the construction contractor shall complete and submit a Waste Management Plan (“WMP”), on a WMP form approved by the Town for this purpose as part of the application packet for the building or tenant improvement permit.

ER2. Pursuant to AVMC § 8.19.050 and The California Green Code the contractor shall submit documentation proving that the project has met the diversion requirement prior to the issuance of a Certificate of Occupancy. The diversion requirement shall be at least sixty five percent (65%) of the total C&D debris generated by the project via reuse or recycling.

Building and Safety Division Conditions of Approval
BC1. An engineered grading report including soils report shall be submitted to and approved by the Building Official prior to recordation of the final map or issuance of permits for grading in excess of 1,000 cubic yards.

BC2. Construction must comply with 2022 California Code of Regulations, Title 24, Parts 1-12 (Building Codes)
BC3. Sewer is required.

Engineering Division Conditions of Approval
EC1. A final drainage plan with street layouts shall be submitted for review and approval by the Town Engineer showing provisions for receiving and conducting offsite and onsite tributary drainage flows around or through the site in a manner which will not adversely affect adjacent or downstream properties. This plan shall consider reducing the post-development site-developed flow to 90 percent of the predevelopment flow for a 100 year design storm. (Town Resolution 2000-50; Development Code 9.28.050.C, 9.28.100)
EC2. Street improvement plans shall be submitted to the Town Engineer for review and approval.

EC3. All interior streets shall be improved to Town standards with curb, gutter and street pavement. Minimum residential width of streets shall be 36 feet curb to curb.

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EC4. All streets abutting the development shall be improved a minimum half-width of 28 feet improvements standards with curb, gutter and sidewalk (or pursuant to Section

9.28.060.J) on the development side.

EC5. A 40-ft wide (30 half-width plus 10’) road dedication along Savage Lane adjacent to the property shall be granted to the Town of Apple Valley prior to Final Map Approval.

EC6. A 44-ft wide road dedication along Del Oro Road adjacent to the property shall be granted to the Town of Apple Valley prior to Final Map Approval.

EC7. A 44-ft wide half-width road dedication along Deep Creek Road adjacent to the property shall be granted to the Town of Apple Valley prior to Final Map Approval.

EC8. A southbound left-turn lane from Deep Creek Road to eastbound Del Oro Road shall be required. Additional right-of-way at the intersection of Deep Creek Road and Del Oro Road, to construct the left turn lane to Town Standards, shall be granted to the Town of Apple Valley prior to Final Map Approval.

EC9. Savage Road adjacent to the property shall be improved to the Town's half-width Local or Rural Street standards.

EC10. Deep Creek Road adjacent to the property shall be improved to the Town's halfwidth Secondary Street standards. The design shall include a Class 2 bike path.

EC11. Del Oro Road adjacent to the property shall be improved to the Town's half-width Secondary Street standards. The design shall include a Class 2 bike path.

EC12. During the grading of the streets, soils testing of the street subgrades by a qualified soils engineering firm shall be performed to determine appropriate structural street section. The minimum asphalt concrete thickness for all streets shall be 0.33 ft.

EC13. All required improvements shall be bonded in accordance with Town Development Code unless constructed and approved prior to approval and recordation on the Final Map.

EC14. An encroachment permit shall be obtained from the Town prior to performing any work in any public right of way.

EC15. Final improvement plans and profiles shall indicate the location of any existing utility which would affect construction and shall provide for its relocation at no cost to the Town.

EC16. A final grading plan shall be approved by the Town Engineer prior to issuance of a grading permit. A grading permit shall not be issued until street improvement plans have been submitted to the Town Engineer for review and substantial

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completion of the street plans has been attained as determined by the Town Engineer.

EC17. The developer shall form or annex into an assessment district to provide for the ongoing maintenance of the retention basin and accessory structures, streetlights, and parkway landscaping, other open space areas as determined by the Town Engineer, shall be formed by the developer prior to final map approval.

EC18. All street names shall be approved by the Town and such approval shall be coordinated through the Town Engineer.

EC19. The developer shall present evidence to the Town Engineer that he has made a reasonable effort to obtain a non-interference letter from any utility company that may have rights of easement within the property boundaries.

EC20. Utility lines shall be placed underground in accordance with the requirements of the Town.

EC21. The developer shall make a good faith effort to acquire the required off-site property interests. If the developer fails to acquire those interests the developer shall, at least 120 days prior to submittal of the final map for approval, enter into an agreement to complete the improvements pursuant to Government Code Section 66462 at such time as the Town acquires the property interests required for the improvements. Such agreement shall provide for payment by the developer of all costs incurred by Town to acquire the off-site property interests required in connection with the subdivision. Security for a portion of these costs shall be in the form of a cash deposit in the amount given in an appraisal report obtained by the developer, at the developer's cost. The appraiser shall have been approved by the Town prior to commencement of the appraisal. Additional security may be required as recommended by the Town Engineer and Town Attorney.

EC22. Traffic impact fees adopted by the Town shall be paid by the developer.

EC23. Any developer fees adopted by the Town including but not limited to drainage fees shall be paid by the developer.

EC24. Any required street stripping shall be thermoplastic as approved by the Town Engineer.

EC25. The developer shall obtain and submit to the Planning Division prior to occupancy, the following signed statement by the purchasers of the homes located within the Landscape and Lighting Assessment district (subject to final approval by the Town Attorney): "In purchasing the home, I am aware that the home is located in the boundaries of a Landscape and Lighting Assessment District for the maintenance of drainage, landscaping, fencing and other similar improvements and that an annual landscaping maintenance charge shall be levied.

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EC26. In the event that an applicant/developer chooses to seek Council approval of the Final Map prior to completion of the required improvements, an "Agreement for Construction of Improvements" shall be required. In accordance with the California Labor Code, any such Agreement will contain a statement advising the developer that certain types of improvements will constitute a public project as defined in California Labor Code, Sections 1720, and following, and shall be performed as a public work, including, without limitation, compliance with all prevailing wage requirements.

EC27. Easements, as required for roadway slopes, drainage facilities, utilities, access to adjacent properties, etc., shall be submitted and recorded as directed by the Town Engineer. No structures shall be placed on any part of the easements except those directly related to the purposes of said easements.

EC28. The detention basin shall be designed to include the Town’s Standard Two-Stage drywells.

Public Works Conditions of Approval
PW1. Submit a sewer feasibility study for review to the Town of Apple Valley Public Works Department to demonstrate where you plan to extend the sewer from to provide sewer service to this project.

PW2. Sewage disposal shall be by connection to the Town of Apple Valley sewer system.

Plans must be approved by the Town of Apple Valley Public Works Department.

PW3. Sewer connection fees required.

PW4. Submit Mylars along with three sets of approved plans upon completion of plan check. In addition, the plans must be provided in an electronic format of the Town’s choosing. These requirements are the same for the approved plans and the AsBuilt plans.

Fire Protection District Conditions of Approval
FD1. The above referenced project is protected by the Apple Valley Fire Protection District.

Prior to construction occurring on any parcel, the owner shall contact the Fire District for verification of current fire protection development requirements.

FD2. All new construction shall comply with applicable sections of the California Fire Code, California Building Code, and other statutes, ordinances, rules, and regulations regarding fires and fire prevention adopted by the State, County, or

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Apple Valley Fire Protection District.

FD3. The development and each phase thereof, shall have two (2) points of paved access for fire and other emergency equipment, and for routes of escape which will safely handle evacuations. Each of these points of access shall provide an independent route into the area in which the development is located. This shall be completed prior to any combustible construction.

FD4. Fire lanes shall be provided with a minimum width of twenty-six (26) feet, maintained, and identified.

Apple Valley Fire Protection District Ordinance
57 FD5. A turnaround shall be required at the end of each roadway 150 feet or more in length and shall be approved by the Fire District. Cul-de-sac length shall not exceed one thousand (1,000) feet.

Apple Valley Fire Protection District Ordinance
57 FD6. Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background.

New dwelling addresses shall be posted with a minimum of four (4)-inch numbers visible from the street, and during the hours of darkness the numbers shall be internally illuminated. Where building setbacks exceed seventy-five (75) feet from the roadway, additional contrasting four (4)-inch numbers shall be displayed at the property entrance.

FD7. Plans for fire protection systems designed to meet the fire flow requirements specified in the Conditions of Approval for this project shall be submitted to and approved by the Apple Valley Fire Protection District and water purveyor prior to the installation of said systems.
a. Unless otherwise approved by the Fire Chief, on-site fire protection water systems shall be designed to be looped and fed from two (2) remote points.
b. System Standards:
*Fire Flow 500 GPM @ 20 psi Residual Pressure on 8” minimum water main size.

Duration 1 Hour
Hydrant Spacing 660 Feet
c. The total number of TBD hydrants will be determined. It is the

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responsibility of the owner/developer to provide all new fire hydrants with reflective pavement markers set into pavement, and curb identification per Apple Valley Standards.

Install per A.V.F.P.D. Standard Series
#101
FD8. Residences shall be constructed with an automatic fire sprinkler system (NFPA 13D) throughout the structure, including garage. Plans shall be submitted by a licensed C-16 contractor to the Fire District for review and approval along with plan review fees. Fire Sprinkler work shall not commence until plan approval and a job card have been issued. An approved fire alarm system shall be installed that will provide a local alarm for water flow to be audible throughout the premises. NOTE:

The Fire District shall be notified a minimum of 24 hours prior to the desired final inspection date.

FD9. A letter shall be furnished to the Fire District from the water purveyor stating that the required fire flow for the project can be met.

FD10. Apple Valley Fire Protection District Final Subdivision/Tract/Development fees shall be paid to the Fire District prior to final map acceptance according to the current Apple Valley Fire Protection District Fee Ordinance.

FD11. The developer shall submit a map showing complete street names within the development, to be approved by the Fire District prior to final map.

FD12. A Knox Box Rapid Entry System shall be required at all gated ingress/egress points within this project.

Liberty Utilities District Conditions of Approval
LU 1. Offsite water mains do not exist on Deep Creek Road, Del Oro Road and Savage Lane of this development.

LU 2. Water mains must be extended to provide domestic water service and fire protection for this development in accordance with Apple Valley Fire Protection District's conditions.

LU 3. Water main extension contract between the developer and Liberty Apple Valley is required and must comply with Rule 15 of the California Public Utilities Commission. Subject to the terms of the contract, the cost of facilities installed as advances will be reimbursed to the developer at 2.5 percent per year for 40 years with no interest. 16" diameter main shall be extended along Deep Creek and Del Oro Roads, and 12" diameter main extended along the no1thern tract boundary and Savage Lane connecting to existing mains at Del Oro Road and Mockingbird A venue. 8" diameter mains shall be extended in all interior streets.

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LU 4. Fire hydrants are required to be located in accordance with Apple Valley Fire Protection District's requirements and installed per Liberty Apple Valley's standard drawings.

LU 5. The water mains and appurtenances required throughout the tract will be installed in accordance with Liberty Apple Valley's standards and specifications.

LU 6. Water facilities need to be installed in dedicated public Rights-of-Ways and/or public utility easements and need to be identified and shown on the water improvement plans. These dedications and/or easements are needed to install, maintain, repair, connect, operate and inspect the proposed water facilities with unobstructed vehicular access.

LU 7. Domestic service lines will be installed to each lot from the proposed water main.

Irrigation service lines will be located to serve specific lots as required by Town of Apple Valley Landscape Maintenance District. Developer to provide locations on water improvement plans. Approved and tested customer owned backflow protection device is required on irrigation service lines.

LU 8. Supply Facility Fee is required, which will fund development of new wells. This fee will be collected on a per meter basis, which is presently at a rate of $1,030 per 5/8" equivalent meter.

LU 9. Supplemental Water Acquisition Fee is also required in order for Liberty to have the water rights to provide water to this project. This is a one-time charge that is subject to change, to be determined at the time of construction. Presently, this fee is $5,665 per residential lot or equivalent average residential water use. -END OF CONDITIONSPage 146 of 202

MITIGATION MONITORING REPORTING PROGRAM
TTM-20453
Impact Heading
Level of Impact After
Mitigation Mitigation Measure
Responsible
Party/Monitoring Party Implementation Stage
Less Than Significant
Air Quality Air Quality Mitigation Measure No. 1. The Applicant shall prepare and submit to the MDAQMD, prior to commencing earth-moving activity, a dust control plan that describes all applicable dust control measures that will be implemented at the project; Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Air Quality Mitigation Measure No. 2. The Applicant shall ensure that signage, compliant with Rule 403 Attachment B, is erected at each project site entrance not later than the commencement of construction.

Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Air Quality Mitigation Measure No. 3. The Applicant shall ensure the use of a water truck to maintain moist disturbed surfaces and actively spread water during visible dusting episodes to minimize visible fugitive dust emissions. For projects with exposed sand or fines deposits (and for projects that expose such soils through earthmoving), chemical stabilization or covering with a stabilizing layer of gravel will be required to eliminate visible dust/sand from sand/fines deposits.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Air Quality Mitigation Measure No. 4. All perimeter fencing shall be wind fencing or the equivalent, to a minimum of four feet of height or the top of all perimeter fencing. The owner/operator shall maintain the wind fencing as needed to keep it intact and remove windblown dropout. This wind fencing requirement may be superseded by local ordinance, rule, or project-specific biological mitigation prohibiting wind fencing.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Air Quality Mitigation Measure No. 5. All maintenance and access vehicular roads and parking areas shall be stabilized with chemical, gravel or asphaltic pavement sufficient to eliminate visible fugitive dust from vehicular travel and wind erosion. Take actions to prevent projectrelated track out onto paved surfaces and clean any project-related track out within 24 hours.

All other earthen surfaces within the project area shall be stabilized by natural or irrigated vegetation, compaction, chemical or other means sufficient to prohibit visible fugitive dust from wind erosion. Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Air Quality Resources
ATTACHMENT 11

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MITIGATION MONITORING REPORTING PROGRAM
TTM-20453
Impact Heading
Level of Impact After
Mitigation Mitigation Measure
Responsible
Party/Monitoring Party Implementation Stage
Less Than Significant
Biological Resources Mitigation Measure No.1 Pre-construction surveys for burrowing owls, desert tortoise, and nesting birds protected under the Migratory Bird Treaty Act and Section 3503 of the California Fish and Wildlife Code shall be conducted prior to thebirds are detected, avoidance measures shall be implemented to ensure that nests are not disturbed until after young have fledged. commencement of Project-related ground disturbance.40 a.

Appropriate survey methods and timeframes shall be established, to ensure that chances of detecting the target species are maximized. In the event that listed species, such as the desert tortoise, are encountered, authorization from the USFWS and CDFW must be obtained. If nesting
Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Biological Resources Mitigation Measure No. 2 If any other sensitive species are observed on the property during future activities, CDFW and USFWS (as applicable) should be contacted to discuss specific mitigation measures which may be required for the individual species. CDFW and USFWS are the only agencies which can grant authorization for the “take” of any sensitive species and can approve the implementation of any applicable mitigation measures.

Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Biological Resources Mitigation Measure No.3 The Joshua trees will be retained in place or replanted somewhere on the site where they can remain in perpetuity or will be transplanted to an off-site area approved by the city where they can remain in perpetuity. Joshua trees which are deemed not suitable for transplanting will be cut-up and discarded as per City requirements. An Incidental Take Permit (ITP) must be granted by the CDFW for the removal or modification of any Joshua Trees.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Biological Resources Mitigation Measure No. 4 Earthen berms will be created around each tree by the biologist prior to excavation and the trees will be watered approximately one week before transplanting. Watering the trees prior to excavation will help make excavation easier, ensure the root ball will hold together, and minimize stress to the tree.4 Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Biological Resources Mitigation Measure No.5 Each tree will be moved to a pre-selected location which has already been excavated and will be placed and oriented in the same direction as their original direction. The hole will be backfilled with native soil, and the transplanted tree will be immediately watered. As noted in Section 3.0, a numbered metal tag was placed on the north side of the trees and the trees were also flagged with surveyor’s flagging. The biologist will develop a watering regimen to ensure the survival of the transplanted trees. The watering regimen will be based upon the needs of the trees and the local precipitation. An Incidental Take Permit (ITP) must be granted by the CDFW for the removal or modification of any Joshua Trees.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Biological
Resournces

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Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Cultural Resources Mitigation Measure No. 2. The archaeologist/paleontologist monitor shall conduct full-time monitoring during grading and excavation operations in undisturbed, very old alluvial fan sediments at or below four (4) feet below ground surface and shall be equipped to salvage fossils if they are unearthed to avoid construction delays and to remove samples of sediments that are likely to contain the remains of small fossil invertebrates and vertebrates. The archaeologist/paleontologist monitor shall be empowered to temporarily halt or divert equipment to allow of removal of abundant and large specimens in a timely manner. Monitoring may be reduced if the potentially fossiliferous units are not present in the subsurface, or if present, are determined upon exposure and examination by qualified archaeologist/paleontologist personnel to have a low potential to contain or yield fossil resources.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Cultural Resources Mitigation Measure No. 3. Recovered specimens shall be properly prepared to a point of identification and permanent preservation, including screen washing sediments to recover small invertebrates and vertebrates, if necessary. Identification and curation of specimens into a professional, accredited public museum repository with a commitment to archival conservation and permanent retrievable storage, such as the San Bernardino County Museum in San Bernardino, California, is required for significant discoveries. The archaeologist/paleontologist must have a written repository agreement in hand prior to initiation of mitigation activities.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Cultural Resources Mitigation Measure No. 4. A final monitoring and mitigation report of findings and significance shall be prepared, including lists of all fossils recovered, if any, and necessary maps and graphics to accurately record the original location of the specimens. The report shall be submitted to the Town of Apple Valley prior to building final.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Cultural
Resources

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MITIGATION MONITORING REPORTING PROGRAM
TTM-20453
Impact Heading
Level of Impact After
Mitigation Mitigation Measure
Responsible
Party/Monitoring Party Implementation Stage
Less Than Significant
Cultural Resources Mitigation Measure No. 5. Prior to the initiation of ground-disturbing activities, field personnel should be alerted to the possibility of buried prehistoric or historic cultural deposits and paleontological resources. In the event that field personnelHistoricperiod structural or building foundations, walkways, cisterns, pipes, privies, and other structural elements;
- Pre-historic flaked-stone artifacts and debitage (waste material), consisting of obsidian, basalt, and/or cryptocrystalline silicates;
- Dark, greasy soil that may be associated with charcoal, ash, bone, shell, flaked stone, ground stone and fire affected rocks, and Human remains. encounter buried cultural materials and/or paleontological resources, work in the immediate vicinity of the find should cease and a qualified archaeologist/paleontologists must be retrained to assess the significance of the find. The qualified archaeologist/paleontologist shall have the authority to stop or divert construction excavation as necessary. If the qualified archaeologist/paleontologist finds that any cultural resources present meet eligibility requirements for listing on the California register or the national register of historic places (national register), plans for the treatments, evaluation, and mitigation of impacts to the find will need to be developed. Prehistoric or historic cultural materials that may be encountered during grounddisturbing activities include: • Historic-period artifacts such as glass bottles and fragments, cans, nails, ceramic and pottery fragments, and other metal objects;
Project Contractor, Town
Planning Department Prior to grading.

Less Than Significant
Geology & Soils Mitigation Measure No. 1. Prior to the issuance of a grading permit, the Applicant shall provide evidence to the Town of Apple Valley that a qualified archaeologist/paleontologist has been retained by the Project Applicant to conduct monitoring of excavation activities and has the authority to halt and redirect earthmoving activities in the event that suspected paleontological resources are unearthed.

Project Contractor, Town
Planning Department Prior to grading.

Geology & Soils
Resources

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MITIGATION MONITORING REPORTING PROGRAM
TTM-20453
Impact Heading
Level of Impact After
Mitigation Mitigation Measure
Responsible
Party/Monitoring Party Implementation Stage
Less Than Significant
Geology & Soils Mitigation Measure No. 2. The archaeologist/paleontologist monitor shall conduct full-time monitoring during grading and excavation operations in undisturbed, very old alluvial fan sediments at or below four (4) feet below ground surface and shall be equipped to salvage fossils if they are unearthed to avoid construction delays and to remove samples of sediments that are likely to contain the remains of small fossil invertebrates and vertebrates. The archaeologist/paleontologist monitor shall be empowered to temporarily halt or divert equipment to allow the removal of abundant and large specimens in a timely manner. Monitoring may be reduced if the potentially fossiliferous units are not present in the subsurface, or if present, are determined upon exposure and examination by qualified archaeologist/paleontologist personnel to have a low potential to contain or yield fossil resources.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Noise Less Than Significant
Noise Mitigation Measure No. 1. The Applicant must ensure that the contractors use construction equipment that includes working mufflers and other sound suppression equipment as a means to reduce machinery noise.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Less Than Significant
Transportation Mitigation Measure 1. Construct and improve the project’s frontage with Deep Creek Road between the project’s northern property line and Del Oro Road. - Deep Creek Road is designated as a secondary road with an 88-foot right of way. The project will be required to dedicate and widen Deep Creek Road to the 44-foot half-width of a secondary road section including the proposed driveways accessing the project from Deep Creek Road. Until the other half of Deep Creek Road is constructed by others the two travel lanes constructed with the half-width section can provide for two-way traffic.

Town Public Works
Department, Project
Proponent
When warranted, Prior to
issuance of building
permits.

Less Than Significant
Transportation Mitigation Measure 2. Construct Del Oro Road from Deep Creek Road to the Eastern Property Line.
-The project will be required to dedicate land and construct the 44-foot half-width of a secondary road section including the Project’s Driveway “B”. The project should also construct a minimum two-way two-lane (one lane in each direction) roadway between its eastern property line and Deep Creek Road to fill the gap created by the non-project owned property in the southeast corner of Deep Creek Road and Del Oro Road. Until the southern half of Del Oro Road is constructed by others the two travel lanes constructed with the halfwidth section can provide for two-way traffic.

Town Public Works
Department, Project
Proponent
When warranted, Prior to
issuance of building
permits.

Geology & Soils
Resources
Transportation
Resources

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MITIGATION MONITORING REPORTING PROGRAM
TTM-20453
Impact Heading
Level of Impact After
Mitigation Mitigation Measure
Responsible
Party/Monitoring Party Implementation Stage
Less Than Significant
Tribal Cultural Resources Mitigation Measure No. 1. An archaeological monitor shall be present from the outset to observe ground disturbing activities in the Project. The monitor shall work under the direct supervision of a qualified archaeologist (minimum of a Bachelor of Science /B.A. in geology, or related discipline with an emphasis in cultural resources/archaeology and demonstrated experience and competence in archaeological research, fieldwork, reporting, and curation). The monitor shall be a trained archaeological monitor with experience and knowledge in the identification and treatment of cultural resources.
-The qualified archaeologist shall be on-site at the pre-construction meeting to discuss monitoring protocols.
- Archaeological monitoring shall start at full-time. If no cultural resources are discovered after half of the ground disturbance has occurred, monitoring can be reduced to part-time or spotchecking.
- The monitor shall be empowered to temporarily halt or redirect grading efforts if cultural resources are discovered.
- In the event of an archaeological discovery the monitor shall flag the area and notify the construction crew immediately. No further disturbance in the flagged area shall occur until the qualified paleontologist has cleared the area.

Town Planning
Department, Project
Archaeologist
Prior to any site
disturbance.

Less Than Significant
Tribal Cultural Resources Mitigation Measure No. 2. If the Project description changes additional studies may be warranted. If archaeological resources are discovered during construction, a qualified archaeologist shall be retained to assess the nature and significance of the discovery. If human remains are encountered, State Health and Safety Code Section 7050.5 states that no further disturbance shall occur until the County Coroner has made a determination of the origin and disposition of the remains pursuant to State Public Resources Code Section 5097.98. The County Coroner must be notified immediately. If the remains are determined to be prehistoric, the Coroner will notify the NAHC, which will determine and notify a Most Likely Descendant (MLD). With the permission of the landowner or his/her authorized representative, the MLD may inspect the site of the discovery. The MLD shall complete the inspection within 48 hours of notification by the NAHC. The MLD may recommend scientific removal and nondestructive analysis of human remains and items associated with Native American burials.

Project Contractor, Town
Planning Department
During all phases of
ground disturbance.

Tribal Cultural
Resources

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August 16, 2023
Town of Apple Valley
Planning Commission
14955 Dale Evans Parkway
Apple Valley, CA 92307
Subject: Item 4.2 Deep Creek/Del Oro Zoning Change
Commission Members,
I am wri�ng to express my strong opposi�on to the Deep Creek/Del Oro project. I am a lifelong resident of San Bernardino County. My husband and I moved to the high desert in January of 2012 with our 3 children. Like many desert residents, we were atracted to the large open spaces, large property lots/distance from neighbors, and the slower pace. We have enjoyed the sense of community that the desert brings. We both re�red a couple years ago and had to decide whether we should move out of California. It’s no secret that there’s a long list of reasons for re�rees to leave California. However, we love our home, and we love where we live.

We decided to stay and to assist our children in pu�ng down roots.

As a result, we helped our oldest son purchase a house in Apple Valley (Savage Lane). We looked at many houses un�l he found the right one. He loves the view, the open space, and way of life. He is a hard worker and is employed in the desert.

This year we helped our daughter buy a house in Apple Valley. She is also a hard worker and is employed in the high desert. Although not a homeowner yet, our other son works in the high desert as well. We decided not only to stay but to put down deep roots where our children and future grandchildren could enjoy the desert life.

I am deeply saddened and angry that developers are trying to destroy that way of life by squeezing housing into every open space possible. They are destroying the desert. In addi�on, this project is being proposed in an area that does not have the infrastructure. The only ingress and egress is Deep Creek Road, which is already used as a major thoroughfare. This is a serious problem and adding 99 new homes ATTACHMENT 12

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Public Comment Submission – Apple Valley Planning Commission meeting: September 6, 2023 Page 1 | 2
September 5, 2023
Town of Apple Valley
Planning Commission
14955 Dale Evans Parkway
Apple Valley, CA 92307
Subject: Apple Valley Planning Commission Agenda September 6, 2023 Public Hearing Agenda 5

5.2: Mark Maida represented by Steeno Design Studios
PROPOSAL: A request for General Plan Amendment GPA 2022-007 from Low Density Residential (R-LD) to Estate Residential ¾ (R-E ¾) and to modify Policy 4.G and remove Policy 4.H from the Land Use Element, Zone Change ZC 2022- 005 from Residential Agriculture (R-A) to Estate Residential 3/4 (RE-3/4), Development Code Amendment DCA 2022- 003 to modify Note 17 from Table 9.28.040-A (1), decrease the lot depth standard in the RE-3/4 zoning district, and Tentative Tract Map TTM20453 to subdivide 120 acres into 99 residential lots LOCATION: Northeast corner of Deep Creek and Del Oro Roads (APN: 0434-042-32) PUBLIC COMMENT:

Submitted by Town of Apple Valley resident and community member Michelle Painter 11791 Savage Ln, Apple Valley, CA 92308
=================================================================== Dear Esteemed Planning Commission Members:

My husband and I purchased a 2.5 acre lot located on Savage Lane in 2014. We spent so much time looking for the right piece of land to build our home, seeking out a place that was close to work and our families, but still had open, low-density zoning surrounding it. We believed this property would remain low-density, and we’ve invested thousands of dollars to build our dream home on this land because of this.

We are extremely upset and highly opposed to the possibility of your approval to rezone the fields in front of our home and the homes of our neighbors. Rezoning would disrupt the way of life for all who reside along Savage Lane, and destroy what has been a rural community for so many years.

I’ve read the Mitigated Negative Declaration pertaining to this rezoning request and argue that the project would result in significant effects on the surrounding neighborhoods despite the findings and supposed mitigation measures provided within the report.

The Aesthetics WILL have a substantial adverse effect on the scenic vista, scenic resources and existing visual character and quality of the public views of the site and surroundings for the residents residing along Savage Lane. The current expansive views of the fields and areas beyond the fields would be disrupted by the development of a large gated housing project.

The proposed project WILL have significant impact that WILL create a new source of substantial light that WILL adversely affect nighttime views for established residents in the area.

Regarding Agriculture and Forestry Resources, it is noted in the analysis of the environmental impacts under this section that “The site has not been used for farming or agricultural production…because it is not feasible

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Public Comment Submission – Apple Valley Planning Commission meeting: September 6, 2023 Page 2 | 2
due to water restrictions.” While it is true these fields have not been used as farmland for many years, the proposed project would require water resources that far exceed what would be needed if it were still used as farmland.

The established residents of The Town of Apple Valley who reside along Savage Lane, just east of the proposed project will be impacted by a decrease in air quality, not only during construction but also after project completion. Adding 99 homes into our rural community will increase vehicle emissions, fuel oils and natural gas to heat homes, all of which are known to be the primary sources of human-made air pollution.

Section D of Analysis regarding biological resources asks: Would the project interfere substantially with the movement of any native resident or migratory fish or wildlife species? Canadian Geese can be seen every year in the fields of the proposed project site. They graze there seasonally and I have witnessed them doing this since we first moved onto our property in 2015. The field is clearly part of their migratory path. The Canadian goose is a federally protected bird, and this project would disrupt their natural migration path. And in regards to the other wildlife species that live in the field of the projected project, if the fields are disrupted, squirrels, moles, mice, rabbits and multiple other animals that reside in the fields will be forced to go up into the established properties above the fields, creating great potential for our homes and land to be overrun and damaged! The Negative Declaration does not take into account the established residents of the Town of Apple Valley who reside east of the proposed project site, and it is an insult to these residents when this report suggests that little to no mitigated measures are required because there would be minimal impact on the aesthetics, air quality, and overall quality of our lives. The report suggests that these disruptions are at an acceptable level, however they are not acceptable to the residents of this Town. My husband and I, as well as our neighbors, moved to this area specifically for the nature of low-density living, and we would be adversely impacted in multiple ways as explained above.

The High Desert is growing at a high speed pace. Between the 2010 and 2020 census of The Town of Apple Valley, population density has increased by nearly 300 people per square mile. Must we allow low-density zoned areas to be stripped from our Town’s landscape completely? In closing I would like to add that I am a hardworking, contributing citizen of this community who has lived in the High Desert for over 35 years, and worked at Victor Valley College for over 25 years. My husband has been a resident of Apple Valley for most of his life, graduating from Apple Valley High School. He is a teacher at the college, teaching the up-and-coming workforce for this community.

I beseech the Planning Commission Committee members to listen to your citizens and stop this rezoning.

Every time you allow a low-density zoned area to be changed, you are changing the landscape of our Town.

Please listen to the hard working, good citizens of your communities who contribute to making the Town of Apple Valley a “Place to Live” and keep it “A Better Way of Life” for us by VOTING NO to this rezoning request.

We feel that the voices of the established residents should be heard, and we pray that you are listening.

With Sincere Respect,
Michelle Painter

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Mr. Alcayaga, we are close neighbors to the project proposed on Deep Creek and Del Oro and are in support of General Plan Amendment GPA 2022-007 from Low Density Residential (R-LD) to Estate Residential ¾ (R-E ¾) and to modify Policy 4.G and remove Policy 4.H from the Land Use Element,
Zone Change ZC 2022-005 from Residential Agriculture (R-A) to Estate Residential 3/4 (RE3/4), Development Code Amendment DCA 2022-003 to modify Note 17 from Table 9.28.040-A (1), decrease the lot depth standard in the RE-3/4 zoning district, and Tentative Tract Map TTM[1]20453 to subdivide 120 acres into 99 residential lots.

This project will be a beautiful addition to our neighborhood with no adverse effects to traffic, noise, greenhouse gases or any other subjects analyzed in the CEQA document and various studies.

Thank You
Freddie Ballat

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Daniel Alcayaga,
It has come to my attention that there is a project titled Development Code Amendment DCA 2022-003, General Plan Amendment GPA 2022-007, Zone Change ZC 2022-005, and Tentative Tract Map TTM 20453, that I would like to attest formally. I reside in the neighborhood along Deep Creek Road and do not want to see our zoning changed from Agricultural Residential to Estate Residential. This area was meant for something other than real estate development to shrink land sizes and build as many properties as possible.

Deep Creek Road is already busy and dangerous as it is one lane. Motor vehicle accidents result in deaths yearly. Further traffic would plague this area, as would the construction of homes on lot sizes down to 0.75 acres. The community wants to avoid seeing the desert landscape ripped up and turned into conjoined housing strips. Increased populations increase ecological degradation, conflicts, violence, and disease. The high desert already has increased demand for food, water, housing, energy, healthcare, and transportation that it cannot deliver.

Do NOT change the zoning anywhere on Deep Creek from Agricultural Residential to Estate Residential.

Sincerely your community members,

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It has come to my attention that there is a project titled Development Code Amendment DCA 2022-003, General Plan Amendment GPA 2022-007, Zone Change ZC 2022-005, and Tentative Tract Map TTM 20453, that I would like to attest formally. I reside in the neighborhood along Deep Creek Road and do not want to see our zoning changed from Agricultural Residential to Estate Residential. This area was meant for something other than real estate development to shrink land sizes and build as many properties as possible.

Do NOT change the zoning anywhere on Deep Creek from Agricultural Residential to Estate Residential. Please see petition at https://chng.it/GXLfqTRBLv Thank you,
Katherine Shields
909-921-1221
Please let me know when the town hall meeting will be held, there is differing information online versus the information that was sent in the mail.

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Do NOT change the zoning anywhere on Deep Creek from Agricultural Residential to Estate Residential.

Sincerely your community members,

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This project will be a beautiful addition to our neighborhood with no adverse effects to traffic, noise, greenhouse gases or any other subjects analyzed in the CEQA document and various studies.

Vanishree Poola

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September 5, 2023
Daniel Alcayaga -AICP Planning Manager
Town of Apple Valley Planning Commissioners
Town of Apple Valley
14955 Dale Evans Pkwy
Apple Valley, CA 92307
Dear Sirs,
We are close neighbors to the project proposed on Deep Creek and Del Oro and are in support of General Plan Amendment GPA 2022-007 from Low Density Residential (R-LD) to Estate Residential % (R-E %) and to modify Policy 4.G and remove Policy 4.H from the Land Use Element, Zone Change ZC 2022-005 from Residential Agriculture (R-A) to Estate Residential 3/4 (RE-3/4), Development Code Amendment DCA 2022- 003 to modify Note 17 from Table 9.28.040-A (1), decrease the lot depth standard in the RE-3/4 zoning district, and Tentative Tract Map TTM[1]20453 to subdivide 120 acres into 99 residential lots.

This project will be a beautiful addition to our neighborhood with no adverse effects to traffic, noise, greenhouse gases or any other subjects analyzed in the CEQA document and various studies.

It will be located near retail and services in the area and be a boost to our local economy. The look and feel for the project will add additional housing, which is greatly needed. As an Apple Valley resident, I strongly support the project.

Sincerely,
~ (\,t()~
Raman S Poola MD
1760 910 1010
[email protected]

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To Whom It May Concern,
My family and I are absolutely against this ReZone. We purposefully bought property in this area because it was zoned RL (Rural Living). We purposefully had our Real Estate Agent only look for homes that were specifically zoned this way. We enjoy our rural way of living and would have to consider leaving the area if it was changed. We bought in the high desert and specifically Apple Valley because we could have the ranch that we had always wanted.

Thank you,
Rebecca Thorp
The Thorp & Valdez Families

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ATTACHMENT 13

DRAFT MINUTES OF THE PLANNING COMMISSION MEETING
MINUTES OF SEPTEMBER 6, 2023

5.2 CASE NUMBER: General Plan Amendment GPA 2022-007, Zone Change ZC 2022-005, Development Code Amendment DCA 2022-003, and Tentative Tract Map TTM 20453
APPLICANT: Mark Maida represented by Steeno Design Studios PROPOSAL: A request for General Plan Amendment GPA 2022-007 from Low Density Residential (R-LD) to Estate Residential ¾ (R-E ¾) and to modify Policy 4.G and remove Policy 4.H from the Land Use Element, Zone Change ZC 2022-005 from Residential Agriculture (R-A) to Estate Residential 3/4 (RE-3/4), Development Code Amendment DCA 2022-003 to modify Note 17 from Table 9.28.040-A (1), decrease the lot depth standard in the RE-3/4 zoning district, and Tentative Tract Map TTM 20453 to subdivide 120 acres into 99 residential lots
LOCATION: Northeast corner of Deep Creek and Del Oro Roads (APN:
0434-042-32)
ENVIRONMENTAL DETERMINATION: Based on the Initial Study, pursuant to the California Environmental Quality Act (CEQA), a Mitigated Negative Declaration has been prepared and a Mitigation Monitoring and Reporting Program.

CASE PLANNER: Daniel Alcayaga, AICP, Planning Manager
RECOMMENDATION: Approval
Daniel Alcayaga, Planning Manager, presented the staff report as submitted to the Planning Division.

The public hearing opened at 6:07 p.m.

Commissioner Arias asked for clarification on the life of Tentative Tract Maps and clarification on the type of projects being proposed for approval.

Chairman Lanyon asked the applicant, Tom Steeno, if he would like to step forward and make any comments.

Tom Steeno discussed the project being proposed and gave a very detailed description of the entire community. Tom Steeno acknowledged the community’s concerns and continued to discuss the project. Tom

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Steeno reviewed the conditions of approval and requested the community to understand the amount of work required in this project. Tom Steeno addressed conditions P9 and P21, and EC8 and requested to have it removed. Mr. Steeno stated he did not agree with those three conditions.

During discussion, many audience members were speaking, and Chairman Lanyon requested they hold their comments until the public comment section.

Chairman Lanyon opened questions for the Applicant by the Commissioners, and Commissioner Kallen asked for the conditions mentioned by the Applicant to be addressed. Tom Steeno repeated his request to not have the plans completed prior to recordation of the final map. Daniel Alcayaga, Planning Manager, provided response for Mr.

Steeno per the Subdivision Map Act. Mr. Alcayaga stated the landscaping and irrigation plans were necessary to estimate the cost of a bond that is required prior to recordation of the final map.

Richard Pedersen, Deputy Town Engineer came forward to address condition EC8, to which he stated that he would not recommend waving that condition. Mr. Steeno agreed to have all conditions remain.

Commissioner Arias requested to speak to the owner of the property, Mark Maida. Commissioner Arias asked Mr. Maida if the development would certainly occur, as his other project did not. Commissioner Arias continued to compare this project to other projects where there are lots ready for building and have halted, due to the economy. Mr. Maida discussed the reasoning as to why his other projects are not moving forward due to the interest rate.

Chairman Lanyon opened the public comment at 6:32.

The following individuals spoke in opposition of this item:

1. Erin Deorio – Apple Valley

2. Robert Windall – Little Rock

3. Randall Massaro

4. Bob Gillenwater – Apple Valley

5. Tamara Espinoza – Apple Valley

6. Earl Whitley – Apple Valley

7. Sally Austin - Hesperia

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8. Sandra Sorenson – Apple Valley

9. Susan Warren – Apple Valley

10. Judy Lux – Apple Valley

11. Lisa Wilson – Hesperia

12. Katie Shields – Apple Valley

13. Martha Camarindo – Apple Valley

14. Amber Sorenson – Apple Valley
Generally, the reasons cited by members of the public for opposing the project included protecting the agricultural land and requesting that this type of growth occur elsewhere.

Members of the public cited concerns with the environment, water quality, traffic, as well as concerns with biological and tribal resources. One resident cited concerns with growth without having needed medical services in the area.

The following individuals spoke in support of this item:

1. Jonathan Goetsch – Apple Valley

2. Miguel Olmos – Apple Valley

3. Margaret Smith - Apple Valley

4. Thurston Smith – Apple Valley

5. Krishna Murphy – Apple Valley

6. Kedra Creer - Apple Valley

7. Gregory Dan – Apple Valley
Reasons to support the proposal included the need for quality housing and felt the development represented responsible grow. Several speakers spoke of the developer’s desire to build a quality development, as well as supported the nature of the development. Several members of the public stated that the development would benefit the area by replacing a vacant field with quality housing on large lots and by extending infrastructure to the area, as well as creating jobs and revenue for services. Members of the public mentioned the need to approve a project of this type prior to the State intervening and forcing higher densities to this area.

The public comment closed.

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Chairman Lanyon invited the Applicant, Tom Steeno, to come rebut any comments. Mr. Steeno acknowledged the public speakers’ comments. Mr.

Steeno compared this project to others that were approved and developed in the area and assured the audience that this will be a benefit to the community.

Commissioner Tinsley asked if the conditions assessed were still applicable, Chairman Lanyon advised they were still included.

Commissioner Kallen asked for sewer connection information near the development. Daniel Alcayaga, Planning Manager, stated that if the current resident’s septic system fails, residents nearby have the option to connect to sewer. Commissioner Tinsley stated that this is a state requirement that you’re required to hook into sewer if your septic system fails and is within 200 feet of the sewer connection. In addition to the sewer requirements, Chairman Lanyon mentioned that the state implements standards for housing that the Town has no jurisdiction over.

An audience member asked about the widening of Deep Creek Road and Richard Pedersen, Deputy Town Engineer, came to the dais to speak. Mr.

Pedersen provided the requirements for the widening and electric service along the road, noting that it would be at the applicant’s expense.

Albert Maldonado, Town Attorney, advised Chairman Lanyon that if he chooses to entertain other questions not previously asked, that it would be best practice to have the individual inquiring to fill out a request to speak card. Chairman Lanyon stated that the Commissioners still had matters to discuss and that any rebuttals may be brought to Town Council.

Commissioner Tinsley stated that residents or inquiring parties are welcome to call Town staff during business hours and bring concerns to Town Council.

The public hearing closed at 7:39 p.m.

Commission discussion opened at 7:39 p.m.

Chairman Arias discussed the topic of gated communities and the scarcity of availability in them. Mr. Arias emphasized that growth is needed in the high desert and addressed that the Town does not allow streetlights and light pollution will not be an issue due to this project.

Vice Chairman Kallen stated that he is for growth in the community and spoke on areas that horses are allowed in and discussed the land use

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principles for different zoned areas. Mr. Kallen then discussed private property rights and that growth is necessary.

Commissioner Tinsley thanked the audience for attending. Mr. Tinsley stated that change is occurring in the Town, and he appreciated the project.

Commissioner Arias spoke about Burlington Northern Santa Fe coming to Barstow and using eminent domain and discussed other developments coming to the high desert and a high number of new jobs and increased population coming to the area.

Chairman Lanyon stated that he has not come to a decision on the project and asked Commissioner Kallen about the zoning of different areas and how they were zoned as such in the General Plan. Commissioner Tinsley stated that it occurred from an estimate of the direction the Town was taking at the time.

Chairman Arias asked how long a Conditional Use Permit and General Plan Amendment are valid for, Mr. Alcayaga advised of the time frames.

Vice Chairman Kallen advised that whatever the final vote is, it is only a recommendation to Town Council.

Chairman Arias asked for a motion and Commissioner Tinsley motioned.

Mr. Maldonado requested the full name of the projects be read and read them on behalf of Commissioner Tinsley.

Motion by: Commissioner Tinsley
Seconded by: Commissioner Arias
To approve General Plan Amendment GPA 2022-007, Zone Change ZC 2022-005, Development Code Amendment DCA 2022-003, and Tentative Tract Map TTM 20453.

Yes (4): Vice Chairman Kallen; Commissioner Arias; Commissioner Tinsley.

Carried (3 to 1)

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Town Council Agenda Report
Date: November 14, 2023
To: Honorable Mayor and Town Council
Subject: PARTICIPATION AGREEMENT FOR RESIDENTIAL SOLAR AND

BATTERY PROGRAM

From: Douglas Robertson, Town Manager
Submitted by: Guy Eisenbrey, Director of Municipal Services Public Works
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Authorize the Town Manager, acting as Executive Director of Apple Valley Choice Energy, to execute a Program Participation Agreement with Electriq Power, Inc. for the Town to participate in the Sustainable Community Network program and dedicate revenues collected above the required $75,000.00 escrow balance to account 5810- 0000-4180 for future clean energy projects.

SUMMARY
The Sustainable Community Network (SCN) program is enabled in a community through a partnership with a local stakeholder, usually a city or county, that serves local constituents. The City of Santa Barbara, City of Goleta, and the City of Capinteria, to name a few, already participate with SCN through their local programs. “Santa Barbara Home Power Program” is one such program wherein the local government, Santa Barbara’s CCA, Santa Barbara Clean Energy, and Electriq Power, Inc. (EP) entered into a similar Program Participation Agreement that describes stakeholder roles in the SCN program. Unique to this agreement is the fact that the Town would not be a direct party to the PPA between EP’s SCN program and residential customers who are billed separately from their Southern California Edison bill. A model PPA is attached hereto as EXHIBIT A, enabling participating residents to verify whether the PPA they sign matches the one the Town reviewed to ensure transparency and consistency.

By enrolling in the program, Apple Valley Choice Energy (AVCE) would provide support for improving local equitable access to renewable and resilient energy, enhancing the Town’s ability to differentiate itself as a highly customer-focused organization that is responsive to the markets and needs of the community as laid out and prioritized in

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AVCE’s Implementation Plan. The SCN program aligns with this vision, enabling residents to access solar energy generation and battery storage systems in their homes, regardless of financial qualifications. The SCN program is designed to ensure everyone can participate in the clean energy transition, removing traditional financial barriers that many experience when pursuing solar and battery systems. Renters can also benefit; however, homeowner/landlord authorization and involvement would be required for rental homes.

For AVCE to participate and partner in the program, the Town of Apple Valley would need to enter into a Program Participation Agreement with EP; attached hereto as EXHIBIT B.

Under this agreement, the Town would not need to commit any funds to the program and would instead earn a share of revenue (5%) from all PPAs established under the program within the Town and after $75,000.00 from AVCE funds is deposited into a first loss reserve or escrow account, maintained for one year. This escrow account threshold balance serves as a financial security against risk of customer late payment or default and allows the program to do away with any FICO requirement or property-specific lien.

Use of this financial structure enables the PPA to be offered to the entire community, regardless of access to credit and traditional financial instruments, thereby unlocking participation in the clean energy transition to all. The 5% revenue share begins to accrue into the escrow account as soon as the PPA payments begin. After one year, SCN expects the program will meet its minimum thresholds and revenues will begin flowing to AVCE; actual timing will be dependent on the rates of default and the economics of the individual systems in the program. Regardless of timing of the expected revenue share, the SCN program will contribute to the local economy and jobs, decrease the Town’s effect on climate change, and provide opportunities for community engagement, including a local preference for locally owned and Town licensed solar and battery vendors and installers.

The Town of Apple Valley and AVCE would agree to support the program through public outreach, marketing, workshops, newsletters, and listing on the Town’s website, etc. This outreach would direct interested residents to the programmatic/enrollment website that would be created with Town of Apple Valley branding, including the Town's and AVCE’s logos.

BACKGROUND
The SCN program is closely aligned with AVCE’s and the Town’s sustainability and resiliency goals and renewable energy procurement requirements. The program will reduce the Town’s and the community’s greenhouse gas emissions thereby positively impacting our ability to achieve the reduction goals stated within the Town’s 2019 Climate Action Plan. The program also aims to invest locally in the community and provide local control of resources that would otherwise not be retained within our local economy.

Providing sustainable on-grid energy to a greater portion of the community not only contributes to AVCE’s energy goals, but also its resiliency goals. As a CCA, AVCE benefits greatly from an increased reliance on local resource generation and residents can utilize their systems off-grid to ensure the power stays on when it would otherwise not be available due to blackouts or Public Safety Power Shutoffs. To realize these

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benefits, EP has created the SCN Program to provide residential solar-microgrid, behind– the-meter smart home battery and solar photovoltaic installation to participants through a Power Purchase Agreement (PPA).

Unlike traditional PPAs, the SCN PPA has no FICO requirement, no property lien, and no deposit or other upfront cost, and is easy to buy out or transfer to a new property owner. SCN provides the program through a partnership with a local stakeholder (city or county government) to ensure the PPA is validated and to support programmatic outreach into the local community.

The systems provided by the SCN program can also protect AVCE and Town residents from extreme weather events when the cost of electricity is extremely high. Such events like extremely hot weather drives up electricity use, straining the grid and sometimes resulting in rolling blackouts to ensure the grid does not fail. These “heat events” and the associated stress on the grid usually peak towards the evening hours, when solar generation declines and consumers are returning home, increasing demand for electricity. When this occurs, Flex Alerts are issued and consumers are asked to adjust thermostats, unplug unused electronic devices, and turn off unnecessary lights. Every power outage creates hardships for customers and communities, especially with the increase in people working from home. Such power outages are particularly impactful for vulnerable members of the community, such as children and seniors.

In addition to reducing greenhouse gases and carbon emissions, residential solar microgrid (RSM) systems are designed to offer customers of all income levels more secure electrical power. The SCN Program provides RSM systems without the usual financial barriers that disproportionately affect members of low- and moderate-income communities. SCN ensures access to these systems by anyone in the community regardless of credit score or income.

FISCAL IMPACT
$75,000.00 from account 5810-0000-8940-0000.

Program revenue that could potentially exceed revenues from interest rates paid from any other investment strategy. Projected revenues at completion of 300 systems, paying on average $225/month, is expected to be approximately $40,500.00 annually.

ATTACHMENTS
A. Model PPA Agreement
B. SCN Program Participation Agreement

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Contract ID # [___________]
1 Power Purchase Agreement: Part I – Payment Terms and Summary This Power Purchase Agreement (“Agreement”) is given to you by [Provider] (sometimes referred to as “we”, “us”, or “our”).

Under the Agreement you agree to buy and we agree to sell all the electric energy generated by a solar power system and related services from a battery storage system that we will own (the “System”), to be installed at your home (the “Property”) as described more fully Part II – Terms and Conditions (“Part II” or “Standard Terms”) of the Agreement. This Part I provides answers to some important questions you may have regarding the terms of the Agreement. The answers to the questions below in this Part I are not intended to answer all questions you may have about the Agreement, and only summarize certain terms of the Agreement. Please read the entire Agreement carefully.

Property Owner(s):

Property Address:

Property Owner Contact Information:

Provider:
--------------------------------------------------
--------------------------------------------------
Payment Terms: $.24/kWh
Monthly Payment:*
Annual Percentage Increase:
(the “Annual Increase”)
[____________]
[___2.9%_________]
*Plus applicable taxes and fees, if any.

What services will we provide?
● We will insure, monitor, operate, maintain and repair the System at no cost to you. ● We will bill you the total monthly payment amount set forth above for each month of the Term. Annual price increases are capped at 2.9% for the full term of the Agreement.
● This Agreement is offered as a part of a program that avoids credit requirements for qualifying, property liens, or hidden costs.

We are able to accomplish this by working with your home city/town, namely [City] (“City”), to support the program (“Program”).

The terms of the City’s participation in the Program are memorialized separately in a Sustainable Community Network Agreement between Us and the City.

What happens if you want to sell your home?
You have three options if you sell your home as described in Part II, Section 6 of the Agreement:
● Assign this Agreement to the buyer if the buyer agrees to assume the obligations herein; or ● Purchase the System from us; or
● Prepay all monthly payments through the remaining term of the Agreement, in which case the buyer would have no additional payment obligations under the Agreement.

Can you end the Agreement early?
● The Term of the Agreement is twenty-five (25) years.
● The only ways to end the Agreement early are if you sell your home or if you purchase the System as described in Part II, Section 7 of the Agreement.

What happens at the end of the Term?
● You may purchase the System as described in Part II, Section 7 of the Agreement; or ● You may ask us to remove the System at no cost to you, as described in Part II, Section 9(c) of the Agreement; or ● The Agreement may automatically renew for up to ten (10) one-year renewal terms as described in Part II, Section 8(a) of the Agreement.

What happens to tax credits, incentives, renewable energy credits and other benefits associated with the System? ● We will own all federal, state and local tax credits, incentives, renewable energy credits, green tags, carbon offset credits, utility rebates or other attributes of and related energy storage services from the System; including renewable energy certificates and any similar environmental attributes associated with the electricity output from the System.

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Contract ID # [___________]
2 The Payment Terms outlined above are only valid if you sign and return the Agreement to us within thirty (30) days of [ DATE ], which date may be extended at our sole discretion.

By signing below, you agree that you:
● Have read the entire Agreement including any/all Exhibits; ● Agree to all the terms of the Agreement and the Exhibits, including without limitation the arbitration provisions in Part II, Section 19 of the Agreement;
● Are eighteen (18) years of age or older;
● Unless signing as a co-signer, are either a United States resident or are not exempt from paying Federal U.S. income taxes;
● Are the owner of legal title to the home and that every person or entity with an ownership interest in the home has agreed to be bound by the terms of the Agreement;
● Have understood that Provider has the right to obtain and use your consumer report, but this will not impact eligibility;
● Agree that Provider will make a final determination of the property eligibility in its sole discretion; ● Acknowledge that you are responsible for making all payments under the terms of this Agreement; ● Acknowledge that Provider will communicate with you via email and that you must maintain a working email address in order to receive these communications;
● Acknowledge that you will continue to receive a monthly bill from your local utility; ● Acknowledge that the System is owned by Provider and/or its affiliates; and ● Acknowledge that you have been advised of your right to cancel this Agreement.

REST OF PAGE INTENTIONALLY LEFT BLANK

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Contract ID # [___________]
3 California Right to Cancel Notice:

You, the buyer, may cancel this transaction at any time prior to midnight of the fifth day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.

BY SIGNING BELOW, YOU ATTEST THAT YOU HAVE RECEIVED A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT AND THE EXHIBITS, AND TWO (2) COPIES OF A NOTICE OF CANCELLATION.

Property Owner’s Name: Co-Owner’s Name (if any):

Signature: Signature:

Date: Date:

TERMS OF AUTOMATIC RENEWAL
PROVIDED THAT (I) YOU ARE NOT IN DEFAULT UNDER THIS AGREEMENT (SEE SECTION 16 IN PART

II) AND (II) YOU HAVE NOT GIVEN US WRITTEN NOTICE OF YOUR INTENT TO PURCHASE THE SYSTEM AT THE END OF THE TERM (AS DESCRIBED IN SECTION 7(A) OF PART II), THIS AGREEMENT SHALL

AUTOMATICALLY RENEW UNLESS WE RECEIVE NOTICE FROM YOU TO THE CONTRARY OR UNTIL THE MAXIMUM NUMBER OF RENEWALS IS REACHED.

TO PREVENT AN AUTOMATIC RENEWAL FROM OCCURRING, WE MUST RECEIVE FROM YOU WRITTEN NOTICE AT LEAST THIRTY (30), BUT NOT MORE THAN NINETY (90), CALENDAR DAYS BEFORE THE SCHEDULED COMMENCEMENT OF AN AUTOMATIC RENEWAL THAT YOU DO NOT WISH TO RENEW.

THIS AGREEMENT WILL RENEW AT A MONTHLY PAYMENT EQUAL TO THE MONTHLY PAYMENT FOR YEAR 25 ESCALATING ANNUALLY AT THE APPLICABLE ANNUAL INCREASE RATE.

AT THE END OF THE ORIGINAL TERM, THIS AGREEMENT WILL RENEW FOR ONE (1) OR MORE ADDITIONAL ONE (1) YEAR RENEWAL TERM(S) FOR A MAXIMUM OF TEN (10) RENEWAL TERMS.

WE WILL SEND YOU A NOTICE AT LEAST THIRTY (30), BUT NOT MORE THAN SIXTY (60), CALENDAR

DAYS PRIOR TO THE END OF THE TERM TO (I) REMIND YOU OF YOUR END OF TERM OPTIONS AND (II) DISCLOSE TO YOU THE MONTHLY PAYMENT FOR THE FIRST AUTOMATIC RENEWAL TERM AND

THE RATE AT WHICH THE MONTHLY PAYMENT WILL AUTOMATICALLY ESCALATE FOR ANY FUTURE AUTOMATIC RENEWAL TERMS.

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Contract ID # [___________]
4 Power Purchase Agreement: Part II – Terms and Conditions THESE TERMS AND CONDITIONS (“STANDARD TERMS” OR “PART II”) ARE INCORPORATED BY REFERENCE INTO THE POWER PURCHASE AGREEMENT: PART I – PAYMENT TERMS AND SUMMARY (“PART I”) BETWEEN PROVIDER AND THE PROPERTY OWNER. IN THE EVENT OF A CONFLICT BETWEEN THESE STANDARD TERMS AND PART I, THESE STANDARD TERMS SHALL GOVERN. THESE STANDARD TERMS AND PART I ARE COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT.”

1. General.
(a) Introduction. This Agreement is the agreement
between each Property Owner who signs Part I of this
Agreement (individually and together referred to in this Agreement as “you” and “your”) and [Insert Provider]
(together with its successors and assigns, “Provider” or “we”, “us” or “our”), for the sale to you of the electric energy (“Energy”) generated by a solar energy generation and battery storage system that we will own, which
includes solar panels, mounting systems, inverters,
energy monitoring systems, batteries and other
equipment (collectively, the “System”) to be installed at your request at the Property Address shown on Part I
pursuant to an installation agreement between you and a licensed contractor (“Installer”). Because of your
agreement to purchase Energy and related battery
storage services pursuant to this Agreement, Provider
has agreed, at your request, to purchase the System from Installer following installation. This Agreement refers to the location of the installed System as the “Property”.

Provider agrees to sell to you, and you agree to buy from Provider, all of the Energy generated by the System on
the terms and conditions described in this Agreement. By signing this Agreement, you confirm that you are a
Property Owner signing on behalf and with the
consent and authorization of all Property Owners of
the Property, a trustee if the Property is owned by a
trust, or an attorney in fact or agent authorized under a written power of attorney to sign on behalf of the
Property Owners.
(b) In-Service Date. The In-Service Date is the first
day after all of the following have been achieved: the
System has been installed and is capable of generating
Energyand providing battery storage services, all permits necessary to operate the System have been
obtained, the System has been interconnected with the
local utility’s electric grid, all inspections, back-up documentation, and certificates required under applicable law or by the local utility have been provided to Provider and all conditions listed in Section 10 have been satisfied. (c) Term of Agreement. The “Term” of this
Agreement begins on the In-Service Date and runs for
twenty five (25) years (300 full calendar months) plus, if the In-Service Date is not on the first day of a calendar month, the number of days left in that partial calendar month. If the In-Service Date is any day other than the first day of a calendar month, the resulting partial month is included along with the subsequent twelve (12) full
calendar months in the first year of the Term. Each
subsequent year of the Term begins on the first day of the calendar month immediately after the anniversary date of the In-Service Date.
(d) This Agreement is intended to be a “service
contract” within the meaning of Section 7701(e) of the
Internal Revenue Code of 1986, as amended.

2. Purchase and Sale of Energy; Monitoring;
Other System Use; Data
(a) Payments. You agree to pay the “Monthly
Payment” as set forth on Exhibit B.
(b) Monthly Bills. Each month, we will prepare a
written or electronic bill for the preceding billing cycle. We may send your monthly bills via email unless you contact us directly to request that your monthly bills be sent
through the U.S. mail.

Your billing cycles run on a monthly basis. Your monthly bill will reflect the Monthly Payment from the applicable monthly billing period plus any applicable taxes and fees.

You agree to review each monthly bill promptly for any
errors. If you inform us that an error exists on your
monthly bill, we will attempt to correct that error prior to your next monthly bill. If you fail to promptly notify us in writing about an error on your monthly bill, we shall bear no liability or responsibility for any losses incurred to the extent permitted by law. Our sole liability to you shall be our obligation to make any appropriate changes after we receive your notification.
(c) Monthly Payments. The first Monthly Payment
due date will be at least thirty (30) calendar days after the In-Service Date. All other Monthly Payments will be due on the same day of each following month as the first
Monthly Payment; provided, if the due date of the first Monthly Payment is the last day of the month and such
date does not exist in all subsequent months, then each subsequent due date shall be the last day of the
applicable month. For example, (i) If the In-Service Date occurs on February 17, the first Monthly Payment will be due no earlier than March 17 and (ii) if the due date for the first Monthly Payment is March 31, then the due date for the second Monthly Payment will be April 30. We will send you written notice of the first Monthly Payment due date and amount after the In-Service Date
Monthly Payments are payable to us (i) by automatic
withdrawal from your checking or savings account or (ii) by cash or check drawn on a United States bank account.

By providing your automatic payment information where
indicated on Exhibit D, you agree to make all Monthly
Payments through an automatic payment from your
checking or savings account. Alternatively, if you choose to make your Monthly Payments in the form of cash or
check, you will be required to pay the payment processing fee as set forth on Exhibit D. You agree to send Monthly Payments to us at the address shown on Exhibit D or to

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Contract ID # [___________]
5 any other address or person specified in a written notice we send to you.
(c) Additional Energy. If you need more electric
energy than is being generated by the System, you will be solely responsible for purchasing that electric energy
(“Additional Energy”) from an additional supplier, such as your local utility provider or retail electric supplier.

During the term of this Agreement, you should expect to purchase Additional Energy from your local utility or retail electric supplier from time to time. Provider will not be in default of this Agreement and will not be responsible for any Additional Energy purchased by you to augment the
Energy generated by the System.
(d) Monitoring. During installation or at any time
during the Term, we may install, and from time to time
repair or replace, monitoring equipment to monitor the
battery system charging, battery system discharging,
energy production and energy consumption, including at
the interconnection point with the local utility company.

We will collect monitoring data remotely or use our
personnel to collect such information and will make the data available to you upon request. We may also access
data regarding your energy consumption from your utility company or from electric usage data storage sites and
you agree to execute any necessary third-party access
agreement if requested. You agree to allow our personnel access to your Property to collect such information from the monitoring equipment. You agree not to tamper with, damage or modify the energy monitoring equipment in
any way. You will be responsible for any damage or
inaccuracies in the energy monitoring equipment that are caused by you or any other person unrelated to Provider. (e) Other System Uses. We may, from time to
time, administer and operate the System to optimize your home’s energy production, storage and consumption, as
well as for demand response, energy storage or other
utility-based programs designed to reduce your electricity costs or to maintain the reliability of your local electrical grid (if available in your utility area). In support of these programs, we may use the energy stored in the batteries to reduce strain on the electrical grid at times of high energy demand in your region, or for similar purposes.
(f) Data Usage and Disclosure. We may combine
the Energy usage data and System production and
performance data with other data, including, without
limitation, personally identifiable information (collectively, “Data”). Our possible uses and disclosure of the Data are described in Exhibit E. We will never sell any personally identifiable Data to a third party without your prior written consent.
(g) Batteries. The System includes one or more
batteries. Each battery will have a storage-enabled
inverter/charger capable of providing electricity
dependent upon the current state of battery charge. You agree that Provider shall have the right to remotely
monitor, update, control, and cause energy to be
discharged or reserved from and in batteries, at any time and in its sole discretion and without notice, for the
purposes of increasing your energy savings, preparing
you for potential grid outage situations and for your
participation in third-party programs (including, but not limited to utility or grid programs), or otherwise
participating in the management of electricity in your
service area. Should Provider change the mode of the
Battery (to discharge or reserve), you will benefit either through direct use of the energy discharged or reserved or the receipt of a net metering credit, as applicable in your utility district. Provider further agrees that should it remotely discharge the battery, it will not cause any undue strain on or alter the warranty for the Battery, and in these programs managed by Provider, Provider will maintain a
reserve of no less than a 20% charge in the battery
following such discharge in coordination with a third-party program.

You acknowledge and agree that Provider may receive
compensation as a result of your participation in an
energy management program including, but not limited to load shifting, capacity, voltage management, or any other use of the Battery energy within the parameters defined above. You further acknowledge that in exchange, you
have received beneficial pricing for your Agreement,
including the Battery, and you hereby waive any and all claims to further compensation from Provider or any third party. Notwithstanding the prior sentence, Provider from time to time may offer additional opportunities for
customer participation in third-party programs subject to a separate agreement, and you may be eligible to receive compensation from Provider in connection with such
programs.

Your system will provide limited backup power in the
event of a utility outage. Provider may direct for the use or export within certain limited circumstances, described above, of up to 80% of the stored energy from the battery.

You acknowledge and agree that only the energy in the
Battery, if any, at the time of a grid outage will be available to you for backup power services as well as any additional energy produced and charged by the solar system during
that outage.
(h) Not all electrical loads are suitable for backup
operation. You will be responsible for failure or damage (including to the System) caused due to backing up more loads than we approved. and/or changing settings from
initial install conditions. EACH BATTERY WILL POWER

ITS DESIGNATED CIRCUITS ONLY AND NOT YOUR
ENTIRE HOME. We do not take responsibility for system
failure caused due to excessive loads.

PROVIDER PROVIDES NO GUARANTEE OR

WARRANTY THAT ALL OR ANY PORTION OF YOUR

ELECTRIC LOAD WILL BE SUPPORTED BY THE

BATTERY SYSTEM DURING EVERY ELECTRICITY
OUTAGE. YOU AGREE THAT WE WILL NOT BE

LIABLE IN THE EVENT THE BATTERIES FAIL TO

PROVIDE BACKUP ELECTRICITY, AND WE DISCLAIM

ANY SUCH LIABILITY, IRRESPECTIVE OF THE
REASON FOR SUCH FAILURE. DO NOT DEPEND ON

BATTERY BACKUP ELECTRICITY FOR LIFE
SUPPORT OR OTHER MEDICAL EQUIPMENT. IF YOU

HAVE CRITICAL MEDICAL EQUIPMENT ELECTRICITY

NEEDS DURING AN ELECTRICITY OUTAGE,

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Contract ID # [___________]
6 CONTACT YOUR LOCAL EMERGENCY SERVICES OR
DIAL 911.

Please notify us at 877-425-5201 or by email at
[email protected] in the event your battery
system does not provide backup electricity during an
electricity outage.

Under normal conditions of use, the battery should pose no danger to you. However, if mishandled, the battery
may become dangerous and could pose dangers related,
but not limited, to fire hazards, high-voltage hazards, and mechanical damage, among other dangers.

For the duration of the Term, you agree that you will not connect any other power generation or energy storage
resource (including any backup systems) to the home’s
electrical panel including any such resource using diesel, natural gas, gasoline, propane or liquefied petroleum gas.

Agreed and accepted by: _____ (Initials)

3. Performance Guarantee.
(a) Guaranteed Output. Subject to the conditions
set forth in this Section 3(a), we guarantee that the
System will generate, on a 24-month basis, no less than the output as set forth in Exhibit C (the “Guaranteed
Output”). Subject to the conditions set forth in this Section 3(a), we will issue you a credit if the System does not generate the Guaranteed Output.

We will not issue you a credit for any System underperformance arising from any of the following:
(i) Under-performance arising from your failure to
comply with your obligations under the
Agreement.
(ii) Under-performance arising from shading
conditions (other than weather) different from
those that were present at the Property at the
commencement of installation.
(iii) Under-performance as a result of a grid failure
disabling the System.
(iv) Under-performance arising from you causing or
requesting the System to be shut down or to
generate significantly less electric energy.
(v) Under-performance arising from damage to the
System caused by Property Owner negligence or
foreign objects acting on the System (hail, golf
balls, etc.).

WE MAKE NO OTHER REPRESENTATION,

WARRANTY OR GUARANTEE OF ANY KIND
REGARDING THE SYSTEM’S ACTUAL OR EXPECTED

OUTPUT OR PERFORMANCE AND ANY OTHER

EXPRESS OR IMPLIED WARRANTIES ARE HEREBY
DISCLAIMED.
(b) Over-generation. If, over the course of the
Term, the System generates more energy than the
Guaranteed Output, then the extra energy will be yours at no additional cost. We may use this over-generation
amount to offset future under-performance in a given
period should the Actual Output attributable to such
period be less than the Guaranteed Output attributable to such period.
(c) Actual Output and Credits. On the 24- month
anniversary of the In-Service Date and on every 24-month anniversary thereafter indicated on Exhibit C (each, a
“Guarantee Date”), we will calculate the “Actual Output” of the System during the preceding 24-month period. For the purposes of this Agreement, “Actual Output” shall
mean the amount of Energy generated by the System to
date plus any kWh for which you have previously received a credit. Subject to Section 3(a), if the Actual Output is less than the Guaranteed Output for that Guarantee Date set forth on Exhibit C, we will issue you a credit. This credit will be calculated by subtracting the Actual Output for that Guarantee Date from the Guaranteed Output for that
Guarantee Date, and multiplying the applicable Credit per kWh for that year set forth on Exhibit C. If the energy monitoring system is malfunctioning or otherwise
inoperable for a period of time, we may calculate your
Actual Output using the estimated kWh that would have
likely been generated during that period based on the
historic amount of Energy generated by the System.

Agreed and accepted by: _____ (Initials)

4. Provider’s Additional Obligations. We agree
to:
(a) utilize a web-based performance monitoring
system to accurately measure the amount of Energy the
System delivers to you;
(b) maintain the System in good operating condition
at our cost and expense;
(c) insure the System against all damage or loss
unless that damage or loss is caused by you, your guests, contractors or agents; and
(d) operate the System in material compliance with
all applicable laws and permits and local utility providers’ requirements.

5. Your Additional Obligations.
(a) System and Property Maintenance. You
agree to:
(i) maintain and make available, at your cost, a
functioning indoor internet connection with one
available wire Ethernet port and standard AC
power outlet within eighty (80) feet of the
System’s AC/DC inverter(s) at all times during the
Term;
(ii) maintain in good condition and repair the roof of
your home and any structural elements or utility
interconnections necessary to support the
operation of the System;

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Contract ID # [___________]
7 (iii) not move, tamper with, or disturb the System, or permit anyone else to do so, unless previously
authorized by Provider;
(iv) not modify, permit or allow structures on your
Property in a way that shades, blocks or restricts
the System’s access to direct sunlight;
(v) keep trees, bushes and hedges trimmed so that
the System receives as much sunlight as it did
when the System was installed;
(vi) be responsible for any conditions at your Property that affect the installation or maintenance of the
System (e.g., blocking access to the roof, or
removing a tree or other natural or man-made
object(s) that block access to the roof and/or to
sunlight) at your sole cost and expense;
(vii) prevent damages to the System from foreign
objects such as golf balls, frisbees, rocks;
(viii) permit Provider, after we give you reasonable
notice, to inspect the System for proper operation
as we reasonably determine necessary;
(ix) use the Energy the System generates primarily
for personal, family, or household purposes, but
not to heat a swimming pool (if you have a
swimming pool, the load relating to the swimming
pool may be excluded for purposes of sizing the
System);
(x) not remove any markings or identification tags on
the System;
(xi) not do anything that would, or permit or allow to
exist any condition or circumstance that would,
cause the System not to operate as intended at
the Property; and
(xii) pay for any reasonable removal, storage and
reinstallation costs in the event the System needs
to be removed in order for you to repair or replace
the roof on your home; you agree to notify System
Provider of the same so that arrangements can
be made for such removal, storage and
reinstallation.
(b) Fees; Late Charges; Checks; Automatic
Payment. In addition to the other amounts you agree to
pay in this Agreement, you agree to pay the fees as set forth on Exhibit D. In addition, except to the extent
prohibited by applicable law, you will also be responsible for any third-party charges we incur in the course of
administering this Agreement. If you refinance your
mortgage, you will also be responsible for related
administrative charges incurred as a result of the
refinancing.
(c) Taxes. The payments specified in Exhibit B
and Exhibit D do not include taxes.
(i) If any taxes (including, but not limited to, sales
and transaction taxes and including any
associated interest and penalties) are assessed
on these payments, the sale of Energy, the
property, or the transaction itself, and are paid by
Provider rather than you, you agree to pay or
reimburse Provider for all such taxes, except to
the extent that you are prohibited from doing so
by applicable laws.
(ii) In addition, you agree to reimburse Provider for
any taxes, including any associated interests and
penalties, assessed on the System that Provider
may incur.
(iii) To the extent that Provider seeks reimbursement
from you, you agree that Provider may seek a full
reimbursement from you for the total amount
incurred by Provider, impose a surcharge on your
monthly invoice to recover the total amount
incurred by Provider over a period to be
determined by Provider, or, at its sole discretion,
set up a separate payment plan with you to
recover the total amount incurred by Provider.
(d) Filings. You agree that the System will be
Provider’s personal property under the Uniform
Commercial Code and at our reasonable request you will
notify any mortgagee or holder of a deed of trust on the Property of the installation and existence of the System and that the System constitutes personal property and not fixtures (or real property). You also agree that the System is not a real property fixture. However, you agree that Provider may file UCC-1 financing statements and/or real property fixture filings related to our ownership interest in the System, and any other notices permitted or required by law. Provider may assign such filings and any
assignee may also file UCC-1 financing statements
and/or real property fixture filings related to the System.

You also authorize Provider to make corrections to any
utility paperwork to conform to this Agreement or any
revisions or amendments to this Agreement that you and
we both agree upon.
(e) No Alterations. You agree that you will not
make any modifications, improvements, revisions or
additions to the System or take any other action that could void the manufacturer warranty on the System without
Provider’s prior written consent. If you make any
modifications, improvements, revisions or additions to the System after receiving such prior written consent, they will become part of the System and shall be Provider’s
property.
(f) Access to the System.
(i) Provider or its representatives shall give you
reasonable notice of our need to access the
Property whenever commercially reasonable.

You grant to Provider and our employees, agents,
representatives, designees and independent
contractors (and any inspectors under any state
incentive program) the right to reasonably access
all of the Property as necessary for the purposes
of (A) operating, owning, repairing, maintaining,
removing and replacing the System or making
any additions to the System or installing
complementary technologies on or about the
location of the System; (B) enforcing Provider’s
rights as to this Agreement and the System; or

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Contract ID # [___________]
8 (C) taking any other action reasonably necessary
in connection with the operation, maintenance,
removal or repair of the System. This access
right shall continue for up to ninety (90) days after
the expiration of this Agreement in order to
provide Provider with reasonable time to remove
the System after the end of this Agreement.
(ii) During the time that Provider has access rights,
you shall ensure that such access rights are
preserved and shall not interfere with or permit
any third party to interfere with Provider’s access
rights.
(g) Indemnity. To the fullest extent permitted by
law, you shall indemnify, defend, protect, save and hold harmless Provider, our employees, officers, directors,
agents, successors and assigns from any and all thirdparty claims, actions, costs, expenses (including reasonable attorneys’ fees and expenses), damages,
liabilities, penalties, losses, obligations, injuries, demands and liens of any kind or nature arising out of, connected with, relating to or resulting from damage to the System caused by you or your guests, contractors or agents;
provided that nothing herein shall require you to indemnify Provider for our own negligence or willful misconduct.

The provisions of this paragraph shall survive
termination or expiration of this Agreement.
(h) Monthly Payments. You agree that the
obligation to pay all Monthly Payments and all other
amounts due under this Agreement shall be absolute and
unconditional under all circumstances and shall not be
subject to any abatement, defense, counterclaim, setoff, recoupment or reduction for any reason whatsoever, it
being the express intent of the parties that all amounts payable by you hereunder shall be and continue to be
payable in all events, including by your heirs and estate, and, except as set forth below in Section 10 and in the accompanying Notice of Cancellation, you hereby waive
all rights you may have to reject or cancel this Agreement, to revoke acceptance of the System, or to grant a security interest in the System.
(i) Notices. You agree to:
(i) notify Provider immediately upon your discovery
of an emergency condition relating to the System,
damage to the System or theft of the System;
(ii) notify Provider of the sale of your home (see
Section 6 below); and
(iii) notify Provider before changing your electric
power supplier.

See Section 20 below for information about sending
notices to Provider.

6. Options When Selling Your Property.
(a) If you (or your estate or your heirs, as
applicable) sell your Property you must choose one of the following three (3) options:
(i) Transfer this Agreement and the Monthly
Payments. The buyer may sign a transfer
agreement assuming all of your rights and
obligations under this Agreement, including the
obligation to pay Monthly Payments. You will also
be responsible for any related administrative
charges we incur as a result of the transfer, such
as filing, amending or terminating any UCC or
fixture filings.
(ii) Purchase the System Outright. Pursuant to
Section 7 below.
(iii) Prepay the remaining Monthly Payments and
Transfer only the Use of the System. If you
prepay the remaining Monthly Payments, the
person(s) buying your Property will only need to
sign a transfer agreement to assume your rights
and obligations (other than the obligation to make
Monthly Payments through the Term) under this
Agreement. The System stays at your Property;
the buyer does not have to make any Monthly
Payments through the Term but otherwise will be
required to comply with the remainder of this
Agreement and Provider’s obligations under this
Agreement will continue through the remainder of
the Term and as described in Section 9.
(b) If you sell your Property, you must notify us, in
writing, at least thirty (30) days, but no more than ninety (90) days, prior to the scheduled closing date indicating which of the options in Section 6(a) you have chosen.
(c) If you (or your estate or your heirs, as
applicable) sell your Property and do not comply with one of the options in Section 6(a) above, you will be in default under this Agreement. (See Sections 16 and 17 below).

7. Option to Purchase the System.
(a) You have the option to purchase the System at
the following times during the Term:
(i) at any time after the sixth (6th) anniversary of the In-Service Date (see Section 1(b) above);
(ii) at the end of the Term of this Agreement (see
Section 1(c) above);
(iii) if you sell your Property during the Term (see
Section 6 above); or
(iv) with Provider’s written consent (which Provider
may withhold in Provider’s sole discretion) at
another time not described above.
(b) To purchase the System pursuant to
Section 7(a), you must notify us in writing at least thirty (30) days, but no more than ninety (90) days, prior to the desired purchase date and deliver payment to Provider
within thirty (30) days of receiving an invoice from
Provider for the purchase price.
(c) The purchase price you will pay for the System
(“Buyout Price”) shall be the greater of: (i) the System’s appraised fair market value (“Fair Market Value”) at such time; or (ii) the amount set forth in the “Purchase Option” column on Exhibit B that corresponds with the year in
which the purchase is to occur, plus all applicable taxes and fees relating to the purchase and sale of the System.

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Contract ID # [___________]
9 Provider will determine Fair Market Value by reference sources such as an industry guide listing retail prices of used photovoltaic systems installed in your local utility district that are the same as (or substantially similar to) the System, or if none, by use of an appraisal prepared by an independent appraiser at Provider’s expense. The
independent appraiser will, on a desktop basis, assume
the System will be exchanged between a willing and
informed buyer (taking into account an assumption by the buyer of the remaining obligations under this Agreement) and a willing and informed seller, taking into account
current and projected market conditions.
(d) If you exercise the option to purchase the
System, you will be purchasing the System “AS IS,
WHERE IS” and Provider will assign you any product
and/or workmanship warranties still in effect for the
System. However, Provider will not provide any
maintenance or repair services after you purchase the
System, unless you enter into a separate agreement with Provider, at your expense, for such services. If you
exercise the option to purchase the System, this
Agreement will terminate effective as of the date of such purchase.

8. Option to Prepay Agreement.
(a) At any time during the Term, you can prepay this
Agreement in full. Such prepayment will not terminate this Agreement, nor limit any of your rights or obligations
(other than your obligation to make Monthly Payments
during the Term).
(b) In order to prepay this Agreement, you must
notify us in writing at least thirty (30) days, but no more than ninety (90) days, prior to the desired prepayment
date. The amount you prepay (the “Prepayment Price”)
will be based on the following: (i) all accrued but unpaid Monthly Payments, taxes, late charges, penalties, interest and all or any other sums then accrued or due and owing, plus (ii) the amount set forth on Exhibit B in the column titled “Prepay Option” (which reflects an amount
discounted to present value at 5% per year), plus (iii) any applicable taxes.
(c) If you exercise the option to pay the Prepayment
Price, Provider’s obligations under this Agreement will continue through the remainder of the Term and as
described in Section 9.

9. Options at the End of the Term.
(a) Automatic Renewal. Provided that (i) you are
not in default under this Agreement (see Section 16
below) and (ii) you have not given us written notice of your intent to purchase the System at the end of the Term (as described in Section 7(a)), this Agreement shall
automatically renew at the end of the Term for one (1) or more additional one (1) year renewal term(s) (each an
“Automatic Renewal Term”) at a Monthly Payment equal
to the Monthly Payment for year 25 escalating annually at the applicable Annual Increase rate for a maximum of ten (10), one-year Automatic Renewal Terms, unless and
until we receive from you written notice at least thirty (30), but not more than ninety (90), calendar days before the scheduled commencement of an Automatic Renewal
Term that you do not wish to renew. Provider will send
you a notice at least sixty (60) days prior to the end of the Term to (i) remind you of your end of term options and
(ii) disclose to you the Monthly Payment for the first
Automatic Renewal Term and the rate at which the
Monthly Payment will automatically escalate for any future Automatic Renewal Terms.
(b) Purchase the System. You also have the right
to purchase the System at the end of the Term. See
Section 7 for a detailed explanation.
(c) If you choose not to renew this Agreement or
purchase the System, then the Provider will have the
option to remove the System from your Property at no
cost to you.
(d) If at the end or termination of this Agreement
you are in default (see Section 16), and Provider removes the System from your Property, then you agree to pay
Provider the reasonable expense of removing the System
from your Property.
(e) In the event that we remove the System from
your Property for any reason as permitted or
contemplated hereunder we will return the roof area within three inches of the mounting penetrations to a waterproof condition.

10. Termination Rights Prior to Installation of
the System.
(a) Termination of this Agreement Before
System Installation. Provider’s obligation to sell you the Energy the System generates is conditioned on the
following items having been completed to our reasonable satisfaction:
(i) completion of the engineering site audit (a
thorough physical inspection of the Property,
including if applicable geotechnical work), and
real estate due diligence to confirm the suitability
of the Property for the construction, installation
and operation of the System;
(ii) confirmation of availability of rebates, tax credits, renewable energy credits and other incentives in
the amount used to calculate the Monthly
Payment amounts set forth in this Agreement;
(iii) [Reserved];
(iv) confirmation that Provider will obtain all
applicable benefits referred to in Section 12;
(v) receipt of all necessary zoning, land use and
building permits; and
(vi) completion of any renovations, improvements or
changes reasonably required on the Property, at
your sole cost and expense (e.g., removal of a
tree or necessary roof repairs to enable us to
safely install the System).

Provider may terminate this Agreement without any
liability if, in our reasonable judgment, any of the above

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Contract ID # [___________]
10 listed conditions will not be satisfied for reasons beyond our reasonable control.
(b) Right to Terminate this Agreement for
Significant Delays.

If, in Provider’s reasonable judgment, the installation of the System is not likely to occur in a timely manner for any reason, Provider may terminate this Agreement by written notice to you, which notice will be effective upon your receipt of such notice.
(c) Consumer Agreement Revision for
Significant Changes.

If Provider recalculates the Guaranteed Output, Provider may provide you with an updated Part I of this Agreement (a “Consumer Agreement Revision”) that will reflect
changes to certain terms affected by the revised
estimated output and a summary of the terms changed by
such Consumer Agreement Revision. You will have the
right to either sign the Consumer Agreement Revision and agree to the revised terms, or terminate this Agreement.

11. Assignment.
(a) Assignment by Provider. Provider may
assign, sell or transfer the System and this Agreement, or any part of this Agreement, without your consent and
without notice. Assignment, sale or transfer generally
means that Provider would transfer certain of our rights and/or certain of our obligations under this Agreement to another party. Any assignment of Provider’s rights and/or obligations under this Agreement shall not result in any change to your rights and obligations under this
Agreement.
(b) Assignment by You. Except as set forth in this
Agreement, you will not assign, sell, pledge or in any other way transfer your interest in the Energy generated by the System, or in this Agreement, without our prior written consent, which shall not be unreasonably withheld.

12. OUR OWNERSHIP OF THE SYSTEM; TAX
CREDITS AND REBATES. YOU UNDERSTAND AND

AGREE THAT THIS IS NOT A CONTRACT TO SELL
OR LEASE THE SYSTEM TO YOU. PROVIDER WILL

OWN THE SYSTEM FOR ALL PURPOSES,

INCLUDING ANY DATA GENERATED FROM THE
SYSTEM. YOU SHALL AT ALL TIMES KEEP THE

SYSTEM FREE AND CLEAR OF ALL LIENS, CLAIMS,

CHARGES, LEVIES AND LEGAL PROCESSES NOT

CREATED BY PROVIDER, AND SHALL AT YOUR

EXPENSE PROTECT AND DEFEND PROVIDER
AGAINST THE SAME.

YOU UNDERSTAND AND AGREE THAT ANY AND ALL

FEDERAL, STATE AND LOCAL TAX CREDITS,

INCENTIVES, RENEWABLE ENERGY CREDITS,

GREEN TAGS, CARBON OFFSET CREDITS, UTILITY

REBATES OR ANY OTHER ATTRIBUTES OF THE

SYSTEM ARE THE PROPERTY OF AND FOR THE

BENEFIT OF PROVIDER, USABLE AT OUR SOLE
DISCRETION. PROVIDER SHALL HAVE THE

EXCLUSIVE RIGHT TO ENJOY, USE AND TRANSFER

ALL SUCH BENEFITS, WHETHER SUCH BENEFITS
EXIST NOW OR IN THE FUTURE. YOU AGREE NOT

TO CLAIM OR TAKE ANY ACTION OR FAIL TO TAKE
ANY ACTION THAT MAY JEOPARDIZE PROVIDER’S

ABILITY TO RECEIVE SUCH BENEFITS, INCLUDING,

WITHOUT LIMITATION, CLAIMING ANY TAX CREDITS

WITH RESPECT TO THE SYSTEM ON ANY TAX

RETURN AND/OR ENTERING INTO ANY AGREEMENT

WITH YOUR UTILITY THAT WOULD ENTITLE YOUR
UTILITY TO CLAIM ANY SUCH BENEFITS. YOU

AGREE TO REASONABLY COOPERATE WITH

PROVIDER SO THAT WE MAY CLAIM AND TRANSFER

ANY FEDERAL, STATE OR LOCAL TAX CREDITS,

RENEWABLE ENERGY CREDITS, REBATES,

CARBON OFFSET CREDITS OR ANY OTHER
BENEFITS FROM THE SYSTEM. THIS MAY INCLUDE

TO THE EXTENT ALLOWABLE BY LAW, ENTERING

INTO NET METERING AGREEMENTS,

INTERCONNECTION AGREEMENTS, AND FILING

RENEWABLE ENERGY/CARBON OFFSET CREDIT

REGISTRATIONS AND/OR APPLICATIONS FOR

REBATES FROM THE FEDERAL, STATE OR LOCAL

GOVERNMENT OR A LOCAL UTILITY AND GIVING OR

ASSIGNING THESE TAX CREDITS, RENEWABLE

ENERGY/CARBON CREDITS, REBATES OR OTHER

BENEFITS OR THEIR CASH EQUIVALENT TO
PROVIDER.

13. Loss or Damage; Insurance.
(a) Loss or Damage. Unless you or your guests,
contractors or agents cause or permit damages to the
System, or as otherwise provided in this Agreement,
Provider will bear all of the risk of loss, damage, theft, destruction or similar occurrence to any or all of the
System.
(b) Insurance. Provider will insure the System
against all damage or loss unless that damage or loss is caused or permitted by you or your guests, contractors or agents. You agree to carry homeowner’s insurance that
covers damage to your Property and provides general
liability coverage, but you do not need to add the System to your Property insurance policy.

14. Force Majeure; Casualty.
(a) Provider is not responsible for any delay or
failure in the performance under this Agreement if the
delay or failure is due to Force Majeure. “Force Majeure” includes acts of God such as storms, fires, floods,
lightning and earthquakes, sabotage or destruction by a third party of the System, war, riot, acts of a public enemy or other civil disturbance, or a strike, walkout, lockout or other significant labor dispute.
(b) If at any time during the Term all or substantially all of the Property and/or the System shall be damaged
and/or destroyed by fire or other casualty, Provider may terminate this Agreement by written notice to you, which termination shall be effective upon receipt of such notice.

15. Limitation of Liability.

EXCEPT AS EXPRESSLY PROVIDED IN THIS

AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO

THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE,

Page 181 of 202 ends

Contract ID # [___________]
11 EXEMPLARY, INDIRECT, OR CONSEQUENTIAL

DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT. EVEN IF A COURT OR

ARBITRATOR DECIDES THAT OUR BREACH OF THIS

AGREEMENT OR NEGLIGENCE, FAILURE OF THE

SYSTEM, OR A FAILURE OF THE INSTALLATION OR

ANY REPAIR PROVIDED BY US CAUSED OR

ALLOWED ANY DIRECT HARM OR DAMAGE
(WHETHER PROPERTY DAMAGE, PERSONAL

INJURY OR DEATH) TO YOU OR ANYONE IN OR ON

YOUR PROPERTY, YOU AGREE THAT OUR LIABILITY

SHALL BE LIMITED TO THE AMOUNT YOU HAVE PAID

US FOR THE ELECTRICITY GENERATED BY THE

SYSTEM AND YOU SPECIFICALLY WAIVE ANY
OTHER REMEDY AVAILABLE AT LAW OR IN EQUITY.

16. DEFAULT. YOU WILL BE IN DEFAULT

UNDER THIS AGREEMENT IF ANY ONE OF THE
FOLLOWING OCCURS:
(a) We have not received two or more consecutive
Monthly Payments in full by their payment due dates;
(b) You or any guarantor makes an assignment for
the benefit of creditors, admits in writing your (or any guarantor’s) insolvency, a bankruptcy petition is filed by or against you or any guarantor, or you or any guarantor is adjudicated bankrupt or insolvent or undertakes or
experiences any substantially similar activity;
(c) You have provided any false or misleading
financial or other information to obtain this Agreement; (d) You (or your estate or your heirs, as applicable)
assign, transfer, encumber, sublet or sell (or attempt to assign, transfer, encumber, sublet or sell) this Agreement or any part of the System without Provider’s prior written consent;
(e) You fail to perform any material obligation that
you have undertaken in this Agreement (which includes
doing something you have agreed not to do, including, but not limited to, making any alterations to the System) and such failure continues and is not corrected for a period of fifteen (15) days after written notice; or
(f) In the event of any foreclosure on your Property
not stayed at least thirty (30) days prior to any sale.

17. ADDITIONAL ACTION AFTER DEFAULT. IF

YOU ARE IN DEFAULT UNDER THIS AGREEMENT,

WE MAY TAKE ANY ONE OR MORE OF THE

FOLLOWING ACTIONS AT OUR OPTION AND IN OUR
DISCRETION. IF THE LAW REQUIRES US TO DO SO,

WE WILL GIVE YOU NOTICE AND WAIT THE

STIPULATED PERIOD OF TIME REQUIRED BEFORE
TAKING THESE ACTIONS. WE MAY:
(a) terminate this Agreement;
(b) take any reasonable action to correct or cover
your default and/or to prevent or reduce our loss
(including without limitation costs of repairing damage to the System for which you are responsible); any amount
we pay will be added to the amount you owe us and will
be immediately due;
(c) require you, at your expense, to return the
System or make it available to us in a reasonable manner; (d) proceed, by appropriate court or other action, to
enforce performance of this Agreement and/or to recover damages for your default (including without limitation our court costs, attorneys’ fees, and other expenses relating to your default, to the fullest extent allowed by law); (e) turn off or take back the System by legal process
or self-help, but we may not breach the peace or violate the law;
(f) recover from you a payment equal to the
greater of the Prepayment Price and Buyout Price,
plus all taxes, late charges, penalties, interest and all other sums then accrued or due and owing to Provider.

After we receive this amount from you, we will
automatically convey the System to you on an “AS IS,
WHERE IS” basis; and
(g) use any other remedy available to us in this
Agreement or by law or in equity.

By choosing any one or more of the remedies described
above, Provider does not give up our right to use another remedy. By deciding not to use any remedy when you are
in default, Provider does not give up our right to use that remedy (or any other remedy) in case of a subsequent
default.

18. Warranties.
(a) We provide the following warranties
(collectively, the “Warranty”):
(i) Workmanship Warranty. We warrant our work
and the System for a period of ten (10) years after
In-Service Date (the “Warranty Period”), except
as provided below with respect to our roof
penetration warranty. During the Warranty Period
we will, at our expense, repair or replace any
material or work covered under this Agreement.
(ii) Roof Penetration Warranty. We warrant that
roof penetrations made by the System and
impacting the Property’s roof will be weather-tight
for a period of ten (10) years after installation.
(iii) Damage Warranty. We will either repair or
reimburse you for damage we cause during
installation to the Property, your belongings or
your property, as limited by Section 18(b).
(b) Warranty Exceptions and Exclusions.
(i) The Warranty shall be void and voidable if work
is performed by you or your contractors.
(ii) The Warranty does not cover any (A) leaks that
occur in areas of the Property’s roof not impacted
by the System or the associated roof
penetrations, (B) pre-existing and/or underlying
failures of the Home’s roof or (C) foreign objects
acting on the Home’s roof (hail, golf balls, etc.).
(iii) The Warranty does not apply to the following: (A) work performed or materials used by anyone
other the Installer; (B) any materials that were

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Contract ID # [___________]
12 modified, repaired or attempted to be repaired by
anyone other than us, our agents, our
representatives, our designees or the Installer
without our prior written approval; (C) any
damage resulting from your breach of the
Agreement; (D) any damage not caused by us,
the Installer or a System defect; (E) any damage
resulting from ordinary wear and tear; (F) any
damage resulting from mold, fungus and other
organic pathogens; (G) shrinking/cracking of
grout and caulking; (H) fading of paints and
finishes exposed to sunlight; and (I) any damage
caused by ball strikes.

You acknowledge that installation of the System may void any roofing warranty of the roof manufacturer or roof
installer. We assume no responsibility if the installation voids your roofing warranty. Before installation, you
should check with the roofer or builder concerning any
impact the System will have on a roof warranty.

You must notify us promptly and in writing of any claim under the Installation Warranty as outlined in Section 20 below.

EXCEPT AS SPECIFICALLY DESCRIBED IN THIS

AGREEMENT, YOU UNDERSTAND THERE ARE NO

REPRESENTATIONS OR WARRANTIES, EXPRESS

OR IMPLIED, AS TO THE MERCHANTABILITY,

FITNESS FOR ANY PURPOSE, CONDITION, DESIGN,

CAPACITY, SUITABILITY OR PERFORMANCE OF THE
SYSTEM OR ITS INSTALLATION.

19. Applicable Law; Dispute Resolution;
Arbitration; Class Action Waiver.
(a) Applicable Law. The laws of the state where
your Property is located shall govern this Agreement
without giving effect to conflict of law or choice of law principles. However, the Federal Arbitration Act governs our agreement to arbitrate (see subsection (b)&(c) below). (b) Informal Dispute Resolution. The parties
agree to first try to resolve informally and in good faith any dispute. Accordingly, you agree to send a written notice of the dispute to the Provider at 700 Universe Boulevard, Juno Beach, FL 33408 or [email protected] or,
upon written notice to you, to any address that is later designated by us. We (including our agents,
representatives and designees) will send a written notice of dispute to your address listed on page 1 of the
Agreement. If the parties do not reach an informal
agreement to resolve the dispute within thirty (30) days after the notice of dispute is received, either party may commence a formal proceeding as detailed below. All
applicable statutes of limitation and defenses based upon the passage of time shall be tolled for the thirty (30) days during which the parties try to informally resolve any
dispute. If you claim deficiencies in the System’s
installation or performance, you must allow us to visually inspect the System and obtain or download pertinent
performance data from the System.
(c) Arbitration. If the parties cannot resolve any
such dispute informally and if either party requests, the other party agrees to arbitrate all related disputes, claims and counterclaims arising out of or relating to this
Agreement, the relationships described hereunder, the
System, or any alleged or claimed oral or other agreement related to the System. This agreement to arbitrate
extends to all claims of any nature, including, but not limited to, claims for breach of contract, tort claims, claims at law or in equity, or claims arising under statute. If a party seeks to have a dispute settled by arbitration, that party must first send to the other party, by certified or registered mail, return receipt requested and postage
prepaid, a written Notice of Intent to Arbitrate. If the parties do not reach an agreement to resolve the dispute within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding with the
American Arbitration Association (“AAA”). Provider will promptly reimburse you any arbitration filing fee and,
except as provided in the next sentence, Provider will pay all AAA administration and arbitrator fees. If the arbitrator finds that either the substance of the claim raised by you or the relief sought by you is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then Provider will pay these fees only if required by the AAA Rules. If the arbitrator grants relief to you that is equal to or greater than the value of what you requested in the arbitration, Provider will
reimburse you for your reasonable attorneys’ fees and
expenses incurred for the arbitration.

TO THE EXTENT PERMITTED BY LAW, YOU AGREE

THAT, BY ENTERING INTO THIS AGREEMENT, YOU

AND WE ARE AGREEING TO HAVE DISPUTES

DECIDED BY AN ARBITRATOR AND ARE WAIVING
THE RIGHT TO A TRIAL IN COURT OR BY JURY. IN

ADDITION, EACH PARTY MAY BRING CLAIMS

AGAINST THE OTHER PARTY ONLY IN ITS

INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR

CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING. Further, the parties
agree that the arbitrator may not consolidate proceedings for more than one person’s claims, and may not otherwise preside over any form of a representative or class
proceeding, and that if this specific provision is found unenforceable, then the entirety of this arbitration clause shall be null and void (except for the jury trial waiver provision in the first sentence of this paragraph, which shall continue in full force and effect).

Judgment on an arbitrator’s award may be entered in any court having jurisdiction. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between us. The arbitrator shall have the authority to
award any legal or equitable remedy or relief that a court could order or grant. The arbitrator, however, is not
authorized to change or alter the terms of this Agreement or to make any award that would extend to any
transaction other than your own. THE ARBITRATOR’S

DECISION WILL BE FINAL AND BINDING, EXCEPT TO

THE EXTENT IT IS SUBJECT TO REVIEW IN

ACCORDANCE WITH APPLICABLE LAW GOVERNING
ARBITRATION AWARDS. OTHER RIGHTS THAT YOU

Page 183 of 202 ends

Contract ID # [___________]
13 OR WE WOULD HAVE IN COURT MAY ALSO NOT BE
AVAILABLE IN ARBITRATION.

YOU UNDERSTAND THAT YOU ARE VOLUNTARILY

AGREEING TO ARBITRATE DISPUTES ARISING

UNDER THIS AGREEMENT AND AUTHORIZE THAT

YOU HAVE REVIEWED THIS SECTION AND AGREE
TO ITS PROVISIONS.

Agreed and accepted by: _____ (Initials)
(d) Class Action Waiver. ARBITRATION MUST
BE ON AN INDIVIDUAL BASIS. AS A RESULT,

NEITHER YOU NOR US MAY JOIN OR CONSOLIDATE

CLAIMS IN ARBITRATION BY OR AGAINST OTHER
”PROPERTY OWNERS”, OR LITIGATE IN COURT OR

ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR

MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY.

Agreed and accepted by: _____ (Initials)

20. Notices. All notices under this Agreement shall
be in writing and shall be by personal delivery, electronic mail, online customer portal, overnight courier, or
certified, or registered mail, return receipt requested, and deemed received upon personal delivery,
acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight
courier, or five (5) days after deposit in the mail. You agree that we may provide you with notices in electronic format. Each party agrees that a document sent via PDF
is deemed to be the same as an original document.

Notices from you must include your name, the Property
Address shown on page 2 of this Agreement, and the
Contract ID# printed at the top of each page of this
Agreement. You agree to send written notices to Provider at 700 Universe Boulevard, Juno Beach, FL 33408 or
[email protected] or, upon written notice to
you, to any address that is later designated by us. We will send notices to you using the email or Property Address shown on page 1 of this Agreement unless and until we
receive written notice from you of a change to your email or mailing address. You agree that our agents,
representatives and other designees may communicate
with you directly on our behalf for all purposes relating to the System or this Agreement, including any notices
regarding claims we may have.

You agree that Provider may call you and send live, prerecorded and text messages to you, including by use of an automated telephone dialing system, at the phone
number you provided regarding the installation,
maintenance and administration of your System or this
Agreement, even if your phone number is listed on any
national or state “Do Not Call” list. Message and data
rates may apply.

You agree that our agents, representatives and other
designees may communicate with you directly on our
behalf for all purposes relating to the System or this
Agreement, including any notices regarding claims we
may have.

21. Waiver. Any delay or failure of a party to
enforce any of the provisions of this Agreement, including but not limited to any remedies listed in this Agreement, or to require performance by the other party of any of the provisions of this Agreement, shall not be construed to (i) be a waiver of such provisions or a party’s right to enforce that provision; or (ii) affect the validity of this Agreement.

22. Accuracy of Information; Credit Monitoring;
Identification. No credit eligibility is required to enroll in this Agreement. You do authorize Provider and its
agent(s) and assignees to periodically check your
consumer credit via a “soft pull,” the results of which shall have no impact on this Agreement and are conducted
purely for evaluation of the financing portfolio of which this Agreement may be a part. Provider may, at its option,
request reasonable proof of identification, and evidence that your mortgage or rent, and utility bill is current.

By signing this Agreement, you represent to us that all of the information you have furnished to us (or have caused others to furnish to us) in connection with this Agreement (including any application for this Agreement) is, to the best of your knowledge, true, complete and accurate,
does not include any false or misleading information and does not omit any material, relevant information. You
agree that we may obtain employment and income
records, credit bureau reports on you, verify your credit references and we may check any of the information
provided to us from whatever source we choose to verify it. Additionally, upon request, you agree to promptly give us accurate updated financial information about yourself.

23. Personal Information and Privacy Policy.

Please see our Privacy Policy (available at [insert
website]) for more information about how we collect and use personal information. By signing this agreement, you acknowledge that you have read, understand and agree
with the terms of our Privacy Policy, and that our Privacy Policy may be changed from time to time.

24. Monitoring and Recording Telephone Call.

Provider and others acting on our behalf may (a) monitor and record telephone calls between you and us regarding this Agreement and (b) use automatic dialing equipment
to make calls to you. You agree that we may call you and send pre-recorded and text messages to you at the phone number you provided regarding this Agreement and the
installation, maintenance and administration of your
System, including by the use of an automated telephone
dialing system, even if your phone number is listed on any national or state “Do Not Call” list. Message and data
rates may apply.

25. Calling Agreement. You agree that by signing
below you consent that Provider, its affiliates, and those acting on its/their behalf (the ”Messaging Parties”), may call or text you, including by use of an automated
telephone dialing system and/or a prerecorded message.

The types of calls or texts you may receive include
advertisements or telemarketing messages concerning

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Contract ID # [___________]
14 our benefits and services. Calls can be made to any
number you provide in connection with your application, the Messaging Parties’ servicing and/or collection of
amounts owed under this Agreement or any other matter,
even if listed on a national or state Do Not Call registry.

You understand that anyone with access to your
telephone or email account may listen to or read the
messages the Messaging Parties leave or send, and you
agree that the Messaging Parties will have no liability for anyone accessing such messages. You understand that
consent is not a condition of the provision of services under this Agreement.

Agreed and accepted by: _____ (Initials)

26. Entire Agreement; Survival; Changes; Joint
and Several Liability. This Agreement contains the
parties’ entire agreement regarding the sale and purchase of Energy generated by the System. There are no other
agreements regarding this Agreement, either written or
oral. Any change to this Agreement must be in writing
and (except to the extent specifically provided to the
contrary in this Agreement) signed by both parties.

Captions and headings used in this Agreement are for
convenience and reference only, and shall not affect the interpretation of this Agreement. Unless the context
specifically requires otherwise, the use of the plural in this Agreement includes the singular, and vice versa. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement, any provisions herein or any amendments hereto.

If any portion of this Agreement is determined to be
unenforceable, the remaining provisions shall be
enforced in accordance with their terms or shall be
interpreted or re-written so as to make them enforceable.

In addition, in the event this Agreement becomes subject to utility-type or other regulation by any public utility commission or other regulatory agency, you agree to
reasonably cooperate with Provider in restructuring this agreement such that it would no longer be subject to such utility-type or other regulation by any public utility
commission or other regulatory agency or otherwise to
address such regulation.

After the termination or expiration of this Agreement, any provisions which by their nature are intended to survive such termination or expiration shall survive, including, without limitation, Sections 5, 12, 15, 17, 18 and 19.

You agree that if more than one person signs this
Agreement as a Property Owner or Co-Owner, each of
you is fully responsible, individually and together, for performing all of your obligations under this Agreement, and we may enforce this Agreement against any one (or
all) of you, at our option. Your obligations under this Agreement are binding on you, your legal representatives, and your estate, to the fullest extent allowed by law,
unless and until we either expressly release you from your obligations in writing, or we transfer ownership of the System to you.

Office Use Only
Approved by:
[____________]
Date:

Signature:

Print Name:

Title:

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Contract ID # [___________]
15 EXHIBIT A TO POWER PURCHASE AGREEMENT (COPY 1)
[FOR CALIFORNIA] NOTICE OF CANCELLATION
[INSERT DATE OF TRANSACTION]
(Date)
You may cancel this transaction, without any penalty or obligation, within five business days from the above date.

If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.

If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.

If you do make the goods available to the seller and the seller does not pick them up within 20days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.

To cancel this transaction, you must mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to [Insert Provider], [Insert Provider Address], not later than midnight of [INSERT DATE].
(Date)
I, hereby cancel this transaction. __________________________________ (Date)
_________________________________
(Buyer’s signature)

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Contract ID # [___________]
16 EXHIBIT A TO POWER PURCHASE AGREEMENT (COPY 2)
[FOR CALIFORNIA] NOTICE OF CANCELLATION
[INSERT DATE OF TRANSACTION]
(Date)
You may cancel this transaction, without any penalty or obligation, within five business days from the above date.

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Contract ID # [___________]
17 EXHIBIT B TO POWER PURCHASE AGREEMENT

SCHEDULE OF VALUES
Year Monthly Payment (including
the Annual Increase)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25

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Contract ID # [___________]
18 EXHIBIT B TO POWER PURCHASE AGREEMENT

SCHEDULE OF VALUES
Year Prepay Option1 Minimum Buyout Price2
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 1 Per Section 8(b), in addition to the values listed, the Prepayment Price also includes accrued but unpaid sums but does not include additional applicable taxes, which are the Buyer’s responsibility pursuant to Section 8(b). The values listed assume that prepayment occurs in month 12 of the applicable year. Actual prepayment amount will be calculated based on the number of payments made and the number of payments that remain.
2 Per Section 7(c), The purchase price you will pay for the System (“Buyout Price”) shall be the greater of: (i) the System’s appraised fair market value (“Fair Market Value”) at such time; or (ii) the amount set forth in the “Buyout Price” column that corresponds with the year in which the purchase is to occur, plus all applicable taxes and fees relating to the purchase and sale of the System.

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Contract ID # [___________]
19 EXHIBIT C TO POWER PURCHASE AGREEMENT
GUARANTEED OUTPUT 3
End of Year Credit per kWh if Guaranteed
Output is not met4
Guaranteed Output To Date (in
kWh)5
2 4
6 8
10 12
14 16
18 20
22 24

4 The actual credit rate will be the weighted average $/kWh for the applicable 24-month period. 5 “Guaranteed Output To Date” is based on the cumulative Actual Output. “Actual Output” shall mean the amount of Energy generated by the System to date plus any kWh for which you have previously received a credit.

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Contract ID # [___________]
20 EXHIBIT D TO POWER PURCHASE AGREEMENT
Payment Method Election Form

HOMEOWNER MUST SELECT ONE OPTION ONLY BY CHECKING THE APPROPRIATE BOX AND SIGNING BELOW Option 1: Automatic Electronic Recurring Payments
____ By checking this box, you acknowledge that:

1. We will provide you a monthly bill detailing the amount you owe for that billing period. Under federal law, you have the right to stop an automatic payment from your bank account, provided you give your financial institution at least three business days’ oral or written notice before the scheduled payment date.

2. The actual settlement date (the date the automatic electronic payment is deducted from your bank account) will be no earlier than your payment due date. We shall bear no liability or responsibility for any losses of any kind that you may incur due to any delay in the actual date on which your bank account is debited.

3. If the due date for payments under your agreement has passed, you give us authority to withdraw two payments from your account on your next due date so that your account will be current on an ongoing basis.

4. If the due date falls on a weekend or holiday in any month, your payment will be debited the following business day.

5. In order to process automatic payments, you must have sufficient available and collected funds in your bank account on the business day before the payment due date and on the payment due date in order to cover the amount of the monthly payment that is due.

6. You must notify us immediately if the automatic payment information you provide changes. If we incur bank fees as a result of inaccurate or out-of-date information provided by you, we have the right to bill you for those fees.

7. We reserve the right to change these conditions at any time. Notice may be given on or with your monthly bill or by other methods. Either party may terminate this payment arrangement at any time by giving the other party written notice at least 15 calendar days prior to the next scheduled payment date.

8. You agree to be bound by any rules your financial institution requires for automatic electronic payments. Below is my account information for the bank account at financial institution _____________________________________ to be used for the automatic electronic payments.

Account Number: _____________________
Routing Number: ______________________

9. You are responsible for any fees your financial institution may charge you for electronic payments.

10. By signing below, you (a) authorize us to automatically deduct your monthly payments from your bank account provided above, (b) agree to the terms and conditions herein, (c) represent to us that you have obtained any required consents from other persons with an ownership interest in the bank account, and (d) represent to us that you are individual authorized to sign this automatic electronic payment authorization as an owner of the bank account and are not required to obtain anyone else’s signature.

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Contract ID # [___________]
21 Option 2: Check by Mail
___ By checking this box, you acknowledge that:

1. Checks should be made payable to EverBright.

2. Checks should be sent to the address listed below for your Monthly Payment by the date the payment is due. This payment address is also listed on the bill you receive for your Monthly Payment.

Bank of America Lockbox Services
Lockbox 843033
1950 N. Stemmons Freeway, Suite 5010
Dallas, TX 75207
If you elect to pay by check, you will pay a fee of $7.50 for each Monthly Payment received. WE WILL WAIVE THIS

PAYMENT PROCESSING FEE IF YOU MAKE YOUR PAYMENTS VIA AUTOMATED CLEARING HOUSE BY AUTHORIZING US TO APPLY AUTOMATIC ELECTRONIC PAYMENTS FROM YOUR BANK ACCOUNT).

Fees:

1. Returned Check Fee: $15 (or such lower amount as required by law) for any check or electronic fund transfer or other payment that is returned or refused by your bank.

2. Late Payment Fee: If you fail to make any payment when due, we will impose a late fee equal to the lesser of (i) one and half percent (1.5%) per month on the portion of your balance that is more than thirty (30) days past due, and (ii) the maximum amount permitted under and subject to applicable law.

3. Check by Phone Fee: We will allow an option to pay your Monthly Payment by phone. The fee for such service is $9 (or such lower amount as required by law) for any check payment processed over the phone. _____________________________________ _____________________________________ First Authorized Account Holder Signature Second Authorized Account Holder Signature _____________________________________ _______________________________________ Printed Name Printed Name
_____________________________________ _______________________________________ Date Date

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Contract ID # [___________]
22 EXHIBIT E TO POWER PURCHASE AGREEMENT

DATA USAGE AND DISCLOSURE
This Exhibit E describes the circumstances in which, and purposes for which, we may use or disclose Data. a. Data Usage: We may use Data for the following purposes (in each case to the extent permitted by law):
(1) to operate, maintain, provide, and enhance the System; (2) for our internal purposes, including, without limitation, research and development, improvement of our product and service offerings, and creation of new product and service offerings; (3) to customize content and communications we may provide to you; and (4) for other purposes so long as the Data does not contain personally identifiable information (including where Data has been deidentified). b. Data Disclosure. We will not disclose any Data other than in the following circumstances: (1) where the Data does not contain personally identifiable information (including where Data has been deidentified); (2) in order to provide our products or services to you (including working with third-party service providers who may assist us in collecting, hosting, maintaining, analyzing or otherwise processing Data for us); (3) if required to do so by any law or regulation or in the good-faith belief that such action is necessary to comply with any law or regulation, in response to a court order, judicial or other government subpoena or warrant, or to otherwise cooperate with law enforcement or other governmental agencies; (4) if we believe, in good faith, disclosure is appropriate or necessary to (A) take precautions against liability, (B) protect us or others from fraudulent, abusive, or unlawful uses or activity, (C) investigate or defend against any third-party claims or allegations, (D) protect the security or integrity of our services and any facilities or equipment used to make our service available, or (E) protect our property or other legal rights (including, but not limited to, enforcement of our agreements), or the rights, property, or safety of others; (5) to our assignees, affiliates, actual or prospective lenders, financing parties, investors, insurers, and acquirers; (6) to contractors, service providers and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them; and (7) for any purpose for which you have provided your express consent.

Your initials indicate that you have read, understood and accepted the provisions set forth in this Exhibit E.

Agreed and accepted by: _____ (Initials)

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SUSTAINABLE COMMUNITY NETWORK PARTICIPATION AGREEMENT
This Town of Apple Valley Sustainable Community Network Programmatic Participation Agreement (“Agreement”) is entered into this ______day of _____________, 2023 (“Effective Date”) by and between the Town of Apple Valley , a municipal corporation organized under the Constitution and laws of the State of California (“Participant”), and Electriq Power Inc., a Delaware stock corporation with its principal place of business at 625 N. Flagler Drive West Palm Beach, FL 33401 (“EP”). Participant and EP are sometimes individually referred to as “Party” and collectively as “Parties.” RECITALS:

A. WHEREAS, EP’s Sustainable Community Network Program is a Public-Private partnership that works with various stakeholders, such as Participant, to provide a Power Purchase Agreement, financed through one or more System Owner(s) (each a “PPA”), behind-the-meter solarresidential microgrid (the “System”) to residential electricity consumers in, or identifying with, Participant’s jurisdiction, without typical credit checks or placement of liens on a property as a means to establish the eligibility of a residential consumer (the “Program”); and B. WHEREAS, Participant, through Apple Valley Choice Energy, has determined that the successful implementation of the Program could contribute to the advancement of Participant’s local sustainability, resiliency, and climate change goals; and C. WHEREAS, EP desires Participant’s participation in this Program through Participant’s provision of Program information and promotional materials to potential customers, and to compensate Participant, as provided herein; and
D. WHEREAS, the Parties understand their cooperative involvement, as described in the Agreement, is important for the Program’s success and it is the intent of the Parties to share PPA revenue, as described herein, to bring about the shared programmatic goals of local sustainability and energy resilience for the Town of Apple Valley and its residents.

NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Program Participation.
a. Program Administration. EP shall administer the Program in accordance with the standard form of PPA as set forth in Exhibit “1,” which is attached hereto and incorporated herein by this reference.

Participant has no responsibility for Program administration. The Parties acknowledge that the PPA is a separate agreement to which Participant is not a party and that Participant’s activities hereunder expressly exclude any representations and warranties by Participant regarding specific customer experience, workmanship, System performance, financing terms, economic benefit, or rights or remedies under the PPA.
b. Program Information and Promotion. So long as EP administers the Program as provided in paragraph a of this section, Participant agrees to provide Program information and promotional materials as follows:
i. Notice of Program availability on Participant’s Apple Valley Choice Energy website. The notice will advise potential Customers: (1) that the Program enables disadvantaged and

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otherwise underserved communities potential access to sustainable and resilient electricity for broader community participation in the clean energy transition; (2) that the Program does not require a minimum Customer credit score or risk potential property liens for participation in the Program; (3) that Systems, such as those provided by the Program, may provide back-up power to the homeowner during utility outages; (4) that the Program is financed through PPAs between EP’s financing partner and Customers; and (5) that the Program aligns with the Town’s sustainability and resiliency goals. The Parties agree that this notice shall be posted on the website in a location and manner at Participant’s sole and absolute discretion.
ii. Support the dissemination of information related to the Program. Participant shall support the dissemination of information related to the Program to potential Customers so as to enhance market awareness of the Program and educate them on the Program, through events and other promotional means, such as Participant’s existing community outreach and engagement channels (including websites, mailers, “town hall” and other community events, etc.). Support may include dissemination of Program information and marketing materials provided by EP as Participant determines appropriate; and iii. Use of Participant’s name on program materials. Participant shall Authorize EP to use Participant’s name and other identifying information on Program-related materials, subject to advance written approval by Participant, which shall not be unreasonably withheld. c. Sharing of Data. EP shall provide a quarterly report to Participant which includes the following information related to the Program: (i) total capacity of solar energy generation and battery energy storage installed; (ii) total kWh produced; (iii) total revenue collected; and (iv) any other items mutually agreed upon by the Parties.
d. Local vendor preference. EP agrees to utilize locally owned and licensed solar plus battery vendors whenever it is able to do so, and so as to not impede upon its ability to provide Town residents with the same services and at parity with the PPA identified in subsection 1.a. At no time, shall EP be required to contract with a locally owned and licensed vendor, if in EP’s reasonable discretion, doing so would create an undue burden or incur additional, unforeseen costs to the program, the PPA, or Apple Valley Choice Energy.

2. Revenue Earned by Participant, Terms of Distribution, Use of Revenue Share Prior to Distribution.
a. Revenue Earned by Participant. In exchange for its participation in the Program, Five Percent (5%) of the monthly revenue collected from the PPAs enrolled in the Program endorsed by Participant (the “Revenue Share”) shall be deposited into a bank account (the “Escrow”) established and managed by EP or the then current owner of the applicable Systems (the “System Owner” or “Seller”) for distribution to Participant, according to the terms and conditions detailed in Section

2.b of this Agreement. Participant shall execute and deliver all agreements, certificates, instruments, and documents, as EP or the System Owner may reasonably request, to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby, including but not limited to an Escrow agreement. b. Participant acknowledges and agrees that its Revenue Share deposited into Escrow shall provide a First Loss Reserve that will be used to ensure that EP or the System Owner does not experience a reduction in their anticipated revenues in the event of late payments or PPA defaults. During each Disbursement Period during the Term, the “First Loss Reserve” shall be calculated by EP or the System Owner as the total sum of all lost Expected Revenue due to late payments or PPA defaults during such Disbursement Period. For the purposes of this Agreement, (i) “Expected Revenue” means the PPA price (for each applicable PPA during the Disbursement Period) multiplied by the expected output (as defined in Exhibit 1 of each such applicable PPA during the Disbursement

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Period), and (ii) “Disbursement Period” means a calendar year during the Term. Participant acknowledges that Revenue Share earned under this Agreement is, along with other credit enhancement attributes associated with the Program, critical to the ability for the Program to offer its PPA without a credit check requirement as a means to establish the eligibility of a residential consumer or property liens.

Participant shall have reasonable and uninterrupted Escrow account activity access, including balances, deposits, and debits, during the Term of the Program. For purposes of this Agreement, the “Term” of the Program shall commence once the first System under a qualifying PPA achieves system activation and shall terminate upon the last qualifying PPA to terminate or expire. The Revenue Share for the applicable PPAs owed to the Participant shall be deposited into Escrow within fifteen (15) days of the end of the prior calendar month and such deposit shall continue for the remainder of the term of such applicable PPAs provided Participation is not interrupted or the applicable PPAs or this Agreement is not otherwise terminated. c. Terms of Distribution. Disbursement of Revenue Share to Participant from Escrow is contingent upon the following conditions being met and maintained:
i. A minimum balance $75,000 (the “Threshold Balance”) in the Escrow has been achieved and maintained for 1 year;
ii. A minimum of 5% of the average monthly PPA revenue from sites enrolled in the Program is held in Escrow;
iii. The default rate for any three consecutive months (the “Rolling Default Rate”) of the sites enrolled in the Program is less than the Revenue Share for three consecutive months; iv. In the event the Escrow has been exhausted, all amounts owed to the System Owner are paid in full prior to resumption of Revenue Share deposits; and v. The Participant has, in the reasonable judgment of EP and the System Owner, met its responsibilities and obligations as described in Exhibit 2.

When the above conditions are satisfied, EP or the System Owner shall, within ninety (90) days of the closing of the Disbursement Period in which the above conditions were satisfied, disburse the funds in Escrow to the Participant for unconditional use; provided such disbursement shall not be made more than once per calendar year.
d. Use of Escrow funds to Distribution. Prior to distribution of Revenue Share from Escrow to the Participant, EP or the System Owner may use the funds in Escrow, upon advanced written notice to Participant, to make up for any late or defaulted payment that would otherwise and ordinarily be made to EP or the System Owner. For the avoidance of doubt, the funds in the Escrow may be used by EP or the System Owner, provided, however, such use is to cover late or defaulted PPA payment owed to EP or the System Owner as if all PPA payments were made per the terms of the PPA.

Escrow funds are intended to be used to make up for late or defaulted PPA payments and if such use causes the Escrow fund to drop below the Terms of Distribution in Section 2(b) above then no distribution shall be made prior to Escrow returning to compliance. Further, if Escrow funds are expended but late payments or defaults continue that would otherwise have been covered by the Escrow, EP or the System Owner shall recover these amounts before the Revenue Share distributions resume. If a PPA payment arrives after the withdrawal of funds have been made from the Escrow to complete normal payments to EP or the System Owner the PPA payment shall be paid directly, in full, into Escrow so as to avoid double payments to EP or the System Owner.

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3. Assignment. This Agreement may be assigned in whole or in part (including collateral assignment of this Agreement to financing parties) by EP or future System Owners, upon the prior written notice of Participant, provided such assignment preserves the terms of the Agreement. In the event of any such assignment the Assignor shall be released from all its liabilities and other obligations under this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees.

4. Term; Time for Performance; Termination.
a. Term. The term of the Agreement shall be five years from the Effective Date (the “Term”), unless extended at Participant’s option. Participant’s right to Revenue Share accrued prior to the date of expiration of the Term shall survive such expiration. After the second anniversary of the execution of this Agreement, Participant may terminate this Agreement, with or without cause, upon thirty (30) days’ advanced written notice to EP, stating the extent and effective date of termination.

5. No Legal Advice or Professional Services. Neither the Participant nor EP is providing legal or professional advice about the Program.

6. Indemnification. Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective affiliates of each thereof (collectively, the “Indemnified Parties”), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (collectively, “Liabilities”) resulting from any third party actions relating to the breach of any representation, warranty, or covenant set forth in this Agreement, and from injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection with this Agreement; provided, however, that nothing herein shall require the Indemnifying Party to indemnify the Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnified Party. Participant is specifically indemnified for any damages or liabilities alleged or found in judgment by residents whose participation in the Program was induced by Participant’s involvement in the Program and the Parties agree Participant shall not be liable for any activity or participation associated with the Program unless such liability is directly linked to willful misconduct or grossly negligent activity by Participant. Participant waives, to the fullest extent permitted by applicable law, any claim for sovereign immunity associated with liability under this Agreement.

7. Choice of Law. The laws of the State of California shall govern this Agreement, with venue located in San Bernardino County, without giving effect to conflict of laws principles.

8. Disputes, Arbitration and Attorneys’ Fees. Any dispute arising from or relating to this Agreement shall be settled first by good-faith negotiations between the parties around the principles described in the recitals of the Agreement. Good faith negotiations shall begin and be pursued using commercially reasonable and time is of the essence standards commencing within 15 days of a Party delivering written notice to the other Party of the dispute. If no resolution is agreed to within 90 days following notice of dispute the issue may be settled by non-binding arbitration; venue to be in the County jurisdiction where the Participant is located and administered according to the American Arbitration Association (“AAA”), pursuant to its then current Commercial Arbitration Rules with a sole neutral arbitrator selected in accordance with the AAA Commercial Arbitration Rules. Judgment on the dispute, and on any award that may be determined by the Arbiter, may be entered in any court of competent jurisdiction.

If the Parties agree, any dispute may be mediated prior to arbitration subject to any party’s right to initiate arbitration of the dispute. The prevailing party, as determined by the arbitrator, in any dispute

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arising out of this Agreement shall be entitled to reasonable attorneys’ fees, costs, AAA administrative fees, and arbitrator’s fees and expenses.

9. Notices. All notices under this Agreement shall be in writing and shall be by personal delivery, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail.

Notices shall be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either Party may specify in writing. Each Party shall deem a document emailed or electronically sent in PDF form to it as an original document. All shall be addressed to the respective Party as follows:

To EP: Electriq Power, Inc.
625 N. Flagler Drive
West Palm Beach, FL 33401
Attention: Frank Evans, Chief Services Officer
[email protected]
To Participant: Town of Apple Valley
14955 Dale Evans Parkway
Apple Valley, CA 92307
Attention: Guy Eisenbrey, Director of Municipal Services [email protected]

10. Survival. Provisions of this Agreement that should reasonably be considered to survive termination of this Agreement shall survive.

11. Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.

12. Right of Waiver. Each Party, in its sole discretion, shall have the right to waive, defer or reduce any of the requirements to which the other Parties is subject under this Agreement at any time (other than with respect to and/or relating to the obligation to make any payment due under this Agreement); provided, however that a Party shall not be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by the waiving Party.

13. Liability Limitation. Except as it relates to a Party’s indemnity obligations under this Agreement, in no event shall any Party be liable to the other Parties, whether in contract, tort or otherwise, for payment of any special, indirect, incidental, consequential, exemplary, punitive or similar damages.

14. No Partnership. No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties.

15. Full Agreement, Modification, Invalidity, Counterparts, Captions. This Agreement, together with any Exhibits, completely and exclusively states the agreement of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written, regarding its subject matter. This Agreement may be modified only by a writing signed by the Parties and approved in advance, in writing, by the System Owner(s). If any provision of this Agreement is found unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement

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unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement may be executed in any number of separate counterparts and each counterpart shall be considered an original and together shall comprise the same Agreement. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.

Participant(s): Town of Apple Valley, Apple Valley
Choice Energy
Signature:

Printed Name: Douglas B. Robertson
Title: AVCE Executive Director
Date: _________________________
Electriq Power Inc.

Signature:

Printed Name: Frank Magnotti
Title: Chief Executive Officer
Date: ______________________

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Exhibit 1
Reviewed Power Purchase Agreement

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Exhibit 2
“Programmatic Participation”
The following is expected to be included in the Participant’s Programmatic Participation, for which they earn the Revenue Share from the PPA.
● Use of Logo; Town of Apple Valley and AVCE in program associated literature and on the program’s website, with prior approval from Town staff. ● Marketing Efforts such as the following:
○ “Statement stuffers” utilizing Participant’s Municipal billing mailers to insert information about the Program at least once annually and ○ Providing programmatic material at community events at the Participant's sole discretion and as staffing levels permit.
● Town to provide links to program’s website on their AVCE webpage and AVCE’s official website.
● Review of Transaction Documents (PPA).
● Provide updated lists of locally owned and licensed solar plus battery vendors and installers.

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Town Council Agenda Report
Date: November 14, 2023
To: Honorable Mayor and Town Council
Subject: VACANCY ON THE HISTORICAL ADVISORY COMMITTEE

From: Douglas Robertson, Town Manager
Submitted by: La Vonda M-Pearson, Director of Government Services/Town Clerk Town Clerk
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Council Member Bishop to nominate and Town Council to appoint: ____________ to the Town of Apple Valley Historical Advisory Committee.

SUMMARY:

A vacancy currently exists on the Town of Apple Valley Historical Advisory Committee.

It is appropriate at this time for Council Member Bishop, the appointing member, to nominate one (1) person to the Apple Valley Historical Advisory Committee. Following the nomination, the Town Council shall consider and act on the appointment.

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Apple Valley City CouncilNovember 14, 2023

Apple Valley City Council
November 14, 2023