Agenda packet — Apple Valley City Council, December 12, 2023 (part 2 of 2)

8 III. Schedule 3 – Early Termination Fee
The Early Termination Fee with respect to the System under this Agreement shall be calculated in accordance with the following:

Early
Termination
Occurs in Year:

Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial Operation
Date)
Column 2
Early Termination Fee
where Purchaser takes
Title to the System
($/Wdc, does not include
costs of removal)
1* $4.95 --
2 $4.58 --
3 $4.33 --
4 $4.16 --
5 $4.01 --
6 $3.87 5
th Anniversary $3.37
7 $3.82 6
th Anniversary $3.32
8 $3.76 7
th Anniversary $3.26
9 $3.71 8
th Anniversary $3.21
10 $3.65 9
th Anniversary $3.15
11 $3.59 10th Anniversary $3.09
12 $3.53 11th Anniversary $3.03
13 $3.47 12th Anniversary $2.97
14 $3.41 13th Anniversary $2.91
15 $3.34 14th Anniversary $2.84
16 $3.28 15th Anniversary $2.78
17 $3.21 16th Anniversary $2.71
18 $3.14 17th Anniversary $2.64
19 $3.06 18th Anniversary $2.56
20 $2.98 19th Anniversary $2.48
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date.

Upon the payment of the Early Termination Fee in Column 2, Provider will transfer title to the System to Purchaser, free and clear of any encumbrances.

IV. Schedule 4 – Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System under this Agreement shall be as follows:

Term
Year
Estimated
Production
(kWh)
Term
Year
Estimated
Production
(kWh)
1 293,693 11 279,335
2 292,225 12 277,938
3 290,764 13 276,548
4 289,310 14 275,166

Page 124 of 259 ends

9 5 287,863 15 273,790
6 286,424 16 272,421
7 284,992 17 271,059
8 283,567 18 269,703
9 282,149 19 268,355
10 280,738 20 267,013
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and based on initial System designs. Provider may deliver to Purchaser an updated table on or about the Commercial Operation Date based on the actual System size and design.

V. Schedule 5 – Notice Information
Purchaser:

Town of Apple Valley
c/o Director of Municipal Services
14955 Dale Evans Pkwy
Apple Valley, CA 92307
Provider:

FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Director, Energy Services
100 Montgomery St., Suite 725
San Francisco, CA 94104
With a copy to
FFP BTM Solar, LLC
c/o Forefront Power, LLC
Attn: Legal Department
100 Montgomery St., Suite 725
San Francisco, CA 94104
Email: [email protected]
Financing Party:
[To be provided by Provider when known]
VI. Schedule 6 – Reserved
VII. Schedule 7 –Specific Items for Scope of Work

1.1. All System structures shall be permitted through the Town of Apple Valley Department of Building and Safety as carports or shade structures, as applicable. Provider shall complete all work necessary for permits to be issued on behalf of the project(s).

1.2. Provider and Purchaser are operating under the assumption that the premises will be eligible for a CEQA Notice of Exemption (NOE), and that a special use, conditional use, or zoning permit will not be required. Provider assumes that Purchaser, as lead agency, will issue a Notice of Exemption for CEQA. Upon request, Provider shall provide such limited support as necessary to Purchaser to obtain the NOE, including, if necessary, biological study and associated consultant statement and summary citing exemptions applicable. Provider shall not be responsible for costs or delays associated with any unforeseen required CEQA studies, special use, conditional use, or zoning permits, or mitigations that may result from a CEQA submittal and public comment.

Page 125 of 259 ends

10 1.3. Purchaser shall, in the event that any pre-existing permits relating to other construction at the Premises need to be closed out in order to proceed and/or complete the installation of the Systems, be responsible for engaging the relevant resources at its sole expense to close out any open permit(s).

1.4. Purchaser will provide comprehensive review by all necessary stakeholders of all designs and submittals as requested by Provider in no more than 10 business days. Purchaser shall be responsible for cost and timeline impacts for any comments submitted after 10 business days.

If Purchaser does not deliver any comments within 10 days, Provider shall construe this as acceptance and approval.

1.5. Purchaser shall deliver to Provider all as-built drawings of the facility and underground utilities as required to fully develop the solar plan sets and designs. Provider shall not be responsible for unforeseen conditions that are not evident from surveys or as-built drawings.

1.6. Provider assumes no title and/or real estate risks, encumbrances or other limitations exist that would otherwise limit Provider’s ability to access the site, install, own and operate the system.

Provider assumes that all parcels encompassed by the site area recommended by Purchaser will be owned by Purchaser at time of development.

1.7. Solar canopy arrays will have a minimum overhead clearance height of 10'-0” and a painted or Hot-Dip Galvanized finish at discretion of Provider.

1.8. Provider shall be responsible for all tree trimming and tree removal in order to facilitate the installation of the Systems. Provider will remove tree such that area is flush with grade.

Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to install the system and such approval shall not be unreasonably withheld. Where tree removal will occur, Provider shall grind tree stumps to a maximum of 4 inches below grade. Provider has not included budget for tree studies, arborist surveys, tree removal permits, or replanting or reforestation for any trees removed. Purchaser shall be responsible for the costs associated with that additional scope if needed. Purchaser can elect to address that additional scope itself or require that Provider address it through the change order process described in Schedule 2.

1.9. Provider intends to interconnect the System to Purchaser-owned 208V service conductors or service equipment at a mutually agreeable location. Provider assumes that the existing conductors and service equipment are sufficiently capable of accepting the additional electrical load of the System and that any existing relay schema or protection settings are configurable to allow backfeed from generation sources. Provider shall not bear responsibility for any required upgrades to the pre-existing electrical system. Purchaser shall provide sufficient space for an interconnection transformer in a mutually-acceptable location.

1.10. Provider excludes generator backup of Purchaser’s electrical service during temporary service outage during interconnection of the System (up to 8 hours of shutdown, which can be planned to take place during off-hours).

1.11. Provider shall be responsible for all fees associated with the interconnection application, except that Provider shall not be responsible for transmission, distribution, network, or telecommunications upgrades determined necessary by the Local Electric Utility.

Page 126 of 259 ends

11 striping and signage outside of the solar canopy footprint and connecting to the existing ADAcompliant path of travel. Should any excluded items for ADA-compliance be required, Provider will work with Purchaser in good faith to determine a mutually-acceptable solution for Purchaser to pay the costs associated with such upgrades, including potentially an increase in the kWh rate in Schedule 2.

1.13. Provider assumes a balanced site. Any spoils that result from the installation of the System are assumed to be spread on site. Provider shall not be responsible for exporting soils. Provider shall work with Purchaser in good faith to determine a mutually-acceptable solution for Purchaser to pay any such additional costs including potentially an increase in the kWh rate by exercising the Scope Changes (Non-ITC Eligible) rates in Schedule 2.

1.14. Provider assumes that soil conditions are not such soils that are rocky, sandy, contaminated, ground water, caving, or otherwise have problematic construction limitations. Specifically, Provider assumes no required shoring or de-watering for piers or trenches, and a maximum required pier depth of 10’ and diameter of 30”. If soil conditions prove to be more adverse than these assumptions, Provider shall not be responsible for such additional expenses. Provider shall work with Purchaser in good faith to determine a mutually acceptable solution for Purchaser to pay such additional costs, including potentially an increase in the kWh rate in Schedule 2.

1.15. Purchaser is responsible for unforeseen underground conditions including utilities not discoverable by industry standard methodologies.

1.16. Provider assumes that existing grade is level and that no grading is required in support of System installation.

1.17. Provider assumes that there is a water source on site, and available for Provider’s use.

1.18. Provider assumes Risk Level I Best Management Practices as it relates to relevant Stormwater Protection Plan assumptions for the installation of the System.

1.19. Purchaser shall be responsible for any irrigation re-routing or repair.

1.20. Purchaser acknowledges that the System has not yet been assessed by the FAA. Should mitigations arise as a result of excessive glare, the Parties will work together to find a mutually acceptable solution.

1.21. Provider agrees to construct the System in no more than 1 construction phase, and that Provider will be allowed ample space, to the extent that it is available, to store material on site. Provider assumes free access to the entire mobilized portion of the parking lot area for the full scope of work.

1.22. Provider shall be responsible for all inspection and inspector costs associated with the installation of the system.

Page 127 of 259 ends

12 VIII. Schedule 8 –Acknowledgment of Upgrades, Schedule or Scope Change Upgrades, Scope and/or Schedule Change Acknowledgment
This Acknowledgment is made in accordance with Section 10 of the Special Conditions, as defined in that Energy Service Agreement – [Solar], between [PURCHASER] (“Purchaser”) and FFP BTM Solar, LLC (“Provider”), dated [_________, 20___] (the “Agreement”). Upon execution by both Purchaser and Provider, this Acknowledgment shall be effective as of [INSERT DATE] (the “Acknowledgment Effective Date”).

1. Type of Change:

Distribution Upgrades
Scope Changes (ITC Eligible)
Scope Changes (Non-ITC Eligible)
Day for Day Extension
Extension for Good Cause

2. Description of Change
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE,

PROVIDER TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON AGREED UPON SCHEDULE]

3. kWh Rate and Early Termination Fee [IF NO IMPACT TO RATE OR ETF THEN DELETE] [INSERT UPDATED KWH RATE AND EARLY TERMINATION FEE TABLE]

4. Estimated Annual Production [IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE] [INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]

5. Updated Guaranteed Construction Start Date and Guaranteed Commercial Operation Date [IF NO IMPACT TO CLIFF DATES THEN DELETE]
The Parties hereby agree that the Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date as defined in the Agreement are updated as follows:

Guaranteed Construction Start Date: [__________]
Guaranteed Commercial Operation Date: [__________]
The Parties hereby acknowledge and confirm the terms set forth herein as of the Acknowledgment Effective Date. [PURCHASER] FFP BTM Solar, LLC
By: By:

Name: Name:

Title: Title:

Page 128 of 259 ends

13 IX. Schedule 9 – Site Diagram

Page 129 of 259 ends

ENERGY SERVICES AGREEMENT – SOLAR
Apple Valley Police Department
This Energy Services Agreement (“Agreement”) is made and entered into as of this ____ day of ___________, 2023 (or, if later, the latest date of a Party’s execution and delivery to the other Party of this Agreement, the “Effective Date”), between FFP BTM SOLAR, LLC, a Delaware limited liability company (“Provider”), and The City of Palm Desert, a California charter city (“Purchaser”; and, together with Provider, each, a “Party” and together, the “Parties”).

RECITALS
A. Purchaser desires that Provider install and operate a solar photovoltaic system at the Premises (as hereafter defined) for the purpose of providing Energy Services (as hereafter defined), and Provider is willing to have the Installation Work performed by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will be installed; B. Provider is in the business of designing, constructing, owning, financing, and operating solar photovoltaic systems for the purpose of selling power generated by the systems to its purchasers; C. California Government Code sections 4217.10 et seq. authorizes a public entity to enter into energy service contracts, facility financing contracts, and related agreements to implement the State’s conservation and alternative energy supply source policy;
D. Purchaser’s governing body has made those findings required by Government Code section 4217.12 that the anticipated cost to the Purchaser for Energy Services provided by the System under this Agreement is expected to be less than the anticipated marginal cost to the Purchaser of electrical energy that would have been consumed by Purchaser in the absence of its purchase of the Energy Services; E. Provider and Purchaser acknowledged those certain General Terms and Conditions of Energy Services Agreement between FFP BTM Solar, LLC and Purchaser of even date herewith (“General Terms and Conditions”), which are incorporated by reference as set forth herein; and F. The terms and conditions of this Energy Services Agreement, excluding the General Terms and Conditions incorporated herein, constitute the “Special Conditions” referred to in the General Terms and Conditions.

In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Incorporation of General Terms and Conditions. The General Terms and Conditions are incorporated herein as if set forth in their entirety.

2. Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for Twenty (20) years from the Commercial Operation Date (as defined in the General Terms and Conditions), unless and until extended or terminated earlier pursuant to the provisions of this Agreement (the “Initial Term”). After the Initial Term, this Agreement may be renewed for an additional five (5) year term (a “Renewal Term”). At least one hundred and eighty (180) days, but no more than three hundred and sixtyfive (365) days, prior to the expiration of the Initial Term, Provider shall give written notice to Purchaser of the availability of the Renewal Term. Purchaser shall have sixty (60) days to agree to continuation of this Agreement for the Renewal Term. Absent agreement to the Renewal Term this Agreement shall expire on the Expiration Date. The Initial Term and the subsequent Renewal Term, if any, are referred to collectively as the “Term”.

3. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:

Page 130 of 259 ends

2 Schedule 1 Description of the Premises, System and Subsidy Schedule 2 Energy Services Payment
Schedule 3 Early Termination Fee
Schedule 4 Estimated Annual Production
Schedule 5 Notice Information
Schedule 6 Reserved
Schedule 7 Specific Items for Scope of Work
Schedule 8 Acknowledgment of Upgrades, Schedule or Scope Change Schedule 9 Site Diagram

4. Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser’s electricity usage and the System performance and that such information may be used by Provider: (i) as necessary to carry out its obligations under this Agreement; and (ii) may be used and shared with third parties in connection with Provider’s other business activities, provided, however, that such information shall be anonymized so as to delete all information which would identify such information to Purchaser. All such information that is identifiable to Purchaser will be stored and processed in the United States.

5. Milestone Dates.

5.1 The Guaranteed Construction Start Date is 730 days from Effective Date provided that the Local Electric Utility is prepared to begin its construction on any required utility, (distribution or transmission), upgrades, if any, and the City has completed construction on all improvement work, if any, within the area of solar development (as indicted in Schedule 9). In the event that the Local Electric Utility is not prepared to commence construction on required upgrades, if any are required, or the City has not completed construction within the area of solar development, Provider will be allowed a day for day extension to the Guaranteed Construction Start Date, as defined in the Definitions section of the General Terms and Conditions Agreement between the Parties.

5.2 The Guaranteed Commercial Operation Date is April 14, 2026, subject to delay if the Local Electric Utility does not complete any required upgrades or inspections in accordance with the project schedule and such delay is not the result of Provider delay in making any applications or completing any required work.

6. Purchase Requirement; Energy Services Payment. “Energy Services” means the supply of electrical energy output from the System. Purchaser agrees to purchase one hundred percent (100%) of the Energy Services generated by the System and made available by Provider to Purchaser during each relevant month of the Term, up to a maximum of one hundred and ten percent (110%) of Estimated Annual Production, as defined in Schedule 4. While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these Special Conditions, they represent a package of services and benefits.

7. Net Energy Metering.

7.1 The Parties acknowledge that the pricing assumes Net Energy Metering (NEM) 2.0 for the Initial Term. Provider filed an interconnection application on behalf of Purchaser prior to April 14, 2023 and received confirmation that the application was grandfathered for NEM 2.0. If, prior to the Commercial Operation Date, (A) Provider fails to keep such interconnection applications in good standing such that the System would not be eligible for NEM 2.0, or (B) the CPUC issues a decision such that the System would not be eligible for NEM 2.0 grandfathering for at least twenty (20) years, Purchaser may terminate this Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee. The foregoing shall not apply to the extent Provider’s failure is caused by an act or omission by Purchaser in connection with Provider’s submittal of interconnection applications.

Provided, however, that in the event of a change in Applicable Law that occurs after the Commercial

Page 131 of 259 ends

3 Operation Date and results in a loss of NEM 2.0 grandfathering, Purchaser shall have no such termination right. Provided further that Purchaser shall ensure any correspondence with the Local Electric Utility regarding the tariff and changes to the interconnection agreement are promptly shared with Provider.

8. Estimated Annual Production. The annual estimate of electricity generated by the system for each year of the initial term is set as forth in Schedule 4 of the Special Conditions (“Estimated Annual Production”).

Within sixty (60) days of each annual anniversary of the Commercial Operation Date, Provider will provide a statement to Purchaser that shows the actual annual kWh production from the System for the Term Year, the Estimated Annual Production, and the Minimum Guaranteed Output (defined below).

9. Minimum Guaranteed Output. If the System fails to generate at least ninety-five percent (95%) of the Estimated Annual Production for a full Term Year (such amount, the “Minimum Guaranteed Output”), other than as a result of the acts or omissions of Purchaser or the Local Electric Utility (including a Disruption Period), or an Event of Force Majeure, Provider shall credit Purchaser an amount equal to Purchaser’s Lost Savings on the next invoice or invoices during the following Term Year. If the credit is due in the Term Year of the Term, then Provider shall pay the face value of the credit to Purchaser. The formula for calculating Lost Savings for the applicable Term Year is as follows:

Lost Savings = (MGO*WPR - AE) x RV
MGO = Minimum Guaranteed Output, as measured in total kWh, for the System for the applicable Term Year.

WPR = Weather Performance Ratio, measured as the ratio of the actual insolation over typical (proforma) insolation. Such Weather Performance Ratio shall only apply if the ratio is less than 1.00.

AE = Actual Electricity, as measured in total kWh, delivered by the System for the Term Year plus the estimated lost energy production during a Disruption Period.

RV = (ATP - kWh Rate)
ATP = Average tariff price, measured in $/kWh, for the Term Year paid by Purchaser with respect to the Premises. This price is determined by dividing the total cost for delivered electricity, including all charges associated with such electricity howsoever named, including, without limitation, charges for distribution, transmission, demand, and systems benefits, paid to the Local Electric Utility during the applicable Term Year by the total amount of delivered electricity by the electric utility during such Term Year.
kWh Rate = the kWh Rate in effect for the applicable Term Year(s), measured in $/kWh.

If the RV is zero or less, then no Lost Savings payment is due to Purchaser. Any Lost Savings payment shall occur no later than sixty (60) days after the end of the Term Year during which such Lost Savings occurred.

10. Allowed Disruption Time. Notwithstanding the provisions in Section 4.3 of the General Terms and Conditions to the contrary, during years 4 through 20 (but not years 1 through 3) of the Term, Purchaser shall be afforded a one-time allocation of fifteen (15) days which may be used consecutively or in separate periods of at least twenty-four (24) hours each (“Allowed Disruption Time”) during which the System shall be rendered non-operational. Purchaser shall not be obligated to make payments to Provider for electricity not received during the Allowed Disruption Time, nor shall Purchaser be required to reimburse Provider for any other lost revenue during the Allowed Disruption Time, including any lost revenue associated with any reduced sales of Environmental Attributes, and Provider shall be credited for the estimated lost production the System would have produced during such Allowed Disruption Time toward satisfaction of its Minimum Guaranteed Output, as set forth in Section 8 of the Special Conditions, such estimated lost production to be calculated in the same manner as set forth in Section 4.3 of the General Conditions.

Page 132 of 259 ends

4 11. Distribution Upgrades, Scope and Schedule Changes. a. For any distribution upgrades required or changes to the scope of Installation Work made pursuant to Schedule 2 of the Special Conditions, the Parties may execute an acknowledgment in the form attached hereto as Schedule 8 detailing (i) the description of the distribution upgrades or change in scope of the Installation Work (ii) the amount of the adjustment in the kWh Rate and Early Termination Fee that corresponds to such costs, if any (iii) changes to the Estimated Annual Production in Schedule IV, if any, and (iv) any change to the Guaranteed Construction Start Date and Guaranteed Commercial Operation Date resulting from such upgrades or scope changes; b. For any day for day extensions made pursuant to Section 2.2(b) of the General Conditions, the Parties may execute an acknowledgment in the form attached hereto as Schedule 8 detailing (i) the circumstances that warrant such day for day extension and (ii) the updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date; c. For any extensions that are not made pursuant to Section 2.2(b) of the General Conditions, Provider may request extensions to the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date to the extent that Provider can demonstrate to Purchaser that Provider is seeking such extension for good cause. Purchaser in its sole discretion may approve such extension(s) by executing an acknowledgment in the form attached hereto as Schedule 8 on which Provider details (i) the circumstances for which Provider deems good cause for such extension(s), (ii) the actions that Provider is taking to complete the System on a schedule agreeable to the Purchaser and (iii) the updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date.

For the avoidance of doubt, Purchaser designates Director of Municipal Services as authorized to execute the acknowledgment form attached hereto as Schedule 8 provided the terms of such acknowledgment comply with this Section 11.

12. Sunlight Access. Purchaser will take all reasonable actions as necessary to prevent other buildings, structures or flora from overshadowing or otherwise blocking access of sunlight to the System.

13. Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating a swimming pool within the meaning of Section 48 of the Internal Revenue Code.

Page 133 of 259 ends

5 [signature page follows]
IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, Provider and Purchaser have executed this Agreement as of the Effective Date.
“PURCHASER”:

TOWN OF APPLE VALLEY
By:___________________________
Name:

Title:

Date:
“PROVIDER”:

FFP BTM SOLAR, LLC
By:___________________________
Name:

Title:

Date:

Page 134 of 259 ends

6 SCHEDULES
I. Schedule 1 – Description of the Premises, System and Subsidy A. Premises 14931 Dale Evans Pkwy, Apple Valley, CA 92307 Site diagram attached:  Yes No
B. Description of Solar System
Behind the meter, grid interconnected, canopy mounted solar.

Solar System Size: 376.74kW (DC) (this is an estimate (and not a guarantee) of the System size; Provider may update the System Size prior to the Commercial Operation Date.)
C. Anticipated Subsidy or
Rebate
$0
D. Interconnection Baseline
Cost
$0
E. Anticipated Investment Tax
Credit Rate for Provider
30%
II. Schedule 2 – Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the “Energy Services Payment”) for the Energy Services provided by the System during each calendar month of the Term equal to the product of (x) Actual Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.

The “Actual Monthly Production” means the amount of energy recorded by Provider’s metering equipment during each calendar month of the Term.

The kWh Rate with respect to the System under this Agreement shall be in accordance with the following schedule:

PPA Rate Table
Term
Year
kWh Rate
($/kWh)
Term
Year
$/kWh Rate
($/kWh)
1 $0.1680 11 $0.1680
2 $0.1680 12 $0.1680
3 $0.1680 13 $0.1680
4 $0.1680 14 $0.1680
5 $0.1680 15 $0.1680
6 $0.1680 16 $0.1680
7 $0.1680 17 $0.1680
8 $0.1680 18 $0.1680
9 $0.1680 19 $0.1680
10 $0.1680 20 $0.1680

Page 135 of 259 ends

7 Potential Price Adjustment for Cost Savings. Provider and Purchaser acknowledge that there may be an opportunity for additional cost savings with respect to the construction and interconnection of the System as a result of changes in the Investment Tax Credit pursuant to the Inflation Reduction Act of 2022 and that a decrease in the kWh Rate may be appropriate to allow Purchaser to share in such savings once the scope and nature of the changes have been fully analyzed. To the extent that Provider is able to achieve such savings, Provider and Purchaser will meet and confer in good faith to discuss an equitable adjustment in the kWh Rate, provided, however, that any change in the kWh Rate will be subject to a written amendment to this Agreement.

Distribution Upgrades. The pricing set forth in this Agreement is based on the assumption that the total cost of Local Electric Utility upgrade costs in connection with the interconnection of the System with the Local Electrical Utility will not exceed the Interconnection Baseline Cost. In the event that distribution upgrade costs required by the Local Electric Utility exceed the Interconnection Baseline Cost, then Provider will give written notice of the additional cost to Purchaser and within sixty (60) days of Purchaser’s receipt of such notice, Purchaser will provide written notice (email is acceptable) to Provider of Purchaser’s election of one of the following options:
a. Purchaser will bear all the distribution upgrade costs in excess of the Interconnection Baseline Cost, and the kWh Rates stated in the PPA Rate Table will remain unchanged. Purchaser shall make payments directly to the Local Electric Utility in accordance with the requirements of the Local Electric Utility; or b. Purchaser may elect to have Provider finance such costs, in which case for every $0.01 per watt DC of such distribution upgrade costs incurred by Provider, the kWh rate in the PPA Rate Table will increase (i) $0.00064 per kWh if the cost of the upgrades are not ITC eligible; or (ii) $.00040 per kWh if the costs are ITC eligible.

Scope Changes (ITC Eligible). If changes in project scope occur that are eligible for the Federal Investment Tax Credit (including but not limited to adverse geotechnical conditions or the inclusion of spare conduit) and the costs directly related to such changes go beyond those contemplated as part of the development and implementation of the System in this Agreement, then Provider will provide reasonable documentation demonstrating the direct and actual time and materials costs relating to such increase in costs to Purchaser. Within sixty (60) days after Purchaser receives such documentation, Purchaser will provide written notice to Provider of Purchaser’s election of one of the following options:
a. Purchaser will bear all of the reasonably documented scope change costs, and the kWh rate as stated in Table 1 will remain unchanged; or
b. Purchaser may elect to have Provider finance such costs, in which case for every $0.01 per watt DC of such costs, the kWh rate in Table 1 will increase $0.00040 per kWh.

Scope Changes (Non-ITC Eligible). If changes in project scope occur that are not eligible for the Federal Investment Tax Credit (including but not limited to ADA compliance costs not related to System configuration or construction) and the costs directly related to such changes go beyond those contemplated as part of the development and implementation of the System in this Agreement , then Provider will provide reasonable documentation demonstrating the direct and actual time and materials costs relating to such costs to Purchaser. Within sixty (60) days after Purchaser receives such documentation, Purchaser will provide written notice to Provider of Purchaser’s election of one of the following options:
a. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in the PPA Rate Table will remain unchanged.; or
b. Purchaser may elect to have Provider finance such costs, in which case for every $0.01 per watt DC of such associated costs, the kWh rate in the PPA Rate Table will increase $0.00053 per kWh..

Purchaser Additional Cost Limitation; Termination Rights. Notwithstanding the election by Purchaser to pay for excess costs associated with Distribution Upgrades and/or Scope Changes pursuant to this Schedule 2 via incremental increases in the kWh Rate, in no event will Purchaser by responsible for an incremental rate increase in excess of $0.0312 per kWh in the aggregate, nor shall Purchaser be required to pay any lump sum amount for excess costs that are not covered as a result of such limitation. Provider will have the option, but not the obligation, to absorb excess cost which exceed the obligation of Purchaser pursuant to this Schedule 2. If Provider notifies Purchaser that it does not intend to absorb such costs and the System is no longer financially viable, then either party will have the right to terminate this Agreement and Provider will remove the System pursuant to Section 2.4 of the General Conditions.

Page 136 of 259 ends

8 III. Schedule 3 – Early Termination Fee
The Early Termination Fee with respect to the System under this Agreement shall be calculated in accordance with the following:

Early
Termination
Occurs in Year:

Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial Operation
Date)
Column 2
Early Termination Fee
where Purchaser takes
Title to the System
($/Wdc, does not include
costs of removal)
1* $4.59 --
2 $4.27 --
3 $4.07 --
4 $3.94 --
5 $3.82 --
6 $3.71 5
th Anniversary $3.21
7 $3.67 6
th Anniversary $3.17
8 $3.63 7
th Anniversary $3.13
9 $3.59 8
th Anniversary $3.09
10 $3.55 9
th Anniversary $3.05
11 $3.51 10th Anniversary $3.01
12 $3.47 11th Anniversary $2.97
13 $3.43 12th Anniversary $2.93
14 $3.39 13th Anniversary $2.89
15 $3.35 14th Anniversary $2.85
16 $3.31 15th Anniversary $2.81
17 $3.26 16th Anniversary $2.76
18 $3.22 17th Anniversary $2.72
19 $3.17 18th Anniversary $2.67
20 $3.13 19th Anniversary $2.63
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date.

Upon the payment of the Early Termination Fee in Column 2, Provider will transfer title to the System to Purchaser, free and clear of any encumbrances.

IV. Schedule 4 – Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System under this Agreement shall be as follows:

Term
Year
Estimated
Production
(kWh)
Term
Year
Estimated
Production
(kWh)
1 703,750 11 669,344
2 700,232 12 665,997
3 696,730 13 662,667
4 693,247 14 659,354

Page 137 of 259 ends

9 5 689,781 15 656,057
6 686,332 16 652,777
7 682,900 17 649,513
8 679,485 18 646,266
9 676,088 19 643,034
10 672,708 20 639,819
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and based on initial System designs. Provider may deliver to Purchaser an updated table on or about the Commercial Operation Date based on the actual System size and design.

V. Schedule 5 – Notice Information
Purchaser:

Town of Apple Valley
c/o Director of Municipal Services
14955 Dale Evans Pkwy
Apple Valley, CA 92307
Provider:

Page 138 of 259 ends

If Purchaser does not deliver any comments within 10 days, Provider shall construe this as acceptance and approval.

Provider assumes that all parcels encompassed by the site area recommended by Purchaser will be owned by Purchaser at time of development.

1.7. Solar canopy arrays will have a minimum overhead clearance height of 10'-0” and a painted or Hot-Dip Galvanized finish at discretion of Provider.

1.8. Provider shall be responsible for all tree trimming and tree removal in order to facilitate the installation of the Systems. Provider will remove tree such that area is flush with grade.

1.9. Provider intends to interconnect the System to Purchaser-owned 480V service conductors or service equipment at a mutually agreeable location. Provider assumes that the existing conductors and service equipment are sufficiently capable of accepting the additional electrical load of the System and that any existing relay schema or protection settings are configurable to allow backfeed from generation sources. Provider shall not bear responsibility for any required upgrades to the pre-existing electrical system.

1.12. Provider shall be responsible for verifying and understanding existing ADA parking, striping, and paths of travel and what code-required upgrades may be necessary as a result of the System and any pre-existing non-compliance. Provider shall be responsible for all required ADA striping, signage within the solar canopy footprint and connecting to existing ADA-compliant path of travel. Provider’s scope excludes any demolition, grading, paving, curb cuts, or truncated domes throughout the Premises to achieve ADA compliance, or any required ADA striping and signage outside of the solar canopy footprint and connecting to the existing ADAPage 139 of 259 11 compliant path of travel. Should any excluded items for ADA-compliance be required, Provider will work with Purchaser in good faith to determine a mutually-acceptable solution for Purchaser to pay the costs associated with such upgrades, including potentially an increase in the kWh rate in Schedule 2.

1.15. Purchaser is responsible for unforeseen underground conditions including utilities not discoverable by industry standard methodologies.

1.16. Provider assumes that existing grade is level and that no grading is required in support of System installation.

1.17. Provider assumes that there is a water source on site, and available for Provider’s use.

1.18. Provider assumes Risk Level I Best Management Practices as it relates to relevant Stormwater Protection Plan assumptions for the installation of the System.

1.19. Purchaser shall be responsible for any irrigation re-routing or repair.

1.22. Provider assumes Town Hall and Police Department projects will be constructed in one mobilization.

1.23. Provider shall be responsible for all inspection and inspector costs associated with the installation of the system.

Page 140 of 259 ends

1. Type of Change:

Distribution Upgrades
Scope Changes (ITC Eligible)
Scope Changes (Non-ITC Eligible)
Day for Day Extension
Extension for Good Cause

2. Description of Change
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE,

PROVIDER TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON AGREED UPON SCHEDULE]

3. kWh Rate and Early Termination Fee [IF NO IMPACT TO RATE OR ETF THEN DELETE] [INSERT UPDATED KWH RATE AND EARLY TERMINATION FEE TABLE]

4. Estimated Annual Production [IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE] [INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]

Name: Name:

Title: Title:

Page 141 of 259 ends

13 IX. Schedule 9 – Site Diagram

Page 142 of 259 ends

ENERGY SERVICES AGREEMENT – SOLAR
Apple Valley Town Hall
This Energy Services Agreement (“Agreement”) is made and entered into as of this ____ day of ___________, 2023 (or, if later, the latest date of a Party’s execution and delivery to the other Party of this Agreement, the “Effective Date”), between FFP BTM SOLAR, LLC, a Delaware limited liability company (“Provider”), and The City of Palm Desert, a California charter city (“Purchaser”; and, together with Provider, each, a “Party” and together, the “Parties”).

In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Incorporation of General Terms and Conditions. The General Terms and Conditions are incorporated herein as if set forth in their entirety.

3. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:

Page 143 of 259 ends

5. Milestone Dates.

7. Net Energy Metering.

Provided, however, that in the event of a change in Applicable Law that occurs after the Commercial

Page 144 of 259 ends

Lost Savings = (MGO*WPR - AE) x RV
MGO = Minimum Guaranteed Output, as measured in total kWh, for the System for the applicable Term Year.

WPR = Weather Performance Ratio, measured as the ratio of the actual insolation over typical (proforma) insolation. Such Weather Performance Ratio shall only apply if the ratio is less than 1.00.

AE = Actual Electricity, as measured in total kWh, delivered by the System for the Term Year plus the estimated lost energy production during a Disruption Period.

Page 145 of 259 ends

12. Sunlight Access. Purchaser will take all reasonable actions as necessary to prevent other buildings, structures or flora from overshadowing or otherwise blocking access of sunlight to the System.

13. Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating a swimming pool within the meaning of Section 48 of the Internal Revenue Code.

Page 146 of 259 ends

TOWN OF APPLE VALLEY
By:___________________________
Name:

Title:

Date:
“PROVIDER”:

FFP BTM SOLAR, LLC
By:___________________________
Name:

Title:

Date:

Page 147 of 259 ends

6 SCHEDULES
I. Schedule 1 – Description of the Premises, System and Subsidy A. Premises 14955 Dale Evans Pkwy, Apple Valley, CA 92307 Site diagram attached:  Yes No
B. Description of Solar System
Behind the meter, grid interconnected, canopy mounted solar.

Solar System Size: 163.80 kW (DC) (this is an estimate (and not a guarantee) of the System size; Provider may update the System Size prior to the Commercial Operation Date.)
C. Anticipated Subsidy or
Rebate
$0
D. Interconnection Baseline
Cost
$0
E. Anticipated Investment Tax
Credit Rate for Provider
30%
II. Schedule 2 – Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the “Energy Services Payment”) for the Energy Services provided by the System during each calendar month of the Term equal to the product of (x) Actual Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.

The “Actual Monthly Production” means the amount of energy recorded by Provider’s metering equipment during each calendar month of the Term.

The kWh Rate with respect to the System under this Agreement shall be in accordance with the following schedule:

Page 148 of 259 ends

Distribution Upgrades. The pricing set forth in this Agreement is based on the assumption that the total cost of Local Electric Utility upgrade costs in connection with the interconnection of the System with the Local Electrical Utility will not exceed the Interconnection Baseline Cost. In the event that distribution upgrade costs required by the Local Electric Utility exceed the Interconnection Baseline Cost, then Provider will give written notice of the additional cost to Purchaser and within sixty (60) days of Purchaser’s receipt of such notice, Purchaser will provide written notice (email is acceptable) to Provider of Purchaser’s election of one of the following options:
a. Purchaser will bear all the distribution upgrade costs in excess of the Interconnection Baseline Cost, and the kWh Rates stated in the PPA Rate Table will remain unchanged. Purchaser shall make payments directly to the Local Electric Utility in accordance with the requirements of the Local Electric Utility; or b. Purchaser may elect to have Provider finance such costs, in which case for every $0.01 per watt DC of such distribution upgrade costs incurred by Provider, the kWh rate in the PPA Rate Table will increase (i) $0.00065 per kWh if the cost of the upgrades are not ITC eligible; or (ii) $0.00041 per kWh if the costs are ITC eligible.

Purchaser Additional Cost Limitation; Termination Rights. Notwithstanding the election by Purchaser to pay for excess costs associated with Distribution Upgrades and/or Scope Changes pursuant to this Schedule 2 via incremental increases in the kWh Rate, in no event will Purchaser by responsible for an incremental rate increase in excess of $0.0287 per kWh in the aggregate, nor shall Purchaser be required to pay any lump sum amount for excess costs that are not covered as a result of such limitation. Provider will have the option, but not the obligation, to absorb excess cost which exceed the obligation of Purchaser pursuant to this Schedule 2. If Provider notifies Purchaser that it does not intend to absorb such costs and the System is no longer financially viable, then either party will have the right to terminate this Agreement and Provider will remove the System pursuant to Section 2.4 of the General Conditions.

Page 149 of 259 ends

8 III. Schedule 3 – Early Termination Fee
The Early Termination Fee with respect to the System under this Agreement shall be calculated in accordance with the following:

Early
Termination
Occurs in Year:

Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial Operation
Date)
Column 2
Early Termination Fee
where Purchaser takes
Title to the System
($/Wdc, does not include
costs of removal)
1* $4.52 --
2 $4.19 --
3 $3.98 --
4 $3.83 --
5 $3.71 --
6 $3.59 5
th Anniversary $3.09
7 $3.55 6
th Anniversary $3.05
8 $3.51 7
th Anniversary $3.01
9 $3.47 8
th Anniversary $2.97
10 $3.43 9
th Anniversary $2.93
11 $3.39 10th Anniversary $2.89
12 $3.36 11th Anniversary $2.86
13 $3.32 12th Anniversary $2.82
14 $3.27 13th Anniversary $2.77
15 $3.23 14th Anniversary $2.73
16 $3.19 15th Anniversary $2.69
17 $3.15 16th Anniversary $2.65
18 $3.11 17th Anniversary $2.61
19 $3.07 18th Anniversary $2.57
20 $3.02 19th Anniversary $2.52
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date.

Upon the payment of the Early Termination Fee in Column 2, Provider will transfer title to the System to Purchaser, free and clear of any encumbrances.

IV. Schedule 4 – Estimated Annual Production
Estimated Annual Production commencing on the Commercial Operation Date with respect to System under this Agreement shall be as follows:

Term
Year
Estimated
Production
(kWh)
Term
Year
Estimated
Production
(kWh)
1 301,228 11 286,501
2 299,722 12 285,069
3 298,223 13 283,643
4 296,732 14 282,225

Page 150 of 259 ends

9 5 295,249 15 280,814
6 293,772 16 279,410
7 292,304 17 278,013
8 290,842 18 276,623
9 289,388 19 275,240
10 287,941 20 273,864
The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and based on initial System designs. Provider may deliver to Purchaser an updated table on or about the Commercial Operation Date based on the actual System size and design.

V. Schedule 5 – Notice Information
Purchaser:

Town of Apple Valley
c/o Director of Municipal Services
14955 Dale Evans Pkwy
Apple Valley, CA 92307
Provider:

Page 151 of 259 ends

If Purchaser does not deliver any comments within 10 days, Provider shall construe this as acceptance and approval.

Provider assumes that all parcels encompassed by the site area recommended by Purchaser will be owned by Purchaser at time of development.

1.7. Solar canopy arrays will have a minimum overhead clearance height of 10'-0” and a painted or Hot-Dip Galvanized finish at discretion of Provider.

1.8. Provider shall be responsible for all tree trimming and tree removal in order to facilitate the installation of the Systems. Provider will remove tree such that area is flush with grade.

1.12. Provider shall be responsible for verifying and understanding existing ADA parking, striping, and paths of travel and what code-required upgrades may be necessary as a result of the System and any pre-existing non-compliance. Provider shall be responsible for all required ADA striping, signage within the solar canopy footprint and connecting to existing ADA-compliant path of travel. Provider’s scope excludes any demolition, grading, paving, curb cuts, or truncated domes throughout the Premises to achieve ADA compliance, or any required ADA striping and signage outside of the solar canopy footprint and connecting to the existing ADAPage 152 of 259 11 compliant path of travel. Should any excluded items for ADA-compliance be required, Provider will work with Purchaser in good faith to determine a mutually-acceptable solution for Purchaser to pay the costs associated with such upgrades, including potentially an increase in the kWh rate in Schedule 2.

1.15. Purchaser is responsible for unforeseen underground conditions including utilities not discoverable by industry standard methodologies.

1.16. Provider assumes that existing grade is level and that no grading is required in support of System installation.

1.17. Provider assumes that there is a water source on site, and available for Provider’s use.

1.18. Provider assumes Risk Level I Best Management Practices as it relates to relevant Stormwater Protection Plan assumptions for the installation of the System.

1.19. Purchaser shall be responsible for any irrigation re-routing or repair.

1.22. Provider assumes Town Hall and Police Department projects will be constructed in one mobilization.

1.23. Provider shall be responsible for all inspection and inspector costs associated with the installation of the system.

Page 153 of 259 ends

1. Type of Change:

Distribution Upgrades
Scope Changes (ITC Eligible)
Scope Changes (Non-ITC Eligible)
Day for Day Extension
Extension for Good Cause

2. Description of Change
[INSERT DESCRIPTION AND IF PROVIDER SEEKING EXTENSION FOR GOOD CAUSE,

PROVIDER TO DETAIL CIRCUMSTANCES AND ACTIONS PROVIDER IS TAKING TO COMPLETE SYSTEM ON AGREED UPON SCHEDULE]

3. kWh Rate and Early Termination Fee [IF NO IMPACT TO RATE OR ETF THEN DELETE] [INSERT UPDATED KWH RATE AND EARLY TERMINATION FEE TABLE]

4. Estimated Annual Production [IF NO IMPACT TO ESTIMATED ANNUAL PRODUCTION THEN DELETE] [INSERT UPDATED SCHEDULE 4 ESTIMATED ANNUAL PRODUCTION TABLE]

Name: Name:

Title: Title:

Page 154 of 259 ends

13 IX. Schedule 9 – Site Diagram

Page 155 of 259 ends

Page 156 of 259 ends

Page 157 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPTANCE OF WORK FOR THE JESS RANCH LIFT STATION

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

RECOMMENDED ACTION
A. Accept the work completed by Canyon Springs Enterprises as part of the Jess Ranch Lift Station Upgrades Project for a total contract cost of $2,710,736.50.

B. Direct the Town Clerk to file the Notice of Completion for the contracted work.

C. Direct the Finance Department to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.

BACKGROUND
The old Jess Ranch lift station was originally constructed to primarily service the adjacent Jess Ranch residential community. Since that time, the area has grown significantly with additional residential communities to the south and an expansive retail district to the north.

A feasibility study was conducted by an engineering firm, Lee + Ro, who evaluated wastewater flows and capacities within the existing developments, plus the proposed and conditionally approved projects in the area and west of Deep Creek Road. They subsequently designed this new lift station with sufficient capacity to provide the expected service into the foreseeable future.

On February 22, 2022, a contract was awarded to Canyon Springs Enterprises, previously known as RSH Construction, for construction of the Jess Ranch lift station. Staff authorized revisions to the scope of work during construction to include concrete flooring, a larger block enclosure, and additional upgrades to the lift station that would meet the needs of the Wastewater Division.

Page 158 of 259 ends

ANALYSIS
The Jess Ranch Lift Station was completed and passed a seven-day trial period on October 30th, 2023. Once the new lift station was fully operational, the old lift station was demolished and abandoned according to plan. Public Works, Wastewater Division staff have conducted a final inspection at the new lift station and deemed it complete and acceptable.

FISCAL IMPACT
Funding for this project has been appropriated in the adopted FY 2023-2024 budget using a 98-1 AD Bond and Wastewater Capital Improvement Funds. The initial award to Canyon Springs Enterprises was $2,568,300.00 Change orders totaling $142,436.50 (5.55%) were authorized, bringing the final contract cost to $2,710,736.50.

ATTACHMENTS

1. Notice of Completion

Page 159 of 259 ends

Recording Requested by:

Town of Apple Valley
When Recorded mail to:

Town of Apple Valley
Town Clerk’s Office
14955 Dale Evans Parkway
Apple Valley, CA 92307
FOR RECORDER’S USE ONLY
Notice of Completion
This document is recorded at the request of and for the benefit of the Town of Apple valley, California, and is therefore exempt from the payment of the recording fee pursuant to Government Code Section 27383 and from the payment of the documentary transfer tax pursuant to Revenue and Taxation code 11922.

NOTICE IS HEREBY GIVEN, that

1. The undersigned, Guy Eisenbrey, is the duly appointed and qualified Director of Municipal Services of the Town of Apple Valley, a municipal corporation of the State of California, and which is located within the County of San Bernardino, in said State, and the address of the undersigned is 14955 Dale Evans Parkway, Apple Valley, California 92307.

2. That on the 22
nd day of February, 2022, and pursuant to approval of the Town Council of the said Town, the Town entered into a contract with Canyon Springs Enterprises (formerly known as RSH Construction), 27476 Via Industria, Temecula, CA 92590, for the construction of the Jess Ranch Lift station Upgrades Project in the Town of Apple Valley in accordance with the Town of Apple Valley's Plans and Specifications.

3. That all of the said work or improvement was located at APN 0399-271-01, within the Town of Apple Valley.

4. That all of the said work or improvement contemplated in and under said contract was completed, and accepted by Council action, on December 12, 2023.

5. That the Surety on the Performance Bond of said Contractor and the surety on the Labor and Material Bond of said Contractor, under said contract, was and is $2,710,736.50 and $2,710,736.50.

6. Owners - Town of Apple Valley.

7. Nature of Interest – In fee.

The undersigned, being the first duly sworn, says: That he is the duly appointed and qualified Director of Municipal Services of the Town of Apple Valley, the political subdivision of the state of California which conducted the proceedings for the improvement located at 14955 Dale Evans Parkway, in said Town, described or referred to in the foregoing Notice; and that he has read the foregoing "Notice of Completion;" and knows the contents thereof, and that the facts recited therein are true.

Page 160 of 259 ends

I certify under penalty of perjury the foregoing is true and correct.

Apple Valley, CA. December 12, 2023
Guy Eisenbrey, Director of Municipal Services of the Town of Apple Valley, California

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )
TOWN OF APPLE VALLEY )ss.

Page 161 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPTANCE OF WORK FOR THE JAMES WOODY PARK

BASEBALL FIELD FENCE REPLACEMENT PROJECT
From: Douglas Robertson, Town Manager
Submitted by: Debbie Rivera, Parks and Recreation Manager Parks and Recreation
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
A. Accept the work completed by Quality Fence Company, Inc as part of the James Woody Park Baseball Field Fence Replacment project for a total contract cost of $184,885.80.

B. Direct the Town Clerk to file the Notice of Completion for the contracted work.

C. Direct the Director of Finance to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.

BACKGROUND
The Town of Apple Valley received a 2018 Parks Bond Act Per Capita Grant from the State of California Department of Parks and Recreation to install a new prefabricated restroom near the southerly playground and replace fencing at baseball fields 5, 6, 7, and 8, playground area and eastside perimeter of James Woody Park. During construction, staff eliminated the northerly portion of the east perimeter fence from the scope of work, since it is still in good condition. Staff used the realocated funds to replace the fencing in the west parking lot adjacent to field 1, and a new rolling gate was constructed at the trash enclosure. Additionally, fencing was installed along the southerly perimeter by the gymnasium, and a new trash enclosure was constructed next to the snack bar.

ANALYSIS
Staff inspected the project area and deemed the work to be complete and acceptable.

FISCAL IMPACT

Page 162 of 259 ends

Funding for the project is included in the adopted Fiscal Year 2023/2024 budget. The total project cost for the fencing is $184,885.80 and will be paid using $34,504.80 Quimby funds and $150,381.00 will be reimbursed by the Parks Bond Act Per Capita Grant.

ATTACHMENTS

1. Notice of Completion

Page 163 of 259 ends

Recording Requested by:

Town of Apple Valley
When Recorded mail to:

NOTICE IS HEREBY GIVEN, that

1. The undersigned, Debbie Rivera, is the duly appointed and qualified Parks and Recreation Manager of the Town of Apple Valley, a municipal corporation of the State of California, and which is located within the County of San Bernardino, in said State, and the address of the undersigned is 14955 Dale Evans Parkway, Apple Valley, California 92307.

2. That on the 25th day of July, 2023, and pursuant to approval of the Town Council of the said Town, the Town entered into a contract with Quality Fence, Inc., 14929 Garfield Ave., Paramount, CA 90723, for the construction of the James Woody Baseball Field Fence Replacement Project in the Town of Apple Valley in accordance with the Town of Apple Valley's Plans and Specifications.

3. That all of the said work or improvement was located at APN 3087-351-05, within the Town of Apple Valley.

4. That all of the said work or improvement contemplated in and under said contract was completed, and accepted by Council action, on December 12, 2023.

5. That the Surety on the Performance Bond of said Contractor and the surety on the Labor and Material Bond of said Contractor, under said contract, was and is $184,885.80 and $184,885.80.

6. Owners - Town of Apple Valley.

7. Nature of Interest – In fee.

The undersigned, being the first duly sworn, says: That he is the duly appointed and qualified Parks and Recreation Manager of the Town of Apple Valley, the political subdivision of the state of California which conducted the proceedings for the improvement located at 14955 Dale Evans Parkway, in said Town, described or referred to in the foregoing Notice; and that he has read the foregoing "Notice of Completion;" and knows the contents thereof, and that the facts recited therein are true.

Page 164 of 259 ends

I certify under penalty of perjury the foregoing is true and correct.

Apple Valley, CA. December 12, 2023
Debbie Rivera, Parks and Recreation Manager of the Town of Apple Valley, California

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )
TOWN OF APPLE VALLEY )ss.

Page 165 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPTANCE OF WORK FOR THE COLD MIX OVERLAY 2023

PROJECT
From: Douglas Robertson, Town Manager
Submitted by: Mike Podegracz, Town Engineer
Engineering
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
A. Accept the work completed by Calmex Engineering as part of the Cold Mix Overlay 2023 project for a total contract cost of $1,393,764.90.

B. Direct the Town Clerk to file the Notice of Completion for the contracted work.

C. Direct the Director of Finance to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.

BACKGROUND
As part of the Town’s annual paving priorities, staff evaluated local roadways and determined priority areas in need of maintenance. The segments in this project required a thicker aggregate than what is typically used in the Town’s annual microsurface projects. The Project generally consisted of providing the necessary labor, equipment, and materials for the application of cold mix asphalt on the listed segments.

ANALYSIS
Engineering staff inspected the project area and deemed the work to be complete and acceptable.

FISCAL IMPACT
Funding for this project has been appropriated in the adopted FY 2023-2024 budget under Paving Priorities (2011-5010-9525-0000).

Page 166 of 259 ends

ATTACHMENTS
A. Segments Map
B. List of Segments
C. Notice of Completion

Page 167 of 259 ends

STREET NAME SEGMENT START SEGMENT END
POWHATAN ROAD E/S COCHISE ROAD W/S APPLE VALLEY ROAD (E. ECR/BCR)

TACONY ROAD N/S RIVERSIDE DRIVE S/S TUSCOLA ROAD

TACONY ROAD N/S TUSCOLA ROAD S/S SYMERON ROAD

TACONY ROAD N/S SYMERON ROAD S/S MONDAMON ROAD

TACONY ROAD N/S MONDAMON ROAD E/S TUSCOLA ROAD
TACONY COURT TACONY ROAD END (EAST) - CDS 61

NOKOMIS LANE NOKOMIS ROAD END (WEST)

NOKOMIS COURT NOKOMIS ROAD END (WEST)

NOKOMIS ROAD N/S RIVERSIDE DRIVE S/S SYMERON ROAD
TUSCOLA ROAD S/S MANA ROAD No. PL @ THE CHURCH
TUSCOLA ROAD S/S SYMERON ROAD (+22' - ECR/BCR) S/S MANA ROAD

MONACHE ROAD N/S SISKIYOU ROAD W/S MALAHAT ROAD
MONACHE LANE MONACHE ROAD END (WEST) - CDS 63
MONACHE COURT MONACHE ROAD END (WEST) - CDS 63

CARIBOU AVENUE W/S KIOWA ROAD E/S MERINO AVENUE

CARIBOU AVENUE E/S MERINO AVENUE N/S WREN STREET

CARIBOU AVENUE N/S WRENSTREET S/S MARMOSET STREET

MARMOSET STREET E/S CARIBOU AVENUE W/S KIOWA ROAD

LANCELET AVENUE N/S MARMOSET STREET S/S WREN STREET

VERDE DRIVE E/S KIOWA ROAD N/S VALENCIA STREET

VERDE DRIVE N/S VALENCIA STREET N/S NANDINA STREET

VERDE DRIVE N/S NANDINA STREET N/S BALSA STREET

BALSA STREET N/S TUSSING RANCH ROAD E/S VERDE DRIVE

BALSA STREET E/S VERDE DRIVE W/S MOHAWK ROAD

BALSA STREET E/S MOHAWK ROAD S/S BALSA COURT

BALSA STREET S/S BALSA COURT W/WTUSSING RANCH ROAD

KIAVAN ROAD N/S TUSSING RANCH ROAD N/S NANDINA STREET

KIAVAN ROAD N/S NANDINA STREET S/S WREN STREET
PANOCHE ROAD E/S MANHASSET ROAD (Join Ex. OL) W/S QUINNAULT ROAD

ALEUT ROAD W/S QUINNAULT ROAD E/S NAMBE ROAD

LIST OF SEGMENTS

Page 168 of 259 ends

Town of Apple Valley
Cold Mix Overlay 2023
Segment Map
(For Reference Only) Not to Scale

Page 169 of 259 ends

Recording Requested by:

Town of Apple Valley
When Recorded mail to:

NOTICE IS HEREBY GIVEN, that

1. The undersigned, Mike Podegracz, is the duly appointed and qualified Town Engineer of the Town of Apple Valley, a municipal corporation of the State of California, and which is located within the County of San Bernardino, in said State, and the address of the undersigned is 14955 Dale Evans Parkway, Apple Valley, California 92307.

2. That on the 10
th day of October, 2023, and pursuant to approval of the Town Council of the said Town, the Town entered into a contract with Calmex Engineering, Inc., 2764 S. Vista Avenue, Bloomington, CA 92316 for the construction of the Cold Mix Overlay 2023 Project in the Town of Apple Valley in accordance with the Town of Apple Valley's Plans and Specifications.

3. That all of the said work or improvement was located in various locations, APN’s unknown, within the Town of Apple Valley.

4. That all of the said work or improvement contemplated in and under said contract was completed, and accepted by Council action, on December 12, 2023.

5. That the Surety on the Performance Bond of said Contractor and the surety on the Labor and Material Bond of said Contractor, under said contract, was and is $1,393,764.90 and $1,393,764.90.

6. Owners - Town of Apple Valley.

7. Nature of Interest – In fee/easement.

The undersigned, being the first duly sworn, says: That he is the duly appointed and qualified Town Engineer of the Town of Apple Valley, the political subdivision of the state of California which conducted the proceedings for the improvement located at 14955 Dale Evans Parkway, in said Town, described or referred to in the foregoing Notice; and that he has read the foregoing "Notice of Completion;" and knows the contents thereof, and that the facts recited therein are true.

Page 170 of 259 ends

I certify under penalty of perjury the foregoing is true and correct.

Apple Valley, CA. December 12, 2023
Mike Podegracz, Town Engineer of the Town of Apple Valley, California

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )
TOWN OF APPLE VALLEY )ss.

Page 171 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: AWARD A PROFESSIONAL SERVICES AGREEMENT FOR REAL

ESTATE AND BROKERAGE SERVICES
From: Douglas Robertson, Town Manager
Submitted by: Silvia Urenda, Housing and Community Development Supervisor Housing and Community Development
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Award a Professional Services Agreement to RSG, Inc. for real estate and brokerage services subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.

BACKGROUND
The Town published a Request for Proposal (RFP) for real estate brokerage firm services on September 27, 2023. Staff is seeking a real estate consultant to assist with real estate, transactions ranging from surplus property disposition, HUD-funded acquisitions, and the general purchase and sale of properties. The awarded firm will advise, market, and represent the Town on an as-needed basis.

ANALYSIS
On October 24, 2023, staff received three (3) proposals for the RFP. Upon receipt, the proposals were reviewed and scored by Town staff using the following criteria:
 Understanding of services requested
 Firm experience with similar kinds of work
 Experience of assigned project team members
 Relevant Examples
 Completeness and overall quality of submission

Page 172 of 259 ends

Once reviewed, Town staff selected RSG, Inc. to represent the Town on future real estate transactions. The selected firm has experience with similar kinds of work, a strong project team, and relevant examples, leading us to select RSG, Inc as the awarded firm.

FISCAL IMPACT
Funding will be subject to services rendered by the Economic Development Department, Housing and Community Development Department and any Town department(s) seeking real estate services. All services will be subject to the fee schedule provided by RSG, Inc.

ATTACHMENTS
A. Professional Services Agreement

Page 173 of 259 ends

-1-

TOWN OF APPLE VALLEY

PROFESSIONAL SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this 12th day of December, 2023, by and between the Town of Apple Valley, a municipal corporation organized under the laws of the State of California with its principal place of business at 14955 Dale Evans Parkway, Apple Valley, California 92307 (“Town”) and RSG, Inc. a Corporation with its principal place of business at 170 Eucalyptus Ave, Suite 200, Vista, CA 92084 ("Consultant"). Town and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Town on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing real estate brokerage services to public clients, is licensed in the State of California, and is familiar with the plans of Town.

2.2 Project.

Town desires to engage Consultant to render such professional services for Real Estate and Brokerage Firm Services ("Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the Town all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional real estate services consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from December 12, 2023, to December 12, 2024, unless earlier terminated as provided herein. The Town shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

Page 174 of 259 ends

-2-

3.2 Fees and Payments

3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.2 Payment of Compensation. Consultant shall submit to Town a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.

Town shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the Town disputes any of Consultant's fees, the Town shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the Town for any reason whatsoever.

3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Town, or included in Exhibit “B” of this Agreement.

3.2.4 Extra Work. At any time during the term of this Agreement, Town may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Town to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the Town.

3.2.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “B” may be adjusted each year at the time of renewal as set forth in Exhibit “B.”

3.3 Responsibilities of Consultant.

3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Town retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of Town and shall at all times be under Consultant's exclusive direction and control.

Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of Town, Consultant shall provide

Page 175 of 259 ends

-3-
a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Town.

3.3.4 Substitution of Key Personnel. Consultant has represented to Town that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of Town. In the event that Town and Consultant cannot agree as to the substitution of key personnel, Town shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Tara Matthews, Dominique Clark, and Alexandra Lawrence.

3.3.5 Town's Representative. The Town hereby designates Silvia Urenda, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("Town's Representative"). Town's Representative shall have the power to act on behalf of the Town for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The Town Manager shall be authorized to act on Town's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in Section 3.2 of this Agreement. Consultant shall not accept direction or orders from any person other than the Town Manager, Town's Representative or his/her designee.

3.3.6 Consultant's Representative. Consultant hereby designates active principals Jim Simon and Tara Matthews, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.3.7 Coordination of Services. Consultant agrees to work closely with Town staff in the performance of Services and shall be available to Town's staff, consultants and other staff at all reasonable times.

3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Town, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the Town to be uncooperative,

Page 176 of 259 ends

-4-
incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Town, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.9 Period of Performance.

3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the Town and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the Town will suffer damage.

3.3.9.2 Neither Town nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.

3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

3.3.9.4 Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. Notwithstanding the foregoing in this section, the Town may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.3.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the Town to terminate the Agreement for cause.

3.3.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and

Page 177 of 259 ends

-5-
Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.

3.3.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Town's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.3.10.3 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify Town against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.

3.3.10.4 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.

3.3.11 Insurance.

3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Town that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the Town that the subconsultant has secured all insurance required under this section.

Failure to provide and maintain all required insurance shall be grounds for the Town to terminate this Agreement for cause.

3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.

Page 178 of 259 ends

-6-
(A) Commercial General Liability: Commercial General
Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence.
(C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.

3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Town to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The Town, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for nonpayment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for nonpayment of premium.

Page 179 of 259 ends

-7-
(C) Professional Liability (Errors & Omissions): 1) Cancellation:

Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the Town, its officials, officers, employees, agents, and volunteers.

3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the Town, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the Town, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Town, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the Town and shall protect the Town, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the Town, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the Town for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the Town. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the Town evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

Page 180 of 259 ends

-8-

3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.3.11.9 Enforcement of Agreement Provisions (non estoppel).

Consultant acknowledges and agrees that actual or alleged failure on the part of the Town to inform Consultant of non-compliance with any requirement imposes no additional obligation on the Town nor does it waive any rights hereunder.

3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.

3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Town, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Town has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Town will be promptly reimbursed by Consultant or Town will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Town may cancel this Agreement.
(C) The Town may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the Town nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the Town and shall not preclude the Town from taking such other actions available to the Town under other provisions of the Agreement or law.
(F) Consultant shall report to the Town, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.

3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional

Page 181 of 259 ends

-9-
insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the Town, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the Town, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the Town.

3.3.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the Town’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the Town, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.

Town may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this section, or any other relevant water quality law, regulation, or policy.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Town shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the Town, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for

Page 182 of 259 ends

-10-
maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the Town. Consultant shall defend, indemnify and hold the Town, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.

3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake selfinsurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Accounting Records.

3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Town during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.6 General Provisions.

3.6.1 Termination of Agreement.

3.6.1.1 Grounds for Termination. Town may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to Town, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.

3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, Town may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

Page 183 of 259 ends

-11-

3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Town may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: RSG, Inc.
170 Eucalyptus Ave., Ste 200
Vista, CA 92084
ATTN: Tara Matthews
Town: Town of Apple Valley
14955 Dale Evans Parkway
Apple Valley, California 92307
ATTN: Silvia Urenda
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.6.3 Ownership of Materials and Confidentiality.

3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for Town to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of Town, and shall not be used in whole or in substantial part by Consultant on other projects without the Town’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to Town reproducible copies of all Documents & Data, in a form and amount required by Town. Town reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by Town at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to Town upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to Town any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to Town upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify Town and provide Town with the opportunity to obtain the documents.

Page 184 of 259 ends

-12-

3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that Town is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the Town.

3.6.3.3 Right to Use. Town shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at Town’s sole risk. If Town uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the Town upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.

3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the Town, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Town of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant.

Such materials shall not, without the prior written consent of Town, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Town's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Town.

3.6.3.6 Confidential Information. The Town shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the Town's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the Town shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the release notice to give Town written notice of Consultant's objection to the Town's release of Proprietary Information.

Page 185 of 259 ends

-13-
Consultant shall indemnify, defend and hold harmless the Town, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information.

Town shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with Town's choice of legal counsel), and hold Town harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that Town release such information.

3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.6.5 Indemnification.

3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of Town’s choosing), indemnify and hold the Town, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the Town.

Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the Town, its officials, officers, employees, agents, or volunteers.

3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.6.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.

3.6.7 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the Town. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have

Page 186 of 259 ends

-14-
been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the Town.

3.6.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.6.9 Town's Right to Employ Other Consultants. Town reserves right to employ other consultants in connection with this Project.

3.6.10 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.6.11 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the Town, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of Town.

Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.6.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.

Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to Town include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.6.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.6.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.6.15 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.6.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6.17 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely

Page 187 of 259 ends

-15-
for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the Town’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, Town shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Town, during the term of his or her service with Town, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.6.18 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.6.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6.20 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE]

Page 188 of 259 ends

-16-

SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE TOWN OF APPLE VALLEY
AND RSG, Inc.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

TOWN OF APPLE VALLEY
By:

Doug Robertson
Town Manager
ATTEST:

By:

La Vonda M-Pearson
Director of Government Services/Town
Clerk
APPROVED AS TO FORM:

By:

Thomas A. Rice, Best Best & Krieger,
LLP
Town Attorney
RSG, Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

Page 189 of 259 ends

Exhibit “A-I-1”
EXHIBIT "A"

SCOPE OF SERVICES

Page 190 of 259 ends

Exhibit “A-I-2”

MARKETING METHODS AND ADDITIONAL SERVICES
RSG understands the scope of work outlined in the Town’s RFP and has prepared the following description of our approach and assumptions for the scope and budget. The RFP describes that the intent of the solicitation is to secure a commercial real estate broker to assist with the acquisition and disposition of real property, including the following:

1. Develop strategies for the acquisition and disposition efforts based on Town objectives, including compliance with the Surplus Land Act as applicable.

2. Represent the Town as their agent to market Town-owned properties (consistent with best practices and applicable state law), including advertising, site visits, negotiations, and reports on metrics and activities.

3. Represent the Town in site selection activities for governmental use and nongovernmental use properties, including market studies and comparable land values, communication and negotiations with sellers and owners of identified properties.

4. Complete coordination of document preparation in collaboration with the Town Attorney, including providing business terms to aid in the drafting of purchase and sale agreements, review of said agreements, and negotiations on terms with buyers or sellers.

5. Coordination of seller or buyer due diligence on behalf of the Town, including collecting and reviewing pertinent studies, review of tenant leases, securing third party consultants, escrow and title coordination through closing.

6. Advisory services as may be requested.

STRATEGIC PLANNING
Generally, we would commence work on this assignment by compiling an inventory of the real property owned or controlled by the Town. This would entail assembling Town records and comparing these to other sources of information (e.g. County Assessment roll, Costar) and developing a database and GIS map of properties owned or controlled and the corresponding purposes. This would include leased real property, whether the Town is the landlord or tenant. We would then review this information with affected Department managers to provide clarity on the purpose, condition, and plans for these assets, including whether there are any current or anticipated acquisitions or dispositions. We would then share that information with Town Management and provide initial directions on priorities, which may include updating records, leases, and preparing disposition or acquisition plans.

SURPLUS LAND ACT COMPLIANCE
The Surplus Land Act may impact plans for disposition if the Town intends to dispose of property for a non-governmental use.

RSG would first evaluate and discuss the implications of a surplus declaration and alternative options with Town staff and legal counsel. Under the presumption that the Property will be declared as surplus, the Town must follow disposition procedures outlined in the Surplus Land Act and the California Department of Housing and Community

Page 191 of 259 ends

Exhibit “A-I-3”
Development’s (“HCD”) implementing guidelines, which includes distributing a Notice of Availability to HCD and other priority agencies specified in the Surplus Land Act who would like to use the properties for affordable housing, parks/open space, or school facilities.

If a developer is selected while carrying out the surplus land disposition procedures, RSG can provide ongoing services to the Town, including term sheet deal points for an Exclusive Negotiating Agreement. If a developer is not selected, RSG can also provide supplemental marketing services.

MARKETING AND DISPOSITION OF TOWN-OWNED PROPERTIES
RSG would develop an exclusive listing agreement for properties to be sold and execute selling activities pursuant to a marketing plan.

MARKETING PLAN
The marketing plan for each property to be sold would be developed around the Town’s goals for the site, which may include any project requirements such as community benefits. This is an especially critical juncture in the disposition of the project in our experience. It is important for the success of the project that these requirements be identified before issuing the RFP so that project bidders have a fair opportunity to deliver on the Town’s goals and not face surprises after submitting their proposals. RSG would plan to facilitate this discussion with Town staff or elected officials if necessary to obtain and develop these expectations.

RSG would then develop a specific marketing strategy, which we expect would entail the following considerations:

1. Method(s) for advertising the opportunity

2. Target audience(s)

3. Social media messaging (for the Town)

4. Onsite signage options (note – costs for production and installation of signage may be outside our scope of work)

5. Outline of marketing offering RFP contents including graphics needed

6. Scoring criteria and weighting

7. KPIs

8. Schedule
RSG typically produces our marketing flyers with our graphic designer, but the Town may prefer or have its own design standards or staff that we can work with to create the final product. If the Town prefers, we can handle coordination and bring on an independent design partner.

Upon receipt of comments to the draft RFP or marketing brochure, RSG would

Page 192 of 259 ends

Exhibit “A-I-4”
finalize the offering for distribution and handle posting on Costar and Loopnet, while providing the client updates on views and site visits.

NEGOTIATIONS WITH BUYERS
RSG would host site visits in collaboration with Town staff to secure access to properties during the listing period, communicate proactively with interested buyer representatives, provide periodic updates to the client on offers and counteroffers, and negotiate on behalf of the Town with prospective buyers.

REVIEW OF DEVELOPMENT PROPOSALS
In some cases, the Town may be selling property for purpose of a specific development outcome and the evaluation may extend beyond the purchase price into the plans for site development. In this case, RSG would review submissions for thoroughness and responsiveness.

As appropriate, we may follow up with respondents to clarify offers to ensure a complete understanding of what each bidder plans to do with the Property. We would develop a matrix for the Town’s use to summarize distinct differences in the proposals as compared to the Town’s goals and scoring.

To the extent this information is collected through the RFP effort, RSG may provide a peer review of financial information or project pro formas to inform the Town’s understanding of the capacity and potential viability of each proposal.

Using the matrix prepared in the prior task, RSG would make a recommendation based on scoring criteria of the top 3-4 proposers to interview and share the entire matrix, the proposals, and our suggested questions with the Town for finalizing the interview list.

Our questions would include general questions asked of all interviewed proposers, as well as any specific questions that could not be clarified in the initial screening and qualification phase.

RSG anticipates the Town will select a panel of staff and other parties that may participate in the interview phase. We would propose to assist in briefing the interview panel on the interview process, address questions, and discuss scoring for the interviews to ensure a fair and transparent process.

Interviews would be conducted virtually for the sake of efficiency. At the end of each interview, each of the participating interview panelists would score independently, and then we would facilitate a short discussion to align the group to a consensus scoring. We presume that the interview would not be the only factor used in selecting the developer and other factors from the RFP process may be included as well. Together, this would result in the selection of a top bidder.

Page 193 of 259 ends

Exhibit “A-I-5”

SITE-SELECTION AND ACQUISITION SERVICES
Depending on the Town’s specific objectives, RSG would represent the Town on acquisition of property (including leases). This would entail the following activities:

1. Establishing the goals of the client including real estate requirements such as location, size, and other factors.

2. Understanding the source(s) of financing for acquisition to be used to the extent they affect real estate purchases or leasing.

3. Monitoring listings of properties on the market and informing the client on a timely basis of properties that meet site selection criteria established above.

4. Contact with owners of properties off market that meet Town site selection criteria to establish interest in selling or leasing.

5. Estimating purchase prices and lease rates as applicable for offer considerations.

6. Drafting offer letters and term sheets.

7. Meeting with the client, including Town Council in close session as appropriate.

PURCHASE AND SALE AGREEMENTS
RSG would draft responses to offers and counteroffers, draft term sheets, and coordinate with Town Council on the preparation of purchase and sale agreements by providing business terms, reviewing drafts, and reviewing comments.

DUE DILIGENCE AND ESCROW
RSG would coordinate due diligence activities on behalf of the Town, depending on whether it is a buyer or seller. If purchasing property, these activities would normally include the following:

1. Monitoring milestones and managing timely due diligence.

2. Collecting from the seller due diligence documents in their possession and reviewing and cataloging this information. Any issues or concerns would be promptly identified and reported to the Town staff for discussion and potential negotiation.

3. Soliciting on behalf of the Town a bench of consultants to assist with due diligence activities, including but not necessarily limited to surveyors, certified building inspectors, environmental consultants, geology consultants, and design architects.

4. RSG can provide relocation services if necessary, including review of existing tenant lease documents and preparation of relocation estimates and relocation documents.

5. Reviewing deliverables from Town consultants during due diligence and advising the client on material issues that are identified, as well as serving as point person in communication with sellers on terms and conditions for purchase that may need to be renegotiated.

If the Town is selling property, the due diligence activities would normally entail the

Page 194 of 259 ends

Exhibit “A-I-6”
following:

1. Monitoring milestones and managing timely due diligence.

2. Collecting from the Town documents in its possession and providing these to the buyer in accordance with the terms of the purchase and sale agreement.

3. Accommodating requests for buyer inspections in collaboration with Town staff as appropriate.

4. Responding to buyer requests relative to the results of any due diligence and advising the Town as appropriate.

RSG would facilitate coordination with escrow and title, including outreach to the escrow company to get an escrow number and agent assigned for the transaction, coordination with the Town Finance Department and developer on the wiring instructions on a timely basis, and generally oversee and manage due diligence and schedule as required for the Town as seller.

ADVISORY SERVICES
As requested by the Town, RSG can provide general real estate advisory services including but not limited to pro forma analysis, market studies, document review, relocation services, and other activities.

Page 195 of 259 ends

Exhibit “B”-1
EXHIBIT "B"

FEE SCHEDULE
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Riverside-San Bernardino-Ontario.

FEE SCHEDULE
Given the nature of the work, this proposal describes the general activities RSG would perform on behalf of the Town to meet these objectives. Each transaction may entail different and unpredictable activities and time which make it difficult to provide a fixed fee for any such services with confidence. In our experience, disposition services can range from $20,000 to over $100,000 per transaction depending on many factors; acquisition services can be even more due to the nature of site selection. This excludes costs for relocation and due diligence.

RSG is proposing to charge for these fees on a time and materials basis in accordance with our fee schedule below.

Our Billing Rates are as follows:
 Principal / Director $275
 Senior Associate $200
 Associate $185
 Senior Analyst $150
 Analyst $135
 Research Assistant $125
 Technician $100
 Clerical $60
RSG does not charge clients for travel or mileage (except direct costs related to field work/surveys), parking, standard telephone/fax expenses, general postage, or incidental copies.

However, we do charge for messenger services, overnight shipping/express mail costs and teleconferencing services. We also charge for copies of reports, documents, notices, and support material more than five (5) copies. These costs are charged back at the actual expense plus a 10% surcharge.

RSG issues monthly invoices payable upon receipt, unless otherwise agreed upon in advance.

Invoices identify tasks completed to date, hours expended and the hourly rate.

Page 196 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: APPROVAL TO NAME THE MAIN BUILDING AT THE APPLE VALLEY GOLF COURSE THE “APPLE VALLEY COMMUNITY AND EVENT
CENTER”
From: Douglas Robertson, Town Manager
Submitted by: Debbie Rivera, Parks & Recreation Manager Parks and Recreation
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
That the Town Council approve naming the main building at the Apple Valley Golf Course the “Apple Valley Community and Event Center” and to add signage to the building.

BACKGROUND
As a former country club, the Apple Valley Golf Course was privately owned and operated since 1948. In September 2008, the Town purchased the club to ensure it remained open to residents. However, in order to bring the golf course and adjacent facilities into compliance with the Americans with Disabilities Act (ADA), the Town completed significant accessibility updgrades this past year. The project included exterior accessibility upgrades to the parking areas, tennis courts, golf course restrooms at holes 5 and 15, and construction of new accessible pathways. Clubhouse upgrades were made to the buildings main restrooms, the Llyod Mangrum restrooms and exterior courtyard doors, the interior concrete ramp leading to the dining area, and the front and rear doors.

Lastly, the project included the installation of two accessible water stations at the tennis court and near the pro shop.

In August 2023, the Parks and Recreation Commission approved the new naming and signage.

ANALYSIS
The main building at the Golf Course, which includes the restaurant space, the pro shop, and the Lloyd Mangrum Room, is currently being upgraded. In January 2023, Town Council approved the Golf Course Accessibility Project to make accessibility

Page 197 of 259 ends

improvements throughout the golf course for community center use. These and other modifications are to improve the building’s use as a recreation facility for programing and events offered to our community. The Lloyd Mangrum room will be utilized as the first rentable space at the Community and Event Center. Moreover, tenant improvements are currently underway at the restaurant space by a private operator to open The Bistro Café in February 2024.

FISCAL IMPACT
No fiscal allocation is required at this time. Future expenses, including signage, will be determined under separate budget approval.

ATTACHMENTS
None

Page 198 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: APPROVAL OF THE AVUSD JOINT USE AGREEMENT ADDENDUM

From: Douglas Robertson, Town Manager
Submitted by: Debbie Rivera, Parks & Recreation Manager Parks and Recreation
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
That the Town Council approve an addendum to the Apple Valley Unified School District (AVUSD) Joint Use Agreement. The addendum reflects a reduction in the number of program days AVUSD will participate and reimburse fees to the Town for the Day Camp Program each school year.

BACKGROUND
With the passage of AB 130, the State of California adopted the Expanded Learning Opportunities Program (ELO-P). “Expanded Learning” means before school, after school, summer, or intersession learning programs that focus on developing the academic, social, emotional, and physical needs and interests of pupils through hands-on, engaging learning experiences. It is the intent of the Legislature that expanded learning programs are pupil-centered, results driven, include community partners, and complement, but do not replicate, learning activities in the regular school day and school year. This program must be made available to all interested students, and when added to daily instruction, is no less than nine hours per instructional day.

AVUSD has been in a community partnership with the Town’s Parks & Recreation Department since January 2023 to operate and staff Day Camp programming. The proposed addendum reflects that AVUSD will cover the fees for a total of 35 days of Day Camp programming, down from the 40 days previously approved.

FISCAL IMPACT
Anticpated net revenues (revenues minus staff costs) will decrease approximately $1,129 due to the reduction of Day Camp program days the remainder of FY 2023-2024.

ATTACHMENTS
A. AVUSD Joint Use Agreement, Addendum 1

Page 199 of 259 ends

JOINT USE AGREEMENT

THE TOWN OF APPLE VALLEY
AND

APPLE VALLEY UNIFIED SCHOOL DISTRICT
Addendum 1
November 29, 2023
The following changes and additions set forth in this Addendum shall become a part of the Joint Use Agreement dated December 23, 2009 (“JUA”), between the Town of Apple Valley, hereinafter called TOWN, and the Apple Valley Unified School District, hereinafter called DISTRICT, for the purposes of operating the Town’s After School Activities Program on all school days, and the Day Camp program during designated intersessional periods: Fall Break (5), Winter Break (5), Spring Break (5), and Summer Break (20) for a total of 35 Day Camp days

1. ADDITIONAL FACILITIES COVERED
This Addendum adds the use of assigned School District Classrooms. Classrooms or other on-campus space for TOWN programs will be selected by the DISTRICT. As such, DISTRICT retains full ownership and responsibility for the maintenance of the buildings or spaces used in TOWN programs.

2. ADDITIONS

STUDENT REGISTRATION
Prior to program registration, the Town will ensure that all participants are enrolled in the District in the current school year, through the use of the student-provided Student Data Printout. The Town will not collect payments from District enrolled students.

The Town will coordinate all program registrations, and keep records of all registrations, attendance, and Student Data Printouts, to be provided to the District quarterly along with invoices, and when otherwise requested.

TOWN RESPONSIBILITIES
The TOWN is responsible for the provision of qualified staff to operate the programs. Staff must adhere to TOWN policy and regulations for employment. In addition, TOWN will endeavor to coordinate program operation to comply with the needs of the DISTRICT administration on each site where programs operate if they are DISTRICT facilities.

Page 1 of 2 ends

Page 200 of 259 ends

TOWN COMPENSATION
The Town will invoice the District quarterly, on the last business day, of March, June, September, and December. The District will provide payment to the Town for each registered participant, in the amounts listed below.

After School Activities Program:
$55 per student, per week.

Day Camp:

Full-Time: $139 per student, per week
Part-Time: $86 per student, per week
3 Days/Week: $91 per student, per week
Each subsequent school year the payment shall be automatically adjusted by a percentage amount equal to or less than the change in the cost of living index. For purposes of this agreement, the Riverside-San Bernardino-Ontario, CA Consumer Price Index for Urban Wage Earners and Clerical Workers will be used each April to determine the cost of living percentage for the previous twelve months.

3. OTHER PROVISIONS
Except as modified by this Addendum, all other provision of JUA shall remain in full force and effect.

IN WITNESS WHEREOF, The parties hereto have executed this addendum as of this day of , 2023
Apple Valley Unified School District Town of Apple Valley Trenae Nelson, Superintendent Doug Robertson, Town Manager Date of AVUSD Board Approval ATTEST
La Vonda M. Pearson, Town Clerk

APPROVED AS TO FORM

BEST BEST & KRIEGER
Thomas Rice, Town Attorney

Page 2 of 2 ends

Page 201 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: SECOND READING OF ORDINANCE 567 OF THE TOWN OF APPLE

VALLEY, CALIFORNIA, ADOPTING A MITIGATED NEGATIVE

DECLARATION AND A MITIGATION MONITORING AND

REPORTING PROGRAM PURSUANT TO THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT, AMENDING THE OFFICIAL
ZONING MAP IN TITLE 9 “DEVELOPMENT CODE” OF THE TOWN OF APPLE VALLEY (ZONE CHANGE ZC 2022-005) FROM RESIDENTIAL AGRICULTURE (R-A) TO ESTATE RESIDENTIAL 3/4 (RE-3/4) ON 120 ACRES (APN: 0434-042-32), AND AMENDING TITLE 9
“DEVELOPMENT CODE” (DEVELOPMENT CODE AMENDMENT DCA
2022-003) TO MODIFY NOTE 17 FROM TABLE 9.28.040-A (1),
DECREASING THE LOT DEPTH STANDARD IN THE RE-3/4 ZONING

DISTRICT
From: Douglas Robertson, Town Manager
Submitted by: Daniel Alcayaga, Planning Manager
Planning
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Adopt Ordinance No. 567

BACKGROUND
At its November 14, 2023 meeting, the Town Council reviewed and introduced Ordinance 567 that amends the Town of Apple Valley Official Zone Map and Title 9, Development Code, as follows:
 Zone Change ZC 2022-005 from Residential Agriculture (R-A) to Estate Residential 3/4 (RE-3/4) for the 120 acres located on the northeast corner of Deep Creek and Del Oro Roads;
 Development Code Amendment DCA 2022-003 to modify Note 17 from Table

Page 202 of 259 ends

9.28.040-A (1) Minimum lot area of Section 9.28.040 of the Development Code. This provision applies to the Deep Creek area:
o The Amendments propose to modify Note 17 to state that projects proposed in the Deep Creek area shall be required to provide buffers along its perimeter, such as open space, large parkways, and equestrian trails, or perimeter lots of the same size or larger than the adjacent land use designation, or lands across the abutting street to minimize impacts to existing neighborhoods.
 Development Code Amendment DCA 2022-003 to decrease the lot depth from 275’ to 170’ in the RE-3/4 zoning district.

Ordinance No. 567 has been scheduled for adoption at the December 12, 2023 Town Council Meeting.

ENVIRONMENTAL ASSESSMENT
Based on the Initial Study, pursuant to the California Environmental Quality Act (CEQA), a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program have been prepared. The Mitigated Negative Declaration did not identify any significant impacts on the environment with respect to the proposed project.

ATTACHMENTS
A. Ordinance 567

Page 203 of 259 ends

ORDINANCE NO. 567

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF

APPLE VALLEY, CALIFORNIA, APPROVING AND ADOPTING

A MITIGATED NEGATIVE DECLARATION AND A MITIGATION

MONITORING AND REPORTING PROGRAM PURSUANT TO

THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND
APPROVING DEVELOPMENT CODE AMENDMENT DCA 2022-
003 TO MODIFY NOTE 17 FROM TABLE 9.28.040-A (1)
MINIMUM LOT AREA OF SECTION 9.28.040 OF THE

DEVELOPMENT CODE, DECREASE THE LOT DEPTH
STANDARD IN THE RE-3/4 ZONING DISTRICT, AND APPROVE
ZONE CHANGE ZC 2022-005 FROM RESIDENTIAL
AGRICULTURE (R-A) TO ESTATE RESIDENTIAL 3/4 (RE-3/4).

WHEREAS, The General Plan of the Town of Apple Valley was adopted by the Town Council on August 11, 2009; and
WHEREAS, Title 9 “Development Code” of the Municipal Code of the Town of Apple Valley was adopted by the Town Council on April 27, 2010; and WHEREAS, Title 9 “Development Code” of the Municipal Code of the Town of Apple Valley has been previously modified by the Town Council on the recommendation of the Planning Commission; and
WHEREAS, the Town received a request for amendments to the land use designation and zoning district, as well as approval of a tentative map that is specific to 120 acres located on the northeast corner of Deep Creek and Del Oro Roads (APN: 0434-042-32) (Project); WHEREAS, Development Code Amendment DCA 2022-003 and Zone Change ZC 2022- 005 are consistent with the General Plan and Municipal Code of the Town of Apple Valley; WHEREAS, On October 13, 2023, GPA 2022-007 was duly noticed in the Apple Valley News, a newspaper of general circulation within the Town of Apple Valley. Pursuant to Section

9.13.030(9), a thirty-two (32) square foot sign was posted on the site adjacent to the public rightof-way with a description of the project and the location, date, time and place of the scheduled hearing; and
WHEREAS, On August 16, 2023 and September 6, 2023, the Planning Commission of the Town of Apple Valley conducted a duly noticed and advertised public hearing for Development Code Amendment DCA 2022-003 and Zone Change 2022-005, receiving testimony from the public and adopted Planning Commission Resolution No. 2022-003 recommending adoption of Development Code Amendment DCA 2022-003 and Zone Change 2022-005; and WHEREAS, On October 24, 2023, the Town Council of the Town of Apple Valley conducted a duly noticed and advertised public hearing for Development Code Amendment DCA 2022-003 and Zone Change 2022-005, receiving testimony from the public and adopted Town Council Ordinance No. 2022-xx adopting Development Code Amendment DCA 2022-003 and Zone Change 2022-005; and

Page 204 of 259 ends

Ordinance 567
WHEREAS, Development Code Amendment DCA 2022-003 and Zone Change ZC 2022- 005 are consistent with the Land Use Element goals and policies of the Town’s General Plan and Title 9 “Development Code” of the Municipal Code of the Town of Apple Valley and shall promote the health, safety, and general welfare of the citizens of the Town of Apple Valley; and WHEREAS, based upon the State Guidelines to Implement the California Environmental Quality Act (CEQA), an initial study (IS) in compliance with CEQA has been prepared that determined the proposal would not have any adverse impacts that would be potentially significant.

As such, a Mitigated Negative Declaration has been prepared; and WHEREAS, pursuant to State CEQA Guidelines Section 15073, the Draft MND was circulated for a 30-day public review period from July 15, 2023 to August 15, 2023; and WHEREAS, during the public comment period, copies of the Draft MND, including technical appendices, were available for review and inspection at Town Hall and on the Town website; and
WHEREAS, the Final MND consists of the Draft MND, comments and responses on the draft MND, and the Mitigation Monitoring Reporting Program (MMRP); and WHEREAS, all the requirements of the Public Resources Code and the State CEQA Guidelines have been satisfied by the Town in connection with the preparation of the MND, which is sufficiently detailed so that all of the potentially significant environmental effects of the Project, as well, as feasible mitigation measures, have been adequately evaluated: and WHEREAS, all of the findings and conclusion made by the Town Council pursuant to this Ordinance are based upon the oral and written evidence presented to it as a whole and the entirety of the administrative record for the Project, which are incorporated herein by this reference, and not based solely on information provided in this Resolution; and WHEREAS, no comments made in the public hearing conducted by the Town Council, and no additional information submitted to the Town, have produced substantial new information requiring substantial revisions that would trigger recirculation of the MND or additional environmental review of the proposed Project under State CEQA Guidelines section 15073.5; and
WHEREAS, prior to taking action, the Town Council had heard, been presented with, reviewed and considered all of the information and data in the administrative record, including but not limited to the Initial Study, MND, comments on the MND received, all recommendations by staff, public testimony, and MMRP; and
WHEREAS, on the basis of the whole record, including the initial study and any comments received that there is no substantial evidence that the project will have a significant effect on the environment and that the Mitigated Negative Declaration reflects the Town Council’s independent judgment and analysis, and
WHEREAS, a copy of the Initial Study, may be obtained at: Town of Apple Valley, Planning Division, 14955 Dale Evans Pkwy., Apple Valley, CA 92307, and

Page 205 of 259 ends

Ordinance 567
NOW, THEREFORE, the Town Council of the Town of Apple Valley, State of California, does ordain as follows:

Section 1. The recitals above are true and correct and are hereby incorporated herein by this reference.

Section 2. Based upon substantial evidence presented to this Council during the abovereferenced October 24, 2024, hearings, including public testimony and written and oral staff reports, the Town Council of the Town of Apple Valley, California, finds and determines as follows and take the following actions:

A. The following are the Findings for an amendment to the Development Code and Zone Change as required under Section 9.06.060:

1. The proposed Amendment is consistent with the General Plan; and Comment: The Amendments will increase the Town’s housing stock while allowing new subdivisions with equestrian trails, buffers, development standards and installation of required infrastructure/public service to minimize impact to existing neighborhoods consistent with Policy 4.B, Program 4, Goal 3, Policy 3.A, Program 3.A.1, and Policy 2.B of the Land Use Element, as well as Policy 1.G of the Housing Element. The Town is demonstrating a commitment to reviewing the Development Code for possible amendments to reduce housing construction costs without sacrificing basic health and safety considerations consistent with Program 2.A.1 of the Land Use Element and Program 1.A.3 of the Housing Element.

2. The proposed Amendment will not be detrimental to the public health, safety or welfare of the Town or its residents.

Comment: The Amendments are intended to remove and modify language that will provide additional opportunities for housing while maintaining standards requiring new housing development to install infrastructure, including roadways and utilities, consistent with Policy 2.B of the Land Use Element.

The Amendments will continue to require increased setbacks, walls, berms, landscaping, incremental lot sizes, buffering features consistent with Program 3.A.1 of the Land Use Element.

Section 3. Section 9.28.040 of the Apple Valley Municipal Code is hereby amended to modify Note 17 from Table 9.28.040-A (1) Minimum lot area of Section 9.28.040 of the Development Code (added language in bolded and underlined):

The Amendments proposed to modify Note 17 to state that projects proposed in the Deep Creek area shall be required to provide buffers along its perimeter, such as open space, large parkways, and equestrian trails, or perimeter lots of the same size or larger than the adjacent land use designation, or lands across the abutting street to minimize impacts to existing neighborhoods.

Page 206 of 259 ends

Ordinance 567
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.

Page 207 of 259 ends

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

Page 208 of 259 ends

Ordinance 567

Page 209 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: EXTENDING THE TOWN’S DEADLINE TO ESTABLISH AN ONLINE

PERMITTING SYSTEM FOR POST-ENTITLEMENT PHASE PERMITS
IN ACCORDANCE WITH STATE LAW.

From: Douglas Robertson, Town Manager
Submitted by: Daniel Alcayaga, Planning Manager
Planning
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Adopt the resolution attached as Attachment 1, which will extend the Town’s deadline to establish an online permitting system for post-entitlement phase permits to January 1, 2026.

BACKGROUND
California Assembly Bill 2234 (“AB 2234”) took effect on January 1, 2023. AB 2234 added sections 65913.3 and 65913.3.5 to the Government Code and, most notably, extends elements similar to those of the Permit Streamlining Act to a local agency’s review of ministerial “post-entitlement phase permit” applications for housing development project.

Under AB 2234, post-entitlement phase permits are all nondiscretionary permits and reviews filed after the entitlement process has been completed that are required or issued by the local agency to begin construction of a development that will be at least two-thirds residential. Examples of post-entitlement phase permits include, but are not limited to: (i) building permits; (ii) permits of minor or standard off-site improvements; (iii) permits for demolition; or (iv) permits for minor or standard excavation and grading.

AB 2234 imposes numerous requirements on a local agency’s review and processing of a post-entitlement phase permit application, including: (1) posting application checklists and examples online; (2) time limits to determine whether an application is complete; (3) time limits to approve or deny an application; (4) providing an applicant

Page 210 of 259 ends

with the right to appeal the local agency’s decision; and (5) implementing an online permitting system.

This item before the Town Council this evening concerns item (5) above, AB 2234’s online permitting system requirement.

DISCUSSION
Among other things, AB 2234 requires local agencies that are located in counties with a population of 250,000 or greater to implement an online permitting system that allows applicants to apply for, check the status of, complete and retrieve post-entitlement phase permits. Local agencies in counties with a population of less than 250,000 are exempt from this online permitting system requirement.

For local agencies in counties with a population or 250,000 or greater, the deadline to comply with AB 2234’s online permitting system requirement is: (i) January 1, 2024 if the local agency has a population of 75,000 or greater or is located in a county with a population of 1.1 million or greater; or (ii) January 1, 2028 for all local agencies not covered by (1). The Town of Apple Valley, California is subject to the January 1, 2024 deadline because its population exceeds 75,000 and it is located in San Bernardino County which has a population exceeding 1.1 million people.

AB 2234 authorizes any local agency subject to the January 1, 2024 deadline to give itself an extension of up to two years (i.e., to January 1, 2026) if its legislative body does both of the following before January 1, 2024: (1) makes a written finding that adopting an online permitting system by January 1, 2024, would require substantial increases in permitting fees; and (2) has initiated a procurement process for the purpose of complying with the online permitting system requirement.

Implementing an online permitting system by the January 1, 2024 deadline would present several financial and logistical burdens for the Town that, in turn, would require a substantial increase in permitting fees. These include limited staff resources and it will need to contract for a program/service to implement an online permitting system.

The resolution attached as Attachment 1 makes the requisite findings and, if adopted by the Town Council, will extend the Town’s deadline to comply with AB 2234’s online permitting system requirement to January 1, 2026. As required by AB 2234, the resolution also includes a direction to staff to initiate the procurement process necessary to comply with this requirement. This process will be conducted in accordance with state law and the Town’s applicable procurement policies.

For the reasons provided above, staff recommends that the Town Council adopt the attached resolution.

FISCAL IMPACT
None.

Page 211 of 259 ends

ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines, adopting the resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

ATTACHMENTS
Resolution No. 2023-37

Page 212 of 259 ends

RESOLUTION NO. 2023-37

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF

APPLE VALLEY, CALIFORNIA EXTENDING THE DEADLINE TO
ESTABLISH AN ONLINE PERMITTING SYSTEM FOR POSTENTITLEMENT PHASE PERMITS UNDER CALIFORNIA GOVERNMENT CODE SECTION 65913.3.5 (AB 2234)
WHEREAS, California Assembly Bill 2234 (“AB 2234”) added sections 65913.3 and 65913.3.5 to the Government Code and took effect on January 1, 2023; and
WHEREAS, AB 2234 extends elements similar to those of the Permit Streamlining Act to a local agency’s review of ministerial “post-entitlement phase permit” applications for housing development projects; and WHEREAS, under AB 2234, a “post-entitlement phase permit” includes all nondiscretionary permits and reviews that are required or issued by the local agency after the entitlement process has been completed to begin construction of a development that is intended to be at least two-thirds residential. Examples include, among other things, building permits, demolition permits, and permits for minor or standard excavation and grading; and
WHEREAS, in addition to above, AB 2234 requires local agencies that are located in counties with a population of 250,000 or greater to implement an online permitting system that allows applicants to apply for, check the status of, complete and retrieve post-entitlement phase permits (local agencies in counties with a population of less than 250,000 are exempt from this online permitting system requirement); and
WHEREAS, for local agencies in counties with a population or 250,000 or greater, the deadline to comply with AB 2234’s online permitting system requirement is: (1) January 1, 2024 if the local agency has a population of 75,000 or greater or is located in a county with a population of 1.1 million or greater; or (2) January 1, 2028 for all local agencies not covered by (1); and WHEREAS, the Town of Apple Valley (“Town”) is subject to the January 1, 2024 deadline because its population exceeds 75,000 and it is located in San Bernardino County which has a population exceeding 1.1 million people; and WHEREAS, any local agency subject to the January 1, 2024 deadline may give itself an extension of up to two years (i.e., to January 1, 2026) if its legislative body does both of the following before January 1, 2024: (1) makes a written finding that adopting an online permitting system by January 1, 2024, would require substantial increases in permitting fees; and (2) has initiated a

Page 213 of 259 ends

Resolution 2023-37
procurement process for the purpose of complying with the online permitting system requirement; and
WHEREAS, the Town desires to extend its deadline to comply with AB 2234’s online permitting system requirement to January 1, 2026.

NOW, THEREFORE, the Town Council of the Town of Apple Valley, California does hereby resolve as follows:

SECTION 1. Recitals. The Town Council hereby finds and determines that the recitals above are true and correct and are each incorporated by reference and adopted as findings by the Town Council.

SECTION 2. CEQA. The Town Council hereby finds that the adoption of this resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly SECTION 3. AB 2234 Findings; Direction to Staff. In accordance with Government Code section 65913.3.5(a)(2)(A)-(B):

1. Substantial Increase in Permitting Fees. The Town Council hereby finds that implementing an online permitting system by January 1, 2024 would require substantial increases in the Town’s permitting fees because the Town has limited staff resources and it will need to contract for a program/service to implement an online permitting system.

2. Initiation of Procurement Process. The Town Council hereby directs staff to initiate the procurement process necessary to comply with AB 2234’s online permitting system requirements. Such process shall be in accordance with state law and the Town’s applicable procurement policies.

SECTION 4. Extension. The Town Council hereby elects to extend its deadline to implement an online permitting system to January 1, 2026.

SECTION 5. Effective Date. This resolution shall become effective immediately upon its adoption.

SECTION 6. Certification. The Town Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

SECTION 7. Severability.If any provision of this resolution or the application thereof to any person or circumstance is held invalid, such invalidity

Page 214 of 259 ends

Resolution 2023-37
shall not affect other provisions or applications, and to this end the provisions of this resolution are declared to be severable.

APPROVED AND ADOPTED this 12th day of December, 2023.
_________________________________
Scott Nassif, Mayor
ATTEST
_________________________________
Ms. La Vonda M-Pearson, Town Clerk

Page 215 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: INTRODUCE ORDINANCE NO. 568 - AN ORDINANCE OF THE TOWN

COUNCIL OF THE TOWN OF APPLE VALLEY, CALIFORNIA,
AMENDING SECTION 6.20.250 OF THE APPLE VALLEY MUNICIPAL

CODE RELATING TO THE PLACEMENT, USE, AND REGULAR

SERVICE OF TRASH BINS/DUMPSTERS WITHIN THE TOW

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

RECOMMENDED ACTION
A. Find the proposed adoption of Ordinance No. 568 is not subject to and is exempt from CEQA based upon a finding that, under section 15061(b)(3) of the CEQA Guidelines, it can be seen with certainty that there is no possibility that the proposed amendment may have a significant effect on the environment.

B. Move to waive the reading of Ordinance No. 568 in its entirety and read by title only.

C. Move to introduce Ordinance No. 568 amending Section 6.20.250 of the Apple Valley Municipal Code relating to the placement, use, and regular service of trash bins/dumpsters.

SUMMARY
It is necessary to review the language of the Town’s Municipal Code from time to time to ensure that it aligns with new State laws, the intent of Town Council’s goals, directives, and best business practices, as determined by professional and expert staff. This amendment serves to amend Section 6.20.250, titled “Placement of trash bins/dumpsters; screened” based on an increased number of complaints and anecdotal observations made by Town Council, Town leadership, and Town staff. This item and the proposed amendment are meant to address concerns related to the use and placement of the larger trash receptacles, including metal sided trash bins and dumpsters. Besides the prevalent

Page 216 of 259 ends

practice of improper use and decreased recycling efforts by end users, which increases the costs of processing to all customer classes, these bins and dumpsters are often left roadside, frequently creating traffic hazards and visual blight. The intent of this amendment is to address the concerns of the Town’s residents and Town Council in an effort to control the costs of waste processing and disposal, enhance the quality of life in the Town, and protect the health, safety, and welfare of Town residents. The amendment primarily addresses the problem through a prohibition of use and regular service of these bins/dumpsters in single-family residential areas.

BACKGROUND
Over the last two years, the Code Enforcement Division has issued 189 notices of violation to residents for failure to remove their bin/dumpster from the public right of way.

The presence of these bins/dumpsters in the right-of-way pose a reoccurring nuisance and are a hazard to motorists, bicyclists, and pedestrians alike traveling on the roadways throughout the Town of Apple Valley, many of which are without sidewalks and designated bike paths. Additionally, the presence of these bins/dumpsters in plain view also present an unsightly obstruction to the rural desert beauty of the Town and could potentially detract from property values. Bins/dumpsters left in the public right-of-way have also led to other issues such as the presence of vectors, pests, and illegal scavenging. Illegal scavenging in bins/dumpsters left in the public right-of-way contributes to additional blowing trash in the roadways because those engaged in such activities are often careless, leaving discarded materials on the ground. Empty bins/dumpsters left in the right-of-way for longer than necessary also pose a danger to children, who may climb into the bin/dumpster to hide. Lastly, bins/dumpsters left in the public right-of-way create an opportunity for vandals to deface them with graffiti while they are left out, increasing the cost to the contractor and contributing to blight in the Town.

With over 3,500 active residential bin/dumpster accounts, both the Town’s franchise solid waste hauler and the most recent data have indicated a higher than average incidence of waste contamination in single-family residential accounts with regular service of trash bins/dumpsters. One reason is that customers who have bins/dumpsters use them for commingled recyclables and organics and often do not use their blue recycling or green organics carts. A failure to properly segregate waste has a direct negative impact on the cost of waste processing and disposal that is passed down to rate payers. The improper or inadequate sorting of waste is also a detriment to the Town’s recycling organics diversion rates and hinders the Town’s ability to comply fully with state regulations like SB 1383.

After receiving notices of violation, many Town residents that were issued these notices chose to not comply and received citations or even had the bin/dumpster removed by the contractor at the request of Town Code Enforcement for being non-responsive. Many of the residents who were contacted during initial enforcement efforts stated they were unable to move the bin without risk of injury to themselves or that they were completely incapable of moving the bins/dumpsters, therefore requiring they leave it in the public right-of-way. In almost all cases, Town staff and the Town’s franchise waste hauler were able to “right-size” the account, providing them with a level of service that was adequate for their needs and at a lower cost to the customer than the cost of the service provided for the bin/dumpster. Additionally, the Town provides bi-monthly Community Clean-Up

Page 217 of 259 ends

Events and curbside bulky item pick-ups for Town residents to dispose of large quantities of trash or larger sized items that do not fit in carts or bins.

This amendment aligns the Town’s Municipal Code with Town’s waste diversion goals and recent concerns of both Town Council and Town residents as it relates to the inherent hazards associated with bins/dumpsters left in the public right-of-way. It also preserves the underlying, pre-existing solid waste code sections that are specific and unique to our Town and none of the proposed changes intends to alter the Town Council’s overarching intent of the Code itself.

FISCAL IMPACT
None.

ATTACHMENTS
Ordinance No. 568
Exhibit A – Proposed amended Town of Apple Valley Municipal Code Section 6.20.250 Exhibit B – Redline version, inclusive of all changes to Section 6.20.250

Page 218 of 259 ends

ORDINANCE NO. 568

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF
APPLE VALLEY, CALIFORNIA, AMENDING SECTION 6.20.250

OF THE APPLE VALLEY MUNICIPAL CODE RELATING TO THE

PLACEMENT, USE, AND REGULAR SERVICE OF TRASH

BINS/DUMPSTERS WITHIN THE TOWN OF APPLE VALLEY
WHEREAS, State recycling law, Assembly Bill 939 of 1989, the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000, et seq., as amended, supplemented, superseded, and replaced from time to time), requires cities and counties to reduce, reuse, and recycle (including composting) solid waste generated in their local jurisdictions to the maximum extent feasible before any incineration or landfill disposal of waste, to conserve water, energy, and other natural resources, and to protect the environment; and
WHEREAS, State recycling law, Assembly Bill 341 of 2011, places requirements on businesses and multi-family property owners that generate a specified threshold amount of solid waste to arrange for recycling services and requires local jurisdictions to implement a mandatory commercial recycling program; and WHEREAS, State organics recycling law, Assembly Bill 1826 of 2014, requires businesses and multi-family property owners that generate a specified threshold amount of solid waste, recyclable materials, and organic waste per week to arrange for recycling services for that waste, requires local jurisdictions to implement a recycling program to divert organic waste from businesses subject to the law, and requires local jurisdictions to implement a mandatory commercial organics recycling program; and WHEREAS, SB 1383 (Chapter 395, Statutes of 2016) directed the California Department of Resources Recycling and Recovery (“CalRecycle”) to adopt regulations to reduce organic waste by 50 percent from its 2014 baseline level by 2020 and 75 percent by 2025; and
WHEREAS, SB 1383 also requires the regulations to recover, for human consumption, at least 20 percent of edible food that is currently thrown away; and WHEREAS, CalRecycle promulgated regulations as directed in SB 1383 in Chapter 12 (Short-Lived Climate Pollutants) of Division 7 of Title 14 of the California Code of Regulations (“SB 1383 Regulations”); and
WHEREAS, the SB 1383 Regulations took effect January 1, 2022, and require the Town of Apple Valley (the “Town”) to adopt an ordinance to enforce the SB 1383 Regulations; and
WHEREAS, the Town Council desires to amend its current Solid Waste Regulations Ordinance within Chapter 6.20 of the Apple Valley Municipal Code to comply with the SB 1383 Regulations; and

Page 219 of 259 ends

Ordinance No. 568
WHEREAS, the Town Council recognizes the need to ensure proper placement, use, and regular service of trash bins/dumpsters for the benefit of the community, and WHEREAS, the existing Municipal Code Section 6.20.250 governing the placement, use, and regular service of trash bins/dumpsters needs to be updated to align with current standards and community requirements.

NOW, THEREFORE, the Town Council of the Town of Apple Valley does ordain as follows:

Section 1. The recitals set forth above and the findings set forth in the staff report accompanying the introduction of this Ordinance are true and correct and are hereby incorporated by reference and adopted as findings in support of this Ordinance as if fully set forth herein.

Section 2. Section 6.20.250 of the Apple Valley Municipal Code is hereby amended in its entirety as set forth in Exhibit “A,” attached hereto and incorporated herein by this reference.

Section 3. Severability. If any section, subsection, clause, or phrase in this Ordinance or the application thereof to any person or circumstances is for any reason held invalid by a court of competent jurisdiction, the validity of the remainder of this Ordinance or the application of such provisions to other persons or circumstances shall not be affected thereby. The Town Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses, or phrases or the application thereof to any person or circumstance be held invalid.

Section 4. Compliance with California Environmental Quality Act. This Ordinance has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA) and the State CEQA Guidelines and it has been determined that this Ordinance is exempt from further environmental review, as it is not a “project” and has no potential to result in a direct or reasonably foreseeable indirect physical change to the environment. 14 Cal. Code Regs. § 15378(a). Further, this Ordinance is exempt from CEQA as there is no possibility that this Ordinance or its implementation would have a significant negative effect on the environment. 14 Cal.

Code Regs. § 15061(b)(3).

Section 5. Notice of Adoption. The Town Clerk of the Town of Apple Valley shall certify to the adoption of this ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the Town in a manner permitted under Section 36933 of the Government Code.

Section 6. Effective Date. This Ordinance shall take effect and be in full force thirty (30) days after its adoption.

APPROVED, and ADOPTED by the Town Council of the Town of Apple Valley, California, at a regular meeting held on the 9
th day of January, 2024,

Page 220 of 259 ends

Ordinance No. 568
Scott Nassif, Mayor
ATTEST:
______________________________
La Vonda M-Pearson, Town Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
______________________________ ________________________________ Thomas Rice, Town Attorney Douglas B. Robertson, Town Manager

Page 221 of 259 ends

EXHIBIT A

6.20.250 Placement, use and regular service of trash bins/dumpsters. (a) All bins/dumpsters shall be located out of easement areas, public rights-of-way, and the clear sight triangle.
(b) Bins/dumpsters and their enclosures shall not be located in a manner that requires a hauler to park perpendicular to the roadway while emptying them. (c) All bin/dumpster enclosure locations must be approved and built in accordance with the Town of Apple Valley Development Code, Title 9 of this Code. (d) Every person utilizing bin/dumpster service shall sign a liability waiver form. (e) Paved access to bins/dumpsters or their enclosures shall not be required. However, when a dumpster cannot be serviced because of inadequate access, the dumpster may be replaced with containers, or paving may be required. (f) Commercial and industrial use.
(1) Existing commercial or industrial-use property shall be evaluated with each tenant improvement application to determine if an intensification of use is to occur. Upon the determination of an intensified or expanded use, then installation of a masonry block enclosure will be required prior to the issuance of a certificate of occupancy.
(2) In the event there is inadequate space behind the structure or paved access does not exist for the placement of dumpsters and/or enclosures behind the setbacks, an application for approval may be submitted to the Town of Apple Valley Planning Department to place a dumpster enclosure within the required setbacks.
(g) Multifamily residential use.
(1) All existing multifamily residential property shall be required to enclose bins/dumpsters in accordance with the Town of Apple Valley Development Code, Title 9 of this Code.
(2) In the event there is inadequate space behind the structure or paved access does not exist for the placement of bins/dumpsters or the construction of enclosures behind the setbacks, an application for approval may be submitted to the Town of Apple Valley Planning Department to place a dumpster enclosure within the required setbacks.
(3) As an alternative to properly constructed and located enclosures, multifamily residential properties may use trash carts as provided by the Town’s franchise solid waste hauler at a minimum ratio of one black solid waste container, one blue recyclable materials container, and one green organic materials container per residential unit. Multifamily residential properties with five or more units shall be required to also segregate their green and food waste separately into a green organic materials container and beige green waste container. Approval from the Town Manager or their designee is required on a case by case basis, dependent on space constraints and compliance with the intent of this Chapter.

Page 222 of 259 ends

Ordinance No. 568
(4) For multifamily residential developments, annual inspections of compliance will occur at the time of the property maintenance inspection conducted by the Town, pursuant to Chapter 8.34 of this Code.
(h) Single-family residential use.
(1) Regular bin/dumpster service shall be prohibited for single-family residential use for a period greater than seven (7) days per calendar year, except as authorized by the Town Manager or their designee for temporary use and for a period not greater than thirty (30) days per calendar year or as allowed in the following paragraphs.
(i) Single-family residential properties two and one-half acres or greater may obtain regular bin/dumpster service in lieu of trash carts and shall be maintained in accordance with subsection (h)(2) of this Section. (ii) Upon approval of the Town Manager or their designee and confirmed keeping of animals including farm animals, horses, or similar where permissible pursuant to Table 15.01.125A, single-family residential properties may obtain regular bin/dumpster service when such service is necessary to dispose of large quantities of feces and shall be maintained in accordance with subsection (h)(2) of this Section.
(iii) Single-family residential properties under construction or remodeling with an active building permit and where a bin is necessary for the disposal of large quantities of construction waste may use a bin/dumpster in lieu of carts and shall be maintained in accordance with subsection (h)(2) of this Section. (2) A bin/dumpster shall not be stored in the Town’s right-of-way, on the frontage street, or directly in front of the residence and only in a manner as follows. (i) The bin may be located behind the residence;
(ii) The bin may be located against the residence wall or a garage wall in a designated side yard; or
(iii) The bin may be located so that it is behind the front yard setback. (3) Residents authorized for exception to subsection (h)(1) by the Town shall pay the rate as set forth by the franchise solid waste hauler, as may be adjusted from time to time by resolution of the Town Council.
(4) For the purposes of this Section, a legal nonconforming use is one which lawfully existed prior to the effective date of this subsection. The continuance of the legal nonconforming use will be allowed for any single-family residence with an existing enclosure constructed prior to February 26, 1998. If a legal nonconforming use is discontinued for thirty (30) consecutive days or longer, it shall lose its legal nonconforming status hereunder.
(i) Nothing in this Section shall be construed to relieve a bin/dumpster service customer from the required organics diversion or recycling services pursuant to this Chapter. (j) Failure to comply with any of the provisions of this Chapter 6.20 shall result in the removal of the bin/dumpster.

Page 223 of 259 ends

Ordinance No. 568
(k) Minimum clearance. All bins/dumpsters are required to be located a minimum of five feet from all combustible construction.
(l) New construction. Nothing in this Section shall nullify or supersede an ordinance or standard for enclosures for bin/dumpster placement or construction for new construction. The placement of bins/dumpsters and enclosure standards herein shall apply to existing commercial, industrial, multifamily residential, and single-family residential premises.

Page 224 of 259 ends

6.20.250 - Placement, use and regular service of trash bins/dumpsters; screened. (a)
(a) All bins/dumpsters shall be located out of easement areas, public rights-of-way, and the clear sight triangle.
(b)
(b) DumpstersBins/dumpsters and their enclosures shall not be located in a manner that requires a hauler to park perpendicular to the roadway while emptying them. (c)
(c) All bin/dumpster enclosure locations must be approved and built to Town standardsin accordance with the Town of Apple Valley Development Code, Title 9 of this Code. (d)
(d) Every person utilizing bin/dumpster service shall sign a liability waiver form. (e)
(e) Paved access to bins/dumpsters or their enclosures shall not be required. However, when a dumpster cannot be serviced because of inadequate access, the dumpster may be replaced with containers, or paving may be required. (f)
Failure to comply with the provisions of this Chapter shall result in the removal of the dumpster.
(g)
In the event that a property has adequate space and access, a dumpster may be left unenclosed and placed behind the structure where it is not visible from the frontage street. (h)
(f) Commercial and industrial use.
(1)
(1) Existing commercial or industrial-use property shall be evaluated with each tenant improvement application to determine if an intensification of use is to occur. Upon the determination of an intensified and/or expanded use, then installation of a masonry block enclosure will be required to be installed to the Town standards prior to the issuance of a certificate of occupancy.

Page 225 of 259 ends

(2)
(2) In the event there is inadequate land areaspace behind the structure or paved access does not exist for the placement of dumpsters and/or enclosures behind the setbacks, an application for approval may be applied forsubmitted to the Town of Apple Valley Planning Department to place a dumpster enclosure within the required setbacksetbacks.
(i)
(g) Multifamily residential use.
(1)
(1) All existing multifamily residential property shall be required to enclose bins per Town standards/dumpsters in accordance with the Town of Apple Valley Development Code, Title 9 of this Code.
(2)
(2) In the event there is inadequate land areaspace behind the structure, or paved access does not exist for the placement of bins/dumpsters or the construction of enclosures behind the setbacks, an application for approval may be applied forsubmitted to the Town of Apple Valley Planning Department to place ana dumpster enclosure within the setbackrequired setbacks. (3)
(3) As an alternative to properly constructed and located enclosures, multifamily residential properties may use containerstrash carts as provided by the Town’s franchise solid waste hauler at a minimum ratio of one black solid waste container and, one blue recyclable materials container, and one green organic materials container per residential unit. The Town Manager or his or her designee may, upon petition by the property owner, consider alternative numbers of the blue recyclable materials containers.Multifamily residential properties with five or more units shall be required to also segregate their green and food waste separately into a green organic materials container and beige green waste container.

Approval from the Town Manager or their designee is required on a case by case basis, dependent on space constraints and compliance with the intent of this Chapter.
(4)

Page 226 of 259 ends

(4) For multifamily residential developments, annual inspections of compliance will occur at the time of the property maintenance inspection conducted by the Town, pursuant to Chapter 8.34 of this Code.
(j)
(h) Single-family residential use.
(1)
(1) Regular bin/dumpster service shall be prohibited for single-family residential use for a period greater than seven (7) days per calendar year, except as authorized by the Town Manager or their designee for temporary use and for a period not greater than thirty (30) days per calendar year or as allowed in the following paragraphs.
(i) Single-family residential properties two and one-half acres or greater may obtain regular bin/dumpster service in lieu of trash carts and shall be maintained in accordance with subsection (h)(2) of this Section. (ii) Upon approval of the Town Manager or their designee and confirmed keeping of animals including farm animals, horses, or similar where permissible pursuant to Table 15.01.125A, single-family residential properties may obtain regular bin/dumpster service when such service is necessary to dispose of large quantities of feces and shall be maintained in accordance with subsection (h)(2) of this Section.
(iii) Single-family residential properties under construction or remodeling with an active building permit and where a bin is necessary for the disposal of large quantities of construction waste may use a bin/dumpster in lieu of carts and shall be maintained in accordance with subsection (h)(2) of this Section.
(2) Single-family residential use properties utilizingA bin/dumpster service shall not store the bin/dumpsterbe stored in the Town’s right-of-way, on the frontage street, or directly in front of the residence, except as otherwise allowed by this Section and only in a manner as follows.
(2)
Single-family residential properties less than two and one-half acres shall be required to located the bin/dumpster in accordance with one of the following:
(i)
(i) The bin may be located behind the residence; or

Page 227 of 259 ends

(ii)
(ii) The bin may be located against the residence wall or a garage wall in a designated side yard; or
(iii)
(iii) The bin may be located so that it abutsis behind the front yard setback. (3) Residents authorized for exception to subsection (h)(1) by the Town shall pay the rate as set forth by the franchise solid waste hauler, as may be adjusted from time to time by resolution of the Town Council.
(3)
Single-family residential properties two and one-half acres or more may place the bin/dumpster, with an enclosure, in front of the residence and in compliance with the Town of Apple Valley Development Code, Section 9.28.150.
(4)
(4) For purposethe purposes of this Section, a legal nonconforming use is one which lawfully existed prior to the effective date of this Subsectionsubsection. The continuance of the legal nonconforming use will be allowed for any single-family residence with an existing enclosure constructed prior to February 26, 1998. If a legal nonconforming use is discontinued for thirty (30) consecutive days or longer, it shall lose its legal nonconforming status hereunder. (5)
Single-family residential use properties that locate the bin behind the structure shall move the bin to the front of the property on collection day and replace it behind the structure after it is emptied.
(6)
(i) Nothing in this Section shall be construed to relieve a bin/dumpster service customerscustomer from the required organics diversion or recycling in accordance withservices pursuant to this Chapter.
(j) Failure to comply with any of the provisions of this Chapter 6.20 shall result in the removal of the bin/dumpster.
(k)
(k) Minimum clearance. All bins/dumpsters are required to be located a minimum of five feet from all combustible construction.

Page 228 of 259 ends

(i)
(l) New construction. Nothing in this ChapterSection shall nullify or supersede an ordinance or standard for enclosures for bin/dumpster placement or construction for new construction. The placement of bins/dumpsters and enclosure standards herein shall apply to existing commercial, industrial, multifamily residential, and single-family residential premises.

Page 229 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: APPROVE CAPITAL EQUIPMENT PURCHASE OF THE AUTOMATED

LICENSE PLATE READERS

From: Douglas Robertson, Town Manager
Submitted by: Lieutenant Josh Conley, San Bernardino County Sheriffs Department Finance
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
Approve purchase of Automated License Plate Reader (ALPR) equipment from Vigilant Solutions, LLC in the amount of $223,379.98 and approve budget amendment.

BACKGROUND
ALPR technology uses a combination of cameras and computer software to scan and record the license plates of passing vehicles. The cameras can be fixed (e.g., mounted to traffic lights), or mobile (e.g., mounted on vehicles). Images, referred to as detections, are stored in a companion database to be used for investigative purposes.

Various ALPR systems exist and have been considered for this project; however, the value in an ALPR system is largely measured by the volume and accessibility of its data to investigators. The rationale for selecting Vigiliant Solutions, LLC is the equipment’s reliability, but most importantly the data mining capability and analytics provided through Vigilant’s Law Enforcement Archival and Reporting Network (LEARN) database. Vigilant is the sole provider of the LEARN platform and its accompanying iOS and Android applications.

The LEARN database is a San Bernardino County Sheriff’s Department (SBCSD) standard and is in wide use throughout the county including the neighboring jurisdictions of Hesperia and Victorville. LEARN’s data is supplemented by private detections (i.e., tow recovery vehicles, private commercial ALPR readers, etc.) further increasing its value as an investigative tool. ALPR technology and the LEARN database have proven invaluable in investigating crimes, recovering stolen vehicles, and locating endangered or missing persons.

Page 230 of 259 ends

Some have expressed concerns over the collection and retention of ALPR data. ALPR data is Criminal Justice Information (CJI) and as such is governed by statute and policies intended to protect the information from improper use. Vigilant’s LEARN database is compliant with applicable CJI security controls. Because Vigilant / LEARN are the SBCSD standard, SBCSD has a policy in place that strictly governs access and use of ALPR technology and data.

ANALYSIS
The Apple Valley Police Department has an operational mandate to prevent, investigate, and prosecute criminal acitvity throughout the Town. ALPR cameras are a proven technological tool used by law enforcement agencies throughout California and the United States to solve crime faster. ALPR technology is a force multiplier and far superior to the alternative of placing personnel at these intersections to physically monitor traffic and identify target vehicles.

FISCAL IMPACT
An additional appropriation in the amount of $223,379.98 is necessary for the equipment purchase, installation, five-year warranty, and software licensing for the first year. The annual license renewal for year two and beyond will be approximately $6,070.00. This addition will be budgeted in the General Fund – Safety budget under capital equipment.

ATTACHMENTS
A. Quotes for the ALPR equipment at five locations.

Vigilant Solutions, LLC sole-source letter

Page 231 of 259 ends

Motorola Solutions Inc.
500 W. Monroe St
Chicago IL 60661
www.motorolasolutions.com
February 15, 2023
Re: License Plate Recognition Sole Source Justification To whom it may concern,
I am providing this letter as written confirmation of the ownership and market status of our license plate recognition (LPR) systems. Motorola Solutions is the sole manufacturer of our LPR products; CarDetector Mobile, Car-Detector Fixed, L5F (fixed), L5M (mobile), Reaper HD (fixed and mobile), L5Q, and L6Q (quick deploy) camera systems. Additionally, it is the sole provider of our Commercial Data investigative platform, Law Enforcement Archival Reporting Network (LEARN), LEARN Mobile, Mobile Companion (iOS and Android App), and the Target Alert Service (TAS).

We appreciate your consideration of expanding your relationship with and use of Motorola as your LPR provider. We are pleased to present you with the following elements to support a sole source justification for Motorola’s LPR hardware and LEARN.
● Motorola developed, owns and maintains the world’s single largest LPR data sharing initiative, known as LEARN. LEARN consists of over 40+ billion plate detections and is growing exponentially. This data consists of commercially collected LPR data owned by Motorola (Commercial Data), Private businesses, and HOAs (Enterprise Data) and detections from fellow law enforcement customers. This data is exclusively available for law enforcement customer investigations via LEARN.
● Commercial Data is significant, with over 20+ billion detections. These detections are critical to law enforcement investigators and are only available through Motorola Solutions. ● LEARN is the only LPR database hosted in an Azure.gov environment that is CJIS compliant. Of greater relevance, law enforcement hotlist information, such as FBI-NCIC data, that is managed by Motorola law enforcement customers, contains CJI as defined in 4.1 of the CJIS Security Policy. Effective March 21, 2022, the U.S. Department of Justice determined that NCIC LPR data contains personally identifiable information and meets the definition of Criminal Justice Information (CJI). For these reasons, Motorola has voluntarily implemented CJIS security controls we believe are necessary to comply with the relevant sections. ● LEARN features full auditing and reporting of all user and agency manager transactions within the LEARN system. Only agencies with an Originating Agency Identifier (ORI) number can access LEARN law enforcement data.
● Agency collected data access and retention policies are managed by the customer. Unlimited LPR data storage is offered at no additional cost to Motorola’s Public Safety customers, with no retention limits within the legal bounds of the respective state law. ● Motorola offers full data-sharing ownership and control to the individual customer. Motorola will not use law enforcement customer data for any purpose. LE Data will never be sold to thirdparties. ● Only Motorola offers in-app alerting in Mobile Companion. These include all hot-list and Excessive Plate detection.

Page 232 of 259 ends

Motorola Solutions Inc.
500 W. Monroe St
Chicago IL 60661
www.motorolasolutions.com
● Motorola’s LPR hardware can only be accessed by utilizing the LEARN server. Third-party LPR vendors cannot ingest our detections directly from our cameras. Conversely, we can consume competitors’ LPR data directly from their cameras or API. ● Motorola is the sole LPR provider to offer all of these investigative analytic tools to assist in developing leads in a law enforcement investigation in one place; o QuickSearch- Full & Partial plate, Smart Wildcard, Vehicle Type, Body Class, Make, Model, Year, Color, Registration State, and VIN searching. Only Vigilant offers VIN searching. o Stakeout- Define locations on a map (up to 30) using geo-boundaries to create groupings of detections. The groupings can show site visits of individual LPR vehicles and their detections.

Stakeout will show duplicated vehicles across multiple locations in a Common Plate Report. With a known target plate, associated vehicles can be identified. o Locate Analysis- Provides a full analytical workup of a vehicle based on location data. This analysis will provide location data and the most popular time the vehicle has been seen at the location.
o Location Vehicles- Allows users to quickly view 50 vehicles that were scanned before and after this unique detection. The user can adjust the number of viewable vehicles to 250. o Associated Vehicles- Quickly identify vehicles scanned within 250 feet of the selected vehicle at three or more locations, where each of the locations was separated by more than a mile. o Convoy Analysis- Quickly identify vehicles that may be following the selected vehicle through three or more fixed LPR locations and proactively create an alert if requested. Only Vigilant offers automatic alerting.
● New detections can be cross-referenced against user-defined Federal (NCIC), State, and local hotlists, allowing users to receive near real-time alerts in and outside their jurisdiction.

Motorola is the only LPR provider whose hotlists are directly shareable by the customer and have customizable hotlist user alerts. With Motorola, you can choose which users, get what alerts.
● Motorola is the sole LPR provider that utilizes the Vulcan AI Engine to determine Make, Model, Vehicle Type, and Color from new detections and analyze its existing database detections to create a comprehensive data set of hundreds of millions unique plates. ● Motorola is the sole LPR provider that offers free access to the Vigilant Solutions Law Enforcement Academy (VSLEA) for LPR training. This training is being provided via webinar, ondemand, or in-person. Motorola is the only LPR provider that offers CA POST and IADLEST certified LPR training classes.
● Motorola is the sole LPR provider to offer a complete end-to-end LPR solution. Multi-lens, multisensor cameras (Reaper HD, L5M, and L5F), single lens, single sensor, quick-deploy, solar cameras (L5Q and L6Q), as well as purpose built LPR trailers.

Best regards,
Nicole Talton
MSSSI Vice President

Page 233 of 259 ends

Vigilant Solutions, LLC
P.O Box 841001
Dallas, Texas 75202
(P) 925-398-2079 (F) 925-398-2113
Issued To: Apple Valley Station Police Department - Attn: Joy Ballinger Date: 06-23-23 Project Name: L5F - EB & WB Bear Valley Rd @ Central Rd Quote ID: ED4-0050-02 Camera Hardware
One Time Cost
Qty Item # Description
(3) VSF-025-L5F
More Info
$6,495.00 Each
L5F Fixed LPR Camera with Sun Shield - 25mm Lens with Camera Cable ● Dual-lens camera with infrared LEDs for plate illumination ● 55ft - 85ft capture distance and up to 2 lane coverage ● Internal trigger for capture of plate alphanumerics, vehicle make and model ● Camera housing with included sunshield is IP67 rated for reliable use in varied weather conditions
● 60' camera cable included
● Includes CarDetector LPR software for local server hosting ● LPR vehicle license plate scanning / real time alerting o Full suite of LPR tools including data analytics
Subtotal Price $19,485.00
(2) BCAV1F2-C600
$2,895.00 Each
Vigilant Fixed Camera Communications Box
● Manages power and communications for up to four (4) Vigilant fixed LPR cameras ● Includes modem for communication with cellular carriers o SIM Card not included
Subtotal Price $5,790.00
(3) VS-FX-UNI-POLEWALL-BRKT_REV_B
$350.00 Each
Fixed LPR Camera Bracket
● Pole or Wall Mount - UPR ARM ASSY POLE & WALL MOUNT BLK REV B Subtotal Price $1,050.00
(2) Solar Pole Power
Adaptor
$600.00 Each
Cobra Head Solar Senor Tap
Subtotal Price $1,200.00

Page 1 of 5 ends

Page 234 of 259 ends

Camera Licensing & LEARN Data Hosting
Annual Cost
Qty Item # Description
(1) VSBSCSVC-04
$825.00 Each
Vigilant LPR Basic Service Package for Hosted/Managed LPR Deployments ● Managed/hosted server account services by Vigilant
o Includes access to all LEARN or Client Portal and CarDetector software updates ● Priced per camera per year for over 60 total camera units ● Requires new/existing Enterprise Service Agreement (ESA) Subtotal Price $825.00
(1) VSPK1SVC-04
$345.00 Each
Vigilant LPR Standard Service Package for Hosted/Managed LPR Deployments ● Optional Service Package Benefits
o CarDetector Mobile Hit Hunter
o Unlimited access to Vigilant's Mobile Companion LPR application for Smartphones
● Priced per camera per year for over 60 total camera units o Requires Basic Service Package
Subtotal Price $345.00
Camera Extended Warranty
5 Years of Coverage
One Time Cost
Qty Item # Description
(3) CDFS-4HWW
$2,100.00 Each
Fixed Camera LPR System - Extended Hardware Warranty - Year 2 through 5 ● Fixed LPR System LPR hardware component replacement warranty ● Applies to 1-Channel hardware system kit
● Valid for 4 years from standard warranty expiration
Subtotal Price $6,300.00
Vigilant Technical Services
One Time Cost
Qty Item # Description
(2) SSU-SYS-COM
$995.00 Each
Vigilant System Start Up & Commissioning of 'In Field' LPR system ● Vigilant technician to visit customer site
● Includes system start up, configuration and commissioning of LPR system ● Includes CDM/CDF Training
● Applies to mobile (1 System) and fixed (1 Camera) LPR systems Subtotal Price $1,990.00

Page 2 of 5 ends

Page 235 of 259 ends

(1) VS-TRVL-01
$1,550.00 Each
Vigilant Travel via Client Site Visit
● Vigilant certified technician to visit client site
● Includes all travel costs for onsite support services Subtotal Price $1,550.00
Installation
Estimate
Qty Item # Description
(2) Installation
$3,500.00 Each
Installation (Estimate)
Subtotal Price $7,000.00
Delivery
One Time Cost
Qty Item # Description
(2) VS-SHP-02
$70.00 Each
Vigilant Shipping Charges - Fixed or Comms
● Applies to each fixed camera LPR System
● Or Communication Box Purchased without LPR System
● Shipping Method is FOB Shipping
Subtotal Price $140.00
(1) Sales Tax
$2,133.19 Each
Sales Tax of $27,525.00 @ 7.75% = $2,133.19
Subtotal Price $2,133.19
Quote Notes:

1. This Quote will expire in 90 Days from the date of the Quote.

2. All prices are quoted in USD and will remain firm and in effect for 90 days.

3. Returns or exchanges will incur a 15% restocking fee.

4. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.

5. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.

6. All hardware components to have standard One (1) year hardware warranty.

7. Compliance to local codes neither guaranteed nor implied.

8. This Quote is provided per our conversation & details given by you - not in accordance to any written specification.

9. This Quote does not include anything outside the above stated bill of materials.

10. MSI's Master Customer Agreement: https://www.motorolasolutions.com/en_us/about/legal.html (and all applicable addenda) shall govern the products & services and is incorporated herein by this reference.

11. Customer to provide data SIM Cards for each Comms Box (VLP)

Page 3 of 5 ends

Page 236 of 259 ends

Quoted by: Troy Sakaguchi - 657-447-9109 - [email protected] Total Price $47,808.19

Page 4 of 5 ends

Page 237 of 259 ends

Contract Terms Acknowledgement
This Contract Terms Acknowledgement (this “Acknowledgement”) is entered into between Vigilant Solutions, LLC, a Delaware corporation (“Vigilant”) and the entity set forth in the signature block below (“Customer”). Vigilant and Customer will each be referred to herein as a “Party” and collectively as the “Parties”.

1. Contract Terms Acknowledgement. Customer acknowledges that they have received Statements of Work that describe the services provided on this Agreement. Parties acknowledge and agree that the terms of the Master Customer Agreement (“MCA”), including all applicable Addenda, shall apply to the Services set forth in the accompanying Ordering Document. Vigilant's Terms and Conditions, available at https://www.motorolasolutions.com/en_us/about/legal.html, including the Master Customer Agreement, is incorporated herein by this reference. By signing the signature block below, Customer certifies that it has read and agrees to the provisions set forth in this Acknowledgement and the signatory to this Acknowledgement represents and warrants that he or she has the requisite authority to bind Customer to this Acknowledgement.

2. Entire Agreement. This Acknowledgement, including the accompanying Ordering Document, supplements the terms of the MCA, applicable Addenda, and Ordering Documents entered between the Parties and forms a part of the Parties’ Agreement.

3. Disputes; Governing Law. Sections 12 – Disputes of the MCA is hereby incorporated into this Acknowledgement mutatis mutandis.

4. Execution and Amendments. This Acknowledgement may be executed in multiple counterparts and will have the same legal force and effect as if the Parties had executed it as a single document. The Parties may sign in writing or by electronic signature. An electronic signature, facsimile copy, or computer image of a signature will be treated, and will have the same effect as an original signature, and will have the same effect, as an original signed copy of this document.

This Acknowledgement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The Parties hereby enter into this Acknowledgement as of the last signature date below.

Customer: ______________________________
Signature: ______________________________
Name: ______________________________
Title: ______________________________
Email: ______________________________
Date: ______________________________

Page 5 of 5 ends

Page 238 of 259 ends

Vigilant Solutions, LLC
P.O Box 841001
Dallas, Texas 75202
(P) 925-398-2079 (F) 925-398-2113
Issued To: Apple Valley Station Police Department - Attn: Joy Ballinger Date: 06-23-23 Project Name: L5F - EB & WB Bear Valley Rd @ Jess Ranch Parkway Quote ID: ED4-0047-02 Camera Hardware
One Time Cost
Qty Item # Description
(6) VSF-025-L5F
More Info
$6,495.00 Each
L5F Fixed LPR Camera with Sun Shield - 25mm Lens with Camera Cable ● Dual-lens camera with infrared LEDs for plate illumination ● 55ft - 85ft capture distance and up to 2 lane coverage ● Internal trigger for capture of plate alphanumerics, vehicle make and model ● Camera housing with included sunshield is IP67 rated for reliable use in varied weather conditions
● 60' camera cable included
● Includes CarDetector LPR software for local server hosting ● LPR vehicle license plate scanning / real time alerting o Full suite of LPR tools including data analytics
Subtotal Price $38,970.00
(2) BCAV1F2-C600
$2,895.00 Each
Vigilant Fixed Camera Communications Box
● Manages power and communications for up to four (4) Vigilant fixed LPR cameras ● Includes modem for communication with cellular carriers o SIM Card not included
Subtotal Price $5,790.00
(6) VS-FX-UNI-POLEWALL-BRKT_REV_B
$350.00 Each
Fixed LPR Camera Bracket
● Pole or Wall Mount - UPR ARM ASSY POLE & WALL MOUNT BLK REV B Subtotal Price $2,100.00
(2) Solar Pole Power
Adaptor
$600.00 Each
Cobra Head Solar Senor Tap
Subtotal Price $1,200.00

Page 1 of 5 ends

Page 239 of 259 ends

Camera Licensing & LEARN Data Hosting
Annual Cost
Qty Item # Description
(1) VSBSCSVC-04
$1,650.00 Each
Vigilant LPR Basic Service Package for Hosted/Managed LPR Deployments ● Managed/hosted server account services by Vigilant
o Includes access to all LEARN or Client Portal and CarDetector software updates ● Priced per camera per year for over 60 total camera units ● Requires new/existing Enterprise Service Agreement (ESA) Subtotal Price $1,650.00
(1) VSPK1SVC-04
$690.00 Each
Vigilant LPR Standard Service Package for Hosted/Managed LPR Deployments ● Optional Service Package Benefits
o CarDetector Mobile Hit Hunter
o Unlimited access to Vigilant's Mobile Companion LPR application for Smartphones
● Priced per camera per year for over 60 total camera units o Requires Basic Service Package
Subtotal Price $690.00
Camera Extended Warranty
5 Years of Coverage
One Time Cost
Qty Item # Description
(6) CDFS-4HWW
$2,100.00 Each
Fixed Camera LPR System - Extended Hardware Warranty - Year 2 through 5 ● Fixed LPR System LPR hardware component replacement warranty ● Applies to 1-Channel hardware system kit
● Valid for 4 years from standard warranty expiration
Subtotal Price $12,600.00
Vigilant Technical Services
One Time Cost
Qty Item # Description
(2) SSU-SYS-COM
$995.00 Each
Vigilant System Start Up & Commissioning of 'In Field' LPR system ● Vigilant technician to visit customer site
● Includes system start up, configuration and commissioning of LPR system ● Includes CDM/CDF Training
● Applies to mobile (1 System) and fixed (1 Camera) LPR systems Subtotal Price $1,990.00

Page 2 of 5 ends

Page 240 of 259 ends

(1) VS-TRVL-01
$1,550.00 Each
Vigilant Travel via Client Site Visit
● Vigilant certified technician to visit client site
● Includes all travel costs for onsite support services Subtotal Price $1,550.00
Installation
Estimate
Qty Item # Description
(2) Installation
$3,500.00 Each
Installation (Estimate)
Subtotal Price $7,000.00
Delivery
One Time Cost
Qty Item # Description
(2) VS-SHP-02
$70.00 Each
Vigilant Shipping Charges - Fixed or Comms
● Applies to each fixed camera LPR System
● Or Communication Box Purchased without LPR System
● Shipping Method is FOB Shipping
Subtotal Price $140.00
(1) Sales Tax
$3,724.65 Each
Sales Tax of $48,060.00 @ 7.75% = $3,724.65
Subtotal Price $3,724.65
Quote Notes:

1. This Quote will expire in 90 Days from the date of the Quote.

2. All prices are quoted in USD and will remain firm and in effect for 90 days.

3. Returns or exchanges will incur a 15% restocking fee.

4. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.

5. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.

6. All hardware components to have standard One (1) year hardware warranty.

7. Compliance to local codes neither guaranteed nor implied.

8. This Quote is provided per our conversation & details given by you - not in accordance to any written specification.

9. This Quote does not include anything outside the above stated bill of materials.

11. Customer to provide data SIM Cards for each Comms Box (VLP)

Page 3 of 5 ends

Page 241 of 259 ends

Quoted by: Troy Sakaguchi - 657-447-9109 - [email protected] Total Price $77,404.65

Page 4 of 5 ends

Page 242 of 259 ends

3. Disputes; Governing Law. Sections 12 – Disputes of the MCA is hereby incorporated into this Acknowledgement mutatis mutandis.

This Acknowledgement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The Parties hereby enter into this Acknowledgement as of the last signature date below.

Page 5 of 5 ends

Page 243 of 259 ends

Vigilant Solutions, LLC
P.O Box 841001
Dallas, Texas 75202
(P) 925-398-2079 (F) 925-398-2113
Issued To: Apple Valley Station Police Department - Attn: Joy Ballinger Date: 06-23-23 Project Name: L5F - EB & WB Yucca Loma Rd @ Apple Valley Rd Quote ID: ED4-0048-03 Camera Hardware
One Time Cost
Qty Item # Description
(4) VSF-025-L5F
More Info
$6,495.00 Each
L5F Fixed LPR Camera with Sun Shield - 25mm Lens with Camera Cable ● Dual-lens camera with infrared LEDs for plate illumination ● 55ft - 85ft capture distance and up to 2 lane coverage ● Internal trigger for capture of plate alphanumerics, vehicle make and model ● Camera housing with included sunshield is IP67 rated for reliable use in varied weather conditions
● 60' camera cable included
● Includes CarDetector LPR software for local server hosting ● LPR vehicle license plate scanning / real time alerting o Full suite of LPR tools including data analytics
Subtotal Price $25,980.00
(2) BCAV1F2-C600
$2,895.00 Each
Vigilant Fixed Camera Communications Box
● Manages power and communications for up to four (4) Vigilant fixed LPR cameras ● Includes modem for communication with cellular carriers o SIM Card not included
Subtotal Price $5,790.00
(4) VS-FX-UNI-POLEWALL-BRKT_REV_B
$350.00 Each
Fixed LPR Camera Bracket
● Pole or Wall Mount - UPR ARM ASSY POLE & WALL MOUNT BLK REV B Subtotal Price $1,400.00
(2) Solar Pole Power
Adaptor
$600.00 Each
Cobra Head Solar Senor Tap
Subtotal Price $1,200.00

Page 1 of 5 ends

Page 244 of 259 ends

Camera Licensing & LEARN Data Hosting
Annual Cost
Qty Item # Description
(1) VSBSCSVC-04
$1,100.00 Each
Vigilant LPR Basic Service Package for Hosted/Managed LPR Deployments ● Managed/hosted server account services by Vigilant
o Includes access to all LEARN or Client Portal and CarDetector software updates ● Priced per camera per year for over 60 total camera units ● Requires new/existing Enterprise Service Agreement (ESA) Subtotal Price $1,100.00
(1) VSPK1SVC-04
$460.00 Each
Vigilant LPR Standard Service Package for Hosted/Managed LPR Deployments ● Optional Service Package Benefits
o CarDetector Mobile Hit Hunter
o Unlimited access to Vigilant's Mobile Companion LPR application for Smartphones
● Priced per camera per year for over 60 total camera units o Requires Basic Service Package
Subtotal Price $460.00
Camera Extended Warranty
5 Years of Coverage
One Time Cost
Qty Item # Description
(4) CDFS-4HWW
$2,100.00 Each
Fixed Camera LPR System - Extended Hardware Warranty - Year 2 through 5 ● Fixed LPR System LPR hardware component replacement warranty ● Applies to 1-Channel hardware system kit
● Valid for 4 years from standard warranty expiration
Subtotal Price $8,400.00
Vigilant Technical Services
One Time Cost
Qty Item # Description
(2) SSU-SYS-COM
$995.00 Each
Vigilant System Start Up & Commissioning of 'In Field' LPR system ● Vigilant technician to visit customer site
● Includes system start up, configuration and commissioning of LPR system ● Includes CDM/CDF Training
● Applies to mobile (1 System) and fixed (1 Camera) LPR systems Subtotal Price $1,990.00

Page 2 of 5 ends

Page 245 of 259 ends

(1) VS-TRVL-01
$1,550.00 Each
Vigilant Travel via Client Site Visit
● Vigilant certified technician to visit client site
● Includes all travel costs for onsite support services Subtotal Price $1,550.00
Installation
Estimate
Qty Item # Description
(2) Installation
$3,500.00 Each
Installation (Estimate)
Subtotal Price $7,000.00
Delivery
One Time Cost
Qty Item # Description
(2) VS-SHP-02
$70.00 Each
Vigilant Shipping Charges - Fixed or Comms
● Applies to each fixed camera LPR System
● Or Communication Box Purchased without LPR System
● Shipping Method is FOB Shipping
Subtotal Price $140.00
(1) Sales Tax
$2,663.68 Each
Sales Tax of $34,370.00 @ 7.75% = $2,663.68
Subtotal Price $2,663.68
Quote Notes:

1. This Quote will expire in 90 Days from the date of the Quote.

2. All prices are quoted in USD and will remain firm and in effect for 90 days.

3. Returns or exchanges will incur a 15% restocking fee.

4. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.

5. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.

6. All hardware components to have standard One (1) year hardware warranty.

7. Compliance to local codes neither guaranteed nor implied.

8. This Quote is provided per our conversation & details given by you - not in accordance to any written specification.

9. This Quote does not include anything outside the above stated bill of materials.

11. Customer to provide data SIM Cards for each Comms Box (VLP)

Page 3 of 5 ends

Page 246 of 259 ends

Quoted by: Troy Sakaguchi - 657-447-9109 - [email protected] Total Price $57,673.68

Page 4 of 5 ends

Page 247 of 259 ends

3. Disputes; Governing Law. Sections 12 – Disputes of the MCA is hereby incorporated into this Acknowledgement mutatis mutandis.

This Acknowledgement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The Parties hereby enter into this Acknowledgement as of the last signature date below.

Page 5 of 5 ends

Page 248 of 259 ends

Vigilant Solutions, LLC
P.O Box 841001
Dallas, Texas 75202
(P) 925-398-2079 (F) 925-398-2113
Issued To: Apple Valley Station Police Department - Attn: Joy Ballinger Date: 06-23-23 Project Name: L6Q - EB & WB Highway 18 @ Apple Valley Rd Quote ID: ED4-0049-01 Camera Hardware
One Time Cost
Qty Item # Description
(2) VSF-L6Q-S-KIT
More Info
$6,495.00 Each
L6Q Quick Deploy Camera (Solar Kit)
Offer Includes:
● One (1) L6Q camera with two (2) Lex-11 high capacity internal batteries ● Solar Kit (45W solar panel, dual battery mounting bracket, charge controller, 12 Ah battery, Cable with M12 power connector)
● Camera mounting bracket
● USB-C cable and USB-C to USB-A adapter, Micro SD card ● Requirements
o Hosted LPR account for data storage, alerting, analytics and more o Enterprise Service Agreement
Optional, Sold Separately:
● 12VDC Power Pigtail
● 120V AC power supply
● Active SIM card with cellular data plan
Subtotal Price $12,990.00
Camera Licensing & LEARN Data Hosting
Annual Cost
Qty Item # Description
(1) VSBSCSVC-L6Q
$500.00 Each
Vigilant L6Q Service Package for Hosted/Managed LPR Deployments ● Vigilant L6Q Service Package for Hosted/Managed LPR Deployments Subtotal Price $500.00

Page 1 of 4 ends

Page 249 of 259 ends

Camera Extended Warranty
5 Years of Coverage
One Time Cost
Qty Item # Description
(2) CDFS-L6Q-HWW-04
$1,680.00 Each
Extended Hardware Warranty
● Fixed L6Q Camera System Extended Hardware Warranty
● Four (4) Additional Years (Years 2 through 5)
Subtotal Price $3,360.00
Technical Services
One Time Cost
Qty Item # Description
(2) SSU-SYS-L6Q-COM
$350.00 Each
System Start Up & Commissioning
● Includes configuration of L6Q Solar LPR system(s) and Solar Panel ● Includes install and alignment of L6Q on existing infrastructure ● Excludes Pole Installation
● Excludes Travel Costs
Subtotal Price $700.00
(1) VS-TRVL-01
$1,550.00 Each
Vigilant Travel via Client Site Visit
● Vigilant certified technician to visit client site
● Includes all travel costs for onsite support services Subtotal Price $1,550.00
Delivery
One Time Cost
Qty Item # Description
(2) VS-SHP-02
$70.00 Each
Vigilant Shipping Charges - Fixed or Comms
● Applies to each fixed camera LPR System
● Or Communication Box Purchased without LPR System
● Shipping Method is FOB Shipping
Subtotal Price $140.00
(1) Sales Tax
$1,006.73 Each
Sales Tax of $12,990.00 @ 7.75% = $1,006.73
Subtotal Price $1,006.73
Quote Notes:

1. This Quote will expire in 90 Days from the date of the Quote.

2. All prices are quoted in USD and will remain firm and in effect for 90 days.

Page 2 of 4 ends

Page 250 of 259 ends

3. Returns or exchanges will incur a 15% restocking fee.

4. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.

5. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.

6. All hardware components to have standard One (1) year hardware warranty.

7. This Quote is provided per our conversation & details given by you - not in accordance to any written specification.

8. This Quote does not include anything outside the above stated bill of materials.

9. MSI's Master Customer Agreement: https://www.motorolasolutions.com/en_us/about/legal.html (and all applicable addenda) shall govern the products & services and is incorporated herein by this reference.

10. Customer to provide data SIM Card for each camera

11. This quote does not include installation or modification of poles Quoted by: Troy Sakaguchi - 657-447-9109 - [email protected] Total Price $20,246.73

Page 3 of 4 ends

Page 251 of 259 ends

3. Disputes; Governing Law. Sections 12 – Disputes of the MCA is hereby incorporated into this Acknowledgement mutatis mutandis.

This Acknowledgement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The Parties hereby enter into this Acknowledgement as of the last signature date below.

Page 4 of 4 ends

Page 252 of 259 ends

Vigilant Solutions, LLC
P.O Box 841001
Dallas, Texas 75202
(P) 925-398-2079 (F) 925-398-2113
Issued To: Apple Valley Station Police Department - Attn: Joy Ballinger Date: 06-23-23 Project Name: L6Q - EB & WB Highway 18 @ Central Rd Quote ID: ED4-0051-01 Camera Hardware
One Time Cost
Qty Item # Description
(2) VSF-L6Q-S-KIT
More Info
$6,495.00 Each
L6Q Quick Deploy Camera (Solar Kit)
Offer Includes:
● One (1) L6Q camera with two (2) Lex-11 high capacity internal batteries ● Solar Kit (45W solar panel, dual battery mounting bracket, charge controller, 12 Ah battery, Cable with M12 power connector)
● Camera mounting bracket
● USB-C cable and USB-C to USB-A adapter, Micro SD card ● Requirements
o Hosted LPR account for data storage, alerting, analytics and more o Enterprise Service Agreement
Optional, Sold Separately:
● 12VDC Power Pigtail
● 120V AC power supply
● Active SIM card with cellular data plan
Subtotal Price $12,990.00
Camera Licensing & LEARN Data Hosting
Annual Cost
Qty Item # Description
(1) VSBSCSVC-L6Q
$500.00 Each
Vigilant L6Q Service Package for Hosted/Managed LPR Deployments ● Vigilant L6Q Service Package for Hosted/Managed LPR Deployments Subtotal Price $500.00

Page 1 of 4 ends

Page 253 of 259 ends

1. This Quote will expire in 90 Days from the date of the Quote.

2. All prices are quoted in USD and will remain firm and in effect for 90 days.

Page 2 of 4 ends

Page 254 of 259 ends

3. Returns or exchanges will incur a 15% restocking fee.

4. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.

5. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.

6. All hardware components to have standard One (1) year hardware warranty.

7. This Quote is provided per our conversation & details given by you - not in accordance to any written specification.

8. This Quote does not include anything outside the above stated bill of materials.

10. Customer to provide data SIM Card for each camera

11. This quote does not include installation or modification of poles Quoted by: Troy Sakaguchi - 657-447-9109 - [email protected] Total Price $20,246.73

Page 3 of 4 ends

Page 255 of 259 ends

3. Disputes; Governing Law. Sections 12 – Disputes of the MCA is hereby incorporated into this Acknowledgement mutatis mutandis.

This Acknowledgement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The Parties hereby enter into this Acknowledgement as of the last signature date below.

Page 4 of 4 ends

Page 256 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: APPROVAL TO INCREASE MONTHLY CAFETERIA BENEFIT

ALLOWANCE FOR HEALTH PREMIUMS
From: Douglas Robertson, Town Manager
Submitted by: Kristine Shoup, Human Resources Manager
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
That the Town Council approve staff recommendation to increase the total maximum cafeteria benefit allowance for premiums for insurance coverage from $760 to $1,110 per month to adjust for the rising cost of health plan premiums as well as add an additional $100 per month bilingual pay benefit for eligible employees.

BACKGROUND
The Human Resources department recently conducted a benefits survey of sixteen local agencies to gain a better understanding of the benefit programs being offered outside of the Town. The current cafeteria plan and cafeteria match was last updated in 2013 and was originally designed to cover the cost of employee only health, dental, and vision insurance fully with unused dollars able to be used toward dependent coverage. This plan has been more than adequate for many years; however, the rising cost of health insurance coverage has made it difficult to cover employee only health plans without going into the cafeteria match. In 2023, of the 101 employees currently taking Town health benefits, 29% of employee medical plan premiums (not including dental and vision premiums) were covered under the current cafeteria dollars without taking the additional cafeteria match. As of January 1, 2024, this will decrease to only 4%.

The recommended monthly increase of $350 would cover the 2024 premium increases for all medical plans as well as potential increases in 2025 and 2026. Additionally, this recommendation would not impact the additional cafeteria dollar for dollar match up to $340 or change the current cash out options of 50% of the remaining benefit up to $250 per month.

Page 257 of 259 ends

ANALYSIS
For the survey, the Human Resources department collected data on monthly employer contributions for medical, dental, vision and bilingual pay from the following local agencies:

The survey data suggests that the Town is below the market average of $1,571.93 for cafeteria benefits. While the recommended increase would still be less than the survey average, it will provide a needed boost for employees as well as help to attract qualified applicants in future recruitments.

Lastly, of the sixteen agencies surveyed, thirteen provide a monthly Bilingual Pay benefit of $100.

FISCAL IMPACT
Increasing the monthly cafeteria benefit allowance from $760 to $1,110 for the current amount of employees taking health coverage would have an additional cost of $35,350 per month ($424,200 annually) and would require an additional appropriation to the personnel budget. The addition of bilingual pay would be accounted for during the annual budget prep process for any qualified employee.

Page 258 of 259 ends

Town Council Agenda Report
Date: December 12, 2023
To: Honorable Mayor and Town Council
Subject: CLOSED SESSION

From: Douglas Robertson, Town Manager
Submitted by: Thomas Rice
Town Attorney
Budgeted Item: Yes No N/A

RECOMMENDED ACTION
A. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – PURSUANT TO PARAGRAPH (1) OF SUBDIVISION (D) OF GOVERNMENT CODE SECTION 54956.9: (1) Case No.: Civds1600180 – Town of Apple Valley Vs. Apple Valley Ranchos Water Company Et Al.; and (2) Town Of Apple Valley Vs. Apple Valley Ranchos Water Company, Et Al., Court Of Appeal Case No.

E078348

Page 259 of 259 ends

Apple Valley City CouncilDecember 12, 2023

Apple Valley City Council
December 12, 2023