Agenda packet — Rancho Cucamonga City Council, September 6, 2023 (part 2 of 5)

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DoIT General Fund

1001209-5300

Contract Services

$141,915
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

This item addresses the City Council’s Core Value of intentionally embracing and anticipating our future.

ATTACHMENTS:

Attachment 1 – Central Square October 2023 Renewal
Attachment 2 – Original Contract No. 2020-118

MORE INFORMATION AT CENTRALSQUARE.COM

Renewal Order prepared by:

Ashley Lemerond
[email protected]

Thank you for your continued business. We at CentralSquare appreciate and value our relationship and look forward to serving you in the future. CentralSquare provides software that powers over 8,000 communities. More information about all of our products can be found at www.centralsquare.com.

WHAT SOFTWARE IS INCLUDED?
_____

PRODUCT NAME QUANTITY TOTAL

1. Cognos BI: Base Bundle Multi-Data Source Annual
Maintenance Fee
1 5,306.77 USD

2. Cognos Insight Standard Edition Authorized User Annual Maintenance Fee
1 0.00 USD

3. MicroFocus Server Express Runtime Annual Maintenance Fee 1 3,285.07 USD

4. MicroFocus Server Express Runtime Annual Maintenance Fee 1 547.60 USD

5. MKS SQL Annual Maintenance Fee 1 748.25 USD

6. MKS SQL Annual Maintenance Fee 1 748.25 USD

7. ONESolution 7i Annual Maintenance Fee 1 0.00 USD

8. ONESolution Accounts Payable Annual Maintenance Fee 1 0.00 USD

9. ONESolution Accounts Receivable Annual Maintenance Fee 1 0.00 USD

10. ONESolution Bank Reconciliation Annual Maintenance Fee 1 0.00 USD

11. ONESolution Budgeting w/ Budget Item Detail Annual Maintenance Fee
1 0.00 USD

12. ONESolution Cash Receipts Annual Maintenance Fee 1 0.00 USD

13. ONESolution Click, Drag, and Drill Annual Maintenance Fee 1 0.00 USD

14. ONESolution Documents Online Annual Maintenance Fee 1 0.00 USD

15. ONESolution Easy Laser Forms Annual Maintenance Fee 1 0.00 USD

16. ONESolution Employee Online Annual Maintenance Fee 1 5,000.16 USD

17. ONESolution Finance Other Annual Maintenance Fee 1 115,758.92 USD Renewal Order #: Q-139760
Start Date: October 1, 2023
End Date: September 30, 2024
Billing Frequency: Yearly
Subsidiary: Superion, LLC
Renewal Order prepared for:

Elena Qualls, Administrative Assistant
City of Rancho Cucamonga
10500 Civic Center Drive
RANCHO CUCAMONGA,, CA 91730
(909) 774-2532

MORE INFORMATION AT CENTRALSQUARE.COM

Renewal Order prepared by:

Ashley Lemerond
[email protected]

18. ONESolution Finance Security Annual Maintenance Fee 1 0.00 USD

19. ONESolution Finance Systems Annual Maintenance Fee 1 0.00 USD

20. ONESolution Fixed Assets Annual Maintenance Fee 1 0.00 USD

21. ONESolution General Ledger Annual Maintenance Fee 1 0.00 USD

22. ONESolution Global Core-IFAS Annual Maintenance Fee 1 911.01 USD

23. ONESolution Grants Management Annual Maintenance Fee 1 0.00 USD

24. ONESolution Hassle Free Support Annual Maintenance Fee 1 0.00 USD

25. ONESolution Human Resources Annual Maintenance Fee 1 0.00 USD

26. ONESolution Job/Project Ledger Annual Maintenance Fee 1 0.00 USD

27. ONESolution NUCLEUS Annual Maintenance Fee 1 0.00 USD

28. ONESolution Payroll Annual Maintenance Fee 1 0.00 USD

29. ONESolution Person/Entity Annual Maintenance Fee 1 0.00 USD

30. ONESolution Personnel Action Forms Annual Maintenance Fee
1 4,563.83 USD

31. ONESolution Position Budgeting Annual Maintenance Fee 1 0.00 USD

32. ONESolution Procurement Cards 1 5,045.04 USD

33. ONESolution Purchasing Annual Maintenance Fee 1 0.00 USD

34. ONESolution Workflow Annual Maintenance Fee 1 0.00 USD

Renewal Order Total: 141,914.90 USD

Billing Information

Fees will be payable within 30 days of invoicing.

Please note that the Unit Price shown above has been rounded to the nearest two decimal places for display purposes only.

The actual price may include as many as five decimal places. For example, an actual price of $21.37656 will be shown as a Unit Price of $21.38. The Total for this quote has been calculated using the actual prices for the product and/or service, rather than the Unit Price displayed above.

Prices shown do not include any taxes that may apply. Any such taxes are the responsibility of the Customer. This is not an invoice.

For customers based in the United States or Canada, any applicable taxes will be determined based on the laws and regulations of the taxing authority(ies) governing the “Ship To” location provided by Customer on the Renewal Order Form.

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AGREEMENT FOR

PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this 30th day of September, 2020, by and between the City of Rancho Cucamonga, a municipal corporation (“City”) and Central Squares, a provider of software solutions and consulting services (“Consultant”).

RECITALS
A. City has heretofore issued its request for proposals to perform the following professional services: OneSolution annual miantenance support, development and implementation of new services (“the Project”).

B. Consultant has submitted a proposal to perform the professional services described in Recital “A”, above, necessary to complete the Project.

C. City desires to engage Consultant to complete the Project in the manner set forth and more fully described herein.

D. Consultant represents that it is fully qualified and licensed under the laws of the State of California to perform the services contemplated by this Agreement in a good and professional manner.

AGREEMENT
NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows:

1. Consultant’s Services.

1.1Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform all technical and professional services described in Recitals “A” and “B” above, including, but not limited to OneSolution annual maintenance support, development and implementation of new services, all as more fully set forth in the Consultant’s proposal, dated September 30, 2020 and entitled “Scope of Work”, attached hereto as Exhibit “A”, and incorporated by reference herein. The nature, scope, and level of the services required to be performed by Consultant are set forth in the Scope of Work and are referred to herein as “the Services.” In the event of any inconsistencies between the Scope of Work and this Agreement, the terms and provisions of this Agreement shall control.

1.2Revisions to Scope of Work. Upon request of the City, the Consultant will promptly meet with City staff to discuss any revisions to the Project ____________
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desired by the City. Consultant agrees that the Scope of Work may be amended based upon said meetings, and, by amendment to this Agreement, the parties may agree on a revision or revisions to Consultant’s compensation based thereon. A revision pursuant to this Section that does not increase the total cost payable to Consultant by more than ten percent (10%) of the total compensation specified in Section 3, may be approved in writing by City’s City Manager without amendment.

1.3Time for Performance. Consultant shall perform all services under this Agreement in a timely, regular basis consistent with industry standards for professional skill and care, and in accordance with any schedule of performance set forth in the Scope of Work, or as set forth in a “Schedule of Performance”, if such Schedule is attached hereto as Exhibit “A”.

1.4Standard of Care. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the services to be provided. In light of such status and experience, Consultant hereby covenants that it shall follow the customary professional standards in performing the Services.

1.5Familiarity with Services. By executing this Agreement, Consultant represents that, to the extent required by the standard of practice, Consultant (a) has investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Consultant represents that Consultant, to the extent required by the standard of practice, has investigated any areas of work, as applicable, and is reasonably acquainted with the conditions therein. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of services, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the City Representative.

2. Term of Agreement. The term of this Agreement shall be three (3) year(s) and shall become effective as of the date of the mutual execution by way of both parties signature (the “Effective Date”). No work shall be conducted; service or goods will not be provided until this Agreement has been executed and requirements have been fulfilled.

Parties to this Agreement shall have the option to renew in 0 year(s) increments to a total of (0) years, unless sooner terminated as provided in Section 14 herein. Options to renew are contingent upon the City Manager’s approval, subject to pricing review, and in accordance to all Terms and Conditions stated herein unless otherwise provided in writing by the City.

3. Compensation.
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3.1Compensation. City shall compensate Consultant as set forth in Exhibit A, provided, however, that full, total and complete amount payable to Consultant shall not exceed $425,785.00 (Four hundred and Twenty-five Thousand and Seven Hundred and Eighty-five Dollars), including all out of pocket expenses, unless additional compensation is approved by the City Manager or City Council. City shall not withhold any federal, state or other taxes, or other deductions. However, City shall withhold not more than ten percent (10%) of any invoice amount pending receipt of any deliverables reflected in such invoice. Under no circumstance shall Consultant be entitled to compensation for services not yet satisfactorily performed.

The parties further agree that compensation may be adjusted in accordance with Section 1.2 to reflect subsequent changes to the Scope of Services. City shall compensate Consultant for any authorized extra services as set forth in Exhibit A.

4. Method of Payment.

4.1Invoices. Consultant shall submit to City monthly invoices for the Services performed pursuant to this Agreement. The invoices shall describe in detail the Services rendered during the period and shall separately describe any authorized extra services. Any invoice claiming compensation for extra services shall include appropriate documentation of prior authorization of such services. All invoices shall be remitted to the City of Rancho Cucamonga, California.

4.2City shall review such invoices and notify Consultant in writing within ten (10) business days of any disputed amounts.

4.3City shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice up to the not-to-exceed amounts set forth in Section 3.

4.4All records, invoices, time cards, cost control sheets and other records maintained by Consultant relating to services hereunder shall be available for review and audit by the City.

5. Representatives.

5.1City Representative. For the purposes of this Agreement, the contract administrator and City’s representative shall be Darryl Polk, CIO/Director of Innovation and Technology, or such other person as designated in writing by the City (“City Representative”). It shall be Consultant’s responsibility to assure that the City Representative is kept informed of the progress of the performance of the services, and Consultant shall refer any decisions that must be made by City to the City Representative.

Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative.
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5.2Consultant Representative. For the purposes of this Agreement, P.

Newman, Controller is hereby designated as the principal and representative of Consultant authorized to act in its behalf with respect to the services specified herein and make all decisions in connection therewith (“Consultant’s Representative”). It is expressly understood that the experience, knowledge, capability and reputation of the Consultant’s Representative were a substantial inducement for City to enter into this Agreement. Therefore, the Consultant’s Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Consultant may not change the Responsible Principal without the prior written approval of City.

6. Consultant’s Personnel.

6.1All Services shall be performed by Consultant or under Consultant’s direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City business license as required by the City’s Municipal Code.

6.2Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the standard of care set forth in Section 1.4.

6.3Consultant shall be responsible for payment of all employees’ and subcontractors’ wages and benefits, and shall comply with all requirements pertaining to employer’s liability, workers’ compensation, unemployment insurance, and Social Security. By its execution of this Agreement, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

6.4Consultant shall indemnify, defend and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s violations of personnel practices and/or any violation of the California Labor Code. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 6.

7. Ownership of Work Product.

7.1Ownership. All documents, ideas, concepts, electronic files, drawings, photographs and any and all other writings, including drafts thereof, prepared, created or provided by Consultant in the course of performing the Services, including any and all intellectual and proprietary rights arising from the creation of the same ____________
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(collectively, “Work Product”), are considered to be “works made for hire” for the benefit of the City. Upon payment being made, and provided Consultant is not in breach of this Agreement, all Work Product shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by Consultant under this Agreement shall, upon request, be made available to City. None of the Work Product shall be the subject of any common law or statutory copyright or copyright application by Consultant. In the event of the return of any of the Work Product to Consultant or its representative, Consultant shall be responsible for its safe return to City. Under no circumstances shall Consultant fail to deliver any draft or final designs, plans, drawings, reports or specifications to City upon written demand by City for their delivery, notwithstanding any disputes between Consultant and City concerning payment, performance of the contract, or otherwise. This covenant shall survive the termination of this Agreement. City’s reuse of the Work Product for any purpose other than the Project, shall be at City’s sole risk.

7.2. Assignment of Intellectual Property Interests: Upon execution of this Agreement and to the extent not otherwise conveyed to City by Section 7.1, above, the Consultant shall be deemed to grant and assign to City, and shall require all of its subcontractors to assign to City, all ownership rights, and all common law and statutory copyrights, trademarks, and other intellectual and proprietary property rights relating to the Work Product and the Project itself, and Consultant shall disclaim and retain no rights whatsoever as to any of the Work Product, to the maximum extent permitted by law.

City shall be entitled to utilize the Work Product for any and all purposes, including but not limited to constructing, using, maintaining, altering, adding to, restoring, rebuilding and publicizing the Project or any aspect of the Project.

Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, software, equipment, devices or processes used or incorporated in the Services and materials produced under this Agreement. In the event City’s use of any of the Work Product is held to constitute an infringement and any use thereof is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using the Work Product by suspension of any injunction or by procuring a ____________
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license or licenses for City; or (b) modify the Work Product so that it becomes non- infringing. This covenant shall survive the termination of this Agreement.

8. Status as Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City. Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and to defend, indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement.

Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees.

9. Confidentiality. Consultant may have access to financial, accounting, statistical, and personnel data of individuals and City employees. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are confidential and shall not be disclosed by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the termination of this Agreement. Consultant’s covenant under this Section shall survive the termination of this Agreement. This provision shall not apply to information in whatever form that is in the public domain, nor shall it restrict the Consultant from giving notices required by law or complying with an order to provide information or data when such an order is issued by a court, administrative agency or other legitimate authority, or if disclosure is otherwise permitted by law and reasonably necessary for the Consultant to defend itself from any legal action or claim.

10. Conflict of Interest.

10.1Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.

Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant “financially interested” (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.

10.2Consultant further represents that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, ____________
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to solicit or obtain this Agreement. Consultant has not paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.

10.3Consultant has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited “conflict of interest” under applicable laws as described in subsection 10.1.

11. Indemnification.

11.1Professional Services. In the connection with its professional services, the Consultant shall defend, indemnify, and hold the City, and its elected officials, officers, employees, servants, volunteers, and agents serving as independent contractors in the role of City officials, (collectively, “Indemnitees”), free and harmless with respect to any and all damages, liabilities, losses, reasonable defense costs or expenses (collectively, “Claims”), including but not limited to liability for death or injury to any person and injury to any property, to the extent the same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant or any of its officers, employees, subcontractors, consultants, or agents in the performance of its professional services under this Agreement. Consultant shall pay all reasonable defense costs and expenses, including actual attorney’s fees and experts’ costs incurred in connection with such defense.

11.2Other Indemnities. In connection with all Claims not covered by Section 11.1, and to the maximum extent permitted by law, the Consultant shall defend, hold harmless and indemnify the Indemnitees with respect to any and all Claims including but not limited to Claims relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the acts, omissions, activities or operations of Consultant or any of its officers, employees, subcontractors, subconsultants, or agents in the performance of this Agreement. Consultant shall defend Indemnitees in any action or actions filed in connection with any such Claims with counsel of City’s choice, and shall pay all costs and expenses, including actual attorney’s fees and experts’ costs incurred in connection with such defense. The indemnification obligation herein shall not in any way be limited by the insurance obligations contained in this Agreement provided, however, that the Contractor shall have no obligation to indemnify for Claims arising out of the sole negligence or willful misconduct of any of the Indemnitees. ____________
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11.3Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.

11.4Waiver of Right of Subrogation. Except as otherwise expressly provided in this Agreement, Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Consultant.

11.5Survival. The provisions of this Section 11 shall survive the termination of the Agreement and are in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against Consultant shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision.

12. Insurance.

12.1Liability Insurance. Consultant shall procure and maintain in full force and effect for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Consultant, and/or its agents, representatives, employees and subcontractors.

12.2Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as:
(1) Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
(2) Insurance Services Office form number CA 0001 (Ed.
1/87) covering Automobile Liability, code 1 (any auto). (3) Worker’s Compensation insurance as required by the State of California, and Employer’s Liability Insurance.
(4) Professional Liability insurance in a form approved by the City, having, at City’s option, an extended reporting period of not less than three (3) years; or professional liability insurance shall be maintained for a period of three (3) years after completion of the Services which shall, during the entire three (3) year period, provide protection against claims of professional negligence arising out of
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Consultant’s performance of the Services and otherwise
complying with all applicable provisions of this Section 12.

The policy shall be endorsed to include contractual liability to the extent insurable.

12.3Minimum Limits of Insurance. Consultant shall maintain limits no less than:
(1) Commercial General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage.

Commercial General Liability Insurance with a general
aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit.
(2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage.
(3) Employer’s Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease and Workers’
Compensation Insurance in the amount required by law.
(4) Professional Liability: $1,000,000 per claim/aggregate. (5) The Insurance obligations under this agreement shall be the greater of (i) the Insurance coverages and limits carried by the Contractor; or (ii) the minimum insurance requirements shown in this Agreement. Any insurance proceeds in
excess of the specified limits and coverage required which are applicable to a given loss, shall be available to the City.

No representation is made that the minimum insurance
requirements of this Agreement are sufficient to cover the obligations of the Contractor under this Agreement.

12.4Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City and shall not reduce the limits of coverage. City reserves the right to obtain a full certified copy of any required insurance policy and endorsements.

12.5Other Insurance Provisions.
(1) The commercial general liability and automobile liability policies are to contain the following provisions on a
separate additionally insured endorsement naming the City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of ____________
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City officials as additional insureds as respects: liability arising out of activities performed by or on behalf of
Consultant; products and completed operations of
Consultant; premises owned, occupied or used by
Consultant; and/or automobiles owned, leased, hired or
borrowed by Consultant. The coverage shall contain no
limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials which are not also limitations applicable to the named insured.
(2) For any claims related to this Agreement, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated
volunteers and agents serving as independent contractors in the role of City or officials. Any insurance or self-
insurance maintained by City, its officers, officials,
employees, designated volunteers or agents serving as
independent contractors in the role of City officials shall be excess of Consultant’s insurance and shall not contribute with it.
(3) Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer’s liability. (4) Contractor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Contractor shall forthwith obtain and submit proof of substitute insurance. Should Contractor fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at Contractor’s sole cost and expense.
(5) Each insurance policy, required by this clause shall expressly waive the insurer’s right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials.
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(6) Each policy shall be issued by an insurance company approved in writing by City, which is admitted and licensed to do business in the State of California and which is rated A:VII or better according to the most recent A.M. Best Co.

Rating Guide.
(7) Each policy shall specify that any failure to comply with reporting or other provisions of the required policy, including breaches of warranty, shall not affect the coverage required to be provided.
(8) Each policy shall specify that any and all costs of adjusting and/or defending any claim against any insured, including court costs and attorneys' fees, shall be paid in addition to and shall not deplete any policy limits.
(9) Contractor shall provide any and all other required insurance, endorsements, or exclusions as required by the City in any request for proposals applicable to this Agreement.

All endorsements or policies shall be received and approved by the City before Consultant commences performance. If performance of this Agreement shall extend beyond one year, Consultant shall provide City with the required policies or endorsements evidencing renewal of the required policies of insurance prior to the expiration of any required policies of insurance.

12.7Contractor agrees to include in all contracts with all subcontractors performing work pursuant to this Agreement, the same requirements and provisions of this Agreement including the indemnity and insurance requirements to the extent they apply to the scope of any such subcontractor’s work. Contractor shall require its subcontractors to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City pursuant to this Agreement, and to require each of its subcontractors to include these same provisions in its contract with any sub- subcontractor.

13. Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation that City might require. City shall compensate Consultant for any litigation support services in an amount to be agreed upon by the parties.
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14. Termination. City shall have the right to terminate this Agreement at any time for any or no reason on not less than ten (10) days prior written notice to Consultant. In the event City exercises its right to terminate this Agreement, City shall pay Consultant for any services satisfactorily rendered prior to the effective date of the termination, provided Consultant is not then in breach of this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation. City may terminate for cause following a default remaining uncured more than five (5) business days after service of a notice to cure on the breaching party.

Consultant may terminate this Agreement for cause upon giving the City ten (10) business days prior written notice for any of the following: (1) uncured breach by the City of any material term of this Agreement, including but not limited to Payment Terms; (2) material changes in the conditions under which this Agreement was entered into, coupled with the failure of the parties to reach accord on the fees and charges for any Additional Services required because of such changes.

15. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Consultant’s and City’s regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses set forth in this Section, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this Section.

All notices shall be addressed as follows:

If to City: Darryl Polk, CIO/Director
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
If to Consultant: P. Newman, Controller
Central Squres
12709 Collection Center Drive
Chicago, Ill 60693

16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
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17. Assignment and Subcontracting. Consultant shall not assign or transfer any interest in this Agreement or subcontract the performance of any of Consultant’s obligations hereunder without City’s prior written consent. Except as provided herein, any attempt by Consultant to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect. 18 Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Consultant performs the Services. CONSULTANT is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, CONSULTANT agrees to fully comply with such Prevailing Wage Laws. The applicable prevailing wage rate determinations can be found at http://www.dir.ca.gov/dlsr/DPreWageDetermination.htm CONSULTANT shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the Project site. CONSULTANT shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

19. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.

20. Attorney’s Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney’s fees and costs of experts.

21. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail.
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22. Applicable Law and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. Venue for any action relating to this Agreement shall be in the San Bernardino County Superior Court.

23. Construction. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement.

24. Entire Agreement. This Agreement consists of this document, and any other documents, attachments and/or exhibits referenced herein and attached hereto, each of which is incorporated herein by such reference, and the same represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement.

IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.

Consultant Name: IntelesysOne
By: ______________________________
Name Date
______________________________
Title
City of Rancho Cucamonga

By:________________________________
Name Date _________________________________
Title
By: ______________________________
Name Date

______________________________
Title
City of Rancho Cucamonga

By:________________________________
Name Date _________________________________
Title
(two signatures required if corporation)

____________
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EXHIBIT A

SCOPE OF SERVICES

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EXHIBIT B

SCHEDULE OF PERFORMANCE

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Vendor Initials
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Attachment A – Sample Waiver of Subrogation
(Sample Only – Not all forms will look identical to this Sample) The City of Rancho Cucamonga, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City or officials.
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Attachment B – Sample Additional Insured for On-going Projects The City of Rancho Cucamonga, its
officers, officials, employees, designated
volunteers and agents serving as
independent contractors in the role of City
or officials.

DATE:September 6, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Shelly Munson, Director of Innovation & Technology Lilyan Villarreal, Deputy Director of Innovation & Technology Tanya Trieu-Bui, Management Analyst I
SUBJECT: Consideration to Approve a Three-Year Support and Maintenance Agreement with HLP Inc. in the Amount of $107,530. (CITY) RECOMMENDATION:

Staff recommends the City Council approve a renewal of the software support and maintenance agreement with HLP, Inc. in the amount of $35,844 annually for a three-year total of $102,405 and a 5% contingency in the amount of $5,120 for a total of $107,530, ending in July 2026.

BACKGROUND:

HLP, Inc. provides the licensing, support, product updates, and maintenance for the Chameleon Animal Care software management platform. The Chameleon software is used by the Animal Care and Services Department to manage data on all animal related interactions from the field and at the shelter. The Animal Center staff have been using Chameleon since 2012 and are very familiar with its functionality and capabilities. They have no plans to change since it meets their current and anticipated needs.

ANALYSIS:

For continuity of operations in Animal Care and Services, the requested software support and maintenance agreement extends the required support agreements for three years with HLP, Inc. to continue to utilize this software management platform. HLP Inc. is the only vendor to license and support the Chameleon software. Staff recommends a single-source award be made to HLP, Inc. for application licensing, software support, and maintenance.

FISCAL IMPACT:

Funding for maintenance and support is included in the current Fiscal Year 2023/24 Adopted Budget and therefore no additional funds will be required.

Fiscal Year 2023/24 Adopted Budget:

DoIT General Fund 1001209-5300 Contract Services

$35,850

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2 0
0 1
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

This item addresses the City Council’s Core Values of intentionally embracing and anticipating our future and promoting and enhancing a safe and healthy community for all.

ATTACHMENTS:

Attachment 1 – Chameleon 2023 Agreement
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AGR

EEMENT FOR

PROFESSIONAL SERVICES
THI
S AGREEMENT is made and entered into this 6th day of
September, 2023, by and between the City of Rancho Cucamonga, a municipal corporation (“City”) and HLP, Inc, a Software Company (“Consultant”).

RECITALS
A. City has heretofore issued its request for proposals to perform the following professional services: Chameleon Software annual support and ma intenance (“the Project”).

B. Consultant has submitted a proposal to perform the professi onal services described in Recital “A”, above, necessary to complete the Project.

C. City desires to engage Consultant to complete the Project in the manner set forth and more fully described herein.

D. Consultant represents that it is fully qualified and licensed under the laws of the State of California to perform the services contemplated by this Agreement in a good and professional manner.

AGREEMENT
NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows:

1. Consultant’s Services.

1.1 Scope and Level of Services . Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform all technical and professional services described in Recitals “A” and “B” above, including, but not limited to annual support and maintenance services, all as more fully set forth in the Consultant’s proposal, dated July 31, 2023 and entitled “Chameleon Software Products Price Quote ”, attached hereto as Exhibit “A”, and incorporated by reference herein. The nature, scope, and level of the services required to be performed by Consultant are set forth in the Scope of Work and are referred to herein as “the Services.” In the event of any inconsistencies between the Scope of Work and this Agreement, the terms and provisions of this Agreement shall control.

1.2 Revisions to Scope of Work. Upon request of the City, the Consultant will promptly meet with City staff to discuss any revisions to the Project desired by the City. Consultant agrees that the Scope of Work may be amended based upon said meetings, and, by amendment to this Agreement, the parties may agree on a revision or revisions to Consultant’s compensation based thereon. A revision pursuant to this Section City of Rancho Cucamonga

CONTRACT NUMBER
2023-122
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that does not increase the total cost payable to Consultant by more than ten percent (10%) of the total compensation specified in Section 3, may be approved in writing by City’s City Manager without amendment.

1.3 Time for Performance. Consultant shall perform all services under this Agreement in a timely, regular basis consistent with industry standards for professional skill and care, and in accordance with any schedule of performance set forth in the Scope of Work, or as set forth in a “Schedule of Performance”, if such Schedule is attached hereto.

1.4 Standard of Care. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the services to be provided. In light of such status and experience, Consultant hereby covenants that it sha ll follow the customary professional standards in performing the Services.

Consultant represents that Consultant, to the extent required by the standard of practice, has investigated any areas of work, as applicable, and is reasonabl y acquainted with the conditions therein. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of services, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the City Representative.

2. Term of Agreement. The term of this Agreement shall be three (3) years and shall become effective as of the date of the mutual execution by way of both parties signature (the “Effective Date”). No work shall be conducted; service or goods will not be provided until this Agreement has bee n executed and above requirements have been fulfilled.

3. Compensation.

3.1 Compensation. City shall compensate Consultant as set forth in Exhibit A, provided, however, that full, total and complete amount payable to Consultant shall not exceed $107,530 (One hundred seven thousand five hundred thirty dollars), over the three-year period, paid annually, including all out of pocket expenses, unless additional compensation is approved by the C ity Council. City shall not withhold any federal, state or other taxes, or other deductions. However, City shall withhold not more than ten percent (10%) of any invoice amount pending receipt of any deliverables reflected in such invoice.

Under no circumstance shall Consultant be entitled to compensation for services not yet satisfactorily performed.

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The parties further agree that compensation may be adjusted in accordance with Section 1.2 to reflect subsequent changes to the Scope of Services. City shal l compensate Consultant for any authorized extra services as set forth in Exhibit A.

4. Method of Payment.

4.1 Invoices. Consultant shall submit to City monthly invoices for the Services performed pursuant to this Agreement. The invoices shall describe in detail the Services rendered during the period and shall separately describe any authorized extra services. Any invoice claiming compensation for extra services shall include appropriate documentation of prior authorization of such services. All invoices shall be remitted to the City of Rancho Cucamonga, California.

4.2 City shall review such invoices and notify Consultant in writing within ten (10) business days of any disputed amounts.

4.3 City shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice up to the not-to-exceed amounts set forth in Section 3.

4.4 All records, invoices, time cards, cost control sheets and other records maintained by Consultant relating to service s hereunder shall be av ailable for review and audit by the City.

5. Representatives.

5.1 City Representative . For the purposes of this Agreement, the contract administrator and City’s representative shall be Shelly Munson, or such other person as designated in writing by the City (“City Representative”). It shall be Consultant’s responsibility to assure that the City Representative is kept informed of the progress of the performance of the services, and Consultant shall refer any decisions that must be made by City to the City Representative. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative.

5.2 Consultant Representative . For the purposes of this Agreement, Kristin Schiechl is hereby designated as t he principal and representative of Consultant authorized to act in its behalf with respect to the services specified herein and m ake all decisions in connection therewith (“Consultant’s Representative”). It is expressly understood that the experience, knowledge, capability and reputation of the Consultant’s Representative were a substantial inducement for City to enter into this Ag reement.

Therefore, the Consultant’s Representative shall be responsible during the term of this Agreement for directing all a ctivities of Consultant and devoting sufficient time to personally supervise the services hereunder. Consultant may not change t he Responsible Principal without the prior written approval of City.

6. Consultant’s Personnel.

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6.1 All Services shall be performed by Consultant or under Consultant’s direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City business license as required by the City’s Municipal Code.

6.2 Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the standard of care set forth in Section 1.4.

6.3 Consultant shall be responsible for payment of all employees’ and subcontractors’ wages and benefits, and shall comply with all requirements pertai ning to employer’s liability, workers’ compensation, unemployment insurance, and Social Security. By it s execution of this Agr eement,
Consultant certifies that it is aware of the
provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in accordance with the provisi ons of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

6.4 Consultant shall indemnify, defend and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city or agency officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s violations of personnel practices and/or any violation of the California Labor Code. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to prom ptly pay to City any reimburseme nt or indemnification arising under this Section 6.

7. Ownership of Work Product.

Upon payment being made, and provided Consultant is not in breach of this Agreement, all Work Product shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by Consultant under this Agreement shall, upon request, be made available to City. None of the Work Product shall be the subject of any common law or statutory copyright or copyright application by Consultant. In the event of the return of any of the Work Product to Consultant or its representative, Consultant shall be responsible for its safe return to City. Under no circumstances shall Consultant fail to deliver any draft or final designs, plans, drawings, reports or specifications to City upon written demand by City for their delivery, notwithstanding any disputes betwe en Consultant and City concerning payment, performance of the contract, or otherwise. This PSA with Professional Liability Insurance (Non-Design) Page 5 Last Revised: 11/12/2020
covenant shall survive the termination of this Agreement. City’s reuse of the Work Product for any purpose other than the Project, shall be at City’s sole risk.

7.3 Title to Intellectual Property. Consult ant warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the Servi ces and the production of the Work Product and/or materials produced under this Agreement, and that City has full legal title to and the right to reproduce any of the Work Product. Consultant shall defend, indemnify and hol d City, a nd its elected official s, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city officials, harmless from any loss, claim or liability in any way related to a claim that C ity’s use is violating federal, state or local laws, or any contractual provisions, relating to trade names, licenses, franchises, patents or other means of protecting intellectual property rights and/or interests in products or inventions. Consultant sha ll bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, software, equipment, devices or processes used or incorporated in the Services and materials produced under this Agreement. In the event City’s use of any of the Work Product is held to constitute an infringement and any use thereof is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using the Work Product by suspension of any injunction or by procuring a license or licenses for City; o r (b) modify the Work Product so that it becomes non-infringing. This covenant shall survive the termination of this Agreement.

Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City. Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and to defend, indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by thi s Agreement. Consultant shall f ully PSA with Professional Liability Insurance (Non-Design) Page 6 Last Revised: 11/12/2020
comply with the workers’ compensation law regarding Consultant and Consultant’s employees.

9. Confidentiality. Consultant may have access to financial, accounting, statistical, and personnel data of individuals and City employees. Consultant cove nants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are confidential and shall not be disclosed by Consultant without prior writt en authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the terminati on of this Agreement. Consultant’s covenant under this section shall survive the termination of this Ag reement. This provision shall not apply to information in whatever form that is in the public domain, nor shall it restrict the Consultant from giving notices required by law or complying with an order to provide information or data when such an o rder is i ssued by a court, administrative agency or other legitimate authority, or if disclosure is otherwise permitted by law and reasonably necessary for the Consultant to defend itself from any legal action or claim.

10. Conflict of Interest.

10.1 Consultant covenants that it pres ently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.

Consultant shall not accept any employm ent or representation during the term of this Agreement which is or may likely make Consultant “financially interested” (as provi ded in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.

10.2 Consultant further represents that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Consultant has not paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warra nty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.

10.3 Consultant has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited “c onflict of interest” under appli cable laws as described in subsection 10.1.

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11. Indemnification.

11.1 Professional Services. In connection with its professional services, the Consultant shall defend, hold harmless and indemnify City, and its elected of ficials, officers, employees, servants, volunteers, and agents serving as independent contractors in the role of city or agency officials, (collectively, “Indemnitees”), with respect to any and all damages, liabilities , losses, reasonable defense costs or expenses (collectively, “Claims”), including but not limited to liability for death or injury to any person and injury to any property, to the extent the same out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant or any of its officers, em ployees, subcontractors, consultants, or agents in the performance of its professional services under this Agreement. Consultant shall reimburse all reasonable defense costs and expense s, including actual attorney’s fees an d experts ’ costs incurred in connection with such defense.

11.2 Other Indemnities. In connection with all Claims not covered by Section 11.1, the Consultant s hall defend, hold harmless and indemnify the Indemnitees with respect to any and all Claims inc luding but not limited to Claims relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the non-professional acts, omissions, activities or operations of Cons ultant or any of its officers, employe es, subco ntractors, consultants, or agents in the performance of this Agreement. Consultant shall defend Indemnitees in any action or actions filed in connection with any such Claims with counsel of City’s choice, and shall pay all costs and expenses, including actual attorney’s fees an d experts’ costs incurred in connection with such defense.

11.3 Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Consultant because of the acceptance by City, or the deposit wi th City, of any insurance policy or certificate required pursuant to this Agreement.

11.4 Waiver of Right of Subrogation. Except as otherwise expressly provided in this Agreement, Consultant, on behalf of its elf and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Consultant.

11.5 Survival. The provisions of this Section 11 shall survive the termination of the Agreement and are in addition to any other rights or remedies whic h Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against Consultant shall be conclusive in favor of the Indemnitee’s right t o recover under this indemnity provision.

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12. Insurance.

12.1 Liability Insurance. Consultant shall procure and maintain in f ull force and effect for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Consult ant, and/or its agents, represen tatives, employees and subcontractors.

(5) Professional Liability insurance in a form approved by the City, having an extended reporting period of not less than three (3) years; or Professional Liability insurance shall be maintained for a period of three (3) years after completion of the Services which shall, during the entire three (3) year period, provide protection against claims of professional negligence arising out of Consultant ’s performance of th e Services and otherwise complying with all applicable
provisions of this Section 13. Either policy shall be endorsed to include contractual liability to the extent insurable.

12.3 Minimum Limits of Insurance. Consultant shall maintain limits no less than:
(1) Commercial General Liability: $2,000,000 per oc currence for bodily injury, personal i njury and prop erty damage.

Commercial General Liability Insurance with a general
aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit.

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(2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage.
(3) Employer’s Liability: $1,000,000 per accident and in the aggregate for bodi ly injury or disease and Workers’
Compensation Insurance in the amount required by law.
(4) Technology Professional Liability Errors & Omissions policy to include Cyber coverage unless Cyber coverage is in the Crime policy with a limit of no less than $1,000,000 per occurrence.
(5) Professional Liability: $1,000,000 per claim/aggregate.

12.4 Deductibles and Self-Insured Retentions. Any deductibles or self - insured retentions must be declared to and approved by the City.

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(3) Consultant’s insurance shall apply separately to each insured against whom claim is made or s uit is brought, except with respect to the limits of the insurer’s liability.
(4) Each insurance policy required by this clause s hall be endorsed to state that coverage shall not be canceled except after 30 days prior written notice by first class mail has been given to City (ten (10) days prior written notice for non- payment of premium). Consultant shall provide thirty (30) days wr itten notice to City prior to implementation of a reduction of limits or material change of insurance coverage as specified herein.

(5) Each insur ance policy, required by this clause s hall expressly waive the insurer’s right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents s erving as independent c ontractors in the role of city or agency officials.
(6) Be issued by an insurance company approved in writing by City, which i s admitted and licensed to do business in the State of California and which is rated A:VII o r better according to the most rec ent A.M. Best Co. Rati ng
Guide.

(7) Specify that any failu re to comply with reporting or other provisions of the required policy, including breaches of warranty, shall not affect the coverage required to be provided.

(8) Specify that any and all costs of adjusting and/or de fending any claim against any insured, including court costs and attorneys' fees, shall be paid in addition to and shall not deplete any policy limits.

(9) Other required insurance, endorsements, or exclusions as required by the City in any request for proposals applicable to this Agreement.

12.6 Evidence of coverage. Prior to commencing performance under this Agreement, the Consultant shall furnish the City with certificates and original endorsements, or copies of each required policy, effecting and ev idencing the insurance coverage requir ed by this Agreement. The endorsements shall be signed by a person authorized by the insurer(s) to bind coverage on its behalf. All endorsements or policies shall be received and approved by the City before Consultant commences performance. If performance of this Agreement shall extend beyond one year, Consultant shall provide City PSA with Professional Liability Insurance (Non-Design) Page 11 Last Revised: 11/12/2020
with the required policies or endorsements evidencing renewal of the required policies of insurance prior to the expiration of any required policies of insurance.

City shall compensat e Consultant for any litigation support services in an amount to be agreed upon by the parties.

14. Termination. City shall have the right to terminate this Agreement at any time for any or no re ason on not less than ten (10) days prior written notice to Consultant. In the event City exercises its right to terminate this Agreement, City shall pay Consultant for any services satisfactorily rendered prior to the e ffective dat e of the termination, provided Consultant is not then in breach of this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation. City may terminate for cause following a default remaining uncured more than five (5) business days after service of a notice to cure on the breaching party.

Consultant may terminate this Agreement for cause upon giving the City ten (10) business days prior written notice for any of the followi ng: (1) uncured breach by the City of any material term of this Agreement, including but not limited to Payment Terms; (2) material changes in the conditions under which this Agreement was entered into, coupled with the failure of the parties to reach accord on the fees and charges for any Additional Services required because of such changes.

15. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or ove rnight courier service during Consultant’s and City’s regula r business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses set forth in this section, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.

All notices shall be addressed as follows:

If to City:

City of Rancho Cucamonga
Attn: Shelly Munson, DoIT Director/CIO
10500 Civic Center Dr.

Rancho Cucamonga, CA 91730
If to Consultant:

HLP Inc.

Attn: Kristin Schiechl, Director of Operations
9878 W. Belleview Ave. #110
Littleton, CO 80123

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16. Non-Discrimination and Equ al Employment Opportunity. In the performance of this Agreement, Cons ultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, na tional origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientati on. Consultant will take affirmative action to ensure th at subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.

19. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of perform ance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breac h of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.

20. Attorney’s Fees . In the e vent that eith er party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney’s fees and costs of experts.

21. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agr eement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail.

22. Applicable Law and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and co nstrued under the laws of the State of California. Venue for any action relating to this Agreement shall be in the San Bernardino County Superior Court.

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24. Entire Agreement. Thi s Agreement consists of this document , and any other documents, attachments and/or exhibits referenced herein and attached hereto, each of which is incorporated herein by such reference, and the same represents the entire and integrated agreement between C onsultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing sign ed by the parties which expressly refers to this Agreement.

IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.

Consultant Name: HLP, Inc

By: ______________________________
Name Date

______________________________
Title
City of Rancho Cucamonga

By:________________________________
Name Date

_________________________________
Title

By: ______________________________
Name Date

______________________________
Title

City of Rancho Cucamonga

By:________________________________
Name Date

_________________________________
Title
(two signatures required if corporation)

Approval ____ Buyer II, Purchasing
____ Alternate, Risk Management Coordinator

EXHIBIT A

SCOPE OF SERVICES
PSA with Professional Liability Insurance (Non-Design) Page 14 Last Revised: 11/12/2020
Price Quote dated 7/31/23.

PRICE QUOTE
Date
7/31/2023
Estimate #
6439
Name / Address
City of Rancho Cucamonga
Attn: Information Services
10500 Civic Center Dr
Rancho Cucamonga, CA 91730

HLP, INC
Chameleon Software Products
9878 West Belleview Ave. #110
Littleton, CO 80123
Please return your license renewal form as soon as possible.

Phone #
800-459-8376
Fax #
866-844-3924
E-mail
[email protected]
Web Site
www.chameleonbeach.com
Total
Subtotal
Sales Tax (7.75%)
Description TotalQty Rate
Period Covered July 1,2023 - June 30, 2024
Chameleon/CMS Annual Support & Maintenance 24,000.00T1 24,000.00 * Licensed for a 1 single Server, Unlimited Workstations and Unlimited Field Service Unit
Public Access Software Annual Support & Maintenance
ChamCam imaging included with any licensed Chameleon workstation. 0.001 0.00 WebChameleon Software Annual Support & Maintenance - Server 2,880.00T1 2,880.00 WebChameleon Software Annual Support & Maintenance 4,800.00T5 960.00 **This price quote is based on your current license count. Increasing your license count will change the total on this quote. Please contact me if you are changing your license count and need a new quote. Return your license renewal form even if there are no changes to your license count.**
Period Covered July 1,2024 - June 30, 2025
Chameleon/CMS Annual Support & Maintenance 24,000.00T1 24,000.00 * Licensed for a 1 single Server, Unlimited Workstations and Unlimited Field Service Unit
Chameleon Public Access License $9,800 Fee Waived 0.00T1 0.00 ChamCam imaging included with any licensed Chameleon workstation. 0.00T0.00 WebChameleon Software Annual Support & Maintenance - Server 2,880.00T1 2,880.00 WebChameleon Software Annual Support & Maintenance - Concurrent User 4,800.00T5 960.00 Period Covered July 1,2025 - June 30, 2026

Page 1 ends

EXHIBIT A

PRICE QUOTE
Date
7/31/2023
Estimate #
6439
Name / Address
City of Rancho Cucamonga
Attn: Information Services
10500 Civic Center Dr
Rancho Cucamonga, CA 91730

HLP, INC
Chameleon Software Products
9878 West Belleview Ave. #110
Littleton, CO 80123
Please return your license renewal form as soon as possible.

Phone #
800-459-8376
Fax #
866-844-3924
E-mail
[email protected]
Web Site
www.chameleonbeach.com
Total
Subtotal
Sales Tax (7.75%)
Description TotalQty Rate
Chameleon/CMS Annual Support & Maintenance 24,000.00T1 24,000.00 * Licensed for a 1 single Server, Unlimited Workstations and Unlimited Field Service Unit
Chameleon Public Access License $9,800 Fee Waived 0.00T0.00 ChamCam imaging included with any licensed Chameleon workstation. 0.00T1 0.00 WebChameleon Software Annual Support & Maintenance - Server 2,880.00T1 2,880.00 WebChameleon Software Annual Support & Maintenance - Concurrent User 4,800.00T5 960.00

Page 2 ends

$102,405.60
$95,040.00
$7,365.60
DATE:September 6, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Matt Marquez, Director of Planning and Economic Development Flavio Nuñez, Management Analyst II
SUBJECT: Consideration to Approve an Extension of an Agreement for Professional Services with Palmer Consulting for Project Management Services in the Amount of $85,000. (CITY)
RECOMMENDATION:

Staff recommends the City Council approve a one (1) year extension of an Agreement for Professional Services with Palmer Consulting for project management services in the amount of $85,000 and authorize the City Manager or designee to approve future one (1) year extensions as described in the Professional Services Agreement.

BACKGROUND:

On August 16, 2022, the City procured Palmer Consulting Services for strategic management services for the Cucamonga Station/HART District Partnership and Economic Development Marketing Services. Procurement of Palmer Consulting Services was done through a single source transaction. The Principal for Palmer Consulting, Francie Palmer, was the designated Senior Advisor on the Marketing Outreach and Engagement Services for the Cucamonga Station and HART District proposal process for the City. Francie's management over the initial phase of this project along with her institutional knowledge and years of professional experience made her the best candidate for the required consulting services.

ANALYSIS:

Since the approval of the Agreement in August 2022, staff has successfully worked with Palmer Consulting to formalize a partnership of key stakeholders for the development and implementation of a multi-year strategic marketing, communication, community outreach and engagement plan for Cucamonga Station. Additionally, various pieces of the Marketing and Communications Plan have been implemented including the creation of a video and draft collateral materials. The use of Palmer Consulting provides a critical connectivity for two interconnected projects, which creates great benefit to the City for the following reasons:
•Allows for more effective project management and increased accountability of related projects.
•Having a single vendor coordinating marketing strategies and key messages creates greater continuity and integration.

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2 0
2 3
•Creates a cohesive voice, style and feel in the City marketing and communication efforts.

FISCAL IMPACT:

The City’s Fiscal Year 2023/2024 budget allocates funding for project management services in 1001301-5300 (Economic and Community Development, Contract Services). Staff recommends an appropriation for contract services in the amount of $85,000 to account 1001301-5300.

COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

This item addresses the City Council’s Core Values of providing and nurturing a high quality of life for all and intentionally embracing and anticipating the future by ensuring Rancho Cucamonga’s vibrant economy ensures prosperity and opportunities now and in the future. It also addresses the Vision and Goals of the General Plan by establishing Rancho Cucamonga as the cultural and economic hub of the Inland Empire.

ATTACHMENTS:

Attachment 1 – Agreement for Professional Services: Contract No. 2022-117 City of Rancho Cucamonga

CONTRACT NUMBER
AGREEMENT FOR 2402.2.- 117

PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this 1stday of
September, 2022, by and between the City of Rancho Cucamonga, a municipal corporation (" City") and Palmer Consulting, a consulting firm(" Contractor").

RECITALS
A. City hasheretofore issued its requestfor proposalsto perform the following services: Strategic Project Management Services - Cucamonga Station/ Hart District Partnership & Economic Development Maketing Services (" the Project").

B. Contractor has submitted a proposal to perform the services described in Recital " A", above, necessary to complete the Project.

C. City desires to engage Contractor to complete the Project in the manner set forth and more fully described herein.

D. Contractor representsthat it is fully qualified and licensed under the laws of the State of California to perform the services contemplated by this Agreement in a good and professional manner.

AGREEMENT
NOW, THEREFORE, in consideration of performance by the parties of the mutualpromises, covenants, andconditionshereincontained, thepartiesheretoagreeas follows:

1. Contractor' s Services.

1. 1 Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Contractor to perform all services describedin Recitals "A" and `B" above, including, but not limited to SDI CoreStrengths In- Person and Virtual Workshop Facilitation, all as more fully set forth in the Contractor' s proposal, dated August 4, 2022 and entitled " Scope of Work", attached hereto as Exhibit " A", and incorporated by referenceherein. The nature, scope, and level of the servicesrequired to be performed by Contractor are set forth in the Scopeof Work and are referred to herein as " the Services." In theeventof anyinconsistenciesbetween the Scopeof Work and this Agreement, the terms and provisions of this Agreement shall control.

1. 2 Revisions to Scope of Work. Upon request of the City the Contractor will promptly meet with City staff to discuss any revisions to the Project desired by the City. Contractor agreesthat the Scope of Work may be amendedbased upon said meetings, and, by amendment to this Agreement, the parties may agree on a revision or revisions to Contractor' s compensationbasedthereon. A revision pursuant to this Section that does not increase the total cost payable to Contractor by more than ten Ve id r itials
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Attachment 1
percent ( 10%) of the total compensation specified in Section 3, may be approved in writing by City' s Manager without amendment.

1. 3 Time for Performance. Contractor shall perform all servicesunder this Agreement in a timely, regular basis consistent with industry standards for professional skill and care, and in accordancewith any scheduleof performance set forth in the Scope of Work, or as set forth in a " Schedule of Performance", if such Schedule is attached hereto as Exhibit " B".

1. 4 Standard of Care. As a material inducement to City to enter into this Agreement, Contractor hereby represents that it has the experience necessary to undertake the services to be provided. In light of such status and experience, Contractor hereby covenantsthat it shall follow the customary professional standardsin performing the Services.

1. 5 Familiarity with Services. By executing this Agreement, Contractor representsthat, to the extent required by the standardof practice, Contractor a) has investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and ( c) understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Contractor representsthat Contractor, to the extent required by the standard of practice, has investigated any areas of work, as applicable, and is reasonably acquainted with the conditions therein. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of services, Contractor shall immediately inform City of such fact and shall not proceed except at Contractor' s risk until written instructions arereceived from the City Representative.

2. Term of Agreement. The term of this Agreement shall be 1 (one) year(s) and shall become effective as of the date of the mutual execution by way of both parties signature ( the " Effective Date"). No work shall be conducted; service or goods will not be provided until this Agreement has been executed and requirements have been fulfilled.

Parties to this Agreement shall have the option to renew in one ( 1) year increments to a total of 3 ( three) years, unless sooner terminated as provided in Section 14 herein.

Options to renew are contingent upon the City Manager's approval, subject to pricing review, and in accordance to all Terms and Conditions stated herein unless otherwise provided in writing by the City.

3. Compensation.

3. 1 Compensation. City shall compensateContractor as set forth in Exhibit A, provided, however, that full, total and complete amount payable to Contractor shall not exceed $ 85, 000 ( Eighty Five Thousand Dollars), including all out of pocket expenses, unless additional compensation is approved by the City Manager or City Council. City shall not withhold any federal, state or other taxes, or other deductions.

However, City shall withhold not more than ten percent ( 10%) of any invoice amount Ve d r/ titials
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pending receipt of any deliverables reflected in such invoice. Under no circumstance shall Contractor be entitled to compensationfor servicesnot yet satisfactorily performed.

The parties further agreethat compensationmay be adjustedin accordance with Section 1.2 to reflect subsequent changes to the Scope of Services. City shall compensateContractor for any authorized extra servicesas setforth in Exhibit A.

4. Method of Payment.

4. 1 Invoices. Contractor shall submit to City monthly invoices for the Services performed pursuant to this Agreement. The invoices shall describe in detail the Services rendered during the period and shall separately describe any authorized extra services. Any invoice claiming compensation for extra services shall include appropriate documentation of prior authorization of such services. All invoices shall be remitted to the City of Rancho Cucamonga, California.

4. 2 City shall review such invoices and notify Contractor in writing within ten ( 10) business days of any disputed amounts.

4. 3 City shall pay all undisputed portions of the invoice within thirty 30) calendar days after receipt of the invoice' up to the not-to-exceedamounts setforth in Section 3.

4. 4 All records, invoices, time cards, cost control sheets and other records maintained by Contractor relating to services hereunder shall be available for review and audit by the City.

5. Representatives.

5. 1 City Representative. For the purposes of this Agreement, the contract administrator and City representative shall be Elisa Cox, Assistant City Manager, or such other person as designated in writing by the City (" City Representative"). It shall be Contractor' s responsibility to assure that the City Representative is kept informed of the progress of the performance of the services, and Contractor shall refer any decisionsthat must be madeby City to the City Representative.

Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative.

5. 2 Contractor Representative. For the purposes of this Agreement, Francie Palmer is hereby designated as the principal and representative of Contractor authorized to act in its behalf with respect to the services specified herein and make all decisions in connection therewith (" Contractor' s Representative"). It is expressly understood that the experience, knowledge, capability and reputation of the Contractor' s Representative were a substantial inducement for City to enter into this Agreement.

Therefore, the Contractor' s Representative shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. Contractor may not change the Responsible Principal without the prior written approval of City.

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6. Contractor' s Personnel.

6. 1 All Services shall be performed by Contractor or under Contractor' s direct supervision, and all personnel shall possess the qualifications, permits, and licensesrequired by Stateand local law to perform such Services, including, without limitation, a City businesslicense asrequired by the City' s Municipal Code.

6. 2 Contractor shall be solely responsible for the satisfactory work performance of all personnel engagedin performing the Services and compliance with the standard of care set forth in Section 1.4.

6. 3 Contractor shall be responsible for payment of all employees' and subcontractors' wages and benefits, and shall comply with all requirements pertaining to employer' s liability, workers' compensation, unemployment insurance, and Social Security. By its execution of this Agreement, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordancewith theprovisionsof thatCode, andagreesto complywith suchprovisions before commencing the performance of the Services.

6. 4 Contractor shall indemnify, defend and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents servingasindependentcontractorsin therole of City officials, from anyandall liability, damages, claims, costs and expensesof any nature to the extent arising from Contractor's violations of personnel practices and/ or any violation of the California Labor Code. City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor' s failure to promptly pay to City any reimbursement or indemnification arising under this Section 6.

7. Ownership of Work Product.

7. 1 Ownership. All documents, ideas, concepts, electronic files, drawings, photographs and any and all other writings, including drafts thereof, prepared, createdor providedby Contractorin thecourseof performingtheServices, includingany and all intellectual and proprietary rights arising from the creation of the same collectively, " Work Product"), are considered to be " works made for hire" for the benefit of the City. Upon payment being made, and provided Contractor is not in breach of this Agreement, all Work Product shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by Contractor under this Agreement shall, upon request, be made available to City. None of the Work Product shall be the subject of any common law or statutory copyright or copyright application by Contractor. In the event of the return of any of the Work Product to Contractor or its representative, Contractor shall be responsible for its safe return to City. Under no circumstances shall Contractor fail to deliver any draft or final designs, plans, drawings, reports or specifications to City upon written demand by City for their delivery, notwithstanding any disputes between Contractor and City concerning payment, 1vekdr nitials
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performance of the contract, or otherwise. This covenant shall survive the termination of this Agreement. City' s reuseof the Work Product for any purpose other than the Project, shall be at City' s sole risk.

7. 2. Assignment of Intellectual Property Interests: Upon execution of this Agreement and to the extent not otherwise conveyed to City by Section 7.1, above, the Contractor shall be deemed to grant and assign to City , and shall require all of its subcontractors to assign to City , all ownership rights, and all common law and statutory copyrights, trademarks, and other intellectual and proprietary property rights relating to the Work Product and the Project itself, and Contractor shall disclaim and retain no rights whatsoever as to any of the Work Product, to the maximum extent permitted by law.

7. 3 Title to Intellectual Property. Contractor warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or componentas to which any intellectualpropertyright exists, includingcomputersoftware, usedin therenderingof theServicesandtheproductionof theWork Productand/or materialsproducedunderthis Agreement, andthatCity hasfull legal title to and the right to reproduce any of the Work Product. Contractor shall defend, indemnify and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials, harmlessfrom any loss, claim or liability in anyway relatedto a claim that City' s use is violating federal, state or local laws, or any contractual provisions, relating to trade names, licenses, franchises, patents or other means of protecting intellectual property rights and/or interests in products or inventions.

Contractorshallbearall costsarisingfrom theuseof patented, copyrighted, tradesecret or trademarked documents, materials, software, equipment, devices or processesused or incorporated in the Services and materials produced under this Agreement. In the event City' s use of any of the Work Product is held to constitute an infringement and any use thereof is enjoined, Contractor, at its expense, shall: ( a) secure for City. the right to continue using the Work Product by suspension of any injunction or by procuring a license or licenses for City; or ( b) modify the Work Product so that it becomes non- infringing. This covenant shall survive the termination of this Agreement.

8. Status as Independent Contractor. Contractor is, and shall at all times remain as to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor' s employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City. Contractor shall pay all required taxes on amounts paid to Contractor under this Agreement, and to defend, indemnify and hold City harmlessfrom anyandall taxes, assessments, penalties, andinterestassertedagainst City by reason of the independent contractor relationship created by this Agreement.

Y
Y
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Contractor shall fully comply with the workers' compensation law regarding Contractor and Contractor' s employees

9. Confidentiality. Contractor may have access to financial, accounting, statistical, and personnel data of individuals and City employees. Contractor covenants that all data, documents, discussion, or other information developed or received by Contractor or provided for performance of this Agreement are confidential and shall not be disclosed by Contractor without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the termination of this Agreement. Contractor' s covenant under this Section shall survive the termination of this Agreement. This provision shall not apply to information in whatever form that is in the public domain, nor shall it restrict the Contractor from giving notices required by law or complying with an order to provide information or data when such an order is issued by a court, administrative agency or other legitimate authority, or if disclosure is otherwise permitted by law and reasonably necessary for the Contractor to defend itself from any legal action or claim.

10. Conflict of Interest.

10. 1 Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the. Services, or which would conflict in any manner with the performance of the Services. Contractor further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Contractor shall avoid the appearanceof having any interest, which would conflict in any manner with the performance of the Services.

Contractor shall not accept any employment or representation during the term of this Agreement which is or may likely make Contractor " financially interested" ( as provided in California Government Code §§ 1090 and 87100) in any decision made by City on any matter in connection with which Contractor has been retained.

10. 2 Contractor further represents that it has not employed or retained any personor entity, other than a bonafide employee working exclusively for Contractor, to solicit or obtain this Agreement. Contractor has not paid or agreedto pay any person or entity, other than a bona fide employee working exclusively for Contractor, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolutediscretion, to terminate this Agreement without further liability, or to deduct from any sumspayable to Contractor hereunderthe full amount or value of any suchfee, commission, percentageor gift.

10. 3 Contractor has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the businessof Contractor, and that if any such interest comesto the knowledge of Contractor at any time during the term of this Agreement, Contractor shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited " conflict of interest" under applicable laws as described in subsection 10. 1.

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11. Indemnification.

11. 1 To the maximum extent permitted by law, the Contractor shall defend, indemnify and hold the City, and its elected officials, officers, employees, servants, volunteers, and agents serving as independent contractors in the role of City officials, ( collectively, " Indemnitees"), free and harmless with respect to any and all damages, liabilities, losses, reasonable defense costs or expenses ( collectively, " Claims"), includingbut not limited to Claimsrelatingto deathor injury to anypersonandinjury to any property, which arise out of, pertain to, or relate to the acts, omissions, activities or operations of Contractor or any of its officers, employees, subcontractors, Contractors, or agentsin theperformanceof this Agreement. ContractorshalldefendIndemniteesin any action or actions filed in connection with any such Claims with counsel of City' s choice, andshallpay all costsandexpenses, including actualattorney's feesandexperts' costs incurred in connection with such defense. The indemnification obligation herein shall not in any way be limited by the insurance obligations contained in this Agreement provided, however, that theContractorshall haveno obligationto indemnifyfor Claims arising out of the sole negligence or willful misconduct of any of the Indemnitees.

11. 2 Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possessagainst Contractor becauseof the acceptanceby City, or the deposit" with City, of any insurancepolicy or certificate required pursuant to this Agreement.

11. 3 Waiver of Right of Subrogation. Except as otherwise expressly providedin this Agreement, Contractor, on behalfof itself andall partiesclaimingunder or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scopeof their duties, from all claims, lossesand liabilities arising out of or incident to activities or operationsperformed by or on behalf of the Contractor.

11. 4 Survival. The provisions of this Section 11 shall survive the termination of the Agreement and are in addition to any other rights or remedies which Indemniteesmayhaveunderthelaw. Paymentis notrequiredasaconditionprecedentto anIndemnitee'sright to recoverunderthis indemnityprovision, andanentryof judgment against Contractor shall be conclusive in favor of the Indemnitee' s right to recover under this indemnity provision.

12. Insurance.

12. 1 Liability Insurance. Contractor shall procure and maintain in full force and effect for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Contractor, and/or its agents, representatives, employees or subcontractors.

12. 2 Minimum Scopeof Insurance. Unless otherwise approvedby City, coverage shall be at least as broad as:

P2
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1) Insurance Services Office Commercial General Liability coverage ( occurrence form CG 0001).
2) Insurance Services Office form number CA 0001 ( Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3) Worker' s Compensation insurance as required by the State of California, andEmployer' s Liability Insurance.

12. 3 Minimum Limits of Insurance. Contractor shall maintain limits no less than:
1) Commercial General Liability: $ 2,000,000 per occurrence for bodily injury, personal injury and property damage.

Commercial General Liability Insuranceor other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit.
2) Automobile Liability: $ 2,000,000 per accident for bodily injury and property damage.
3) Employer' s Liability: $ 1,000,000 per accident and in the aggregate for bodily injury or disease and Workers'
CompensationInsurancein the amount required by law.
4) The Insurance obligations under this Agreement shall be the greater of ( i) the Insurance coverages and limits carried by the Contractor; or (ii) the minimum Insurancecoverages and limits shown in this Agreement. Any insurance
proceeds in excess of the specified limits and coverage required which are applicable to a given loss, shall be available to the City. No representation is made that the minimum Insurance requirements of this Agreement are
sufficient to cover the obligations of the Contractor under this agreement.

12. 4 Deductibles and Self- Insured Retentions. Any deductibles or self- insured retentions must be declaredto and approved by the City and shall not reduce the limits of coverage. City reserves the right to obtain a full certified copy of any required insurancepolicy and endorsements.

12. 5 Other Insurance Provisions.
1) The commercial general liability and automobile liability policies are to contain the following provisions on a
separateadditionally insured endorsementnaming the City, its officers, officials, employees, designated volunteers and Vend r 1 itials
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agents serving as independent contractors in the role of City officials, as additional insureds as respects: liability arising out of activities performed by or on behalf of
Contractor; products and completed operations of
Contractor; premises owned, occupied or used by
Contractor; and/ or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials which are not also limitations applicable to the named insured.
2) For any claims related to this. Agreement, Contractor' s insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agentsserving asindependent contractors in the role of City officials. Any insurance or self- insurance maintained by City, its officers, officials, employees, designated volunteers or agents serving as independent
contractors in the role of City officials shall be in excess of Contractor' s insurance and shall not contribute with it. 3) Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought,
exceptwith respectto the limits of the insurer's liability. 4) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled except after 30 days prior written notice by first class mail has been given to City ( ten ( 10) days prior written notice for non- payment of premium). Contractor shall provide thirty 30) days written notice to City prior to implementation of a reduction of limits or material change of insurance
coverage as specified herein.
5) Each insurance policy required . by this clause shall expressly waive the insurer' s right of subrogation against City, its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials.
6) Each policy shall be issued by an insurance company approvedin writing by City, which is admitted and licensed to do business in the State of California and which is rated A:VII or better according to the most recent A.M. Best Co.

Rating Guide.
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7) Each policy shall specify that any failure to comply with reporting or other provisions of the required policy,
including breaches of warranty, shall not affect the
coveragerequired to be provided.
8) Each policy shall specify that any and all costs of adjusting and/or defending any claim against any insured, including court costs and attorneys' fees, shall be paid in addition to and shall not depleteany policy limits.
9) Contractor shall provide any and all other insurance, endorsements, or exclusions as required by the City in any request for proposals applicable to this Agreement.

12. 6 Evidence of coverage.Prior to commencing performance under this Agreement, the Contractor shall furnish the City with certificates and original endorsements, or copies of each required policy, effecting and evidencing the insurance coverage required by this Agreement including ( 1) Additional Insured Endorsement( s), 2) Worker' s Compensation waiver of subrogation endorsement, and (3) General liability declarations or endorsementpagelisting all policy endorsements. The endorsementsshall be signed by a person authorized by the insurer( s) to bind coverage on its behalf. All endorsementsor policies shall be received and approved by the City before Contractor commences performance. If performance of this Agreement shall extend beyond one year, Contractor shall provide City with the required policies or endorsementsevidencing renewal of the required policies of insurance prior to the expiration of any required policies of insurance.

12. 7 Contractor agrees to include in all contracts with all subcontractors performing work pursuant to this Agreement, the same requirements and provisions of this Agreement including the indemnity and insurance requirements to the extent they apply to the scope of any such subcontractor' s work. Contractor shall require its subcontractors to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City pursuant to this Agreement, and to require each of its subcontractors to include these same provisions in its contract with any sub- subcontractor.

13. Cooperation. In the event any claim or action is brought against City relating to Contractor' s performance or services rendered under this Agreement, Contractor shall render any reasonable assistance and cooperation that City might require.

City shall compensate Contractor for any litigation support services in an amount to be agreedupon by the parties.

14. Termination. City shall have the right to terminate this Agreement at any time for any or no reason on not less than ten ( 10) days prior written notice to Contractor. In the event City exercisesits right to terminate this Agreement, City shall pay Contractor for any services satisfactorily rendered prior to the effective date of the termination, provided Contractor is not then in breach of this Agreement. Contractor Vendor' I itials
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shallhaveno otherclaim againstCity by reasonof suchtermination, includinganyclaim for compensation. City may terminate for cause following a default remaining uncured morethanfive (5) businessdaysafterserviceof anoticeto cureonthebreachingparty.

Contractor may terminate this Agreement for cause upon giving the City D ten ( 10) business days prior written notice for any of the following: ( 1) uncured breach by the ' City of any material term of this Agreement, including but not limited to Payment Terms; ( 2) material changes in the conditions under which this Agreement was entered into, coupled with the failure of the parties to reach accord on the fees and chargesfor any Additional Services required because of such changes.

15. Notices. Any notices, bills, invoices, or reportsauthorizedor requiredby this Agreement shall be in writing and shall be deemed received on ( a) the day of deliveryif deliveredby handor overnightcourierserviceduringContractor's andCity' s regular business hours; or (b) on the third businessday following deposit in the United Statesmail, postageprepaid, to theaddressessetforthin thisSection, or to suchother addressesas the partiesmay, from time to time, designatein writing pursuantto the provisions of this Section.

All notices shall be addressed as follows:

If to City: Elisa Cox, Assistant City Manager
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
If to Contractor: Francie Palmer, Contractor
Palmer Consulting
3583 Long Drive
Minden, NV 89430

16. Non- Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Contractor shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. Contractor will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.

17. Assignment and Subcontracting. Contractor shall not assign or transfer any interest in this Agreement or subcontract the performance of any of Contractor' s obligations hereunder without City' s prior written consent. Except as provided herein, Vendor 1 itials
PSA without professional liability insurance( contractor) Page 11 Last Revised: 05/ 22/ 14
any attempt by Contractor to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect.

18. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs the Services. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (" Prevailing Wage Laws"), which require the payment of prevailing wage rates and compliance with other requirements on " public works" and " maintenance" projects. If the Services are being performed as part of an applicable " public works" or " maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $ 1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The applicable prevailing wage rate determinations can be found at http:// www. dir. ca. gov/ dlsr/ DPreWageDetermination. htm Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services, available to interested parties upon request, and shall post copies at the Contractor' s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agentsfree and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

19. Non-Waiver of Terms, Rights and Remedies. Waiverby eitherparty of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.

20. Attorney' s Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costsof suit, including reasonableattorney's fees andcostsof experts.

21. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the expressprovisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail.

22. Applicable Law and Venue. The validity, interpretation, and performanceof thisAgreementshallbecontrolledby andconstruedunderthelawsof the State of California. Venue for any action relating to this Agreement shall be in the San Bernardino County Superior Court.

23. Construction. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement Vend
PSA without professional liability insurance( contractor) Page 12 Last Revised: 05/ 22/ 14
shallnotberesolvedby anyrulesof interpretationprovidingfor interpretationagainstthe party who causesthe uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement.

24. Entire Agreement. This Agreementconsistsof this document, andany other documents, attachments and/or exhibits referenced herein and attached hereto, each of which is incorporatedhereinby suchreference, andthesamerepresentstheentireand integrated agreement between Contractor and City. This Agreement supersedesall prior oral or written negotiations, representations or agreements. This Agreement may not be amended, noranyprovisionor breachhereofwaived, exceptin awritingsignedby the parties which expressly refers to this Agreement.

IN WITNESSWHEREOF, theparties, throughtheir respectiveauthorized representatives, have executed this Agreement as of the date first wri;._ en abo • Contractor Name: Palmer Consulting Cit of Rai . amon_,.

By: ir I__ Vi By:
r
A g?/ 20zL
Nam'- Date Date
c6-6\ 4-‘1‘kC: 4 ( Aar( e/
Title Title V
By: igta4 0_ 2_ql '
Name Date
Vt Qru o k
Title
two signatures required if corporation)
PP
Vendor nlials
PSA without professional liability insurance( contractor) Page 13 Last Revised: 05/ 22/ 14

EXHIBIT A

SCOPE OF SERVICES
Activities:

VLd1rtials
PSA without professional liability insurance( contractor) Page 14 Last Revised: 05/ 22/ 14

EXHIBIT B

SCHEDULE FOR PERFORMANCE
IVVeno Initials
PSA without professional liability insurance( contractor) Page 15 Last Revised: 05/ 22/ 14
Attachment A — Sample Waiver of Subrogation
Sarni) le Only — Not all forms will look identical to this Sample)

TRAVELERS J

WORKERS COMPENSATION
AND

EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 00 03 13 ( 00)- 01
POLICY NUMBER.

WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT
We have the right to recover our payments from anyone liable for an Injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. ( This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule.

SCHEDULE
DESIGNATED PERSON:

The City of RanchoCucamonga, its officers, officials, employees, designated volunteers and agentsserving asindependentcontractorsin the role of City or nfficial. c.

DESIGNATED ORGANIZATION:

Vendor Initials
PSA without professional liability' insurance( contractor) Page 16 Last Revised: 05/ 22/ 14
Attachment B — Sample Additional Insured for On-going Projects POLICY NUMBER: COMMERCIAL GENERAL LIABILITY
CG 20 10 07 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSURED — OWNERS, LESSEES OR
CONTRACTORS — SCHEDULED PERSON OR

ORGANIZATION
This endorsement modifies insurance. provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE
Name Of Additional Insured Person( s)
Or Organization( s): Location( s) Of Covered Operations The City of Rancho Cucamonga,
its officers, officials, employees,
designated volunteers and agents
serving as independent contractors
in the role of City or officials.

Information required to complete this Schedule, if not shown above, will be shown in the Declarations.

A. Section II — Who Is An Insured is amended to B. With respect to the insurance afforded to these include as an additional insured the person( s) or additional insureds, the following additional exclu- organization( s) shown in the Schedule, but only sions apply:
with respect to liability for" bodily injury"," property This insurance does not apply to" bodily injury" ordamage" or " personal and advertising injury' property damage" occurring after:
caused, in whole or in part, by:

1. Your acts or omissions; or

1. All work, including materials, parts or equip-
ment furnished in connection with such work,

2. The acts or omissions of those acting on your on the project( other than service, maintenance behalf; or repairs) to be performed by or on behalf of in the performance of your ongoing operations for the additional insured( s) at the location of the the additional insured( s) at the location( s) desig-
covered operations has been completed; or
nated above. 2. That portion of " your work" out of which the injuryor damageariseshas beenputto its in-
tended use by any person or organization other
than another contractor or subcontractor en-
gaged in performing operations for a principal
as a part of the same project.

CG 20 10 07 04 ISO Properties, Inc., 2004 Page 1 of 1
Ve rdr itials
PSA without professional liability insurance( contractor) Page 17 Last Revised: 05/ 22/ 14

DATE:September 6, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Wess Garcia, Acting Library Director
SUBJECT: Consideration of Amendment No. 1 to the Professional Services Agreement with Brodart Co. (Contract No. 2019-168) for Materials Acquisitions Services in an Amount Not to Exceed $450,000. (CITY) RECOMMENDATION:

Staff recommends the City Council authorize Amendment No. 1 to the Professional Services Agreement with Brodart Co. (Contract No. 2019-168) for materials acquisitions services in an amount not to exceed $450,000.

BACKGROUND:

After undergoing a single source procurement process, the City entered into a contract on July 1, 2019, with Brodart Co. to provide full-service materials acquisitions services, including providing books, cataloging, processing, selection ordering lists, curating of specialty collections and more, for the Rancho Cucamonga Public Library.

Brodart currently provides these services to the Rancho Cucamonga Public Library, and the Library orders thousands of titles each year for the Archibald Library, Paul A. Biane Library, 24/7 Library kiosk and Second Story and Beyond® collections.

ANALYSIS:

As a result of inflationary trends since the original 2019 contract executed with Brodart, the cost for books overall has increased. As a result, the cost of materials procured through Brodart has risen, and the cost for processing and cataloging materials is higher in proportion to the materials costs. The costs for cataloging and processing, reinforcement and collection development services are reflected in a revised pricing sheet attached as Exhibit A. The Library has subsequently made increases to its annual materials budget with this vendor to meet these increases.

This amendment adjusts the contract’s original “not to exceed” compensation limit to allow the Library to spend its full Brodart materials acquisition budget.

Contract No. 2019-168 is on file with the City Clerk’s Office.

FISCAL IMPACT:

The cost of the Amendment totals $50,000 for a total contract amount not to exceed $450,000.

Materials acquisition services are to be fully funded through Library Funds: 1290601-5200 and

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1 9
8 9
1290601-5300. Funding to cover costs has been included in the Fiscal Year 2023/2024 annual budget.

TABLE 1 – Contract Cost Breakdown
Amount Not to Exceed
Current Contract $400,000
Amendment No. 1 $50,000
Grand Total $450,000
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

Providing superior library services enhances the overall quality of life for residents in Rancho Cucamonga and supports the City Council Core Value of equitable prosperity for all.

ATTACHMENTS:

Attachment 1 - Amendment No. 1
Attachment 2 – Pricing Sheet
Last Revised: 11/27/2018 Page 1 of 1
AMENDMENT NO. 1
to
Professional Services Agreement (CO #2019-168)
between
Brodart Co. (hereinafter “Consultant”)
and
City of Rancho Cucamonga (hereinafter the “City”)
This Amendment N o. 1 will serve t o amend th e Professional Service s Agreement (hereinafter “Agreement”), CO# 2019-168, to incorporate the following:

Compensation. City shall compensate Contractor as set forth in revised Amendment 1. Total and complete amount payable to Contractor is not to exceed $450,000.

All other Terms and Conditions of the original Agreement CO#2019-168, will remain in full effect.

IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Amendment by way of signature by both parties and on the date indicated below. Please return two (2) original signed copies to the City no late r than August 15, 2023.

The City will process both copies for signature and provide Consultant with one (1) fully executed copy of the Amendment.

Brodart Co.

By: ______________________________
Name Date
______________________________
Title
City of Rancho Cucamonga
By: _________________________________
Name Date _________________________________
Title
By: ______________________________
Name Date
______________________________
Title
By: _________________________________
Name Date _________________________________
Title
(two signatures required if corporation)
ATTACHMENT #1
Pricing for Rancho Cucamonga Public Library
Discounts
Items will be supplied to the Rancho Cucamonga Public Library at publisher’s list prices less the following discounts:

Trade Hardcover Editions 48.0%*
Non-Trade Hardcover & Paperback Editions 10.0%*
Publisher’s Library Editions 23.0%
BrodartBound 23.0%
Single Reinforced Editions (School & Library) 41.0%
Trade & Mass Market Paperbacks 41.0%*
* Hardcover and paperback titles on which Brodart receives minimal or no discount and/or the publisher requires prepayment may be discounted at the non-trade discount or invoiced at publisher’s list price.

Cataloging and Processing
Compleat options:

Z39.50 Access methodology $4.23/item
*Price change effective 7/1/23
Physical Processing for Books
Brodart will complete the physical processing for books as specified by the library. Pricing offered is a bundled price and includes the following:
• Barcode
• Spine label
• Taped Mylar jacket or label protectors when not covered by jacket • Branch labels or system stamps
• Genre label – up to 3 on the spine
• Bibliotheca RFID tag encoded with barcode (Customer supplied) Reinforcement Services
• BrodartGuard $2.00
• BrodartConvert $4.25
Collection Development Services
Collection Builder (Customized Selection Lists)
Collection Builder Custom Selection Lists No Charge FASTips (Standing Orders)
FASTips Profiles No Charge
TIPS Profiles (Profiled Selection Lists)
Silver TIPS No Charge
Diamond TIPS Up to 12 lists, $2,400/yr.

Online TIPS lists
Lists posted to your Bibz account No Charge
Online Tool
Bibz is Brodart’s online collection development and ordering tool.

Unlimited Users No Charge
Shipping
Shipments made via UPS to the branch libraries No Charge ATTACHMENT #2
DATE:September 6, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Jason C. Welday, Director of Engineering Services/City Engineer Fred Lyn, Deputy Director of Engineering Services - Utilities SUBJECT: Consideration of a Power Purchase Agreement with VS HW NAPA A, LLC to Purchase the Renewable Energy and Capacity from the Proposed Solar Photovoltaic Project, Located at 13160 Napa Street, Rancho Cucamonga, California for a Total of 3 Megawatts and Authorizing the City Manager or His Designee to Sign the Power Purchase Agreement, Operating Memorandum and Any Related Documents. (CITY)
RECOMMENDATION:

Staff recommends the City Council consider a Power Purchase Agreement with VS HW NAPA A, LLC to purchase the renewable energy and capacity from the proposed Solar Photovoltaic Project, located at 13160 Napa Street, Rancho Cucamonga, California for a total of 3 megawatts and authorizing the City Manager or his designee to sign the Power Purchase Agreement, Operating Memorandum and any related documents.

BACKGROUND:

On January 5, 2022, the City Council approved Ordinance No. 993, approving Development Agreement DRC2021-00175 between the City of Rancho Cucamonga and Speedway Commerce Center Development, LLC (Developer). As part of the Development Agreement, under Section 11-G, the Developer shall be responsible for installing a solar collector system that covers a percentage of the development project’s total roof area, with such percentage based on the formula outlined in Rancho Cucamonga Municipal Code Section 17.76.020(B), as amended by Ordinance No. 982, which requires in part that the renewable energy system be built to generate an amount of electricity sufficient to meet the following criteria: (a.) annualized building demand based on the approved use; and (b.) annualized demand required to charge fully electric vehicles and trucks, assuming that all vehicles and trucks to the site are fully electric; and (c.) a reasonable rate of efficiency loss over 10 years. The final percentage of required roof area coverage shall be confirmed by the City Engineer. The Rancho Cucamonga Municipal Utility (RCMU) and Developer agree to negotiate and execute a Power Purchase Agreement (PPA) within six (6) months of the effective date, provided that no Certificate of Occupancy shall be issued for the project until the PPA is executed. The onsite renewable energy system shall be metered separately from the metered power usage demand of the project’s two buildings. The PPA will commit the City to purchase all electricity produced by the project at market rate for at least 25 years, which market rate shall be specified in the executed PPA.

RCMU, as a publicly owned electric utility is mandated to own and/or procure eligible renewable energy for compliance with the state’s Renewable Portfolio Standard (RPS), where 60 percent of

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its energy portfolio must be procured from eligible renewable energy resources by 2030 and 100 percent of its electricity would need to come from eligible renewable resources by 2045.

ANALYSIS:

In March 2022, RCMU began having preliminary discussions with the Developer and their solar contractor, Valta Energy, LLC (Valta) to discuss logistics of their project, estimated annualized building demand load with the goal of finalizing and executing a PPA. Negotiations between RCMU, Valta and the Developer continued for more than a year and has concluded with a PPA with the following terms, conditions and pricing:

The proposed PPA will be a Solar Photovoltaic (PV) project (Napa Solar Project) that will be a 3- Megawatt (MW) rooftop generating facility located at 13160 Napa Street in the City of Rancho Cucamonga with a contract term for 25 years. The contract price for energy from the project is $82 per Megawatt hour (MWh), fixed over the life of the contract. The expected commercial operation date of the Solar Project is December 1, 2024.

Some of the benefits associated with the Napa Solar Project include:

Renewable Resource/Proximity to Load:
•The project is located in Rancho Cucamonga and in RCMU's service area. It will interconnect directly to the RCMU’s distribution circuit and will qualify for the California Energy Commission’s (CEC’s) Portfolio Content Category 1 under the state's RPS requirements.
•The renewable generation at the local level removes transmission loss typically experienced in larger out of proximity solar projects, allowing RCMU to capture and use more of the generation.
•The Solar PV generation locally will help offset the forecasted increase in electrical use in the building, which will help meet the City’s greenhouse gas emission reduction targets. •It provides a renewable source dedicated to RCMU, which increases the Utility’s resiliency and ability to meet State mandates for renewable energy.

Portfolio Fit:
•The project size is a good match for RCMU's renewable energy requirements and will fit nicely into RCMU's renewable portfolio, adding an additional 10%-11% of RCMU’s annual renewable energy requirements in 2025.
•Solar PV typically produces energy during the hours when RCMU's peak loads are occurring, so production aligns well with RCMU's load demand.

Viability:
•The solar project developer, Valta is very experienced and credible, with several utility- scale solar projects already completed and operating.
•Solar PV is a proven renewable technology, with minimal development risk and numerous utility scale projects operating worldwide for many years.

Cost:
•The contract price is $82 per MWh fixed each year of the 25-year contract term after the commercial operation date. Though the contract price of $82 per MWh is higher than other larger utility scale (20 MW or higher) Solar PV projects outside of RCMU’s service area (which ranged from $40-$50 per MWh), RCMU cannot take on the additional power of these larger scale projects without additional utility partners, so the sizing and price of the Napa Solar project is appropriate for what RCMU needs at this time.

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RCMU will pay only for the energy that is delivered at the fixed price and no inflator is included in this contract. Since this is a PPA, RCMU will not have ownership in the project and will not incur any capital expenditures.

Some of the risks associated with the Napa Solar Project include:
•The energy output can be variable due to the intermittency of Solar PV, cloud cover and other weather conditions.
•Like all other long-term commitments, the proposed agreement carries financial and compliance risks. The risks are primarily related to the possibility that: (1.) future alternative renewable resources may have a lower price and/or (2.) the Napa Solar Project does not produce the output as expected.
•The Napa Solar Project term is for 25 years. The City Council adopted an Energy Risk Management Policy on April 18, 2012, indicating a maximum term of any supply resource transaction (purchase or sale) should be 10 years, unless specifically approved by the City Council. The longer term will meet RCMU’s long-term portfolio planning objectives, but provides some risk due to a longer term fixed rate for RCMU’s renewable energy needs.

The Napa Solar Project agreement is for energy, capacity and all environmental attributes. The annual contract quantity for RCMU is estimated to be approximately 5,810 MWh of energy in the project's first year of operation. This contract is expected to provide an additional 10%-11% of RCMU's annual renewable energy requirements in 2025, allowing RCMU to continue to meet or exceed the state’s RPS requirement of 50% renewables by the end of 2027.

City staff, RCMU’s outside legal counsel, and the City Attorney have all reviewed and approved the attached PPA between the City and VS HW NAPA A, LLC and indicated no objections to the proposed agreement.

RCMU shall strive to procure adequate and eligible supplies of renewable energy resources to meet the procurement targets and portfolio content categories as set forth in the City’s RPS Procurement Plan (Plan). Consistent with the Plan, approval of the Napa Solar Project will help RCMU achieve regulatory compliance as well as meet RPS goals in a cost-effective manner.

RCMU will continue to look at different business models and renewable PPA rate structures for future solar PV projects in order to maintain equity for all customers.

FISCAL IMPACT:

The approval of the Napa Solar Project’s Power Purchase Agreement with VS HW NAPA A, LLC would result in RCMU paying $82/MWh in solar renewable energy. With a 25 year levelized MWh, this would be approximately $435,000/year
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

The approval of the Power Purchase Agreement will enhance the City’s position as the premier community in our region by expanding the use of renewable energy resources within RCMU’s service area.

ATTACHMENTS:

Attachment 1 - Power Purchase Agreement
Attachment 2 - Operating Memorandum
ATTACHMENT 1
City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 67

September 2023

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

between

CITY OF RANCHO CUCAMONGA
and

VS HW NAPA A, LLC

INDUSTRIAL ZONING DISTRICT

RENEWABLE POWER PURCHASE AGREEMENT

City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 67

September 2023
2 TABLE OF CONTENT

1. DOCUMENTS INCLUDED .............................................................................. 3

2. SELLER’S FACILITY AND COMMERCIAL OPERATION DATE ................. 3

3. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE; BILLING; COLLATERAL REQUIREMENT ................................................... 6

4. GREEN ATTRIBUTES; RESOURCE ADEQUACY BENEFITS; ERR
REQUIREMENTS ..........................................................................................10

5. REPRESENTATION AND WARRANTIES; COVENANTS .............................12

6. GENERAL CONDITIONS ..............................................................................15

7. INDEMNITY...................................................................................................19

8. LIMITATION OF DAMAGES ........................................................................20

9. INSURANCE...................................................................................................20

10. NOTICES ........................................................................................................23

11. FORCE MAJEURE .........................................................................................23

12. EVENTS OF DEFAULT AND TERMINATION ..............................................24

13. GOVERNMENTAL CHARGES ......................................................................27

14. RELEASE OF INFORMATION AND RECORDING CONVERSATION .........28

15. ASSIGNMENT ................................................................................................28

16. GOVERNING LAW ........................................................................................29

17. DISPUTE RESOLUTION ................................................................................29

18. MISCELLANEOUS.........................................................................................30 APPENDIX A – DEFINITIONS ................................................................................................. 33 APPENDIX B – COMMERCIAL OPERATION DATE CONFIRMATION LETTER .................43 APPENDIX C – FORECASTING REQUIREMENTS ................................................................. 44 APPENDIX D – DESCRIPTION OF THE FACILITY ................................................................45 APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA MILESTONES AND EXAMPLE ACTION STEPS ...........................................................................53 APPENDIX F – CONTRACT QUANTITY SCHEDULE ............................................................55 APPENDIX G – NOTICES LIST ...............................................................................................57 APPENDIX H – FORM OF LETTER OF CREDIT ....................................................................60 APPENDIX I – FORM OF CONSENT TO ASSIGNMENT

INDUSTRIAL ZONING DISTRICT

RENEWABLE POWER PURCHASE AGREEMENT

City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 67

September 2023

3 The City of Rancho Cucamonga, acting by and through the Rancho Cucamonga Municipal Utility, a municipal corporation organized and existing under the laws of the State of California (“Buyer” or “RCMU”), and VS HW Napa A, LLC (“Seller”), a Delaware limited liability company, hereby enter into this Power Purchase Agreement (“Agreement”) made and effective as of the Execution Date. Seller and Buyer are sometimes referred to in this Agreement jointly as “Parties” or individually as “Party.” In consideration of the mutual promises and obligations stated in this Agreement and its appendices, the Parties agree as follows:

1. DOCUMENTS INCLUDED
This Agreement includes the following appendices, which are specifically incorporated herein and made a part of this Agreement:

Appendix A Definitions
Appendix B Commercial Operation Date Confirmation Letter Appendix C Forecasting Requirements
Appendix D Description of the Facility
Appendix E Seller’s Milestone Schedule
Appendix F Contract Quantity Schedule
Appendix G Notices List
Appendix H Form of Letter of Credit
Appendix I Form of Consent to Assignment
This Agreement specifically incorporates herein by reference as if appended hereto the following documents (collectively referred to herein as the “Referenced Documents”):

To the extent any provisions of the Interconnection Agreement or Referenced Documents conflict with any other provisions of this Agreement, the other provisions of this Agreement shall control.

2. SELLER’S FACILITY AND COMMERCIAL OPERATION DATE
This Agreement governs Buyer’s purchase of the Product from the electrical generating facility (hereinafter referred to as the “Facility” or “Project”) as described in this Section.

2.1. Facility Location. The Facility is physically located at:

INDUSTRIAL ZONING DISTRICT

RENEWABLE POWER PURCHASE AGREEMENT

City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 67

September 2023

4 that certain portion of the rooftop of the Building (the “Building”) at 13160 Napa Street Rancho Cucamonga, California, 91730, but excluding any other portion of the Building, in each case as more particularly depicted on Appendix D.

2.2. Facility Name. The Facility is named VS HW Napa A, LLC.

2.2.1. The Facility’s renewable resource is solar photovoltaic energy.

2.3. Interconnection Point. The Facility is connected to the Rancho Cucamonga Municipal Utility (RCMU’s) electric system at 480V distribution circuit at a service voltage of 12 kV.

2.4. Delivery Point. The Delivery Point for Energy is the Interconnection Point.

2.5. Facility Description. A description of the Facility, including a summary of its significant components, a drawing showing the general arrangements of the Facility, and a single line diagram
illustrating the interconnection of the
Facility and loads with the Transmission/Distribution Owner’s electric distribution system, is attached and incorporated herein as Appendix D.

2.6. Commercial Operation.

2.6.1. The Facility’s expected Commercial Operation Date is December 1, 2024.

In no event shall issuance of the Certificate of Occupancy for the Building be dependent on, or delayed due to, the timing of Commercial Operation.

2.6.2. Seller shall achieve Commercial Operation no later than the expected Commercial Operation Date specified in Section 2.6.1, which expected Commercial Operation Date may be extended for only the following reasons:

2.6.2.1. The Commercial Operation Date may be extended for up to twelve (12) months. Seller must submit a request for extension of the Commercial Operation Date to RCMU in writing, describing in reasonable detail the cause of the delay, at least thirty (30) days prior to the expected Commercial Operation Date. Any decision to grant such extension will be made at the discretion of RCMU , which shall not be unreasonably withheld, conditioned or delayed.

2.6.2.2. If Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of all required applications and documents, payment of all applicable fees, and completion of all electric system upgrades needed, if any) to have the Project physically interconnected to the Transmission/Distribution Owner’s distribution system, but fails to secure any necessary commitments from the Transmission/Distribution Owner for such interconnection

INDUSTRIAL ZONING DISTRICT

RENEWABLE POWER PURCHASE AGREEMENT

City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 67

September 2023

5 and upgrades due to delays beyond Seller’s reasonable control, then the expected Commercial Operation Date specified in Section 2.6.1 shall be extended for the number of days necessary to physically interconnect the Facility; provided, however, that such delay may not extend the expected Commercial Operation Date specified in Section

2.6.1 for a period of more than twelve (12) months; or

2.6.2.3. If Seller has taken all commercially reasonable actions (including but not limited to Seller’s timely filing of all required applications and documents and payment of all applicable fees, if any) to obtain permits necessary to construct and operate the facility and has taken all commercially reasonable actions to satisfy the conditions of Section 2.6.5.1, 2.6.5.2, 2.6.5.6 and 2.6.5.9, but fails to secure any such permits or satisfy the conditions of Sections 2.6.5.1, 2.6.5.2,

2.6.5.6 and 2.6.5.9 due to delays beyond Seller’s reasonable control, then the expected Commercial Operation Date specified in Section

2.6.1 shall be extended for the number of days necessary to secure such permits; provided, however, that such delay may not extend the expected Commercial Operation Date specified in Section 2.6.1 for a period of more than twelve (12) months; or

2.6.2.4. In the event of Force Majeure, the expected Commercial Operation Date specified in Section 2.6.1 shall be extended on a day-to-day basis for a cumulative period of not more than twenty-four (24) months, provided that Seller complies with Section 10; or

2.6.2.5. In the event of a breach by Buyer of its obligations hereunder that prevents Seller from achieving the expected Commercial Operation Date or if Buyer has otherwise has not made all necessary arrangements to receive the Product at the Delivery Point, then the expected Commercial Operation Date specified in Section 2.6.1 shall be extended on a day-to-day basis, provided that Seller complies with Section 10.

2.6.3. Seller shall provide Notice to Buyer that Seller intends to achieve Commercial Operation at least thirty (30) days prior to the anticipated Commercial Operation Date.

2.6.4. If Seller is unable to achieve Commercial Operation by the expected Commercial Operation Date specified in Section 2.6.1, as may be extended pursuant to Section 2.6.2, then Seller shall have the option to either (i) terminate the Agreement, in which case Buyer may retain the full Reservation Deposit, or (ii) pay to Buyer daily delay damages in the amount of twenty cents ($0.20) for each kilowatt of Contract Capacity for each day beyond the expected Commercial Operation Date specified in Section 2.6.1, as may be extended pursuant to Section 2.6.2, that Seller requires to achieve Commercial Operation. For the avoidance of doubt, if the expected

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6 Commercial Operation Date specified in Section 2.6.1 is extended pursuant to Section 2.6.2, then no daily delay damages shall be owed to Buyer for the period of such extension. For the avoidance of doubt, the Parties acknowledge and agree that the issuance of the Building’s Certificate of Occupancy shall not be affected, conditioned, or delayed in any way by Seller’s failure to achieve Commercial Operation by the expected Commercial Operation Date specified in Section 2.6.1 (as the same may be extended pursuant to Section 2.6.2).

2.6.5. Commercial Operation shall occur only when all of the following conditions have been satisfied:

2.6.5.1. the Facility’s status as an Eligible Renewable Energy Resource is demonstrated by Seller’s receipt of pre-certification from the CEC;

2.6.5.2. the Parties have executed and exchanged the “Commercial Operation Date Confirmation Letter” attached as Appendix B, which shall not be unreasonably withheld, conditioned or delayed;

2.6.5.3. Seller and Buyer have executed the Self Generation Facility Interconnection Agreement relating to the Facility and Seller is in compliance with the terms set forth therein;

2.6.5.4. Seller has furnished to Buyer all insurance documents required under Section 9;

2.6.5.5. Seller has provided at least thirty (30) days’ Notice prior to the Commercial Operation Date as required under Section 2.6.3;

2.6.5.6. Seller has obtained all permits necessary to operate the Facility and is in compliance with all Laws applicable to the operation of the Facility;

2.6.5.7. Seller has successfully installed and tested the Facility at its full Contract Capacity, and the Facility is capable of reliably generating at its full Contract Capacity; and

2.6.5.8. Seller has satisfied the Collateral Requirement set forth in Section

3.9. 3. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE;

BILLING

3.1. Contract Capacity. The Contract Capacity is as follows:

3,000 kW, alternating current (AC)

3.2. Contract Quantity.

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7 3.2.1. The “Contract Quantity” during each Contract Year is the amount set forth in the applicable Contract Year in the “Delivery Term Contract Quantity Schedule,” set forth in Appendix F, which amount is net of Station Use.

Seller shall have the option to update the Delivery Term Contract Quantity Schedule one (1) time prior to Commercial Operation Date by an amount not to exceed a five percent (5%) increase or decrease from the Contract Quantity specified as of the Execution Date.

3.2.2. At least ninety (90) days prior to the Commercial Operation Date, Seller shall provide Notice to Buyer that includes the following information (i) the new Contract Capacity, if any, consistent with Section 3.1; and (ii) the date upon which the changed Contract Capacity will be available to Buyer.

3.2.3. Within thirty (30) days of receiving Notice from Seller pursuant to Section

3.2.2., the City Manager shall cause the Contract Quantity values specified in Appendix F to be adjusted pro rata to the change in Contract Capacity as set forth in Section 3.2.1 for the applicable Contract Years and such modification shall be considered an element of the administration of this Agreement and shall not require the consent of the Parties hereto. Upon such modification, the City Manager shall promptly provide a copy of such revised Appendix F to Seller.

3.3. Transaction. During the Delivery Term, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, all Product produced by or associated with the Facility that is delivered to the Delivery Point. In no event shall Seller have the right to procure the Product from sources other than the Facility for sale or delivery to Buyer under this Agreement.

Buyer shall have no
obligation to receive or purchase the Product from Seller prior to the Commercial Operation Date or after the end of the Delivery Term. Notwithstanding the foregoing, this Agreement shall not limit the development, construction, ownership, or operation of any other electrical generating facility or project at the Building or Hillwood Speedway Commerce Development (any such facility or project, an “Other Project”), and any Other Project shall not constitute the Facility for the purposes of (and shall not be bound by) this Agreement. Further, this Agreement shall not limit or otherwise apply to Hillwood Speedway Commerce Development’s ability to procure electricity to power the Building.

3.4. Term of Agreement; Survival of Rights and Obligations.

3.4.1. The term of this Agreement shall commence upon the Execution Date and shall remain in effect until the conclusion of the Delivery Term unless terminated sooner pursuant to Sections 2.6.4, 11.4 or Article 12 of this Agreement (the “Term”).

3.4.2. Notwithstanding anything to the contrary in this Agreement, all of the rights and obligations that this Agreement expressly provides survive termination as well as the rights and obligations that arise from Seller’s or Buyer’s

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8 covenants, agreements, representations, and warranties applicable to, or to be performed, at or during any time before or as a result of the termination of this Agreement.

3.5. Delivery Term. Seller shall deliver the Product (from any and all generation technologies) from the Facility to Buyer for a period of twenty-five (25) Contract Years. The Delivery Term shall commence on the Commercial Operation Date and continue until the end of the last Contract Year unless the Agreement is terminated sooner pursuant to the terms of the Agreement.

3.6. Contract Price.

3.6.1. Throughout the Delivery Term, and subject to and in accordance with the terms of this Agreement, Buyer shall pay the Contract Price to Seller for the Product based on the amount of Delivered Energy. The Contract Price shall be eighty-two dollars ($82.00) per MWh of Delivered Energy.

3.6.2. In any Contract Year, if the amount of Delivered Energy exceeds one hundred twenty percent (120%) of the annual Contract Quantity amount, the Contract Price for such Delivered Energy in excess of one hundred twenty percent (120%) shall be adjusted to be seventy-five percent (75%) of the applicable Contract Price.

3.6.3. Seller shall curtail production of the Facility in accordance with the applicable Notice after receipt of: (a) Notice from Buyer that Buyer has been instructed by the CAISO or Southern California Edison Company or any other jurisdictional entity that Buyer is required to curtail Energy deliveries; or (b) Notice that Seller has been given a curtailment order or similar instruction in order to respond to an Emergency, including an instruction from Buyer; or (c) Notice of a Curtailment Order issued by Buyer, other than an instruction provided pursuant to subsection (b); provided, however, Buyer shall be obligated to pay Seller for any Product Seller would have been able to deliver but for the fact of a curtailment pursuant to subsection (c) and also in the event of a curtailment order or curtailment instruction due to oversupply of electricity on the grid or due to the availability of lower cost energy. Buyer shall have no obligation to pay Seller for any Product delivered in violation of this Section 3.6.3. Seller shall assume all liability and reimburse Buyer for any and all costs and charges incurred by Buyer, including but not limited to CAISO penalties, as a result of Seller delivering Energy in violation of the Section 3.6.3. Buyer shall have no obligation to pay Seller for any Product that Seller would have been able to deliver but for the fact of a curtailment pursuant to subsection (b) of the first sentence of this Section 3.6.3.

3.6.4. Buyer shall have the right, but not the obligation, to issue to Seller a Curtailment Order; provided, however, Buyer shall issue a Curtailment Order for any Buyer-directed curtailment of the production of the Facility.

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9 Buyer shall pay Seller the Contract Price for the Product Seller would have been able to deliver but for the fact that Buyer issued a Curtailment Order (“Paid Curtailed Product”) as calculated pursuant to Section 3.6.5.

3.6.5. No later than fifteen (15) days after the end of a calendar month in which Buyer issued a Curtailment Order, Seller shall prepare and provide to Buyer a calculation of the amount of Product the Facility would have been able to deliver under Sections 3.6.4 for the applicable month. Seller shall apply accepted industry standards in making such calculation and take into consideration past performance of the Facility, and other relevant information, including but not limited to, Facility availability, weather, water flow, and solar irradiance data for the period of time during the Buyer issued Curtailment Order. Upon Buyer’s request, Seller shall promptly provide to Buyer any additional and supporting documentation necessary for Buyer to audit and verify Seller’s calculation.

3.7. Billing.

3.7.1. The amount of Delivered Energy shall be determined by the meter specified in Section 6.2.1 or Check Meter, as applicable. Buyer has no obligation to purchase from Seller any Energy that is not or cannot be delivered to the Delivery Point, regardless of circumstance, except as set forth in Section

3.6.4. Buyer will not be obligated to pay Seller for any Product that Seller delivers in violation of Section 3.6.3, including any Product Seller delivers in excess of the amount specified in any Curtailment Order.

3.7.2. For the purpose of calculating monthly payments under this Agreement, the amount recorded by the meter specified in Section 6.2.1 or Check Meter, as applicable, plus any Paid Curtailed Product, will be multiplied by the Contract Price noted in Section 3.6.1, as possibly adjusted under Section

3.6.2, less any Energy produced by the Facility for which Buyer is not obligated to pay Seller as set forth in Section 3.7.1.

3.7.3. On or before the last Business Day of the month immediately following each calendar month, Seller shall determine the amount of Delivered Energy received by Buyer pursuant to this Agreement for each monthly period and issue an invoice showing the calculation of the payment. Seller shall also provide to Buyer: (a) records of metered data sufficient to document and verify the generation of Delivered Energy by the Facility during the preceding month; and (b) an invoice, in the format specified by Buyer.

3.7.4. In the event an invoice or portion thereof or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with Notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved, but

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10 the applicable Party shall promptly pay all undisputed amounts. The Parties agree to use good faith efforts to resolve the dispute or identify the adjustment as soon as possible. Any disputes which the Parties are unable to resolve through negotiation may be submitted for resolution as provided in Article 17. Upon resolution of the dispute or calculation of the adjustment, any required payment shall be made within thirty (30) days of such resolution.

3.7.5. All interest paid or payable under this Agreement shall be computed as simple interest using the Interest Rate and, unless specified otherwise in this Agreement, shall be paid concurrently with the payment or refund of the underlying amount on which such interest is payable.

3.8. Title and Risk of Loss. Title to and risk of loss related to the Product from the
Facility shall transfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Buyer the Product from the Facility free and clear of all liens, security interests, claims, and encumbrances or any interest therein or thereto by any person.

3.9. Collateral Requirement.

On or before the Commercial Operation Date, Seller
shall post and thereafter maintain a collateral requirement equal to sixty dollars ($60.00) for each kilowatt of Contract Capacity in the form of a cash deposit to RCMU, a performance bond, or a Letter of Credit, to be determined at Seller’s sole discretion
(the “Collateral Requirement”). The Collateral Requirement shall be posted to Buyer and maintained at all times during the Delivery Term.

Buyer shall be entitled to draw upon the Collateral Requirement for any damages arising upon Buyer’s declaration of an Early Termination Date as set forth in Section 12.3. In the event that Buyer draws on the Collateral Requirement, Seller shall promptly replenish such Collateral Requirement to the amount specified in this Section 3.9. Buyer shall return the unused portion of the Collateral Requirement to Seller promptly at the end of the Delivery Term, once all payment obligations of the Seller under this Agreement have been satisfied. Buyer shall pay simple interest on cash held to satisfy the Collateral Requirements at the rate and in the manner set forth in Section 3.7.5.

4. GREEN ATTRIBUTES; RESOURCE ADEQUACY BENEFITS; ERR

REQUIREMENTS

4.1. Green Attributes. Seller hereby provides and conveys all Green Attributes

associated with all electricity generation from the Project to Buyer as part of the Product being delivered. Seller represents and warrants that Seller holds the rights to all Green Attributes from the Project, and Seller agrees to convey and hereby conveys all such Green Attributes to Buyer as included in the delivery of the Product from the Project.

4.2. Conveyance of Product. Throughout the Delivery Term, Seller shall provide and convey the Product to Buyer in accordance with the terms of this

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11 Agreement, and Buyer shall have the exclusive right to the Product. Subject to Section 4.6, Seller shall, at its own cost, take all actions and execute all documents or instruments that are reasonable and necessary to effectuate the use of the Green Attributes, Resource Adequacy Benefits, if any, and Capacity Attributes, if any, for Buyer’s benefit throughout the Delivery Term.

4.3. WREGIS. Seller shall cause and allow Buyer, or Buyer’s agent, to be the “Qualified Reporting Entity” and “Account Holder” (as such terms are defined by WREGIS) for the Facility within thirty (30) days after the Commercial Operation Date. In the event that Buyer is not the Qualified Reporting Entity, Seller shall, at its sole expense, take all actions necessary and provide any documentation requested by Buyer in support of WREGIS account administration and compliance with the California Renewables Portfolio Standard. Subject to Section 4.6, Seller, at its sole expense, shall take all necessary steps and submit/file all necessary documentation to ensure that the Facility remains an Eligible Renewable Energy Resource throughout the Delivery Term as outlined in Section 4.5 and that all WREGIS Certificates associated with the Product accrue to Buyer and will satisfy the requirements of the California Renewables Portfolio Standard.

4.4. Resource Adequacy Benefits.

4.4.1. During the Delivery Term and subject to Section 4.6, Seller grants, pledges, assigns and otherwise commits to Buyer all of the Contract Capacity, including Capacity Attributes, if any, from the Project to enable Buyer to meet its Resource Adequacy or successor program requirements, as the CAISO or other regional entity may prescribe (“Resource Adequacy Requirements”).

4.4.2. Seller shall cooperate in good faith with and comply with reasonable requests of Buyer to enable Buyer to maximize any Resource Adequacy Benefits attributable to the Facility or any credits that reduce the Resource Adequacy Requirements of the Buyer; provided, however, Seller shall bear no additional costs and shall have no obligation to make any physical modifications to the Facility or Project.

4.5. Eligible Renewable Energy Resource. Subject to Section 4.6, Seller shall take
all actions necessary to achieve and maintain status as an Eligible Renewable Energy Resource (“
ERR”) throughout the Delivery Term. Within thirty (30) days after the Commercial Operation Date, Seller shall file an application or other appropriate request with the CEC for CEC Certification for the Facility.

Seller shall expeditiously seek CEC Certification, including promptly responding to any requests for information from the requesting authority.

4.6. Compliance Expenditure Cap
. If a change in Law occurring after the Effective
Date has increased Seller’s known or reasonably expected costs to comply with Seller’s obligations under this Agreement with respect to obtaining,

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12 maintaining, conveying or effectuating Buyer’s use of any Product, then the Parties agree that the maximum aggregate amount of out-of-pocket costs and expenses (“Compliance Costs”) Seller shall be required to pay during the Delivery Term to comply with all such obligations shall be capped at fifteen thousand dollars ($15,000) per MW of Contract Capacity (“Compliance Expenditure Cap”).

Any actions required for Seller to comply with its obligations set forth in this Article 4, the Compliance Costs of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” Seller’s internal administrative costs associated with obtaining, maintaining, conveying, or effectuating Buyer’s use of the Product are excluded from the Compliance Expenditure Cap.

If Seller reasonably anticipates the need to incur Compliance Costs in excess of the Compliance Expenditure Cap in order to take any Compliance Action, then Seller shall provide Notice to Buyer of such anticipated Compliance Costs.

Buyer shall have sixty (60) days to evaluate such Notice (during which time Seller shall not be obligated to take any Compliance Actions) and shall, within such time, either (a) agree to reimburse Seller for all or some portion of the Compliance Costs (such Buyer-agreed costs, the “Accepted Compliance Costs”) or (b) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller.

If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller.

5. REPRESENTATION AND WARRANTIES; COVENANTS

5.1. Representations and Warranties. On the Execution Date, each Party represents and warrants to the other Party that:

5.1.1. it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

5.1.2. the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any Laws;

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13 5.1.3. this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms;

5.1.4. it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;

5.1.5. there is not pending or, to its knowledge, threatened against it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and

5.1.6. the Contract Capacity is deemed sufficient to satisfy the requirements of Section 17.76.020 of Chapter 17.76 of (Alternative Energy Systems and Facilities) of Article IV (Site Development Provisions) of Title 17 (Development Code) of the Rancho Cucamonga Municipal Code throughout the Term.

5.2. General Covenants. Each Party covenants that throughout the Term of this Agreement:

5.2.1. it shall continue to be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation;

5.2.2. it shall maintain (or obtain from time to time as required, including through renewal, as applicable) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and

5.2.3. it shall perform its obligations under this Agreement in a manner that does not violate any of the terms and conditions in its governing documents, any contracts to which it is a party, or any Law.

5.3. Seller’s Representations, Warranties and Covenants. In addition to the representations, warranties and covenants specified in Sections 5.1 and 5.2, Seller makes the following additional representations, warranties and covenants to Buyer, as of the Commercial Operation Date:

5.3.1. Seller has met all applicable legal and regulatory requirements to sell wholesale electricity in California;

5.3.2. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Project qualifies and is certified by the CEC as an ERR as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Project’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to

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14 be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law, subject to Section 4.6;

5.3.3. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the Renewable Energy Credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in the California Energy Commission’s Enforcement Procedures for the Renewables Portfolio Standard for Local Publicly Owned Electric Utilities adopted on December 22, 2020, and as may be modified by subsequent decision of the California Energy Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law, subject to Section 4.6;

5.3.4. Throughout the Delivery Term, Seller shall: (a) own and operate (or contract for the operation of) the Facility; (b) deliver the Product to Buyer free and clear of all liens, security interests, claims, and encumbrances or any interest therein or thereto by any individual or entity; and (c) hold the rights to all of the Product;

5.3.5. Seller is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the Buyer in so doing, and is capable of assessing the merits of, and understands and accepts, the terms, conditions and risks of this Agreement;

5.3.6. Throughout the Delivery Term, except during a Buyer Event of Default: (a) Seller shall not convey, transfer, allocate, designate, award, report or otherwise provide any or all of the Product, or any portion thereof, or any benefits derived therefrom, to any party other than Buyer; and (b) Seller shall not start-up or operate the Facility per instruction of or for the benefit of any third party, except as required by other Laws;

5.3.7. The construction of the Facility shall comply with all applicable Laws, including applicable state and local laws, building standards, and interconnection requirements;

5.3.8. During the Delivery Term, no other person or entity, including any other generating facility, has any rights in connection with Seller’s Interconnection Agreement or Seller’s Interconnection Facilities and no other persons or entities shall have any such rights during the Term;

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15 5.3.9. During the Delivery Term, Seller shall not allow any other person or entity, including any other generating facility, to use Seller’s Interconnection Facilities; and

5.3.10. All representations made by Seller in its Industrial Zoning District Renewable PPA Application, as may be amended, are true and correct.

6. GENERAL CONDITIONS

6.1. Interconnection Requirements
. Seller shall be responsible for the cost of one
(1) transformer for the Facility (the “Transformer”). Buyer shall procure and install the Transformer and Seller shall reimburse Buyer for the cost of the Transformer and said reimbursement shall be a condition precedent to the Facility achieving Commercial Operation. Other than the Transfomer, a ny and
all other costs related to the interconnection of the Facility with the Transmission/Distribution Owner’s electricity distribution system shall be paid in full by RCMU and shall comply with all contractual, metering, and applicable interconnection requirements, including those set forth in the RCMU Electric Service Rule - Generating Facility Interconnection, Transmission/Distribution Owner’s applicable tariffs, the CAISO Tariff and implementing CAISO standards and requirements, and all applicable Laws so as to be able to deliver Energy to the Delivery Point. Seller shall provide and maintain during the Delivery Term, at its cost, all data processing gateways or remote intelligence gateways, telemetering equipment and data acquisition services, and associated measuring and recording equipment necessary to meet all applicable WREGIS and RCMU requirements applicable to the Facility during the Delivery Term.

6.2. Metering Requirements.

6.2.1. All Energy from the Project must be delivered through a single revenue- quality meter and that meter must be dedicated exclusively to the Project.

All Delivered Energy purchased under this Agreement must be measured by the Project’s revenue-quality meter(s) to be eligible for payment under this Agreement. Seller shall bear all costs relating to all metering equipment installed to accommodate the Project.

6.2.2. Buyer may, at its sole cost, furnish and install one Check Meter at the interconnection associated with the Facility at a location provided by Seller that is compliant with Buyer’s electric service requirements and accessible by the Buyer or Buyer’s agent. The Check Meter may be interconnected with Buyer’s communication network, or the communication network of Buyer’s agent, to permit periodic, remote collection of revenue quality meter data. In the event that Buyer elects to install a Check Meter, Buyer may compare the Check Meter data to the Facility’s revenue meter data. If the deviation between the Facility’s revenue meter data and the Check Meter data for any comparison is greater than 0.3%, Buyer may provide Notice to

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16 Seller of such deviation and the Parties shall mutually arrange for a meter check or recertification of the Check Meter or the Facility’s revenue meter, as applicable. Each Party shall bear its own costs for any meter check or recertification. Testing procedures and standards for the Check Meter shall be the same as for a comparable Buyer-owned meter. Parties shall have the right to have representatives present during all such tests. The Check Meter, is intended to be used for Buyer’s “Qualified Reporting Entity” to be used to report the Facility’s green attribute resource. The Check Meter can also be used for back-up purposes in the event of a failure or other malfunction of the Facility’s revenue meter, and Check Meter data shall only be used to validate the Facility’s revenue meter data and, in the event of a failure or other malfunction of the Facility’s revenue meter, in place of the Facility’s revenue meter until such time that the Facility’s revenue meter is recertified.

6.3. Meter Data. Seller hereby agrees to provide all meter data to Buyer in a XML file format, including any inspection, testing and calibration data and reports.

Seller shall grant Buyer and Buyer’s agent the right to retrieve the meter readings from Seller or Seller’s meter reading agent.

6.4. Standard of Care. Seller shall: (a) maintain and operate the Facility and Interconnection Facilities in conformance with RCMU Generating Facility Interconnections, all applicable Laws, and Prudent Electrical Practices; and (b) obtain any governmental authorizations and permits required for the construction and operation of the Facility and Interconnection Facilities in compliance with all applicable RCMU rules and Prudent Electrical Practices.

Seller shall reimburse Buyer for any and all losses, damages, claims, penalties, or liability Buyer incurs as a result of Seller’s failure to obtain or maintain any governmental authorizations and permits required for construction and operation of the Facility throughout the Term of this Agreement.

6.5. Access Rights.

6.5.1. Operations Logs. Seller shall maintain a complete and accurate log of all material operations and maintenance information on a daily basis. Such log shall include, but not be limited to, information on power production, fuel consumption (if applicable), efficiency, availability, maintenance performed, outages, results of inspections, manufacturer recommended services, replacements, electrical characteristics of the generators, control settings or adjustments of equipment and protective devices. Seller shall provide this information electronically to Buyer within twenty (20) days of Buyer’s request.

6.5.2. A
ccess Rights . Buyer, its authorized agents, employees and inspectors may, on reasonable advance notice under the circumstances, visit the Project during normal business hours for purposes reasonably connected with this Agreement, subject to the limits of Seller’s Site Control.

Buyer, its
authorized agents, employees and inspectors must (a) at all times adhere to

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17 all safety and security procedures as may be required by Seller; and (b) not interfere with the operation of the Project, the Building, or the Hillwood Speedway Commerce Development. Buyer shall make reasonable efforts to coordinate its emergency activities with the safety and security departments, if any, of the Project operator. Seller shall keep Buyer advised of current procedures for contacting the Project operator’s safety and security departments, if any exist.

6.6. Protection of Property. Seller shall be solely
responsible for protecting its own
facilities from possible damage resulting from electrical disturbances or faults caused by the operation, faulty operation, or non-operation of the Transmission/Distribution Owner's
facilities. Buyer shall not be liable for any
such damages so caused.

6.7. Forecasting. Seller shall comply with the forecasting requirements in Appendix C.

6.8. Greenhouse Gas Emissions. Seller acknowledges that a Governmental Authority may require Buyer to take certain actions with respect to greenhouse gas emissions attributable to the generation of Energy, including, but not limited to, reporting, registering, tracking, allocating for or accounting for such emissions. Promptly following Buyer’s written request accompanied by supporting documentation that such actions or information have been required by a Governmental Authority
, Seller agrees to take all commercially
reasonable actions and execute or provide any and all documents, information, or instruments with respect to generation by the Facility reasonably necessary to permit Buyer to comply with such Governmental Authority requirements, if any.

6.9. Reporting and Record Retention.

6.9.1. Seller shall use commercially reasonable efforts to meet the Milestone Schedule set forth in Appendix E and avoid or minimize any delays in meeting such schedule; provided, however Seller shall not incur penalties for failure to meet the target dates in the Milestone Schedule except as specified in Section 2.6.4. Seller shall provide Project development status reports in a format and a frequency, which shall not exceed one (1) report per month.

The report shall describe Seller’s progress relative to the development, construction, and startup of the Facility, as well as a Notice of any anticipated change to the Commercial Operation Date and whether Seller is on schedule to meet the Commercial Operation Date.

6.9.2. Seller shall within thirty (30) Business Days of receipt thereof provide to Buyer copies of any Interconnection Agreement and all other material reports, studies and analyses furnished by any Transmission/Distribution Owner, and any material correspondence with the Transmission/Distribution Owner related thereto, concerning the interconnection of the Facility to the

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18 Transmission/Distribution Owner’s electric system or the transmission of Energy on the Transmission/Distribution Owners’ electric system.

6.9.3. Seller shall provide to Buyer on the Commercial Operation Date, and within thirty (30) days after the completion of each Contract Year thereafter during the Delivery Term, a copy of any inspection and maintenance report regarding the Facility that was also provided to the
Transmission/Distribution Owner during the previous Contract Year.

6.10. Tax Withholding Documentation. Upon Buyer’s request if required by Buyer to comply with its tax reporting or withholding obligation, Seller shall promptly provide to Buyer Internal Revenue Service tax Form W-9 and California tax Form 590 (or their equivalent), completed with Seller’s information, and any other documentation necessary for Buyer to comply with its tax reporting or withholding obligations with respect to Seller.

6.11. Modifications to Facility. During the Delivery Term, Seller shall not materially modify or alter the Facility without the written consent of Buyer (which consent shall not be unreasonably withheld) in a way that would result in: (a) movement of the Site, (b) changes that may materially increase or decrease the expected output of the Facility other than as allowed under Section 3.2, (c) changes that may materially affect the generation profile of the Facility, (d) changes that may affect the ability to accurately measure the output of Product from the Facility and (e) changes that conflict with elections, information, or requirements specified elsewhere in this Agreement. Material modifications or alterations do not include maintenance, restoration, repairs, and repowering performed to maintain the Contract Capacity throughout the Delivery Term and in accordance with Prudent Electrical Practices. Seller shall provide to Buyer Notice not less than ninety (90) days before any proposed repowering, modification, or alteration occurs describing the repowering, modification, or alteration to Buyer’s reasonable satisfaction.

6.12. No Additional Incentives. Seller agrees that during the Term of this Agreement it shall not seek additional compensation or other benefits pursuant to the Self-Generation Incentive Program, as defined in CPUC Decision 01-03- 073, the California Solar Initiative, as defined in CPUC Decision 06-01-024, Buyer’s net energy metering tariff, or other similar California ratepayer subsidized program relating to energy production with respect to the Facility.

6.13. S
ite Control . Seller shall have Site Control as of the earlier of: (a) the Commercial Operation Date; or (b) any date before the Commercial Operation Date to the extent necessary for the Seller to perform its obligations under this Agreement and, in each case, Seller shall maintain Site Control throughout the Delivery Term. Seller shall promptly provide Buyer with Notice if there is any material adverse
change in the status of Seller’s Site Control.

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19 7. INDEMNITY

7.1. Indemnification.

7.1.1. To the full extent permitted by law, Seller shall indemnify, defend and hold harmless Buyer, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, and/or caused in whole or in part by any negligent or wrongful act, error, or omission of Seller or by any individual or agency for which Seller is legally liable, including officers, agents, employees or subcontractors of Seller.

7.1.2. To the full extent permitted by law, Buyer shall defend, indemnify and hold harmless the Seller, its employees, officers, agents, and representatives from and against any loss, injury, damage, claim, lawsuit, liability, expense, or damages of any kind or nature (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether, actual, alleged or threatened, including legal counsel fees and costs, court costs, interest, defense costs and expert witness fees) which arise out of, are a consequence of, or are in any way attributable to, or in connection with the negligent or wrongful act, error or omission of Buyer or by any individual or agency for which such Buyer is legally liable, including officers, agents, or employees of Buyer.

7.1.3. Nothing in this Section 7.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. No Party shall be indemnified for any damages resulting from its gross negligence, intentional acts, or willful misconduct or for the gross negligence or willful misconduct of its Affiliates, directors, officers, employees and agents. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy.

7.2. Buyer shall not be responsible for any cost of decommissioning or demolition of the Facility or any environmental or other liability associated with the decommissioning or demolition of the Facility without regard to the timing or cause of the decommissioning or demolition. Seller agrees to indemnify, defend, and hold harmless, Buyer for any costs incurred by Buyer if and to the extent that Seller’s actions or inactions directly cause Buyer to become required, whether statutorily or otherwise, to bear the cost of any decommissioning or demolition of the Facility or any action reasonably necessary to abate, investigate, or remediate a violation of any environmental law by Seller. The indemnity requirements set forth in this Section 7 shall survive the termination of this Agreement.

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20 8. LIMITATION OF DAMAGES

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT THERE IS NO

WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED.

LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH

DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY

AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED UNLESS EXPRESSLY HEREIN PROVIDED. NEITHER PARTY SHALL

BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR

INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION

DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. UNLESS EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF SECTION 7 (INDEMNITY), IT IS THE INTENT

OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES

AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR

CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,

WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.

9. INSURANCE

9.1. Insurance Coverage. Seller shall, at its own expense, starting on the Execution Date and until the end of the Term, and for such additional periods as may be specified below, provide and maintain for the Facility
in effect the following
insurance policies and minimum limits of coverage as specified below, and such additional coverage as may be required by Law, with insurance companies authorized to do business in the state in which the services are to be performed, with an A.M. Best’s Insurance Rating of not less than A-:VII.

9.1.1. Commercial General Liability Insurance.

Commercial general liability
insurance, written on an occurrence, not claims-made basis, covering all Facility operations by or on behalf of Seller arising out of or connected with this Agreement, including coverage for bodily injury, broad form property damage, personal and advertising injury, products/completed operations, contractual liability, premises-operations, owners and contractors protective, hazard, explosion, collapse and underground. Such insurance must bear a combined single limit per occurrence and annual aggregate of not less than five million dollars ($5,000,000.00), exclusive of defense costs, for all coverages. Such insurance must contain standard cross-liability and severability of interest provisions. The Seller shall name the Buyer, its officers, officials, employees, and volunteers as additional insureds on the completed operations policy. The completed operations policy shall be as broad as one of the following ISO forms CG 20 37, 2039, or CG 20 40.

Completed operations coverage must be maintained for a period of not less than four (4) years after this Agreement terminates. If Seller elects, with Buyer’s written concurrence, to use a “claims made” form of commercial

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21 general liability insurance, then the following additional requirements apply:
(a) the retroactive date of the policy must be prior to the Execution Date; and (b) either the coverage must be maintained for a period of not less than four (4) years after this Agreement terminates, or the policy must provide for a supplemental extended reporting period of not less than four (4) years after this Agreement terminates. Governmental agencies which have an established record of self-insurance may provide the required coverage through self-insurance.

9.1.2. Workers’ Compensation Insurance.

Workers’ compensation insurance with
statutory limits, as required by the state having jurisdiction over Seller’s employees, and employer’s liability insurance with limits of not less than:
(a) bodily injury by accident - one million dollars ($1,000,000.00) each accident; (b) bodily injury by disease - one million dollars ($1,000,000.00) policy limit; and (c) bodily injury by disease - one million dollars ($1,000,000.00) each employee.

9.1.3. Commercial Automobile Liability Insurance. Commercial automobile liability insurance covering bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000.00) per occurrence. Such insurance must cover liability arising out of Seller’s use of all owned, non-owned and hired automobiles in the performance of the Agreement.

9.1.4. Umbrella/excess liability Insurance.

Umbrella/excess liability insurance,
written on an occurrence, not claims-made basis, providing coverage excess of the underlying employer’s liability, commercial general liability, and commercial automobile liability insurance, on terms at least as broad as the underlying coverage, with limits of not less than four million dollars ($4,000,000.00) per occurrence and in the annual aggregate.

9.1.5. Pollution Liability Insurance. If the scope of work involves areas of known pollutants or contaminants, pollution liability coverage will be required to cover bodily injury, property damage, including clean-up costs and defense costs resulting from sudden, and accidental conditions, including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hydrocarbons, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water shall be maintained.

The limit will not
be less than one million dollars ($1,000,000.00) per occurrence or claim, and $2,000,000 policy aggregate for bodily injury and property damage. The policy will endorse RCMU as additional insured. If the contractor maintains broader coverage and/or higher limits than the minimums shown above for all policies, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

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22 9.2. Additional Insurance Provisions.

9.2.1. On or before the later of (a) sixty (60) days after the Execution Date and (b) the date immediately preceding commencement of construction of the Facility, and again within a reasonable time after coverage is renewed or replaced, Seller shall furnish to Buyer certificates of insurance evidencing the coverage required above, written on forms and with deductibles reasonably acceptable to Buyer. Notwithstanding the foregoing sentence, Seller shall in no event furnish Buyer certificates of insurance evidencing required coverage later than the Commercial Operation Date. All deductibles, co-insurance and self-insured retentions applicable to the insurance above must be paid by Seller. All certificates of insurance must note that the insurers issuing coverage must endeavor to provide Buyer with at least thirty (30) days’ prior written notice in the event of cancellation of coverage. Buyer’s receipt of certificates that do not comply with the requirements stated in this Section 9.2.1, or Seller’s failure to provide such certificates, do not limit or relieve Seller of the duties and responsibility of maintaining insurance in compliance with the requirements in this Section 9 and do not constitute a waiver of any of the requirements of Section 9.

9.2.2. Insurance coverage described above in Section 9.1 shall provide for thirty (30) days written Notice to Buyer prior to cancellation, termination, alteration, or material change of such insurance.

9.2.3. Evidence of coverage described above in Section 9.1 shall state that coverage provided is primary and is not excess to or contributing with any insurance or self-insurance maintained by Buyer.

9.2.4. Buyer shall have the right to inspect or obtain a copy of the original policy(ies) of insurance.

9.2.5. All insurance certificates, endorsements, cancellations, terminations, alterations, and material changes of such insurance must be issued, clearly labeled with this Agreement’s identification number and submitted in accordance with Section 10 and Appendix F.

9.2.6. The insurance requirements set forth in Section 9.1 shall apply as primary insurance to, without a right of contribution from, any other insurance maintained by or afforded to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, and employees, regardless of any conflicting provision in Seller's policies to the contrary.

To the extent permitted by Law, Seller and its insurers shall be required to waive all rights of recovery from or subrogation against Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees and insurers. The commercial general liability insurance required in Section 9.1.1 and the umbrella/excess liability insurance required in Section 9.1.4 must name Buyer, its subsidiaries and

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23 Affiliates, and their respective officers, directors, shareholders, agents and employees, as additional insureds for liability arising out of Seller’s construction, use or ownership of the Facility. The Worker’s Compensation policy shall be endorsed with a waiver of subrogation in favor of the Buyer for all work performed by the Seller, its employees, agents and subcontractors.

9.2.7. Seller shall remain liable for all acts, omissions or default of any subcontractor or subsupplier and shall indemnify, defend and hold harmless Buyer for any and all loss or damages, as well as all costs, charges and expenses which Buyer may suffer, incur, or bear as a result of any acts, omissions or default by or on behalf of any subcontractor or subsupplier.

9.2.8. [Reserved.]

10. NOTICES
Notices (other than forecasts and scheduling requests) shall, unless otherwise specified herein, be in writing and be delivered by electronic messaging (e-mail), and also may be delivered by hand delivery, United States mail, overnight courier service, or facsimile. A notice sent by facsimile transmission or e-mail will be recognized and shall be deemed received on the Business Day on which such notice was transmitted if received before 5 p.m. Pacific prevailing time (and if received after 5 p.m., on the next Business Day) and a notice by overnight mail or courier shall be deemed to have been received on the next Business Day after such Notice is sent or such earlier time as is confirmed by the receiving Party unless it confirms a prior oral communication, in which case any such notice shall be deemed received on the day sent. A Party may change its addresses by providing notice of same in accordance with this provision. All Notices, requests, invoices, statements or payments for this Facility must reference this Agreements identification number. Notices shall be provided as indicated in Appendix G.

11. FORCE MAJEURE

11.1. No Default for Force Majeure. Neither Party shall be in default in the performance of any of its obligations set forth in this Agreement when and to the extent failure of performance is caused by Force Majeure.

11.2. R
equirements Applicable to Claiming Party . If a Party, because of Force Majeure, is rendered wholly or partly unable to perform its obligations when due under this Agreement, such Party (the “Claiming Party”) shall be excused from whatever performance is affected by the Force Majeure to the extent so affected. In order to be excused from its performance obligations under this Agreement by reason of Force Majeure:

11.2.1. The Claiming Party, on or before the fourteenth (14th) day after the Claiming Party becomes aware of the initial occurrence of the effect of the

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24 claimed Force Majeure, must give the other Party Notice describing the particulars of the occurrence; and

11.2.2. The Claiming Party must provide timely evidence reasonably sufficient to establish that the occurrence constitutes Force Majeure as defined in this Agreement.

11.3. Limitations. The suspension of the Claiming Party’s performance due to Force Majeure may not be greater in scope or longer in duration than is required by such Force Majeure. In addition, the Claiming Party shall use diligent efforts to remedy its inability to perform. When the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall give the other Party prompt Notice to that effect.

11.4. T
ermination. Either Party may terminate this Agreement on at least thirty (30) Business Days’ prior Notice, in the event of Force Majeure which materially interferes with such Party’s ability to perform its obligations under this Agreement and which (a) extends for more than 365 consecutive days, (b) extends for more than a total of 365 days in any consecutive 540-day period, or (c) is consistent with Section 2.6.2.3.

12. EVENTS OF DEFAULT AND TERMINATION

12.1. Termination. Unless terminated earlier pursuant to Section 11 .4 or this Section
12, this Agreement automatically terminates immediately following the last day of the Delivery Term.

12.2. Events of Default. An “Event of Default” means, with respect to a Party, the occurrence of any of the following:

12.2.1. With respect to either Party:

12.2.1.1. A Party becomes Bankrupt;

12.2.1.2. Except for an obligation to make payment when due, if there is a failure of a Party to perform any material covenant or obligation set forth in this Agreement (except to the extent such failure provides a separate termination right for the non-breaching Party or to the extent excused by Force Majeure), if such failure is not remedied within thirty (30) days after Notice thereof from the non-breaching Party to the breaching Party or such longer additional period, not to exceed an additional thirty (30) days, if the breaching Party is unable to remedy such default within the initial period despite exercising commercially reasonable efforts);

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25 12.2.1.3. A Party fails to make any payment due and owing under this Agreement, if such failure is not cured within ten (10) Business Days after Notice from the non-breaching Party to the breaching Party; or

12.2.1.4. Any representation or warranty made by a Party (a) is false or misleading in any material respect when made or (b) becomes false or misleading in any material respect during the Term, if such default is not remedied within thirty (30) days after Notice thereof from the non-breaching Party to the breaching Party or such longer additional period, not to exceed an additional sixty (60) days, if the breaching Party is unable to remedy such default within the initial period despite exercising commercially reasonable efforts).

12.2.2. With respect to Seller:

12.2.2.1. If during continuance of a Seller Event of Default, Seller fails to take all corrective actions specified in any Buyer Notice, within the time frame set forth in such Notice, that the Facility is out of compliance with any term of this Agreement; provided that if such corrective action falls under a specific termination right under Section

12.2.2, then the time frame, if any, set forth for such right shall apply;

12.2.2.2. The Facility has not achieved Commercial Operation by the expected Commercial Operation Date specified in Section 2.6.1 as may be extended pursuant to Section 2.6.2, and Seller has not elected to pay daily delay damages pursuant to Section 2.6.4;

12.2.2.3. Subject to Section 11, Seller delivers less than eighty percent (80%) of the applicable Contract Quantity from the Facility to Buyer for a period of two (2) consecutive Contract Years; provided, however, no Event of Default shall have occurred in the event Seller’s delivery of less than eighty percent (80%) of the applicable Contract Quantity, as contemplated in this Section 12.2.2.3, is due to module failure or is covered by a manufacturer’s warranty so long as Seller is diligently pursuing a warranty claim or other resolution to correct said module failure;

12.2.2.4. Seller fails to maintain its status as an ERR as set forth in Section

4.5 of the Agreement, if such failure is not cured within one hundred and twenty (120) days after Notice from Buyer to Seller;

12.2.2.5. Seller abandons the Facility, which occurs if Seller ceases all work at the Facility for a period of six (6) consecutive months without providing an explanation to Buyer;

12.2.2.6. [Reserved;];

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26 12.2.2.7. Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement product that was not generated by the Facility;

12.2.2.8. [Reserved;]

12.2.2.9. An unauthorized assignment of the Agreement, as set forth in Section 15;

12.2.2.10. Seller fails to reimburse Buyer any amounts due under this Agreement, if such failure is not cured within thirty (30) Business Days after Notice from Buyer to Seller; or

12.2.2.11. Seller breaches the requirements in Section 6.12 regarding incentives if such failure is not cured within thirty (30) Business Days after Notice from Buyer to Seller; or

12.2.2.12. Seller fails to maintain the Collateral Requirement set forth in Section 3.9, if such failure is not cured within thirty (30) Business Days after Notice from Buyer to Seller.

12.3. Declaration of an Event of Default. If an Event of Default has occurred and not been cured within the time frames established in Section 12.2, the non- defaulting Party shall have the right to: (a) send Notice of Termination, designating a day, no earlier than five (5) days after such Notice of Termination and no later than twenty (20) days after such Notice of Termination, as an early termination date of this Agreement (“Early Termination Date”); (b) accelerate all amounts owing between the Parties; (c) terminate this Agreement and end the Delivery Term effective as of the Early Termination Date; and (d) collect any Settlement Amount under Section 12.5; provided, however, if the defaulting party is the Seller and Buyer terminates the Agreement prior to the start of the Commercial Operation Date, Buyer shall have the right to retain the entire Reservation Deposit. Notwithstanding any other provision of this Agreement, Seller’s aggregate liability under or arising out of a termination of this Agreement prior to the Commercial Operation Date shall be limited to an amount equal to the Reservation Deposit, which shall be Buyer’s sole and exclusive remedy in the event of any such termination.

12.4. Suspension of Performance
. If an Event of Default shall have occurred, the
non-defaulting Party has the right to immediately suspend performance under this Agreement and pursue all remedies available at Law or in equity against the defaulting Party (including monetary damages), except to the extent that such remedies are limited by the terms of this Agreement.

12.5. C
alculation of Settlement Amount.

12.5.1. If either Party exercises a termination right under Section 12.3, the non- defaulting Party shall calculate a settlement amount (“Settlement Amount”)

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27 equal to the amount of the non-defaulting Party’s aggregate Losses and Costs less any Gains, determined as of the Early Termination Date.

12.5.2. If the non-defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, determined as of the Early Termination Date, the Settlement Amount shall be Zero dollars ($0).

12.5.3. Buyer shall not have to enter into replacement transactions to establish a Settlement Amount.

12.5.4. Buyer shall have the right to draw upon the Collateral Requirement to collect any Settlement Amount owed to Buyer.

12.6. Certificate of Occupancy. The Certificate of Occupancy for the Building shall not be revoked or otherwise negatively affected due to the occurrence of an Event of Default by either Party or due to the Termination of this Agreement prior to the end of the Delivery Term.

12.7. Rights and Remedies Are Cumulative. The rights and remedies of the Parties pursuant to this Section 12 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement.

12.8. Duty to Mitigate. Buyer and Seller shall each have a duty to mitigate damages pursuant to this Agreement, and each shall use reasonable efforts to minimize any damages it may incur as a result of the other Party’s non-performance of this Agreement, including with respect to termination of this Agreement.

13. GOVERNMENTAL CHARGES

13.1. Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Product or the Transaction arising up to
the Delivery Point, including,
but not limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Product or the Transaction at and from the Delivery Point. In the event Seller is required by Law or regulation to remit or pay Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall reimburse Seller for such Governmental Charges within thirty (30) days of Notice by Seller. If Buyer is required by Law or regulation to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may deduct such amounts from payments to Seller with respect to payments under the Agreement; if Buyer elects not to deduct such amounts from Seller’s payments, Seller shall reimburse Buyer for such amounts within thirty (30) days of Notice from Buyer. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the Law. A Party that is exempt at any time and for any reason from one or more Governmental Charges bears the risk that

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28 such exemption shall be lost or the benefit of such exemption reduced; and thus, in the event a Party’s exemption is lost or reduced, each Party’s responsibility with respect to such Governmental Charge shall be in accordance with the first four sentences of this Section.

14. RELEASE OF INFORMATION AND RECORDING CONVERSATION

14.1. Release of Information. Each Party authorizes the other to release to the
FERC, CEC, CAISO, CPUC, and/or other Governmental Authority, information regarding the Facility, including the Seller’s name and location, and the size, location and operational characteristics of the Facility, the Term, the ERR type, photographs of the Project, the Commercial Operation Date, greenhouse gas emissions data, and the net power rating of the Facility, as requested from time to time pursuant to the CEC’s, CPUC’s or applicable Governmental Authority’s rules and regulations.

14.2. Public Announcements. The Parties shall cooperate to make any public
announcement regarding any aspect of this Agreement or the role of the Parties in regards to the development or operation of the Project. Any public announcement by Seller must comply with California Business and Professions Code § 17580.5 and with the Guides for the Use of Environmental Marketing Claims, published by the Federal Trade Commission, as it may be updated from time to time.

15. ASSIGNMENT

15.1. General Assignment. Except as provided in Sections 15.2 and 15 .3, Seller may
not assign this Agreement or its rights hereunder without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed so long as (a) the assignee assumes the Seller’s payment and performance obligations under this Agreement, (b) the assignee agrees in writing to be bound by the terms and conditions hereof, and (c) Seller delivers evidence satisfactory to Buyer of the proposed assignee’s technical and financial capability; provided, however, Seller may assign this Agreement or its rights hereunder to an Affiliate without consent from Buyer.

15.2. Assignment to Financing Providers. Seller may
assign this Agreement as
collateral for any financing or refinancing of the Project (including any tax equity or lease financing) with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Parties agree that, the consent provided to Buyer in accordance with this Section 15 .2 shall be in
a form substantially similar to the Form of Financing Consent attached hereto as Appendix H; provided that (a) Buyer shall not be required to consent to any additional terms or conditions beyond those contained in Appendix I, including extension of any cure periods or additional remedies for financing providers, and (b) Seller shall be responsible at Buyer’s request for Buyer’s reasonable

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29 costs and attorneys’ fees associated with the review, negotiation, execution and delivery of documents in connection with such assignment.

15.3. Notice of Change in Control. Except in connection with public market transactions of the equity interests or capital stock of Seller or Seller’s Affiliates, Seller shall provide Buyer notice of any direct change of control of Seller (whether voluntary or by operation of Law).

15.4. D evelopment Agreement Obligations. Buyer acknowledges that Seller has the express consent of the City of Rancho Cucamonga to perform, on behalf of Speedway Commerce Center Development, LLC, the obligations of the “Developer” (as that term is defined in the Development Agreement) set forth in Section 11(G) of the Development Agreement and, further, Speedway Commerce Center Development, LLC is no longer liable for the obligations set forth in Section 11(G) of the Development Agreement. For the avoidance of doubt, Seller is not responsible for any other rights and responsibilities of the Development Agreement other than those found in Section 11(G). Buyer, Seller and Speedway Commerce Center Development, LLC have entered into a separate Operating Memorandum, dated contemporaneously herewith, regarding the Development Agreement.

16. GOVERNING LAW
This agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced, and performed in accordance with the laws of the State of California, without regard to principles of conflicts of law. To the extent enforceable at such time, each party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement.

17. DISPUTE RESOLUTION

17.1. Intent of the Parties. The sole procedure to resolve any claim arising out of or relating to this Agreement is the dispute resolution procedure set forth in this Section 17, except that either Party may seek an injunction in Superior Court in San Bernardino County, California if such action is necessary to prevent irreparable harm, in which case both Parties nonetheless will continue to pursue resolution of all other aspects of the dispute by means of this procedure.

17.2. Management Negotiations.

17.2.1. The Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiations between each Party’s authorized representative, or such other person designated in writing as a representative of the Party (each a “Manager”). Either Manager may request a meeting, to be held in person or telephonically, to initiate negotiations to be held within ten (10) Business Days of the other Party’s receipt of such request, at a mutually agreed time and place.

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30 17.2.2. All communication and writing exchanged between the Parties in connection with these negotiations shall be deemed inadmissible as evidence such that it cannot be used or referred to in any subsequent judicial or arbitration process between the Parties, whether with respect to this dispute or any other.

17.2.3. If the matter is not resolved within forty-five (45) days of commencement of negotiations under Section 17.2.1, or if the Party receiving the written request to meet refuses or does not meet within the ten (10) Business Day period specified in Section 17.2.1, either Party may initiate arbitration of the controversy or claim according to the terms of Section 17.3.

17.3. Arbitration Initiation. If the dispute cannot be resolved by negotiation as set forth in Section 17.2 above, then the Parties shall resolve such controversy through arbitration (“Arbitration”). The Arbitration shall be adjudicated by one retired judge or justice from the JAMS panel. The Arbitration shall take place in San Bernardino County, California, and shall be administered by and in accordance with JAMS’ Commercial Arbitration Rules. If the Parties cannot mutually agree on the arbitrator who will adjudicate the dispute, then JAMS shall provide the Parties with an arbitrator pursuant to its then- applicable Commercial Arbitration Rules. The arbitrator shall have no affiliation with, financial or other interest in, or prior employment with either Party and shall be knowledgeable in the field of the dispute. Either Party may initiate Arbitration by filing with the JAMS a notice of intent to arbitrate at any time following the unsuccessful conclusion of the management negotiations provided for in Section 17.2.

18. MISCELLANEOUS

18.1. Severability. If any provision in this Agreement is determined to be invalid, void or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement or covenant of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

18.2. C
ounterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be deemed one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or PDF transmission will be deemed as effective as delivery of an originally executed counterpart. Each Party delivering an executed counterpart of this Agreement by facsimile or PDF transmission shall also deliver an originally executed counterpart, but the failure of any Party to deliver an originally executed counterpart of this Agreement shall not affect the validity or effectiveness of this Agreement.

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31 18.3. General. No amendment to or modification of this Agreement shall be enforceable unless reduced to writing and executed by both Parties. This Agreement shall not impart any rights enforceable by any third party other than a permitted successor or assignee bound to this Agreement. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. The term “including” when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only.

18.4. I
nterpretation. Whenever this Agreement specifically refers to any Law, tariff, Governmental Authority, regional reliability council,
Transmission/Distribution Owner, or credit rating agency, the Parties hereby agree that the references also refers to any successor to such Law, tariff or organization.

18.5. Construction. The Agreement will not be construed against any Party as a result of the preparation, substitution, or other event of negotiation, drafting or execution thereof.

18.6. F
orward Contract . The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within the meaning of the U.S. Bankruptcy Code, and Buyer and Seller are “forward contract merchants” within the meaning of the U.S. Bankruptcy Code. Each Party further agrees that, for all purposes of this Agreement, each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. § 366 in any Bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort to the extent such term relates to 11 U.S.C. §366 or another provision of 11 U.S.C. § 101-1532.

18.7. C
hange in Electric Market Design. If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Execution Date. Upon
delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 17. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, and (ii) all of the unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution.

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32 18.8. Further Assurances. Each of the Parties hereto agrees to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement.

18.9. T
hird -Party Beneficiary. The Parties agree that Speedway Commerce Center Development, LLC shall be entitled to rely upon, shall be an express third- party beneficiary of, and shall be entitled to enforce, the provisions of this Agreement. For the avoidance of doubt,
Seller may not terminate, cancel,
amend, modify, supplement or change this Agreement, or waive any provision, default, breach or performance, or make any assignment or novation without
the written consent of Speedway Commerce Center Development, LLC (to be granted or withheld in its sole discretion).

IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its authorized representative as of the date of last signature provided below.

VS HW Napa A, LLC CITY OF RANCHO CUCAMONGA
(Seller)

By: Valta Solar LLC, Its Manager

By: ___________________
Name: Mark Milius
Its: Manager
(Buyer)

(Date) (Signature)

(Type/Print Name)

(Title)

(Date)

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APPENDIX A - DEFINITIONS

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33 Appendix A – Definitions
“Affiliate” means, with respect to a Party, any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party.
“Arbitration" has the meaning set forth in Section 17.
“Available Capacity” means the rated alternating current (AC) generating capacity of the Facility, expressed in whole kilowatts, that is available to generate Product. “Bankrupt” means with respect to any entity, such entity:
(a) Files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it that is not dismissed within sixty (60) days;
(b) Makes an assignment or any general arrangement for the benefit of creditors; (c) Otherwise becomes bankrupt or insolvent (however evidenced); (d) Has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to such entity or any substantial portion of its property or assets; or (e) Is generally unable to pay its debts as they fall due. “Business Day” means any day except a Saturday, Sunday, a Federal Reserve Bank holiday, or the Friday following Thanksgiving during the hours of 8:00 a.m. and 5:00 p.m. local time for the relevant Party’s principal place of business where the relevant Party in each instance shall be the Party from whom the notice, payment or delivery is being sent. “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions.
“CAISO Grid” means the system of transmission lines and associated facilities that have been placed under the CAISO’s operational control.
“CAISO Tariff” means the CAISO FERC Electric Tariff, Fifth Replacement Volume No. 1, as amended from time to time.
“California Renewables Portfolio Standard” means the renewable energy program and policies codified in California Public Utilities Code Sections 399.11 through 399.33 and California Public Resources Code Sections 25740 through 25751, as such provisions may be amended or supplemented from time to time.

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34 “Capacity Attributes” means any current or future defined characteristic, certificate, tag, credit, or ancillary service attribute, whether general in nature or specific as to the location or any other attribute of the Project, intended to value any aspect of the capacity of the Project to produce Energy or ancillary services, including, but not limited to, any accounting construct so that the full Contract Capacity of the Project may be counted toward a Resource Adequacy Requirement or any other measure by the CPUC, the CAISO, the FERC, or any other entity invested with the authority under federal or state Law, to require Buyer to procure, or to procure at Buyer’s expense, Resource Adequacy Benefits or other such products. Capacity Attributes do not include (i) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (ii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iii) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits, including any fuel pathway-based credits available from the California Air Resources Board, or incentives available under the Warehouse Actions and Investments to Reduce Emissions Program of the South Coast AQMD.
“CEC” means the California Energy Commission or its successor agency. “CEC Certification” means certification by the CEC that the Facility is an ERR and that all Energy produced by the Facility qualifies as generation from an ERR. “CEC Pre-Certification” means provisional certification of the proposed Facility as an ERR by the CEC upon submission by a facility of a complete application and required supplemental information.
“Check Meter” means the Buyer revenue-quality meter section(s) or meter(s), which Buyer may require at its discretion, and which will include those devices normally supplied by Buyer or Seller under the applicable utility electric service requirements. “City Manager” means the City Manager of the City of Rancho Cucamonga. “Claiming Party” has the meaning set forth in Section 10.2. “Commercial Operation” means the Contract Capacity has been installed and the Facility is operating and able to produce and deliver the Product to Buyer pursuant to the terms of this Agreement.
“Commercial Operation Date” means the date on which the Facility achieves Commercial Operation and the conditions set forth in Section 2.6.5 have been satisfied. “Contract Capacity” means the amount of electric energy generating capacity, set forth in Section 3.1, that Seller commits to install at the Site.

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35 “Contract Price” has the meaning set forth in Section 3.6. “Contract Quantity” has the meaning set forth in Section 3.2. “Contract Year” means a period of twelve (12) consecutive months with the first Contract Year commencing on the Commercial Operation Date and each subsequent Contract Year commencing on the anniversary of the Commercial Operation Date. “Costs” means (a) brokerage fees, commissions and other similar third-party transaction costs and expenses reasonably incurred either in terminating any arrangement pursuant to which it has hedged its obligations or in entering into new arrangements which replace the Transaction; and (b) all reasonable attorneys’ fees and expenses incurred in connection with the termination of the Transaction.
“CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, (a) the rating then assigned to such entity’s unsecured senior long-term debt obligations (not supported by third party credit enhancements), or (b) if such entity does not have a rating for its unsecured senior long-term debt obligations, then the rating assigned to such entity as an issuer rating by S&P and/or Moody’s. If the entity is rated by both S&P and Moody’s and such ratings are not equivalent, the lower of the two ratings shall determine the Credit Rating. If the entity is rated by either S&P or Moody’s, but not both, then the available rating shall determine the Credit Rating. “Curtailment Order” means any instruction from Buyer to Seller to reduce the delivery of Energy from the Facility for any reason other than as set forth in Sections 3.6.3 (a) or (b). “DC” means direct current.
“Delivered Energy” means all Energy produced from the Facility and delivered by Seller to the Delivery Point, expressed in kWh, as recorded by the meter specified in Section 6.2.1 or the Check Meter, as applicable.
“Delivery Point” has the meaning set forth in Section 2.5. “Delivery Term” has the meaning set forth in Section 3.5. “Early Termination Date” has the meaning set forth in Section 12.3. “Eligible Renewable Energy Resource” or “ERR” has the meaning set forth in Public Utilities Code Sections 399.12 or Section 399.16 and California Public Resources Code Section 25741, as these code provision may be amended or supplemented from time to time. “Emergency” means (a) an actual or imminent condition or situation which jeopardizes the integrity of the electric system or the integrity of any other systems to which the electric system is connected or any condition so defined and declared by the CAISO; or (b) an emergency condition as defined under an Interconnection Agreement and any abnormal

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36 interconnection or system condition that requires automatic or immediate manual action to prevent or limit loss of load or generation supply, that could adversely affect the reliability of the electric system or generation supply, that could adversely affect the reliability of any interconnected system, or that could otherwise pose a threat to public safety. “Energy” means three-phase, 60-cycle alternating current electric energy measured in kWh, net of Station Use. For purposes of the definition of “Green Attributes,” the word “energy” shall have the meaning set forth in this definition. “Execution Date” means the latest signature date found at the end of the Agreement. “Development Agreement” means Development Agreement NO. DRC021-00175 Regarding the Speedway Commerce Project, Rancho Cucamonga, California, by and between Speedway Commerce Center Development, LLC and the City of Rancho Cucamonga recorded in the records of San Bernardino County as Document # 2022-0075072, approved by the Rancho Cucamonga City Council and made effective as of February 18, 2022 as Development Agreement Ordinance No. 993.
“Facility” has the meaning set forth in Section 2. The terms “Facility” or “Project” as used in this Agreement are interchangeable.
“FERC” means the Federal Energy Regulatory Commission or any successor government agency.
“Force Majeure” means an event or circumstance which prevents one Party from performing its obligations under the Agreement, which event or circumstance was not anticipated as of the Execution Date, which is not within the reasonable control of, or the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided, including war, riot, civil disturbance or disobedience, terrorism, sabotage, strike, labor dispute, or global supply chain disruptions. Force Majeure does not include: (a) the lack of wind, sun, or other fuel source of an inherently intermittent nature; (b) reductions in generation from the Facility resulting from ordinary wear and tear, deferred maintenance or operator error; (c) any delay in providing, or cancellation of, interconnection service by a Transmission/Distribution Owner or the CAISO, except to the extent such delay or cancellation is the result of a Force Majeure claimed by the Transmission/Distribution Owner or the CAISO; or (d) the inability of a Party to make payments when due under this Agreement. Force Majeure may include delays in performance or inability to perform or comply with the terms and conditions of this Agreement due to delays in obtaining necessary equipment, labor, or materials or other issues caused by or attributable to pandemics or epidemics, including the disease designated COVID-19 or the related virus designated SARS- CoV-2 or any mutations thereof (collectively, “COVID-19”), if the elements of Force Majeure defined in the first sentence hereof (other than the requirement that the event or circumstance was not anticipated as of the date the Agreement was agreed to) have been satisfied; provided, however, that the general existence of COVID-19 shall not be sufficient to prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate establish that a Force Majeure as defined in the first sentence hereof (other than the requirement

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37 that the event or circumstance was not anticipated as of the date the Agreement was agreed to) has occurred.
“Gains” means with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 12.5. Factors used in determining economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties, including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a comparable transaction at liquid trading platforms (e.g., NYMEX), all of which should be calculated for the remaining Delivery Term to determine the value of the Product.
“Governmental Authority” means any federal, state, local or municipal government, governmental department, commission, board, bureau, agency, or instrumentality, or any judicial, regulatory or administrative body, having jurisdiction as to the matter in question. “Governmental Charges” has the meaning set forth in Section 13.1. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Project, and its avoided emission of pollutants. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emission of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere
1; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Purchaser’s discretion, and include without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Project, (ii) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or

1 Avoided emissions may or may not have any value for GHG compliance purposes. Although avoided emissions are included in the list of Green Attributes, this inclusion does not create any right to use those avoided emissions to comply with any GHG regulatory program.

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APPENDIX A - DEFINITIONS

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38 allowances associated with the project that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits, including any fuel pathway-based credits available from the California Air Resources Board, or incentives available under the Warehouse Actions and Investments to Reduce Emissions Program of the South Coast AQMD. “Interconnection Agreement” means the small generator interconnection agreement entered into separately between Seller, Transmission/Distribution Owner, and CAISO (as appropriate) obtained by Seller pursuant to Transmission/Distribution Owner’s Wholesale Distribution Tariff.
“Interconnection Facilities” has the meaning set forth in the tariff applicable to the Seller’s Interconnection Agreement.
“Interconnection Point” has the meaning set forth in Section 2.3. “Interest Rate” means the rate per annum equal to the “Monthly” Federal Funds Rate (as reset on a monthly basis based on the latest month for which such rate is available) as reported in Federal Reserve Bank Publication H.15-519, or its successor publication. “JAMS” means JAMS, Inc. or its successor entity, a judicial arbitration and mediation service.
“kW” means kilowatt.
“kWh” means kilowatt-hour.
“Law” means any statute, law, treaty, rule, regulation, ordinance, code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or other legal or regulatory determination or restriction by a court or Governmental Authority of competent jurisdiction.
“Letter of Credit” means an irrevocable, non-transferable standby letter of credit issued either by a U.S. commercial bank or a foreign bank with a U.S. branch office with a Credit Rating of at least “A-” by S&P and “A3” by Moody’s (without a “credit watch”, “negative outlook” or other rating decline alert if its Credit Rating is “A-” by S&P or “A3” by Moody’s).

The Letter of Credit must be substantially in the form as contained in Appendix G to this Agreement; provided that if the Letter of Credit is issued by a branch of a foreign bank, Buyer may require changes to such form.
“Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from the termination of the Transaction, determined in a commercially reasonable manner, subject to Section 12.5. Factors used in

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APPENDIX A - DEFINITIONS

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39 determining the loss of economic benefit may include, without limitation, reference to information either available to it internally or supplied by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, market price referent, market prices for a comparable transaction, forward price curves based on economic analysis of the relevant markets, settlement prices for a comparable transaction at liquid trading platforms (e.g. NYMEX), all of which should be calculated for the remaining term of the Transaction to determine the value of the Product.
“Manager” has the meaning set forth in Section 17.2.
“Mechanical Completion” means that all equipment and systems that are necessary to generate the effective capacity of the Facility are installed. The Facility is mechanically, electrically, and structurally constructed with all control systems installed and connected. The Facility is functionally complete to the extent necessary to begin commissioning and testing of the Facility, though commissioning and testing need not have commenced.” “MW” means megawatt (AC).
“MWh” means megawatt-hour.
“Notice” unless otherwise specified in the Agreement, means written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail).
“Party” means the Buyer or Seller individually, and “Parties” means both collectively.

For purposes of Section 16 (Governing Law) the word “party” or “parties” shall have the meaning set forth in this definition.
“Photovoltaic Module” means the individual module or component that produces DC electric energy from sun light.
“Product” means all Energy produced by the Facility throughout the Delivery Term, net of Station Use and electrical losses from the Facility to the Delivery Point; all Green Attributes; all Capacity Attributes, if any; and all Resource Adequacy Benefits, if any; generated by, associated with or attributable to the Facility throughout the Delivery Term. For the avoidance of doubt, Product does not include (i) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (ii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iii) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits, including any fuel pathway-based credits available from the California Air Resources Board, or incentives available under the Warehouse Actions and Investments to Reduce Emissions Program of the South Coast AQMD.

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APPENDIX A - DEFINITIONS

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40 “Project” has the meaning set forth in Section 2. The terms “Facility” and “Project” as used in this Agreement are interchangeable.
“Prudent Electrical Practices” means those practices, methods and acts that would be implemented and followed by prudent operators of electric energy generating facilities in the Western United States, similar to the Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, reliability and safety.

Prudent Electrical Practices shall include, at a minimum, those professionally responsible practices, methods and acts described in the preceding sentence that comply with manufacturers’ warranties, restrictions in this Agreement, and the requirements of Governmental Authorities, WECC standards, the CAISO and Laws. Prudent Electrical Practices also includes taking reasonable steps to ensure that:
(a) Equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Facility’s needs;
(b) Sufficient operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to operate the Facility properly and efficiently, and are capable of responding to reasonably foreseeable emergency conditions at the Facility and Emergencies whether caused by events on or off the Site; (c) Preventive, routine, and non-routine maintenance and repairs are performed on a basis that ensures reliable, long term and safe operation of the Facility, and are performed by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools; (d) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed;
(e) Equipment is not operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the Transmission/Distribution Owner’s electric system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and control system limits; and
(f) Equipment and components are designed and manufactured to meet or exceed the standard of durability that is generally used for electric energy generating facilities operating in the Western United States and will function properly over the full range of ambient temperature and weather conditions reasonably expected to occur at the Site and under both normal and emergency conditions.
“Hillwood Speedway Commerce Development” means that certain development project approved by the Rancho Cucamonga City Council and made effective as of February 18, 2022

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41 consisting of two buildings totaling 655,878 square feet under Development Agreement Ordinance No. 993.
“Renewable Energy Credit” has the meaning set forth in Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law. “Reservation Deposit” means the deposit submitted by Seller to Buyer at the time Seller submitted its application for an Industrial Zoning District Renewable PPA contract, which amount shall equal four dollars ($4.00) for each kilowatt of proposed alternating current (AC) generator capacity.
“Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in any Resource Adequacy Rulings and shall include any local, zonal, or otherwise locational attributes associated with the Facility. For the avoidance of doubt, Resource Adequacy Benefits do not include (i) production tax credits associated with the construction or operation of the Project and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation, (ii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iii) emission reduction credits encumbered or used by the Project for compliance with local, state, or federal operating and/or air quality permits, including any fuel pathway-based credits available from the California Air Resources Board, or incentives available under the Warehouse Actions and Investments to Reduce Emissions Program of the South Coast AQMD.
“Resource Adequacy Requirements” has the meaning set forth in Section 4.4.1. “Resource Adequacy Rulings” means any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, as such decisions, rulings, Laws, rules or regulations may be amended or modified from time-to-time during the Delivery Term.
“Settlement Amount” has the meaning set forth in Section 12.5. “Site” means the rooftop on which the Facility is, or will be, located, as further described in Appendix D.
“Site Control” means the Seller, prior to the Commercial Operation Date, has real property interests in the Site sufficient to perform its obligations under the Agreement. “Station Use” means energy consumed within the Facility’s electric energy distribution system as losses, as well as energy used to operate the Facility’s auxiliary equipment. The auxiliary equipment may include, but is not limited to, forced and induced draft fans, cooling towers, boiler feeds pumps, lubricating oil systems, plant lighting, fuel handling systems, control systems, and sump pumps. This use is not to exceed 1% of average annual output.

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42 “Term” has the meaning set forth in Section 3.4.1.
“Transaction” means the particular transaction described in Section 3.3. “Transmission/Distribution Owner” means Rancho Cucamonga Municipal Utility (also “RCMU”), which is responsible for operating the electric distribution system or transmission system, as applicable, at and beyond the Interconnection Point. “WECC” means the Western Electricity Coordinating Council, the regional reliability council for the Western United States, Northwestern Mexico and Southwestern Canada. “WREGIS” means the Western Renewable Energy Generating Information System or any successor renewable energy tracking program.
“WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard.
“WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of October 2022, as subsequently amended, supplemented or replaced (in whole or in part) from time to time.

*** End of Appendix A ***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX B - COMMERCIAL OPERATION DATE

CONFIRMATION LETTER

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43 Appendix B – Commercial Operation Date Confirmation Letter

In accordance with the terms of that certain Industrial Zoning District Renewable Power Purchase Agreement dated ________(“Agreement”) for the Facility named ________________________ by and between CITY OF RANCHO CUCAMONGA (“Buyer”) and VS HW Napa A, LLC (“Seller”), this letter serves to document the Parties further agreement that (i) the conditions precedent to the occurrence of the Commercial Operation Date have been satisfied as of this _____ day of _________, 2023. This letter shall confirm the Commercial Operation Date, as defined in the Agreement, as the date referenced in the preceding sentence.

IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its authorized representative as of the date of last signature provided below:

By: By:

CITY OF RANCHO CUCAMONGA
(Seller) (Buyer)

(Signature) (Signature)

(Type/Print Name) (Type/Print Name)

(Title) (Title)

(Date) (Date)

*** End of Appendix B ***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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44 Appendix C – Forecasting Requirements

A. AVAILABLE CAPACITY FORECASTING.

Seller shall provide the Available Capacity forecasts described below. Seller’s availability forecasts below shall include Project availability and updated status of photovoltaic panels, inverters, transformers, and any other equipment that may impact availability. Seller shall use commercially reasonable efforts to forecast the Available Capacity of the Project accurately and to transmit such information in a format reasonably acceptable to Buyer. Buyer and Seller shall agree upon reasonable changes to the requirements and procedures set forth below from time-to- time, as necessary.

1. Annual Forecast of Available Capacity. No later than (I) the earlier of July 1 of the first calendar year following the Execution Date or one hundred and eighty (180) days before the first day of the first Contract Year of the Delivery Term (“First Annual Forecast Date”), and (II) on or before July 1 for each calendar year from the First Annual Forecast Date for every subsequent Contract Year during the Delivery Term, Seller shall provide to Buyer a non-binding forecast of the hourly Available Capacity for each day in each month of the following calendar year in a form reasonably acceptable to Buyer.

2. M
onthly Forecast of Available Capacity. Ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer a non- binding forecast of the hourly Available Capacity for each day of the following month in a form reasonably acceptable to Buyer.

*** End of Appendix C ***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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45 Appendix D – Description of the Facility

Seller should complete the information below and attach a description of the Facility, including a summary of its significant components, a drawing showing the general arrangements of the Facility, and a single line diagram illustrating the interconnection of the Facility and loads with Buyer’s electric distribution system.

Name of the Facility: VS HW Napa A, LLC
Address of the Facility: 13160 Napa Street Rancho Cucamonga, California, 91730 Description of the Facility, including a summary of its significant components, such as for solar photovoltaic, meteorological station, instrumentation and any other related electrical equipment:

This project entails the installation of a roof-mounted, solar photovoltaic (PV) system with grid-interactive inverters and associated equipment to supply power directly to the existing electrical system. The proposed pv system will be connected from the breaker panel, through the fit meter, and to the existing transformer on site if agreeable with the utility, which shall serve as the point of interconnection. The pv system is intended to operate in parallel with the electric utility service provider. Anti-islanding protection and harmonic limits shall comply with UL 1741, IEEE 1547 and IEEE 519.

PV Module: (7100) Heliene 144HC M10 Bifacial Module (530W) Inverter (Number) Module: (25) Solaredge SE 120KUS
DC Optimizer: Solaredge P1100
Mounting Equipment: Solar Strap
AC Watts: 3,000kW

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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46 Site Plan

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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47 Single Line Diagram

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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48 Legal Description
The land referred to herein is situated in the State of California, County of San Bernardino, City of Rancho Cucamonga and described as follows:

PARCEL 2 AS SHOWN ON CERTIFICATE OF COMPLIANCE NO. 507, AS EVIDENCED BY DOCUMENT RECORDED JANUARY 17, 2002 AS INSTRUMENT NO. 20020026839 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

ALL THOSE PORTIONS OF THE FOLLOWING DESCRIBED LAND LYING WITHIN

THOSE CERTAIN PARCELS OF LAND GRANTED TO KAISER STEEL LAND DEVELOPMENT, INC., A DELAWARE CORPORATION, AND DESCRIBED AS PARCELS NO. 1, 2, 3, AND 4, AND A PORTION PARCEL NO. 6, BY DOCUMENT RECORDED JULY 28, 1994 AS INSTRUMENT NO. 94-323332 OF OFFICIAL RECORDS OF THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, IN THE WEST ONE-HALF OF SECTION 9 AND SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST, SAN BERNARDINO MERIDIAN, AND THAT PORTION OF THE EAST ONE-HALF OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST, SAN BERNARDINO MERIDIAN, IN SAID COUNTY, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 9, SAID CORNER BEING LOCATED IN THE CENTER LINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 368.12 FEET ALONG THE WEST LINE OF SAID SECTION 9 AND THE

CENTERLINE OF SAID ETIWANDA AVENUE TO THE SOUTHERLY RIGHT OF WAY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY, 100 FEET IN WIDTH; THENCE NORTH 87° 54'59" EAST, 50.04 FEET ALONG SAID SOUTHERLY RIGHT OF

WAY LINE TO THE EASTERLY RIGHT OF WAY LINE OF SAID ETIWANDA AVENUE (50.00 HALF WIDTH) TO THE TRUE POINT OF BEGINNING; THENCE NORTH 87°54'59" EAST, 911.48 FEET ALONG SAID SOUTHERLY RIGHT OF WAY LINE TO AN ANGLE

POINT IN THE NORTHWESTERLY BOUNDARY LINE OF THE REAL PROPERTY CONVEYED TO NATIONAL CANORPORATION BY DEED RECORDED MAY 06, 1965 IN BOOK 6385, PAGE 456 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 60°06'26" WEST, 214.28 FEET ALONG SAID NORTHWESTERLY BOUNDARY TO A ANGLE POINT IN SAID BOUNDARY; THENCE SOUTH 00°07'03" WEST, 554.86 FEET ALONG THE WESTERLY BOUNDARY OF SAID NATIONAL CAN CORPORATION BOUNDARY TO THE SOUTHWEST CORNER OF SAID BOUNDARY; THENCE NORTH 88°57'35" EAST, 1324.24 FEET ALONG THE SOUTHERLY BOUNDARY

OF SAID NATIONAL CAN CORPORATION BOUNDARY TO THE SOUTHEAST CORNER OF SAID BOUNDARY; THENCE NORTH 00°07'03" EAST, 679.03 FEET ALONG THE

EASTERLY BOUNDARY OF SAID NATIONAL CAN CORPORATION BOUNDARY TO THE

NORTHEAST CORNER OF SAID BOUNDARY, SAID NORTHEAST CORNER ALSO BEING

ON SAID SOUTHERLY RIGHT OF WAY LINE OF THE ATCHISON TOPEKA AND SANTA FE RAILWAY; THENCE NORTH 87°54'59" EAST, 447.68 FEET ALONG SAID SOUTHERLY

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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49 RIGHT OF WAY LINE TO A LINE PARALLEL WITH AND DISTANT WESTERLY 100.00 FEET FROM THE SOUTHWEST ONE-QUARTER OF SAID SECTION 9; THENCE SOUTH 00°15'05" WEST, 414.32 FEET ALONG SAID PARALLEL LINE, TO A POINT ON THE SOUTH LINE OF SAID SECTION 9 SAID POINT ALSO BEING ON THE NORTHERLY LINE OF SAID SECTION 16; THENCE NORTH 88°57'18" EAST, 100.02 FEET ALONG SAID

NORTHERLY LINE, TO THE NORTHEAST CORNER OF THE NORTHWEST ONE- QUARTER OF SAID SECTION 16; THENCE NORTH 88° 57'18" EAST, 200.03 FEET ALONG THE NORTHERLY LINE OF THE NORTHEAST ONE-QUARTER OF SAID SECTION 16 TO A POINT ON THE EASTERLY LINE OF THE WESTERLY 200.00 FEET OF THE EAST ONE- HALF OF SAID SECTION 16; THENCE SOUTH 00°06'58" WEST, 799.51 FEET TO A POINT

ON THE NORTHERLY LINE OF NAPA STREET AS DESCRIBED IN DOCUMENT RECORDED OCTOBER 06, 1995 AS INSTRUMENT NO.19950348166, AND DOCUMENT RECORDED NOVEMBER 22, 1995 AS INSTRUMENT NO. 19950404553, BOTH OF

OFFICIAL RECORDS, SAID POINT ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 883.00 FEET, A

RADIAL LINE THROUGH THE BEGINNING OF SAID NONTANGENT CURVE BEARS NORTH 23°08'53" WEST; THENCE FOLLOWING (7) SEVEN COURSES ALONG THE NORTHERLY LINE OF SAID NAPA STREET: THENCE SOUTHWESTERLY 36.49 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02°22'05", TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 817.00

FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS SOUTH 25°30'58" EAST; THENCE WESTERLY 729.50 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 51°09'34" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 883.00 FEET, A

RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS NORTH 25°38'36" EAST; THENCE WESTERLY 390.98 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 25°22'10"; THENCE NORTH 89°43'34" WEST, 518.43 FEET TO THE

BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 1033.00 FEET; THENCE SOUTHWESTERLY 188.14 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10°26'06" TO

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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50 THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 967.00 FEET, A RADIAL LINE THROUGH THE BEGINNING OF SAID REVERSE CURVE BEARS SOUTH 10°09'40" EAST; THENCE WESTERLY 176.47 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 10°27'22"; THENCE NORTH 89°42'18" WEST, 222.48 FEET TO A POINT ON THE EAST LINE OF THAT CERTAIN STRIP OF LAND,150.00 FEET WIDE, DESCRIBED IN THE RIGHT OF WAY EASEMENT FROM FRANK BORGIA ET UX. TO SOUTHERN CALIFORNIA EDISON COMPANY LTD., RECORDED SEPTEMBER 27, 1938 IN BOOK 1301, PAGE 183 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 00°07'03" EAST, 714.03 FEET ALONG SAID EAST LINE TO THE SOUTHERLY LINE OF SAID SECTION 9; THENCE NORTH 00°04'52" EAST, 319.38 FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 AS CONVEYED TO ROBERT C. RINGHOLZ BY DEED RECORDED NOVEMBER 30, 1948 IN BOOK 2327, PAGE 359 OF OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEARS 625.52 FEET (625.56 FEET GROUND)

EAST ALONG SAID SOUTHERLY LINE FROM THE SOUTHWEST CORNER OF PARCEL NO. 1 OF SAID ROBERT C. RINGHOLZ PROPERTY, SAID SOUTHWEST CORNER BEING ON THE CENTERLINE OF SAID ETIWANDA AVENUE; THENCE SOUTH 87°54'59" WEST, 575.48 FEET ALONG SAID SOUTHERLY LINE TO THE INTERSECTION OF SAID EASTERLY RIGHT OF WAY LINE OF SAID ETIWANDA AVENUE; THENCE NORTH 00° 06'43" EAST, 60.04 FEET ALONG SAID EASTERLY RIGHT OF WAY LINE TO THE TRUE POINT OF BEGINNING.

EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:

BEING A PORTION OF THE SOUTHWEST ONE-HALF OF SECTION 9 AND A PORTION OF THE NORTHWEST ONE-QUARTER OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6

WEST, SAN BERNARDINO MERIDIAN, SITUATED IN THE CITY OF RANCHO

CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, SAID

PORTION ALSO BEING A PORTION OF THE LAND DESCRIBED IN GRANT DEED TO KAISER STEEL LAND DEVELOPMENT, INC., RECORDED JANUARY 12, 2000 AS INSTRUMENT NO. 20000011988 OFOFFICIAL RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 9, SAID CORNER BEING ON THE CENTERLINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 368.09 FEET ALONG THE WEST LINE OF SAID SECTION 9 AND SAID

CENTERLINE TO THE SOUTHERLY LINE OF THE ATCHISON TOPEKA ANDSANTA FE RAILWAY RIGHT-OF-WAY (100 FEET WIDE); THENCE NORTH 87°54'59" EAST 50.04

FEET ALONG SAID SOUTHERLY LINE TO THE EASTERLY LINE OF SAID ETIWANDA AVENUE (50.00 FEET HALF WIDTH), SAID POINT BEING THE POINT OF BEGINNING; THENCE NORTH 87°54'59" EAST, 911.48 FEET CONTINUING ALONG SAID SOUTHERLY

LINE TO AN ANGLE POINT IN THE NORTHWESTERLY LINE OF THE PARCEL OF LAND

DESCRIBED IN GRANT DEED TO NATIONAL CAN CORPORATION, RECORDED MAY 06, 1965 IN BOOK 6385, PAGE 456 OF OFFICIAL RECORDS; THENCE SOUTH 60°06'26"

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX C - FORECASTING REQUIREMENTS

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51 WEST 214.28 FEET ALONG SAID NORTHWESTERLY LINE TO AN ANGLE POINT IN SAID PARCEL; THENCE SOUTH 00°07'03" WEST, 554.86 FEET ALONG THE WESTERLY LINE OF SAID PARCEL TO THE SOUTHWEST CORNER OF SAID PARCEL; THENCE SOUTH 88°57'35" WEST, 150.02 FEET ALONG THE WESTERLY PROJECTION OF THE

SOUTHERLY LINE OF SAID PARCEL TO A POINT ON THE EASTERLY LINE OF THAT CERTAIN STRIP OF LAND, 150 FEET WIDE, DESCRIBED IN RIGHT-OF-WAY EASEMENT, TO SOUTHERN CALIFORNIA EDISON COMPANY, LTD., RECORDED SEPTEMBER 27, 1938 IN BOOK 1301, PAGE 183 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 00°07'03" EAST, 272.73 FEET ALONG LAST SAID EASTERLY LINE TO THE SOUTH LINE OF SAID SECTION 9; THENCE NORTH 00°04'52" EAST, 319.38

FEET TO A POINT ON THE SOUTHERLY LINE OF THE LAND DESCRIBED AS PARCEL NO. 1 IN GRANT DEED TO ROBERT C. RINGHOLZ, RECORDED NOVEMBER 30, 1948 IN BOOK 2327, PAGE 359 OF OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEARS 625.52 FEET (625.56 FEET GROUND) EAST ALONG SAID SOUTHERLY LINE FROM THE SOUTHWEST CORNER OF SAID PARCEL 1 OF SAID ROBERT C. RINGHOLZ PROPERTY, SAID SOUTHWEST CORNER BEING ON THE CENTERLINE OF ETIWANDA AVENUE; THENCE SOUTH 87°54'59" WEST, 575.48 FEET ALONG LAST SAID SOUTHERLY LINE TO A POINT ON SAID EASTERLY LINE OF ETIWANDA AVENUE; THENCE NORTH 00°06'43" EAST, 60.04 FEET ALONG LAST SAID EASTERLY LINE TO THE POINT OF

BEGINNING
TOGETHER WITH THAT PORTION DESCRIBED AS FOLLOWS:

BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF SECTION 9 AND A PORTION OF THE NORTHWEST ONE-QUARTER OF SECTION 16, TOWNSHIP 1 SOUTH, RANGE 6 WEST, SAN BERNARDINO MERIDIAN, SITUATED IN THE CITY OF RANCHO

CUCAMONGA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, SAID

PORTION ALSO BEING A PORTION OF THE PARCEL OF LAND DESCRIBED IN GRANT DEED TO NATIONAL CAN CORPORATION, RECORDED MAY 06, 1965 IN BOOK 6385, PAGE 456 OF OFFICIAL RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEAST CORNER OF SAID NATIONAL CAN CORPORATION PARCEL; THENCE SOUTH 88°57'35" WEST, 567.50 FEET ALONG THE SOUTHERLY LINE

OF SAID PARCEL TO A POINT ON A NON- TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 1062.15 FEET, A RADIAL BEARING TO SAID POINT BEARS NORTH 72°53'33" WEST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48°02'18" AN ARC LENGTH OF 890.54 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL; THENCE SOUTH 00°07'03" WEST, 641.03 FEET ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING APN: 0229-291-54, 0229-291-45-0000, and 0229-291-46-0000 (End of Legal Description)

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT

APPENDIX D - DESCRIPTION OF THE FACILITY

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52 Longitude and Latitude

34.09102, -117.51594

*** End of Appendix D ***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX E – SELLER’S MILESTONE SCHEDULE

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53 APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA

MILESTONES AND EXAMPLE ACTION STEPS
Action Target Date Date Completed Responsible Party

Step 1: Sign Conditional PPA May 31, 2023 Both
Step 2: Acquire Interconnection Agreement May 31, 2023 Both

Step 3: Submit confirmation of RPS precertification
requirement and provide Copy of precertification
application to Buyer
June 1, 2023
Seller
Step 4: File Project with WREGIS and submit proof to
Buyer.

January 1, 2025 Seller
Seller
Step 5: Acquire Construction Permits August 30, 2023 Seller Step 6: Submit proof of permits to Buyer. September 30, 2023 Seller Step 7: Notify Buyer 10 days prior to construction start. October 1, 2023 Seller Step 8: Submit proof of insurance to Buyer. October 1, 2023 Seller Step 9: Mechanical Completion. September 1, 2024 Seller Step 10: Notify Buyer 30 days in advance of the
Commercial Operation Date.

November 1, 2024 Seller
Step 11: Commercial Operation Date December 1, 2024 Seller Step 12: Submit application for certification to CEC. February 1, 2025 Seller ** The Target Dates in this Appendix E are estimates and shall not be binding on either Buyer or Seller.

*** End of Appendix E ***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX F – CONTRACT QUANTITY SCHEDULE

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54 Appendix F – Delivery Term Contract Quantity Schedule Dated: Execution Date
Contract Year Contract Quantity (kWh/Yr)
1 5,014,092
2 4,909,444
3 4,824,208
4 4,768,005
5 4,725,549
6 4,691,798
7 4,663,169
8 4,637,548
9 4,614,538
10 4,593,563
11 4,574,323
12 4,556,350
13 4,539,152
14 4,522,719
15 4,506,570
16 4,490,470
17 4,474,883
18 4,459.338
19 4,443,837
20 4,428,150
21 4,412,508
22 4,390,786
23 4,369,168
24 4,347,654
25 4,326,244

*** End of Appendix F***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX G – NOTICES LIST

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55 Appendix G – Notices List

Name: VS HW Napa A, LLC (“Seller”) Name: CITY OF RANCHO CUCAMONGA, a (“Buyer” or “RCMU”)
All Notices: Valta Energy LLC All Notices:

Delivery Address: 24941 Dana Point Harbor
Drive, Ste, C-220
Delivery Address: 10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Dana Point, CA 92629

Mail Address: (if different from above) Mail Address:

Attn: Legal Attn: RCMU
Phone: 949-636-0599 Phone: (909) 919-2612
Facsimile: Facsimile: (909) 477-2741

With copies that shall not constitute Notice
to:

Speedway Commerce Center
Development, LLC
c/o Hillwood Development
901 Via Piemonte, Suite 175
Ontario, CA 91764
Attn: Scott Morse
Email: [email protected]

Hillwood Legal Department
3000 Turtle Creek Blvd
Dallas, Texas 75219
Attn: John Emslie and Marla Long
Email: [email protected]
;
[email protected]

With a copy to:

Richards, Watson & Gershon
350 South Grand Ave, 37
th Floor
Los Angeles, CA 90071
Attn: Nicholas R. Ghirelli, City Attorney
DUNS: DUNS: 00-705-2970
Federal Tax ID Number: Federal Tax ID Number: 95-3213002

Invoices: Invoices:

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX G – NOTICES LIST

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56 Attn: Legal and Treasurer Attn: City of Rancho Cucamonga - RCMU Phone: 949-371-7227 Phone: (909) 774-4035
Facsimile: Facsimile: [email protected]
[email protected]

Payments: Payments:

Attn: Legal and Treasurer Attn: City of Rancho Cucamonga - RCMU

Phone: 949-371-7227 Phone: (909) 774-4035
Facsimile: Facsimile: [email protected]
[email protected]

Wire Transfer: Wire Transfer:

BNK:

ABA:

ACCT:

BNK: U.S. Bank
ABA: 122235821
ACCT: 158300181845

Credit and Collections: Credit and Collections:

Attn: Attn: City of Rancho Cucamonga - RCMU

Phone: Phone: (909) 774-4035
Facsimile: Facsimile: [email protected]
[email protected]

With additional Notices of an Event of
Default to Contract Manager:

Contract Manager:

Attn: Attn: RCMU – Attn: Fred Lyn

Phone: Phone: (909) 774-4035
Facsimile:

*** End of Appendix G***

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX H – FORM OF LETTER OF CREDIT

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57 Appendix H – FORM OF LETTER OF CREDIT

Issuing Bank Letterhead and Address

STANDBY LETTER OF CREDIT NO. XXXXXXXX

Date: [insert issue date]

Beneficiary: City of Rancho Cucamonga Applicant: [Insert name and address of Applicant]

Attention:

Letter of Credit Amount: [insert amount]

Expiry Date: [insert expiry date]

Ladies and Gentlemen:

By order of [insert name of Applicant] (“Applicant”), we hereby issue in favor of City of Rancho Cucamonga (the “Beneficiary”) our irrevocable standby letter of credit No. [insert number of letter of credit] (“Letter of Credit”), for the account of Applicant, for drawings up to but not to exceed the aggregate sum of U.S. $ [insert amount in figures followed by (amount in words)] (“Letter of Credit Amount”). This Letter of Credit is available with [insert name of issuing bank, and the city and state in which it is located] by sight payment, at our offices located at the address stated below, effective immediately, and it will expire at our close of business on [insert expiry date] (the “Expiry Date”).

Funds under this Letter of Credit are available to the Beneficiary against presentation of the following documents:

1. Beneficiary’s signed and dated sight draft in the form of Exhibit A hereto, referencing this Letter of Credit No. [insert number] and stating the amount of the demand; and

2. One of the following statements signed by an authorized representative or officer of Beneficiary:

A. “Pursuant to the terms of that certain [insert name of the agreement] (the “Agreement”), dated [insert date of the Agreement], between Beneficiary and [insert

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX H – FORM OF LETTER OF CREDIT

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58 name of Seller under the Agreement], Beneficiary is entitled to draw under Letter of Credit No. [insert number] amounts owed by [insert name of Seller under the Agreement] under the Agreement; or

B. “Letter of Credit No. [insert number] will expire in thirty (30) days or less and [insert name of Seller under the Agreement] has not provided replacement security acceptable to Beneficiary.

Special Conditions:

1. Partial and multiple drawings under this Letter of Credit are allowed;

2. All banking charges associated with this Letter of Credit are for the account of the Applicant;

3. This Letter of Credit is not transferable; and

4. The Expiry Date of this Letter of Credit shall be automatically extended without a written amendment for a period of one year and on each successive Expiry Date, unless at least sixty (60) days before the then current Expiry Date, we notify you by registered mail or courier that we elect not to extend the Expiry Date of this Letter of Credit for such additional period.

We engage with you that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation, on or before the Expiry Date (or after the Expiry Date as provided below), at our offices at [insert issuing bank’s address for drawings].

All demands for payment shall be made by presentation of originals or copies of documents; or by facsimile transmission of documents to [insert fax number], Attention: [insert name of issuing bank’s receiving department], with originals or copies of documents to follow by overnight mail. If presentation is made by facsimile transmission, you may contact us at [insert phone number] to confirm our receipt of the transmission. Your failure to seek such a telephone confirmation does not affect our obligation to honor such a presentation.

Our payments against complying presentations under this Letter of Credit will be made no later than on the sixth (6th) banking day following a complying presentation.

Except as stated herein, this Letter of Credit is not subject to any condition or qualification. It is our individual obligation, which is not contingent upon reimbursement and is not affected by any agreement, document, or instrument between us and the Applicant or between the Beneficiary and the Applicant or any other party.

Except as otherwise specifically stated herein, this Letter of Credit is subject to and governed by the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce (ICC) Publication No. 600 (the “UCP 600”); provided that, if this Letter of Credit expires during an interruption of our business as described in Article 36 of the UCP 600, we will honor drafts presented in compliance with this Letter of Credit within thirty (30) days after the resumption of our business and effect payment accordingly.

The law of the State of California shall apply to any matters not covered by the UCP 600.

INDUSTRIAL ZONING DISTRICT RENEWABLE

POWER PURCHASE AGREEMENT
APPENDIX H – FORM OF LETTER OF CREDIT

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59 For telephone assistance regarding this Letter of Credit, please contact us at [insert number and any other necessary details].

Very truly yours,

[insert name of issuing bank]
By:

Authorized Signature
Name: [print or type name]
Title:

*** End of Appendix H***
ATTACHMENT 1
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Appendix I – FORM OF CONSENT TO ASSIGNMENT

CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (“Consent and Agreement”) is entered into as of September __, 2023 between CITY OF RANCHO CUCAMONGA (“RCMU”), and KeyBank National Association, as collateral agent (in such capacity, “Financing Provider”), for the benefit of various financial institutions (collectively, the “Secured Parties”) providing financing to VS HW Napa A, LLC, a Delaware limited liability company (“Seller”). RCMU, Seller, and the Financing Provider shall each individually be referred to as a “Party” and collectively as the “Parties”.

Recitals
A. Pursuant to that certain Power Purchase Agreement dated as of September ____, 2023 (as amended, modified, supplemented or restated from time to time, as including all related agreements, instruments and documents, collectively, the “Assigned Agreement”) between RCMU and Seller, RCMU has agreed to purchase energy from Seller.

B. The Secured Parties have provided, or have agreed to provide, to Seller financing (including a financing lease) pursuant to one or more agreements (the “Financing Documents”), and require that Financing Provider be provided certain rights with respect to the “Assigned Agreement” and the “Assigned Agreement Accounts,” each as defined below, in connection with such financing.

C. In consideration for the execution and delivery of the Assigned Agreement, RCMU has agreed to enter into this Consent and Agreement for the benefit of Seller.

Agreement

1. Definitions. Any capitalized term used but not defined herein shall have the meaning specified for such term in the Assigned Agreement.

2. C onsent. Subject to the terms and conditions below, RCMU consents to and approves the pledge and assignment by Seller to Financing Provider pursuant to the Loan Agreement and/or Security Agreement of (a) the Assigned Agreement, and (b) the accounts, revenues and proceeds of the Assigned Agreement (collectively, the “Assigned Agreement Accounts”).

3. L imitations on Assignment. Financing Provider acknowledges and confirms that, notwithstanding any provision to the contrary under applicable law or in any Financing Document executed by Seller, Financing Provider shall not assume, sell or otherwise dispose of the Assigned Agreement (whether by foreclosure sale, conveyance in lieu of foreclosure or otherwise) unless, on or before the date of any such assumption, sale or disposition, Financing Provider or any third party, as the case may be, assuming, purchasing or otherwise acquiring the Assigned Agreement [(a) cures any and all defaults of Seller under the Assigned Agreement which are capable of being cured and which are not personal to the Seller, (b) executes and delivers to RCMU a written assumption of all of Seller’s rights and obligations under the

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61 Assigned Agreement in form and substance reasonably satisfactory to RCMU, (c) otherwise satisfies and complies with all requirements of the Assigned Agreement, (d) provides such tax and enforceability assurance as RCMU may reasonably request, and (e) is a Permitted Transferee (as defined below)]. Financing Provider further acknowledges that the assignment of the Assigned Agreement and the Assigned Agreement Accounts is for security purposes only and that Financing Provider has no rights under the Assigned Agreement or the Assigned Agreement Accounts to enforce the provisions of the Assigned Agreement or the Assigned Agreement Accounts unless and until an event of default has occurred and is continuing under the Financing Documents between Seller and Financing Provider (a “Financing Default”), in which case Financing Provider shall be entitled to all of the rights and benefits and subject to all of the obligations which Seller then has or may have under the Assigned Agreement to the same extent and in the same manner as if Financing Provider were an original party to the Assigned Agreement.
“Permitted Transferee” [means any person or entity who is reasonably acceptable to RCMU.] Financing Provider may from time to time, following the occurrence of a Financing Default, notify RCMU in writing of the identity of a proposed transferee of the Assigned Agreement, which proposed transferee may include Financing Provider, in connection with the enforcement of Financing Provider’s rights under the Financing Documents, and RCMU shall, within thirty (30) business days of its receipt of such written notice, confirm to Financing Provider whether or not such proposed transferee is a “Permitted Transferee” (together with a written statement of the reason(s) for any negative determination) it being understood that if RCMU shall fail to so respond within such thirty (30) business day period such proposed transferee shall be deemed to be a “Permitted Transferee”.

4. C
ure Rights.
(a) Notice to Financing Provider by RCMU . RCMU shall, concurrently with the delivery of any notice of an event of default under the Assigned Agreement (each, an “Event of Default”) to Seller (a “Default Notice”), provide a copy of such Default Notice to Financing Provider pursuant to Section 9(a) of this Consent and Agreement. In addition, Seller shall provide a copy of the Default Notice to Financing Provider the next business day after receipt from RCMU, independent of any agreement of RCMU to deliver such Default Notice. (b) C
ure Period Available to Financing Provider Prior to Any Termination by RCMU. Upon the occurrence of an Event of Default, subject to (i) the expiration of the relevant cure periods provided to Seller under the Assigned Agreement, and (ii) Section 4(a) above, RCMU shall not terminate the Assigned Agreement unless it or Seller provides Financing Provider with notice of the Event of Default and affords Financing Provider an Additional Cure Period (as defined below) to cure such Event of Default. For purposes of this Agreement “Additional Cure Period” means (i) with respect to a monetary default, ten (10) business days in addition to the cure period (if any) provided to Seller in the Assigned Agreement, and (ii) with respect to a non-monetary default, sixty(60) days in addition to the cure period (if any) provided to Seller in the Assigned Agreement, and to the extent that such non-monetary default is incapable of being cured within this sixty (60) day cure period, up to an additional sixty (60) day period if diligently pursuing cure.

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62 (c) Failure by RCMU to Deliver Default Notice. If neither RCMU nor Seller delivers a Default Notice to Financing Provider as provided in Section 4(a), the Financing Provider’s applicable cure period shall begin on the date on which notice of an Event of Default is delivered to Financing Provider by either RCMU or Seller. Except for a delay in the commencement of the cure period for Financing Provider and a delay in RCMU’s ability to terminate the Assigned Agreement (in each case only if both RCMU and Seller fail to deliver notice of an Event of Default to Financing Provider), failure of RCMU to deliver any Default Notice shall not waive RCMU’s right to take any action under the Assigned Agreement and will not subject RCMU to any damages or liability for failure to provide such notice. (d) E xtension for Foreclosure Proceedings. If possession of the Project (as defined in the Assigned Agreement) is necessary for Financing Provider to cure an Event of Default and Financing Provider commences foreclosure proceedings against Seller within thirty (30) days of receiving notice of an Event of Default from RCMU or Seller, whichever is received first, Financing Provider shall be allowed a reasonable additional period to complete such foreclosure proceedings, such period not to exceed two hundred seventy (270) days; provided, however, that Financing Provider shall provide a written notice to RCMU that it intends to commence foreclosure proceedings with respect to Seller within ten (10) business days of receiving a notice of such Event of Default from RCMU or Seller, whichever is received first. In the event Financing Provider succeeds to Seller’s interest in the Project as a result of foreclosure proceedings, the Financing Provider or a purchaser or grantee pursuant to such foreclosure shall be subject to the requirements of Section 3 of this Consent and Agreement.

5. Setoffs and Deductions. [Each of Seller and Financing Provider agrees that RCMU shall have the right to set off or deduct from payments due to Seller each and every amount due RCMU from Seller whether or not arising out of or in connection with the Assigned Agreement.] Financing Provider further agrees that it takes the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts subject to any defenses or causes of action RCMU may have against Seller.

6. N
o Representation or Warranty. Seller and Financing Provider each recognizes and acknowledges that RCMU makes no representation or warranty, express or implied, that Seller has any right, title, or interest in the Assigned Agreement or as to the priority of the assignment for security purposes of the Assigned Agreement or the Assigned Agreement Accounts.

Financing Provider is responsible for satisfying itself as to the existence and extent of Seller’s right, title, and interest in the Assigned Agreement, and Financing Provider releases RCMU from any liability resulting from the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts.

7. A
mendment to Assigned Agreement. [Financing Provider acknowledges and agrees that RCMU may agree with Seller to modify or amend the Assigned Agreement, and that RCMU is not obligated to notify Financing Provider of any such amendment or modification to the Assigned Agreement. Financing Provider hereby releases RCMU from all liability arising out of or in connection with the making of any amendment or modification to the Assigned Agreement.]

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63 8. Payments under Assigned Agreement. RCMU shall make all payments due to Seller under the Assigned Agreement from and after the date hereof to [__________], as depositary agent, to ABA No. [__________], Account No. [__________], and Seller hereby irrevocably consents to any and all such payments being made in such manner. Each of Seller, RCMU and Financing Provider agrees that each such payment by RCMU to such depositary agent of amounts due to Seller from RCMU under the Assigned Agreement shall satisfy RCMU’s corresponding payment obligation under the Assigned Agreement.

9. M
iscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed received (i) at the close of business of the date of receipt, if delivered by hand or by facsimile or other electronic means, or (ii) when signed for by recipient, if sent registered or certified mail, postage prepaid, provided such notice was properly addressed to the appropriate address indicated on the signature page hereof or to such other address as a party may designate by prior written notice to the other parties, at the address set forth below:

If to Financing
Provider:

Name: KeyBank National
Association
Address: 127 Public Square
Cleveland, OH 44114
MailCode: OH-01-27-0881
Attn: Renee Bonnell
Telephone:

Facsimile:

Email: [email protected]

With a copy to:

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64 If to Financing
Provider:

Name: KeyBank National
Association
Address: 4910 Tiedeman Road
Brooklyn, OH 44144
MailCode: OH-01-49-0114
Attn: Regina Pitts
Telephone:

Facsimile:

Email: [email protected]

If to RCMU:

Name:

Address:

Attn:

Telephone:

Facsimile:

Email:

(b) No Assignment. This Consent and Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of RCMU, and shall be binding on and inure to the benefit of the Financing Provider, the Secured Parties and their respective successors and permitted transferees and assigns under the loan agreement and/or security agreement. (c) N o Modification. This Consent and Agreement is neither a modification of nor an amendment to the Assigned Agreement.
(d) C hoice of Law. The parties hereto agree that this Consent and Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. (e) N
o Waiver . No term, covenant or condition hereof shall be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the party claimed to have so waived or excused.

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65 (f) Counterparts. This Consent and Agreement may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement.
(g) N o Third Party Beneficiaries . There are no third party beneficiaries to this Consent and Agreement.
(h) S everability . The invalidity or unenforceability of any provision of this Consent and Agreement shall not affect the validity or enforceability of any other provision of this Consent and Agreement, which shall remain in full force and effect. (i) A mendments. This Consent and Agreement may be modified, amended, or rescinded only by writing expressly referring to this Consent and Agreement and signed by all parties hereto.

IN WITNESS WHEREOF, each of RCMU and Financing Provider has duly executed this Consent and Agreement as of the date first written above.

[page intentionally left blank. Signature page to follow]

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66 City of Rancho Cucamonga (RCMU)

By: _________________________________
Name: _______________________________
Title: ________________________________

KeyBank National Association (Financing
Provider), as collateral agent

By: _________________________________
Name: _______________________________
Title: ________________________________

ACKNOWLEDGEMENT
The undersigned hereby acknowledges the Consent and Agreement set forth above, makes the agreements set forth therein as applicable to Seller, including the obligation of Seller to provide a copy of any Default Notice it receives from RCMU to Financing Provider the next business day after receipt by Seller, and confirms that the Financing Provider identified above and the Secured Parties have provided or are providing financing to the undersigned.

VS HW Napa A, LLC
By: Valta Solar LLC
Its: Manager

By: _________________
Name: Mark Milius
Title: Manager

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67 *** End of Appendix I***

102094\16662237v3
ATTACHMENT 2

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Rancho Cucamonga City CouncilSeptember 6, 2023

Rancho Cucamonga City Council
September 6, 2023