Newark City Council
February 22, 2024

AGENDA
Thursday, February 22, 2024
7:00 P.M.

A. ROLL CALL
B. PRESENTATIONS
C. PUBLIC COMMENT
The public is invited to address the City Council on any item not listed on the agenda. Public Comments are generally limited to 5 minutes per speaker. Please note that State law prohibits the Council from acting on non-agenda items.

D. CONSENT CALENDAR
Consent Calendar items are considered to be routine and may be approved by one motion.

There will be no separate discussion on these items unless there is a request by a Council Member, a staff member, or a member of the public to remove an item for separate discussion and action.

1. Approval of Audited Demands

2. Approval of February 8, 2024, minutes

3. Adopt a resolution approving a First Amendment to the Contractual Service Agreement with Good City Company

4. Adopt a resolution authorizing the City Manager to enter a subscription agreement with Flock Group, Inc. for Automated License Plate Readers (ALPR) in the amount not to exceed $131,400
E. PUBLIC HEARINGS

1. Public hearing pursuant to Government Code Sections 4217.10, et seq. to adopt certain findings and adopt a resolution authorizing the City Manager to execute Energy Services Agreements with FTP BTM Solar, LLC (ForeFront Power) for the design, financing, construction, installation, operation and maintenance of carport mounted solar photovoltaic systems at the Geroge M. Silliman Center and Newark Civic Center F. OTHER BUSINESS

1. Adopt a resolution authorizing the acceptance of the approved California Highway Safety Improvement Program (HSIP) Cycle 11 funds to subsidize Citywide Crosswalk Evaluation and Modifications, Project No. 1256

2. Receive a presentation from Revenue & Cost Specialist (RCS) regarding the recently completed Comprehensive User Fee Study

3. Presentation of findings from the Facilities Master Plan assessments and community outreach process

4. Presentation regarding Newark's Transient Occupancy Tax (TOT) and the Newark hotel market

5. Motion to direct staff to proceed with a community survey to gauge support for a potential Transient Occupancy Tax (“TOT” and commonly known as the “Hotel Tax”) ballot measure

6. 2023-2031 General Plan Housing Element- Overview of Non-Substantive Revisions After Adoption
G. CITY COUNCIL MATTERS
City Council Members report on attendance at intergovernmental agency meetings, conferences, and seminars since the last meeting. City Council Members may also announce upcoming events and coordinate attendance; report on local events attended since the last meeting; and make brief comments on issues of concern.

H. CITY MANAGER UPDATES
I. CLOSED SESSION
J. ADJOURNMENT

MEETING INFORMATION
Members of the public may attend the meeting in person, watch online, or watch on Cable Channel 26. The ability to observe online or Cable Channel 26 is predicated on those technologies being available and functioning without technical difficulties.  Should those platforms not be available, or become non-functioning, or should the City Council otherwise encounter technical difficulties that make those platforms unavailable, the City Council will proceed with business in person unless otherwise prohibited by law.

How to view the meeting remotely:

Livestream online at YouTube: https://www.youtube.com/@cityofnewark3077/streams Copy/paste the YouTube URL into your browser if the link does not automatically open.

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Cable Channel 26 - if the meeting does not broadcast live, please contact your service provider and request the City of Newark channel lineup.

Zoom will no longer be available for public participation unless required by Assembly Bill 2449. Should a Council Member or the Mayor attend the meeting via Zoom pursuant to Assembly Bill 2249, then the Webinar ID https://us06web.zoom.us/j/83765337785 will be activated.  The Mayor will make an announcement at the beginning of the meeting that the City will be allowing public comment via Zoom.  Raise your virtual hand to notify the City Clerk that you would like to speak during the item that you wish to speak on.

How to submit written Public Comment:

Send an email to City Clerk by 3:00 p.m. the day of the meeting.  Please identify the agenda item number in the subject line of your email.  Emails will be compiled into one file and will be distributed to the City Council before the meeting.

No question shall be asked of a council member, city staff, or an audience member except through the Mayor. No person shall interrupt the meeting. Any person who refuses to carry out instructions given by the Mayor for the purpose of maintaining order may be guilty of an infraction and may result in removal from the meeting.

Council Meeting Access/Materials:

The agenda packet is available for review at Agendas and Minutes. The packet is typically posted to the City website the Friday before the meeting, but no later than 72 hours before the meeting.

Pursuant to Government Code 54957.5, supplemental materials distributed less than 72 hours before this meeting, to a majority of the City Council, will be made available for public inspection at this meeting and will be posted at https://www.newark.org/departments/city-manager-s-office/agendas-minutes and will concurrently be made available for public inspection during regular business hours at the David W. Smith City Hall, 37101 Newark Boulevard, Newark CA.  Materials prepared by City staff and distributed during the meeting are available for public inspection at the meeting or after the meeting if prepared by some other person. Documents related to closed session items or are exempt from disclosure will not be made available for public inspection. For those persons who require special accommodations, please contact the City Clerk at least two days prior to the meeting at City Clerk or 510-578-4266.

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Item  D. 1.

DATE 02/22/2024
TO Honorable Mayor and City Council Members
FROM Krysten Lee, Finance Director
SUBJECT    Approval of Audited Demands
Attachments
Audited Demands 01.25.24
Audited Demands 02.01.24
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Packet Page 14
Item  D. 2.

DATE 02/22/2024
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT    Approval of February 8, 2024, minutes
Attachments
Minutes
Packet Page 15
City of Newark | Newark City Council
Mayor Michael K. Hannon | Vice Mayor Luis L. Freitas | Council Members: Maria “Sucy” Collazo, Mike Bucci, and Matthew Jorgens

Draft
Thursday, February 8, 2024
7:00 P.M.

A. ROLL CALL
Mayor Hannon called the meeting to order at 7:05 p.m. Council Members Collazo and Jorgens were present. Vice Mayor Freitas and Council Member Bucci were noted absent.

B. PRESENTATIONS

1. Introduction of employees
Mayor Hannon introduced Recreation and Community Services Nick Cuevas, Police Officers Thomas Dale and Justin Kim.

2. Commending John Mathews
Mayor Hannon presented a commendation to John Mathews for suggesting a catalytic converter labeling idea which has been implemented by the Newark Police Department.

Mayor Hannon announced that he would adjourn the meeting in memory of Nellie Hicks. Mrs. Hicks was murdered in 1972 and a suspect (deceased) was recently identified through DNA. He thanked Sergeant Homayoun, Detective Hunter, former Detective Nobbe, retired Detective Lundgren, and retired Captain Amaral for their work on this case.

Mayor Hannon introduced and recognized Cub Scouts Courtney and Conner.

Packet Page 16
Page No. 2
City of Newark City Council Minutes February 8, 2024
C. PUBLIC COMMENT
No one from the public requested to speak.

D. CONSENT CALENDAR
Mayor Hannon removed D.4 for separate consideration.

Council Member Jorgens moved, Council Member Collazo seconded, to approve Consent Calendar items D.1 to D.3, and D.5, that the resolutions be numbered consecutively, and that reading of the titles suffice for adoption. The motion passed, 3 AYES, 2 ABSENT.

1. Approval of Audited Demands

2. Approval of January 25, 2024, minutes

3. Adopt a resolution approving an agreement with Ecamsecure, Inc. for the purchase of three mobile community police cameras
Resolution No. 11614
Contract No. 24010

4. Pulled for separate consideration - Motion accepting the Measure GG Transaction and Use Tax Oversight Committee Annual Report for Fiscal Year 2021-2022

5. Adopt a resolution approving amendments to the salary schedule adopted pursuant to Resolution No. 11608
Resolution No. 11615

NONCONSENT

4. Motion accepting the Measure GG Transaction and Use Tax Oversight Committee Annual Report for Fiscal Year 2021-2022
Motion approved
Mayor Hannon stated he pulled the item to commend Finance Department staff and Committee Members Elizabeth Macris, Jacinta Arteaga, Michael Marzano, Jim Lola, and Roy Pereira.

Packet Page 17
Page No. 3
City of Newark City Council Minutes February 8, 2024
No one from the public requested to speak.

Mayor Hannon moved, Council Member Jorgens seconded, to approve a motion accepting the Measure GG Transaction and Use Tax Oversight Committee Annual Report for Fiscal Yer 2021-2022. The motion passed 3 AYES, 2 ABSENT.

E. PUBLIC HEARINGS
F. OTHER BUSINESS
G. CITY COUNCIL MATTERS
Council Member Jorgens complimented Recreation and Community Services Director Cuevas on his promotion and his staff for their work.

Council Member Collazo thanked the Maintenance Division for their storm response and Officer Jackman who responded to a broken window at her property.

She thanked everyone involved in the catalytic labeling program and hoped that staff was looking into another resident idea to extend the turning lane on Cherry Street at Mowry Avenue. Happy Valentine’s Day. Shop Newark.

Mayor Hannon thanked Deputy Economic Development Director Anne Stedler who is moving out of state.

H. CITY MANAGER UPDATES
I. CLOSED SESSION
J. ADJOURNMENT
Mayor Hannon adjourned the meeting at 7:37 p.m. in memory of Nellie Hicks.

Packet Page 18
Item  D. 3.

DATE 02/22/2024
TO Honorable Mayor and City Council Members
FROM Art Interiano, Deputy Community Development Director SUBJECT    Adopt a resolution approving a First Amendment to the Contractual Service Agreement with Good City Company
SUMMARY AND RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute the first Amendment to the Contractual Services Agreement with Good City Company to provide professional planning services.

BACKGROUND
The City has relied upon professional consultants to provide services and experience that City staff are unable to provide, such as technical traffic and circulation studies and environmental review services, as well as for additional services to supplement staff.

For example, the City currently has several contractual service agreements with consultants for on-call professional city planning services and Public Works construction inspection, and civil engineering development plan review services. These consultant services agreements allow the City to address service and experience needs while maintaining high customer service levels.  Good City Company was one of the on-call planning firms identified as part of a Request for Qualifications (RFQ) released in September 2020. In November 2020, the City Council approved Contractual Service Agreements (CSA) with three firms that responded to the RFQ to provide specific on-call planning services. Although Good City Company was not selected for a CSA, the firm was qualified to provide the requested services. In March 2021, the City entered into a CSA with Good City Company in the amount not to exceed $50,000.00 to provide professional planning services in order to increase capacity to perform critical customer service and plan review functions.  Good City Company has provided these services since December 2023. The current contract allows Good City Company to provide services through the end of March 2024.

DISCUSSION/ANALYSIS
The need for front line capacity continues for the Community Development Department (CDD). In September 2023, the previous 4Leaf contract Associate Planner that was servicing Newark resigned, leaving a gap in service to perform entry-level Planning Division functions. The previous contract consulting planner assigned to Newark provided customer services, Single Family Design reviews, and various building permit Packet Page 19
reviews. These services would have been difficult for the existing staff to perform and achieve the high service levels that are expected by the community.  The consultant services have helped the City achieve the service capacity required to maintain CDD service levels during the elevated workload over the last few years. However, the current three-person team is expected to remain near its capacity to review the numerous building permit requests and project applications for various projects.

Staff recommends that the City amend the existing Good City Company CSA to increase the “not-to-exceed” amount by $100,000.00, thereby extending the amount of funds available for the contract planner and other policy planning work that needs to be accomplished in the calendar year for 2024. The scope of services would remain the same. Examples of services include responding to inquiries regarding technical planning matters at the public counter, responding to phone and/or email inquiries, processing entitlement applications, and completing building permit plan checks. The amendment would provide Good City Company consultant services approximately through the end of December 2024. Staff will reassess the need for entry-level staff as part of the 2024-2026 Biennial Budget process.

FISCAL IMPACT
There is sufficient unused appropriation for this amendment in the current budget due to changes in departmental plans and strategic priorities.

ENVIRONMENTAL/PLANNING COMMISSION REVIEW
There is no environmental impact associated with this action.

REVIEW AND APPROVAL
Prepared by - Art Interiano, Deputy Community Development Department Reviewed by - Steven Turner, Community Development Director Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution Good City Company
First Amendment Good City Company
Packet Page 20
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE THE FIRST AMENDMENT TO THE

CONTRACTUAL SERVICES AGREEMENT WITH GOOD

CITY COMPANY TO PROVIDE PROFESSIONAL PLANNING

SERVICES
WHEREAS, On March 2, 2021 the City of Newark awarded a Contractual Services Agreement (the “Agreement”) to Good City Company (the “Consultant”) to provide professional planning services; and
WHEREAS, the City finds that the scope of services described in the Agreement continue to be necessary and desires to amend the Agreement to provide additional funding for the existing scope of services to be provided by the Consultant.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Manager is hereby authorized to execute the first amendment to the Contractual Services Agreement with Good City Company, in a form approved by the City Attorney, to provide technical assistance by individuals possessing experience consistent with minimum qualifications provided by the City and to increase the not to exceed amount of the Agreement by $100,000 for a total not to exceed amount of $150,000.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to take all other actions consistent with this Resolution, including any necessary revisions to the scope of work for the Agreement, in a form approved by the City Attorney, that are within the total not to exceed amount of $150,000.

Packet Page 21
1 FIRST AMENDMENT TO THE CONTRACTUAL

SERVICES AGREEMENT BETWEEN THE CITY OF

NEWARK AND GOOD CITY COMPANY
This First Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, ("City"), and Good City Company, a California Corporation (“Consultant”) collectively the "Parties") dated March 2, 2021, is entered into as of _________ ___, 2024 for professional planning services.

RECITALS
WHEREAS, the Parties executed a Contractual Services Agreement (the "Agreement") for Good City Company (the “Consultant”) to perform general professional planning services including; serving in an on-call capacity as project manager for planning entitlements projects, as well as to provide other current and advanced planning services including environmental review as requested from time-to-time, organizational support and, and to serve and support the City’s affordable housing program efforts, housing policy development, and regional planning efforts.

WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to amend the Agreement, to increase the not-to-exceed amount to One Hundred and Fifty Thousand Dollars $150,000; and
WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 3. A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not to exceed compensation by $100,000.00, for a total not to exceed the amount of $150,000.00 (from a previous not to exceed amount of $50,000.00).

2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

Packet Page 22
2 City of Newark Consultant
_________________________________ _________________________________ David J. Benoun [Name]
City Manager [Consultant]
Dated: ___________________________ Dated: ___________________________ Attest:
__________________________________
Sheila Harrington
City Clerk
Approved as to Form:
__________________________________
Kristopher J. Kokotaylo
City Attorney
Packet Page 23
Item  D. 4.

DATE 02/22/2024
TO Honorable Mayor and City Council Members
FROM Jolie Macias, Captain
SUBJECT    Adopt a resolution authorizing the City Manager to enter a subscription agreement with Flock Group, Inc. for Automated License Plate Readers (ALPR) in the amount not to exceed $131,400
SUMMARY AND RECOMMENDATION
The City of Newark was awarded $986,444 in grant funding from the Board of State and Community Corrections (BSCC) to assist the city in addressing the increase in motor vehicle and motor vehicle accessory theft, primarily catalytic converters. The Newark Vehicle and Accessory Theft Prevention Program leverages technology and community partnerships to provide comprehensive, evidence-based public safety services to prevent vehicle and accessory theft. To accomplish program objectives, 6 fixed and 5 mobile automated license plate reader (ALPR) cameras are proposed additions to the current ALPR program. Permissible uses of the grant include the purchase of ALPR technology equipment and services to support strategies for preventing or responding to crime.

Staff recommends that the City Council, by resolution, approve an agreement with Flock Group, Inc. for ALPRs as a part of the Newark Vehicle and Accessory Theft Prevention Program.

BACKGROUND
The City of Newark currently has 20 fixed ALPR cameras located at various locations throughout the city including city entrances and exits. Newark has seen great success with the addition of ALPR cameras at these ingress and egress points of the city but has since discovered areas in need of improvement on the southern city border. Police sergeants have provided multiple examples of vehicles stolen where cameras did not capture images of the vehicles fleeing the city. Several vehicles were determined to have exited the southern border and later recovered in other jurisdictions. The installation of six additional fixed ALPR cameras will cover the identified gaps in the current camera deployment model and serve as a much-needed evidentiary resource.

Both motor vehicle and catalytic converter thefts occur in residential and commercial areas. From 2019 to 2022, 45% of catalytic converter thefts occurred in Packet Page 24
commercial/industrial areas and 55% in residential areas, with an increase to 78% in residential areas for the first half of 2023.  From 2019 to 2021, stolen vehicle thefts occurred primarily in commercial/industrial areas but shifted to 55% in residential areas in 2022. With the upward trend of vehicle and catalytic converter thefts occurring more frequently in residential areas, there is a need for mobile ALPR trailer-mounted to be deployed into various areas of the city to include residential streets.

The BSCC grant proposal includes the recommended purchase of four speed trailers, to which mobile ALPR cameras can be affixed. The mobile trailer features radar technology that displays vehicle speed to encourage speed reduction and the ability to collect traffic data.  The mobile speed trailer with ALPR cameras will be rotated throughout the City by Police Department staff based upon crime data gathered by the City's Crime Analyst.

The City of Newark additionally owns a trailer that is not being used because it contains an outdated PIPS Technology brand camera.  This was purchased in 2018. This unit is not in use due to outdated and unsupported technology, but the trailer itself is in good working condition.

DISCUSSION/ANALYSIS
The City's existing Contractual Services Agreement with Flock Group, Inc. was executed on June 15, 2022, and will be up for renewal on June 15, 2025, with a current not-to-exceed amount of $164,500 (Attachment B. Flock Agreement 2022). Staff recommends that the City Council approve a Contractual Services Agreement with Flock Group, Inc. to keep the BSCC reimbursable activities separate from the current agreement (Attachment C. Flock Agreement 2024). Newark Municipal Code Section

3.04.080(B)(1) provides that competitive bidding is not required where the city's requirements can be met solely by a single patented article or process or provider.  In this instance, Flock is the sole provider of the City's ALPR cameras and thus competitive bidding is not required for this agreement.

Over the course of the next three years of this agreement, six additional fixed ALPR cameras are proposed for the following locations:

Southbound Balentine Drive, north of Stevenson Boulevard Eastbound Stevenson Boulevard, west of Balentine Drive (2 cameras) Southbound Cherry Street, north of Stevenson Boulevard (2 cameras) Southbound Cedar Boulevard, north of Stevenson Boulevard Five mobile ALPR cameras will be mounted upon mobile radar speed trailers. Four will be mounted on new speed trailers that will be purchased with grant funding and one will be mounted on the trailer that is currently not being used because it contains the outdated PIPS Technology brand camera.

Grantees are required to provide the BSCC with financial invoices and quarterly progress reports for approved purchase reimbursement. The first year cost is $45,400, with years two and three recurring at $43,000. The total contract not to exceed amount of $131,400 will be reimbursed through the BSCC ORT Grant. This contract would start early calendar year 2024 through 2027.

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start early calendar year 2024 through 2027.

FISCAL IMPACT
Pursuant to Newark Municipal Code Section 3.40.080(B)(1), the City is not required to conduct formal bidding when the City’s requirements can be met solely by a single patented provider. City Council approval is required for contracts that exceed $75,000.

Flock Safety ALPRs are a leased professional service and therefore charged to a budget line item described as Consultant/Professional Services. Resolution 11568 (Attachment D) previously approved an appropriation of $438,200 to the BSCC Grant Fund (Fund 234). There is currently sufficient budget appropriation.

REVIEW AND APPROVAL
Prepared by - Jolie Macias, Captain
Reviewed by - Gina Anderson, Interim Police Chief
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
921_Resolution_Flock_Agrm
C. 2024 Flock Agreement
B. 2022 Flock Agreement
D. Resolution 11568
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RESOLUTION NO. XXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK APPROVING AN AGREEMENT WITH FLOCK
GROUP, INC. FOR AUTOMATED LICENSE PLATE READERS IN
AN AMOUNT NOT TO EXCEED $131,400.

WHEREAS, the Newark Police Department has been selected to receive the State of California Board of State and Community Corrections (BSCC) Organized Retail Theft Prevention grant to support local law enforcement agencies in the preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft; WHEREAS, funding in the amount of $986,444 has been allocated to the Newark Police Department for the Newark Vehicle and Accessory Theft Prevention Program (NVATPP) that will leverage technology and community partnerships to provide comprehensive, evidence based public safety services to prevent motor vehicle and vehicle accessory theft; and WHEREAS, the City of Newark has been committed to enhancing technology within the police department that enables staff to provide a higher quality level of service and increased public safety; and
WHEREAS, critical to the police function is investigation of crime and identification of responsible parties; and
WHEREAS, the police department has a need for enhanced investigative capabilities to bring resolution to more cases; and
WHEREAS, the police department has a need to operate efficiently and effectively through the implementation of technology; and
WHEREAS, providing the police department the ability to add to its current fixed and mobile automated license plate reader (“ALPR”) system will enable the police department to enhance its capabilities and more efficiently provide essential services; and WHEREAS, Flock Group, Inc. is the sole developer and manufacturer of the ALPR product sought; and
WHEREAS, as described above in this Resolution, this proposed agreement with the Flock Group, Inc. is exempt from formal bidding as a sole-source exemption.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that all the foregoing recitals are true and correct and are hereby incorporated as though fully set forth herein.

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BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to execute an agreement, in a form approved by the City Attorney, with Flock Group, Inc., in the not-to-exceed amount of $131,400, for the lease of ALPRs.

BE IT FURTHER RESOLVED that there is sufficient appropriation in the BSCC Grant Fund (Fund 234) to support this agreement.

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Flock Safety + CA - Newark PD
______________
Flock Group Inc.
1170 Howell Mill Rd, Suite 210
Atlanta, GA 30318
______________
MAIN CONTACT:

Jake Sherman
[email protected]
8187467444
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ORDER FORM
This order form (“Order Form”) hereby incorporates and includes the terms of the previously executed agreement (the “Terms”) which describe and set forth the general legal terms governing the relationship (collectively, the "Agreement" ). The Terms contain, among other things, warranty disclaimers, liability limitations and use limitations.

This additional services Agreement will be effective when this Order Form is executed by both Parties (the “Effective Date”) Customer: CA - Newark PD Initial Term: 36 Months
Legal Entity Name: CA - Newark PD Renewal Term: 24 Months Accounts Payable Email: Payment Terms: Net 30
Address: 37101 Newark Blvd Newark, California
94560
Billing Frequency: Annual - First Year at Signing.

Retention Period: 30 Days
Hardware and Software Products
Annual recurring amounts over subscription term
Item Cost Quantity Total
Flock Safety Platform $43,000.00
Flock Safety Flock OS
FlockOS ™ Included 1 Included
Flock Safety LPR Products
Flock Safety Falcon ® Flex Bundle Included 5 Included
Flex - Trailer Kit Included 5 Included
Flock Safety Falcon ® Included 6 Included
Professional Services and One Time Purchases
Item Cost Quantity Total
One Time Fees
Flock Safety Professional Services
Professional Services - Standard Implementation Fee $650.00 3 $1,950.00 Professional Services - Existing Infrastructure
Implementation Fee $150.00 3 $450.00
Subtotal Year 1: $45,400.00
Annual Recurring Subtotal: $43,000.00
Estimated Tax: $8,062.50
Contract Total: $131,400.00
Taxes shown above are provided as an estimate. Actual taxes are the responsibility of the Customer. This Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

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Billing Schedule
Billing Schedule Amount (USD)
Year 1
At Contract Signing $45,400.00
Annual Recurring after Year 1 $43,000.00
Contract Total $131,400.00
*Tax not included
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Product and Services Description
Flock Safety Platform Items Product Description Terms
Flock Safety Falcon ®
An infrastructure-free license plate reader camera that utilizes Vehicle Fingerprint® technology to capture vehicular attributes.

The Term shall commence upon first installation and validation of Flock Hardware.

One-Time Fees Service Description
Installation on existing
infrastructure
One-time Professional Services engagement. Includes site & safety assessment, camera setup & testing, and shipping & handling in accordance with the Flock Safety Advanced Implementation Service Brief.

Professional Services - Standard
Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.

Professional Services -
Advanced Implementation Fee
One-time Professional Services engagement. Includes site & safety assessment, camera setup & testing, and shipping & handling in accordance with the Flock Safety Advanced Implementation Service Brief.

FlockOS Features & Description
Package: Essentials
FlockOS Features Description
Community Cameras (Full Access) Access to all privately owned Flock devices within your jurisdiction that have been shared with you.

Unlimited Users Unlimited users for FlockOS
State Network (LP Lookup Only) Allows agencies to look up license plates on all cameras opted in to the statewide Flock network.

Nationwide Network (LP Lookup Only) Allows agencies to look up license plates on all cameras opted in to the nationwide Flock network.

Time & Location Based Search Search full, partial, and temporary plates by time at particular device locations License Plate Lookup Look up specific license plate location history captured on Flock devices Vehicle Fingerprint Search Search footage using Vehicle Fingerprint™ technology. Access vehicle type, make, color, license plate state, missing / covered plates, and other unique features like bumper stickers, decals, and roof racks.

Flock Insights/Analytics page Reporting tool to help administrators manage their LPR program with device performance data, user and network audits, plate read reports, hot list alert reports, event logs, and outcome reports.

ESRI Based Map Interface
Flock Safety’s maps are powered by ESRI, which offers the ability for 3D visualization, viewing of floor plans, and layering of external GIS data, such as City infrastructure (i.e., public facilities, transit systems, utilities), Boundary mapping (i.e., precincts, county lines, beat maps), and Interior floor plans (i.e., hospitals, corporate campuses, universities)
Real-Time NCIC Alerts on Flock ALPR Cameras Alert sent when a vehicle entered into the NCIC crime database passes by a Flock camera Unlimited Custom Hot Lists Ability to add a suspect’s license plate to a custom list and get alerted when it passes by a Flock camera Direct Share - Surrounding Jurisdiction (Full Access) Access to all Flock devices owned by law enforcement that have been directly shared with you. Have ability to search by vehicle fingerprint, receive hot list alerts, and view devices on the map.

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By executing this Order Form, Customer represents and warrants that it has read and agrees to all of the terms and conditions contained in the previously executed agreement. The Parties have executed this Agreement as of the dates set forth below.

FLOCK GROUP, INC. Customer: CA - Newark PD
By:
\FSSignature2\
By:
\FSSignature1\
Name:
\FSFullname2\
Name:
\FSFullname1\
Title:
\FSTitle2\
Title:
\FSTitle1\
Date:
\FSDateSigned2\
Date:
\FSDateSigned1\
PO Number:

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Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 1 of 15

CONSULTING SERVICES AGREEMENT BETWEEN

THE CITY OF NEWARK AND
FLOCK GROUP INC.

FOR

COMMUNITY SAFETY CAMERAS WITH

AUTOMATED LICENSE PLATE READERS
THIS AGREEMENT for consulting services is made by and between the City of Newark (“ City”) and Flock Group Inc. (“Consultant”) ( together sometimes referred to as the “Parties”) as of June 15, 2022 the “Effective Date”).

RECITALS
WHEREAS, Consultant offers a software and hardware solution for automatic license plate detection through Consultant’ s technology platform ( the “Flock Service”), and upon detection, the Flock Services are capable of capturing audio, image, and recordings data of suspected vehicles (“Footage”) and can provide notifications to City upon the instructions of Non-Agency End User (“Notifications”); WHEREAS, City desires access to the Flock Service on existing cameras, provided by City, or Consultant provided Hardware ( as defined below) in order to create, view, search and archive Footage and receive Notifications, including those from Non-Agency users of the Flock Service ( where there is an investigative or bona fide lawful purpose) such as schools, neighborhood homeowners associat ions, businesses, and individual users;
WHEREAS, Consultant deletes all Footage on a rolling thirty (30) day basis, City is responsible for extracting, downloading and archiving Footage from the Flock System on its own storage devices for auditing and for prosecutorial/ administrative purposes; and WHEREAS, Consultant desires to provide City the Flock Service and any access thereto, subject to the terms and conditions of this Agreement, solely for the awareness, prevention, and prosecution of crime, bona fide investigations by police departments, and archiving for evidence gathering .

NOW, THEREFORE, the parties agree as follows and further agree to incorporate the Recitals into this Agreement.

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A, incorporated by reference herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.

1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 15, 2025, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 35
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 2 of 15 provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8.

1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.

1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.

1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant’ s obligations hereunder.

1.5 Section Reserved.

1.6 Section Reserved.

1.7 Section Reserved.

Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $ 164,500, notwithstanding any contrary indications that may be contained in Consultant’ s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’ s proposal, attached as Exhibit B, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.

Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’ s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.

2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:

Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 36
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 3 of 15 The beginning and ending dates of the billing period;
A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;

2.2 Payment. This Agreement is a three-year contract. City shall pay the total amount of 164,500 over three annual terms of this Agreement, with the first two-year costs in the amount of $112,000 paid during the first annual term and $52,500 paid during the third annual term of this Agreement.

City shall pay the total amount of $112,000 for the first annual term of this Agreement, in three (3) payments, calculated as fifty percent ( 50%) of the total first two years of this Agreement at the time of signing this Agreement in the amount of $56,000.00 followed by an installment payment of twenty -five 25%) of the first two years of this Agreement at the time of completion of first installation in the amount of 28,000.00, and a final payment in the amount of twenty-five (25%) of the first two years of this Agreement at the time of completion of final installation in the amount of $28,000.00. For each annual term of the Agreement thereafter, the City shall make two (2) installment payments, each comprised of 50% of the annual fee.

2.3 Reserved.

2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.

In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.

2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B.

2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B. Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.

2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.

2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 37
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 4 of 15 of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.

2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.

Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.

City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’ s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long -distance telephone or other communication charges, vehicles, and reproduction facilities.

Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work.

Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant' s bid or proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor( s) and provided evidence to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.

4.1 Workers’ Compensation.

4.1.1 General Requirements. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator.

DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 38
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 5 of 15 The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors.

4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; and
b. Waiver of Subrogation Endorsement as required by the section.

4.2 Commercial General and Automobile Liability Insurance.

4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.

4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage.

4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant.

DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 39
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 6 of 15 c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.

Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation.
d. For any claims related to this Agreement or the work hereunder, the Consultant’ s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’ s insurance and shall not contribute with it.

4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; b. Additional Insured Endorsement as required by the section; c. Waiver of Subrogation Endorsement as required by the section; and d. Primary Insurance Endorsement as required by the section.

4.3 Professional Liability Insurance.

4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $ 150,000 per claim.

4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 40
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 7 of 15 this Agreement, Consultant shall purchase an extended period coverage for a minimum of 5 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.

4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy.

4.3.4 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section.

4.4 Section Reserved.

4.5 All Policies Requirements.

4.5.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.

4.5.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’ s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.

4.5.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.

4.5.4 Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).

4.5.5 Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.

DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 41
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Page 8 of 15

4.5.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.

4.6 Submittal of Proof of Insurance Coverage. All certificates of insurance and original endorsements effecting coverage required in this Section 4 must be electronically submitted through the City’s online insurance document management program, PINS Advantage. Contractor shall comply with all requirements provided by City related to the PINS Advantage program.

4.7 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’ s breach:

Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement.

Section 5. INDEMNIFICATION AND CONSULTANT’ S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement.

Section 6. STATUS OF CONSULTANT.

6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant' s services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.

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6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

Section 7. LEGAL REQUIREMENTS.

7.1 Governing Law. The laws of the State of California shall govern this Agreement.

7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’ s failure to comply with any law(s) or regulation( s) applicable to the performance of the work hereunder shall constitute a breach of contract.

7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.

7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.

7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.

Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.

Section 8. TERMINATION AND MODIFICATION.

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8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.

Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation.

In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.

8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.

8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.

8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’ s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. No Party may assign this Agreement or any interest therein without the prior written approval of the other Party. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.

8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.

8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but are not limited to, the following:

8.6.1 Immediately terminate the Agreement;

8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 44
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9.1 Records Created as Part of Consultant’ s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties.

9.2 Consultant’ s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.

9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $ 10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.

Section 10. MISCELLANEOUS PROVISIONS.

10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California.

10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 45
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10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.

10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.

10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.

10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.

Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq.

Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California.

At City’s sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant’s economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the Newark City Clerk for the Form 700 and directions on how to prepare it.

10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.

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10.9 Contract Administration. This Agreement shall be administered by the Police Business Manager (" Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.

10.10 Notices. Any written notice to Consultant shall be sent to:

Flock Group Inc.
1170 Howell Mill Rd NW Suite 210
Atlanta, GA 30318
Any written notice to City shall be sent to:

Newark Police Department
c/o Gina Anderson
37077 Newark Blvd
Newark, CA 94560
With a copy to:

City of Newark
Department of Finance
c/o Purchasing Agent
37101 Newark Blvd.

Newark, CA 94560

10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/ sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/ seal shall be in a block entitled Seal and Signature of Registered Professional with report/design responsibility," as in the following example.

Seal and Signature of Registered Professional with
report/design responsibility.

10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, and C represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.

Exhibit A Scope of Services
Exhibit B Compensation Schedule & Reimbursable Expenses Exhibit C Indemnification
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10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

10.14 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($ 1,000,000.00) or more, by Consultant’ s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision ( b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision ( a) of Section 2202.5, or as a person described in subdivision ( b) of Section 2202.5 of the California Public Contract Code, as applicable.

10.15 Force Majeure. Consultant is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of thirdparty technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of City or any Authorized End User.

SIGNATURES ON FOLLOWING PAGE
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CITY OF NEWARK FLOCK GROUP, INC.

David J. Benoun, City Manager Mark Smith, General Counsel Attest:

Sheila Harrington, City Clerk
Approved as to Form:

Kristopher Kokotaylo, City Attorney
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6/ 17/ 2022
6/ 20/ 2022
6/ 20/ 2022
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EXHIBIT A

SCOPE OF SERVICES
Flock Group Inc. (referred to herein as Consultant or Flock) will install twenty ( 20) Flock cameras on a Flock pole or existing infrastructure in specified locations.

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1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross - referenced in this Section 1.

1.1 " Agency Data” will mean the data, media and content provided by City through the Services. For the avoidance of doubt, the Agency Data will include the Footage.

1.2 “ Agency Hardware ” shall mean the third- party camera owned or provided by City and any other physical elements that interact with the Embedded Software and the Web Interface to provide the Services. The term “ Agency Hardware ” excludes the Embedded Software

1.3 “ Authorized End User( s)” shall mean any individual employees, agents, or contractors of City permissibly accessing or using the Services through the Web Interface, under the rights granted to City pursuant to this Agreement.

1.4 “ Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Services which are provided by Flock to Agency in accordance with the terms of this Agreement.

1.5 “ Embedded Software” will mean the software and/or firmware embedded or preinstalled on the Agency Hardware.

1.6 “ Flock IP” will mean the Services, the Documentation, the Embedded Software, the Installation Services, and any and all intellectual property therein or otherwise provided to City and/or its Authorized End Users in connection with the foregoing.

1.7 “ Footage” means still images and video captured by the Agency Hardware in the course of and provided via the Services.

1.8 “ Hardware” or “Flock Hardware” shall mean the Flock cameras or device, pole, clamps, solar panel, installation components, and any other physical elements that interact with the Embedded Software and the Web Interface to provide the Flock Services. The term “ Hardware” excludes the Embedded Software.

1.9 “ Implementation Fee(s)” means the monetary fees associated with the Installation Services, as defined in Section 1.10 below.

1.10 “ Installation Services” means the services provided by Flock including any applicable installation of Embedded Software on Agency Hardware.

1.11 “ Non-Agency End User(s)” shall mean any individual, entity, or derivative therefrom, authorized to use the Services through the Web Interface, under the DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 51
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1.12 “ Services” or “ Flock Services” means the provision, via the Web Interface, of Flock’ s software application for automatic license plate detection, searching image records, and sharing Footage.

1.13 “ Support Services” shall mean Monitoring Services, as defined in Section 2.9 below.

1.14 “ Unit(s)” shall mean the Agency Hardware together with the Embedded Software.

1.15 “ Usage Fee” means the subscription fees to be paid by the City for ongoing access to Services.

1.16 “ Web Interface” means the website( s) or application( s) through which City and its Authorized End Users can access the Services in accordance with the terms of this Agreement.

2. SERVICES AND SUPPORT

2.1 Provision of Access. Subject to the terms of this Agreement, Flock hereby grants to City a non-exclusive, non-transferable right to access the features and functions of the Services via the Web Interface during the Service Term ( as defined in Section 6.1 below), solely for the Authorized End Users. The Footage will be available for City’ s designated administrator, listed on the order form, and any Authorized End Users to access via the Web Interface for thirty (30) days.

Authorized End Users will be required to sign up for an account and select a password and username (“ User ID”). Flock will also provide City with the Documentation to be used in accessing and using the Services. City shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by City, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by City. City shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’ s use of the Services, and shall cause Authorized End Users to comply with such provisions. Flock may use the services of one or more third parties to deliver any part of the Services, including without limitation using a third party to host the Web Interface which makes the Services available to City and Authorized End Users. Warranties provided by said third party service providers are the City’ s sole and exclusive remedy and Flock’ s sole and exclusive liability with regard to such third- party services, including without limitation hosting the web interface.

City agrees to comply with any acceptable use policies and other terms of any third- party service provider that are provided or otherwise made available to City from time to time.

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2.2 Embedded Software License. Subject to all terms of this Agreement, Flock grants City a limited, non-exclusive, non-transferable, non-sublicensable (except to the Authorized End Users), revocable right to use the Embedded Software as installed on the Hardware or Agency Hardware; in each case, solely as necessary for City to use the Services.

2.3 Documentation License. Subject to the terms of this Agreement, Flock hereby grants to City a non- exclusive, non-transferable right and license to use the Documentation during the Service Term to Agency ’s in connection with its use of the Services as contemplated herein, and under Section 2.4 below.

2.4 Usage Restrictions.
a. Flock IP. The purpose for usage of the Unit, Documentation, Services, support, and Flock IP are solely to facilitate gathering evidence that could be used in a lawful criminal investigation by the appropriate government agency and not for tracking activities that the system is not designed to capture (“ Permitted Purpose”). City will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Flock IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Flock IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Flock IP, or attempt to do any of the foregoing, and City acknowledges that nothing in this Agreement will be construed to grant City any right to obtain or use such source code; ( iii) modify, alter, tamper with or repair any of the Flock IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Flock; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP; v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Services or Flock IP; (vi) use the Services, support, Unit, Documentation or the Flock IP for anything other than the Permitted Purpose; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Agency’ s rights under Sections

2.1, 2.2, or 2.3.
b. Flock Hardware. City understands that all Flock Hardware is owned exclusively by Flock, and that title to any Flock Hardware does not pass to City upon execution of this Agreement. City is not permitted to remove, reposition, re-install, tamper with, alter, adjust or otherwise take possession or control of Flock Hardware. Notwithstanding the notice and cure period set for in Section 6.4, City agrees and understands that in the event Agency is found to engage in any of the restricted actions of this Section 2.4(a), all warranties herein shall be null and void, and this DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 53
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 5 of 12 Agreement shall be subject to immediate termination (without opportunity to cure) for material breach by City.

2.5 Retained Rights; Ownership. As between the Parties, subject to the rights granted in this Agreement, Flock and its licensors retain all right, title and interest in and to the Flock IP and its components, and City acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. City further acknowledges that Flock retains the right to use the foregoing for any purpose in Flock’ s sole discretion. There are no implied rights.

2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Flock may temporarily suspend City’ s and any Authorized End User’ s access to any portion or all of the Flock IP or Flock Hardware if Flock reasonably determines that: ( a) there is a threat or attack on any of the Flock IP; ( b) Agency ’ s or any Authorized End User’ s use of the Flock IP disrupts or poses a security risk to the Flock IP or any other Agency or vendor of Flock; ( c) Agency or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Flock’ s provision of the Services to Agency or any Authorized End User is prohibited by applicable law; (e) any vendor of Flock has suspended or terminated Flock’ s access to or use of any third party services or products required to enable Agency to access the Flock IP; or (f) City has violated any term of this provision, including, but not limited to, utilizing the Services for anything other than the Permitted Purpose (each such suspension, in accordance with this Section 2.6, a Service Suspension”). Flock will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Agency ( including notices sent to Flock’ s registered email address) and to provide updates regarding resumption of access to the Flock IP following any Service Suspension. Flock will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Flock will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that City or any Authorized End User may incur as a result of a Service Suspension. To the extent that the Service Suspension is not caused by City’s direct actions or by the actions of parties associated with the City, the expiration of the Term will be tolled by the duration of any suspension (for any continuous suspension lasting at least one full day) prorated for the proportion of cameras on the City’s account that have been impacted.

2.7 Installation Services.
a. Designated Locations. For installation of Flock Hardware, prior to performing the physical installation of the Units, Flock shall advise City on the location and positioning of the Units for optimal license plate image capture, as conditions and location allow. Flock may consider input from City regarding location, position and angle of the Units (each Unit location DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 54
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 6 of 12 so designated by Agency, a “ Designated Location”). Flock shall have final discretion on location of Units. Flock shall have no liability to Agency resulting from any poor performance, functionality or Footage resulting from or otherwise relating to the Designated Locations as a result of delay in installation due to City’ s delay in confirming Designated Locations, in ordering and/or having the Designated Location ready for installation including having all electrical work preinstalled and permits ready, if necessary. The deployment plan will confirm the Designated Location.

After installation, any subsequent changes to the deployment plan Reinstalls”) will incur a charge for Flock’ s then-current list price for Reinstalls, as listed in the then- current Reinstall Policy ( available at https://www.flocksafety.com/reinstall-fee-schedule) and any equipment charges. These changes include but are not limited to camera repositioning, adjusting of camera mounting, re-angling, removing foliage, camera replacement, changes to heights of poles, regardless of whether the need for Reinstalls related to vandalism, weather, theft, lack of criminal activity in view, and the like. Flock Safety shall have full discretion on decision to reinstall Flock Hardware.
b. Agency Installation Obligations. Agency agrees to allow Flock and its agents reasonable access in and near the Designated Locations at all reasonable times upon reasonable notice for the purpose of performing the installation work. Although the Units are designed to utilize solar power, certain Designated Locations may require a reliable source of 120V AC power, as described in the deployment plan. In the event adequate solar exposure is not available City is solely responsible for providing a reliable source of 120V AC power to the Units, if necessary. Additionally, City is solely responsible for (i) any permits or associated costs, and managing the permitting process of installation of cameras or AC power; (ii) any federal, state or local taxes including property, license, privilege, sales, use, excise, gross receipts or other similar taxes which may now or hereafter become applicable to, measured by or imposed upon or with respect to the installation of the Hardware, its use (excluding tax exempt entities), or (iii) any other supplementary cost for services performed in connection with installation of the Hardware, including but not limited to contractor licensing, engineered drawings, rental of specialized equipment or vehicles, third-party personnel (i.e. Traffic Control Officers, Electricians, State DOT- approved poles, etc., if necessary), such costs to be approved by the Agency (“Agency Installation Obligations”). In the event that a Designated Location for a Unit requires permits, Flock will provide the City with a temporary alternate location for installation pending the permitting process. Once the required permits are obtained, Flock will relocate the Units from the temporary alternate location to the permitted location at no additional cost. Flock will provide options to supply power at each Designated Location. If City refuses alternative power supply options, City agrees and understands that City will not be DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 55
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 7 of 12 subject to any reimbursement, tolling, or credit for any suspension period of Flock Services due to low solar. Flock will make all reasonable efforts within their control to minimize suspension of Flock Services. Any fees payable to Flock exclude the foregoing. Without being obligated or taking any responsibility for the foregoing, Flock may pay and invoice related costs to City if City did not address them prior to the execution of this Agreement or a third party requires Flock to pay. City represents and warrants that it has all necessary right title and authority and hereby authorizes Flock to install the Hardware at the Designated Locations and to make any necessary inspections or tests in connection with such installation. Flock is not responsible for installation of City Hardware. c. Flock’s Obligations. Installation of any Flock Hardware shall be installed in a workmanlike manner in accordance with Flock’ s standard installation procedures, and the installation will be completed within a reasonable time from the time that the Designated Locations are confirmed. Following the initial installation of the Hardware and any subsequent Reinstalls or maintenance operations, Flock’ s obligation to perform installation work shall cease; however, for the sole purpose of validating installation, Flock will continue to monitor the performance of the Units for the length of the Term and will receive access to the Footage for a period of three (3) business days after the initial installation in order to monitor performance and provide any necessary maintenance solely as a measure of quality control. City understands and agrees that the Flock Services will not function without the Hardware. Labor may be provided by Flock or a third party. Flock is not obligated to install, reinstall, or provide physical maintenance to City Hardware.
d. Security Interest. Flock Hardware shall remain the personal property of Flock and will be removed upon the natural expiration of this Agreement at no additional cost to City . City shall not perform any acts which would interfere with the retention of title of the Hardware by Flock. Should City default on any payment of the Flock Services, Flock may remove Hardware at Flock’ s discretion. Such removal, if made by Flock, shall not be deemed a waiver of Flock’ s rights to any damages Flock may sustain as a result of City’s default and Flock shall have the right to enforce any other legal remedy or right.

2.8 Hazardous Conditions. Unless otherwise stated in the Agreement, Flock’ s price for its services under this Agreement does not contemplate work in any areas that contain hazardous materials, or other hazardous conditions, including, without limit, asbestos, lead, toxic or flammable substances. In the event any such hazardous materials are discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall have the right to cease work immediately in the area affected until such materials are removed or rendered harmless.

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Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 8 of 12

2.9 Support Services. Subject to the payment of fees, Flock shall monitor the performance and functionality of Flock Services and may, from time to time, advise City on changes to the Flock Services, Installation Services, or the Designated Locations which may improve the performance or functionality of the Services or may improve the quality of the Footage. The work, its timing, and the fees payable relating to such work shall be agreed by the Parties prior to any alterations to or changes of the Services or the Designated Locations Monitoring Services”). Subject to the terms hereof, Flock will provide City with reasonable technical and on- site support and maintenance services (“ On-Site Services”) in-person or by email at [email protected]. Flock will use commercially reasonable efforts to respond to requests for support.

2.10 Special Terms. From time to time, Flock may offer certain “Special Terms” related to guarantees, service and support which are indicated in the proposal and on the order form and will become part of this Agreement, upon City’s consent.

To the extent that any terms of this agreement are inconsistent or conflict with the Special Terms, the Special Terms shall control.

2.11 Changes to Platform. Flock may, in its sole discretion, make any changes to any system or platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Flock’ s products or services to its agencies, ( b) the competitive strength of, or market for, Flock’ s products or services, (c) such platform or system’ s cost efficiency or performance, or (ii) to comply with applicable law.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 City Obligations. Flock will assist City end-users in the creation of a User ID.

City agrees to provide Flock with accurate, complete, and updated registration information. City may not select as its User ID a name that City does not have the right to use, or another person’ s name with the intent to impersonate that person.

City may not transfer its account to anyone else without prior written permission of Flock. Unless otherwise required by law, City will not share its account or password with anyone, and must protect the security of its account and password.

City is responsible for any activity associated with its account. City shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services. City will, at its own expense, provide assistance to Flock, including, but not limited to, by means of access to, and use of, City facilities, as well as by means of assistance from City personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Flock to perform its obligations hereunder, including, without limitation, any obligations with respect to Support Services or any Installation Services.

3.2 Agency Representations and Warranties. City represents, covenants, and warrants that City will use the Services only in compliance with this Agreement and all applicable laws and regulations, including but not limited to any laws DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 57
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 9 of 12 relating to the recording or sharing of video, photo, or audio content. Although Flock has no obligation to monitor City’suse of the Services, Flock may do so and may prohibit any use of the Services it believes may be ( or alleged to be) in violation of the foregoing.

4. CONFIDENTIALITY; AGENCY DATA

4.1 Confidentiality. To the extent allowable by applicable FOIA and state-specific Public Records Acts, each Party ( the “ Receiving Party”) understands that the other Party (the “ Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’ s business hereinafter referred to as “ Proprietary Information” of the Disclosing Party).

Proprietary Information of Flock includes non- public information regarding features, functionality and performance of the Services. Proprietary Information of City includes non- public data provided by City to Flock or collected by Flock via the Unit, including the Footage, to enable the provision of the Services, which includes but is not limited to geolocation information and environmental data collected by sensors built into the Units. . The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Flock’s use of the Proprietary Information may include processing the Proprietary Information to send City alerts, such as when a car exits City’s neighborhood, or to analyze the data collected to identify motion or other events. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, at which time the Parties agree that the Receiving Party will give the Disclosing Party reasonable prior notice of such disclosure. For clarity, Flock may access, use, preserve and/ or disclose the Footage to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if Flock has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with a legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; ( c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Flock, its users, a third party, or the public as required or permitted by law, including respond to an emergency situation. City hereby expressly grants Flock a non- exclusive, worldwide, perpetual, royalty- free right and license during and after the term hereof) to disclose the Agency Data (inclusive of any DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 58
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 10 of 12 Footage) to enable law enforcement monitoring against law enforcement hotlists as well as provide Footage search access to law enforcement for investigative purposes only. Flock may store deleted Footage in order to comply with certain legal obligations but such retained Footage will not be retrievable without a valid court order.

4.2 Agency Data. As between Flock and City , all right, title and interest in the Agency Data, belong to and are retained solely by City . City hereby grants to Flock a limited, non-exclusive, royalty-free, worldwide license to use the Agency Data and perform all acts with respect to the Agency Data as may be necessary for Flock to provide the Flock Services to City , including without limitation the Support Services set forth in Section 2.9 above, and a non- exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Agency Data as a part of the Aggregated Data ( as defined in Section 4.4 below). As between City and Non-Agency End Users that have prescribed access of Footage to Agency, each of City and Non- Agency End Users will share all right, title and interest in the Non-Agency End User Data. This Agreement does not by itself make any Non- Agency End User Data the sole property or the Proprietary Information of City . Flock will automatically delete Footage older than thirty (30) days. City has a thirty (30) day window to view, save and/or transmit Footage to the relevant government agency prior to its deletion.

4.3 Feedback. If Agency provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the subject matter hereunder, Agency hereby assigns (and will cause its agents and representatives to assign) to Flock all right, title and interest ( including intellectual property rights) with respect to or resulting from any of the foregoing.

4.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Flock shall have the right to collect and analyze data that does not refer to or identify City or any individuals or de-identifies such data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies ( including, without limitation, information concerning Agency Data and data derived therefrom). For the sake of clarity, Aggregated Data is compiled anonymous data which has been stripped of any personal identifying information. City acknowledges that Flock will be compiling anonymized and/ or aggregated data based on Agency Data input into the Services the “Aggregated Data”). City hereby grants Flock a non-exclusive, worldwide, perpetual, royalty- free right and license ( during and after the Service Term hereof) to (i) use and distribute such Aggregated Data to improve and enhance the Services and for other development, diagnostic and corrective purposes, other Flock offerings, and crime prevention efforts, and (ii) disclose the Agency Data both inclusive of any Footage) to enable law enforcement monitoring against law enforcement hotlists as well as provide Footage search access to law enforcement DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 59
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 11 of 12 for investigative purposes only. No rights or licenses are granted except as expressly set forth herein. Flock shall not sell Agency Data or Aggregated Data.

5. REMEDY; WARRANTY AND DISCLAIMER

5.1 Remedy. Upon a malfunction or failure of Flock Hardware or Embedded Software ( a “ Defect”), City must notify Flock’ s technical support as described in Section 2.9 above. If Flock is unable to correct the Defect, Flock shall, or shall instruct one of its contractors to repair or replace the Flock Hardware or Embedded Software suffering from the Defect. Flock reserves the right in their sole discretion to refuse or delay replacement or its choice of remedy for a Defect until after it has inspected and tested the affected Unit provided that such inspection and test shall occur within seventy- two (72) hours after City notifies the Flock of a known Defect. In the event of a Defect, Flock will repair or replace the defective Unit at no additional cost. In the event that a Unit is lost, stolen, or damaged, City may request that Flock replace the Unit at a fee according to the then- current Reinstall Policy ( https:// www.flocksafety. com/ reinstall- feeschedule). City shall not be required to replace subsequently lost, damaged or stolen Units, however, City understands and agrees that functionality, including Footage, will be materially affected due to such subsequently lost, damaged or stolen Units and that Flock will have no liability to City regarding such affected functionality nor shall the Usage Fee or Implementation Fees owed be impacted.

Flock is under no obligation to replace or repair Hardware that has been lost, stolen or damaged for reasons other than a Defect.

5.2 Exclusions. Flock will not provide the remedy described in Section 5.1 if City is found to have misused the Flock Hardware, Agency Hardware or Embedded Software in any manner.

5.3 Warranty. Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation Services in a professional and workmanlike manner. Upon completion of any installation or repair, Flock shall clean and leave the area in good condition. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Flock or by third-party providers, or because of other causes beyond Flock’ s reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

5.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 5.1 ABOVE IS CITY’S SOLE REMEDY, AND FLOCK’ S SOLE LIABILITY, WITH RESPECT TO DEFECTIVE EMBEDDED SOFTWARE. FLOCK DOES NOT WARRANT
THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE;

NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS

EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE
DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 60
Consulting Services Agreement between City of Newark and Last revised 06/15/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit A – Page 12 of 12 PROVIDED “AS IS” AND FLOCK DISCLAIMS ALL WARRANTIES,

EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED

WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS DISCLAIMER OF SECTION 5.4 ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE OF CALIFORNIA.

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Consulting Services Agreement between City of Newark and Last revised 05/27/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit B – Page 1 of 1

EXHIBIT B

COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
Name Price Quantity Year 1
Subtotal
Year 2 Subtotal Year 3
Subtotal
Flock Falcon
Camera
2,500.00 20.00 $ 50,000 $ 50,000 $ 50,000
Professional
Services – Falcon
Standard
Implementation
one time fees)
350.00 20.00 $ 7,000. 00
Flock Safety 25
Falcons Advanced
Search
2,500.00 1.00 $ 2,500.00 $ 2,500.00 $ 2,500.00
Total Paid per year $ 112, 000 Years 1 & 2
paid in Year 1
52,500.00
Total $ 164,500.00
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Consulting Services Agreement between City of Newark and Last revised 05/27/2022 Flock Group Inc. for Community Safety Cameras with ALPRs Exhibit D – Page 1 of 1

EXHIBIT C

INDEMNIFICATION
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’ s fees and costs and fees of litigation) collectively, “ Liability”) of every nature arising out of or in connection with Consultant’ s performance of the services called for or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.

Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.

The Consultant’ s obligation to defend and indemnify shall not be excused because of the Consultan t’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be conside red necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.

Consultant shall also indemnify, defend and hold harmless the City from all suits or claims for infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers, or agents use of articles, products things, or services supplied in the performance of Consultant’ s services under this Agreement, however, the cost to defend charged to Consultant shall not exceed Consultant’ s proportionate percentage fault.
5117029. 1
DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 63
Customer Implementation Guide:

Law Enforcement
Let’s defeat crime together
Contents
Implementation Timeline 2
Implementation Team 3
Implementation Service brief: Standard VS Advanced 6
Standard Implementation 6
Advanced Implementation 8
Things to Consider when Picking Locations 10
Customer Responsibilities: AC-Powered Cams 11
Electrician Handout 12
Electrician Installation Steps 12
FAQs about AC-Powered Flock Cameras 13
Installation Service Brief Summary 15
Permitting: Pre-Install Questionnaire 16
1 Timeline 16
2 Right of Way 16
3 AC Power vs Solar 16
4 Traffic Control & Installation Methods 16
5 Paperwork & Required Forms 17
6 Contacts 17
Professional Services Fee Schedule 17
Billing 18
Help Center 19
Customer Support 19
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Implementation Timeline
This timeline provides general guidance and understanding of your installation process While we typically complete installations 6-8 weeks after locations have been finalized, delays can occur as noted in the timeline below:
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Implementation
Team How they will support you
Project Manager Your Project Manager is your primary contact during camera installation
Your project manager will guide you through the entire installation process, keeping you apprised of all implementation updates as well as answering any questions you have during this time They will ensure that all the cameras are on the ground and operating for at least 48 hours before transitioning you to your Customer Success Manager
Field Operations
Team
The Field Operations team is responsible for the physical installation and maintenance of cameras and associated equipment provided by Flock This includes a large team of technicians, schedulers, and many others involved in ensuring the delivery of the product They take the technical plan you finalized with Product Implementation and work closely with other teams at Flock to make sure that the cameras are installed quickly and safely and in a way that maximizes the opportunity to solve crime at a specific location Note*: For all Installation questions or concerns, please always direct them to your Customer Success Manager and not the technician
Product
Implementation
Specialist
Your Product Implementation Specialist is your technical product expert
They will help translate your goal for using Flock Safety cameras into a technical plan that can be executed and enable you to solve crime Your specialist will work your Sales Rep to:

Review the cameras inyour deployment
Ensure that the deployment plan is set up for success from a technological standpoint in addition to meeting your goals for the product
If any of your locations require permits, a member of the Product Implementation team will assist you in packaging your application(s) Implementation Team
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Relationship
Team How they will support you
Customer
Success
Manager
Your Customer Success Manager is your strategic partner for your lifetime as a Flock customer
While the cameras are getting installed, your CSM will help get your account set up and get all key users trained on the system Post-Camera-Installation, your CSM will be your go-to for most accountrelated needs: You should reach out to them to:

Set up Account Training
Understand benefits of features
Learning best practices for getting relevant data
Identifying opportunities to expand the security network in your area
Provide feedback on your partnership with Flock
Flock Safety
Support
The Flock Safety Support team is committed to answering all your dayto-day questions as quickly as possible To get in touch with support, simply email support@flocksafety com Support can help you:

Request camera maintenance
Troubleshoot online platform
Contract / Billing questions
Update account information
Camera Sharing questions
Quick “ How to” questions in your Flock Account
Please Note: On some occasions, third parties outside of Flock Safety may be (or need to be) involved in your implementation
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Outside Party When they may be involved
Electrician/
Street
Department
If the Flock cameras need to be AC powered, you (customer) are responsible for providing an electrician to ensure power connectivity Public Works
LE) To weigh in on the use of public Rights of Way or property Department of
Transportation
DOT), City,
or County
agencies
If installation in your area requires permitting
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Standard Implementation
Cost = $350 / camera (one time cost)
Implementation Service brief: Standard VS Advanced
Included in scope:

Once Designated Locations are confirmed, as part of the Standard Implementation Service Flock will perform the following:

An in-person site survey to confirm the installation feasibility of a location (location assessment, solar assessment, visibility review, etc)
Confirm that a location is safe for work by following State utility locating procedures Work with local utilities to prevent service interruptions during the installation Engage 811 ‘ Call-before-you-Dig’ system to receive legal dig date Apply approved markings Coordinate with 811 regarding any necessary high-risk dig clearances or required vendor meets
Each installation may include the following:

Installation of camera and solar panel with standard, 12’ above grade Flock breakaway pole
Installation of camera and solar panel on a suitable existing pole, no higher than 8-12’ approval at Flock Safety’s discretion)
Installation of camera and AC adapter that a qualified electrician can connect to AC power on a suitable existing pole, no higher than 8-12’ ( approval at Flock Safety’s discretion)
Flock will provide and mount an AC adapter that a qualified electrician can connect to AC power following our electrical wiring requirements (link). Flock is unable to make any AC connections or boreholes in any material other than dirt, grass, loose gravel (or other non-diggable material). Electrical work requiring a licensed electrician and associated costs, not included in the scope.

Access requiring up to a 14’ A-frame ladder
Standard MUTCD traffic control procedures performed by a Flock technician Obtain a business license to operate in the City and State of camera location 6 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 69
Not included in scope:

Flock does not include the following as part of the Standard Implementation Service but can provide a quote for sourcing at an additional cost:

Cannot NCHRP 350 or MASH approved pole (as may be required for locations in DOT right of way)
A Bucket Truck for accessing horizontal/cross-beams
Site-specific engineered traffic plans
Third-party provided traffic control
State or City-specific specialty contractor licenses
Custom engineered drawings
Electrical work requires a licensed electrician Flock will provide and mount an AC adapter that a qualified electrician can connect to AC power but cannot make any AC connections or boreholes in any material other than dirt, grass, loose gravel (or other non-diggable material)
Private utility search for privately owned items not included in standard 811 procedures communication, networking, sprinklers, etc)
Upgrades to power sources to ready them for Flock power (additional fuses, switches, breakers, etc)
Any fees or costs associated with filing for required City, County, or State permits 7 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 70
Included in scope: Once Designated Locations are confirmed, as part of the Advanced Implementation Service, Flock will perform the following:

An in-person site survey to confirm the installation feasibility of a location (location assessment, solar assessment, visibility review, etc)
Confirm that a location is safe for work by following State utility locating procedures Work with local utilities to prevent service interruptions during the installation Engage 811 ‘Call-before-you-Dig’ system to receive legal dig date Apply approved markings Coordinate with 811 regarding any necessary high-risk dig clearances or required vendor meets
Each installation may include the following:

Installation of camera and solar panel with standard, 12’ above grade Flock breakaway pole
Installation of camera and solar panel on a suitable existing pole, no higher than 8-12’ approval at Flock Safety’s discretion) or NCHRP 350 or MASH approved pole, if necessary
Pole Options - Northern and Coastal
Pole Options - Non-Winterized, Non-Coastal
Pole Options - Georgia
Pole Options - Texas
Installation of camera and AC adapter that a qualified electrician can connect to AC power on a suitable existing pole, no higher than 8-12’ ( approval at Flock Safety’s discretion)
Flock will provide and mount an AC adapter that a qualified electrician can connect to AC power following our electrical wiring requirements (link) Flock cannot make any AC connections or boreholes in any material other than dirt, grass, loose gravel (or other non-diggable material) Electrical work requiring a licensed electrician and associated costs, not included in the scope Access requiring up to a 14’ A-frame ladder
Standard MUTCD traffic control procedures performed by a Flock technician Obtain a business license to operate in the City and State of camera location Advanced Implementation
Cost = $750 / camera (one time cost)
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Not included in scope:

By default, Flock does not include the following as part of the Advanced Implementation Service but can optionally provide a quote for sourcing (additional cost):

A Bucket Truck for accessing horizontal/ cross-beams
Site-specific engineered traffic plans
Third-party provided traffic control
State or City-specific specialty contractor licenses
Custom engineered drawings
Electrical work requires a licensed electrician Flock will provide and mount an AC adapter that a qualified electrician can connect to AC power but cannot make any AC connections or boreholes in any material other than dirt, grass, loose gravel (or other non-diggable material)
Private utility search for privately owned items not included in standard 811 procedures communication, networking, sprinklers, etc)
Upgrades to power sources to ready them for Flock power (additional fuses, switches, breakers, etc)
Any fees or costs associated with filing for required City, County, or State permits 9 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 72
Things to Consider when Picking Locations
Falcon Cameras
Use Cases
Flock LPRs are designed to capture images of rear license plates aimed in the direction of traffic
Flock LPRs are not designed to capture pedestrians, sidewalks, dumpsters, gates, other areas of non-vehicle traffic, intersections
Placement
They capture vehicles driving away from an intersection They cannot point into the middle of an intersection
They should be placed after the intersection to prevent stop and go motion activation or “stop and go” traffic
Mounting
They can be mounted on existing utility, light, traffic signal poles, or 12 foot Flock poles ** NOTE** Permitting (or permission from pole owner) may be required to use existing infrastructure or install in specific areas, depending on local regulations & policies
They should be mounted one per pole* If using AC power, they can be mounted 2 per pole
Cameras need sufficient power Since a solar panel is required per camera, it can prevent adequate solar power if two cameras and two solar panels are on a single pole (blocking visibility) Therefore if relying on solar power, only one camera can be installed per pole
They can be powered with solar panels or direct wire-in AC Power (no outlets) ** NOTE** Flock does not provide Electrical services Once installed, the agency or community must work with an electrician to wire the cameras Electrician services should be completed within two days of installation to prevent the camera from dying They will require adequate cellular service using AT&T or T-Mobile to be able to process & send images
Solar Panels
Solar panels need unobstructed southern-facing views
Pole
If a location requires a “DOT Pole” (i e, not Flock standard pole), the implementation cost will be $750/camera
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Customer Responsibilities: AC-Powered Cams
If the Flock cameras need to be AC-powered, the customer is responsible for acquiring an electrician and ensuring they connect the camera to power See steps 2 and 6 below Visit flocksafety com/power-install for the complete plan, FAQs & to get started! 11 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 74
Electrician Handout
Electrician Installation Steps
1 Run AC cable and conduit to the
box according to NEC Article 300
and any applicable local codes The
gland accepts 1/ 2” conduit
2 Open the box using hinges
3 Connect AC Mains per wiring
diagram below:

Connect AC Neutral wire to the
Surge Protector white Neutral
wire using the open position on
the lever nut
Connect AC Line wire to the
Surge Protector black Line wire
using the open position on the
lever nut
Connect AC Ground wire to the Surge Protector green ground wire using the open position on the lever nut
4 Verify that both the RED LED is lit on the front of the box 5 Close box and zip tie the box shut with the provided zip tie 6 While still on-site, call Flock, who will remotely verify that power is working correctly:

Southeast Region - (678) 562-8766
West-Region - (804) 607-9213
Central & NE Region - (470) 868-4027
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FAQs about AC-Powered Flock Cameras
What voltage is supported? The AC kit is designed to work with 120VAC infrastructure by default A 240VAC version is available on request
How much power does this consume? Peak current draw is 1 5 A at 120VAC The average power draw is roughly 30W in high traffic conditions but maybe lower when fewer vehicles are present
Who is responsible for contracting the electrician? The customer is responsible for contracting an electrician We can help answer questions, but the customer is responsible for identifying and contracting an electrician Who is responsible for maintenance? Flock will handle all maintenance related to Flock’s camera and power equipment However, any problems with the electrical supply are the customer’s responsibility The AC junction box has two lights to indicate the presence of power and make it easy for quick diagnosis if there is a problem related to the AC power source
If the camera indicates to Flock that there is a power supply problem, Flock will notify the customer and request that the customer verifies the lights on the AC junction box If the AC Source light is illuminated, Flock will send a technician to investigate If the AC source light is not illuminated, the customer should check any GFCI’s or breakers in the supply circuit or call the electrician who installed the power supply How much does it cost? Work required to bring AC power to each location will be different, so exact pricing is unavailable Primary cost drivers include arrow boards and the distance from the camera location to the AC power source What information do I need to provide my electrician? The Flock deployment plan and these work instructions should be sufficient to secure a quote It will be helpful if you know the location of the existing power infrastructure before creating the deployment plan
Can you plug it into my existing power outlet? The Flock AC power adapter does not use a standard outlet plug but must be directly wired into the power mains While using outlet plugs may be convenient, they can easily be unplugged, presenting a tampering risk to this critical safety infrastructure The electrician can route power directly to the camera with a direct wire-in connection if an outlet is close to the camera How long does this process typically take? The installation process typically takes 6-8 weeks To accelerate the process, be sure to have the electrician perform his work shortly after the Flock technician finishes installing the camera What kind of electrician should I look for? Any licensed electrician should perform this work, though we have found that those who advertise working with landscape lighting are most suited for this work
What happens if the electrician damages the equipment? The customer is responsible for contracting the electrician Any liability associated with this work would be assumed by the customer If any future work is required at this site due to the electrical infrastructure or the work performed by the electrician would be the responsibility of the customer
13 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 76
When should the electrician perform his work? Once Flock installs the camera, you will receive an email alert letting you know that this has been completed After this, you will need to schedule the electrician to route power to the pole What if my electrician has questions about Flock’s AC Kit? You should share the AC-Power Kit Details packet with the electrician if they have questions What if the AC power is on a timer? Sometimes the AC power will be on a timer (like used for exterior lighting) Flock requires that the AC power provided to the camera be constant The source that the electrician uses must not be on a timing circuit 14 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 77
What is covered by
Flock
What is NOT covered by
Flock Special note
Flock Cameras & Online
Platform
Traffic Control and any
associated costs
Mounting Poles
DOT Approved Pole cost
Electrician & ongoing
electrical costs
AC Power Kit (as needed) Engineering Drawings
Solar Panels (as needed) Relocation Fees Excluding changes during initial installation
Site Surveys and Call 811
Scheduling Contractor licensing fees
Installation Labor Costs Permit application
processing fees
Customer Support / Training Specialist mounting
equipment
Including, but not limited to,
MASH poles or adapters
Cellular Data Coverage Bucket trucks
Maintenance Fees (review Fees
Sheet for more details)
Loss, theft, damage to Flock
equipment
Data storage for 30 days Camera downtime due to
power outage
Only applicable for
AC-powered cameras
Below outlines the statement of work for the Flock Camera Installation:

Installation Service Brief Summary
If a location requires a “DOT pole” (i e, not our standard), the implementation cost will be 750/camera; This cost is applicable for installations in GA, IL, SC, TN, and CA MASH poles: Manual for Assessing Safety Hardware (MASH) presents uniform guidelines for crash testing permanent and temporary highway safety features and recommends evaluation criteria to assess test results
15 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 78
Permitting: Pre- Install Questionnaire
1 Timeline
In Flock Safety’s experience, in-depth permitting requirements can add 2+ months to the installation timeline Law enforcement agencies and city governments can work with their local Public Works or Department of Transportation offices directly to help expedite the process When Flock Safety customers manage the permitting processes, results tend to come more quickly
Can your agency own the permitting process with Flock Safety’s assistance? 2 Right of Way
Will any Flock Safety cameras be installed on the city, state, or power company-owned poles or in the city, county, or state Right of Way (RoW)? What is the RoW buffer?
Will additional permits or written permission be required from third-party entities such as DOT, power companies, public works, etc)?
Will any cameras be installed on city-owned traffic signal poles (vertical mass)? If yes, please provide heights/photos to determine if a bucket truck is needed for the installation
Note: A bucket truck is required if the height exceeds 15 feet tall 3 AC Power vs Solar
If AC powered, is there a 120V power source available, and is there access to an electrician who can connect the existing wire to the Flock Safety powered installation kit? (Link)
If solar-powered, consider the size of the solar panel and potential to impact the visibility of DOT signs/signals:

Single Panel: 21 25” x 14” x 2” (Length x Width x Depth) Double Panel: 21 25” x 28” x 2” (LxWxD)
4 Traffic Control & Installation Methods
If a bucket truck is required, this typically necessitates an entire lane to be blocked in the direction of travel Can you provide a patrol car escort, or will full traffic control be required?
Note: If traffic control is required, you may incur additional costs due to city/state requirements; Fees will be determined by quotes received If full traffic control is required (cones, arrow boards, etc):

Will standard plans suffice, or are custom plans needed? Custom plans can double the cost, while standard plans can be pulled from the Manual of Uniform Traffic Control Devices (MUTCD)
Will a non-sealed copy of the traffic plan suffice? Or does the traffic plan need to be sealed and/or submitted by a professional engineer?
Are there state-specific special versions/ variances that must be followed? 16 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 79
If a bucket truck is not required, the shoulder or sidewalk should suffice and enable Flock Safety to proceed without traffic control systems in place Note: In some states (i e, arrow boards), sidewalks may require signage If signage is mandatory, Will your Public Works department be able to assist? 5 Paperwork & Required Forms
Flock Safety will need copies of paperwork to complete before proceeding (ex, business license applications, encroachment permit applications) We can save critical time by gathering these documents upfront We appreciate your assistance in procuring these
6 Contacts
If Flock Safety needs to interface directly with the departments, please share the contact information of the following departments:

Permitting
Public Works
Traffic Department
Professional Services Fee Schedule
Camera relocation, existing pole non-AC powered = $350
Camera relocation, Flock pole and/or AC powered = $750
Camera replacement as a result of vandalism, theft, or damage = $500 Pole replacement as a result of vandalism, theft, or damage = $500 Trip charge = $350
Examples:

Angle adjustment (elective)
Install additional Flock signage
17 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 80
Billing
5 1b Falcon Fees For Falcon products during the Initial Term, Agency will pay Flock fifty percent (50%) of the first Usage Fee, the Implementation Fee, and any fee for Hardware as described on the Order Form, together with the “Initial Fees”) as set forth on the Order Form on or before the 30th day following receipt of initial invoice after Effective Date Upon commencement of installation, Flock will issue an invoice for twenty-five percent (25%) of the Initial Fees The Agency shall pay on or before the 30th day following receipt of the invoice
Upon completion of installation, Flock will issue an invoice for the remaining balance, and Agency shall pay on or before the 30th day following receipt of the final invoice Flock is not obligated to commence the Installation Services unless and until the first payment has been made and shall have no liability resulting from any delay related thereto For a Renewal Term, as defined below, Agency shall pay the entire invoice on or before the anniversary of the Effective Date
6 1b Falcon Term Subject to earlier termination as provided below, the initial term of this Agreement shall be for the period of time set forth on the Order Form (the “Initial Term”) The Term shall commence upon first installation and validation of a Unit Following the Initial Term, unless otherwise indicated on the Order Form, this Agreement will automatically renew for successive renewal terms for the length set forth on the Order Form (each, a Renewal Term,” and together with the Initial Term, the “Service Term”) unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the then-current term
18 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 81
Help Center
Our Help Center is filled with many resources to help you navigate through the online platform Below you will find some common questions and their relevant help article:

How do I search camera footage?
How do I add a user?
How do I add a vehicle to my own Hot List?
How do I enable browser notifications for Hot List alerts? How do I get text alerts for Hot List?
How do I request camera access from other nearby agencies? How do I use the National Lookup to search for a plate? (National Lookup - network of law enforcement agencies that have opted to allow their network of Flock cameras to be used for searches)
How do I reset my / another user’s password?
Customer Support
You can reach our customer support team anytime by emailing support@flocksafety com They can help answer any “ How-To” questions you may have 19 DocuSign Envelope ID: DA39168D- 7920-4F7B-8EF4-D338F542AA4F Packet Page 82
Packet Page 83
Packet Page 84
Item  E. 1.

DATE 02/22/2024
TO Honorable Mayor and City Council Members
FROM Roya Gonzalez, Senior Management Analyst
SUBJECT    Public hearing pursuant to Government Code Sections 4217.10, et seq. to adopt certain findings and adopt a resolution authorizing the City Manager to execute Energy Services Agreements with FTP BTM Solar, LLC (ForeFront Power) for the design, financing, construction, installation, operation and maintenance of carport mounted solar photovoltaic systems at the Geroge M. Silliman Center and Newark Civic Center
SUMMARY AND RECOMMENDATION
In an effort to achieve the City's Climate Action Plan goals of decreasing our climate footprint, the installation of solar panels has been identified as a significant return on investment (ROI) opportunity, providing the City with high energy and cost savings. The proposed projects will produce an anticipated energy savings of approximately $7,280,000 over the proposed 20-year agreement. The School Project for Utility Rate Reductions (SPURR), a California joint-powers authority, operates a variety of cooperative procurement programs. The Renewable Energy Aggregate Procurement (REAP) program is a procurement program that leverages collective purchasing power to secure competitive solar project pricing and terms, which are available for public agencies to participate in. Utilizing the REAP program will allow the City to benefit from a competitive bid process while preserving City resources.

Staff recommends that the City Council hold a Public Hearing pursuant to Government Code Sections 4217.10, et seq. to adopt certain findings and to adopt a resolution authorizing the City Manager to execute Energy Services Agreements with FTP BTM Solar, LLC (ForeFront Power) for the design, financing, construction, installation, operation and maintenance of solar photovoltaic systems at the George M. Silliman Center and Newark Civic Center.

BACKGROUND
City staff began exploring potential locations and procurement methods for installing solar panels at City facilities within the last year. Staff contacted the provider of the recent Newark Unified School District solar panel installation project, ForeFront Power, who assisted the City with identifying two sites suitable for solar – the parking lots of the George M. Silliman Community Activity Center (SAC) and Newark Civic Center (NCC). All other City facilities were evaluated and determined to be too small or have roof space positioned such that the energy generated would not be enough to have a cost-effective return on investment. The size and openness of the parking lots at SAC and NCC are ideal conditions.

In December 2022, the California Public Utilities Commission (CPUC) approved new rules to Net Energy Metering (NEM), the method of billing that allows energy generators to receive financial credit for excess energy generated. The new rules, effective April 15, 2023, would significantly impact the City’s potential cost savings and rate stability. Under the new NEM rules, the largest impact to the City is a projected 75% drop in value of export rates, the value of excess energy sent back to the grid, which transitions into energy bill credits. The value of the energy we over-generate/export is a big driver in realizing cost savings.

Packet Page 85
Fortunately, the new NEM rules include a grandfathering clause allowing new solar customers to benefit from rates under the previous rules if an application was received and approved by April 15, 2023.

Working with ForeFront Power, staff applied and received approval for two solar projects under the grandfathering clause - carport mounted photovoltaic systems in the SAC and NCC parking lots. The grandfathering clause requires that the solar projects included in the application be completed (final building permit sign-off) within three years. This requires that the City take action now in order to complete its solar projects by the deadline of April 15, 2026, or lose approximately $4 million in projected cost savings over a 20-year period.

DISCUSSION/ANALYSIS
California Government Code 4217, et sq. is a state law that provides public agencies flexibility in their contracting method for energy services agreements. Under the provisions of this code, the City Council must determine that it is in the best interest of the City and that the anticipated cost to the City for the energy services project will be less than the anticipated marginal cost to the City of electrical energy that would have been consumed in the absence of the energy service contacts. These findings must be made at a public hearing with at least two weeks' notice.

To ensure the City receives competitive pricing, City staff have researched and reviewed the School Project for Utility Rate Reduction (SPURR), a California joint-powers authority of over 300 public agencies, which operates the Renewable Energy Aggregate Procurement (REAP) program. This program leverages the collective purchasing power of SPURR’s member agencies to secure transparent, pre-negotiated solar project pricing and terms that are then available to SPURR members and eligible entities. Members and eligible entities are then able to piggyback on SPURR’s competitively bid RFP process to secure solar generating projects and pricing. The City, as a Public Agency, is an eligible entity and therefore able to participate in the REAP program.

Staff worked with SPURR and ForeFront Power, the firm awarded the REAP program Master Contract, to determine that George M. Silliman Community Activity Center (SAC) and Newark Civic Center (NCC) parking lots are best suited for carport mounted solar panels.

The proposed projects will include a total capacity of 1,311 kW of solar generation, resulting in an approximately 97% energy offset across the two sites. It is estimated this offset will provide over $154,000 in the first-year utility bill savings, and approximately $7,280,000 over the life of the 20-year agreements. Utilizing the REAP Program will result in significant cost savings for the City over the life of the project and include negotiated terms and conditions such as an annual performance guarantee, a fixed 20-year power purchase agreement (PPA) rate, lifetime system operations and maintenance, and no out-of-pocket costs from the City. The pricing and terms secured through the REAP Program are competitive in the marketplace and will allow the City to save time and money by not having to duplicate efforts, and benefit from a large-scale buying power.

Under the recommended Energy Services Agreements, ForeFront Power would finance, design, construct, implement, operate, and maintain the solar photovoltaic systems, from which the City would receive and purchase energy from ForeFront Power at specified, pre-negotiated PPA rates, with no escalator over the course of the agreements.

A summary of the project systems, PPA rates, and energy and cost savings is shown below:

Project
Site
PPA
Rate
PPA
Escalator
Solar
System
Size
(kW)
Y1
Production
(kWh)
%
Energy
Offset
Pre-Solar
Utility Bill
Year 1
Savings
20 Year
Savings
George
Packet Page 86
George
M.

Silliman
Center
$0.1782* 0% 852 1,307,973 95% $376,229 $44,156 $3,522,992 Newark
Civic
Center
$0.1762 0% 459 717,943 100% $248,990 $110,316 $3,759,336 Total $0.1775 0% 1,311 2,025,916 97% $625,219 $154,473 $7,282,328 In addition to energy savings, it is estimated that year one solar production will result in an avoidance of 1,436 Metric Tons of CO2 total for both sites. Additional environmental benefits and alignment with the City's climate action goals of greenhouse gas reductions are included in the attached presentation.

FISCAL IMPACT
There are no up-front costs. Over the course of the 20-year contracts with ForeFront Power, Pacific Gas and Electric bills are estimated to decrease from $17.39 million to $3.25 million. ForeFront Power will bill the City of Newark for energy used, estimated at $6.86 million. This will achieve an overall estimated net savings of $7.28 million.

ENVIRONMENTAL/PLANNING COMMISSION REVIEW
Approval of the Energy Services Agreements is exempt from CEQA review under the California Environmental Quality Act pursuant to California Public Resources Code section 21080.35, installation of a solar energy system in an existing parking lot.

REVIEW AND APPROVAL
Prepared by - Roya Gonzalez, Senior Management Analyst
Reviewed by - Lenka Hovorka, Assistant City Manager
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Presentation
ForeFront Resolution
REAP Master Contract
Packet Page 87
City of Newark
REAP Solar Project – Council Presentation
Roya Gonzalez – City of Newark
Kevin Flanagan – SPURR
Sam Zantzinger – ForeFront Power
February 2024
Packet Page 88
2 • Comprehensive
Evaluation
• Master Planning
Review
• NEM 2.0 Legacy
• Site Visits • Interconnection
Applications
• Contract
Negotiation
 Spring 2022: ForeFront completes several solar projects across multiple Newark USD locations.
 Spring 2022: City staff engages with SPURR & ForeFront team for solar evaluation on City facilities.
 Summer 2022-Fall 2023: City of Newark staff evaluates REAP Program, and City Procurement & Legal Department
approves use of REAP Procurement vehicle.
 Summer 2021-Summer 2023:ForeFront and Staff
completes…
 February 22, 2024: Staff recommending agreement
approval and initiate project implementation from
Council. City
City of Newark Renewable Background
Packet Page 89
3 SPURR = Experience & Success
• Buying Consortium of +300
Public Agencies
• JPA governed by Board of public
agency administrators
• REAP RFP Meets City’s
Piggyback Procurement
Requirements & Exceeds
Government Code 4217
• Used by +75 Cities, Counties,
Universities & School Districts
SPURR: School Project for Utility Rate
Reduction
REAP Program Participants
Packet Page 90
4  Used by +70 Cities & Public Agencies
including Newark USD, City of
Livingston,
Santa Clara County, & Oakland USD
 ForeFront/SPURR’s low pricing is
based on competitive RFP
 No Capital Outlay
 Operations & Maintenance Included
 Industry-Leading Performance
Guarantee
Renewable Energy Certificates
(RECs) accrue to the City
 NEM 2.0 Legacy Secured
Key Points: ForeFront/SPURR Proposal
Packet Page 91
Silliman Community Center – 852kW of PV Canopies
5 Packet Page 92
ABCDE
12345
6 DATE: Jan.29.2024
DRAWN BY: RP
ENGINEER: RP
APPROVED BY:

PROJECT PHASE:

SCALE: 1" :90'
SHEET NO:

THIS DRAWING IS THE PROPERTY OF FOREFRONT POWER, LLC. THIS INFROMATION IS CONFIDENTIAL AND IS TO BE USED ONLY IN CONNECTION WITH WORK DESCRIBED BY FOREFRONT POWER, LLC. NO PART IS TO BE DISCLOSED TO OTHERS WITHOUT WRITTEN PERMISSION FROM FOREFRONT POWER, LLC.

STAMP:

PROJECT NUMBER:

SHEET TITLE:

SHEET SIZE:

NO. REVISION DATE INIT.

NOT FOR

CONSTRUCTION
City of Newark
Civic Center
37101 Newark Blvd,
Newark, CA 94560
CA-22-0178
CL-1

CONCEPTUAL LAYOUT
TABLOID 11" X 17"

PRELIMINARY DESIGN
NOTE: DESKTOP ANALYSIS OF TOPOGRAPHY

AND TREE HEIGHTS WERE ASSUMED FOR THE
DESIGNS. FINAL SYSTEM SIZE AND LOCATION

WILL VARY BASED ON FURTHER DILIGENCE
100 MONTGOMERY STREET #1400
SAN FRANCISCO, CA 94104
(855) 204-5083 www.ForeFrontPower.com
2017 FOREFRONT POWER, LLC AND ITS AFFILIATES ALL RIGHTS RESERVED

TILT ANGLE

AZIMUTH ANGLE

MODULE TYPE

LAT/LONG

SNOWLOAD

TREES/LIGHT POLES

INVERTERS
7°
120°
Longi LR4-72HPH-455M

37.534771, -122.029143
0 PSF
~20/12
(06)CPS SCA50KTL-DO/US-480
QUANTITY 1008

SYSTEM DESCRIPTION

SYSTEM SIZE (DC)

SYSTEM SIZE (AC)
458.64 kW
400.00 kW
WINDSPEED 97 MPH

SEISMIC CATEGORYD
ADA

SPACES/COVERED
10/0
SYSTEM SIZE (AC-CEC) 423.26 kW-CEC
MINIMUM CLEARANCE IS 10'0" UNLESS

OTHERWISE MENTIONED
CANOPY BLOCKS:
2 x 21 STRING BLOCKS
1 x 14 STRING BLOCK
POCC: 480V,800A
Meter# 1010417782
AC Run: ~780'

TREES ASSUMED TO BE REMOVED

TREES USED IN SHADE SCENE
Packet Page 93
7 • California Public Sector Leader
• SPURR REAP Winner
• Renewable Project Financing Leader
• ‘A’ Rated Parent Company: Mitsui & Co
• Regional Expertise
ForeFront Power
Packet Page 94
8 • Newark USD • Oakland USD • Sonoma County • City of Vacaville • Ventura County • City of Bakersfield
• Los Angeles
County
• Santa Clara
County
• Yolo County • City of Rocklin • City of Fresno • City of Ventura • City of San Diego • City of Petaluma Trusted Provider
Packet Page 95
9 City of Newark Renewable Strategy
On-Site Solar Solutions
• +1.3MW of Solar Across 2 Facilities
No Out-of-Pocket Cost
PPA: 0% Rate Escalation
Save
• Year 1 Energy Savings
• +$7.2 Million over 20 years
Solar Renewable Energy Credits
Industry Leading Performance
Guarantee
Operations & Maintenance
Included
NEM 2.0 Legacy Status
Assumes 2.7% Annual Utility Energy Escalator, 5% Annual Demand Charge Escalator $17,396,161
$3,253,755
$6,860,077
$7,282,328
$0
$2,000,000
$4,000,000
$6,000,000
$8,000,000
$10,000,000
$12,000,000
$14,000,000
$16,000,000
$18,000,000
$20,000,000
Before After Solar
Cumulative 20 Year
Solar Savings
Utility Bill Solar PPA Savings
Packet Page 96
10 Tree Seedlings – 10 Years Incandescent lamps
switched to LEDs
Miles driven by
average passenger car
23,740 54,416 3,680,567
Tons of waste recycled Acres of Forest in 1 Year Homes Energy Use 497 1,712 279
GHG Equivalences
2,025,916 kWh of solar electricity in Year 1
Packet Page 97
11 Estimated Schedule & Next Steps
Contract
Execution
Q1 2024
Engineering,
Permitting, &
Procurement
Q4 2024
Construction
& PGE
Upgrades
Q2 2025
Commercial
Operation
Q1 2026
Once Solar Agreements executed, ForeFront Power
begins its project development process, including…
• Stakeholder Management
• Project Management & Logistics Coordination
• Maintenance & Support
Packet Page 98
Conclusions
Statewide RFP
+75 Agencies
On-Site Solar

1.3MW PV
+$7.2M Lifetime
Energy Savings
Turnkey Solutions
2025 Construction
Secure NEM 2.0
Legacy Rates
Staff Reviewed and
Recommended
Packet Page 99
Packet Page 100
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE AN ENERGY SERVICES AGREEMENT WITH FTP

BTM SOLAR, LLC (FOREFRONT POWER) FOR THE DESIGN,

FINANCING, CONSTRUCTION, INSTALLATION,

OPERATION AND MAINTENANCE OF CARPORT MOUNTED

SOLAR PHOTVOLTAIC SYSTEMS AT GEORGE
M. SILLIMAN COMMUNITY ACTIVITY CENTER AND

NEWARK CIVIC CENTER PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 4217.10 ET SEQ.

WHEREAS, it is the policy of the State of California and the intent of the State Legislature to promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources; and
WHEREAS, California Government Code Section 4217.10 et seq. authorizes a public agency to utilize any procurement process to contract for energy services if its governing body determines, at a regularly scheduled public hearing, public notice of which is given at least two weeks in advance, that the contract is in the best interest of the agency and that anticipated cost to the agency for the energy services project will be less than the anticipated marginal cost to the agency of electrical energy that would have been consumed by the agency in the absence of the energy services contract; and
WHEREAS, the City desires to reduce its climate footprint and reduce its energy usage and produce cost savings; and
WHEREAS, the School Project for Utility Rate Reduction (“SPURR”), a California jointpowers authority, operates a variety of cooperative procurement programs; and WHEREAS, the Renewable Energy Aggregated Procurement (“REAP”) Program is a solar procurement program operated by SPURR; and
WHERAS, FTP BTM Solar, LLC (“ForeFront Power”) was the selected vendor for School Project for Utility Rate Reduction’s (“SPURR”) Renewable Energy Aggregated Procurement (“REAP”) Program request for proposals (“RFP”) process; and WHEREAS, the competitively bid RFP allows Eligible Entities to “piggyback” on the prenegotiated pricing and terms; and WHEREAS, the City of Newark is an Eligible Entity; and
WHEREAS, ForeFront Power will design, finance, construct, install, operate, and maintain the carport mounted solar photovoltaic systems at George M. Silliman Community Activity Center and Newark Civic Center; and
WHEREAS, the terms of the agreement will include a fixed cost for the purchase of energy generated by the system for the life of the agreement; and WHEREAS, there will be no up-front costs to the City for the projects; and Packet Page 101
WHEREAS, the City conducted a noticed public hearing on February 22, 2024 pursuant to California Government Code Section 4217.12 to consider entering into energy services contracts with ForeFront Power with public notice of this hearing being provided at least two weeks prior to the date of the hearing; and
WHEREAS, the City Council considered a staff report dated February 22, 2024 and all information and evidence presented at the public hearing; and WHEREAS, the proposed agreement is exempt from California Environmental Quality Act (CEQA), pursuant to 21080.35 of the CEQA Guidelines.

NOW THEREFORE, BE IT RESOLVED that the City Council hereby finds, pursuant to California Government Code 4217.12, that the terms of the energy services contract are in the best interest of the City and that anticipated cost to the agency for the energy services project will be less than the anticipated marginal cost to the agency of electrical energy that would have been consumed by the agency in the absence of the energy services contract.

BE IT FURTHER RESOLVED that the City Council herby authorizes the City Manager to execute the Energy Services Agreement with ForeFront Power in a form approved by the City Attorney.

Packet Page 102

SPURR RENEWABLE ENERGY AGGREGATED PROCUREMENT (REAP) PROGRAM

MASTER CONTRACT
This SPURR REAP Master Contract (this “RMC”), is made effective as of October 26, 2017 (the “Effective Date”), by and between the School Project for Utility Rate Reduction, a California joint powers authority (“SPURR”) and ForeFront Power, LLC, a Delaware Limited Liability Company (“Vendor”).

BACKGROUND
A. SPURR is a “Joint Powers Authority” formed by California public school districts, county offices of education, and community college districts pursuant to the California Joint Exercise of Powers Act. SPURR, with over 240 member organizations, aggregates purchasing power and expertise for thousands of public agency facilities across California. SPURR programs include natural gas, electricity, LED lighting, utilities data management and conservation, telecommunications and networking, solar energy and energy storage, and demand response.

B. Pursuant to SPURR’s Joint Powers Agreement and to SPURR Board of Directors Resolution No. 14-01, SPURR is duly authorized to create and operate one or more aggregated solar procurement programs, herein referred to collectively as the Renewable Energy Aggregated Procurement Program (the “REAP Program”).

C. SPURR’s REAP Program is an innovative aggregated solar procurement program that leverages the collective purchasing power of SPURR’s large membership to secure transparent, pre-negotiated solar project pricing and terms to be made available to SPURR members and other Eligible Entities. “Eligible Entities” mean:
• California public school districts, county offices of education, and community college districts, whether they are members of SPURR or not.
• Other public agencies or non-profit educational entities in California whose procurement rules (whether internal rules or statutory requirements), allow them to purchase goods or services through a procurement vehicle such as SPURR.

D. On July 19, 2017, SPURR issued a REAP Program Request for Proposals (the “RFP”), seeking prospective vendor terms and conditions for solar and energy storage projects (“Projects”). The RFP specified that the pricing and terms of any award made pursuant to the RFP would be made available to Eligible Entities.

E. The REAP Program and RFP is intended to benefit Eligible Entities by providing:
• A streamlined, transparent, and competitive procurement process for Projects. • The best available Project pricing, obtained by taking advantage of SPURR’s purchasing power and experience in competitive energy procurement. • Minimized administrative strain associated with Project procurement, including reduced time and expense dedicated to the procurement process.
• Competitively procured, easily understood terms and conditions of service. • Access to firm Project pricing and terms, so that estimated Project returns on investment and other benefits and risks can be quickly and accurately assessed.

F. Fresno Unified School District (“Fresno USD”), recognizing the benefits of participating in SPURR’s REAP Program, acted as a cooperating agency in the RFP process. Fresno USD worked with SPURR to develop the RFP scope of work, assisted with vendor site walks, Packet Page 103

participated in the scoring of proposals and the selection of Vendor, and signed a “Letter of Intent to Participate as Cooperating Agency” signifying their intent to utilize Vendor if they proceed with Projects in 2017 or 2018.

G. Seven Eligible Entities provided commitments of support for the REAP Program RFP (“Letters of Support”), including Atascadero USD, Contra Costa Community College District, FranklinMcKinley School District, Paramount USD, San Francisco USD, San Mateo-Foster City School District, and State Center Community College District.

H. SPURR invited qualified vendors to submit qualifications, pricing, terms, and designs for illustrative sample Projects and for eight Fresno USD Projects. SPURR advertised the RFP by publication and by distributing the RFP by email to more than seventy (70) prospective solar vendors, energy storage vendors, consultants, and suppliers.

I. For each Project included in the RFP, SPURR provided a detailed list of Project includes, excludes, specifications, and assumptions. In response to questions submitted by interested vendors, SPURR issued one or more Addenda to the RFP.

J. SPURR received eight (8) responses to the RFP. SPURR evaluated all responses which complied with the terms of the RFP, using best value criteria including but not limited to an evaluation of the quality of the submitted proposals, proposed pricing, system value, system design and features, relevant experience with similar projects, team member qualifications, financial viability, vendor’s ability to provide quality service to SPURR’s large membership, and feedback from references.

K. SPURR used the following system in scoring RFP proposals:
• Company Profile and Financial Strength: 15%
• Company Background, Experience, and References: 20%
• Project Design and Project Approach: 20%
• Pricing and Proposed Terms: 45%
• TOTAL: 100%
L. SPURR selected Vendor for an award under the RFP. Additional information regarding Vendor is set forth in Appendix A to this RMC. The pricing and terms proposed by Vendor, as described in this RMC, will represent a transparent offer that Eligible Entities can adopt to meet their unique Project needs.

M. The parties are entering into this RMC to evidence the terms and conditions of the award to Vendor.

AGREEMENT
Now, therefore, for good and valuable consideration, the parties agree as follows.

1. GRANT AND ACCEPTANCE OF AWARD
SPURR awards this RMC to Vendor under the RFP at the prices and terms (the “Vendor Offer”) listed in Appendix B. Vendor accepts such award, confirms Vendor’s acceptance of all terms and conditions of the RFP, and confirms its obligations to honor the representations or commitments made by Vendor in its response to the RFP (“Vendor’s RFP Response”). The terms and conditions of the RFP, and the representations and commitments of Vendor’s RFP Response are hereby incorporated by reference into this RMC.

Packet Page 104

The Vendor Offer will be available for acceptance by Eligible Entities through December 31, 2019 (the “Vendor Offer Deadline”); provided, that SPURR and Vendor may mutually agree to extend the Vendor Offer Deadline for an additional period of up to two years.

The pricing and terms described in Vendor Offer are considered firm and may be adjusted only to the extent that Vendor can satisfactorily demonstrate to an Eligible Entity and to SPURR that a prospective Project differs significantly from the detailed list of Project inclusions, exclusions, assumptions, and specifications detailed in the RFP and listed in Appendix C.

2. PROGRAM PARTICIPATION
A “Participant” in the REAP Program is any Eligible Entity that uses or references the REAP Program as the basis for their selection of Vendor to implement one or more Projects.

A “REAP Project Agreement” means any power purchase agreement (“PPA”), design/build contract, lease, energy storage agreement, performance guarantee, or similar agreement, or any combination of such agreements, related to a Participant’s Project to be implemented by Vendor, including any amendment, revision, extension, or renewal of such agreements.

REAP Project Agreements may relate to Projects located at sites controlled by the Participant, or located at other sites (as in an “over the fence” agreement or a “community solar” arrangement), so long as Participant selects Vendor to implement the Project on their behalf.

Eligible Entities may authorize Vendor to perform feasibility studies, conduct site inspections, and provide binding offers for prospective Projects. Eligible Entities are not obligated to procure Projects with Vendor and are not responsible for any costs incurred by Vendor for conducting its feasibility study, site inspections, offer preparation or any other activity prior to execution of a REAP Project Agreement.

When presenting a Project proposal to an Eligible Entity, Vendor must describe and support in writing any deviations from the pricing and terms memorialized in this RMC. At the request of an Eligible Entity, SPURR will review Vendor’s offer for reasonable conformity with this RMC and will report the results of such review to the Eligible Entity. SPURR’s review will not constitute a legal review or a feasibility study.

3. PROGRAM PROMOTION
Vendor will use commercially reasonable efforts to conduct marketing, educational, and sales efforts to promote the REAP Program and Vendor Offer secured through the RFP and under this RMC (“Vendor Marketing”). Vendor will provide regular updates, at least weekly, to SPURR regarding Vendor Marketing, including a list of prospective Participants with contact information.

Vendor shall provide a single point of contact with the authority and responsibility for the overall success of the SPURR REAP Program.

Vendor will take the lead in generating interest in the REAP Program, with SPURR in a supporting role, and will use the RMC as Vendor’s preferred form of contracting with Eligible Entities. Vendor’s sales force will be trained and engaged in the promotion of the REAP Program and the RMC for the duration of the contract term. Vendor will not encourage or induce an Eligible Entity to procure a Project outside of the REAP RFP Program.

SPURR will use commercially reasonable efforts to support Vendor Marketing. SPURR will promote the REAP Program through the creation of marketing materials, digital marketing campaigns, and active outreach to its constituents. SPURR will promptly provide electronic copies of REAP Program documentation to any Eligible Entity upon request.

Packet Page 105

SPURR will schedule periodic reviews to evaluate the Selected Vendor’s performance of the commitments outlined in this RFP. If Selected Vendor reports "No Sales" for three (3) consecutive quarters, the Selected Vendor may be put on probationary status for one (1) additional quarter. If "No Sales" are reported during the probationary period, the Vendor Awarded contract will be subject to immediate termination by SPURR.

Each party to this RMC represents to the other party that it will conform to the highest industry professional standards in all marketing and implementation activities related to this RMC and the REAP Program.

4. USE AND LIMITATIONS OF REAP PROGRAM
Each Eligible Entity will (a) determine for itself whether participation in the REAP Program and use of this RMC complies with their procurement rules, (b) determine for itself whether Vendor’s offer suits their needs for a Project, (c) authorize, pursuant to California Government Code sections 4217.10-4217.18 or such other law or regulation as they determine is appropriate, the execution and delivery to Vendor of a REAP Project Agreement and any other documentation necessary or appropriate to complete a Project.

Nothing in the RFP or this RMC may be construed as SPURR’s provision of legal, engineering, financial, or technical advice to Vendor, Eligible Entities, or Participants. Nothing in the RFP or this RMC may be construed as SPURR’s recommendation to Vendor, Eligible Entities, or Participants regarding a specific Project’s size, scope, delivery date, or suitability for the needs of an Eligible Entity or Participant.

SPURR will not provide warranties regarding Projects or performance by Vendor, will not represent Vendor in the resolution of disputes with Eligible Entities or Participants, and will not guarantee payment by Participants.

5. ADMINISTRATIVE FEES
Vendor acknowledges that they will benefit from the REAP Program by avoiding the time and expense required to go through competitive bidding processes with individual Eligible Entities, and by publicizing their status as the winner of a SPURR competitive procurement. These benefits will increase Vendor’s potential business opportunities and provide significant advantages in the marketplace. In consideration of these benefits, Vendor will pay administrative fees (“Administrative Fees”) to SPURR as described in the RFP and set forth in this RMC.

Vendor acknowledges and that Administrative Fees do not constitute additional fees over and above the pricing memorialized in this RMC. Vendor acknowledges that they are solely responsible for payment of Administrative Fees.

Administrative Fees will be due to SPURR (a) for each REAP Project Agreement signed between a Participant and Vendor, or any affiliate of Vendor, and, in addition (b) for each Notice to Proceed or other document authorizing commencement of construction (an “NTP”) under a REAP Project Agreement. For the avoidance of doubt, the Administrative Fee associated with issuance of NTP shall only be payable if NTP is actually issued for such Project. NTP means that Vendor has commenced construction on the Project. Within three (3) business days of construction commencement, Vendor will issue NTP documentation to SPURR verifying that construction has commenced and provide final Project size.

Packet Page 106

Administrative Fees will be calculated based on the following table:

Project size will be based on the Project capacity described in the executed REAP Project Agreement or NTP.

Payment of Administrative Fees will be due within twenty (20) days of invoice by SPURR. Past due Administrative Fees will be subject to late fees and costs of collection. Late fees shall accrue at the rate of one and one half percent (1.5%) per month on all past due Administrative Fee balances until payment is received by SPURR. In addition, SPURR shall be entitled to recover from Vendor reasonable costs of collection, including reasonable attorney’s fees, for any past due Administrative Fees or for late fees.

6. VENDOR OBLIGATION TO PROVIDE DOCUMENTATION
Documentation and notifications sent pursuant to this section shall be emailed to [email protected].

Vendor will notify SPURR by email within five (5) business days after Vendor learns that any Eligible Entity intends to become a Participant.

Not later than five (5) business days after an Eligible Entity executes a REAP Project Agreement, Vendor shall email SPURR an executed copy of the REAP Project Agreement, in pdf format.

Not later than five (5) business days after an NTP is issued for any Project, Vendor shall email SPURR a copy of the NTP, in pdf format. NTPs must include the issuance or construction commencement date, Project capacity size in W-DC or Watt-hour-DC, location, and Participant name.

Vendor will promptly provide SPURR with other documentation directly related to implementation of a REAP Project Agreement as may be reasonably requested by SPURR, including utility interconnection studies and applications, utility incentive program studies and applications, and Project implementation schedules.

7. INDEMNIFICATION
Vendor will indemnify, defend and hold harmless SPURR and any Participant contracting with Vendor under this RMC (“Indemnified Parties”) from any and all claims, demands, suits, proceedings, loss, cost and damages of every kind and description, including any attorney’s fees or litigation expenses, which might be brought against or incurred by Indemnified Parties on account of loss or damage to any property or for injuries to or death of any person, caused by, arising out of, or contributed to, in whole or in part, by reasons of any act, omission, professional error, fault, mistake, or negligence of Vendor, its employees, agents, representatives, or subcontractors in connection with or incident to this RMC, or arising out of worker’s compensation claims, unemployment compensation claims, or unemployment disability compensation claims of employees of Vendor, or its subcontractors or claims under similar laws or obligations. Vendor’s indemnification obligation will not extend to liability caused by the negligence of Indemnified Parties.

Execution of REAP Project
Agreement by Participant Issuance of NTP
Type of Project: Solar PV $0.0425 / Watt-DC $0.0425 / Watt-DC Type of Project: Energy Storage $0.02125 / Watt-hour-DC $0.02125 / Watt-hour-DC Packet Page 107

8. ATTORNEYS’ FEES
If any action at law or in equity is brought to enforce or interpret the provisions of this RMC, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which the party may be entitled.

9. SEVERABILITY
If any provision of this RMC is held invalid or unenforceable by a court of competent jurisdiction, no other provision of this RMC will be affected by such holding, and all of the remaining provisions of this RMC will continue in full force and effect.

10. FORCE MAJEURE EVENTS
A “Force Majeure Event” means any act or event that prevents the affected party to this RMC (the “Affected Party”) from timely performing its obligations under this RMC, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the Affected Party and the Affected Party has been unable to overcome such act or event with the exercise of due diligence (including the expenditure of reasonable sums); provided, that a Force Majeure Event shall not be based on the economic hardship of an Affected Party, or upon the termination or expiration of any contractual rights in favor of the Affected Party.

Except as otherwise provided in this RMC, the Affected Party shall not be considered in breach of the RMC or liable for its delay or failure to comply with the RMC for a period not to exceed ninety (90) days, and only to the extent that such delay or failure is directly attributable to a Force Majeure Event; provided, that the Affected Party shall, as soon as practicable after becoming aware of the circumstances constituting Force Majeure (i) notify the other party in writing of the existence of the Force Majeure Event, (ii) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other party in writing of the cessation or termination of said Force Majeure Event and (iv) resume performance of its obligations hereunder as soon as practicable thereafter.

Notwithstanding any other provision of this RMC, a Force Majeure Event shall not excuse any delay or failure of the Affected Party to timely pay the other party amounts due under this RMC.

11. ASSIGNMENT
Vendor shall not assign all or part of its interest in this RMC without SPURR’s prior written consent, which consent shall not be unreasonably withheld. Any assignment by Vendor of an interest in this RMC shall not release Vendor of its obligations under this RMC, except with SPURR’s express written consent, which SPURR may choose to provide in its sole discretion.

12. DEFAULTS
A “Vendor Default” means any of the following events:
(a) Vendor defaults on any obligation under this RMC and such default is not cured within thirty (30) days after notice of the default from SPURR to Vendor, except to the extent that delay in performance of its obligations is excused by a Force Majeure Event, (b) any REAP Project Agreement default by Vendor, or by any affiliate of Vendor obligated under a REAP Project Agreement, which is not cured within the time for cure provided in that REAP Project Agreement,
(c) the commencement by Vendor, or by any affiliate of Vendor obligated under a REAP Project Agreement, of a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws (the “Bankruptcy Code”), Packet Page 108

(d) the commencement of an involuntary case against Vendor, or against any affiliate of Vendor obligated under a REAP Project Agreement, under the Bankruptcy Code if either (i) the case is not dismissed within sixty (60) days after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case, (e) a court of competent jurisdiction appoints, or the Vendor, or any affiliate of Vendor obligated under a REAP Project Agreement, makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in the Bankruptcy Code) for the Vendor, or for any affiliate of Vendor obligated under a REAP Project Agreement, or (f) Vendor, or any affiliate of Vendor obligated under a REAP Project Agreement, fails generally to pay their debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

In the event of a Vendor Default, SPURR may pursue any and all available remedies against Vendor, including immediate revocation of the award to Vendor under the RFP and termination of this RMC.

If SPURR defaults on any obligation under this RMC (a “SPURR Default”) and such default is not cured within thirty (30) days after notice of the default from Vendor to SPURR, except to the extent that delay in performance of its obligations is excused by a Force Majeure Event, then Vendor may pursue any and all available remedies against SPURR, including termination of this RMC.

13. TERM AND TERMINATION
This RMC will terminate on the Vendor Offer Deadline, including any extension of the Vendor Offer Deadline, unless earlier terminated due to Vendor Default or a SPURR Default. Termination of this RMC will not excuse timely performance by any party of obligations to the other party incurred prior to such termination. The following sections of this RMC will survive any termination of this RMC:

Vendor Obligation to Provide Documentation, Administrative Fees, Indemnification, Attorneys’ Fees, Governing Law, Relationship Of The Parties, and Notices.

14. GOVERNING LAW
This RMC shall be governed by California law, without regard to principles of conflicts of law.

15. RELATIONSHIP OF THE PARTIES
The relationship between the parties to this RMC shall not be that of partners, agents, or joint ventures for one another. The parties to this RMC, in performing any of their obligations under this RMC, shall be independent parties and shall discharge their obligations at their own risk.

16. NOTICES
All notices under this RMC must be in writing and will be effective (a) immediately upon delivery in person or by messenger, (b) two (2) business days after prepaid deposit with a commercial courier or delivery service for next day delivery, (c) upon receipt by facsimile as established by evidence of successful transmission, or (d) five (5) business days after deposit with the US Postal Service, certified mail, return receipt requested, postage prepaid.

All notices must be properly addressed to the addresses set forth on the signature page to this RMC, or at such other addresses as either party may subsequently designate by notice.

17. COUNTERPARTS AND DELIVERY
This RMC may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. This RMC may be duly executed and delivered by a party’s Packet Page 109
Packet Page 110

APPENDIX A – VENDOR INFORMATION
Vendor: ForeFront Power LLC
SPURR Board Authorization: Resolution No. 14-01
RFP Issued: 07/19/2017
RFP Title: Renewable Energy Aggregated Procurement (REAP) Program Request for Proposals (RFP)
Sales Contact #1 Sales Contact #2
Name: Brian Taylor
Title: Sales Director
Address: 100 Montgomery Street
City, St, Zip: San Francisco, CA 94104
Phone: 650-743-7880
Alt Phone:

Email: [email protected]
Name: Sam Youneszadeh
Title: Chief Development Officer
Address: 100 Montgomery Street
City, St, Zip: San Francisco, CA 94104
Phone: 310-922-8424
Alt Phone:

Email: [email protected]
Technical Contact Other Contact (Optional)
Name: Nate Roberts
Title: Senior Project Manager
Address: 100 Montgomery Street
City, St, Zip: San Francisco, CA 94104
Phone: 916.402.7277
Alt Phone:

Email: [email protected]
Name:

Title:

Address:

City, St, Zip:

Phone:

Alt Phone:

Email:

Packet Page 111

APPENDIX B – VENDOR OFFER
Vendor: ForeFront Power, LLC
SPURR Board Authorization: Resolution No. 14-01
RFP Issued: 07/19/2017
RFP Title: Renewable Energy Aggregated Procurement (REAP) Program Request for Proposals (RFP)
Background: Vendor Offer is based on a list of Project includes, excludes, assumptions, specifications, and sample site maps provided to Vendor in the RFP and as provided in Appendix C. Vendor was required to submit system designs, pricing, and terms for Projects at two sample elementary schools, two sample middle schools, a sample RES-BCT ground-mount project, two sample municipal sites, seven Fresno USD high schools, and the Fresno USD District Service Center.

Vendor Offer includes purchase pricing and Power Purchase Agreement (PPA) pricing for solar and solar plus storage projects for:
▪ Each unique site.
▪ Portfolio #1: Small sample sites.
▪ Portfolio #2: All sites (excluding municipal sites and RES-BCT project). ▪ Portfolio #3: All Fresno USD sites SPURR recognizes that final Project pricing for each Participant may vary slightly based on actual scope of work, unique site conditions, specific location, market conditions, availability of incentive funding, required utility upgrades, or other factors that may impact final contract pricing.

Project price adjustments above the pricing memorialized in this RMC must be justified by Vendor on a case by case basis by documenting price adjustments and rationale to SPURR for SPURR’s confirmation and approval. The format of such document will be approved by SPURR.

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Price for Each Site as a
Stand-Alone Project
Sample
Elementary
School 1
Sample
Elementary
School 2
Sample Middle
School 1
Sample Middle
School 2
1MW Ground
Mount Site
(RES-BCT)
Sample City Hall
Sample
Wastewater
Treatment Plant
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC)
166.14 191.7 351.45 370.62 1101.6 792.36 1175.04 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC)
168 180 300 336 900 702 960 936 1098 768 1272 840 540 1698 588 PV First Year Production
(kWh/year) 260,840 305,570 565,835 614,117 2,243,959 1,303,477 2,373,581 1,767,091 1,896,718 1,360,687 2,116,464 1,390,208 959,746 2,954,877 1,077,156 PV PPA Rate ($/kWh) $0.136 $0.134 $0.126 $0.124 $0.070 $0.102 $0.070 $0.1095 $0.1175 $0.1185 $0.1200 $0.1230 $0.1155 $0.1105 $0.1085 PV Cash Purchase Price $621,553 $685,250 $1,053,824 $1,152,804 $2,511,600 $2,135,840 $2,718,021 $2,910,463 $3,456,760 $2,494,588 $3,923,675 $2,642,418 $1,694,629 $5,070,514 $1,768,604 Energy Storage System Size
(kW-AC) 0 0 210 210 N/A 315 420 630 420 525 315 420 525 315 210 Energy Storage System Size
(kWh-DC) 0 0 340 340 N/A 510 680 1020 680 850 510 680 850 510 340 Portfolio #1: Small
Portfolio
Sample
Elementary
School 1
Sample
Elementary
School 2
Sample Middle
School 1
PV System Size (kW-DC)
166.14 191.7 351.45
PV System Size (kW-AC)
168 180 300
PV First Year Production
(kWh/year) 260,840 305,570 565,835
PV PPA Rate ($/kWh)

0.136 0.134 0.126
PV Cash Purchase Price $621,553 $685,250 $1,053,824
Energy Storage System Size
(kW-AC) 0 0 210
Energy Storage System Size
(kWh-DC) 0 0 340
Portfolio #2: Large
Portfolio
Sample
Elementary
School 1
Sample
Elementary
School 2
Sample Middle
School 1
Sample Middle
School 2
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC)
166.14 191.7 351.45 370.62 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC)
168 180 300 336 936 1098 768 1272 840 540 1698 588
PV First Year Production
(kWh/year) 260,840 305,570 565,835 614,117 1,767,091 1,896,718 1,360,687 2,116,464 1,390,208 959,746 2,954,877 1,077,156 PV PPA Rate ($/kWh) $0.136 $0.134 $0.126 $0.124 $0.1095 $0.1175 $0.1185 $0.1200 $0.1230 $0.1155 $0.1105 $0.1085 PV Cash Purchase Price $621,553 $685,250 $1,053,824 $1,152,804 $2,910,463 $3,456,760 $2,494,588 $3,923,675 $2,642,418 $1,694,629 $5,070,514 $1,768,604 Energy Storage System Size
(kW-AC) 0 0 210 210 630 420 525 315 420 525 315 210
Energy Storage System Size
(kWh-DC) 0 0 340 340 1020 680 850 510 680 850 510 340
Packet Page 113

Portfolio #3: Fresno
USD
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC)
1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC)
936 1098 768 1272 840 540 1698 588
PV First Year Production
(kWh/year) 1,767,091 1,896,718 1,360,687 2,116,464 1,390,208 959,746 2,954,877 1,077,156 PV PPA Rate ($/kWh) $0.1163 $0.1257 $0.1275 $0.1272 $0.1315 $0.1255 $0.1179 $0.1162 PV Cash Purchase Price $3,062,449 $3,646,359 $2,669,063 $4,110,981 $2,791,265 $1,830,674 $5,318,794 $1,897,114 Energy Storage System Size
(kW-AC) 630 420 525 315 420 525 315 210
Energy Storage System Size
(kWh-DC) 1020 680 850 510 680 850 510 340
FUSD Site Cost Adder
($)
15' Min Clearance on
Canopy $53,636 $47,749 $55,825 $79,069 $46,980 $38,280 $84,680 $37,193 4 EV Charging Stations per
Site $24,650 $24,650 $24,650 $24,650 $24,650 $24,650 $24,650 $24,650 Inspector of Record Fees
(Assume $35,000/site) $35,000 $35,000 $35,000 $35,000 $35,000 $35,000 $35,000 $35,000 Tree Removal $8,700 $52,200 $29,000 $18,588 $12,218 $8,116 $73,950 $1,668 ADA Upgrades $30,000 $30,000 $30,000 $30,000 $30,000 $30,000 $30,000 $30,000 FUSD Site PPA Adder
($/kWh)
15' Min Clearance on
Canopy $0.0024 $0.0021 $0.0029 $0.0031 $0.0027 $0.0028 $0.0025 $0.0022 4 EV Charging Stations per
Site $0.0011 $0.0011 $0.0013 $0.0010 $0.0014 $0.0018 $0.0007 $0.0015 Inspector of Record Fees
(Assume $35,000/site) $0.0016 $0.0015 $0.0018 $0.0014 $0.0020 $0.0026 $0.0010 $0.0021 Tree Removal $0.0004 $0.0023 $0.0015 $0.0007 $0.0007 $0.0006 $0.0022 $0.0001 ADA Upgrades $0.0013 $0.0013 $0.0015 $0.0012 $0.0017 $0.0022 $0.0009 $0.0018 Packet Page 114

Portfolio #3: Fresno USD -
Portfolio Negative Escalator
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC) 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC) 936 1098 768 1272 840 540 1698 588 PV First Year Production (kWh/year) 1767090.6 1896718.14 1360686.6 2116463.85 1390208.4 959746.05 2954876.58 1077155.91 PV PPA Rate ($/kWh) $0.1262 $0.1364 $0.1383 $0.1380 $0.1427 $0.1361 $0.1280 $0.1260 PPA Escalator (%) -1% -1% -1% -1% -1% -1% -1% -1%
Portfolio #3: Fresno USD -
Value of Solar Optimized
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC) 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC) 936 1098 768 1272 840 540 1698 588 PV First Year Production (kWh/year) 1767090.6 1896718.14 1360686.6 2116463.85 1390208.4 959746.05 2954876.58 1077155.91 PV PPA Rate ($/kWh)
$0.1260 $0.1300 $0.1320 $0.1010 $0.1260 $0.1350 $0.1170 $0.1400 PPA Escalator (%) 0% 0% 0% 0% 0% 0% 0% 0%
Portfolio #3: Fresno USD -
Value of Solar Optimized -
Negative Escalator
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC) 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC) 936 1098 768 1272 840 540 1698 588 PV First Year Production (kWh/year) 1767090.6 1896718.14 1360686.6 2116463.85 1390208.4 959746.05 2954876.58 1077155.91 PV PPA Rate ($/kWh)
$0.1367 $0.1411 $0.1432 $0.1096 $0.1367 $0.1465 $0.1269 $0.1519 PPA Escalator (%)
-1% -1% -1% -1% -1% -1% -1% -1%
Price for Each Site as a StandAlone Project
Negative Escalator
Sample
Elementary
School 1
Sample
Elementary
School 2
Sample Middle
School 1
Sample Middle
School 2
1MW Ground
Mount Site
(RES-BCT)
Sample City Hall
Sample
Wastewater
Treatment Plant
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC) 166.14 191.7 351.45 370.62 1101.6 792.36 1175.04 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC) 168 180 300 336 900 702 960 936 1098 768 1272 840 540 1698 588 PV First Year Production (kWh/year) 260,840 305,570 565,835 614,117 2,243,959 1,303,477 2,373,581 1,767,091 1,896,718 1,360,687 2,116,464 1,390,208 959,746 2,954,877 1,077,156 PV PPA Rate ($/kWh)
$0.1465 $0.1465 $0.1356 $0.1356 $0.0760 $0.1106 $0.0760 $0.1188 $0.1275 $0.1286 $0.1302 $0.1335 $0.1253 $0.1199 $0.1177 PPA Escalator (%)
-1% -1% -1% -1% -1% -1% -1% -1% -1% -1% -1% -1% -1% -1% -1% Packet Page 115

Price for Each Site as a
Stand-Alone Project
Sample
Elementary
School 1
Sample
Elementary
School 2
Sample Middle
School 1
Sample Middle
School 2
1MW Ground
Mount Site
(RES-BCT)
Sample City Hall
Sample
Wastewater
Treatment Plant
Bullard High
School
Edison High
School
Fresno High
School
Hoover High
School
McLane High
School
Roosevelt High
School
Sunnyside High
School
FUSD Service
Center
PV System Size (kW-DC) 166.14 191.7 351.45 370.62 1101.6 792.36 1175.04 1022.4 1169.37 830.7 1361.07 894.6 594.27 1808.37 645.39 PV System Size (kW-AC) 168 180 300 336 900 702 960 936 1098 768 1272 840 540 1698 588 PV First Year Production
(kWh/year) 260,840 305,570 565,835 614,117 2,243,959 1,303,477 2,373,581 1,767,091 1,896,718 1,360,687 2,116,464 1,390,208 959,746 2,954,877 1,077,156 PV PPA Rate ($/kWh) $0.1360 $0.1340 $0.1260 $0.1240 $0.0700 $0.1020 $0.0700 $0.1095 $0.1175 $0.1185 $0.1200 $0.1230 $0.1155 $0.1105 $0.1085 PV Cash Purchase Price $621,553 $685,250 $1,053,824 $1,152,804 $2,511,600 $2,135,840 $2,718,021 $2,910,463 $3,456,760 $2,494,588 $3,923,675 $2,642,418 $1,694,629 $5,070,514 $1,768,604 Energy Storage System Size
(kW-AC) 0 0 210 210 N/A 315 420 630 420 525 315 420 525 315 210 Energy Storage System Size
(kWh-DC) 0 0 340 340 N/A 510 680 1020 680 850 510 680 850 510 340 Annual Storage Services
Fee 0 0 $8,082 $9,001 N/A $22,467 $23,314 $41,218 $34,645 $33,794 $15,492 $26,700 $31,447 $23,051 $10,522 Storage Fee/KW/Month 0 0 $3.207 $3.572 N/A $5.944 $4.626 $5.452 $6.874 $5.364 $4.099 $5.298 $4.992 $6.098 $4.175 Storage Cash Purchase
Price 0 0 $263,677 $263,677 $0 $359,108 $454,962 $641,224 $454,962 $550,048 $359,108 $454,962 $550,048 $359,108 $263,677 Storage Performance
Guarantee N/A N/A 100% 100% N/A 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% Demand Reduction
Guarantee Rate ($/kW) N/A N/A 9.99 9.99 N/A 19.67 15.86 19.67 19.67 16.96 15.86 15.86 19.67 15.86 9.99 Minimum Guaranteed
Demand Reduction
(kW/yr) N/A N/A 809 901 N/A 1,142 1,470 2,181 1,761 1,993 977 1,684 1,599 1,454 1,053 Packet Page 116

Appendix C- Includes, Excludes, Assumptions, and Specifications for Vendor Offer Vendor Offer is based on a list of Project inclusions, exclusions, assumptions, specifications, utility data, and site maps provided to Vendor in the RFP. Vendor was required to submit system designs, pricing, and terms for Projects at two sample elementary schools, two sample middle schools, a sample RES-BCT ground-mount project, two sample municipal sites, seven Fresno USD high schools, and the Fresno USD District Service Center Vendor Offer includes purchase pricing and Power Purchase Agreement (PPA) pricing for solar projects and solar plus storage projects (where applicable) for:
▪ Each unique site.
▪ Portfolio #1: Small sample sites.
▪ Portfolio #2: All sites (excluding municipal sites and RES-BCT project). ▪ Portfolio #3: All Fresno USD sites
Below is the detailed list of includes, excludes, specifications, and assumptions underlying Vendor Offer.

A. Includes for Solar PV Power Purchase Agreement (PPA) AND Purchase Project Scenarios:

Vendor Offer includes at minimum the following components and services:

1. Project engineering
a. Civil/Structural engineering
b. Electrical engineering
c. Mechanical Engineering
d. Soils reports/engineering

2. Project permitting
a. DSA or otherwise applicable AHJ permitting fees
b. Utility interconnection process (upgrade costs on the Utility side of the meter should not be included in the Proposal cost)
• All appropriate safety signage, as required by the Utility • Adequately sized and visible disconnect switches at or near each point of common coupling

3. Safety plan

4. Materials
a. Modules
b. Inverters
c. Racking/structures
• Lighting for shade structures/carports
d. Balance of System (BOS)
• Disconnects/Breakers/Fuses
• Conduits and conductors
• Pull boxes and ground vaults
• Enclosures or cabinets to house non-NEMA rated components e. All other materials required to construct the system to comply with national, state, and local building requirements as well as industry standards.

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5. Equipment/material procurement
a. Delivery, storage, and staging logistics
b. Delivery and handling costs
c. Procurement bond or insurance (at the Vendor’s discretion) d. Site security

6. Facility construction
a. Civil (trenching and backfill, equipment pad preparation, etc.) b. Structural/mechanical
c. Electrical

7. Interconnection process
a. Generation Interconnection Application
b. Initial and supplemental review process management
c. System coordination studies (if deemed necessary)
d. System protection engineering (Rule 21, UL 1741, etc.) e. Pre-parallel inspection
f. Permission to operate (PTO)

8. Facility testing

9. Facility commissioning
a. Strings voltage check
b. Inverters
• System check
• Programming and configuration (i.e. ramp rate, power factor, protection, etc.) c. Racking visual inspection and torque check
d. Monitoring, configuration, startup, and training of district personnel e. Switchgear (if required)

10. Facility design documentation package and as-built drawings a. PV Module – quantity, make, model, and spec sheet
b. QA/QC documentation
c. As built documentation (strings labeled in field and recorded on drawings) d. Inverters – quantity, make, model, and spec sheet
e. Racking/shade structure
• Manufacturer
• Design drawings
• Structure finish
f. Combiner boxes (if any) – quantity, make, model, and spec sheet g. Switchgear/Subpanel (if upgrades or additions are required) – manufacturer, ratings, general spec.
h. AC and DC cable specifications
i. As-built DC single line diagram with conductor specification j. As-built AC single line diagram with conductor specification k. As-built array configuration plan
l. Balance of system (BOS) layout detail and identification • Combiner boxes
• Inverters
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m. Inverter locations and mounting specifications
n. Trenching specification (depth, bedding material spec, conduit spec., etc.) • As built location for ongoing O&M

11. Monitoring equipment/system
a. Inverter level performance/production monitoring
b. Configurable alarms to allow for notification of underperformance or outages c. Security measures (appropriate fencing, cameras, signage, etc.)

12. Operations and maintenance (10 years for purchased systems; 20 years for PPAs) a. Inverter maintenance
b. Module cleaning/testing
c. Checking of electrical connections/torque
d. Racking/structure torque check
e. Inverter extended warranty or replacement plan
f. Remote monitoring
g. Shading mitigation

13. Production performance guarantee
a. 90% system production guarantee or better.

B. Assumptions for Solar PV PPA AND Purchase Project Scenarios:
a. Projects will be interconnected as net energy metering (NEM or NEM-A) or RES-BCT projects.
b. Assume no incentives from utility.
c. SPURR’s fees, as described above, must be included in all proposed pricing. d. Prevailing wage rates will apply.
e. California DSA pre-check design.
f. All inverters must be UL 1741 certified.
g. Unless otherwise stated, all systems will interconnect into a 277/480VAC 3-Phase service.
h. Campus main meters are adequately sized and have available space for connection of PV generation.
i. For shade structures, concrete support extending up the structure post a minimum of 24”.
j. All non-trenched wiring will be made in accessible crawlspaces, attics, or mounted in secure weather tight conduit on racking structures.
k. All unpainted metal shall be resistant to corrosion for a minimum of 25 years. l. Painted portions of structures will be primed with rust inhibitive primer and then painted with 2 coats of paint or powder coated.
m. Canopies shall have a minimum clear height of 10 foot at the lowest point of any structure.
n. Each canopy system and associated components must be designed and selected to withstand the environmental conditions of the site (e.g., temperatures, winds, rain, flooding, etc.) to which they will be exposed. The design life shall be a minimum of 25-years.

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o. Canopies placed in parking lots shall be clearly labeled with max clearance for vehicles at the low points. Label should be easily visible from a vehicle p. Canopies must include LED lighting that conform to current lighting standards and codes.
q. Existing light post bases and bollards will be removed if not being used by Selected Vendor. Lighting will reuse existing circuits where available. r. Grounds and landscaping that may have been impacted due to construction will be brought back to original pre-construction conditions.
s. Selected Vendor shall be responsible for prompt removal and disposal of spoils from all related construction activities.
t. All costs associated with system upgrades necessary to avoid power quality issues will be the responsibility of the Selected Vendor.
u. Security measures will be required to limit the potential for theft and vandalism during and after construction of the systems.
v. Array areas shown on project site maps are representative and not exact panel layouts.
w. DC-AC de-rate and inverter configuration to be determined by the Vendor to produce the best system value.
x. Work hours: All pricing should be based on standard work hours of Monday – Friday 6:00 AM to 7:00 PM.

All structures constructed as a part of the project must comply with all applicable permitting, regulatory, and safety agencies, including but not limited to DSA, municipalities, fire departments, utility, etc. All applicable building codes must be strictly adhered to and complied with. Vendors must warrant and maintain the full structural integrity of the PV system.

PV systems built in parking lots or near roadways must not obstruct or hinder school parking or traffic and must allow for appropriate clearance for all vehicles including buses, delivery vehicles, etc.

C. Includes and Assumptions for Solar PV Power Purchase Agreement (PPA) Scenario ONLY:
a. Term: 20 years
b. Annual PPA % escalator: 0%
c. Participant ownership of Renewable Energy Certificates (RECs) d. An annual production guarantee, with a reasonable degradation factor that matches the term of the offered PPA, must be included. Participants will not be required to purchase more than 110% of the estimated annual energy production. e. PPA must include purchase option(s) after year 6.
f. Removal of the system and returning the site to its pre-installation condition (normal wear and tear excepted) at the end of the PPA term.

During the PPA ownership period, it will be the responsibility of Vendor to perform all site maintenance, including work required by equipment vendors to maintain warranties, recalibration of equipment, vegetation abatement, panel washing as needed to meet Packet Page 120

performance guarantee targets, system monitoring and reporting, and the installation and maintenance of a revenue grade meters for billing purposes. Any damage to the systems resulting from vandalism/theft will be repaired in a timely fashion by Vendor.

D. Includes and Assumptions for Purchase Scenario ONLY:

Proposed purchase pricing includes comprehensive “turnkey” implementation of the proposed PV systems including design, engineering, materials, installation, interconnection, monitoring, and maintenance of solar photovoltaic systems. Proposed pricing should include the following:
a. 10-year O/M contract
b. 10-year 95% annual production guarantee less system degradation E. Excludes for Solar PV PPA AND Purchase Scenarios:
a. All costs associated with Utility distribution or service upgrades. b. Cost of parking area renovations (re-striping, resealing, repaving, traffic flow modifications, etc.)
c. Removal/disposal of hazardous materials including asbestos. d. Habitat mitigation.
e. Conditional use permits, special use permits, or environmental impact reports f. Roof replacement or repair.
g. Required ADA upgrades.
h. Structural upgrades to buildings.
i. Network and/or data services upgrades.
j. Installation of data wiring for monitoring kiosks or display screens. k. 3
rd party inspector costs
l. Tree or other vegetation removal
m. Performance bond
E. Fresno USD Projects
Fresno Unified School District required a line item cost for each of the following project components and the incremental increase to the PPA rate associated with that line item cost:
a. Minimum of 15’ clearance on low side of all canopy structures in driveway or parking areas.
b. Tree or other vegetation removal.
c. Four EV charging stations per site.
d. Reimburse FUSD for DSA inspector of record costs. Assume budgetary estimate of $35,000 per site.
e. Required ADA upgrades.

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F. Includes for Energy Storage Projects
Proposals for energy storage projects are required to include at minimum the following items/components:

1. Vendor is responsible for all costs associated with preparing and submitting SGIP applications.

2. Project engineering
a. Civil/Structural engineering
b. Electrical engineering
c. Mechanical engineering
d. Soils reports/engineering

3. Project permitting
a. Permitting fees
b. Utility interconnection process (upgrade costs on the Utility side of the meter should not be included in the Proposal base cost)
• All appropriate safety signage, as required by the Utility • Adequately sized and visible disconnect switches at or near each point of common coupling

4. Safety plan

5. Materials
a. Battery or other energy storage technology
b. Inverters
c. Weatherproof outdoor enclosure/container.
d. Balance of System (BOS)
• Disconnects/Breakers/Fuses
• Conduits and conductors
• Pull boxes and ground vaults
e. All other materials required to construct the system to comply with national, state, and local building requirements as well as industry standards.

6. Equipment/material procurement

7. Delivery, storage, and staging logistics

8. Site security

9. Facility construction
a. Civil (trenching and backfill, equipment pad preparation, etc.) b. Structural/mechanical
c. Electrical

10. Interconnection process
a. Generation Interconnection Application; must submit to utility within 60 days of execution of Project Agreement.
b. Self-Generation Incentive Program (SGIP) application and documentation process c. Initial and supplemental review process management
d. System coordination studies (if deemed necessary)
e. System protection engineering
f. Utility inspection

11. Facility testing

12. Facility commissioning
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a. Inverters
b. Monitoring configuration, startup, and training of Participant personnel c. Switchgear (if required)

13. Facility design documentation package and as-built drawings a. QA/QC documentation
b. As built documentation
• Inverters – quantity, make, model, and spec sheet
• Enclosure description and documentation
o Design drawings
o Paint/finish
c. Switchgear/subpanel (if upgrades or additions are required) – manufacturer, ratings, general spec.
d. AC and DC cable specifications
e. As-built DC single line diagram with conductor specification f. As-built AC single line diagram with conductor specification g. As-built site plan
• Balance of system (BOS) layout detail and identification • Inverter locations and mounting specifications
• Trenching specification (depth, bedding material spec, conduit spec., etc.)

14. Monitoring equipment/system
a. System charge/discharge monitoring
b. 15-minute interval (or better) data granularity

15. Security measures

16. Operations and maintenance for the term of the contract G. Assumptions for Energy Storage Projects
a. SPURR’s fees, as described above, must be included in all proposed pricing. b. Assume SGIP funding of $0.22/Watt-hour. Vendor must provide a clear and detailed explanation of how changes to proposed pricing will be calculated based on increased/decreased SGIP funding.
c. Prevailing wage rates will apply.
d. Unless otherwise stated, all systems will interconnect into a 277/480VAC 3-Phase service.
e. Electric services are adequately sized and have available space to connect energy storage project.
f. All non-trenched wiring will be made in accessible crawlspaces, attics, or mounted in secure weather tight conduit on racking structures.
g. Painted portions of structures will be primed with rust inhibitive primer and then painted with 2 coats of paint or powder coated.
h. All costs associated with system upgrades necessary to avoid power quality issues will be the responsibility of the Selected Vendor.
i. Security measures will be required to limit the potential for theft and vandalism during and after construction of the systems.

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j. Work hours: All pricing should be based on standard work hours of Monday – Friday 6:00 AM to 7:00 PM.
k. Removal of the system at the end of the term.

All structures constructed as a part of the project must comply with all applicable permitting, regulatory, and safety agencies, including but not limited to DSA, municipalities, fire departments, utility, etc. All applicable building codes must be strictly adhered to and complied with. Vendors must warrant and maintain the full structural integrity of the system.

During the entire project life it will be the responsibility of the Selected Vendor to perform all site maintenance, including work required by equipment vendors to maintain warranties, recalibration of equipment, system monitoring and reporting, and the installation and maintenance of a revenue grade meters for billing purposes. Any damage to the systems resulting from vandalism/theft will be repaired in a timely fashion by the Selected Vendor.

H. Excludes for Energy Storage Projects
The following items shall not be included in the base pricing offered by Vendors. All base pricing cost adjustments presented to Participants will be subject to SPURR’s review and must comply with a cost adjustment formula to be negotiated with Selected Vendor. a. All costs associated with Utility distribution or service upgrades. b. Removal/disposal of existing hazardous materials including asbestos. c. Habitat mitigation.
d. Conditional use permits, special use permits, or CEQA-related work. e. Required ADA upgrades.
f. Network and/or data services upgrades.
g. Installation of data wiring for monitoring kiosks or display screens. h. 3rd party inspector costs
Vendor is required to include a comprehensive list of additional relevant “excludes” that are not reflected in the Proposal and pricing.

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APPENDIX D – REAP PROJECT AGREEMENTS
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GENERAL CONDITIONS v.20.1

CONFIDENTIAL AND PROPRIETARY
***

GENERAL TERMS AND CONDITIONS OF

ENERGY SERVICES AGREEMENT
These General Terms and Conditions (“General Conditions”) are dated as of the ____ day of _________, 201__ and are witnessed and acknowledged by [ForeFront Power], LLC, a Delaware limited liability company (“ForeFront Power”) and [INSERT LEGAL NAME, ENTITY TYPE AND STATE OF FORMATION] (“Purchaser”), as evidenced by their signature on the last page of this document. These General Conditions are intended to be incorporated by reference into Energy Services Agreements that may be entered into between ForeFront Power and Purchaser or between their respective affiliates. These General Conditions shall have no binding effect upon ForeFront Power or Purchaser, respectively, except to the extent ForeFront Power or Purchaser becomes a party to an Energy Services Agreement that incorporates these General Conditions.

1. DEFINITIONS.

1.1 In addition to other terms specifically defined elsewhere in the Agreement, where capitalized, the following words and phrases shall be defined as follows:
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by or under common control with such specified Person.
“Agreement” means, the Energy Services Agreement.
“Applicable Law” means, with respect to any Person, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline, Governmental Approval, consent or requirement of any Governmental Authority having jurisdiction over such Person or its property, enforceable at law or in equity, including the interpretation and administration thereof by such Governmental Authority.
“Assignment” has the meaning set forth in Section 13.1. “Bankruptcy Event” means with respect to a Party, that either (i) such Party has (A) applied for or consented to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (B) admitted in writing its inability, or be generally unable, to pay its debts as such debts become due; (C) made a general assignment for the benefit of its creditors; (D) commenced a voluntary case under any bankruptcy law; (E) filed a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) taken any corporate or other action for the purpose of effecting any of the foregoing; or (ii) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof. “Business Day” means any day other than Saturday, Sunday or any other day on which banking institutions in New York, NY are required or authorized by Applicable Law to be closed for business.

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“Commercial Operation” has the meaning set forth in Section 3.3(b). “Commercial Operation Date” has the meaning set forth in Section 3.3(b). “Confidential Information” has the meaning set forth in Section 15.1. “Construction Start Date” has the meaning set forth in Section 5 of the Special Conditions. “Covenants, Conditions and Restrictions” or “CCR” means those requirements or limitations related to the Premises as may be set forth in a lease, if applicable, or by any association or other organization, having the authority to impose restrictions.
“Delay Liquidated Damages” means the daily payment of (i) $0.250/day/kW if the ForeFront Power fails to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date. “Disruption Period” has the meaning set forth in Section 4.3. “Early Termination Date” means any date on which the Agreement terminates other than by reason of expiration of the then applicable Term.
“Early Termination Fee” means the fee payable by Purchaser to ForeFront Power under the circumstances described in Section 11.2.
“Effective Date” has the meaning set forth in the preamble to the Special Conditions. “Energy Services” has the meaning set forth in the Special Conditions. “Energy Services Agreement” means each Energy Services Agreement (including the Schedules attached thereto) that may be entered into between ForeFront Power and Purchaser or between their respective affiliates that incorporates these General Conditions by reference.
“Energy Services Payment” has the meaning set forth in Schedule 2 of the Special Conditions. “Environmental Attributes” shall mean, without limitation, carbon trading credits, renewable energy credits or certificates, emissions reduction credits, emissions allowances, green tags, tradable renewable credits, or Green-e® products.
“Environmental Documents” has the meaning set forth in Section 7.2(h). “Environmental Law” means any and all federal, state, local, provincial and foreign, civil and criminal laws, statutes, ordinances, orders, common law, codes, rules, regulations, judgments, decrees, injunctions relating to the protection of health and the environment, worker health and safety, and/or governing the handling, use, generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging, labeling, or release to the environment of or exposure to Hazardous Materials, including any such requirements implemented through Governmental Approvals.
“Estimated Remaining Payments” means as of any date, the estimated remaining Energy Services Payments to be made through the end of the then-applicable Term, as reasonably determined by ForeFront Power. “Expiration Date” means the date on which the Agreement terminates by reason of expiration of the Term. “Fair Market Value” means, with respect to any tangible asset or service, the price that would be negotiated in an arm’s-length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer, neither of whom is under compulsion to complete the transaction. Fair Market Value of the System will be determined pursuant to Section 2.4.

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“Financing Party” means, as applicable (i) any Person (or its agent) from whom ForeFront Power (or an Affiliate of ForeFront Power) leases the System, (ii) any Person (or its agent) who has made or will make a loan to or otherwise provides financing to ForeFront Power (or an Affiliate of ForeFront Power) with respect to the System, or (iii) any Person acquiring a direct or indirect interest in ForeFront Power or in ForeFront Power’s interest in the Agreement or the System as a tax credit investor.
“Force Majeure Event” has the meaning set forth in Section 10.1. “ForeFront Power” has the meaning set forth in the Special Conditions. “ForeFront Power Default” has the meaning set forth in Section 11.1(a). “General Conditions” means these General Terms and Conditions of the Energy Services Agreement, including all Exhibits hereto.
“Guaranteed Commercial Operation Date” has the meaning set forth in Section 5 of the Special Conditions, which date shall be extended day-for-day for Force Majeure Events and for other events outside of ForeFront Power’s reasonable control.
“Governmental Approval” means any approval, consent, franchise, permit, certificate, resolution, concession, license, or authorization issued by or on behalf of any applicable Governmental Authority, including any such approval, consent, order or binding agreements with or involving a governmental authority under Environmental Laws. “Governmental Authority” means any federal, state, regional, county, town, city, or municipal government, whether domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial body of any such government.
“Hazardous Materials” means any hazardous or toxic material, substance or waste, including petroleum, petroleum hydrocarbons or petroleum products, and any other chemicals, materials, substances or wastes in any amount or concentration which are regulated under or for which liability can be imposed under any Environmental Law. “Indemnified Parties” has the meaning set forth in Section 16.1. “Initial Term” has the meaning set forth in Section 2 of the Special Conditions. “Installation Work” means the construction and installation of the System and the start-up, testing and acceptance (but not the operation and maintenance) thereof, all performed by or for ForeFront Power at the Premises. “Invoice Date” has the meaning set forth in Section 6.2. “Liens” has the meaning set forth in Section 7.1(e).
“Local Electric Utility” means the local electric distribution owner and operator providing electric distribution and interconnection services to Purchaser at the Premises.
“Losses” means all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages, cleanup and remedial obligations, interest, fines, fees, penalties, costs and expenses (including all attorneys’ fees and other costs and expenses incurred in defending any such claims or other matters or in asserting or enforcing any indemnity obligation).
“Option Price” has the meaning set forth in Section 2.3. “Party” or “Parties” has the meaning set forth in the preamble to the Special Conditions.

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“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a Governmental Authority. “Pre-existing Environmental Conditions” means any: (i) violation of, breach of or non-compliance with any Environmental Laws with respect to the Premises that first existed, arose or occurred on or prior to ForeFront Power’s commencement of construction at the Premises and (ii) the presence or release of, or exposure to, any Hazardous Materials at, to, on, in, under or from the Premises that first existed, arose or occurred on or prior to ForeFront Power’s commencement of construction at the Premises.
“Premises” means the premises described in Schedule 1 of the Special Conditions. The Premises includes the entirety of any structures and underlying real property located at the address in Schedule 1 of the Special Conditions. “Purchase Date” means the first Business Day that occurs after the applicable purchase date set forth in Schedule 3 of the Special Conditions.
“Purchaser” has the meaning set forth in the preamble to the Special Conditions. “Purchaser Default” has the meaning set forth in Section 11.2(a). “Renewal Term” has the meaning set forth in Section 2.1. “Representative” has the meaning set forth in Section 15.1. “Security Interest” has the meaning set forth in Section 8.2. “Site-Specific Requirements” means the site-specific information and requirements as may be set forth in Schedule 6 of the Special Conditions.
“Special Conditions” means each Energy Services Agreement, excluding these General Conditions. “Stated Rate” means a rate per annum equal to the lesser of (a) the “prime rate” (as reported in The Wall Street Journal) plus two percent (2%) or (b) the maximum rate allowed by Applicable Law. “System” has the meaning set forth in Schedule 1 of the Special Conditions. “System-based Incentives” means any accelerated depreciation, installation or production-based incentives, investment tax credits and subsidies including, but not limited to, the subsidies in Schedule 1 of the Special Conditions and all other related subsidies and incentives.
“System Operations” means ForeFront Power’s operation, maintenance and repair of the System performed in accordance with the requirements herein.
“Term” has the meaning set forth in Section 2 of the Special Conditions. “Term Year” means a twelve (12) month period beginning on the first day of the Term and each successive twelve (12) month period thereafter.
“Termination Date” means the date on which the Agreement ceases to be effective, including on an Early Termination Date or the Expiration Date.
“Transfer Time” has the meaning set forth in Section 4.3(a).

1.2 Interpretation. The captions or headings in these General Conditions are strictly for convenience and shall not be considered in interpreting the Agreement. Words in the Agreement that impart the singular connotation shall be interpreted as plural, and words that impart the plural connotation shall be interpreted as singular, Packet Page 129

as the identity of the parties or objects referred to may require. The words “include”, “includes”, and “including” mean include, includes, and including “without limitation” and “without limitation by specification.” The words “hereof”, “herein”, and “hereunder” and words of similar import refer to the Agreement as a whole and not to any particular provision of the Agreement. Except as the context otherwise indicates, all references to “Articles” and “Sections” refer to Articles and Sections of these General Conditions.

2. TERM AND TERMINATION.

2.1 Term; Early Termination; Milestone Dates.
(a) Term. The term of the Agreement shall commence on the Effective Date and shall continue for the number of years after the Commercial Operation Date that are specified in the Special Conditions (the “Initial Term”), unless and until extended or terminated earlier pursuant to the provisions of the Agreement. (b) Early Termination. Purchaser may terminate the Agreement prior to any applicable Expiration Date for any reason upon sixty (60) days’ prior written notice. If Purchaser terminates the Agreement prior to the Expiration Date of the Initial Term, Purchaser shall pay, as liquidated damages, the Early Termination Fee set forth on Schedule 3, Column 1 of the Special Conditions, and ForeFront Power shall cause the System to be disconnected and removed from the Premises. Upon Purchaser’s payment to ForeFront Power of the Early Termination Fee, the Agreement shall terminate automatically.
(c) Purchaser may (i) if ForeFront Power fails to commence construction by the Construction Start Date, be entitled (as its sole remedy) to Delay Liquidated Damages not to exceed $22.5/kW, (ii) terminate this Agreement with no liability whatsoever if ForeFront Power fails to commence construction of the System by the date that is 90 days after the Construction Start Date, or (iii) if ForeFront Power fails to achieve Commercial Operation by the Guaranteed Commercial Operation Date, be entitled (as its sole remedy) to Delay Liquidated Damages not to exceed $15/kW, plus (if Installation Work had commenced at the Premises as of the date of termination) any costs reasonably incurred by Purchaser to return its Premises to its condition prior to commencement of the Installation Work. Further, Purchaser may terminate this Agreement with no liability whatsoever if ForeFront Power fails to commence Commercial Operation by the date that is 60 days after the Guaranteed Commercial Operation Date. The Construction Start Date and Guaranteed Commercial Operation Date shall be extended on a day-for-day basis if, notwithstanding ForeFront Power’s commercially-reasonable efforts, interconnection approval is not obtained within 60 days after the Effective Date, provided that interconnection applications are submitted within 45 days of the later of (a) the Effective Date and (b) finalization of the System layout.

2.2 Purchase Option. On any Purchase Date, so long as a Purchaser Default shall not have occurred and be continuing, Purchaser has the option to purchase the System for a purchase price (the “Option Price”) equal to the greater of (a) the Fair Market Value of the System as of the Purchase Date, or (b) the Early Termination Fee as of the Purchase Date, as specified in Schedule 3, Column 2 of the Special Conditions. To exercise its purchase option, Purchaser shall, not less than one hundred and eighty (180) days prior to the proposed Purchase Date, provide written notice to ForeFront Power of Purchaser’s intent to exercise its option to purchase the System on such Purchase Date.

Within thirty (30) days of receipt of Purchaser’s notice, ForeFront Power shall specify the Option Price, and Purchaser shall then have a period of thirty (30) days after notification to confirm or retract its decision to exercise the purchase option or, if the Option Price is equal to the Fair Market Value of the System, to dispute the determination of the Fair Market Value of the System. In the event Purchaser confirms its exercise of the purchase option in writing to ForeFront Power (whether before or after any determination of the Fair Market Value determined pursuant to Section 2.3), (i) the Parties shall promptly execute all documents necessary to (A) cause title to the System to pass to Purchaser on the Purchase Date, free and clear of any Liens, and (B) assign all vendor warranties for the System to Purchaser, and (ii) Purchaser shall pay the Option Price to ForeFront Power on the Purchase Date, such payment to be made in accordance with any previous written instructions delivered to Purchaser by ForeFront Power or ForeFront Power’s Financing Party, as applicable, for payments under the Agreement. Upon execution of the documents and payment of the Option Price, in each case as described in the preceding sentence, the Agreement shall terminate automatically. Payment of the Option Price shall be in lieu of and instead of any payments as described in Section 2.2 hereof. In the event Purchaser retracts its exercise of, or does not timely confirm, the purchase option, the provisions of the Agreement shall be applicable as if Purchaser had not exercised any option to purchase the System.

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2.3 Determination of Fair Market Value. If the Option Price indicated by ForeFront Power in accordance with Section 2.2 is equal to the Fair Market Value (as determined by ForeFront Power) and Purchaser disputes such stated Fair Market Value within thirty (30) days of receipt of such notice from ForeFront Power, then the Parties shall mutually select an independent appraiser with experience and expertise in the Energy Services industry. Such appraiser shall act reasonably and in good faith to determine Fair Market Value and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by Purchaser if such appraisal results in a value equal or greater than the value provided by ForeFront Power pursuant to Section 2.3; otherwise, the Parties shall equally share such cost.

2.4 Removal of System at Expiration. Subject to Purchaser’s exercise of its purchase option under Section 2.2, upon the expiration or earlier termination of the Agreement, ForeFront Power shall, at ForeFront Power’s expense, remove all of its tangible property comprising the System from the Premises on a mutually convenient date but in no case later than ninety (90) days after the Termination Date. The Premises shall be returned to its original condition, except for System mounting pads or other support structures on roof-mounted systems only, and ordinary wear and tear. If the System is to be located on a roof, then in no case shall ForeFront Power’s removal of the System affect the integrity of Purchaser’s roof, which shall be as leak proof as it was prior to removal of System (other than ordinary wear and tear). For purposes of ForeFront Power’s removal of the System, Purchaser’s covenants pursuant to Section 7.2 shall remain in effect until the date of actual removal of the System. ForeFront Power shall leave the Premises in neat and clean order. If ForeFront Power fails to remove or commence substantial efforts to remove the System by such agreed upon date, Purchaser shall have the right, at its option, to remove the System to a public warehouse and restore the Premises to its original condition (other than System mounting pads or other support structures and ordinary wear and tear) at ForeFront Power’s reasonable cost.

2.5 Conditions of the Agreement Prior to the Commercial Operation Date. (a) In the event that any of the following events or circumstances occur prior to the Commercial Operation Date, ForeFront Power may (at its sole discretion) provide notice that it is terminating the Agreement, in which case neither Party shall have any liability to the other except for any such liabilities that may have accrued prior to such termination:
(i) ForeFront Power determines that the Premises, as is, is insufficient to accommodate the System or unsuitable for construction or operation of the System. (ii) There exist site conditions (including environmental conditions) or construction requirements that were not known as of the Effective Date and that could reasonably be expected to materially increase the cost of Installation Work or would adversely affect the electricity production from the System as designed. (iii) There is a material adverse change in the regulatory environment, incentive program or federal or state tax code (including the expiration of any incentive program or tax incentives in effect as of the Effective Date) that could reasonably be expected to adversely affect the economics of the installation for ForeFront Power and its investors.
(iv) ForeFront Power is unable to obtain financing for the System on terms and conditions satisfactory to it.
(v) ForeFront Power has not received: (1) a fully executed a license in the form of Exhibit A of these General Conditions from the owner of the Premises (if the Purchaser is a tenant), (2) a release or acknowledgement from any mortgagee of the Premise, if required by ForeFront Power’s Financing Party, to establish the priority of its security interest in the System, and (3) such other documentation as may be reasonably requested by ForeFront Power to evidence Purchaser’s ability to meet its obligations under Section 7.2(d)(ii) to ensure that ForeFront Power will have access to the Premises throughout the Term.
(vi) There has been a material adverse change in the rights of Purchaser to occupy the Premises or ForeFront Power to construct the System on the Premises.

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(viii) Purchaser has determined that there are easements, CCRs or other land use restrictions, liens or encumbrances that would materially impair or prevent the installation, operation, maintenance or removal of the System.
(ix) There has been a material adverse change in Purchaser’s credit-worthiness. (b) If any of the conditions set forth in Section 2.5(a) are partly or wholly unsatisfied, and ForeFront Power wishes to revise the information in the Special Conditions, then ForeFront Power may propose modifications to the Special Conditions for acceptance by Purchaser. If Purchaser does not accept such modified Special Conditions, ForeFront Power may terminate this Agreement as provided in Section 2.5(a). If Purchaser accepts such revised Special Conditions, such revised Special Conditions shall be deemed an amendment of the Agreement, and the Agreement shall remain in force and effect upon execution by both Parties.

3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.

3.1 Installation Work. ForeFront Power will cause the System to be designed, engineered, installed and constructed substantially in accordance with Schedule 1 of the Special Conditions and Applicable Law. At its request, Purchaser shall have the right to review all construction plans and designs, including engineering evaluations of the impact of the System. ForeFront Power shall perform the Installation Work at the Premises between the hours of 7:00 a.m. and 7:00 p.m. in a manner that minimizes inconvenience to and interference with the use of the Premises to the extent commercially practical.

3.2 Approvals; Permits. Purchaser shall assist ForeFront Power in obtaining all necessary consents, approvals and permits required to perform Purchaser’s obligations under this Agreement, including but not limited to those related to the Local Electric Utility, any Governmental Approval, and any consents, waivers, approvals or releases required pursuant to any applicable contract or CCR.

3.3 System Acceptance Testing.
(a) ForeFront Power shall conduct testing of the System in accordance with such methods, acts, guidelines, standards and criteria reasonably accepted or followed by providers of Energy Services similar to those provided by the System in the United States.
(b) If the results of such testing indicate that the System is capable of providing the Energy Services, using such instruments and meters as have been installed for such purposes, and the System has been approved for interconnected operation by the Local Electric Utility (“Commercial Operation”), then ForeFront Power shall send a written notice to Purchaser to that effect, and the date of such notice shall be the “Commercial Operation Date”.

4. SYSTEM OPERATIONS.

4.1 ForeFront Power as Owner and Operator. The System will be owned by ForeFront Power or ForeFront Power’s Financing Party and will be operated and maintained and, as necessary, repaired by ForeFront Power at its sole cost and expense; provided, any repair or maintenance costs incurred by ForeFront Power as a result of Purchaser’s negligence or breach of its obligations hereunder shall be reimbursed by Purchaser.

4.2 Metering. ForeFront Power shall install and maintain a utility grade kilowatt-hour (kWh) meter for the measurement of electrical energy provided by the System and may, at its election, install a utility grade kilowatthour (kWh) meter for the measurement of electrical energy delivered by the Local Electric Utility and consumed at the Premises.

4.3 System Disruptions. In the event that (a) the owner or lessee of the Premises repairs the Premises for any reason not directly related to damage caused by the System, and such repair requires the partial or complete temporary disassembly or movement of the System, or (b) any act or omission of Purchaser or Purchaser’s employees, Affiliates, agents or subcontractors (collectively, a “Purchaser Act”) results in a disruption or outage in System production, then, in either case, Purchaser shall (i) pay ForeFront Power for all work required by ForeFront Power to Packet Page 132

disassemble or move the System and (ii) continue to make all payments for the Energy Services during such period of System disruption (the “Disruption Period”), and (iii) reimburse ForeFront Power for any other lost revenue during the Disruption Period, including any lost revenue associated with any reduced sales of Environmental Attributes and any reduced System-based Incentives, if applicable, during the Disruption Period. For the purpose of calculating Energy Services Payments and lost revenue for such Disruption Period, Energy Services for each month of said months shall be deemed to have been produced at the average rate over the same month for which data exists (or, if the disruption occurs within the first twelve (12) months of operation, the average over such period of operation).

5. TITLE TO SYSTEM.

5.1 Throughout the duration of the Agreement, ForeFront Power or ForeFront Power’s Financing Party shall be the legal and beneficial owner of the System at all times, and the System shall remain the personal property of ForeFront Power or ForeFront Power’s Financing Party and shall not attach to or be deemed a part of, or fixture to, the Premises. The System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. Purchaser covenants that it will use reasonable commercial efforts to place all parties having an interest in or lien upon the real property comprising the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which could reasonably be construed as attaching to the System as a fixture of the Premises, Purchaser shall provide, at ForeFront Power’s request, a disclaimer or release from such lien holder. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing by ForeFront Power, on behalf of Purchaser, 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 of the Premises. If Purchaser is not the fee owner, Purchaser will, at ForeFront Power’s request, use commercially reasonable efforts to obtain such consent from such owner.

5.2 Environmental Attributes And System-Based Incentives. Purchaser’s purchase of Energy Services includes Environmental Attributes, but does not include System-based incentives. System-based Incentives shall be owned by ForeFront Power or ForeFront Power’s financing party for the duration of the System’s operating life. Purchaser disclaims any right to System-based Incentives based upon the installation of the System at the Premises, and shall, at the request of ForeFront Power, execute any document or agreement reasonably necessary to fulfill the intent of this Section 5.2.

6. PRICE AND PAYMENT.

6.1 Consideration. Purchaser shall pay to ForeFront Power a monthly Energy Services Payment for the Energy Services provided during each calendar month of the Term as set forth in the Special Conditions.

6.2 Invoice. ForeFront Power shall invoice Purchaser on or about the first day of each month (each, an “Invoice Date”), commencing on the first Invoice Date to occur after the Commercial Operation Date, for the Energy Services Payment in respect of the immediately preceding month. The last invoice shall include Energy Services provided only through the Termination Date of this Agreement.

6.3 Time of Payment. Purchaser shall pay all undisputed amounts due hereunder within thirty (30) days after the date of the applicable Invoice Date.

6.4 Method of Payment. Purchaser shall make all payments under the Agreement either (a) by electronic funds transfer in immediately available funds to the account designated by ForeFront Power from time to time or (b) by check timely delivered to the location designated by ForeFront Power from time to time. All payments that are not paid when due shall bear interest accruing from the date becoming past due until paid in full at a rate equal to the Stated Rate.

6.5 Disputed Payments. If a bona fide dispute arises with respect to any invoice, Purchaser shall not be deemed in default under the Agreement and the Parties shall not suspend the performance of their respective obligations hereunder, including payment of undisputed amounts owed hereunder. If an amount disputed by Purchaser Packet Page 133

is subsequently deemed to have been due pursuant to the applicable invoice, interest shall accrue at the Stated Rate on such amount from the date becoming past due under such invoice until the date paid.

7. GENERAL COVENANTS.

7.1 ForeFront Power’s Covenants. ForeFront Power covenants and agrees to the following:
(a) Notice of Damage or Emergency. ForeFront Power shall (x) promptly notify Purchaser if it becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System, (y) immediately notify Purchaser if it becomes aware of any event or circumstance relating to the System or the Premises that poses a significant risk to human health, the environment, the System or the Premises. (b) Governmental Approvals. While providing the Installation Work, Energy Services, and System Operations, ForeFront Power shall obtain and maintain and secure all Governmental Approvals required to be obtained and maintained and secured by ForeFront Power and to enable ForeFront Power to perform such obligations. (c) Health and Safety. ForeFront Power shall take all necessary and reasonable safety precautions with respect to providing the Installation Work, Energy Services, and System Operations that shall comply with all Applicable Laws pertaining to the health and safety of persons and real and personal property. All work shall be performed by licensed professionals, as may be required by Applicable Law, and in accordance with such methods, acts, guidelines, standards and criteria reasonably accepted or followed by a majority of System integrators in the United States.
(d) Liens. Other than a Financing Party’s security interest in or ownership of the System, ForeFront Power shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics’, labor or materialman’s lien), charge, security interest, encumbrance or claim of any nature (“Liens”) on or with respect to the Premises or any interest therein, in each case to the extent such Lien arises from or is related to ForeFront Power’s performance or non-performance of its obligations hereunder. If ForeFront Power breaches its obligations under this Section, it shall (i) immediately notify Purchaser in writing, (ii) promptly cause such Lien to be discharged and released of record without cost to Purchaser, and (iii) defend and indemnify Purchaser against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien; provided, ForeFront Power shall have the right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove such Lien from title to the Premises or that assure that any adverse judgment with respect to such Lien will be paid without affecting title to the Premises.

7.2 Purchaser’s Covenants. Purchaser covenants and agrees as follows:
(a) Notice of Damage or Emergency. Purchaser shall (i) promptly notify ForeFront Power if it becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System, (ii) immediately notify ForeFront Power it becomes aware of any event or circumstance that poses an imminent risk to human health, the environment, the System or the Premises. In the event of damage to Purchaser’s premises caused by, or as the result of, the System, ForeFront Power shall, at its sole cost, repair said premises to the condition existing prior to such damage.
(b) Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer to exist any Liens on or with respect to the System or any interest therein. If Purchaser breaches its obligations under this Section, it shall immediately notify ForeFront Power in writing, shall promptly cause such Lien to be discharged and released of record without cost to ForeFront Power, and shall indemnify ForeFront Power against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien.
(c) Consents and Approvals. To the extent that only Purchaser is authorized to request, obtain or issue any necessary approvals, Governmental Approvals, rebates or other financial incentives, Purchaser shall cooperate with ForeFront Power to obtain or issue such approvals, Governmental Approvals, rebates or other financial incentives Packet Page 134

in the name of ForeFront Power. Purchaser shall provide to ForeFront Power copies of all Governmental Approvals and CCRs applicable to the Premises, other than those obtained by ForeFront Power or to which ForeFront Power is a party.
(d) Access to Premises, Grant of License.
(i) Purchaser hereby grants to ForeFront Power a commercial license coterminous with the Term containing all the rights necessary for ForeFront Power to use and occupy portions of the Premises for the installation, operation, maintenance and removal of the System pursuant to the terms of this Agreement, including ingress and egress rights to the Premises for ForeFront Power and its employees, contractors and subcontractors and access to electrical panels and conduits to interconnect or disconnect the System with the Premises’ electrical wiring; provided, with respect to Provider’s access to the Site, such license shall be subject to conditions or limitations for the protection of minor students that are imposed generally on commercial contractors by Purchaser or by Applicable Law. If ForeFront Power’s financing structure requires that Purchaser enter into a license agreement directly with Financing Party, ForeFront Power shall enter into such an agreement which shall be in a form set forth by ForeFront Power and which contain substantially the same rights as set forth in this Section 7.2(d). (ii) Regardless of whether Purchaser is owner of the Premises or leases the Premises from a landlord, Purchaser hereby covenants that (x) ForeFront Power shall have access to the Premises and System during the Term of this Agreement and for so long as needed after termination to remove the System pursuant to the applicable provisions herein, and (y) neither Purchaser nor Purchaser’s landlord will interfere or handle any ForeFront Power equipment or the System without written authorization from ForeFront Power; provided, Purchaser and Purchaser’s landlord shall at all times have access to and the right to observe the Installation Work or System removal. (iii) If Purchaser is a lessee of the Premises, Purchaser further covenants that it shall deliver to ForeFront Power, a license from Purchaser’s landlord in substantially the form attached hereto as Exhibit A of these General Conditions.
(e) Temporary storage space during installation or removal. Purchaser shall use commercially reasonable efforts to obtain an agreement for sufficient space at the Premises for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the Installation Work, System Operations or System removal, and access for rigging and material handling.
(f) On or before the Effective Date of each Special Conditions Purchaser shall identify and set forth in each Special Conditions and unless previously delivered, Purchaser shall, to the extent the same are known and available, deliver to ForeFront Power copies of all reports, agreements, plans, inspections, tests, studies or other materials concerning the presence of Hazardous Materials at, from or on the Premises including, but not limited to, soil reports, design drawings, environmental reports, sampling results or other documents relating to Hazardous Materials that have been identified or may be present on, in or under the Premises (collectively, the “Environmental Documents”). Thereafter, Purchaser agrees to provide copies of any new Environmental Documents within ten (10) days of receipt of same. Purchaser hereby agrees to furnish such other documents in Purchaser’s possession or control with respect to Governmental Approvals compliance with Environmental Law or Hazardous Materials with respect to the Premises as may be reasonably requested by ForeFront Power from time to time. (g) Notwithstanding anything to the contrary in the Agreement, Purchaser shall operate and maintain the Premises to comply with the requirements of all applicable Environmental Laws that limit or govern the conditions or uses of the Premises, without impairing or interfering with ForeFront Power’s construction, operation and ownership of the System or occupancy of the Premises. In no event shall ForeFront Power have any liability or obligation with respect to any Pre-existing Environmental Condition on, in or under the Premises, or operations or maintenance of the Premises required to comply with Environmental Laws with respect to Pre-Existing Environmental Conditions.
(j) Purchaser shall indemnify, hold harmless and defend ForeFront Power from and against all claims, pay costs and expenses, and conduct all actions required under Environmental Laws in connection with (i) the Packet Page 135

existence at, on, above, below or near the Premises of any Pre-existing Environmental Conditions, and (ii) any Hazardous Materials released, spilled or deposited at, on above or below the Premises by the Purchaser.

8. REPRESENTATIONS & WARRANTIES.

8.1 Representations and Warranties of Both Parties. In addition to any other representations and warranties contained in the Agreement, each Party represents and warrants to the other as of the Effective Date that:
(a) it is duly organized and validly existing and in good standing in the jurisdiction of its organization; (b) it has the full right and authority to enter into, execute, deliver, and perform its obligations under the Agreement;
(c) it has taken all requisite corporate or other action to approve the execution, delivery, and performance of the Agreement;
(d) the Agreement constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms, except as may be limited by applicable bankruptcy and other similar laws now or hereafter in effect;
(e) there is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that could reasonably be expected to adversely affect its ability to carry out the transactions contemplated herein; (f) its execution and performance of the Agreement and the transactions contemplated hereby do not and will not constitute a breach of any term or provision of, or a default under, (i) any contract, agreement or Governmental Approval to which it or any of its Affiliates is a party or by which it or any of its Affiliates or its or their property is bound, (ii) its organizational documents, or (iii) any Applicable Laws; and (g) its execution and performance of the Agreement and the transactions contemplated hereby do not and will not require any consent from a third party, including any Governmental Approvals from any Governmental Authority, that are not identified in the Special Conditions.

8.2 Representations of Purchaser. Purchaser represents and warrants to ForeFront Power as of the Effective Date that:
(a) Purchaser acknowledges that it has been advised that part of the collateral securing the financial arrangements for the System may be the granting of a first priority perfected security interest (the “Security Interest”) in the System to a Financing Party;
(b) To Purchaser’s knowledge, the granting of the Security Interest will not violate any term or condition of any covenant, restriction, lien, financing agreement, or security agreement affecting the Premises; (c) Purchaser is aware of no existing lease, mortgage, security interest or other interest in or lien upon the Premises that could attach to the System as an interest adverse to ForeFront Power’s Financing Party’s Security Interest therein;
(d) To Purchaser’s knowledge, there exists no event or condition which constitutes a default, or would, with the giving of notice or lapse of time, constitute a default under this Agreement; (e) To Purchaser’s knowledge, Purchaser has identified and disclosed to ForeFront Power in the Special Conditions (i) all Environmental Documents, (ii) all CCRs, Governmental Approvals or other restrictions imposed under Applicable Laws with respect to the use of the Premises that could affect the construction and operation of the System, and (iii) all environmental reports, studies, data or other information relating to the use of the Premises by ForeFront Power within the Purchaser’s possession or control; Packet Page 136

(f) The Premises is in compliance with Environmental Laws, and that Purchaser holds and is in compliance with all Governmental Approvals required for the ownership and any current operations or activities conducted at the Premises; and
(g) Purchaser has identified in the Special Conditions and delivered to ForeFront Power all material reports and information concerning the presence or release of Hazardous Materials on, in or under the Premises.

Any Financing Party shall be an intended third-party beneficiary of this Section 8.2.

8.3 EXCLUSION OF WARRANTIES. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY

SET FORTH HEREIN, THE INSTALLATION WORK, SYSTEM OPERATIONS, AND ENERGY SERVICES

PROVIDED BY FOREFRONT POWER TO PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE “AS-IS WHERE-IS.” NO OTHER WARRANTY TO PURCHASER OR ANY OTHER PERSON, WHETHER

EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION, DESIGN, DESCRIPTION,

QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR

FITNESS FOR ANY PARTICULAR PURPOSE OF THE SYSTEM, THE ENERGY SERVICES OR ANY OTHER

SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY FOREFRONT POWER.

9. TAXES AND GOVERNMENTAL FEES.

9.1 Purchaser Obligations. Purchaser shall reimburse and pay for any documented taxes, fees or charges imposed or authorized by any Governmental Authority and paid by ForeFront Power due to ForeFront Power’s sale of the Energy Services to Purchaser (other than income taxes imposed upon ForeFront Power). ForeFront Power shall notify Purchaser in writing with a detailed statement of such amounts, which shall be invoiced by ForeFront Power and payable by Purchaser. Purchaser shall timely report, make filings for, and pay any and all sales, use, income, gross receipts or other taxes, and any and all franchise fees or similar fees assessed against it due to its purchase of the Energy Services. This Section 9.1 excludes taxes specified in Section 9.2.

9.2 ForeFront Power Obligations. Subject to Section 9.1 above, ForeFront Power shall be responsible for all income, gross receipts, ad valorem, personal property or real property or other similar taxes and any and all franchise fees or similar fees assessed against it due to its ownership of the System.

10. FORCE MAJEURE.

10.1 Definition. “Force Majeure Event” means any act or event that prevents the affected Party from performing its obligations in accordance with the Agreement, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the affected Party and such Party had been unable to overcome such act or event with the exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing conditions, “Force Majeure Event” shall include without limitation the following acts or events: (i) natural phenomena, such as storms, hurricanes, floods, lightning, volcanic eruptions and earthquakes; (ii) explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes caused solely by employees of ForeFront Power or as a result of such party’s failure to comply with a collective bargaining agreement); (v) action or inaction by a Governmental Authority (unless Purchaser is a Governmental Authority and Purchaser is the Party whose performance is affected by such action nor inaction). A Force Majeure Event shall not be based on the economic hardship of either Party, or upon the expiration of any lease of the Premises by the Purchaser from the owner of the Premises.

10.2 Excused Performance. Except as otherwise specifically provided in the Agreement, neither Party shall be considered in breach of the Agreement or liable for any delay or failure to comply with the Agreement (other than the failure to pay amounts due hereunder), if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event; provided, the Party claiming relief under this Article 10 shall as soon as practicable after becoming aware of the circumstances constituting Force Majeure (i) notify the other Party in writing Packet Page 137

of the existence of the Force Majeure Event, (ii) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other Party in writing of the cessation or termination of said Force Majeure Event and (iv) resume performance of its obligations hereunder as soon as practicable thereafter; provided, Purchaser shall not be excused from making any payments and paying any unpaid amounts due in respect of Energy Services delivered to Purchaser prior to the Force Majeure Event performance interruption.

10.3 Termination in Consequence of Force Majeure Event. If a Force Majeure Event shall have occurred that has affected ForeFront Power’s performance of its obligations hereunder and that has continued for a continuous period of one hundred eighty (180) days, then either Party shall be entitled to terminate the Agreement upon ninety (90) days’ prior written notice to the other Party. If at the end of such ninety (90) day period such Force Majeure Event shall still continue, the Agreement shall automatically terminate. Upon such termination for a Force Majeure Event, neither Party shall have any liability to the other (other than any such liabilities that have accrued prior to such termination).

11. DEFAULT.

11.1 ForeFront Power Defaults and Purchaser Remedies.
(a) ForeFront Power Defaults. The following events shall be defaults with respect to ForeFront Power (each, a “ForeFront Power Default”):
(i) A Bankruptcy Event shall have occurred with respect to ForeFront Power; (ii) ForeFront Power fails to pay Purchaser any undisputed amount owed under the Agreement within thirty (30) days from receipt of notice from Purchaser of such past due amount; and (iii) ForeFront Power breaches any material representation, covenant or other term of the Agreement and (A) if such breach can be cured within thirty (30) days after Purchaser’s written notice of such breach and ForeFront Power fails to so cure, or (B) ForeFront Power fails to commence and pursue a cure within such thirty (30) day period if a longer cure period is needed.
(b) Purchaser’s Remedies. If a ForeFront Power Default described in Section 11.1(a) has occurred and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Purchaser may terminate the Agreement and exercise any other remedy it may have at law or equity or under the Agreement.

11.2 Purchaser Defaults and ForeFront Power’s Remedies. (a) Purchaser Default. The following events shall be defaults with respect to Purchaser (each, a “Purchaser Default”):
(i) A Bankruptcy Event shall have occurred with respect to Purchaser; (ii) Purchaser breaches any material representation, covenant or other term of the Agreement if (A) such breach can be cured within thirty (30) days after ForeFront Power’s notice of such breach and Purchaser fails to so cure, or (B) Purchaser fails to commence and pursue said cure within such thirty (30) day period if a longer cure period is needed; and
(iii) Purchaser fails to pay ForeFront Power any undisputed amount due ForeFront Power under the Agreement within thirty (30) days from receipt of notice from ForeFront Power of such past due amount. (b) ForeFront Power’s Remedies. If a Purchaser Default described in Sections 11.2(a) has occurred and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12, ForeFront Power may terminate this Agreement and upon such termination, (A) ForeFront Power shall be entitled to receive from Purchaser the Early Termination Fee, and (B) ForeFront Power may exercise any other remedy it may have at law or equity or under the Agreement.

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11.3 Cross Default. With respect to any Systems that are co-located at the same Premises, if a Party defaults under the Agreement related one such System, it shall also be a default of such Party under the Agreement(s) related to the other co-located System(s); provided, a cure of the original default shall be a cure of any such cross default. In the event of a cross default, the non-defaulting Party shall be entitled to exercises its rights with respect to all such Agreements, including terminating all such Agreements (but not less than all such Agreements) and, if ForeFront Power terminates the Agreements due to a Purchaser Default, Purchaser shall pay the Early Termination Fees for all such terminated Agreements.

11.4 Removal of System. Upon any termination of the Agreement pursuant to this Article 11, ForeFront Power will remove the System pursuant to Section 2.4 hereof, absent any purchase of the System by Purchaser pursuant to Section 2.2 hereof.

12. LIMITATIONS OF LIABILITY.

12.1 Except as expressly provided herein, neither Party shall be liable to the other Party or its Indemnified Persons for any special, punitive, exemplary, indirect, or consequential damages, losses or damages for lost revenue or lost profits, whether foreseeable or not, arising out of, or in connection with the Agreement.

12.2 A Party’s maximum liability to the other Party under the Agreement, shall be limited to the aggregate Estimated Remaining Payments as of the date of the events giving rise to such liability, provided, the limits of liability under this Section 12.2 shall not apply with respect to (i) indemnity obligations hereunder in respect of personal injury or environmental claims, (ii) any obligation of Purchaser to pay Energy Service Payments, the Early Termination Fee or the Option Price, and (iii) any obligation of ForeFront Power to pay for Lost Savings in accordance with the Special Conditions, if applicable.

13. ASSIGNMENT.

13.1 Assignment by ForeFront Power. ForeFront Power shall not sell, transfer or assign (collectively, an “Assignment”) the Agreement or any interest therein, without the prior written consent of Purchaser, which shall not be unreasonably withheld, conditioned or delayed; provided, Purchaser agrees that ForeFront Power may assign this Agreement without the consent of the Purchaser to an affiliate of ForeFront Power or any party providing financing for the System. In the event that ForeFront Power identifies a secured Financing Party in the Special Conditions, or in a subsequent notice to Purchaser, then Purchaser shall comply with the provisions set forth in Exhibit B of these General Terms and Conditions and agrees to provide such estoppels and acknowledgments as ForeFront Power may reasonably request from time to time. Any Financing Party shall be an intended third-party beneficiary of this Section 13.1. Any Assignment by ForeFront Power without obtaining the prior written consent and release of Purchaser, when such consent is required by this Section 13.1, shall not release ForeFront Power of its obligations hereunder.

13.2 Acknowledgment of Collateral Assignment. In the event that ForeFront Power identifies a secured Financing Party in the Special Conditions, or in a subsequent notice to Purchaser, then Purchaser hereby acknowledges:
(a) The collateral assignment by ForeFront Power to the Financing Party, of ForeFront Power’s right, title and interest in, to and under the Agreement, as consented to under Section 13.1 of the Agreement. (b) That the Financing Party as such collateral assignee shall be entitled to exercise any and all rights of lenders generally with respect to ForeFront Power’s interests in this Agreement. (c) That it has been advised that ForeFront Power has granted a first priority perfected security interest in the System to the Financing Party and that the Financing Party has relied upon the characterization of the System as personal property, as agreed in this Agreement in accepting such security interest as collateral for its financing of the System.

Any Financing Party shall be an intended third- party beneficiary of this Section 13.2.

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13.3 Assignment by Purchaser. Purchaser shall not assign the Agreement or any interest therein, without ForeFront Power’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

Any Assignment by Purchaser without the prior written consent of ForeFront Power shall not release Purchaser of its obligations hereunder.

14. NOTICES.

14.1 Notice Addresses. Unless otherwise provided in the Agreement, all notices and communications concerning the Agreement shall be in writing and addressed to the other Party (or Financing Party, as the case may be) at the addresses set forth in the Special Conditions, or at such other address as may be designated in writing to the other Party from time to time.

14.2 Notice. Unless otherwise provided herein, any notice provided for in the Agreement shall be hand delivered, sent by registered or certified U.S. Mail, postage prepaid, or by commercial overnight delivery service, and shall be deemed delivered to the addressee or its office when received at the address for notice specified above when hand delivered, upon confirmation of sending when sent by facsimile (if sent during normal business hours or the next Business Day if sent at any other time), on the Business Day after being sent when sent by overnight delivery service (Saturdays, Sundays and legal holidays excluded), or five (5) Business Days after deposit in the mail when sent by U.S. mail.

14.3 Address for Invoices. All invoices under the Agreement shall be sent to the address provided by Purchaser. Invoices shall be sent by regular first class mail postage prepaid.

15. CONFIDENTIALITY.

15.1 Confidentiality Obligation. If either Party provides confidential information, including business plans, strategies, financial information, proprietary, patented, licensed, copyrighted or trademarked information, and/or technical information regarding the financing, design, operation and maintenance of the System or of Purchaser’s business (“Confidential Information”) to the other or, if in the course of performing under the Agreement or negotiating the Agreement a Party learns Confidential Information regarding the facilities or plans of the other, the receiving Party shall (a) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (b) refrain from using such Confidential Information, except in the negotiation and performance of the Agreement. Notwithstanding the above, a Party may provide such Confidential Information to its officers, directors, members, managers, employees, agents, contractors, consultants, Affiliates, lenders (existing or potential), investors (existing or potential) and potential third-party assignees of the Agreement or third-party acquirers of ForeFront Power or its Affiliates (provided and on condition that such potential third-party assignees be bound by a written agreement restricting use and disclosure of Confidential Information) (collectively, “Representatives”), in each case whose access is reasonably necessary. Each such recipient of Confidential Information shall be informed by the Party disclosing Confidential Information of its confidential nature and shall be directed to treat such information confidentially and shall agree to abide by these provisions. In any event, each Party shall be liable (with respect to the other Party) for any breach of this provision by any entity to whom that Party improperly discloses Confidential Information. The terms of the Agreement (but not its execution or existence) shall be considered Confidential Information for purposes of this Article, except as set forth in Section 15.3. All Confidential Information shall remain the property of the disclosing Party and shall be returned to the disclosing Party or destroyed after the receiving Party’s need for it has expired or upon the request of the disclosing Party.

15.2 Permitted Disclosures. Notwithstanding any other provision herein, neither Party shall be required to hold confidential any information that:
(a) Becomes publicly available other than through the receiving Party; (b) Is required to be disclosed by a Governmental Authority, under Applicable Law or pursuant to a validly issued subpoena or required filing, but a receiving Party subject to any such requirement shall promptly notify the disclosing Party of such requirement;
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