Colma City Council
November 8, 2023

Regular Meeting Agenda 11.08.23 Page 1 of 2
A
GENDA

REGULAR MEETING

CITY COUNCIL OF THE TOWN OF COLMA
Wednesday, November 8, 2023
7:00 PM
The City Council meeting will be held in person in the Council Chambers as detailed below. As a courtesy and technology permitting, the meeting will also be held virtually via Zoom Video Conference. However, the Town cannot guarantee that the public’s access to the Zoom virtual platform will be uninterrupted, and technical difficulties may occur from time to time. In those instances, so long as the public may still attend the meeting in person, the meeting will continue.

To attend the meeting in person:

Town Hall, Council Chamber, 1198 El Camino Real, Colma CA 94014 Teleconference Location:

Main Lobby, Discovery Shores Boracay, Station 1 Barangay Balabag, Boracay Island, Malay, 5608 Aklan, Philippines
To participate in the meeting via Zoom Video Conference:

Join Zoom Meeting:
https://us02web.zoom.us/j/81289976261
Passcode: 074407
Meeting ID: 812 8997 6261
Dial by your location:
+1 669 900 6833 US (San Jose)
+
1 346 248 7799 US (Houston)
+1 253 215 8782 US (Tacoma)
+1 312 626 6799 US (Chicago)
+1 929 205 6099 US (New York)
+1 301 715 8592 US (Germantown)
To provide Public Comment in person:

Members of the public wishing to speak are requested to complete a yellow speaker card and submit it to the City Clerk. Comments should be kept to three minutes or less.

To provide Public Comment via Zoom Video Conference:

Live verbal public comments may be made by requesting to speak using the “raise hand” feature in Zoom or, if calling in by phone, by pressing *9 on the telephone keypad prior to the consent calendar being heard, or prior to the close of the public comment period for agenda items or non-agenda items. In response, the Town will unmute the speaker and allow them to speak up to three minutes.

To provide Public Comment in writing:

Members of the public may provide written comments by email to the City Clerk at [email protected]
before the meeting. Emailed comments should include the specific agenda item on which you are commenting or note that your comment concerns an item that is not on the agenda. The length of the emailed comment should be commensurate with the three minutes customarily allowed for verbal comments, which is approximately 250-300 words.

As a reminder, the Town cannot guarantee that the public’s access to the Zoom virtual platform will be uninterrupted, and technical difficulties may occur from time to time. Therefore, if you want to ensure you are able to attend the meeting and/or make public comment, you may wish to attend in person.

Regular Meeting Agenda 11.08.23 Page 2 of 2

PLEDGE OF ALLEGIANCE AND ROLL CALL

ADOPTION OF AGENDA

PRESENTATION
• Proclamation in Recognition of Arboretum Day
• Proclamation in Recognition of Veterans Day
• Halloween House Decorating Contest Award Recipients
• Annual Employee Appreciation Presentation

PUBLIC COMMENTS
Comments on the Consent Calendar and Non-Agenda Items will be heard at this time.

Comments on Agenda Items will be heard when the item is called.

CONSENT CALENDAR

1. Motion to Accept the Minutes from the October 25, 2023 Regular Meeting.

2. Motion to Approve Report of Checks Paid for October 2023.

3. Motion Approving and Authorizing the City Manager to Execute a Cooperative Agreement with the State of California Department of Transportation (Caltrans) for Funding for the Design, Environmental Review, and Construction of the Colma Creek Trash Capture Project Pursuant to CEQA Guideline 15306.

NEW BUSINESS

4. PARTICIPATION IN SECOND SOLAR COLLABORATIVE PROCUREMENT PROCESS Consider: Motion to Adopt a Resolution Approving the Town’s Participation in the Second Solar Collaborative Procurement Process Managed by Peninsula Clean Energy (PCE) for Solar Installation at Town Hall and Police Department and Approving and Authorizing the City Manager to Execute Necessary Documents for Participation in the Process Pursuant to CEQA Guidelines 15301 and 15303.

REPORTS
Mayor/City Council
City Manager

ADJOURNMENT
The City Council Meeting Agenda Packet and supporting documents are available for review on the Town’s website www.colma.ca.gov or at Colma Town Hall, 1198 El Camino Real, Colma, CA. Persons interested in obtaining an agenda via e-mail should call 650-997-8300 or email a request to [email protected].

Reasonable Accommodation
Upon request, this publication will be made available in appropriate alternative formats to persons with disabilities, as required by the Americans with Disabilities Act of 1990. Any person with a disability, who requires a modification or accommodation to view the agenda, should direct such a request to Pak Lin, ADA Coordinator, at 650-997-8300 or [email protected]. Please allow two business days for your request to be processed.

Minutes – Regular Meeting 10.25.23 Page 1 of 3

MINUTES

REGULAR MEETING
City Council of the Town of Colma
Town Hall Council Chamber
1198 El Camino Real, Colma CA
Also Accessible via Zoom.us
Wednesday, October 25, 2023
7:00 PM

PLEDGE OF ALLEGIANCE AND ROLL CALL
Mayor del Rosario called the meeting to order at 7:00 p.m.

Council Present – Mayor Joanne F. del Rosario, Vice Mayor John Irish Goodwin, Council Members Ken Gonzalez, Carrie Slaughter and Helen Fisicaro were all present.

Staff Present – City Manager Daniel Barros, City Attorney Christopher Diaz, Police Chief John Munsey, Administrative Services Director Pak Lin, Director of Public Works and Planning Brad Donohue, and City Clerk Caitlin were in attendance.

The Mayor announced, “Regarding Public Comment: Members of the public who are here in person are requested to complete a yellow speaker card and submit it to the City Clerk.

Those of you on Zoom may make public comments by using the “raise hand” feature in Zoom or, if calling in by phone, by pressing *9 on the telephone keypad. The City Clerk will unmute your microphone and allow you to speak. Comments should be kept to three minutes or less.”

ADOPTION OF THE AGENDA
Mayor del Rosario asked if there were any changes to the agenda. Vice Mayor Goodwin requested to pull #3. The Mayor asked for a motion to adopt the agenda with the requested changes.

A
ction: Council Member Fisicaro moved to adopt the agenda with the requested changes; the motion was seconded Council Member Slaughter by and carried by the following vote:

Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
Joanne F. del Rosario, Mayor 
John Irish Goodwin 
Ken Gonzalez 
Carrie Slaughter 
Helen Fisicaro 
5 0

PRESENTATIONS
Administrative Services Director Pak Lin introduced new Accounting Manager Jesse Bradley and new Human Resources Management Analyst Juan Rumayor.

Item #1
Minutes – Regular Meeting 10.25.23 Page 2 of 3

PUBLIC COMMENTS
Mayor del Rosario opened the public comment period at 7:05 p.m. Resident Thom Taylor made a comment made a comment regarding VinFast Autos’s sign permit. Resident and Member of the San Mateo County Commission on Aging Liz Taylor made a comment regarding a bus stop on Mission Road. The Mayor closed the public comment period at 7:14 p.m.

CONSENT CALENDAR

1. Motion to Accept the Minutes from the October 11, 2023 Special Meeting.

2. Motion to Accept the Minutes from the October 11, 2023 Regular Meeting.

3. [Pulled from Consent Calendar]

4. Motion to Adopt a Resolution Reappointing Laura Walsh to the Board of Trustees of the San Mateo County Mosquito and Vector Control District Pursuant to CEQA Guideline 15378.

5. Motion to Adopt a Resolution Adjusting Salary for Part-Time Staff to Meet the Minimum Wage Requirement Set Forth by the State of California and Amending the Salary Schedule, Pursuant to CEQA Guideline 15378.

Action: Council Member Gonzalez moved to approve the consent calendar 1, 2, 4 and 5; the motion was seconded by Vice Mayor Goodwin and carried by the following vote:

Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
Joanne F. del Rosario, Mayor 
John Irish Goodwin 
Ken Gonzalez 
Carrie Slaughter 
Helen Fisicaro 
5 0

3. Motion Accepting the Electric Vehicle Charging Infrastructure Installation Project at the Colma Community Center as Complete and Directing the Director of Public Works to File a Notice of Completion for the Project with the San Mateo County Recorder’s Office Pursuant to CEQA Guideline 15301 and 15303.

Vice Mayor Goodwin asked several questions. Director of Public Works Brad Donohue answered his questions.

Action: Vice Mayor Goodwin moved to accept the Electric Vehicle Charging Infrastructure Installation Project at the Colma Community Center as Complete and Direct the Director of Public Works to File a Notice of Completion for the Project with the San Mateo County Recorder’s Office Pursuant to CEQA Guideline 15301 and 15303; the motion was seconded by Council Member Gonzalez and carried by the following vote:

Minutes – Regular Meeting 10.25.23 Page 3 of 3
Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
Joanne F. del Rosario, Mayor 
John Irish Goodwin 
Ken Gonzalez 
Carrie Slaughter 
Helen Fisicaro 
5 0

COUNCIL CALENDARING
The next Regular Meeting will be on Wednesday, November 8, 2023 at 7:00pm at Town Hall.

REPORTS
City Manager Daniel Barros gave an update on the following topics:
 Staff has concluded the CCTV investigation of the sink hole on Junipero Serra Boulevard. On October 30, a crew will begin to dig down from the street.  There will be a Wine and Canvas event on October 26, 2023.  The annual Trunk of Treat event will be on October 26, 2023.  There will be a Dia de los Muertos on November 4, 2023.

ADJOURNMENT
Mayor del Rosario adjourned the meeting at 7:27 p.m.

Respectfully submitted,

Caitlin Corley
City Clerk

Page: 1Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor Status Clear/Void Date Amount PaidInvoice Inv. Date Check Total 03113 AIRGAS USA, LLC 9141979041C57305 228.3809/12/202310/06/202310/03/2023 228.38 03615 ALL INDUSTRIAL ELECTRIC SUPPLY 5296802C57306 2,296.0809/25/202310/06/202310/03/2023 2,296.08 00013 ANDY'S WHEELS & TIRES 66612C57307 909.5009/20/202310/06/202310/03/2023 909.50 00623 ARAMARK 5180255689C57308 15.9009/25/202310/06/202310/03/2023 15.90 00004 AT&T 000020525655C57309 1,587.6109/13/202310/10/202310/03/2023 1,587.61 03545 BUDGET BLINDS OF SF WEST 1408C57310 3,398.0412/10/202210/10/202310/03/2023 3,398.04 00051 CALIFORNIA WATER SERVICE CO. 1727052702-09/14/23C57311 09/14/202310/10/202310/03/2023 435.89 C 5793906861-08/31/23 472.7808/31/202310/10/2023 36.89
01037 COMCAST CABLE 09/11-10/10 601 F STC57312 09/08/202310/10/202310/03/2023 118.72 C 9/17-10/16/23 XFINIT 170.0609/12/202310/10/2023 51.34 00117 DELTA DENTAL OF CALIFORNIA BE005706546C57313 10/01/202310/06/202310/03/2023 13,681.63 C BE005660592 27,005.6809/01/202310/06/2023 13,324.05
00112 DEPARTMENT OF JUSTICE 678435C57314 987.0009/06/202310/10/202310/03/2023 987.00 02793 DITO'S MOTORS 28769C57315 165.1809/20/202310/16/202310/03/2023 165.18 03268 DAISY ESQUIVIAS 09.22.23 EE REIMBC57316 59.4709/22/202310/10/202310/03/2023 59.47 03616 FLEXIBLE BENEFIT ADMIN 188675C57317 09/27/202310/13/202310/03/2023 126.00 C 188780 146.0009/28/202310/13/2023 20.00
03177 FUNFLICKS SF BAY AREA 18596243 DepositC57318 621.9708/24/202310/12/202310/03/2023 621.97 03361 NESTOR M. GATCHALIAN 2002638.003C57319 275.0009/25/202310/26/202310/03/2023 275.00 03273 HOME DEPOT PRO, THE 763930377C57320 714.0509/06/202310/10/202310/03/2023 714.05 00226 CINDY LIM ROOT 09/24/2023C57321 219.2609/25/202310/11/202310/03/2023 219.26 03648 METROPOLITAN PLANNING GROUP 2003929C57322 07/20/202310/10/202310/03/2023 32,065.00 C 2003964 08/18/202310/10/2023 4,565.00
C 2004020 40,218.7509/12/202310/10/2023 3,588.75
Page: 1
Item #2
Item #2
Page: 2Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 00280 ODP BUSINESS SOLUTIONS 331807429001C57323 09/19/202310/10/202310/03/2023 232.97 C 331807979001 293.7709/19/202310/10/2023 60.80
00307 PACIFIC GAS & ELECTRIC 1918250367-2 14Sep23C57324 09/14/202310/06/202310/03/2023 8,049.75 C 0512181543-4 08Sep2309/08/202310/06/2023 2,227.62
C 0678090639-9 19Sep2309/19/202310/06/2023 85.96
C 9593452526-2 19Sep23 10,393.4409/19/202310/06/2023 30.11 02216 RAMOS OIL CO. INC. CL040321C57325 2,055.0509/20/202310/06/202310/03/2023 2,055.05 00786 MARIA RANGEL 2002639.00357326 80.0009/25/202310/03/2023 80.00 02886 READY REFRESH BY NESTLE 03I0036457661C57327 29.1809/08/202310/10/202310/03/2023 29.18 03479 ROBERT HALF INTERNATIONAL 62604681C57328 2,885.7209/26/202310/10/202310/03/2023 2,885.72 00584 SMC DEM FY23-24JPA005C57329 5,110.0009/18/202310/10/202310/03/2023 5,110.00 00388 SONITROL 346481 C57330 1,143.1109/07/202310/06/202310/03/2023 1,143.11 02224 STANDARD INSURANCE COMPANYOct2023CoverageC57331 216.8209/14/202310/06/202310/03/2023 216.82 00421 U.S. POSTAL SERVICE 09/27/2023 BULKC57332 2,000.0009/27/202310/13/202310/03/2023 2,000.00 02946 AMANDA VELASQUEZ Sept 11 EE REIMB 2C57333 11.8309/25/202310/06/202310/03/2023 11.83 00432 VISION SERVICE PLAN 818840835C57334 1,106.3909/19/202310/05/202310/03/2023 1,106.39 02799 WAVE (ASTOUND) 103745301-0010356C57335 438.2609/01/202310/11/202310/03/2023 438.26 03649 BRIAN YEE 000340 C57336 2,459.2709/27/202310/06/202310/03/2023 2,459.27 01340 NAVIA BENEFIT SOLUTIONS 10062023 BC57337 1,337.3010/06/202310/13/202310/06/2023 1,337.30 01375 NATIONWIDE RETIREMENT SOLUTION10062023 BC57338 10/06/202310/17/202310/06/2023 6,201.81 C 10062023 M 8,301.8110/06/202310/17/2023 2,100.00
03622 4IMPRINT, INC 11705109C57339 460.9109/21/202310/20/202310/10/2023 460.91 01031 A-1 RHINO LININGS, LLC 12600C57340 888.1310/03/202310/16/202310/10/2023 888.13 03267 ACC BUSINESS 232547358C57341 679.6609/27/202310/18/202310/10/2023 679.66 Page: 2
Page: 3Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 03214 PRINCE ADAO 2002640.003C57342 300.0010/02/202310/23/202310/10/2023 300.00 00522 ALAMEDA COUNTY SHERIFFS OFFICEDec'23-May'2457343 3,888.0010/04/202310/10/2023 3,888.00 00020 ASSOCIATED SERVICES INC 12309486157344 10/01/202310/10/2023 40.00 123094860 49.0010/01/2023 9.00
00002 AT&T 09/18/2023 C57345 37.7509/18/202310/18/202310/10/2023 37.75 01355 BANK OF NEW YORK MELLON, THE252-2582459C57346 1,375.0009/27/202310/19/202310/10/2023 1,375.00 00051 CALIFORNIA WATER SERVICE CO. 0944444444-08/31/23C57347 08/31/202310/17/202310/10/2023 55.34 C 3422893362-08/31/2308/31/202310/17/2023 55.34
C 5793906861-08/31/23 147.5710/02/202310/17/2023 36.89
00057 CINTAS CORPORATION #2 4169171792C57348 202.1909/28/202310/17/202310/10/2023 202.19 00093 CITY OF SOUTH SAN FRANCISCO 519531C57349 1,839.5309/25/202310/24/202310/10/2023 1,839.53 01037 COMCAST CABLE 9/25-10/24 427 F StC57350 09/20/202310/16/202310/10/2023 246.72 C 09/25-10/24 Internet09/20/202310/16/2023 246.72
C 09/27-10/26 XFINITY 504.3809/17/202310/16/2023 10.94
00812 COMMUNICATIONS MANAGERS ASSOC08/10/23 Luncheon57351 120.0010/02/202310/10/2023 120.00 00099 D.C. LOCK & SECURITY SERVICE 8021657352 26.6907/15/202310/10/2023 26.69 02793 DITO'S MOTORS 28844C57353 110.7210/04/202310/16/202310/10/2023 110.72 01367 DUO DANCE ACADEMY September 2023 Roll57354 125.0010/01/202310/10/2023 125.00 02935 EMCOR SERVICES-MESA ENERGY SYS940016831C57355 09/21/202310/16/202310/10/2023 3,404.00 C 940016825 09/21/202310/16/2023 1,858.00
C 940016824 09/21/202310/16/2023 1,818.00
C 940016683 09/11/202310/16/2023 960.00
C 940016565 8,765.0009/08/202310/16/2023 725.00
03459 INC FAST RESPONSE ON-SITE TESTING158286C57356 840.0009/26/202310/16/202310/10/2023 840.00 00539 FIREMASTER DEPT 1019 0001111360C57357 09/22/202310/18/202310/10/2023 538.00 C 0001111361 781.0009/22/202310/18/2023 243.00
Page: 3
Page: 4Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 03077 FIRSTTWO, INC. 2138C57358 3,600.0010/02/202310/18/202310/10/2023 3,600.00 02330 FOREMOST PROMOTIONS 718921C57359 680.8709/29/202310/16/202310/10/2023 680.87 02499 GE CAPITAL INFORMATION (RICOH)5068231612C57360 139.2110/01/202310/17/202310/10/2023 139.21 00433 GRAINGER INC 9858326573C57361 278.2510/03/202310/18/202310/10/2023 278.25 03651 GRIDLESS POWER CORPORATION2023-08-11-COL1V57362 8,444.0708/11/202310/26/202310/10/2023 8,444.07 02965 HAPPYCAKE FACE PAINTING 687398C57363 362.2510/04/202310/25/202310/10/2023 362.25 02149 HDL COREN & CONE SIN031777V57364 2,889.1809/28/202310/20/202310/10/2023 2,889.18 03601 HEALTH AND HUMAN RESOURCE CNTRE0303908C57365 64.8010/04/202310/13/202310/10/2023 64.80 00181 IEDA 2431857366 1,685.0410/01/202310/10/2023 1,685.04 01813 JON'S FLAGS & POLES INC. F88708C57367 1,168.0209/28/202310/16/202310/10/2023 1,168.02 03650 JENNY LI 2002643.003C57368 15.0010/04/202310/31/202310/10/2023 15.00 03571 MARINA LANDSCAPE, INC 452207-REC57369 14,581.1908/25/202310/13/202310/10/2023 14,581.19 03607 MARK THOMAS & COMPANY, INC. 48591RC57370 45,167.5109/20/202310/18/202310/10/2023 45,167.51 00254 METRO MOBILE COMMUNICATIONS231023C57371 602.0010/01/202310/17/202310/10/2023 602.00 02993 VANESSA MOSQUEDA VELEZ (MIXTISO)Sept 14-Oct 5, 2023C57372 400.0010/06/202310/16/202310/10/2023 400.00 01340 NAVIA BENEFIT SOLUTIONS 10752348C57373 200.7009/28/202310/16/202310/10/2023 200.70 03061 NICK BARBIERI TRUCKING, LLC CL26643C57374 566.0109/15/202310/13/202310/10/2023 566.01 00280 ODP BUSINESS SOLUTIONS 330156190001C57375 09/26/202310/18/202310/10/2023 33.74 C 330495607001 48.6209/26/202310/18/2023 14.88
00307 PACIFIC GAS & ELECTRIC 0092128195-2 22Sep23C57376 09/22/202310/17/202310/10/2023 2,625.61 C 9248309814-8 22Sep2309/22/202310/17/2023 496.02
C 2039987372-6 22Sep2309/22/202310/17/2023 13.48
C 9956638930-2 22Sep23 3,138.0709/22/202310/17/2023 2.96 00563 PETTY CASH 09/29/23 Petty CashC57377 34.7709/29/202310/13/202310/10/2023 34.77 Page: 4
Page: 5Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 00311 PITNEY BOWES INC. 3106301839C57378 899.6409/20/202310/20/202310/10/2023 899.64 01023 PRIORITY 1 9401 C57379 20,590.9609/25/202310/19/202310/10/2023 20,590.96 02216 RAMOS OIL CO. INC. CL043038C57380 09/30/202310/17/202310/10/2023 1,966.50 C CL041658 2,062.5509/20/202310/17/2023 96.05
03102 REVEL ENVIRONMENTAL MFG INC 58696C57381 27,753.6008/22/202310/13/202310/10/2023 27,753.60 03479 ROBERT HALF INTERNATIONAL 62644382C57382 3,296.5010/04/202310/16/202310/10/2023 3,296.50 00364 SMC FORENSIC LAB PS-INV104382C57383 10/03/202310/16/202310/10/2023 4,146.31 C PS-INV104360 5,456.3109/30/202310/16/2023 1,310.00
02566 STARVISTA 6983 C57384 3,027.9708/31/202310/13/202310/10/2023 3,027.97 00411 TURBO DATA SYSTEMS 41228C57385 1,621.0409/30/202310/13/202310/10/2023 1,621.04 01687 UNITED SITE SERVICES OF INV-02049369C57386 168.1609/28/202310/20/202310/10/2023 168.16 02637 Z.A.P. MANUFACTURING INC. 8063C57387 220.0009/29/202310/16/202310/10/2023 220.00 01355 BANK OF NEW YORK MELLON, THE10/15/2023 InterestC57388 79,943.3410/16/202310/23/202310/17/2023 79,943.34 00004 AT&T 000020610287C57389 35.6310/01/202310/24/202310/17/2023 35.63 03447 NIKOLE AZZOPARDI Aug, Oct 2023 REIMBC57390 17.4210/10/202310/23/202310/17/2023 17.42 01565 BAY CONTRACT MAINTENANCE, INC.30628C57391 480.0010/04/202310/20/202310/17/2023 480.00 00051 CALIFORNIA WATER SERVICE CO. 09/28/2023 Bill Date57392 8,177.5209/28/202310/17/2023 8,177.52 03539 CLARK PEST CONTROL 34138798C57393 135.0010/04/202310/26/202310/17/2023 135.00 00507 COLMA FIRE PROTECTION DISTRICT10/11/202357394 1,145.0010/11/202310/17/2023 1,145.00 01037 COMCAST CABLE 10/01-10/31 XFINITYC57395 09/26/202310/23/202310/17/2023 15,641.96 C 10/2-11/1 INTERNET 16,003.6809/27/202310/23/2023 361.72 00071 CSG CONSULTANTS, INC.V57396 0.0010/18/202310/17/2023 0.00 00071 CSG CONSULTANTS, INC. 07/29-08/25/23C57397 07/29/202310/23/202310/17/2023 184,217.51 C 07/01-7/28/23 350,778.6007/01/202310/23/2023 166,561.09 Page: 5
Page: 6Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 01472 MARIELA DELATORRE 2002646.00357398 300.0010/10/202310/17/2023 300.00 02793 DITO'S MOTORS 28849C57399 311.9310/04/202310/23/202310/17/2023 311.93 01345 JOHN GOODWIN Sept 28, 2023 TripC57400 09/28/202310/26/202310/17/2023 14.70 C Oct 4, 2023 Trip 18.3010/04/202310/26/2023 3.60
00174 HOME DEPOT CREDIT SERVICES 09/29/23 CLOSINGC57401 546.7509/29/202310/24/202310/17/2023 546.75 03273 HOME DEPOT PRO, THE 765748892C57402 386.8009/18/202310/23/202310/17/2023 386.80 03655 SUSAN E. IACOVOU 16000808-Refund57403 303.0006/29/202310/17/2023 303.00 01442 INTERSTATE GRADING & PAVING 6499C57404 3,551.4509/29/202310/20/202310/17/2023 3,551.45 02181 KEVIN KORCZAK 2002647.003C57405 275.0010/10/202310/24/202310/17/2023 275.00 00307 PACIFIC GAS & ELECTRIC 0567147369-1 28Sep23C57406 245.9209/28/202310/23/202310/17/2023 245.92 00301 POSITIVE PROMOTIONS, INC. 07242559C57407 402.4509/27/202310/27/202310/17/2023 402.45 03560 POWERDMS, INC. Order #Q-192852C57408 2,662.5010/10/202310/27/202310/17/2023 2,662.50 02970 PRODUCTIVE PRINTING & GRAPHICS3711657409 140.7810/11/202310/17/2023 140.78 01816 QUALITY STRIPING, INC. 9521257410 6,241.6010/10/202310/17/2023 6,241.60 03652 QUANTUM ENERGY SERVICES & TECHINV-0321C57411 94,649.4510/06/202310/27/202310/17/2023 94,649.45 03479 ROBERT HALF INTERNATIONAL 62679230C57412 3,461.8010/12/202310/23/202310/17/2023 3,461.80 03392 ROMEO PACKING COMPANY 162822C57413 1,542.1909/28/202310/24/202310/17/2023 1,542.19 03654 KAY A. ROSS 16001075-RefundC57414 303.0006/29/202310/23/202310/17/2023 303.00 03588 YOGENDAR DEEP SINGH 2002644.003C57415 50.0010/10/202310/23/202310/17/2023 50.00 00534 SMC INFORMATION SERVICES DEPT1YCL12309C57416 82.2509/30/202310/23/202310/17/2023 82.25 03656 JOSE L. SOLIMAN III 16000957-Refund57417 303.0006/29/202310/17/2023 303.00 00830 STAPLES BUSINESS CREDIT 1651264541C57418 527.9809/25/202310/25/202310/17/2023 527.98 01030 STEPFORD, INC. 2301565C57419 10/11/202310/25/202310/17/2023 1,998.28 Page: 6
Page: 7Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total C 2306539 2,192.0310/05/202310/25/2023 193.75
00412 TELECOMMUNICATIONS ENGINEERING48477C57420 1,652.5010/10/202310/31/202310/17/2023 1,652.50 01101 TERRYBERRY COMPANY LLC P51877C57421 528.4810/09/202310/24/202310/17/2023 528.48 03653 UNI TRUONG 2002645.00357422 30.0010/10/202310/17/2023 30.00 03015 U.S. BANK CORPORATE PMT SYSTEM09/22/2023C57423 23,165.6309/22/202310/26/202310/17/2023 23,165.63 00422 UNDERGROUND SERVICE ALERT 2023176278C57424 300.0007/20/202310/23/202310/17/2023 300.00 03645 WHITLOCK & WEINBERGER TRANSPOR30419C57425 4,719.0710/05/202310/26/202310/17/2023 4,719.07 00047 C.L.E.A. 10202023 B C57426 216.0010/20/202310/27/202310/20/2023 216.00 01375 NATIONWIDE RETIREMENT SOLUTION10202023 BC57427 6,201.8110/20/202310/27/202310/20/2023 6,201.81 01340 NAVIA BENEFIT SOLUTIONS 10202023 BC57428 1,337.3010/20/202310/23/202310/20/2023 1,337.30 02224 STANDARD INSURANCE COMPANY10202023 B57429 438.0010/20/202310/20/2023 438.00 03546 JUDIT ABARCA 2002656.00357430 50.0010/16/202310/24/2023 50.00 03634 AMBROSE HOLDINGS INC 20202466P57431 602.7510/11/202310/24/2023 602.75 00013 ANDY'S WHEELS & TIRES STMT 09/30/23C57432 1,628.5809/30/202310/27/202310/24/2023 1,628.58 00623 ARAMARK 5180255690C57433 09/25/202310/27/202310/24/2023 15.90 C 5180258410 10/02/202310/27/2023 15.90
C 5180260905 10/09/202310/27/2023 15.90
C 5180244457 08/28/202310/27/2023 15.90
C 5180258411 10/02/202310/27/2023 15.90
C 5180250013 09/11/202310/27/2023 15.90
C 5180255683 09/25/202310/27/2023 15.90
C 5180258404 10/02/202310/27/2023 15.90
C 5180260898 10/09/202310/27/2023 15.90
C 5180263302 10/16/202310/27/2023 15.90
C 5180263269 10/16/202310/27/2023 15.90
C 5180260904 181.9010/09/202310/27/2023 7.00
03334 LLC AT&T MOBILITY NATIONAL ACCOUNT287296200335X101023C57434 2,512.1810/02/202310/31/202310/24/2023 2,512.18 Page: 7
Page: 8Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 02337 AXON ENTERPRISES, INC. INUS195194C57435 10/15/202310/31/202310/24/2023 40,152.28 C INUS195614 10/15/202310/31/2023 21,511.44
C INUS195499 63,082.2910/15/202310/31/2023 1,418.57
01565 BAY CONTRACT MAINTENANCE, INC.3071957436 10/10/202310/24/2023 2,740.50 30716 10/10/2023 2,661.35
30715 10/10/2023 2,661.35
30720 10/10/2023 1,552.45
30717 10/10/2023 633.64
30721 10/10/2023 221.30
30718 10,664.5310/10/2023 193.94
01183 BEST BEST & KRIEGER LLP 977594C57437 10/12/202310/27/202310/24/2023 21,519.00 C 977598 10/12/202310/27/2023 4,908.60
C 977597 30,102.4010/12/202310/27/2023 3,674.80
00051 CALIFORNIA WATER SERVICE CO. 9679761976-09/29/23C57438 1,447.9409/29/202310/25/202310/24/2023 1,447.94 00057 CINTAS CORPORATION #2 4168451376C57439 09/21/202310/30/202310/24/2023 614.86 C 4168451338 09/21/202310/30/2023 375.07
C 4170589263 1,202.2310/12/202310/30/2023 212.30
03539 CLARK PEST CONTROL 34138804C57440 10/11/202310/27/202310/24/2023 145.00 C 34138801 10/12/202310/27/2023 135.00
C 34138802 10/12/202310/27/2023 135.00
C 34138803 530.0010/12/202310/27/2023 115.00
02827 CORODATA SHREDDING, INC. RS3542744C57441 202.0509/30/202310/26/202310/24/2023 202.05 02827 CORODATA SHREDDING, INC. DN 1436171C57442 115.6909/30/202310/26/202310/24/2023 115.69 02182 DALY CITY KUMON CENTER September 2023C57443 1,500.0010/01/202310/30/202310/24/2023 1,500.00 00112 DEPARTMENT OF JUSTICE 687294C57444 162.0010/04/202310/27/202310/24/2023 162.00 03450 FLOCK GROUP, INC INV-23969C57445 800.0010/18/202310/30/202310/24/2023 800.00 03657 GUADALUPE ALFARO GARCIA 2002655.00357446 30.0010/16/202310/24/2023 30.00 00211 KELLY-MOORE PAINTS 112100000221879C57447 114.2909/30/202310/30/202310/24/2023 114.29 Page: 8
Page: 9Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 03160 RYAN KEITH MUIR 2002653.00357448 225.0010/16/202310/24/2023 225.00 00263 LIVIEN MULIMBAYAN 2002652.003C57449 200.0010/16/202310/27/202310/24/2023 200.00 03061 NICK BARBIERI TRUCKING, LLC CL27807C57450 619.6309/30/202310/27/202310/24/2023 619.63 00280 ODP BUSINESS SOLUTIONS 335731635001C57451 77.4010/13/202310/30/202310/24/2023 77.40 00307 PACIFIC GAS & ELECTRIC 3007220528-6 06Oct23C57452 10/06/202310/26/202310/24/2023 5,113.80 C 0576889222-5 06Oct23 5,374.9110/06/202310/26/2023 261.11 00553 PACIFIC NURSERIES INV1538057453 10/03/202310/24/2023 381.72 INV15377 10/03/2023 348.91
INV15376 10/03/2023 192.28
INV15843 1,088.7210/11/2023 165.81
02860 VIVIAN PACIS 2002654.00357454 275.0010/16/202310/24/2023 275.00 03230 MICAELA PADILLA 2002651.003C57455 575.0010/11/202310/26/202310/24/2023 575.00 03609 PAYMENTUS CORPORATION INV-15-13700757456 06/30/202310/24/2023 92.24 INV-15-139982 98.7609/30/2023 6.52
02216 RAMOS OIL CO. INC. CL045190C57457 2,001.9310/10/202310/26/202310/24/2023 2,001.93 03479 ROBERT HALF INTERNATIONAL 62693423C57458 2,831.0010/17/202310/27/202310/24/2023 2,831.00 00349 SEGALE & CERINI INC. 1776357459 09/29/202310/24/2023 1,263.00 17761 2,353.0009/29/2023 1,090.00
00343 SMC COUNCIL OF CITIES 10/27/2023 Meeting57460 60.0010/16/202310/24/2023 60.00 03461 1000BULBS.COM W0377848657461 1,564.8110/04/202310/31/2023 1,564.81 00003 A. S. F. ELECTRIC 265957462 1,547.9510/12/202310/31/2023 1,547.95 00300 ABILITYPATH FY 2023-2024 Grant57463 6,500.0010/11/202310/31/2023 6,500.00 03659 DBA AMERICAN PORTABLES AMERICAN DEBRIS BOX SERVICE IN10193657464 10/03/202310/31/2023 575.16 M102506 1,127.2510/17/2023 552.09
00004 AT&T 00002067243757465 1,586.9710/13/202310/31/2023 1,586.97 Page: 9
Page: 10Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 00057 CINTAS CORPORATION #2 417129621557466 10/19/202310/31/2023 647.97 4171296163 1,023.0410/19/2023 375.07
01557 CITY OF FOSTER CITY 1547457467 3,975.0007/06/202310/31/2023 3,975.00 01037 COMCAST CABLE 10/11-11/10 601 F ST57468 118.7210/07/202310/31/2023 118.72 00082 CSMFO 20001952057469 515.0010/21/202310/31/2023 515.00 02453 DALY CITY PUBLIC LIBRARY ASSOCFY 2023-2024 Grant57470 5,220.0010/11/202310/31/2023 5,220.00 02491 DALY CITY YOUTH HEALTH CENTERFY 2023-2024 Grant57471 6,000.0010/11/202310/31/2023 6,000.00 00116 DALY CITY/COLMA CHAMBER FY 2023-2024 Grant57472 37,500.0010/11/202310/31/2023 37,500.00 00649 DAVEY TREE EXPERT COMPANY 91807368257473 625.0010/09/202310/31/2023 625.00 00117 DELTA DENTAL OF CALIFORNIA BE00577415157474 14,039.2111/01/202310/31/2023 14,039.21 00862 LOURDES J. GOMEZ 2002657.00357475 1,010.0010/17/202310/31/2023 1,010.00 03661 HEALTHRIGHT 360 FY 2023-2024 Grant57476 2,500.0010/11/202310/31/2023 2,500.00 00201 JEFFERSON UNION HIGH SCHOOLFY 2023-2024 Grant57477 4,000.0010/11/202310/31/2023 4,000.00 02989 LIFEMOVES FY 2023-2024 Grant57478 5,000.0010/11/202310/31/2023 5,000.00 02788 MARGARET-ROSE S. LUNA-SEVILLA5757479 09/25/202310/31/2023 350.00 58 10/21/2023 350.00
59 1,050.0010/17/2023 350.00
00280 ODP BUSINESS SOLUTIONS 33425864800157480 10/10/202310/31/2023 308.27 334559941001 426.5310/10/2023 118.26
01586 OMBUDSMAN SERVICES OF SAN FY 2023-2024 Grant57481 2,500.0010/11/202310/31/2023 2,500.00 03228 OPERATION SANTA CLAUS FY 2023-2024 Grant57482 2,000.0010/11/202310/31/2023 2,000.00 00307 PACIFIC GAS & ELECTRIC 1918250367-2 17Oct2357483 8,444.3910/17/202310/31/2023 8,444.39 00553 PACIFIC NURSERIES INV1638057484 210.9810/20/202310/31/2023 210.98 03660 RENAISSANCE ENTREPRENEURSHIPFY 2023-2024 Grant57485 3,500.0010/11/202310/31/2023 3,500.00 Page: 10
Page: 11Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor StatusClear/Void Date Amount PaidInvoice Inv. Date Check Total 03382 SAN BRUNO MOUNTAIN WATCH FY 2023-2024 Grant57486 2,500.0010/11/202310/31/2023 2,500.00 00349 SEGALE & CERINI INC. 1776057487 09/29/202310/31/2023 20,780.00 17762 09/29/2023 2,062.50
17721 23,996.2508/31/2023 1,153.75
03528 SILICON VALLEY BICYCLE COALITIFY 2023-2024 Grant57488 3,500.0010/11/202310/31/2023 3,500.00 00360 SMC COMMUNITY COLLEGE FY 2023-2024 Grant57489 4,000.0010/11/202310/31/2023 4,000.00 00500 SMC CONTROLLERS OFFICE September 202357490 3,759.0010/03/202310/31/2023 3,759.00 00460 SMC JOBS FOR YOUTH FY 2023-2024 Grant57491 4,000.0010/11/202310/31/2023 4,000.00 01291 SMC TAX COLLECTOR 2023-2024 1st & 2nd57492 428.2610/04/202310/31/2023 428.26 03314 CARLOS SOLORZANO CRS-002-202357493 600.0005/09/202310/31/2023 600.00 00388 SONITROL 34858357494 1,143.1110/06/202310/31/2023 1,143.11 02224 STANDARD INSURANCE COMPANYNov2023Coverage57495 227.3210/16/202310/31/2023 227.32 01030 STEPFORD, INC. 230168757496 10/20/202310/31/2023 7,987.35 2301606 15,905.7009/20/2023 7,918.35
00391 SUSTAINABLE SAN MATEO COUNTYFY 2023-2024 Grant57497 1,000.0010/11/202310/31/2023 1,000.00 03342 JOVANA TOSCANO 2002659.00357498 300.0010/23/202310/31/2023 300.00 03658 TRAFFIC CALM SYSTEMS, LLC 21384657499 589.5310/09/202310/31/2023 589.53 02849 6746050100 U.S. BANK PARS ACCOUNTNovember 2023 OPEB57500 101,073.0011/01/202310/31/2023 101,073.00 02468 ULINE, INC. 16952730657501 757.0010/11/202310/31/2023 757.00 00432 VISION SERVICE PLAN 81905297957502 1,157.8510/19/202310/31/2023 1,157.85 02635 VOLUNTEERS IN MEDICINE - SAN FY 2023-2024 Grant57503 5,000.0010/11/202310/31/2023 5,000.00 02799 WAVE (ASTOUND) 103745301-001040957504 438.2609/30/202310/31/2023 438.26 02132 JASON WOLLMAN 10/05/23 EE REIMB57505 18.0010/12/202310/31/2023 18.00 00130 EMPLOYMENT DEVELOPMENT DEPT10062023 MC94972 150.0010/06/202310/10/202310/06/2023 150.00 Page: 11
Page: 12Check History ListingapCkHist
6:52AM Town of Colma11/02/2023
firstBank code:

Check # Date Vendor Status Clear/Void Date Amount PaidInvoice Inv. Date Check Total 00521 UNITED STATES TREASURY 10062023 MC94973 1,262.1510/06/202310/10/202310/06/2023 1,262.15 00631 P.E.R.S. 10062023 MC94974 854.2210/06/202310/10/202310/06/2023 854.22 01360 MISSIONSQUARE RETIREMENT 10062023 M94975 493.2610/06/202310/06/2023 493.26 00282 CALIFORNIA PUBLIC EMPLOYEES' 10062023 MC94976 4,797.1410/06/202310/04/202310/06/2023 4,797.14 00130 EMPLOYMENT DEVELOPMENT DEPT 10062023 BC94977 15,048.5110/06/202310/10/202310/06/2023 15,048.51 00521 UNITED STATES TREASURY 10062023 BC94978 67,118.4210/06/202310/10/202310/06/2023 67,118.42 00282 CALIFORNIA PUBLIC EMPLOYEES' 10062023 BC94979 74,419.6810/06/202310/04/202310/06/2023 74,419.68 00631 P.E.R.S. 10062023 BC94980 53,125.5310/06/202310/10/202310/06/2023 53,125.53 01360 MISSIONSQUARE RETIREMENT 10062023 B94981 6,042.8110/06/202310/06/2023 6,042.81 00068 COLMA PEACE OFFICER'S 10062023 B94982 652.1410/06/202310/06/2023 652.14 00130 EMPLOYMENT DEVELOPMENT DEPT 10202023 BC94986 15,660.5510/20/202310/24/202310/20/2023 15,660.55 00521 UNITED STATES TREASURY 10202023 BC94987 66,969.5410/20/202310/24/202310/20/2023 66,969.54 00631 P.E.R.S. 10202023 BC94988 54,088.6010/20/202310/23/202310/20/2023 54,088.60 01360 MISSIONSQUARE RETIREMENT 10202023 B94989 6,137.7010/20/202310/20/2023 6,137.70 00068 COLMA PEACE OFFICER'S 10202023 B94990 652.1410/20/202310/20/2023 652.14 00282 CALIFORNIA PUBLIC EMPLOYEES' 100000017293920C120056 7,111.0609/14/202310/04/202310/03/2023 7,111.06 1,689,129.40first Total:

Total Checks:checks in this report218 1,689,129.40
Page: 12
Colma Creek Trash Capture Cooperative Agreement w/Caltrans Page 1 of 4

STAFF REPORT
T
O: Mayor and Members of the City Council
FROM: Brad Donohue, Public Works Director
VIA: Daniel Barros, City Manager
MEETING DATE: November 8, 2023
SUBJECT: Cooperative Funding Agreement for Colma Creek

RECOMMENDATION
Staff recommends that the City Council make the following motion:

MOTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A

COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA DEPARTMENT OF

TRANSPORTATION (CALTRANS) FOR FUNDING FOR THE DESIGN, ENVIRONMENTAL

REVIEW, AND CONSTRUCTION OF THE COLMA CREEK TRASH CAPTURE PROJECT PURSUANT TO CEQA GUIDELINE 15306

EXECUTIVE SUMMARY
The State of California Department of Transportation (Caltrans) will provide funding to the Town for a large trash capture screen device in Colma Creek (the “Project”). The funds will initially be used to design the project and conduct environmental review. After the design and environmental review is completed, staff will return to the City Council to proceed or not proceed with the Project.

The first step in the process is for a consultant to design a device to potentially be installed in the Colma Creek to provide trash capture treatment for portions of the Town of Colma (Town), City of Daly City (Daly City), and portions of unincorporated San Mateo County (County).

Execution of a Cooperative Agreement between the Town and Caltrans is required in order to provide the funding to the Town for the initial design and environmental review. The Town anticipates receiving an agreement from Caltrans detailing the financial arrangement between the Town and Caltrans for the Project. The City Council will approve the agreement in concept and authorize the City Manager to execute that agreement assuming it is consistent with the terms outlined in this staff report.

FISCAL IMPACT
The Cooperative Agreement will cover all costs associated with design of the project, and if the City Council authorizes future construction of the project, after considering the environmental Item #3
Colma Creek Trash Capture Cooperative Agreement w/Caltrans Page 2 of 4

review conducted, Caltrans will also provide funding for the actual construction with design, environmental review, and construction costs in an amount up to $7.1Million.

BACKGROUND
The Town of Colma is required to comply with the Municipal Regional Permit for Stormwater (MRP 3.0) adopted by the San Francisco Bay Regional Water Quality Control Board on May 11, 2022 (NPDES Permit No. CAS612008, Order R2-2022-0018). Section C.10 of the MRP 3.0 requires that jurisdictions reduce trash discharge thru storm drains by 90% by June 2023 (the Town has met this requirement) with additional trash reduction to 100% by June 2025.

Caltrans is under a similar requirement to reduce trash from its right-of-way. Caltrans has developed a partnership program with local jurisdictions where it will provide funds for the design and environmental review necessary for a jurisdiction to consider installation of trash capture measures in local drainage systems where those measures also treat runoff from the Caltrans right-of-way. Caltrans will pay for design and environmental review for the Project. If after considering that environmental review, the City Council approves the construction of the Project, Caltrans will also pay for construction costs and other costs associated with the initial installation of the Project, but it will not pay for long term operations and maintenance.

ENVIRONMENTAL
Caltrans will be providing funding to the Town for the design and environmental review necessary to analyze the Project’s impacts. After the environmental review is conducted, the City Council will consider that analysis in deciding whether to approve or not approve the actual construction project. As a first step to designing the project and conducting the environmental review, in approving and authorizing the City Manager to execute the funding agreement, the City Council is merely authorizing information collection pursuant to the California Environmental Quality Act (CEQA) Guideline 15306 as the agreement will authorize basic data collection, research, and design, which will not result in a serious or major disturbance to an environmental resource. The information gathered will allow for an environmental review to be conducted and for that to be considered prior to the City Council approving the actual construction project. Further, the agreement will not commit the Town to construct the Project, but will instead, acknowledge that the City Council retains full discretion to not proceed with the Project depending on the results of any environmental analysis conducted.

ANALYSIS
Detailed Description of the Project
Discussions are occurring regarding the installation of a large trash capture device in the Colma Creek drainage channel, based on collaborative discussions between the Town, Daly City, the County of San Mateo, and SMCWPPP. The device could be located in the drainage channel immediately downstream of where the twin box culverts in Mission Road transition to an open channel over the BART subway tunnel right-of-way (Please see attachment “C”). The device could treat approximately 3,000 acres, of which 161 acres are located within Caltrans right-of- way and the remainder of the acreage would be split between the Town, Daly City, the County.

Colma Creek Trash Capture Cooperative Agreement w/Caltrans Page 3 of 4 Staff has estimated the cost of design, environmental review, and ultimate construction and construction management, if approved, at $7.1 million. Caltrans will provide funds in this amount under the Cooperative Agreement, Caltrans will not provide post construction funding for ongoing operation and maintenance costs, those costs will have to be absorbed by the partnering agencies.

Funds would become available after the California Transportation Commission (CTC) approves the co-op agreement in January 2024. Project design and environmental review would commence once the agreement is approved by the CTC. The design schedule allows for coordination with BART and OneShoreline to address potential structural and hydraulic impacts on the existing channel and the BART subway below. Resource agency permits may be required for work in the channel. Staff will then come before the City Council to review and approval all construction-related documents prior to going to bid. It is estimated that construction could begin in Spring 2025 and be constructed by then end of Summer.

The project could result in a 97% reduction of the Town’s trash load to Colma Creek. There are isolated properties that discharge to the channel downstream of the device that would require separate trash control measures to meet 100% of the MRP trash reduction requirements by 2025.

The Town currently handles maintenance of the channel under a maintenance agreement with OneShoreline, which in turn has an easement over the BART right-of-way for the channel. It is proposed that the Town would maintain the trash capture device.

It is also proposed that the Town would execute maintenance agreements with the other benefitting jurisdictions (Daly City and County) to allocate ongoing operation and maintenance costs or an agreement with One Shoreline to bare the annual maintenance and operation costs of the proposed trash capture device. Based on discussion to date, the other jurisdictions are agreeable to this.

Reasons For the Recommended Action
Approval of the Cooperative Agreement would provide outside funding that would allow the Town to potentially meet trash reduction requirements of MRP 3.0, depending on the Town’s approval of the actual construction project, reducing the need to provide local funds for this work.

Council Adopted Values
Responsibility – Decisions based on prudent consideration of financial impacts. Approval of the agreement will provide outside funding to the Town to potentially meet its’ stormwater permit requirements.

V
ision – Promote intelligent and thoughtful innovation. The Agreement will augment funds available for stormwater permit compliance.

S
ustainability Impact
Colma Creek Trash Capture Cooperative Agreement w/Caltrans Page 4 of 4

The project, if approved in the future by the City Council, will remove trash and other pollutants from the Colma Creek channel, improving the water quality in the channel that flows to the Bay.

Alternatives
The Town could choose to forgo the Caltrans funding. If so, the Town would still be required to meet the MRP 3.0 trash reduction requirements using its’ own funds.

CONCLUSION
It is recommended that the Council approve and authorize the City Manager to execute a Cooperative Agreement with Caltrans for the design, environmental review, and construction of the Colma Creek Trash Capture Project.

ATTACHMENTS
A. Cooperative Agreement
B. Location Map

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EA 0W070
Project No. 0420000169
Agreement 04-2844
1 ST

ORMWATER MITIGATION COOPERATIVE AGREEMENT
This AGREEMENT, executed on and effective from ( date ), is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and:

Town of Colma, a municipal agency, referred to hereinafter as TOWN.

CALTRANS and TOWN are individually referred to as PARTY and collectively referred to as PARTIES.

RECITALS

1. CAL
TRANS and TOWN are authorized to enter into a Cooperative Agreement for Stormwater Mitigation hereinafter referred to as AGREEMENT pursuant to California Streets and Highways Code Section 126.1.

2. Section 303(d) of the Federal Clean Water Act (CWA) requires the State of California to establish a priority ranking for impaired waters, referred to as the 303(d) list. The United States Environmental Protection Agency (USEPA) has oversight authority for the 303(d) list.

The USEPA approves the State’s 303(d) list.

3. CALTRANS must comply with Attachment IV of the Statewide National Pollutant Discharge Elimination System (NPDES) Permit (Order # 2022-033-DWQ effective January 1, 2023, which requires CALTRANS to implement control measures to improve regional stormwater quality. CALTRANS must comply with the California Regional Water Quality Control Board San Francisco Region Cease and Desist Order No. R2-2021-0030 and Order No. R2-2019-0007, collectively referred hereinafter as CDO. CALTRANS and TOWN may collaboratively implement the Trash Reduction requirements in areas that contain Caltrans Significant Trash Generation Area (STGA).

4. TOWN desires, pending receipt of all environmental approvals and resource agency agreements and permits, including California Environmental Quality Act (CEQA) documents and approvals and National Environmental Quality Act (NEPA) documents and approvals, California State Water Resources Control Board permit for PROJECT to design and construct permanent Full Trash Capture (FTC) devices, hereinafter referred to as IMPROVEMENTS, to achieve statewide National Pollutant Discharge Elimination System (NPDES) permit compliance units for trash capture, to which CALTRANS shall contribute to TOWN a Financial Contribution Only (FCO) of $7,040,600.

Attachment A
04-SM-001- PM 46.7/47.8
EA 0W070
Project No. 0420000169
Agreement 04-2844

2 5. In the event TOWN receives all environmental approvals and resource agency agreements and permits TOWN desires to be responsible for all management, maintenance and operations, including costs of the constructed PROJECT.

6. PROJECT will receive flows from a total tributary area of 3,083 acres which includes runoff from CALTRANS roadways and impervious surfaces.

7. CALTRANS will contribute an amount, not to exceed, $7,040,600 to TOWN for PROJECT to satisfy its NPDES requirements, in part.

8. CALTRANS will receive a total of 161 acres of trash load reduction credit

9. CALTRANS will receive a total of 32 acres of TMDL pollutant reduction.

10. PARTIES intend to define herein the terms and conditions under which PROJECT will proceed.

11. CALTRANS share of PROJECT funding is as follows:

FUND TITLE FUND SOURCE DOLLAR AMOUNT
SHA State of California $7,040,600
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04-SM-001- PM 46.7/47.8
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Project No. 0420000169
Agreement 04-2844
3 SECTION I
CALTRANS AGREES:

1. To reimburse TOWN within forty-five (45) calendar days of receipt of a signed invoice for actual PROJECT costs incurred and paid.

2. The total financial obligation provided by CALTRANS for PROJECT shall not exceed the amount of $7,040,600.

3. To provide encroachment permits to TOWN and its consultants and contractor for access to CALTRANS right of way, if necessary, to fulfil PROJECT requirements.

4. To review and provide comments to TOWN for the 60% complete plan set and 95% complete plan set and specifications for PROJECT within 5 working days of receipt.

SECTION II

IN THE EVENT TOWN RECEIVES ALL ENVIRONMENTAL APPROVALS AND

RESOURCE AGENCY AGREEMENTS AND PERMITS FOR THE PROJECT, TOWN AGREES:

1. To prepare, sign and submit monthly billing statements in arrears (invoices) to CALTRANS for actual PROJECT costs incurred and paid by TOWN.

2. All work performed by TOWN, or performed on behalf of TOWN, shall be performed in accordance with state, federal and local laws, regulations, and standards.

3. To be fully responsible for completing and/or obtaining the environmental clearance, right of way requirements, design, and construction of PROJECT.

4. To obtain all necessary property rights (easements, rights of entry, fee, etc.) required to complete and maintain PROJECT. Said rights of entry shall also include rights for CALTRANS and resource agency personnel to access sites at which IMPROVEMENTS are located to monitor PROJECT for a period of five (5) years.

5. To obtain all environmental approvals and resource agency agreements and permits, including California Environmental Quality Act (CEQA) documents and approvals and National Environmental Quality Act (NEPA) documents and approvals, California State Water Resources Control Board permit for PROJECT prior to the commencement of construction.

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4 6. T
o fully comply with all the terms and conditions expressed in the environmental approvals, agreements and permits.

7. T
o prepare, or cause to prepare, a complete set of design plans, specifications, and estimate, TMDL waste (or pollutant) reduction calculation and report, and any other necessary technical documents, sufficient to advertise and award a construction contract for PROJECT.

All documents shall be signed and sealed by an engineer duly registered in the state of California.

8. T
o provide CALTRANS with the 60% complete plan set and 95% complete plan set and specifications for PROJECT so that Caltrans can review and provide comments within 5 working days of receipt.

9. T
o incorporate or resolve all comments submitted by CALTRANS on the 60% complete plan set and 95% complete plan set and specifications for PROJECT.

10. T
o provide CALTRANS with copies of the final construction plans, specifications, and estimate; applicable environmental approvals, agreements and permits; right of way clearances, hereinafter referred to as PS&E package, prior to advertising the contract for construction.

11. T
o prepare contract documents, advertise and award a construction contract in accordance with TOWN acquisition processes.

12. T
o manage all aspects of PROJECT,
T
OWN will be responsible for all management, maintenance and operations, including costs of the constructed PROJECT.

13. P
rovide annual documentation of PROJECT progress to CALTRANS for the storm water compliance files.

14. T
o prepare and submit a final accounting for all PROJECT costs. Based on the final accounting, CALTRANS will refund or invoice as necessary to satisfy the financial commitments of this AGREEMENT.

15. T
o conform with the provisions of Labor Code section 1720-1815, and all applicable provisions of the California Code of Regulations found in Title 8, Chapter 8, subchapter 3, articles 1-7 if the PROJECT is a “public works” as defined in the Labor Code section 1720(a)(1), which includes construction, alteration, demolition, installation, repair or maintenance work under Labor Code section 1771.

16. T
o include prevailing wage requirements in its contracts for public work consistent with the requirements of the Labor Code. Work performed by TOWN own forces is exempt from the Labor Code’s prevailing wage requirements.

Draft
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Project No. 0420000169
Agreement 04-2844
5 17. T
o require the construction contractors to include prevailing wage requirements in all subcontracts funded by this AGREEMENT when the work to be performed falls within Labor Code sections 1729(a)(1) if the PROJECT is a “public works” as defined in under Labor Code section 1720(a)(1), which includes construction, alteration, demolition, installation, repair or maintenance labor under Labor Code section 1771. Subcontractors shall include all prevailing wage requirements set forth in TOWN’s contracts into any sub- contractor contracts entered into by subcontractors.

18. I
f work performed under this AGREEMENT is paid for in whole or in part with federal funds, and is the type of work subject to federal prevailing wage requirements, TOWN must conform to the provisions of the Davis-Bacon and related acts, 40 U.S.C. 1341 et seq. in addition to Labor Code provisions.

19. T
o include federal prevailing wage requirements in its contracts for public work. Work performed by TOWN’s own forces is exempt from federal prevailing wage requirements.

20. T
o retain all books, documents, papers, accounting records, and other evidence pertaining to costs incurred, including support data for cost proposals, and to make such materials available to CALTRANS at all reasonable times for three (3) years after completion and acceptance of PROJECT. CALTRANS, the Federal Highway Administration, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of TOWN that pertain to this AGREEMENT for audits, examinations, excerpts, transactions, and copies thereof shall be furnished when requested.

21. T
o maintain and operate PROJECT.

22. U
pon request, provide Caltrans with annual maintenance records and/or report after the PROJECT is constructed.

SECTION III
IT IS MUTUALLY AGREED:

1. A
ll portions of this AGREEMENT, including the Recitals Section, are enforceable.

2. If any provision of this AGREEMENT is held invalid, the other provisions shall not be affected thereby.

3. All CALTRANS’ obligations under this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission (CTC).

4. All applicable laws, regulations, rules, and policies relating to the use of federal or state funds shall apply notwithstanding other provisions of this AGREEMENT.

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Project No. 0420000169
Agreement 04-2844
6 5. If
TOWN fails to complete the PROJECT for any reason, TOWN will refund the full amount of CALTRANS’ contribution.

6. TOWN will retain all PROJECT related records for three (3) years after the final voucher.

7. TOWN will accept operation, maintenance and ownership or title to all materials or equipment installed as part of PROJECT.

8. CALTRANS has a total of 5 working days to perform review and return comments to TOWN for each review cycle (60% plans complete and 95% plans and specifications complete).

9. TOWN will defend, indemnify, and save harmless CALTRANS and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, environmental, tortuous, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of the operation and maintenance of PROJECT.

10. HM-1 is hazardous materials (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law, whether it is disturbed by PROJECT or not.

11. HM-2 is hazardous materials (including but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by PROJECT.

12. The management activities related to HM-1 and HM-2, including and without limitation, any necessary manifest requirements and disposal facility designations are referred to herein as HM-1 MANAGEMENT and HM-2 MANAGEMENT respectively.

13. If HM-1 or HM-2 is found, the discovering PARTY will immediately notify the other PARTY.

14. CALTRANS, independent of the PROJECT is responsible for any HM-1 found within the existing state highway system right-of-way. CALTRANS will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule.

CALTRANS will pay the cost of HM-1 MANAGEMENT for HM-1 found within the existing state highway system right-of-way with funds that are independent of the funds obligated in this AGREEMENT.

15. TOWN is responsible for HM-2 MANAGEMENT for PROJECT and shall be paid from funds obligated in this AGREEMENT, or in TOWN’s sole discretion, from TOWN’s general fund.

16. CALTRANS’ acquisition or acceptance of title to any property on which any HM-1 or HM-2 is found will proceed in accordance with CALTRANS’ policy on such acquisition.

Draft
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Project No. 0420000169
Agreement 04-2844
7 17. T
OWN is responsible for any HM-1 found within the PROJECT limits and outside the existing State Highway System right-of-way. TOWN will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the CALTRANS PROJECT schedule.

T
OWN will pay, or cause to be paid, the cost of HM-1 MANAGEMENT for HM-1 found within the PROJECT limits and outside of the existing State Highway System right-of-way with funds that are independent of the funds obligated in this AGREEMENT.

18. Neither CALTRANS nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by TOWN, its contractors, sub-contractors and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon TOWN or under this AGREEMENT. It is understood and agreed that TOWN, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by TOWN, its contractors, sub- contractors and/or its agents under this AGREEMENT.

19. Neither TOWN nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS or under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless City of Colma and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors and/or its agents under this AGREEMENT.

20. This AGREEMENT will terminate upon execution of a Cooperative Agreement Closure Statement (CLOSURE STATEMENT) by PARTIES. The CLOSURE STATEMENT is a document that verifies all commitments of this AGREEMENT have been met and PROJECT is fully complete.

However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, hazardous material, operation, maintenance, and ownership articles will remain in effect until terminated or modified in writing by mutual agreement.

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Project No. 0420000169
Agreement 04-2844
8 CO

NTACT INFORMATION
T
he information provided below indicates the primary contact information for each PARTY to this AGREEMENT. PARTIES will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this AGREEMENT.

T
own of Colma
P
roject Manager: Daniel Barros
P
hone Number: 650-997-8300
E-ma
il: [email protected]
B
illing Address: 1198 El Camino Real, Colma, CA 94014
_____________________________________________

C

ALTRANS
P
roject Manager: Rommel Pardo
P
hone Number: (510)714-5474
E-ma
il: [email protected]
B
illing Address: 111 Grand Avenue, Oakland Ca 94612
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04-SM-001- PM 46.7/47.8
EA 0W070
Project No. 0420000169
Agreement 04-2844
9 SIGNATURES
PARTIES are authorized to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT.

The PARTIES acknowledge that executed copies of this AGREEMENT may be exchanged by facsimile or email, and that such copies shall be deemed to be effective as originals.

STATE OF CALIFORNIA

DEPARTMENT OF TRANSPORTATION

By:

Robert Effinger
Acting Deputy District Director, Project Delivery

VERIFIED OF FUNDS & AUTHORITY:

By:

Jeffrey Kuehnel
District Budget Manager

APPROVED AS TO FORM & PROCEDURE:

By:

Attorney
Department of Transportation

CERTIFIED AS TO FINANCIAL TERMS &
POLICIES:

By: ______________________________
Nadine Karavan
HQ Accounting Supervisor

TOWN OF COLMA

By:

Daniel Barros
City Manager

Attest:
[Title]

APPROVED AS TO FORM & PROCEDURE:

By:

Christopher Diaz
City Attorney

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Updated Drainage Area
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Installed Trash Capture
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Attachment B

Staff Report - Solar Procurement Process (Round 2 PPA) Page 1 of 3

STAFF REPORT
T
O: Mayor and Members of the City Council
FROM: Kathleen Gallagher, Sustainability Manager
VIA: Dan Barros, City Manager
MEETING DATE: November 8, 2023
SUBJECT: Participation in Second Solar Collaborative Procurement Process

RECOMMENDATION
Staff recommends the City Council adopt the following:

RESOLUTION APPROVING THE TOWN’S PARTICIPATION IN THE SECOND SOLAR

COLLABORATIVE PROCUREMENT PROCESS MANAGED BY PENINSULA CLEAN ENERGY (PCE) FOR SOLAR INSTALLATION AT TOWN HALL AND POLICE DEPARTMENT AND

APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE NECESSARY

DOCUMENTS FOR PARTICIPATION IN THE PROCESS PURSUANT TO CEQA GUIDELINES 15301 AND 15303

EXECUTIVE SUMMARY
On November 10, 2021, the City Council authorized participation in the first solar collaborative procurement process managed by Peninsula Clean Energy (PCE) and approved and authorized the City Manager to execute the Power Purchase Agreement (PPA) with PCE for solar installation at the Colma Community Center. Per the PPA, PCE manages the solar procurement process, design, installation, operation, and solar array system maintenance. The Town’s new solar installation at the Community Center will result in $608,000 cost savings over the 20-year PPA term, generate renewable energy at no upfront costs to the Town, and implement one of the Town’s Climate Action Plan 2030 programs. Installation of this system will be completed in Q1 2024. PCE developed a second solar procurement process in early 2023 (Round 2 Solar PPA) and the City Manager authorized a solar analysis of Town Hall and Police Department (PD). PCE staff completed engineering evaluations, preliminary solar sizing, cost savings estimates and met with Town staff to discuss resulting estimated total savings of $1,400,000 estimate over the 20-year PPA term from solar installations at Town Hall and PD. On June 29, 2023, the City Manager authorized preliminary participation by signing PCE’s Customer Participation Agreement. At the present time, PCE requested jurisdictions’ legal review of the preliminary PPA and requested that jurisdictions inform PCE of its intention to participate no later than November 30. A separate final PPA contract will be provided in February 2024 with pricing and total cost savings resulting from PCE’s competitive procurement. Staff will return to City Council to discuss and present the final pricing, cost savings and the draft solar layout for Town Hall and PD in February. Similar to the previous PPA process, by Council approving this resolution, Item #4
Staff Report - Solar Procurement Process (Round 2 PPA) Page 2 of 3 Council authorizes the City Manager to execute necessary documents to participate in this second solar procurement process.

ENVIRONMENTAL
The City Council’s action in adopting the resolution to participate in the second solar procurement process is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines 15301 and 15301. With regard to 15301, the addition of carports that include solar would be considered the minor alteration of an existing public facility involving negligible or no expansion of use as the carports would be installed at existing government buildings in Town. With regard to 15303, the addition of carports that include solar would also be considered the installation of small structures for which the CEQA guideline acknowledges can include accessory structures such as carports and garages.

FISCAL IMPACT
Participation in the PPA results in a total cost savings estimate of $1,400,000 over the 20-year PPA term once the new solar installations are completed at Town Hall and PD. Because PCE staff manages the solar procurement process, design, installation, operation, and solar array system maintenance, the Town also realizes cost savings related to Town staff resources, solar contractors, structural engineers, and consultant time to install solar at the Town facilities.

BACKGROUND AND ANALYSIS
The City Council authorized approval of the first Power Purchase Agreement (PPA) with PCE on November 10, 2021, for solar installation at the Community Center and joined fourteen other jurisdictions to install solar at no upfront costs in the collaborative procurement. PCE managed the procurement process, solar array design, installation, and maintenance of the system. The City Manager signed the first PPA on February 6, 2023, which will result in $608,500 cost savings to the Town over the 20-year PPA term. Beyond the $608,500 cost savings, additional benefits include installing solar at no upfront costs to the Town, and meeting one of the Town’s Climate Action Plan 2030 programs to generate renewable energy. This project also benefits Colma residents by providing a safe and operational resiliency location where residents can go during power outages, high heat days and other emergency events once the future battery storage system is installed. The future battery storage system is optional, and staff will return to council regarding consideration of this option in the coming months after the collaborative procurement process is complete.

PCE introduced the second solar procurement process (Round 2 Solar PPA) in early 2023 and the City Manager authorized solar installation analysis of Town Hall and Police Department (PD).

PCE staff completed engineering evaluations, preliminary solar sizing with cost savings estimates and met with Town staff to discuss resulting total savings of $1,400,000 estimate over the 20-year PPA term from solar installations at Town Hall and PD. On June 29, 2023, the City Manager authorized preliminary participation by signing PCE’s Customer Participation Agreement. The Round 2 Solar PPA is very similar to what the City Council approved with the first PPA. Similar to the first solar installation process, at the Community Center, staff will return to Council for the Design Review permit consideration to review the solar installation layout at Town Hall and PD. Also similar to the first solar installation layout, the intent is for the solar panels to be installed on carports and not rooftops in consideration of prior City Council feedback.

Staff Report - Solar Procurement Process (Round 2 PPA) Page 3 of 3 At this time, PCE is requesting that jurisdictions conduct legal review of the preliminary PPA and PCE also requests that jurisdictions inform PCE of their intent to participate by November 30.

Resolution commitments are needed by jurisdictions to aid in achieving the best available pricing from solar vendors by providing a high level of confidence regarding jurisdictions’ intentions to participate in collaborative procurement.

Similar to the previous PPA process, by Council approving this resolution, Council is approving and authorizing the City Manager to execute necessary documents to participate in this second solar procurement process. The final PPA contract with specific pricing resulting from PCE’s competitive procurement will be provided in February 2024 for City Council review and consideration for approval.

Council Adopted Values
The adoption of the Resolution is consistent with the Council value of vision and responsibility because it enables the Town to generate renewable energy, reduce greenhouse gas emissions (GHG) and provide community benefit and community resiliency.

Sustainability Impact
Adoption of the Resolution will improve sustainability by reducing GHG, generating renewable energy and assisting the Town in meeting the Climate Action Plan 2030 programs approved by City Council and the GHG reduction targets.

A

TTACHMENT
A. Resolution
B. Power Purchase Agreement

Res 2023-__, Second Solar Collaborative Procurement Process Page 1 of 2 RESOLUTION 2023-__

OF THE CITY COUNCIL OF THE TOWN OF COLMA
RESOLUTION APPROVING THE TOWN’S PARTICIPATION IN THE SECOND SOLAR

COLLABORATIVE PROCUREMENT PROCESS MANAGED BY PENINSULA CLEAN

ENERGY (PCE) FOR SOLAR INSTALLATION AT TOWN HALL AND POLICE

DEPARTMENT AND APPROVING AND AUTHORIZING THE CITY MANAGER TO

EXECUTE NECESSARY DOCUMENTS FOR PARTICIPATION IN THE PROCESS PURSUANT TO CEQA GUIDELINES 15301 AND 15303

1. Background.
(
a) The Town of Colma has demonstrated its commitment to a sustainable and resilient future through adoption of its Climate Action Plan 2030 and original Climate Action Plan in 2013 and has implemented some energy efficiency, renewable energy, and water conservation programs. The Town needs to continue implementation of sustainable programs that include adding solar installations to generate renewable energy to meet aggressive greenhouse gas reductions targets in the Town’s Climate Action Plan 2030. (
b) The Town has worked collaboratively with Peninsula Clean Energy (PCE) by participating in regional programs that assist the Town in meeting greenhouse gas reduction targets. (c
) The Town participated in the first solar collaborative procurement process for solar installation at the Colma Community Center to realize over $600,000 in cost savings over the twenty-year PPA term, generate renewable energy and implement one of its CAP 2030 programs to increase local renewable generation and reduce energy costs. (
d) A Community Choice Aggregation program such as Peninsula Clean Energy (PCE) is a mechanism by which local governments assume responsibility for providing electrical power for residential and commercial customers in their jurisdiction in partnership with local commercial energy purveyors and owners of transmission and distribution facilities, which in the case of San Mateo County is Pacific Gas & Electric Co.
(e
) the Town reviewed the Power Purchase Agreement (PPA) for the second solar collaborative procurement program for solar installation at Town Hall and Police Department and will participate in the program because of the benefits of cost savings, meeting one of its CAP 2030 programs to generate renewable energy, protection against rising energy rates and reducing energy costs
2 . Order
(
a) The City Council hereby approves the Town’s participation in the Second Solar Collaborative Procurement Process and hereby approves and authorizes the City Manager to execute all documents to participate in the procurement process, with the understanding that staff will return to the City Council in February 2024 with the final Power Purchase Agreement that includes final pricing.

C
ertification of Adoption
I certify that the foregoing Resolution No. 20 23-__ was duly adopted at a regular meeting of said City Council held on November 8, 2023, by the following vote:

Attachment A

Res 2023-__, Second Solar Collaborative Procurement Process Page 2 of 2 Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
Joanne F. del Rosario, Mayor
John Irish Goodwin
Ken Gonzalez
Carrie Slaughter
Helen Fisicaro
Voting Tally

Dated ______________________ ___________________________________ Joanne F. del Rosario, Mayor

Attest: ____________________________
Caitlin Corley, City Clerk

S
olar Power Purchase Agreement
This Solar Power Purchase Agreement (this “ Agreement”) is entered into by the parties listed below (each a “ Party” and collectively the “Parties”) as of [date], 2023 (the “Effective Date”).

Purchaser: Seller:

Name
and
Addres
s
Attention:

Name
and
Addres
s
Peninsula Clean Energy Authority
2075 Woodside Rd.

Redwood City, CA 94061
Attention: Rafael Reyes, Director
of Programs
Phone Phone (650) 260-0087
E-mail E-mail [email protected]
Premises
Ownership Purchaser owns the Premises.

Tax Status System Owner
Project Name
T
his Agreement sets forth the terms and conditions of the purchase and sale of solar generated electricity from the solar panel system described in Exhibit 2 (the “System”) and installed on the real property comprising Purchaser’s premises described or depicted in Schedule A to Exhibit 2 (the “Premises”), including any buildings and other improvements on the Premises other than the System (the “Improvements”).

T
he System shall initially be owned by Seller. “System Owner” means Seller or a subsequent owner of the System in the event that Seller transfers title to the System.

The exhibits listed below are incorporated by reference and made part of this Agreement.

E
xhibit 1 Pricing
Exhibit 2 System Description, Delivery Point and Premises Exhibit 3 General Terms and Conditions
Exhibit 4 Performance Guaranty
Purchaser: Seller: Peninsula Clean Energy Authority
Signature: Signature:

Printed Name: Printed Name: Shawn Marshall
Title: Title: Chief Executive Officer
Date: Date:

Attachment B

Exh. 1, p. 1
Exhibit 1

Pricing

1. Initial Term: Twenty (20) years, beginning on the date that Commercial Operation is achieved (such date, the “Commercial Operation Date” and such term, the “Initial Term”). “Commercial Operation” means that the System is mechanically complete, commences regular, daily operation, complies with all applicable law, has undergone successful system testing, is providing electricity to the Delivery Point at the System Size specified in Exhibit 2 and has obtained all necessary Approvals (as defined in Section 5(b) of Exhibit 3), including permission to operate from the Utility and Seller.

2. Additional Terms: Upon mutual written agreement, the Parties may extend the Initial Term for up to two (2) additional terms of up to five (5) years each beginning on the expiration of the Initial Term or on the expiration of the first Additional Term, as applicable (each, an “Additional Term”).

3. Contract Price: $[_____] per kilowatt-hour (“kWh”) in the first Contract Year, increasing by [ ______] percent ( [__]%) each subsequent Contract Year . The first Contract Year shall commence on the Commercial Operation Date, and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date.

4. Contract Price Assumptions. The Contract Price is based on the following assumptions:

a. Statutory prevailing wage rates (e.g., Davis-Bacon) do apply.

b. A Performance Guaranty is being provided.

5. Contract Price Exclusions. Unless Seller and Purchaser have agreed otherwise in writing, and except as otherwise provided in Section 2(c) of Exhibit 3, the Contract Price excludes the following:

a. Groundwork (including excavation and circumvention of underground obstacles) that is unforeseen despite reasonable efforts to assess existing site conditions . Upgrades or repair to Purchaser or Utility electrical infrastructure (including Purchaser or Utility service, transformers, substations, poles, breakers, reclosers, and disconnects). “Utility” means the electric distribution utility serving Purchaser.

b. Tree removal, tree trimming, mowing and any landscape improvements.

c. Decorative fencing and/or any visual screening materials, decorative enhancements to solar support structures (including painting, paint matching, masonry/stone work, and any lighting not required to meet the minimum code compliance).

d. Removal of existing lighting, light poles, or concrete light post bases.

e. Roof membrane maintenance or reroofing work.

f. Structural upgrades to the Improvements, including Americans with Disabilities Act (“ADA”) upgrades.

g. Installation of public information screen or kiosk (including accompanying I nternet connection, power supply, technical support and ADA access).

h. Changes in System design caused by any inaccuracy in information provided by Purchaser, including information regarding Purchaser’s energy use, the Premises and the Improvements, including building plans and specifications.

If such excluded costs will result in an increase to the Contract Price, Seller shall deliver notice to Purchaser of such increase to the Contract Price not less than sixty (60) days prior to commencement of the installation of the System (“ Commencement of Installation” and such notice, the “ Excluded Costs Notice ”). If excluded costs will result in an increase to the Contract Price such that the revised Contract Price would increase by no more than [______] percent ([__]%), Purchaser shall be responsible for such increased Contract Price and the Contract Price shall be amended to reflect the new Contract Price included in the Excluded Costs Notice. If such excluded costs will result in an increase to the Contract Price, such that the revised Contract Price would increase by more than [ ______] percent ([__ ]%), Purchaser shall have a right to terminate this Agreement without penalty by providing notice of such termination within thirty (30) days of delivery of the Excluded Costs Notice.

Exh. 1, p. 2

6. Purchaser Termination Payment Schedule:

Contract Year Termination Payment
($)
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20

Exhibit 2

System Description, Delivery Point and Premises

1. System Location:

2. System Size (DC kW):

3. System Description (Expected Structure, etc.):

4. Delivery Point and Premises: Schedule A to this Exhibit 2 contains one or more drawings or images depicting:

a. Premises, including the Improvements (as applicable);

b. Proposed System location at the Premises;

c. Delivery point for electricity generated by the System (the “Delivery Point”);

d. Access points needed for Seller to cause the System to be installed and serviced (building access, electrical room, stairs, etc.); and

e. Construction assumptions (if any).

Schedule A

1. Physical building address:

2. Number of Stories:

3. Total Square Footage:

4. Year Built:

5. Year of any mechanical/electrical updates:

6. Type of Construction, (example; wood frame, masonry, steel):

7. Description/ Type of roof structure/system:

8. Confirm whether the building is sprinklered:

9. Describe any additional security measures, (example: video surveillance, etc.):

A Site Plan and Single Line Diagram are attached at the end of this document labeled “Attachment 1 to Schedule A of Exhibit 2”.

Exhibit 3
General Terms and Conditions

Exhibit 3 Table of Contents

1. PURCHASE AND SALE OF ELECTRICITY ................................................................................................. 1

2. TERM AND TERMINATION ......................................................................................................................... 1

3. BILLING AND PAYMENT; TAXES .............................................................................................................. 1

4. RECS AND INCENTIVES ............................................................................................................................... 2

5. PROJECT COMPLETION ............................................................................................................................... 3

6. INSTALLATION, OPERATION AND MAINTENANCE ............................................................................. 4

7. MISCELLANEOUS RIGHTS AND OBLIGATIONS OF THE PARTIES ..................................................... 5

8. RELOCATION OF SYSTEM .......................................................................................................................... 6

9. REMOVAL OF SYSTEM UPON TERMINATION OR EXPIRATION ........................................................ 6

10. MEASUREMENT ............................................................................................................................................ 6

11. DEFAULT, REMEDIES AND DAMAGES .................................................................................................... 7

12. REPRESENTATIONS AND WARRANTIES ................................................................................................. 9

13. INSURANCE .................................................................................................................................................. 11

14. OWNERSHIP; OPTION TO PURCHASE ..................................................................................................... 11

15. INDEMNIFICATION AND LIMITATIONS OF LIABILITY ...................................................................... 12

16. CHANGE IN LAW ......................................................................................................................................... 13

17. ASSIGNMENT AND FINANCING .............................................................................................................. 14

18. CONFIDENTIALITY ..................................................................................................................................... 14

19. GENERAL PROVISIONS.............................................................................................................................. 16

Exh. 3, p. 1
Exhibit 3
General Terms and Conditions

1. Purchase and Sale of Electricity. Subject to the terms and conditions of this Agreement, Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electricity generated by the System during the Term (as defined in Schedule 2(a)).

Electricity generated by the System shall be delivered to Purchaser at the Delivery Point. Title to and risk of loss for the electricity generated by the System passes to Purchaser from Seller at the Delivery Point. Seller warrants that it will deliver the electricity to Purchaser at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances.

2. Term and Termination.

a. Effective Date; Term. This Agreement is effective as of the Effective Date. The electricity supply period under this Agreement commences on the Commercial Operation Date (as defined in Section 1 of Exhibit 1) and continues for the duration of the Initial Term and any Additional Terms, unless earlier terminated as provided for in this Agreement (collectively, the “Term”).

b. Additional Terms. The Parties may agree in writing to extend this Agreement for up to two (2) Additional Terms at a Contract Price to be negotiated by the Parties prior to the expiration of the Initial Term or the first Additional Term, as applicable.

c. Termination Due to Contract Price Adjustments or Lack of Project Viability . If, at any time after the Effective Date and prior to Commencement of Installation, (i) Purchaser terminates this Agreement pursuant to Section 5 of Exhibit 1, or (ii) Seller determines that the installation of the System will not be viable for any reason, then either Party may terminate this Agreement by providing ten (10) days’ prior written notice to the other Party. Neither Party shall be liable for any damages in connection with such termination. After Commencement of Installation, the Contract Price shall not be subject to further adjustment pursuant to Section 5 of Exhibit 1 or otherwise.

d. Termination by Purchaser for Delay . If Commencement of Installation has not occurred within three hundred and sixty-five (365) days after the Effective Date, Purchaser may terminate this Agreement by providing thirty (30) days’ prior written notice to Seller; provided that this Agreement will not terminate pursuant to this Section 2(d) if Seller causes to be achieve d Commencement of Installation on or before the end of such thirty (30) day notice period or if Commencement of Installation is delayed due to a Force Majeure Event. Purchaser shall not be liable for any damages in connection with such termination. For the avoidance of doubt, such event shall not be deemed a Default Event by Seller and Purchaser’s only remedy shall be the reimbursement by Seller of direct costs reasonably incurred by Purchaser by reason of the termination.

3. Billing and Payment; Taxes.

a. Monthly Charges. Purchaser shall pay Seller monthly for the electricity generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit 1 (the “Contract Price”). The monthly payment for such energy will be equal to the applicable $/kWh rate multiplied by the number of kWh of electricity generated during the applicable month, as measured by the Meter (as defined in Section 10). Additional costs for items differing from the assumptions in Exhibit 1, Section 4 are Purchaser’s responsibility.

b. Monthly Invoices. Seller shall invoice Purchaser monthly for amounts owed by Purchaser hereunder . Such monthly invoices shall state (i) the amount of electricity produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement, and (iii) the total amount due from Purchaser.

c. Payment Terms. All amounts due under this Agreement are due and payable within thirty (30) days following receipt of invoice. Any undisputed portion of the invoice amount not paid within such thirty (30) day period shall accrue interest at the annual rate of two and one -half percent (2.5%) above the Prime Rate (but not to exceed the maximum rate permitted by law). All payments shall be made in U.S. dollars. “Prime Rate” shall mean the annual prime rate of interest published in the Wall Street Journal for the applicable period during which interest is incurred pursuant to the terms of the Agreement.

d. Taxes.

Exh. 3, p. 2
i. Purchaser’s Taxes. Purchaser is responsible for: ( A) payment of, or reimbursement of Seller, for all taxes assessed on the generation, sale, delivery or consumption of electricity produced by the System or the interconnection of the System to the Utility’s electricity distribution system; (B) real property taxes; and (C) any sales or use taxes as a result of exercising the option to purchase the System in Section 14(b).

ii. Seller’s Taxes. Seller is responsible for: ( A) payment of income taxes or similar taxes imposed on Seller’s revenues due to the sale of electricity under this Agreement; and ( B) personal property taxes imposed on the System (“Seller’s Taxes”).

e. Budgeting for Contract Price. Upon execution of this Agreement and prior to the commencement of each subsequent budgetary cycle of Purchaser during the Initial Term (and Additional Term, if any), Purchaser shall take all necessary action to obtain all necessary budgetary approvals and certifications for payment of all of its obligations under this Agreement for such budgetary cycle, including, but not limited to including the maximum amount of its annual payment obligations under this Agreement in its budget submitted to Purchaser’s [ City Council] for each year of that budget cycle.

4. RECs and Incentives.

a. Definitions.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority having jurisdiction or effective control over a Party.

“Incentives” means (i) a payment paid by a utility or state or local Governmental Authority based in whole or in part on the cost or size of the System such as a rebate, (ii) a performance- based incentive paid as a stream of periodic payments by a utility, state or Governmenta l Authority based on the production of the System, (iii) investment tax credits, production tax credits, and similar tax credits, grants or other tax benefits under federal, state or local law, including, but not limited to, the election to receive a payme nt with respect to investment tax credits or production tax credits pursuant to Code Section 6417, and (iv) any other attributes, commodity, revenue stream or payment in connection with the System (such as ancillary or capacity revenue), in each case of (i) through (iv) relating to the construction, ownership, use or production of energy from the System, provided that Incentives shall not include RECs.

“REC” means a renewable energy credit or certificate under any state renewable portfolio, standard or federal renewable energy standard, voluntary renewable energy credit certified by a non-governmental organization, pollution allowance, carbon credit and any similar environmental allowance or credit and green tag or other reporting right under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program, in each case relating to the construction, ownership, use or production of energy from the System, provided that RECs shall not include Incentives.

b. RECs. The Parties hereby agree that Seller is entitled to the benefit of, and will retain all ownership interests in , the RECs. Seller shall not sell, assign or otherwise transfer the RECs to a third party. If necessary, Purchaser shall cooperate with Seller in obtaining, securing and transferring any and all RECs. Purchaser is not obligated to incur any out -of- pocket costs or expenses in connection with such actions unless reimbursed by Seller. Purchaser shall not make any filing or statements inconsistent with Seller’s ownership interests in the RECs, nor shall Purchaser attempt to sell, assign or transfer such RECs. If any RECs are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.

c. Incentives. The Parties hereby agree that Seller or a subsequent System Owner, if applicable, and not Purchaser , is entitled to the benefit of, and will retain all ownership interests in, the Incentives. If necessary, Purchaser shall cooperate with Seller and any such third- party System Owner in obtaining, securing and transferring any and all Incentives , including cooperating, as requested by Seller, with respect to any challenges as to Seller obtaining any portion or amount of the Incentives. Without limiting the foregoing, Purchaser acknowledges that Seller intends to qualify for the elective payment incentive (the “Elective Pay Incentive”) in Section 6417 of the I nternal Revenue Code of 1986, as amended (the “Code”) with respect to the federal income tax credits under either (the “Applicable Credits ”) Code Sections 45 or 48. Purchaser agrees to cooperate with Seller to the extent requested by Seller, so that Seller can (i) qualify for the Applicable Credits in the context of the Elective Pay Incentive, (ii) obtain a payment of applicable proceeds with respect to Elective Pay Incentive, (iii) avoid a disallowance, recapture, or reduction of the proceeds with respect to the Elective Pay Incentive, and (iv) prevent an excess payment as set forth in Code Section 6417(d)(6). Purchaser is not obligated to incur any out -of-pocket costs or expenses in connection with such actions unless reimbursed by Seller or any such Exh. 3, p. 3
System Owner. Purchaser shall not make any filing or statements inconsistent with Seller’s or System Owner’s ownership interests in the Incentives, nor shall Purchaser attempt to sell, assign or transfer such Incentives. If any Incentives are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.

5. Project Completion.

a. Project Development . Seller shall use reasonable efforts to pursue or cause to be pursued the development and installation of the System, subject to Section 2(c) and the remaining provisions of this Section 5.

b. Permits and Approvals. Seller shall use reasonable efforts to cause to be obtained the following at its sole cost and expense (each, an “Approval”):

i. any zoning, land use and building permits required for Seller to cause the System to be constructed, installed and operated; and

ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Utility ’s electric distribution system.

Purchaser shall reasonably cooperate with Seller’s reasonable requests to assist Seller in expeditiously obtaining such Approvals, including, without limitation, the execution of documents required to be provided by Purchaser to the Utility. The Parties acknowledge and agree that Purchaser does not have authority or jurisdiction over any other public agency’s ability to grant Approvals or ability to impose limitations that may affect the System, provided, that such acknowledgment and agreement does not apply to joint powers authorities or related agencies over which Purchaser asserts authority.

c. Force Majeure.

i. Force Majeure Event . If either Party is unable to timely perform any of its obligations (other than payment obligations) under this Agreement in whole or in part due to a Force Majeure Event, that Party will be excused from performing such obligations for the duration of the time that such Party remains affected by the Force Majeure Event; provided, that such Party uses reasonable efforts to mitigate the impact of the Force Majeure Event and resumes performance of its affected obligations as soon as reasonably practical. The Party affected by the Force Majeure Event shall notify the other Party as soon as reasonably practical after the affected Party becomes aware that it is or will be affected by a Force Majeure Event. If the Force Majeure Event occurs during the Term and impacts the ability of the System to deliver electricity to the Delivery Point, the Term will be extended day for day for each day delivery is suspended due to the Force Majeure Event , up to a maximum of two (2) years.

ii. Extended Force Majeure. If a Force Majeure Event notified by either Party under paragraph (i) above continues for a consecutive period of three hundred sixty- five (365) days or more, then either Party may elect to terminate this Agreement without either Party having further liability under this Agreement except: (A) liabilities accrued prior to termination, ( B) Seller’s obligation to cause the System to be removed as required under Section 9 (but Purchaser shall reimburse Seller for Seller’s removal costs if the Force Majeure Event affects Purchaser and Purchaser elects to terminate the Agreement) and (C) if Purchaser elects to terminate the Agreement in accordance with this Section, Purchaser shall pay Seller a termination payment equal to the amount set forth in Section 6 of Exhibit 1 . Notwithstanding the foregoing, if the Force Majeure Event can be corrected through repair or restoration of the System or other actions by Seller and, prior to expiration of the three hundred sixty- five (365) day period, Seller provides written evidence to Purchaser that it is diligently pursuing such actions, then Purchaser shall not have the right to terminate this Agreement so long as Seller continues to diligently pursue such actions.

iii. Definition of “Force Majeure Event .” “Force Majeure Event” means any event or circumstance beyond the reasonable control of and without the fault or negligence of Seller, including, without limitation: an act of God; war (declared or undeclared); sabotage; piracy; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction, tariff or embargo; civil strike, work stoppage, slow -down, or lock- out; explosion; fire; earthquake; tsunami; storm; tornado; blizzard; heatwave; hurricane; flood; lightning; hail; wind; drought; animals; epidemic; pandemic; action or the failure to act by a Governmental Authority or the Utility , including, but not limited to, a moratorium on any activities related to this Agreement or the delay or a lack of a final Approval based on the California Environmental Quality Act (“ CEQA”) or other applicable law , provided that the delay in decision-making is not attributable to the Party claiming a Force Majeure Event and that such Party has exercised its reasonable efforts to cause such Approval to be obtained; delays in interconnection, provided that the delay in obtaining interconnection is not attributable to the Party claiming a Force Majeure Event Exh. 3, p. 4
or its agents; unavailability of electricity from the Utility grid; and failure or unavailability of equipment, supplies or products outside of Seller’s control or due to a Force Majeure Event. For purposes of the definition of “Force Majeure,” a Party shall not be considered a Governmental Authority if such Party is claiming the presence of a Force Majeure Event as an excuse for its failure to timely perform its obligations under this Agr eement.

d. Extension of Time. If Seller is delayed in causing the achievement of Commencement of Installation due to a Force Majeure Event, the time for achievement of Commencement of Installation will be automatically extended to account for the impact of the delay.

e. Commercial Operation. Seller shall notify Purchaser in writing at least one week prior to the Commercial Operation Date. Upon Purchaser’s reasonable request, Seller shall provide Purchaser with the “Final Completion Certificate” as executed by the contractor to Seller responsible for installing the System and the “Final Completion Notification” as executed by Seller to evidence that the System is ready to begin Commercial Operation. Purchaser may not turn on, electrify or otherwise operate the System in the absence of prior, written permission from Seller.

6. Installation, Operation and Maintenance.

a. Seller’s General Obligations Regarding the System. Subject to the terms and conditions of this Agreement, Seller shall use reasonable efforts to cause the System to be designed, engineered, installed, commissioned, monitored, operated and maintained, in each case in a good and workmanlike manner and in accordance with applicable law and prudent solar industry practices in the State of California. T he Seller shall ensure that the System compl ies with all applicable law, rules, regulations and local building codes.

b. System Design Approval . Seller has provided Purchaser with a copy of the System design, and Purchaser has approved such design. Should any subsequent changes to the System design be made prior to C ommencement of Installation, Purchaser shall be provided with a copy of any such revised System design and Purchaser shall have ten (10) business days after receipt to approve or disapprove the revised design in writing , such approval not to be unreasonably withheld. Failure by Purchaser to respond within such ten (10) business day period shall be deemed approval of the revised System design. If Purchaser disapproves the revised System design, Seller may either (i) cause the design to be reverted to the original design approved by Purchaser or (ii) terminate this Agreement and such termination shall be without further liability to Purchaser. If changes to the System design or other changes, including new information regarding Purchaser’s electricity needs or Seller’s selection of equipment for the System, will result in a change to any of the data on Exhibit 2 (including, but not limited to the System Size), Exhibit 2 may be revised if any such changes are approved by both Parties in writing.

c. System Repair and Maintenance. Seller may cause the suspension of delivery of electricity from the System to the Delivery Point for the purpose of causing the maintenance to and repairs of the System; provided that Seller shall use reasonable efforts to minimize any interruption in service to the Purchaser and shall provide at least thirty (30) business days’ advance notice to Purchaser of any scheduled maintenance and repairs . Emergency maintenance and repairs may be performed in the absence of such notice if necessary to prevent harm to persons or property. Scheduled and unscheduled maintenance and repairs shall be undertaken at Seller’s sole cost and expense, except that Purchaser shall reimburse Seller for the reasonable cost of any repairs or maintenance resulting from damage caused by Purchaser, its agents, employees or contractors.

d. System Outage Allowance. Upon Purchaser’s written request, Seller shall cause the System to be taken off-line for a total of forty -eight (48) daylight hours (as defined by the United States National Weather Service in the area where the System is located) during each Contract Year (each event an “ Outage” and the forty -eight (48) hour period the “Outage Allowance ”). The Outage Allowance includes all Outage hours undertaken by Seller for maintenance or repairs for which Purchaser is responsible pursuant to Section 6(c) or requested by Purchaser under this Section 6(d) (other than due to the fault or negligence of Seller). Purchaser’s request shall be delivered at least forty -eight (48) hours in advance. Purchaser is not obligated to accept or pay for electricity from the System for Outages up to the annual Outage Allowance. If the aggregate hours for Outages , including, but not limited to Outages resulting from a temporary disconnection or removal pursuant to Section 6(f), exceed the Outage Allowance in a given Contract Year and Purchaser has opted out of receiving retail electric generation service from Seller, Seller shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess Outages and Purchaser shall pay Seller for such amount in accordance with this Agreement.

e. Maintenance of Premises. Purchaser shall, at its sole cost and expense, maintain the Premises and Improvements in good condition and repair. Purchaser, to the extent within its reasonable control, (i) shall ensure that the Premises remains interconnected to the local Utility grid at all times; and (ii) shall not permit cessation of delivery of electric Exh. 3, p. 5
service to the Premises from the local Utility . Purchaser is fully responsible for, and shall properly maintain in full working order and good repair, the electrical infrastructure on the Purchaser’s side of the Delivery Point, including all of Purchaser’s equipment that utilizes the System’s outputs. Purchaser shall use reasonable efforts to cooperate with Seller to comply with any technical standard of the Utility providing electrical power to the Purchaser.

f. Alteration or Repairs to Premises . Not less than ninety (90) days prior to making any alterations or repairs to the Premises (except for emergency repairs) or any Improvement which may adversely affect the operation and maintenance of the System, Purchaser shall inform Seller in writing and, thereafter, shall use reasonable efforts to conduct such repairs, alterations or Improvements in compliance with any reasonable request made by Seller within ten (10) days after having received such written request to m itigate any adverse effect. If any repair, alteration or Improvement result in a permanent and material adverse economic impact on the System, Purchaser may request relocation of the System under
Section 8 hereof. To the extent that temporary disconnection of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall cause to be performed such work, and any re- connection of the System, at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e) . To the extent that temporary removal of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall use reasonable efforts to cause to be performed such removal work within one hundred and eighty (180) days of Seller’s determination that such temporary removal is required and any such removal and re -installation work shall be at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e). Purchaser shall cause to be made any alterations and repairs in a good and workmanlike manner, in compliance with all applicable laws, codes and permits.

7. Miscellaneous Rights and Obligations of the Parties.

a. Access Rights . In consideration of and in order to effectuate the mutual covenants and terms of this Agreement, Purchaser hereby grants to Seller and to Seller’s agents, employees, contractors and subcontractors and the Utility (i) a non-exclusive license running with the Premises (the “Non-Exclusive License”) for access to, on, over, under and across the Premises from the Effective Date until the date that is one hundred and eighty (180) days following the date of expiration or earlier termination of this Agreement (the “License Term”), for the purposes of performing all of Seller’s obligations and enforcing all of Seller’s rights set forth in this Agreement and otherwise as required by Seller in order to effectuate the purposes of this Agreement, including, but not limited to design, engineering, development, construction, installation, inspection, interconnection, testing, operation, maintenance, repair, replacement and removal of the System and all incidental and related uses connected therewith . [In addition to the for egoing, if the System shall be a ground- mounted System to be located within a secure, fenced area on the Premises, Purchaser hereby grants to Seller an exclusive, sub-licensable license running with the Premises (the “Exclusive License”, and together with the Non- Exclusive License, the “ Licenses”) for purposes of the installation, operation, use and maintenance of the System on such exclusively licensed area of the Premises during the License Term.] Seller shall use reasonable efforts to ensure that it and its employees, agents, contractors and subcontractors comply with Purchaser’s site safety and security requirements which have been provided to Seller in writing within sixty (60) days of the Effective Date when on the Premises [(other than in respect of the fenced area governed by the Exclusive License)] during the License Term. During the License Term, Purchaser shall preserve and protect Seller’s rights under the Licenses and Seller’s access to the Premises and shall not interfere, or permit any third parties under Purchaser’s control to interfere, with such rights or access. Seller may record a customary memorandum of license in the land records respecting the Licenses.

b. OSHA Compliance. Each Party shall comply with all Occupational Safety and Health Act ( “OSHA”) requirements and other similar applicable safety laws and codes with respect to such Party’s performance under this Agreement.

c. Safeguarding the Premises . Purchaser shall maintain the physical security of the Premises and Improvements in a manner to be expected of a reasonable and prudent owner of premises and improvements similar to the Premises and Improvements in nature and location. Purchaser shall not conduct or permit activities on, in or about the Premises or the Improvements that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System. Purchaser shall indemnify Seller for any lo ss or damage to the System to the extent caused by or arising out of (i) Purchaser’s breach of its obligations under this Section or (ii) the acts or omissions of Purchaser or its employees, agents, invitees or separate contractors. Without limiting the foregoing, Seller shall arrange for security of the System, equipment and tools during the construction of the System and Purchaser shall cooperate with Seller and its contractor with respect to such security measures.

d. Insolation. Purchaser acknowledges that unobstructed access to sunlight (“ Insolation”) is essential to Seller’s performance of its obligations and a material term of this Agreement. Purchaser shall not, to the extent within its reasonable control, cause or permit any interference with the System’s Insolation, and shall ensure that vegetation on the Premises adjacent to the System is regularly pruned or otherwise maintained to prevent interference with the Exh. 3, p. 6
System’s Insolation. If either Party discovers any activity or condition that could diminish the Insolation of the System, such Party shall immediately notify the other Party and Purchaser shall cooperate with Seller in preserving and restoring the System’s Insolation levels as they existed on the Effective Date.

e. Use and Payment of Contractors and Subcontractors. Seller shall use and shall cause to be used suitably qualified, experienced and licensed contractors and subcontractors to perform its obligations under this Agreement. However, Seller shall be responsible for the quality of the work performed by such contractors and subcontractors. Seller shall pay or shall cause to be paid when due all valid charges from all contractors, subcontractors and suppliers supplying goods or services to Seller under this Agreement.

f. Liens.

i. Lien Obligations. Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature, except such encumbrances as may be required to allow Seller access to the Premises (each a “Lien ”) on or with respect to the System. Seller shall not directly or indirectly cause, create, incur, assume or allow to exist any Lien on or with respect to the Premises or the Improvements, other than those Liens which Seller is permitted by law to place on the Premises due to non-payment by Purchaser of amounts due under this Agreement. Each Party shall immediately notify the other Party in writing of the existence of any such Lien following such Party’s discovery of same, and shall promptly (and in all events within thirty (30) days) cause the same to be discharged and released of record without cost to the other Party; provided, however, that each indemnifying Party has the right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of payment that either removes such Lien from title to the affected property, or that assures that any adverse judgment with respect to such Lien shall be paid without affecting title to such property.

ii. Lien Indemnity . Each Party shall indemnify the other Party from and against all claims, losses, damages, liabilities and expenses resulting from any Liens filed against such other Party’s property as a result of the indemnifying Party’s breach of its obligations under Section 7(f)(i).

8. Relocation of System. If, during the Term, Purchaser ceases to conduct operations at the Premises or vacates the Premises , the Premises have been destroyed , or the Purchaser is otherwise unable to continue to host the System or accept the electricity delivered by the System for any other reason (other than a Default Event by Seller), Purchaser shall propose in writing the relocation of the System, at Purchaser’s cost. Such proposal shall be practically feasible and preserve the economic value of this Agreement for Seller. The Parties shall seek to negotiate in good fai th an agreement for the relocation of the System. Pending agreement on relocation of the System, Purchaser shall continue to pay Seller at the Contract Price for all electricity that Seller reasonably estimates it would have been able to deliver to Purchaser in accordance with this Agreement but for the applicable circumstance described in the first sentence of this paragraph.

9. Removal of System upon Termination or Expiration. Upon the expiration or earlier termination of this Agreement (provided Purchaser does not exercise its purchase option under Section 14(b) ), Seller shall, at its expense (unless expressly provided otherwise in this Agreement), cause to be removed all of the tangible property comprising the System from the Premises with a targeted completion date that is no later than one hundred and eighty (180) days after the expiration of the Term. The portion of the Premises where the System is located shall be returned to substantially its original condition as is reasonably possible, except for ordinary wear and tear, including the removal of System mounting pads or other support structures, and repair and restoration of the roof and the roof membrane. Seller is required to cause to be repair ed any and all damage to the Premises caused by removal of the System. Notwithstanding the foregoing, Seller shall not be obligated to remove or cause to be removed any support structures for the System which are affixed to and below the exposed surface of Purchaser’s structures or any below
grade structures, including foundations and conduits, or any roads . If the System is installed on the roof of an Improvement, Seller’s warranties under Section 12(c)(i) shall apply, as applicable. Purchaser must provide sufficient access, space and cooperation as reasonably necessary to facilitate System removal. Purchaser shall comply with Section 7(c) and Section 13 until removal is complete. If Seller fails to cause the removal of the System within one hundred and eighty (180) days after expiration of the Term , Purchaser may, at its option, remove the System to a public warehouse and restore the Premises to its original condition (other than ordinary wear and tear) at Seller’s cost , provided that if Seller pays Purchaser for such costs, Seller shall not be liable to Purchaser for a Default Event by Seller.

10. Measurement.

a. Meter. The System’s electricity output during the Term shall be measured by Seller’s meter, which shall be a revenue grade meter that meets ANSI-C12.20 standards for accuracy (the “Meter”). Purchaser shall have access to the metered Exh. 3, p. 7
energy output data via the monitoring system caused to be installed and maintained by Seller as part of the System.

b. Meter Calibration. Seller shall cause the Meter to be calibrated in accordance with manufacturer’s recommendations.

Notwithstanding the foregoing, Purchaser may install, or cause to be installed, its own revenue -grade meter at the same location as the Meter. If there is a discrepancy between the data from Purchaser’s meter and the data from the Meter of greater than two percent (2%) over the course of a Contract Year, then Purchaser may request that Seller calibrate the Meter at Purchaser’s cost.

c. Internet Connection. At all times during the Term, Purchaser shall maintain and make available, at Purchaser’s cost:

i. A hard-wired ethernet port for connection to System equipment located within fifty ( 50) physical feet of the electrical room of the Premises; or, if such hard -wired port is not feasible, Wi -Fi available seven (7) days per week and twenty-four (24) hours per day;

ii. Information technology support services as needed to provide Internet connectivity via the connection described in Section 10(c)(i); and

iii. A dedicated IP address for System equipment.

If Purchaser does not maintain such Internet connection described above, Seller will not be able to cause the System to be monitored or provide the performance guaranty set forth on Exhibit 4. Further, if Seller is not able to monitor the System, Seller will be required to estimate the System’s power production for purposes of determining the monthly payment(s) for any such month in which the required Internet connection was not available.

11. Default, Remedies and Damages.

a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below is deemed a “Defaulting Party”, the other Party is the “Non-Defaulting Party” and each of the following is a “Default Event”:

i. failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is subject to a good faith dispute, within ten (10) days following receipt of written notice from the Non- Defaulting Party of such failure to pay (“Payment Default”);

ii. failure of a Party to perform any material obligation under this Agreement or an act or omission of a Party in violation of the terms and conditions of this Agreement not addressed elsewhere in this Section 11 within sixty (60) days following receipt of written notice from the Non-Defaulting Party demanding such cure; provided, that if the Default Event cannot reasonably be cured within sixty (60) days and the Defaulting Party has demonstrated prior to the end of that period that it is diligently pursuing such cure, the cure period will be extended for a further reasonable period of time, not to exceed ninety (90) days;

iii. such Party fails to provide or maintain in full force and effect any required insurance, if such failure is not remedied within ten (10) business days after receipt of written notice from the Non-Defaulting Party to the Defaulting Party;

iv. any representation or warranty given by a Party under this Agreement was incorrect in any material respect when made and is not cured within thirty (30) days following receipt of written notice from the Non- Defaulting Party demanding such cure;

v. a Party becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a similar effect (or, if any such actions are initiated by a third party, such action(s) is (are) not dismissed within sixty (60) days); or,

vi. in the case of Purchaser as the Defaulting Party only, Purchaser (A) loses its rights to occupy and enjoy the Premises, unless (I) the Parties agree upon a relocation under Section 8 above; (B) loses its right to provide or is
in default under Section 7(a) ; or (C) prevents Seller from performing any material obligation under this Agreement unless such action by Purchaser is (I) permitted under this Agreement, or (II) cured within ten (10) days after written notice thereof from Seller.

Exh. 3, p. 8
b. Remedies.
i. Purchaser Default Event Remedies. Upon the occurrence and during the continuation of a Default Event where the Purchaser is the Defaulting Party, including a Payment Default:

A. Seller may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Seller’s rights against the Purchaser, including rights t o any payments due hereunder in an action for damages, and to compel the Purchaser to perform and carry out its duties and obligations under the law and its covenants and agreements with the Seller as provided herein.

B. Seller may suspend performance of its obligations under this Agreement , including, but not limited to , turning off the System, until the earlier to occur of the date (A) that Purchaser cures the Default Event in full, including making payment in full as provided in Section 11(b)(i)(C ). Seller’s rights under this Section 11(b)(i)(B) are in addition to any other remedies available to it under this Agreement, at law or in equity.

C. except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Purchaser shall continue to pay, and Seller shall be entitled to recover payment for: (x) all electri city delivered by Seller pursuant to Section 3 of this Agreement, and
(y) all electricity that Seller reasonably estimates it would have been able to deliver to Purchaser in accordance with this Agreement but for the Default Event by Purchase, in each case at the Contract Price, together with (z) any other amounts due and payable pursuant to this Agreement.

ii. Seller Default Event Remedies . Upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party:

A. Purchaser may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Purchaser’s rights against the Seller, including rights to any payme nts due hereunder in an action for damages, and to compel the Seller to perform and carry out its duties and obligations under the law and its covenants and agreements with the Purchaser as provided herein.

B. except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Seller and Purchaser shall continue to pay all amounts due and payable pursuant to this Agreement.

iii. Optional Termination by Purchaser. In addition to the remedies provided for in Section 11(b)(i) and Section
11(b)(ii), upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party, the Purchaser may terminate this Agreement as further set forth in this Section 11(b)(iii) by providing thirty (30) days prior written notice to the Seller ; provided, that, in the case of a Default Event under Section 11(a)(v) where the Seller is the Defaulting Party , no such notice period shall be required. Upon termination pursuant to this Section 11(b )(iii), Seller shall pay to Purchaser an amount equal to the sum of (1) the present value of the excess, if any, of the reasonably expected cost of electricity delivered by the Utility over the Contract Price for the reasonably expected production of the System for a period of the lesser of five (5) years or the remainder of the Initial Term or the then current Additional Term, as applicable; (2) all direct costs reasonably incurred by Purchaser by reason of the termination; and (3) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser (the “ Seller Termination Payment ”). The Seller Termination Payment determined under this Section 11(b)(iii) cannot be less than zero.

iv. Optional Termination by Seller . In addition to the remedies provided for in Section 11(b)(i) and Section 11(b)(ii), upon the occurrence and during the continuation of a Default Event where Purchaser is the Defaulting Party, the Seller may terminate this Agreement as further set forth in this Section 11(b)(iv) by providing thirty (30) days prior written notice to the Seller; provided, that, in the case of a Default Event under Section 11(a)(v) where the Purchaser is the Defaulting Party, no such notice period shall be required. Upon termination pursuant to this Section 11(b)(iv), Purchaser shall pay to Seller an amount equal to the sum of (1) the applicable amount set forth in the Purchaser Termination Payment Schedule of Section 6 of Exhibit 1, and (2) any other amounts previously accrued under this Agreement and then owed by Purchaser to Seller (collectively, the “ Purchaser Termination Payment” and, together with the Seller Termination Payment, the “ Termination Payment”). The Purchaser Termination Payment determined under this Section 11(b)(iv) cannot be less than zero.

v. Severability of Remedies. If any remedy in Section 11(b) is held by a court of competent jurisdiction to be in
conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held to be Exh. 3, p. 9
unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendering the other remedies herein contained invalid, inoperative, or unenforceable to any extent whatsoever. If any one or more of the provisions contained in Section 11(b) of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this
Section 11(b) and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Parties hereby declare that they each would have executed this Agreement and each and every other section hereof irrespective of the fact that any one or more sections of this Section 11(b) may be held illegal, invalid or unenforceable.

vi. Liquidated Damages. The Parties agree that, if Seller terminates this Agreement prior to the expiration of the Term pursuant to Section 11(b)( iv), actual damages would be difficult to ascertain, and the Purchaser Termination Payment determined in accordance with Section 11(b)(iv) is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement and is not a penalty.

c. Obligations Following Termination. If a Party terminates this Agreement pursuant to Section 11(b)(iii) , or Section 11(b)(iv), then following such termination, Seller shall cause and shall have the right to cause the equipment constituting the System to be removed in compliance with Section 9 at the sole cost and expense of the Defaulting Party, provided, however that Seller shall not be required to cause the System to be removed following the occurrence of a Default Event by Purchaser, unless Purchaser has paid the Purchaser Termination Payment to Seller or pre -pays the cost of removal and restoration reasonably estimated by Seller.

i. Reservation of Rights . Except in the case of a termination under Section 11(b)(iii) or Section 11(b)(iv) and payment of a Termination Payment , if any, determined pursuant to as provided therein, nothing in this Section 11 limits either Party’s right to pursue any remedy under this Agreement, at law or in equity, including with respect to the pursuit of an action for damages by reason of a breach or Default Event under this Agreement.

ii. Mitigation Obligation . Regardless of whether this Agreement is terminated for a Default Event, the Non- Defaulting Party must make reasonable efforts to mitigate its damages as the result of such Default Event; provided that such obligation shall not reduce Purchaser’s obligat ion to pay the full Purchaser Termination Payment set forth in
Section 6 of Exhibit 1 following a Default Event by Purchaser.

iii. No Limitation on Payments. Nothing in this Section 11 excuses a Party’s obligation to make any payment when due under this Agreement, including with respect to payments for electricity that would have been delivered to Purchaser but for a Purchaser breach or Default Event.

12. Representations and Warranties.

a. General Representations and Warranties. Each Party represents and warrants to the other the following:

i. Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary governmental action, and do not and will not violate any law; and this Agreement is the valid obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally).

ii. Such Party has obtained all licenses, authorizations, consents and approvals required by applicable law and any Governmental Authority or other third-party and necessary for such Party to own its assets, carry on its business and operations and to execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this Agreement in all material respects.

b. Purchaser’s Representations and Warranties. Purchaser represents and warrants to Seller the following:

i. Licenses. (A) Purchaser has title to and is the fee owner of the Premises such that Purchaser has the full right, power and authority to enter into and perform all of its obligations under this Agreement, (B) this Agreement does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Premises and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Premises, and (C) there are no deeds of trust, mortgages or similar security instruments with a lien against the Premises.

Exh. 3, p. 10

ii. Other Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default under any agreement or obligation to which Purchaser is a party or by which Purchaser is bound.

iii. Accuracy of Information. All information provided by Purchaser to Seller, as it pertains to (A) the Premises, (B) the Improvements on which the System is to be installed, if applicable, ( C) Purchaser’s planned use of the Premises and any applicable Improvements, and ( D) Purchaser’s estimated electricity requirements, is accurate in all material respects.

iv. Purchaser Status. Purchaser is not a public utility or a public utility holding company and is not subject to regulation as a public utility or a public utility holding company.

v. Limit on Use. No portion of the electricity generated by the System shall be used to heat a swimming pool.

c. Seller’s Warranties.

i. If Seller causes to be penetrated the roof of any Improvement on which the System is installed, during System installation or any System repair, Seller shall provide for a warranty on roof damage caused by these roof penetrations. This roof warranty shall terminate upon the earlier of (A) five (5) years following the Commercial Operation Date and (B) the expiration of the warranty applicable to such roof provided by Purchaser’s roofing contractor.

ii. If Seller or its agents damage any other part of the Premises or any Improvement (including roof damages not covered under Section 12(c)(i)
above), Seller shall repair or reimburse Purchaser for such damage, as agreed by the Parties and subject to Section 15.

d. NO OTHER WARRANTY . THE WARRANTIES SET FORTH IN SECTIONS 12(a) AND 12(c) OF THIS AGREEMENT ARE PURCHASER’S SOLE AND EXCLUSIVE BASIS FOR ANY CLAIM OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS SECTION 12 , WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 12(a) AND 12(c), NO WARRANTY, WHETHER STATUTORY, WRITTEN, ORAL,

EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND

FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, APPLIES UNDER THIS AGREEMENT. THE PERFORMANCE GUARANTY SET FORTH IN
EXHIBIT 4 REPRESENTS A SEPARATE CONTRACT BETWEEN PURCHASER AND THE ISSUER OF THE PERFORMANCE GUARANTY. IF THE ISSUER OF THE PERFORMANCE GUARANTY (OR ANY

SUBSEQUENT ASSIGNEE) AND THE SELLER ARE NOT THE SAME PERSON, NO RIGHTS PROVIDED TO

PURCHASER BY THE PERFORMANCE GUARANTY MAY BE ASSERTED UNDER THIS AGREEMENT, AND NO CLAIM UNDER THE PERFORMANCE GUARANTY WILL AFFECT PURCHASER’S OBLIGATIONS UNDER THIS AGREEMENT.

Exh. 3, p. 11

13. Insurance.

a. Insurance Coverage. At all times during the Term, the Parties shall maintain the following insurance, as applicable:

i. Seller’s Insurance. Seller shall maintain (A) property insurance on the System for the replacement cost thereof, (B) commercial general liability, employers liability and automobile liability insurance with primary coverage of at least $1,000,000 per occurrence, an excess liability limit of $5,000,000, for a total of $6,000,000 in the aggregate, and (C) workers’ compensation insurance as required by law. Seller’s coverage may be provided as part of an enterprise insurance program.

ii. Purchaser’s Insurance. Purchaser shall maintain commercial general liability insurance with coverage of at least $2,000,000 per occurrence.

b. Policy Provisions. The insurance policies referenced in Section 13(a) shall (i) contain a provision whereby the insurer agrees to give the other Party at least thirty (30) days (ten (10) days for non- payment of premiums) written notice before the insurance is cancelled, or terminated, (ii) be written on an occurrence basis, and (iii) be maintained with companies either rated no less than A-VII as to Policy Holder’s Rating in the current edition of A.M. Best’s Insurance Guide or otherwise reasonably acceptable to the other Party.

c. Certificates. Upon the other Party’s request, each Party shall deliver to the other Party certificates of insurance evidencing the above required coverage. A Party’s receipt, review or acceptance of such certificate shall in no way limit or relieve the other Party of the duties and responsibilities to maintain insurance as set forth in this Agreement.

d. Deductibles. Each Party shall pay or cause to be paid its own insurance deductibles, except in the case of claims (i) resulting from a breach of this Agreement, in which case the breaching Party is responsible for payment of the non- breaching Party’s deductible for any responding insurance, and (ii) covered by an indemnity set forth in this Agreement.

14. Ownership; Option to Purchase.

a. Ownership of System.
i. Ownership; Personal Property . System Owner or its assignee shall be the legal and beneficial owner of the System and the System will remain the personal property of System Owner or such assignee and will not attach to or be deemed a part of, or fixture to, the Premises or any Improvement on which the System is installed. Each of the Seller and Purchaser agree that System Owner or its assignee is the tax owner of the System and all tax filings and reports shall be filed in a manner consistent with this Agre ement. The System will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.

ii. Notice to Purchaser Lienholders . Purchaser shall use reasonable efforts to place all parties having a Lien on the Premises or any Improvement on which the System is installed on notice of the ownership of the System and the legal status or classification of the System as personal property. If any mortgage or fixture filing against the Premises could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder.

iii. Fixture Disclaimer. Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Premises are located. If, at any point after the Effective Date, Purchaser is not the fee owner of the Premises , Purchaser shall obtain such consent from such fee owner. For the avoidance of doubt, in either circumstance Seller has the right to file such disclaimer.

iv. SNDA. Upon request, Purchaser shall deliver to Seller a subordination and non-disturbance agreement in a form mutually acceptable to Seller and Purchaser, any mortgagee with a Lien on the Premises, and other Persons holding a similar interest in the Premises.

v. Eviction Notice. Purchaser hereby represents and warrants that it is the legal owner of the Premises. To the extent that Purchaser does not own the Premises or any Improvement on which the System is installed after the Effective Date, Purchaser shall provide to Seller immediate written notice of any such change in ownership and receipt of notice of eviction from the Premises or applicable Improvement or termination of Purchaser’s lease of the Premises and/or Improvement.

Exh. 3, p. 12
b. Option to Purchase.

i. Exercise of Option . At the end of the Initial Term and each Additional Term, so long as Purchaser is not in default under this Agreement and it is beyond the date that is the sixth (6 th) anniversary of the Commercial Operation Date, Purchaser may purchase the System from System Owner on any such date for a purchase price equal to the Fair Market Value of the System applicable as of the date of the transfer of title to the System.

Purchaser shall notify Seller of its intent to purchase at least ninety (90) days and not more than one hundred eighty (180) days prior to the end of the Initial Term or Additional Term, as applicable, and the purchase shall be completed prior to the end of the Initial Term or Additional Term, as applicable.

ii. Fair Market Value. The “Fair Market Value ” of the System shall be determined by mutual agreement of the Parties; provided, however, if the Parties cannot agree to a Fair Market Value within thirty (30) days after Purchaser has delivered to Seller a notice of its intent to purchase the System, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System on an installed basis and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser will be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally.

iii. Title Transfer; Warranties; Manuals . If Purchaser exercises its purchase option pursuant to Section 14(b)(i) above, title to the System and manufacturers’ warranties shall transfer to Purchaser upon System Owner’s receipt of the purchase price and execution by System Owner and Purchaser of a written instrument or agreement to effect such transfer to be negotiated between System Owner and Purchaser. The System will be sold “as is, where is, with all faults .” Upon purchase of the System, Purchaser shall assume complete responsibility for the operation and maintenance of the System and liability for the performance of (and risk of loss for) the System, and, except for any Seller obligations that survive termination under Section 19(d), System Owner will have no further liabilities or obligations hereunder for the System.

15. Indemnification and Limitations of Liability.

a. General. Each Party (the “Indemnifying Party ”) shall defend, indemnify and hold harmless the other Party, its affiliates and the other Party’s and its affiliates’ respective directors, officers, shareholders, partners, members, agents and employees (collectively, the “Indemnified Parties ”), from and against any loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (collectively, “ Liabilities”) resulting from (i ) any Claim (as defined in Section 15(c)) relating to the Indemnifying Party’s breach of any representation or warranty set forth in Section 12 and (ii) injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection wi th this Agreement; provided, however, that nothing herein will require the Indemnifying Party to indemnify the Indemnified Parties for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, an Indemnified Party. This Section 15(a) does not
apply to Liabilities arising out of or relating to any form of Hazardous Substances or other environmental contamination, such matters being addressed exclusively by Section 15(d).

b. Permission to Operate Indemnification . Purchaser shall defend, indemnify and hold harmless Seller Indemnified Parties from and against any Liabilities resulting from Purchaser’s breach of Purchaser’s obligations under Section 15(c).

c. Notice and Participation in Third- Party Claims. The Indemnified Party shall give the Indemnifying Party written notice with respect to any Liability asserted by a third -party (a “ Claim”), as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Party. The Indemnifying Party shall pay the reasonable attorneys’ fees inc urred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time. Neither Party may settle any Claim covered by this Section 15(c) unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party has no liability under this Section 15(c) for any Claim for which such notice is not provided if the failure to give notice prejudices the Indemnifying Party.

Exh. 3, p. 13

d. Environmental Indemnification.

i. Seller Indemnity. Seller shall indemnify, defend and hold harmless all of Purchaser’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance (as defined in Section 15(d)(iii)) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees.

ii. Purchaser Indemnity. Purchaser shall indemnify, defend and hold harmless all of Seller’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except (A) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees or, (B) where the deposit, spill, or existence of the Hazardous Substance is not caused by Seller or any of its contractors or agents, to the extent the condition is known by Seller or any of its contractor or agents and is worsened as a result of the negligent acts or omissions, willful misconduct, or breach of Contract by Seller or any of its contractors, agents or employees.

iii. Notice. Each Party shall promptly notify the other Party if it becomes aware of any Hazardous Substance on or about the Premises generally or any deposit, spill or release of any Hazardous Substance. “Hazardous Substance” means any chemical, waste or other substance (a) which now or hereafter becomes defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “pollution,” “pollutants,” “regulated substances,” or words of similar import under any laws pertaining to the environment, health, safety or welfare, (b) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (c) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (d) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (e) for which remediation or cleanup is required by any Governmental Authority.

e. Limitations on Liability.

i. No Consequential Damages. Except with respect to indemnification of third-party claims pursuant to Section 15, fraud or willful misconduct, neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers will be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature (including, without limitation, lost revenues, lost profits, lost business opportunity or any business interruption) arising out of their performance or non-performance hereunder even if advised of such. Notwithstanding the previous sentence, the Purchaser Termination Payment set forth in Section 6 of Exhibit 1 shall be deemed to be direct, and not indirect or consequential damages for purpose of this Section 15(e)(i).

ii. Actual Damages. Except with respect to indemnification of Claims pursuant to this Section 15 , and except as otherwise limited in Section 12(d) , Seller’s aggregate liability under this Agreement arising out of or in connection with the performance or non -performance of this Agreement cannot exceed $1,000,000. The provisions of this Section 15(e)( ii) will apply whether such liability arises in contract, tort, strict liability or otherwise.

f. EXCLUSIVE REMEDIES. TO THE EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY’S SOLE AND

EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

g. Comparative Negligence. Where negligence is determined to have been joint, contributory or concurrent, each Party shall bear the proportionate cost of any Liability.

16. Change in Law.

a. Impacts of Change in Law. If Seller determines that a Change in Law has occurred or will occur that has or will have a material adverse effect on Seller’s rights, entitlement, obligations or costs under this Agreement, then Seller may so notify the Purchaser in writing of such Change in Law. Within thirty (30) days following receipt by the Purchaser of such notice, the Parties shall meet and attempt in good faith to negotiate such amendments to this Agreement as are reasonably necessary to preserve the economic value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty (30) day period, then Seller may terminate this Agreement and cause Exh. 3, p. 14
the System to be removed and the Premises to be restored in accordance with Section 9 without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.

b. Illegality or Impossibility. If a Change in Law renders this Agreement, or Seller’s performance of this Agreement, either illegal or impossible, then Seller may terminate this Agreement immediately upon notice to Purchaser without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.

c. “Change in Law” means (i) the enactment, adoption, promulgation, modification or repeal after the Effective Date of any applicable law or regulation, (ii) the imposition of any material conditions on the issuance or renewal of any applicable permit after the Effective Date (notwithstanding the general requirements contained in any applicable Permit at the time of application or issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation), or (iii) a change in any utility rate schedule or tariff approved by any Governmental Authority that materially alters the financial obligations of Seller under this Agreement.

17. Assignment and Financing.

a. Assignment.

i. Restrictions on Assignment. Subject to the remainder of this Section 17(a), this Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Purchaser may not withhold its consent to an assignment proposed by Sel ler where the proposed assignee has the financial capability and experience necessary to operate and maintain solar photovoltaic systems such as the System in accordance with prudent solar industry practices in the State of California.

ii. Permitted Assignments . Notwithstanding Section 17(a)(i) , Seller may, without the prior written consent of Purchaser, assign, mortgage, pledge or otherwise directly or indirectly assign its interests in this Agreement to (A) any Financing Party (as defined in
Section 17(b)), (B) any entity through which Seller is obtaining financing from a Financing Party, or (C) any affiliate of Seller or any person succeeding to all or substantially all of the assets of Seller; provided, that, the assignment does not negatively affect the terms of this Agreement or Seller’s ability to perform hereunder or thereunder. Seller is not released from liability hereunder as a result of any assignment to an affiliate unless the assignee assumes Seller’s obligations hereunder by binding written instrument.

iii. Successors and Permitted Assignees . This Agreement is binding on and inures to the benefit of successors and permitted assignees. The restrictions on assignment contained herein do not prohibit or otherwise limit changes in control of Seller.

b. Financing. The Parties acknowledge that Seller and/or System Owner may obtain debt or equity financing or other credit support from lenders, investors or other third parties (each, a “Financing Party ”) in connection with the installation, construction, ownership, operation and maintenance of the System. In furtherance of Seller’s and/or System Owner’s financing arrangements and in addition to any other rights or entitlements of Seller or System Owner’s under this Agreement, Purchaser shall timely execute any consents to assignment (which may include notice, cure, attornment and step- in rights) or estoppels and negotiate any amendments to this Agreement that may be reasonably requested by Seller and/or System Owner or the Financing Parties; provided, that such estoppels, consents to assignment or amendments do not alter the fundamental economic terms of this Agreement.

c. Termination Requires Consent . Seller and Purchaser agree that any right of Seller to terminate this Agreement is subject to the prior written consent of any Financing Party.

18. Confidentiality.

a. Confidential Information. To the maximum extent permitted by applicable law, if either Party provides confidential information (“Confidential Information”) to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Party learns Confidential Information of the other Party, the receiving or learning Party shall (i) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (ii) refrain from using such Confidential Information, except in the negotiation, performance, enforcement and, in the case of Seller, financing, of this Agreement. Subject to Section 18(b)(iii), the Parties hereby agree to treat Sections 3 and 6 of Exhibit 1 as Confidential Information of each Party for Exh. 3, p. 15
purposes of this Section 18 and to redact the numbers set forth in such Sections from any publication or disclosure of this Agreement.

b. Permitted Disclosures. Notwithstanding Section 18(a):

i. A Party may provide such Confidential Information to its affiliates and to its and its affiliates’ respective officers, directors, members, managers, employees, agents, contractors, consultants and Financing Parties (collectively, “Representatives”), and potential direct or indirect assignees of this Agreement if such potential assignees are first bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information.

Each Party is liable for breaches of this provision by any person to whom that Party discloses Confidential Information.

ii. Confidential Information does not include any information that (A) becomes publicly available other than through breach of this Agreement, (B) is required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena, ( C) is independently developed by the receiving Party, or ( D) becomes available to the receiving Party without restriction from a third party under no obligation of confidentiality. If disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware of such required disclosure and shall reasonably cooperate with the other Party’s efforts to limit the disclosure to the extent permitted by applicable law.

iii. Each Party hereto acknowledges and agrees that this Agreement and information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code Section 6250 et seq.). Upon request or demand from any third person not a Party to this Agreement for production, inspection and/or copying of this Agreement or other Confidential Information, the recipient of such request or demand shall, to the extent permissible, notify the other Party in writing in advance of any disclosure that the request or demand has been made and shall take all reasonably necessary and customary steps to protect Confidential Information that is the subject of any California Public Records Act request submitted by a third person to Purchaser, including, but not limited to, applicable exceptions described by Cal. Gov’t Code Sections 6254 and 6255.

iv. A Party may be required to make portions of this Agreement available to the public in connection with the process of seeking approval from its respective governing board of its entry into this Agreement. Such Party shall provide prior, written approval of the other Party prior to such disclosure, and shall provide such other Party the opportunity to review any redacted version of this Agreement to be so disclosed.

v. Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party, provided that any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information.

c. Miscellaneous. All Confidential Information remains the property of the disclosing Party and will be returned to the disclosing Party or destroyed (at the receiving Party’s option) after the receiving Party’s need for it has expired or upon the request of the disclosing Party. Each Party acknowledges that the disclosing Party would be irreparably injured by a breach of this Section 18 by the receiving Party or its Representatives or other person to whom the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be entitled to equitable relief, including injunctive relief and specific performance, for breaches of this Section 18. To the fullest extent permitted by applicable law, such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 18 , but will be in addition to all other remedies available at law or in equity. The obligation of confidentiality will survive termination of this Agreement for a period of two (2) years.

d. Goodwill and Publicity. Neither Party may (A) make any press release or public announcement of the specific terms of this Agreement or the use of solar or renewable energy involving this Agreement (except for filings or other statements or releases as may be required by applicable law), or ( B) use any name, trade name, service mark or trademark of the other Party in any promotional or advertising material without the prior written consent of the other Party which consent shall not be unreasonably withheld. The Parties shall coordinate and cooperate with each other when making public announcements regarding this Agreement, the System and its use, and each Party may promptly, and in any case within 14 days, review, comment upon and approve any publicity materials, press releases or other public statements before they are made. Notwithstanding the above, Seller is entitled to publish the name of Purchaser, System location, System size without obtaining the prior, written consent of Purchaser and to place signage on the Exh. 3, p. 16
Premises reflecting its association with the System.

19. General Provisions.

a. Definitions and Interpretation. Unless otherwise defined or required by the context in which any term appears: (i) the singular includes the plural and vice versa, (ii) the words “herein,” “hereof” and “hereunder” refer to this Agreement as a whole and not to any particular section or subsection of this Agreement, (iii) references to any agreement, document or instrument mean such agreement, document or instrument as amended, restated, modified, supplemented or replaced from time to time, and (iv) the words “include,” “includes” and “including” mean include, includes and including “without limitation.” The captions or headings in this Agreement are strictly for convenience and will not be considered in interpreting this Agreement. As used in this Agreement, “dollar” and the “$” sign refer to United States dollars.

b. Choice of Law; Dispute Resolution. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the State of California, without regard to principles of conflict of laws. In the event of a dispute, controversy, or claim arising out of or relating to this Agreement, the Parties shall confer and attempt to resolve such matter informally. If such dispute or claim cannot be resolved in this matter, then the dispute or claim shall be referred first to executive officers of the Parties for their review and resolution. If the dispute or claim still cannot be resolved by such officers, then any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California. The prevailing Party in any dispute arising out of this Agreement is entitled to reasonable attorneys’ fees and costs.

c. Notices. All notices under this Agreement shall be in writing and delivered by hand, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and will be deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices must be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either Party may specify in writing.

d. Survival. Section 6 of Exhibit 1, and Sections 3, 4, 5(c), 11, 12(c), 14, 15, 17, 18 and 19 of this Exhibit 3 shall survive termination of this Agreement.

e. Further Assurances. Each Party shall provide such information, execute and deliver any instruments and documents and to take such other actions as may be reasonably requested by the other Party to give full effect to this Agreement and to carry out the intent of this Agreement.

f. Waivers. No provision or right or entitlement under this Agreement may be waived or varied except in writing signed by the Party to be bound. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver unless otherwise expressly provided.

g. Non-Dedication of Facilities . Nothing in this Agreement may be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party may knowingly take any action that would subject the other Party, or other Party’s facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Party may assert in any proceeding before a court or regulatory body that the other Party is a public utility by virtue of such other Party’s performance under this Agreement. If Seller is reasonably likely to become subject to regulation as a public utility, then the Parties shall use reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller may terminate this Agreement without further liability under this Agreement except with respect to liabilities accrued prior to the date of termination and remove the System in accordance with Section 9.

h. Service Contract . The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Code. Purchaser shall not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System.

i. No Partnership. No provision of this Agreement may be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither may be considered the agent of the other.

j. Entire Agreement, Modification, Invalidity, Captions . This Agreement constitutes the entire agreement of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between Exh. 3, p. 17
the Parties, oral or written. This Agreement may be modified only by a writing signed by both Parties.

k. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be in conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held by such court to be unenforceable for any reason whatsoever, such provision shall not be read to render and shall not have the effect of rendering this Agreement or the other provisions herein unenforceable, inoperative or invalid to any extent whatsoever.

In such event, such provision shall be deemed severable from the remaining provisions of this Agreement and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.

l. No Third -Party Beneficiaries . Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto, and the Financing Parties to the extent provided herein or in any other agreement between a Financing Party and Seller or Purchaser, and do not imply or create any rights on the part of, or obligations to, any other Person.

m. Counterparts. This Agreement may be executed in any number of separate counterparts and each counterpart will be considered an original and together comprise the same Agreement.

n. Electronic Signatures. If the Parties agree, electronic signatures may be used in place of original signatures on this Agreement. Each Party intends to be bound by the signatures on the electronic document, is aware that the other Party will rely on the electronic signatures, and hereby waives any defenses to the enforcement of the terms of this Agreement based on the use of an electronic signature. After both Parties agree to the use of electronic signatures, both Parties must sign the document electronically.

o. No Recourse to Members of Seller . Seller is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Seller shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Purchaser shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Seller’s constituent members, or the employees, directors, officers, consultants or advisors of Seller or of its constituent members, in connection with this Agreement.

End of Exhibit 3
Exh. 4, p. 1
Exhibit 4
Performance Guaranty

In consideration for Purchaser’s entering into the Solar Power Purchase Agreement between Peninsula Clean Energy Authority (“Seller”) and the [Purchaser] related to the System at the Premises (the “PPA”), this Performance Guaranty (this “Guaranty”) is entered into by the parties listed below (each a “Party” and collectively the “Parties”) as of the date signed by Guarantor below (the “Effective Date”).

Purchaser: Guarantor:

Name and Address Name and
Address

Phone Phone
E-mail E-mail
Project Name

This Guaranty sets forth the terms and conditions of a guaranty provided by Guarantor in conjunction with the PPA. Capitalize d terms not otherwise defined herein have the meanings given such terms in the PPA. The term of this Guaranty will be concurrent with the term of the PPA; except that it will not exceed the Initial Term. This Guaranty will be updated by Guarantor to reflect the as -built specifications of the System.

1. Guaranty. Guarantor guarantees that during the term of the PPA the System will generate not less than [_____] percent ([__]%) of the estimated generation of the System based on PVSyst (“Estimated PVSyst Production (Annual kWh)”) as set forth in Table 1.A below (such guaranteed generation, the “Guaranteed Production (Annual kWh)” set forth on Table 1.A below); provided that the Guaranteed Production values are subject to reasonable downward adjustment for extreme weather conditions.

A. Guarantor will use local weather data to adjust the System’s Guaranteed kWh, based on the following methods if available and in descending order of preference: (i) satellite data provided by a third-party vendor of Seller; or (ii) available data from a locally installed weather station at the Premises owned and properly maintained by Purchaser.

Table 1.A, projected production values assuming average weather conditions:

Contract
Year
Estimated PVSyst
Production (Annual
kWh)
Guaranteed
Production (Annual
kWh)
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10
Year 11
Year 12
Year 13
Year 14
Year 15
Year 16
Exh. 4, p. 2
Year 17
Year 18
Year 19
Year 20

B. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “ Actual kWh”) is less than the Guaranteed kWh for that Contract Year, then Guarantor shall pay Purchaser an amount equal to (i) the difference between the Guaranteed kWh and the Actual kWh, multiplied by (ii) the Performance Guarantee Payment Rate (as defined in Section 1(E)), in each case with respect to the affected Contract Year.

C. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “Actual kWh”) is more than the Guaranteed kWh for that Contract Year, then an amount equal to (i) the difference between the Actual kWh Guaranteed kWh and the Guaranteed kWh, multiplied by (ii) the Performance Guarantee Payment Rate, in each case with respect to the affected Contract Year, shall be credited against and shall reduce by such amount any payments owed by Guarantor to Purchaser in the following Contract Year pursuant to Section 1(B) of this Exhibit 4. The amount under Section 1(C)(i) above shall be capped at one hundred and five percent (105%) of the Guaranteed kWh for the applicable Contract Year.

D. If a payment of greater than fifty dollars ($50) is due under Section 1(B), after subtracting any credits pursuant to Section 1(C), (i) Guarantor will deliver a statement to Purchaser detailing the Guaranteed kWh and the calculation of the payment due; and (ii) the payment shall be due within ninety (90) days after the end of the Contract Year. If no payment is due, then no statement or payment will be issued.

E. “Performance Guarantee Payment Rate” means the Contract Price.

2. Exclusions. The Guaranty set forth in Section 1 does not apply to the extent of any reduced generation from the System due to the following (including the downtime required for repair, replacement or correction):

A. a Force Majeure Event, which includes (i) destruction or damage to the System or its ability to safely produce electricity not caused by Seller or its approved service providers while servicing the System (e.g., vandalism); (ii) a power or voltage surge caused by someone other than Seller, including a grid supply voltage outside of the standard range specified by the Utility; and (iii) theft of the System; and (iv) curtailment or reduction of energy production required by the Utility or grid operator.

B. Purchaser’s failure to perform, or breach of, Purchaser’s obligations under the PPA.

3. Liquidated Damages; Waiver of Cost Savings. The Parties agree that the payment described in Section 1(B) is a reasonable approximation of the damages suffered by Purchaser as a result of underperformance of the System, is bargained-for by the Parties, and shall be the Purchaser’s sole and exclusive remedy hereunder for underperformance of the System. Purchaser hereby disclaims, and any beneficiary of this Guaranty hereby waives, any warranty with respect to any cost savings from using the System.

4. Incorporation of PPA Provisions . Section 5(c) (Force Majeure), Section 17 (Assignment and Financing) and Section 19 (General Provisions) of Exhibit 3 of the PPA and any Sections referenced therein are incorporated into this Guaranty as if any reference therein to “Agreement” were to this Guaranty and any reference to “Parties” were to the Parties to this Guaranty.

Guarantor:

Signature:

Purchaser:

Signature:

Printed Name: Printed Name:

Title: Title:

Date: Date: