OPERATING MEMORANDUM
This operating memorandum (the “Operating Memorandum”), effective September 6, 2023, between Speedway Commerce Center Development, LLC, (“Developer”), VS HW Napa A, LLC, a Delaware limited liability company (“Valta”), and the the City of Rancho Cucamonga, a California municipal corporation (“City”), acting as the Rancho Cucamonga Municipal Utility (“RCMU”) (collectively, “the Parties”), is entered into pursuant to Section 34 of Development Agreement No. DRC2021-00175 dated January 19, 2022 between Developer and the City (“Development Agreement”) regarding the Speedway Commerce Project located in Rancho Cucamonga, California (“Project”).
WHEREAS, Developer is the owner and developer of the Project; WHEREAS, Developer and City entered into the Development Agreement setting forth certain conditions and requirements regarding the development of the Project; WHEREAS, Section 11(G) of the Development Agreement requires Developer to install a “solar collector” renewable energy production facility (“Facility”) as part of the Project and to execute a Power Purchase Agreement with RCMU for the sale of the renewable energy produced by the Facility;
WHEREAS, Valta is a developer, owner and operator of renewable energy projects and has agreed pursuant to a separate agreement with Developer to fulfill the Section 11(G) requirements on Developer’s behalf, and RCMU agrees to the same; and WHEREAS, the Parties desire to clarify the Development Agreement by way of this Operating Memorandum, as permitted by Section 34.
NOW, THEREFORE, the Parties agree as follows:
1. The City acknowledges and agrees that the Development Agreement’s requirements set forth in Section 11(G) may be performed by Valta, acting on behalf of Developer, and shall be considered satisfied in full by Valta, acting on behalf of Developer, once Valta has completed installation of the Facility, executed the Power Purchase Agreement in a form approved by RCMU, and achieved Commercial Operation (as defined in the Power Purchase Agreement). The City also expressly acknowledges that the City Engineer has confirmed that Valta, acting on behalf of Developer, has fulfilled the roof coverage requirement in Section 11(G) of the Development Agreement.
2. The Development Agreement’s requirement that Developer execute a Power Purchase Agreement with RCMU within six (6) months of the Effective Date of the Development Agreement is satisfied in full by the Power Purchase Agreement between Valta, acting on behalf of Developer, and RCMU to be executed contemporaneously herewith.
3. The City acknowledges and agrees that upon (i) Valta and RCMU’s execution of the Power Purchase Agreement and (ii) Developer’s satisfaction of all other City permitting and building requirements, and conditions set forth in the Development Agreement, outside of 102094\16662237v3
those requirements in Section 11(G) of the Development Agreement, a Certificate of Occupancy will be awarded for the Project, and shall not be revoked by the City in the event the Facility fails to meet the Commercial Operation Date set forth in the Power Purchase Agreement.
The terms and conditions of the Development Agreement and Power Purchase Agreement shall remain in full force and effect. Any capitalized but undefined terms in this Operating Memorandum shall be defined as set forth in the Development Agreement. This Operating Memorandum may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument City of Rancho Cucamonga
By:____________________
Name: _________________
Title: __________________
Speedway Commerce Center Development, LLC VS HW Napa A, LLC By: ______________ By: Valta Solar LLC
Name: ____________ Its: Manager
Title: _____________
By: ___________________
Name: Mark Milius
Title: Manager
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 BI 4th St RCMU, LLC to Purchase the Renewable Energy and Capacity from the Proposed Solar Photovoltaic Project, Located at 12434 Fourth Street, Rancho Cucamonga, California for a Total of 3 Megawatts and Authorizing the City Manager or His Designee to Sign the Power Purchase Agreement and Any Related Documents. (CITY)
RECOMMENDATION:
Staff recommends the City Council consider a Power Purchase Agreement with VS BI 4 th St RCMU, LLC to purchase the renewable energy and capacity from the proposed Solar Photovoltaic Project, located at 12434 Fourth Street, Rancho Cucamonga, California for a total of 3 megawatts and authorizing the City Manager or his designee to sign the Power Purchase Agreement and any related documents.
BACKGROUND:
On November 3, 2021, the City Council approved Ordinance No. 987, approving Development Agreement DRC2021-00180 between the City of Rancho Cucamonga and Bridge Point Rancho Cucamonga, LLC (Developer). As part of the Development Agreement, under Section 11-H, 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 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.
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ANALYSIS:
In August 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 (4 th Street Solar Project) that will be a 3-Megawatt (MW) rooftop generating facility located at 12434 Fourth 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 4th Street 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 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 4th Street Solar project is appropriate for what RCMU needs at this time.
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.
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Some of the risks associated with the 4th Street 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 4 th Street Solar Project does not produce the output as expected.
•The 4 th Street 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 4th Street Solar Project agreement is for energy, capacity and all environmental attributes.
The annual contract quantity for RCMU is estimated to be approximately 6,900 MWh of energy in the project's first year of operation. This contract is expected to provide an additional 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.
RCMU staff, RCMU’s outside legal counsel, and the City Attorney have all reviewed and approved the attached PPA between the City and VS BI 4 th St RCMU, 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. Consistent with the Plan, approval of the 4 th Street 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 4 th Street Solar Project’s Power Purchase Agreement with VS BI 4 th St RCMU, LLC would result in RCMU paying $82/MWh in solar renewable energy. With a 25 year levelized MWh, this would be approximately $519,430/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.
ATTACHMENT:
Attachment 1 - Power Purchase Agreement
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
between
CITY OF RANCHO CUCAMONGA
and
VS BI 4th St RCMU, LLC
ATTACHMENT 1
INDUSTRIAL ZONING DISTRICT
RENEWABLE POWER PURCHASE AGREEMENT
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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 ................................................... 7
4. GREEN ATTRIBUTES; RESOURCE ADEQUACY BENEFITS; ERR
REQUIREMENTS ..........................................................................................11
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 ................................................................................................. 34 APPENDIX B – COMMERCIAL OPERATION DATE CONFIRMATION LETTER .................44 APPENDIX C – FORECASTING REQUIREMENTS ................................................................. 45 APPENDIX D – DESCRIPTION OF THE FACILITY ................................................................46 APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA MILESTONES AND EXAMPLE ACTION STEPS ...........................................................................54 APPENDIX F – CONTRACT QUANTITY SCHEDULE ............................................................56 APPENDIX G – NOTICES LIST ...............................................................................................58 APPENDIX H – FORM OF LETTER OF CREDIT ....................................................................61
APPENDIX I - FORM OF CONSENT TO ASSIGNMENT
INDUSTRIAL ZONING DISTRICT
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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 BI 4th St RCMU, 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 the 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 will be
physically located at 12434 Fourth
Street, Rancho Cucamonga, California, 91739, on one or more areas of the rooftop of Building No. 1 and/or Building No. 2 (collectively, the “Building”), which areas shall be selected by Seller in its sole discretion. Any portion of the
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4 Building on which the Facility is not installed shall be explicitly deemed to be excluded from the Facility.
2.2. Facility Name. The Facility is named VS BI 4th St RCMU, 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 a 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. Seller shall provide to Buyer 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
expected interconnection of the Facility and loads with the Transmission/Distribution Owner’s electric distribution system, which shall be attached and incorporated herein as Appendix D. From time to time prior to the Commercial Operation Date, Seller shall update the Facility description and all associated PPA exhibits as necessary to reflect updates or additional technical details as they become available.
The Parties acknowledge and agree that in the event the Parties agree to update or modify the Facility following the Execution Date, Seller shall be entitled to a reasonable extension to all Seller deadlines contained in this Agreement, including but not limited to the expected Commercial Operation Date specified in Section 2.6.1, to allow Seller to complete any necessary updates to the Facility design, layout, permitting, and to procure any additional equipment that is required as a result of such Facility updates.
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
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5 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 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 of the anticipated Commercial Operation Date of the Facility at least thirty (30) days prior to such date.
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6 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 avoidance of doubt, if the expected 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;
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
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RENEWABLE POWER PURCHASE AGREEMENT
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7 3. CONTRACT CAPACITY AND QUANTITY; TERM; CONTRACT PRICE;
BILLING
3.1. Contract Capacity. The Contract Capacity is as follows:
3,000kW, alternating current (AC), which capacity shall be subject to increase upon the mutual consent of the Parties.
3.2. Contract Quantity.
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 Bridge Point Rancho Cucamonga 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.
3.4. Term of Agreement; Survival of Rights and Obligations.
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8 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 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 in response to an Emergency; or (c) Notice of a Curtailment Order issued by Buyer, other than an instruction from Buyer 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) of this Section 3.6.3 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
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9 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 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.
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
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10 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 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.
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11 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 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.
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12 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, 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:
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13 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;
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 and Section 11.H of Ordinance No. 987 (Bridge Point Rancho Cucamonga, LLC’s Development Agreement) 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:
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14 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 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;
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15 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;
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, however any 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 Interconnections, 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 the Buyer’s Agent. The Check Meter may be interconnected with Buyer’s communication network, or the communication network of
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City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 68
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16 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 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 the 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.
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17 6.5.2. Access 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 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 Bridge Point Rancho Cucamonga 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.
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18 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 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
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City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 68
September 2023
19 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.
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
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20 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.
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
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21 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 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
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22 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.
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.
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23 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 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
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24 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 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
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25 such default within the initial period despite exercising commercially reasonable efforts);
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;
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26 12.2.2.6. [Reserved;]
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.
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27 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”) 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 (or second building in the Bridge Point Rancho Cucamonga Development) 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 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
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28 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 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 I; provided that (a) Buyer shall not be required to consent to any additional terms or conditions beyond those contained in Appendix I, including
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29 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 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).
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.
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
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30 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.
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.
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31 18.4. Interpretation. 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.
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.
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32 18.9. Third Party Beneficiary; Right to Cure. The Parties agree that Bridge Point Rancho Cucamonga, LLC (“Bridge”) 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 Bridge (to be granted or withheld in its sole discretion). Furthermore, Bridge shall have the right, but not the obligation, to pay all sums due under this Agreement to Buyer and to perform any other act, duty or obligation required of Seller hereunder; provided, that no such payment or performance shall be construed as an assumption by Bridge of any covenants, agreements or obligations of Seller under or in respect of this Agreement.
[Signature pages follow.]
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33 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 BI 4th St RCMU, 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)
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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34 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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APPENDIX A - DEFINITIONS
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35 “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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APPENDIX A - DEFINITIONS
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36 “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
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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37 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. “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 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
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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38 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 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
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.
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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39 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 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
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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40 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.
“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
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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41 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.
"Bridge Point Rancho Cucamonga Development” means that certain development project approved by the Rancho Cucamonga City Council on October 20, 2021 consisting of two warehouse buildings totaling 2,175,000 square feet under Development Agreement Ordinance No. 987 (“Development Agreement”).
“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.
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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42 “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. “Term” has the meaning set forth in Section 3.4.1.
“Transaction” means the particular transaction described in Section 3.3.
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX A - DEFINITIONS
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43 “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 ofOctober 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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44 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 BI 4th St RCMU, 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 ***
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45 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 ***
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46 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. The Parties agree to amend this Appendix D as necessary based on updates to the Facility.
Name of the Facility: VS BI 4th St RCMU, LLC
Address of the Facility: 12434 Fourth Street, Rancho Cucamonga, California, 91739.
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: (7491) Heliene 144HC M10 SL (530W)
Inverter (Number) Module: (25) Solaredge SE 120KUS
DC Optimizer: Solaredge P1101
Mounting Equipment: Solar Strap
AC Watts: 3,000 kW
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47 Illustrative Site Plan
Subject to amendment based on updates to the Facility.
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48 City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 68
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49 Illustrative Single Line Diagram
Subject to amendment based on updates to the Facility.
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50 City of Rancho Cucamonga – Industrial Zoning District Renewable Power Purchase Agreement Page of 68
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51 Legal Description of Physical Address
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 1:
Parcels 1, 2 of a of Parcel Map No. 20271, in the City of Rancho Cucamonga, County of San Bernardino, State of California, as per map recorded in Book 259, Pages 9 through 15 of Parcel Maps, in the Office of the County Recorder of said County.
Together with any Reversionary Rights in and to Catherine Bridge Place upon the Legal Vacation of said street.
Parcel 2:
A non-exclusive easement and right of way, to be used in common with others, to construct, use, maintain and repair two railroad spur tracks, each 30 feet wide, extending in a General Westerly and Easterly direction, in, on, over and across the following described land:
The West 400.00 feet of that portion of the East half of the Southwest quarter of Section 17, Township 1 South, Range 6 West, San Bernardino Base and Meridian, lying Southerly of the Northerly line of the land conveyed to Verne Cox and Hodge L. Dolle, by Deed recorded April 6, 1964 in Book 6122, Page 329 Official Records.
Excepting therefrom the South 60 feet, conveyed to the County of San Bernardino, for road purposes, by Deed recorded December 29, 1969 in Book 7361, Page 705 Official Records.
Said easement is set forth by exception and reservation on that certain Deed conveying land to Mono Power Company, a corporation, recorded August 7, 1972 in Book 7993, Page 712 Official Records.
Parcel 3:
A non-exclusive easement and right of way, to be used in common with others, for underground pipe lines over the Southerly 5 feet of the following described land and that certain easement and right of way to construct, use, maintain and repair and railroad spur track, 30 feet wide, extending in a General Westerly and Easterly direction, in, on, over and across the following described land:
The West 355.00 feet of that portion of the East half of the Southwest quarter of Section 17, Township 1 South, Range 6 West; San Bernardino Base and Meridian, lying Northerly of the Northerly line of the land conveyed to Verne Cox and Hodge L. Dolle, by Deed recorded April 6, 1964 in Book 6122, Page 329 Official Records, and lying Southerly of the Southerly line of the land conveyed to Curtis Wayne Gates and Torrie Gates by Deed recorded December 9, 1966 in Book 6740, Page 455 Official Records. said easements are set forth by exception and reservation on that certain deed conveying land to Mono Power Company, a corporation, recorded October 17, 1972 in Book 8042, Page 23 Official Records.
Parcel 4:
A non-exclusive easement and right of way, to be used in common with others, for underground pipe lines over, the Southerly 5 feet of the following described land and that certain easement and right of way to construct, use, maintain and repair a railroad spur track, 30 feet wide, extending in a General Westerly
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52 and Easterly direction, in, on, over and across the following described land:
The West 355.00 feet of that portion of the East half of the Southwest quarter and the Southeast quarter of the Northwest quarter of Section 17, Township 1 South, Range 6 West, San Bernardino Base and Meridian, lying Northerly of the Southerly line of the land conveyed to Curtis Wayne Gates and Torrie Gates, by Deed recorded December 9, 1966 in Book 6740, Page 455 Official Records.
Said easements are set forth by exception and reservation on that certain Deed conveying land to Mono Power Company, a corporation, recorded February 28, 1973 in Book 8129, Page 111 Official Records.
Parcel 5:
A non-exclusive easement and right of way, to be used in common with others, for ingress and egress, 30 feet wide, the centerline of which is described as follows:
Beginning at a point in the West line of the East half of the Southwest quarter of said Section 17 distant along said West line and the West line of the South half of the Southeast quarter of the Northwest quarter of said Section 17, South 0° 14’ 23” West 732.00 feet from the Northwest corner of said South half of the Southeast quarter of the Northwest quarter; thence North 89° 55’ 10” East, 355 feet.
APN: 0229-283-50-0000, 0229-283-51, 0229-491-01, 0229-491-02, 0229-491-03, 0229-491-04
APN: 0229-283-50-0000, 0229-283-51, 0229-491-01, 0229-491-02, 0229-491-03, and 0229-491-04 (End of Legal Description)
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53 Longitude and Latitude of the centroid of the Site
Coordinates: 34.081, -117.534
*** End of Appendix D ***
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX E – SELLER’S MILESTONE SCHEDULE
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54 APPENDIX E – INDUSTRIAL ZONING DISTRICT RENEWABLE PPA
MILESTONES AND EXAMPLE ACTION STEPS
Action Target Date Date Completed Responsible Party
ç Seller
Step 2: Approve Application Buyer
Step 3: Sign Conditional PPA May 31, 2023 Both
Step 4: Acquire Interconnection Agreement May 31, 2023 Both
Step 5: Submit confirmation of RPS precertification
requirement and provide Copy of precertification
application to Buyer
June 1, 2023
Seller
Step 6: File Project with WREGIS and submit proof to
Buyer.
January 1, 2025 Seller
Step : Seller
Step 7: Acquire Construction Permits August 30, 2023 Seller Step 8: Submit proof of permits to Buyer. September 30, 2023 Seller Step 9: Notify Buyer 10 days prior to construction start. October 1, 2023 Seller Step 10: Submit proof of insurance to Buyer. October 1, 2023 Seller Step 11: Mechanical Completion. September 1, 2024 Seller Step 12: Notify Buyer 30 days in advance of the
Commercial Operation Date.
November 1, 2024 Seller
Step 13: Commercial Operation Date December 1, 2024 Seller Step 14: 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 and may be amended based on updates to the Facility.
*** End of Appendix E ***
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX F – CONTRACT QUANTITY SCHEDULE
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55 Appendix F – Delivery Term Contract Quantity Schedule Dated: to be provided upon mutual agreement of the parties Contract Year Contract Quantity (kWh/Yr)
1 6,948,000
2 6,802,989
3 6,684,880
4 6,606,999
5 6,548,167
6 6,501,398
7 6,461,727
8 6,426,225
9 6,394,340
10 6,365,275
11 6,338,614
12 6,313,709
13 6,289,878
14 6,267,107
15 6,244,730
16 6,222,420
17 6,200,821
18 6,179,281
19 6,157,801
20 6,136,063
21 6,114,388
22 6,084,288
23 6,054,332
24 6,024,521
25 5,994,852
*** End of Appendix F***
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX G – NOTICES LIST
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56 Appendix G – Notices List
Name: VS BI 4th St RCMU, LLC (“Seller”) Name: CITY OF RANCHO CUCAMONGA, a (“Buyer” or “RCMU”)
All Notices: Valta Solar, 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:
Phone: 949-636-0599 Phone:
Facsimile: Facsimile:
With copies that shall not constitute Notice
to:
Bridge Point Rancho Cucamonga, LLC
11100 Santa Monica Blvd, Suite 700
Los Angeles, CA 90025
Attn: Heather Crossner
Email: [email protected]
Bridge Point Rancho Cucamonga, LLC
444 W. Lake Street, Suite 3125
Chicago, IL 60606
Attn: Legal Department
Email: [email protected]
DUNS: DUNS:
Federal Tax ID Number: Federal Tax ID Number:
Invoices: Invoices:
Attn: Legal and Treasurer Attn:
Phone: 949-371-7227 Phone:
Facsimile: Facsimile:
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX G – NOTICES LIST
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57 Payments: Payments:
Attn: Legal and Treasurer Attn:
Phone: 949-371-7227 Phone:
Facsimile: Facsimile:
Wire Transfer: Wire Transfer:
BNK:
ABA:
ACCT:
BNK:
ABA:
ACCT:
Credit and Collections: Credit and Collections:
Attn: Attn:
Phone: Phone:
Facsimile: Facsimile:
With additional Notices of an Event of
Default to Contract Manager:
Contract Manager:
Attn: Attn:
Phone: Phone:
Facsimile:
*** End of Appendix G***
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX H – FORM OF LETTER OF CREDIT
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58 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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59 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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60 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***
Appendix I – FORM OF CONSENT TO ASSIGNMENT
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (“Consent and Agreement”) is entered into as of September ___, 2024 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 BI 4
th St RCMU, 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 Assigned Agreement in form and substance reasonably satisfactory to RCMU, (c) otherwise
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62 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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63 (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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64 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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65 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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66 (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.
[Remainder of page intentionally left blank. Signature page to follow]
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67 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
INDUSTRIAL ZONING DISTRICT RENEWABLE
POWER PURCHASE AGREEMENT
APPENDIX I – FORM OF CONSENT TO ASSIGNMENT
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68 *** End of Appendix I***
DATE:September 6, 2023
TO:Mayor and Members of the City Council
FROM:John R. Gillison, City Manager
INITIATED BY: Michael Parmer, Assistant to the City Manager SUBJECT: Consideration of Amendment No. 1 to the Professional Services Agreement with Environment Planning Development Solutions, Inc. for Environmental Compliance Services for Cucamonga Canyon and the Morgan Ranch Trailhead to the Scope of Work. (CITY/FIRE) RECOMMENDATION:
Staff recommends the City Council amend Planning Contract No. 19-030 for Environment Planning Development Solutions, Inc. for Environmental Compliance Services for Cucamonga Canyon and the Morgan Ranch Trailhead in an Amount Not-to-Exceed $200,000.
BACKGROUND:
At their regular meeting on March 20, 2019, the City Council approved Professional Services Agreements (PSAs) with eleven (11) selected consultant firms to conduct on-call California Environmental Quality Act (CEQA) environmental services.
The California Environmental Quality Act requires state and local governments to consider the potential effects of a project before deciding whether to approve it. CEQA’s purpose is to disclose the potential impacts of a project, suggest methods to minimize those impacts, and discuss alternatives to the project so that decision makers will have full information upon which to base their decisions.
CEQA applies to both public and private projects. The Planning Department routinely uses environmental consultants to assist in the CEQA analysis of private development projects. Other City departments such as Engineering Services, Community Services, and Public Works also utilize CEQA consultants as needed for public projects.
To reduce contract redundancies and streamline the procurement process, a Statement of Qualifications ("SOQ") was prepared to create an “on-call” consultant list for CEQA services that can be utilized by all City departments.
ANALYSIS:
In March 2023, the City requested proposals for the City’s on-call consultant list for CEQA services; however, the City only received a proposal from EPD Solutions, Inc. for environmental compliance services for the future Morgan Ranch Trailhead location. The proposal was revised in August 2024 to include the Cucamonga Canyon area at Party Point to the canyon falls. The total cost of the proposal is two-hundred-thousand dollars ($200,000).
2 0
1 7
The proposal was evaluated by an evaluation committee based on the method of approach, budget and resource allocation, and ability to meet funding deadlines. Staff has determined that EPD Solutions, Inc.’s proposal meets the City’s needs and deliverables and is recommending City Council approval.
FISCAL IMPACT:
Staff recommends the City Council approve Amendment No. 1 to contract number 19-030 with EPD Solutions, Inc. in a total not-to-exceed amount of $200,000. The Fire District has sufficient funds in account number 3288501-5650 / 2091288-6311 to cover the cost of this contract. Funds for the environmental assessment are reimbursable through the federal community program funding the City received in Fiscal Year 2022/2023.
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses the City Council core values of promoting and enhancing a safe and healthy community for all by enhancing the public safety and access to Cucamonga Canyon with the development of a dedicated trailhead and future development of a trail from Party Point to the canyon falls.
ATTACHMENTS:
Attachment 1 - EPD Solutions, Inc. Proposal
Attachment 2 - Planning Contract No. 19-030
Attachment 3 - Amendment No. 1 EPD Solutions, Inc.
Urban Planning ■ Due Diligence ■ Entitlements ■ CEQA/NEPA ■ Development Services ■ Management ■ Public Outreach 3333 Michaelson Drive, Suite 500 ■ Irvine, Calif. 92614 949.794.1180 ■ [email protected]
S
ubmitted via email.
M
arch 15, 2023
Revised August 30, 2023
M
ichael Parmer
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
[email protected]
R
E: Proposal for Environmental Compliance Services for the Rancho Trailhead Improvement Project.
D
ear Mr. Parmer:
Tha
nk you for inviting us to submit this proposal for the preparation National Environmental Policy Act (NEPA) and California Environmental Policy Act (CEQA) environmental compliance documentation for the Rancho Trailhead improvement project (project). The project site is approximately 5.5 acres and is located northeast of the intersection of Skyline Road and Almond Street. The City proposes various improvements, including repaving of the trail and the addition of a parking lot , shade structures, bicycle parking and perimeter fencing. At this time, the conceptual plan is underway, and the exact improvements and limits of disturbance has not been finalized. Therefore, this work provides costs for two separate design alternatives for the project based on the two alternatives provided by City staff. We understand the project is partially funded by the U.S. Department of Housing and Urban Development (HUD).
E
NVIRONMENTAL UNDERSTANDING
EP
D provides this scope and cost for preparation of an Environmental Assessment (EA) to with comply with NEPA and all HUD rules and regulations that govern the environmental review process, which can be found at 24 CFR Part 58, for the project. However, if based on the project’s final design and impacts, the project qualifies for a NEPA Categorical Exclusion (CE), a CE would be accommodated by the existing scope and cost would be reduced accordingly.
P
ursuant to CEQA, it is anticipated that a Mitigated Negative Declaration (MND) would be required because mitigation measures may be required for biological and cultural resources. However, if mitigation measures are not necessary, it is anticipated that the project would qualify for a Categorical Exemption, including Class 1 (Existing Facilities) and Class 2 ( Replacement or Reconstruction of existing facilities). This proposal provides the cost of a MND, which is higher; a Categorical Exemption would be accommodated by the MND scope and the cost would be reduced accordingly.
The
EPD team can commence work on this p roject as soon as we receive a Task Order or written notice to proceed. We anticipate that two separate documents will be required (a CE or EA for NEPA and an MND or Categorical Exemption for CEQA). These are provided as Tasks 3 and 5, respectively. However, if HUD determines that a joint CEQA/NEPA document is acceptable , we will draft a joint document and the total cost would be revised to reflect cost savings related to a consolidated document.
Attachment 1
Proposal for Environmental Compliance Services
Rancho Trailhead Improvement Project
August 30, 2023 Page 2
SCOPE OF WORK
Task 1: Project Initiation, Preparation of Project Description, and Review of Existing Studies Task 2: Technical Memo Preparation ( Air Quality, GHG, Energy, and Noise , Cultural and Biological)
Task 3: Environmental Assessment – NEPA Complaince
Task 4: HUD Environmental Review Online System (HEROS) Task 5: Mitigated Negative Declaration – CEQA compliance Task 6: Project Management and Meetings
Task 7. Project Management
Each task would be required independent of the design option chosen for the trail; however, two distinct budgets are included for each task in order to cover the additional area under the expanded trail option.
Task 1. Project Initiation, Preparation of Project Description, and Review of Existing Studies
1.1 Project Kickoff Meeting and Review of Existing Studies After receiving the notice to proceed, EPD will attend a Project Kick-Off Meeting with the City to discuss the Project description, purpose, schedule, and specific p roject issues, as well as to receive available p roject information. Additional project information will include receipt of the conceptual site plans, grading plans, and associated technical studies prepared in support of the civil plans such a Phase I E nvironmental Site Assessment, hydrology and soils and geotechnical reports, if available.
Following the review of existing data, any gaps in the data, and recommendations for correcting the gaps, will be discussed with the City. We will work closely with the City to determine what additional data must be collected in support of the documents to be prepared for the proposed Project. It is assumed that we can use these documents in the analysis of the proposed Project. We will also conduct a preliminary site visit to begin assessing the proposed Project area. If tribal consultation is required, EPD will work with the City to draft the Assembly Bill 52 (AB 52) tribal consultation letters.
1.2 Preparation of the Project Description
One of the keys to successful environmental compliance is a clear definition of the project and its components.
This also helps ensure the project team is on the same page with the overall project scope. The project description must be complete, comprehensive, stable, and finite in order to analyze the impacts accurately.
The project applicant will be identified, along with a statement of project objectives. Detailed project phasing (construction and oper ation) and grading information will be included. Required approvals and anticipated uses will be identified. Report figures will include regional, vicinity, and site location maps; project plans; circulation and infrastructure plans; and others as necessary to clarify the project. T he EPD team will prepare the project description and submit it to the City for review.
Task
2. Preparation of Technical Studies
The following technical analyses are included in this proposal based on our review of the Project to provide information for the NEPA and CEQA documents . Note that complete technical studies with impact analyses have been assumed for the numbers 2, 3 , 4 and 5. This provides maximu m flexibility in determining the CEQA compliance path should there be a possibility to exempt the project from CEQA; however, if the City desires to reduce cost s, model outputs for those stud ies could be prepared instead . Consistent with the approach of providing the higher cost of the MND, the following scopes capture the higher cost approach.
1. Traffic Impact Analysis and Vehicle Miles Traveled (VMT) Screening Memo
2. Air Quality Impact Analysis
3. GHG Analysis
4. Energy Analysis
Proposal for Environmental Compliance Services
Rancho Trailhead Improvement Project
August 30, 2023 Page 3
5. Noise Impact Analysis
6. Cultural Resources and Paleontological Study
7. General Biological Assessment
2.1 Traffic Impact Analysis and VMT Screening Memo
EPD will prepare an evaluation of the site to determine whether a Level of Service (LOS) or vehicle miles traveled (VMT) analysis would be required. The project is not located in a transit priority area or a low - VMT generating area and therefore would not meet these criteria. However, as an existing recreational use, the project is expected to be considered a local serving use. Furthermore, if the daily project trip generation is less than 110 daily trips, the project would screen out of further analysis. Once the trip generation analysis is complete, this determination could be made. Should an LOS and/ or VMT analysis be needed, a n amendment will be prepared for the associated proposed scope and fee.
2.2 Air Quality Impact Analysis
The EPD team will gather project construction and operational data to calculate construction and operational emissions of criteria air pollutants and greenhouse gas emissions using the current version of the California Emissions Estimator Model (CalEEMod). The results of these calculations will be summarized in an Air Quality Impact Analysis, with conclusions drawn as to project significance using applicable thresholds for emissions of criteria pollutants and carbon dioxide equivalents.
The following scope of work serves to meet the requirements of the City’s and the South Coast Air Quality Management District (SCAQMD) for preparation of an Air Quality Impact Analysis.
Evaluate the existing conditions of the project study area; this will include gathering background air quality data, local wind patterns in the study area and identifying applicable rules, plans and thresholds of significance.
Identify construction-related air quality impacts from associated construction activities at the project site which may include demolition, import/export of fill dirt, mass grading, building construction, paving, concrete pouring, etc.
Evaluate operational emissions for the proposed project, based upon trip generation projections provided as part of the traffic study. Peak hour trips will be used along with estimates of the types of trips generated and average travel speeds to estimate daily emissions generated by the project.
In addition, emissions from other operational sources such as heaters, air conditioners, water heaters, consumer products, and lawn care equipment will also be considered. A screening-level CO Hotspot analysis of future conditions at key intersections located in the project study area will be prepared. It is anticipated that a qualitative discussion on CO Hotspot potential and rationale as to why more detailed modeling of CO Hotspot analysis is not required. Perform a screening -level Construction and Operational Localized Significance Threshold (LST) analysis as recommended by the SCAQMD. It is anticipated that the SCAQMD’s look-up tables will be utilized.
Evaluate potential odor impacts resulting from the proposed project. Identify applicable mitigation measures and regulatory requirements that the project must comply with to minimize odors. For the purposes of this evaluation a qualitative assessment of odors and odor controls is expected. Qualitatively discuss cumulative impacts within the context of planned and foreseeable projects for short-term construction and long -term operational activity. Since the basin is in non -attainment the determination of significance will likely be based on whether or not the Project results in a substantial incremental increase.
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Identify and recommend mitigation measures that are feasible to implement and that will reduce any potential impacts to the maximum extent possible. Prepare an air quality report that incorporates the findings and all supporting calculations. Revise the air quality impact analysis report based on comments provided by the project team for up to one review cycle.
2.3 Greenhouse Gas Emissions Analysis
Evaluate applicable federal and state regulatory requirements (i.e., AB 32, SCAQMD, CARB thresholds). Qualitatively discuss the effects of GHG emissions on regional air quality. Evaluate applicable GHG emissions associated with heavy-duty construction equipment combustion that will likely occur during the various phases of construction. Data available from the project team and technical air quality analysis will be utilized in characterizing GHG-generating activities. Evaluate increase in applicable GHG emissions associated with long -term mobile source activity, heaters air conditioners, water heaters, consumer products, cargo handling equipment and lawn care equipment. Data available from the technical air quality anal ysis as well as the technical traffic impact analysis will also likely be utilized in calculating the emissions inventory. Evaluate project significance based on an applicable Climate Action Plan (if any). Prepare a greenhouse gas emissions report documenting the results of the study. The report will summarize the results of the previous work tasks and define appropriate and feasible mitigation packages to address any significant impacts related to greenhouse gas found in the analysis. Revise the greenhouse gas analysis report based on comments provided by the project team for up to one review cycle.
2.4 Energy Use Calculations
Quantify construction energy consumption from the proposed project (equipment and vehicles). Quantify direct and indirect electricity energy consumption from the proposed project. Quantify natural gas energy consumption from the proposed project. Provide summary tables in excel and PDF format for inclusion in the CEQA document.
2.5 Noise Impact Analysis
Identify and review applicable, Federal, State and Local Noise criteria. This includes the City Noise Element and Municipal Code to determine appropriate noise standards and significance criteria. Collect long-term 24-hour ambient noise level measurements in the Project study area at up to four locations to quantify the existing noise environment. All noise level measurement equipment will satisfy American National Standards Institute (ANSI) standard specifications for sound level meters ANSI S1.4-2014/IEC 61672-1:2013. The noise level measurements will be collected consistent with the criteria outlined in the City’s Municipal Code and based on the methodology provided in the HUD Noise Guidebook. Briefly describe the ambient noise conditions in the Project study area. Collect reference noise level measurements to represent the expected stationary source impacts associated with the proposed trailhead and parking lot land uses. Evaluate the potential stationary source noise impacts associated with the operation of the proposed project and recommend measures to reduce the potential noise impacts to any nearby noise-sensitive uses.
Provide a detailed construction noise and vibration analysis for each stage of construction using reference noise level measurements of similar activities.
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Summarize the results of the study in a noise impact analysis report addressing the potential impacts associated with the project and provide the appropriate measures to reduce the impacts to levels of less than significant.
Revise the noise study report based on comments provided by (client and/or City staff) for up to one review cycle.
2.6 Cultural Resources and Paleontological Study
EPD recommends a cultural resources study to determine the site’s sensitivity for archeological resources and Paleontological Study to occur on the project site and to make recommendations in order to minimize potential impacts to identified cultural resources.
Cultural Resources Background Research – The project specialist will conduct a cultural resources records search of the project area as well as a one -mile radius around the project area from the South Coastal Information Center at University of California, Riverside and the Native American Heritage Commission. The project specialist will obtain copies of records for resources and previous studies that intersect the project area, and prior investigations that have occurred within the project area. Bibliographic information will be provided for all sites/prior studies that exist within one mile of the project area.
Cultural Site Visit – The project specialist will perform a pedestrian field survey of the property, to identify cultural resources that may be visible on the surface. This work will be conducted by a Qualified Archaeologist.
Cultural Resources Technical Report – For the purpose of calculating costs, we have assumed no cultural resources lie within the project area. We will prepare one combined technical report that addresses archeological resources. We assume there will be negative findings within the reports.
The report will include a project description, brief culture history of the area, maps of the proposed project, methods, and results. The project specialist will include the cultural records search results.
Architectural Historian review will be conducted by another consult ant. We assume that electronic submittal of the reports will suffice, and we have accounted for one round of minor editorial comments to the report in our cost.
2.7 General Biological Assessment
Literature Review. Prior to conducting any field surveys, the biologists will conduct a literature review that will include, but not necessarily be limited to: a current California Natural Diversity Database (CNDDB) and California Native Plant Society (CNPS) search for records of sensitive biological resources in the project v icinity; the USDA Web Soil Mapper; USFWS Information, Planning, and Conservation System; National Wetlands Inventory; and previous reports prepared for the project site or nearby project site, if provided to the biologist. This review will be used to focus field survey efforts in a refined capacity. Additionally, the biologist will review all past technical reports, environmental documents associated with the proposed project and the surrounding area. The purpose of this task is to become familiar with the project and the environmental requirements for approval and to discuss findings and strategies as the studies progress. This task also includes developing all field maps needed to perform the field studies. Field Survey. The biologist will visit the project area and will conduct a pedestrian survey of the site.
The entire (100% coverage) project area will be evaluated for vegetation types, habitat types, plant and animal species observed, jurisdictional waters, potential for state and federal listed Proposal for Environmental Compliance Services
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species, potential for wildlife corridors, and surrounding uses. Transects will be conducted 50 -100 feet apart to document all plant and animal species observes, and habitat/vegetation types.
Waypoints will be taken by GPS for any areas of interest and GIS will be used for further analysis. (Please Note: this task does not include focused surveys. If it is determined that focused surveys will be required, a separate scope will be provided.)
General Biological Assessment Report. The biologist will prepare a GBA report based on literature, field survey, and GIS analysis. The report will include sections describing the project, project area, regulatory background, methodology used, existing habitat and vegetation types, species observed, a discussion of the potential for sensitive species within or adjacent to the project site, potential for wildlife corridors, potential impacts to existing resources, and recommendations to mitigate impacts to resources.
Task 3. Environmental Assessment – NEPA Compliance
This scope of work assumes that t he EPD Team will prepare an EA in accordance with the Council on Environmental Quality (CEQ) regulations (40 Code of Federal Regulations [CFR] 1500-1508) implementing the NEPA (42 United States Code [USC] 4321 et seq.), to disclose and analyze potential environmental impacts from the Project. The document process will include preparation of the EA that will follow the Part 50 Environmental Assessment Format published by HUD Exchange in November 2016.
Note, if based on meetings with appropriate federal, state, and/or City personnel, and a review of relevant legislation and literature, a determination is made that the proposed action is eligible for a Categorical Exemption (CE), the EPD team will prepare a record of environmental consideration, in coordination with the City, documenting the applicability of the CE from NEPA compliance. We will follow the HUD suggested environmental review format for a Part 58 CEST project (categorically excluded, subject to the Federal laws and authorities referenced at 24 CFR 58.5).
3.1 Administrative Draft EA
The EPD Team will prepare an Administrative Draft EA, in accordance with HUD’s format for EA Determinations and Compliance Findings for HUD -assisted Projects (24 CFR Part 58). The EA will be prepared utilizing the format preferred by HUD, which includes the following sections:
1. Project Information
2. Funding Information
3. Compliance with 24 CFR 50.4, 58.5, and 58.6 Laws and Authorities
4. Environmental Assessment Factors
5. Mitigation Measures and Conditions
The analysis of the environmental effects and significance will address direct, indirect, and cumulative impacts of all the alternatives considered. These include the discussion of the Project’s compliance with statutes, executive orders, and regulations l isted at 24 CFR 50.4, 58.5 and 58.6, and environmental assessment factors including land development, socioeconomic, community facilities and services, and natural features as appropriate. The Administrative Draft EA will incorporate information from the t echnical reports and Project’s information received during the Project Kick -off. All other information will be obtained through publicly available data.
If the findings of the Administrative Draft EA indicate that the Project will significantly affect the quality of the human environment, the Project would require the preparation of an Environmental Impact Statement (EIS). The preparation of an EIS will be provided as a separate scope. If the Draft EA indicates that the Project would not likely cause a significant environmental effect, the Administrative Draft EA would be finalized and a Findings of No Significant Impact (FONSI) will be prepared.
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3.2 Screencheck EA
The EPD Team will prepare the Screencheck EA based on comments received on the Administrative Draft EA from the City. The Screencheck EA will be resubmitted to the City and HUD for one round of review and comment. After receipt of one round of comments from the City and HUD on the Screencheck EA, EPD will incorporate changes and prepare a Final EA for the submittal.
Deliverable:
One electronic copy of the Screencheck in Word and PDF format for City and HUD review. One electronic copy of the FONSI for one round of review. Hard Copies may be provided, as needed using reimbursable expense budget.
Task 4. HUD Environmental Review Online System (HEROS)
To help Responsible Entities facilitate the environmental review process, HUD’s Office of Environment and Energy (OEE) has developed HEROS. HEROS is a web-based system for Responsible Entities to prepare and manage their Environmental Review Records (ERR). HEROS applies to all environmental reviews for HUD - assisted projects. HEROS streamlines the environmental review process for u sers by replacing the existing paper-based process with a comprehensive web -based system. Users can create electronic Environment al Review Records and manage their reviews from a single, electronic portal. HEROS facilitates easier organization, sharing, and communications between a Responsible Entity and its partners. This optional task includes coordination with HUD and access and uploading of ERR documents to the HUD Environmental Review Online System. This task includes approximately 16 hours of labor. Should additional time be warranted, a change order would be requested.
Task 5. Mitigated Negative Declaration – CEQA Compliance
5.1 Administrative Draft MND
To evaluate the project pursuant to CEQA , EPD will prepare an Initial Study (IS) Checklist for the project addressing each of the environmental topics using the City’s standard environmental checklist and the applicable mitigation measures of the City’s 2021 General Plan EIR to assess each environmental impact.
An administrative draft of the IS/MND will be provided to the City for review. One round of consolidated City review comments on the Administrative Draft document are assumed.
As mentioned previously, the project may be exempt from CEQA pursuant to California Code of Regulations Section 1530 1 and Section 153 02. As such, a CEQA Exemption can be written under Tas k 5 with no additional cost.
5.2 Screencheck Draft IS/MND
Based on comments from the project team, a screencheck draft will be submitted to the city for review. City comments will be incorporated into an updated document. One round of review is expected.
5.3 Public Review Draft IS/MND
Incorporating City comments, EPD will prepare a Public Draft IS/MND and prepare the document for public release and distribution. As part of this task, EPD will also prepare a Mitigation Monitoring and Reporting Program (MMRP) for the project. The MMRP will use the City’s typical format for such documents. EPD will review the MMRP with the project team to ensure the steps to compliance with each mitigation measure are appropriate and feasible. At the conclusion of this task, EPD will coordinate public release of the IS/MND and NOC for a 20- or 30-day review period. EPD will prepare a Notice of Completion (NOC) for posting with the IS/MND to the State Clearinghouse.
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5.4 Final MND and Response to Comments
During the public review period and immediately thereafter, EPD will prepare responses to public comments and communicate with the project team to discuss any comments that raise significant issues or require additional analysis beyond what has been completed under Task 4 and assumed in this proposal. EPD will inform the project team immediately if an addendum to this proposal is needed as a result of the public comments. 25 hours have been assumed for this task.
EPD will compile the Final IS/MND document addressing any changes associated with the responses to comments for the Planning Commission hearing and send it to the project team and City. Upon the City approval of the environmental document, EPD will coordinate filing of the Notice of Determination (NOD).
5.5 Notice of Determination
Upon the City’s approval of the environmental document, EPD will coordinate with the County Clerk and planning staff to prepare and file the Notice of Determination.
Task 6. Meetings & Hearings
EPD will attend two team meetings (either in person or via conference call) and hearings before the Planning Commission and City Council . For budgeting purposes, two one-hour conference calls , one Planning Commission hearing, and one City Council hearing are assumed. This task also includes Planning Commission and City Council meeting preparation, which will include compiling a PowerPoint presentation. EPD staff will be available to respond to Planning Commission and City Council questions on the project.
Task 7. Project Management
This task includes project management and coordination of CEQA activities only. Over the remaining 10 - month entitlement period, three hours per month are assumed for the CEQA Project Manager (Meaghan Truman) and two hours per month is assumed for the Project Director (Konnie Dobreva). Project management of the entitlement and design consultants (architect, landscape architect, etc.) may be contracted separately.
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FEES & EXPENSES
EPD proposes the following fixed and hourly not to exceed (NTX) fees for this CEQA analysis, based on the two separate design alternatives and the scope of work defined above. Fees would be billed pursuant to the attached Provisions of Agreement. This budget assumes completion of the project within a 10 -month period; if entitlements extend beyond that period for reasons outside of EPD’s control, we may request a supplemental fee to account for ongoing project management and coordination expenses. This budget does not include direct expenses or processing or application fees.
Task Total Labor
Original Scope
Total Labor
Expanded Scope
Task 1. Project Initiation; Preparation of Project Description; Technical Study Review
1.1 Project Kick off Meeting and Review of Existing Technical Studies (Fixed Fee)
$6,860 $6,860
1.2 Preparation of Project Description (Fixed Fee) $4,230 $4,230 Task 2. Preparation of Technical Studies
2.1 Traffic Impact Analysis and VMT Screening Memo (Fixed Fee) $4,300 $4,300
2.2 Air Quality Impact Analysis (Fixed Fee) $9,620 $9,620
2.3 Greenhouse Gas Emissions Analysis (Fixed Fee) $7,020 $7,020
2.4 Energy Use Calculations (Fixed Fee) $3,848 $3,848
2.5 Noise Impact Analysis (Fixed Fee) $11,310 $11,310
2.6 Phase I Cultural Resources and Paleontological Assessment (Fixed Fee)
$8,700 $9,750
2.7 General Biological Assessment (Fixed Fee) $5,850 $7,930 Task 3. Environmental Assessment – NEPA Compliance
3.1 Administrative Draft EA (Fixed Fee) $34,550 $38,400
3.3 Screencheck EA (Fixed Fee) $9,800 $11,100
Task 4. HUD Environmental Review Online System (HEROS) $4,961 $4,961 Task 5. Mitigated Negative Declaration – CEQA Compliance
5.1 Administrative Draft IS/MND (Fixed Fee) $17,040 $21,120
5.2 Screencheck Draft IS/MND (Fixed Fee) $5,680 $5,680
5.3 Public Review Draft IS/MND (Fixed Fee) $3,420 $3,420
5.4 Final MND and Response to Comments (NTX) $5,745 $5,745
5.5 Notice of Determination (Fixed Fee) $1,050 $1,050
Task 6. Meetings and Hearings (NTX) $9,650 $9,650
Task 7. CEQA/NEPA Project Management (NTX) $15,510 $15,510 TOTAL $169,144 $181,504
Estimated Expenses $4,000 $4,000
TOTAL LABOR & EXPENSES $173,144 $185,504
Assumptions
EPD’s cost estimate identifies the costs associated with completing the proposal scope of services, including the cost of attendance at meetings, expenses, and reproduction costs.
Our cost estimate is based on our scope of services and schedule, and the following assumptions:
The cost estimate is valid for up to 90 days from the date of submittal/opening, after which it may be subject to revision.
Costs have been allocated to tasks to determine the total budget. EPD may reallocate costs among tasks, as needed, as long as the total budget is not exceeded. Additional review cycles or additional versions of administrative drafts of any documents beyond the assumptions contained within the scope of work will constitute additional work.
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The budget is based on completion of work within a maximum 10-month schedule. If a delay of 90 days or more occurs as a result of circumstances beyond EPD’s control, additional entitlement management costs may be required.
Thank you again for your consideration and interest in EPD Solutions, Inc. Should you have any questions, please do not hesitate to contact me.
Respectfully submitted, Agreed to by:
EPD Solutions, Inc.
____________________________________
Jeremy Krout
Print Name: ____________________________________
Date: ____________________________________
Enclosure: Provisions of Agreement
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PROVISIONS OF AGREEMENT
City of Rancho Cucamonga (“Client”) and Environment | Planning | Development Solutions, Inc. (“Consultant”) agree that the following Provisions of Agreement (“Provisions”) shall be part of the agreement to Client dated August 30, 2023, for the services described therein (“Project”) to which these Provisions are attached and both shall be considered and constitute the “Agreement” referenced herein.
I. DEFINITIONS:
1. Client and Consultant agree to cooperate with each other in order to fulfill their responsibilities and obligations under this Agreement. Both Client and Consultant shall endeavor to maintain good working relationships among members of the project team.
2. Ownership of Instruments of Service : All documents prepared or furnished by Consultant pursuant to this Agreement are Consultant’s Instruments of Service, have been prepared for use solely with respect to this Project, and Consultant shall retain an ownership and property interest therein. Consultant grants Client a license to use Consultant’s Instruments of Service for the purpose of constructing, occupying and maintaining the Project. Reuse or modification of any such documents by Client, without Consultant’s written permission, shall be at Client’s sole risk, and Client agrees to indemnify and hold Consultant harmless from all claims, damages and expenses, including attorneys’ fees, arising out of such reuse by Client or by others acting through Client.
Client acknowledges that Consultant’s Instruments of Service may be stored and delivered to Client and others in electronic files (“Data”), and that anomalies and errors can be introduced into the Data when it is transferred or used in conjunction with incompatible computer equipment or software. Consultant’s Data is being furnished "as is" and Consultant shall have no duty to modify or update the Data unless a part of the approved Project. Consultant reserves the right to retain an archival paper or electronic copy of the Data delivered to Client or the general contractor which shall be referred to and shall be conclusive proof and govern in all disputes over the form or content of the Data furnished by Consultant.
If Consultant is not paid in full for all its services, Client shall, upon demand, return Consultant and Consultant’s sub-consultants Instruments of Service and refrain from using Instruments of Service for any purpose whatsoever.
II. CONSULTANTS RESPONSIBILITIES:
1. Consultant will perform its professional services in the manner identified in the Agreement for the identified fixed fees and budgeted items, excluding direct expenses. Services provided on a time and materials basis or additional services will be charged based on the following hourly billing rates:
List of Standard Hourly Rates
Position Hourly Rate
President/Principal $300 - $350
Vice President of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design
$275 - $300
Senior Director of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design
$260 - $285
Director of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design
$250 - $275
Senior: Project Manager; Planner; Transportation Planner; Engineer; Environmental Planner; Associate
$210 - $250
Project Manager; Associate Engineer $185 - $210
Associate: Planner; Environmental Planner; Transportation Planner $165 - $185 Assistant: Project Manager; Environmental Planner; Transportation Planner; Project Planner; Engineer
$150 - $165
Project Coordinator; GIS Analyst; Drafter $135 - $150
Support Staff $85 - $135
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Once the maximum fee is reached, Consultant will stop work unless Consultant and Client agree to increase the maximum fee amount or Client agrees to pay for additional services in accordance with Consultant's billing rates identified herein.
This rate schedule is subject to change due to the granting of wage increases and/or other employer benefits to field or office employees during the lifetime of this agreement.
2. Consultant will complete professional services described in this Agreement as expeditiously as is consistent with, and limited to, Consultant’s standard of care.
3. This Agreement comprises the entire and integrated agreement between Client and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by an authorized representative of both Client and Consultant.
4. If any of the provisions of this Agreement shall be finally determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect and be binding upon Client and Consultant hereto. Client and Consultant agree to reform this Agreement to replace any such invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intention of the stricken provision.
5. If the scope of services includes Consultant's assistance in applying for governmental permits or approvals, Consultant's assistance shall not constitute a representation, warranty or guarantee that such permits or approvals will be acted upon favorably by any governmental agency.
6. Construction Observation: Consultant shall visit the project at intervals appropriate in the Consultant’s professional opinion, during construction to become generally familiar with the progress and quality of contractor’s work and to determine if the work is proceeding in general accordance with the Contract Documents. On the basis of on-site observations as a Consultant, Consultant shall keep Client informed about the progress and quality of the work, and shall endeavor to guard Client against, and prom ptly notify Client in writing of, defects and deficiencies in the work and against the contractor's failure to carry out the work in accordance with the intent of Consultant’s Instruments of Service and the contractor's schedule. Client has not retained Consultant to make detailed inspections or to provide exhaustive or continuous project review and observation services. Consultant does not guarantee the performance of, and shall have no responsibility for, the acts or omissions of any contractor, subcontractor, supplier or any other entity furnishing materials or performing any work on the project.
If Client desires more extensive project observation or full-time project representation, Client shall request such services be provided by Consultant as Additional Services in accordance with the terms of this Agreement.
It is agreed that Consultant’s services under this Agreement do not include project observation, review of contractor’s performance or any other construction phase services. Client assumes all responsibility for all construction phase services including, but not limited to:
a. Submittal review and approval
b. Contract document interpretation
c. Site observations
d. Change order review and approval
e. Review and approval of contractor payment applications f. Certificates of substantial and final completion
g. Preparation and disposition of punch lists
h. Responding to contractor requests for information
i. Administration of any operational and maintenance training including collection operational and training manuals
Client waives any claims against consultant that may be in any way connected with Client’s decision not to retain Consultant to performance construction phase services. Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Consultant, its officers, directors, employ ees and sub -consultants (collectively, Consultant) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, arising out of or in any way connected with the performance of such services by other persons or entities and from any and all claims arising from modifications, clarifications, interpretations, adjustments or changes made to Contract Documents to reflect changed field or other conditions.
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Client, Client’s contractors or subcontractors, or anyone for whom Client is legally liable shall assume full responsibility for the results of any changes made to the Contract Documents during construction. Client agrees to waive any claims against Consultant and to release Consultant from any liability arising directly or indirectly from such changes.
Contract Documents Definition: The Contract Documents consist of the agreement, conditions of the contract (general, supplementary and other conditions), drawings, specifications, addenda issued prior to execution of the Agreement, other documents and modifications issued after execution of the Agreement.
7. Jobsite Safety: Consultant shall not supervise, direct or have control over general contractor or its subcontractors, regardless of tier, any employee or agent thereof (hereinafter “Contractor”) work. Consultant shall not have authority over or responsibility for the construction means, methods, techniques, sequences or procedures or for safety precautions and programs in connection with the work of Contractor. Consultant does not guarantee the performance of the construction contract by Contractor and does not assume responsibility for Contractor’s failure to furnish and perform its work in accordance with the Construction Documents .
III. CLIENT’S RESPONSIBILITIES
1. Client acknowledges that its right to utilize reports and other documents of Consultant provided pursuant to this Agreement will continue only so long as Client is not in default, pursuant to the terms and conditions of this Agreement, and Client has performed all its obligations under this Agreement, including but not limited to payment for services rendered.
2. Client further agrees to waive all claims against Consultant resulting in any way from any unauthorized changes, use or reuse of the electronic files for any other project by anyone other than Consultant.
3. All fees and other charges due Consultant will be billed monthly and shall be due at the time of billing unless specified otherwise in this Agreement.
4. Consultant will provide Client with monthly invoices for services rendered and costs advanced. Client agrees that all billings from Consultant to Client are correct and binding on Client unless Client, within ten (10) days from the date of receipt of such billing, notifies Consultant in writing of alleged inaccuracies, discrepancies, or errors in billing.
5. Client agrees to pay a monthly late payment charge, which will be the lesser of one and one-half percent (1- 1/2%) per month or a monthly charge not to exceed the maximum legal rate, which will be applied to any unpaid balance commencing thirty (30) days af ter the date of the billing. If Client notes any inaccuracies, discrepancies, or errors in billing pursuant to Article III, late fees shall only apply beginning on the thirty -one (31) days after the inaccuracies, discrepancies, or errors have been corrected.
IV. OWNERSHIP AND USE OF DOCUMENTS AND DATA
1. Prints or document printing will be billed directly to Client by the print company at no additional Consultant administrative cost or billed by consultant at cost plus fifteen percent (15%). All other reimbursable expenditures will be invoiced at cost plus fifteen percent (15%) handling fee. Sub -consultant costs will be billed at cost plus twenty-five percent (25%). Mileage will be billed at the standard Federal rate as provided for under Internal Revenue code.
2. Standard of Care: Consultant’s services shall be provided consistent with and limited to the standard of care applicable to such services, which is that Consultant shall provide its services consistent with the professional skill and care ordinarily provided by members of the same profession practicing in the same or similar locality under the same or similar circumstances.
3. S
urvival: Notwithstanding completion or termination of this Agreement for any reason, all rights, duties and obligations of the parties to this Agreement shall survive such completion or termination and remain in full force and effect until fulfilled hereunder and termination of this Agreement.
V. RISK ALLOCATION
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1. Waiver of Consequential Damages: Notwithstanding any other provisions in this Agreement, Client and Consultant each waive consequential damages against the other party. Notwithstanding anything to the contrary set forth herein, the foregoing waiver shall not apply if the consequential damages are covered by Consultant’s insurance policy.
2. Indemnity: Consultant and Client each agrees to indemnify and hold harmless the other (Indemnitor and Indemnitee), and their respective principals, officers, directors, partners, employees, and any other entity or person for which Indemnitor and Indemnitee is legally liable, from and against any damages, losses, liabilities, judgments, settlements, expenses, and costs (including reasonable and necessary attorneys' fees, costs and expenses recoverable under applicable law), that Indemnitee incurs as a result of third party claims, demands, actions, suits or matters connected therewith, to the extent caused by the negligent acts, errors or omissions, or willful misconduct of Indemnitor in the performance of services under this Agreement and any other entity o r person for which the Indemnitor is legally liable.
Notwithstanding the foregoing, if Indemnitor’s obligation to indemnify arises out of Indemnitor’s performance of services for the Project as a “design professional,” as that term is defined in California Civil Code Section 2782.8, Indemnitor’s indemnity obligation shall be limited in accordance with the provisions of Section 2782.8 as it was in effect as of the date of this Agreement.
3. Waiver of Personal Liability : It is intended by the parties to this Agreement that Consultant or its sub - consultant(s) services in connection with this Project shall not subject Consultant’s or its sub-consultant(s) individual employees, officers or directors to any personal legal exposure for the risks associated with the Project or this Agreement, or any Addenda. Therefore, and notwithstanding anything to the contrary contained herein, Client agrees that as Client’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against Consultant, a California corporation or its incorporated sub-consultant(s), and not against any of Consultant’s or its sub-consultant(s) individual employees, officers or directors.
4. Consultant will be legally liable for only the services expressly undertaken pursuant to this Agreement, and not otherwise. Consultant will not be legally liable for the providing of, or the failure to provide other services, even if information from others is incorporated into Consultant's instruments of service for ease of reference or otherwise. Further, and without limitation, Consultant will not be responsible for delays or other matters beyond its reasonable control; for inaccurate information provided to it by Client or other reasonably reliable sources; for site conditions of which it was not informed; for hazardous materials or toxic substances at the Project site; for construction means, methods, techniques, sequences or procedures, including without limitation excavation, shoring, demolition or erection procedures or construction safety precautions and programs; for the timeliness or quality of contractor performance or for the failure of any contractor to perform work in accordance with the Project’s construction documents; or for actions or inaction of third parties including other consultants, utility companies and governmental or quasi-governmental agencies.
5. Limitation of Liability: To the extent permitted by law, the total liability, in the aggregate, of Consultant and its employees, officers, directors, members, partners, agents, and consultants, to Client, its subsidiary and/or affiliated companies and its respective employees, officers, directors, members, partners, agents and anyone claiming by, through, or under Client, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of, resulting from or in any way related to Consultant’s services, the Project or this Agreement, or any addenda, from any cause or causes whatsoever, including but not limited to, negligence, strict liability, breach of express or implied contract or warranty shall not exceed a total amount of $50,000.
6. Ce
rtification: Consultant shall not be required to execute certificates, consents or reliance letters that would require knowledge, services or responsibilities beyond the scope of this Agreement, and shall not be required to sign any documents that would result in Consultant having to certify the existence of conditions whose existence Consultant cannot reasonably ascertain beyond its standard of care.
7. Unauthorized Changes to Plans: In the event Client, Client's contractors or subcontractors or anyone for whom Client is legally liable, makes or permits any changes to be made to any reports, plans, specifications or other construction documents prepared by Consultant without obtaining Consultant's prior written consent, Client agrees to waive any claim against Consultant and to release Consultant from any liability arising directly or indirectly from such changes. In addition, Client agrees (1) to the fullest extent permitted by law, to indemnify and hold harmless Consultant from any damages, liabilities or costs arising from such change, and (2) to include in any contracts for construction appropriate language that prohibits any contractor or subcontractors of any Proposal for Environmental Compliance Services
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tier from making any changes or modifications to Consultant's construction documents without the prior written approval of Consultant and that further requires contractor to indemnify both Consultant and Client from any liability or cost arising from such changes made without such proper authorization.
VI. INSURANCE
1. Insurance: Consultant shall purchase business insurance as follows:
a. Professional Liability Insurance, with prior acts coverage sufficient to cover the services performed under this Agreement, and policy limits in an amount of $1 ,000,000 each claim and $2 ,000,000 annual policy period aggregate limit.
Consultant specifically agrees, pursuant to this Agreement, to waive any rights of recovery against Client because of any payment made to the extent coverage is provided by the policy.
b. Commercial General Liability Insurance (ISO CG 0001 0413), or another equivalent occurrence-based policy form, including coverage for bodily injury and property damage liability arising out of premises, operations, completed operations, and products in addition to advertising injury and persona l injury liability coverage with a per project limit of not less than $1 ,000,000 each occurrence and $ 2,000,000 general aggregate limit.
Consultant specifically agrees, pursuant to this Agreement, to the following:
i. Additional Insured Provision: Shall include Client and Client-designated additional insured(s), to the extent coverage is provided by the policy, caused in whole or in part by Consultant or those acting on Consultant’s behalf.
Additional insured coverage shall be provided by a combination of the CG2010 0413 and CG2037 0413 endorsements, or other comparable endorsement(s).
ii. Primary and Non- Contributory Provision : The insurance provided to Client -designated additional insured(s) is primary to other insurance, which covers such additional insured as a named insured, and will not share with that other insurance to the extent coverage is provided by the policy. Pri mary and Non- contributory coverage shall be provided by CG2401 0413, or other comparable endorsement.
iii. Waiver of Subrogation Provision : The insurance provided shall waive any rights of recovery against Client-designated additional insured(s), because of any payment made to the extent coverage is provided by the policy. Waiver of Subrogation provision shall be provided by CG2404 0509, or other comparable endorsement.
c. Owned, Hired and Non -Owned Automobile Liability Insurance , with a limit of not less than $1,000,000 combined single limit for bodily injury and property damage liability arising out of the maintenance or use of any policy covered hired or non -owned automobile by Consultant or Consultant’s employees in the course of Consultant’s business.
Consultant specifically agrees, pursuant to this Agreement, to the following:
i. Additional Insured Provision: Shall include Client-designated additional insured(s), to the extent coverage is provided by the policy.
ii. W aiver of Subrogation Provision : The insurance provided shall waive any rights of recovery against Client-designated additional insured(s), because of any payment made to the extent coverage is provided by the policy.
d. Commercial Umbrella or Excess Liability Insurance, on a follow form basis with a limit of not less than $2,000,000 each occurrence and $ 2,000,000 general aggregate limit. Coverage shall be excess of commercial general liability, hired and non -owned automobile liability and employers’ liability with such coverage being concurrent with underlying insurance.
e. Workers’ Compensation Insurance, covering Consultant’s employees in accordance with statutory requirements of all jurisdiction(s) in which Services are being performed and Employers’ Liability Insurance in an amount of:
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Bodily Injury by Accident: $1,000,000 Each Accident
Bodily Injury by Disease: $1,000,000 Policy Limit
Bodily Injury by Disease: $1,000,000 Each Employee
Consultant specifically agrees, pursuant to this Agreement, to the following:
i. Waiver of Subrogation Provision : The insurance provided shall waive any rights of recovery against Client because of any payment made to the extent coverage is provided by the policy. Waiver of subrogation provision shall be provided by WC 04 03 06 (Ed. 4 -84) from the Workers’ Compensation Insurance Rating Bureau or WC 00 03 13 (Ed. 4-84) from the National Council on Compensation Insurance, or other comparable endorsement.
f. Certificates of Insurance: Prior to the commencement of this Agreement and upon the renewal of any of the insurance policies required hereunder, Consultant shall furnish certificates of insurance to Client as evidence of the insurance listed in Article VI.
2. Co mpliance with Code: Consultant shall exercise due and reasonable professional care in observing those federal, state, and local codes, standards, statutes, and regulations applicable at the time Consultant renders service. Notwithstanding the foregoing, Consultant has no responsibility for the discovery, presence, handling, removal, or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. It is understood, however, that various codes and regulations are subject to varying and sometimes contradictory interpretation. Consultant shall exercise its professional skill and care consistent with, and limited to, the generally accepted standard of care to provide a design that complies with such regulations and codes.
VII. DISPUTE RESOLUTION
1. (a) Except as provided in subdivisions (b) and (c), in an effort to resolve any conflicts that arise during the design or construction of the project or following completion of the project, Client and Consultant agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation, unless the parties mutually agree otherwise.(b) Subdivision (a) shall not preclude or limit Consultant's right to file an action for collection of fees if the amount in dispu te is within the jurisdiction of the small claims court.(c) Subdivision (a) shall not preclude or limit Consultant's right to record.
2. Reliance on Information Provided by Others : Consultant shall be entitled to rely, without liability, on the completeness and accuracy of any and all information and data provided by Client, Client’s consultants and contractors, and information from public records, without the need for independent verification. Notwithstanding the foregoing, Consultant shall use its reasonable judgment and experience in determining whether such reliance is advisable.
Client will also require its consultants and contractors to promptly notify Client if its consultants or contractor(s) observes or becomes aware of faults or defects in documents prepared by Consultant and Client will provide prompt written notice to Consultant.
3. Assignment: Neither Consultant nor Client may assign its obligations, interests, or delegate its duties under this Agreement (including monies that are due or monies that may be due) without prior written permission of the other party, which consent shall not be unreasonably withheld.
4. Severability: If any of the provisions of this Agreement shall be finally determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect and be binding upon Consultant and Client hereto. Consultant and Client agree to reform this Agreement to replace any such invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intention of the stricken provision.
VIII. GENERAL PROVISIONS
1. Suspension of Services: Services may be suspended in the event of the following:
a. A substantial failure of performance by either party.
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b. Any Client’s payment is more than 30 calendar days past due and Consultant shall have no liability to Client for delay or damage caused Client because of such suspension of services. c. Before resuming services, Client shall pay Consultant all sums due prior to such suspension and expenses incurred in the interruption and resumption of Consultant’s services. Consultant’s fees for the remaining services and the time schedules shall be equitably adjusted. d. If the Project is abandoned or suspended in whole or part for more than a cumulative ninety (90) calendar days or indefinitely postponed either party may terminate this Agreement and Consultant shall be paid for all services provided.
e. If the Project is resumed after a delay of more than ninety (90) calendar days in the aggregate, Consultant shall be entitled to additional compensation for remobilization costs and the time schedules shall be equitably adjusted.
2. Termination: Either party may terminate this Agreement upon seven (7) working days' written notice to the other party, with or without cause. Said notice shall be deemed to be effective upon delivery to the other party. In the event of termination by Client, Consultant shall cease work at the time specified or if no time is specified, at the end of the day on the day receipt of the notice. Consultant shall be paid in full for services performed and expenses incurred to date as reasonably agreed upon by both parties.
3. Third-Party Beneficiaries : Client and Consultant agree that services performed by Consultant under this Agreement are solely for the benefit of Client, and are not intended by either Client or Consultant to benefit any other person or entity including, but not limited to, the Project contractor and/or any of its subcontractors.
Any such benefit is purely incidental and such other person shall not be deemed a third -party beneficiary of this contract.
4. Governing Law: This Letter Agreement shall be governed in accordance with the laws of the state in which the Project is located, excepting those provisions dealing with conflicts of laws.
lily of RaMchvGu mon
Iq- o3O
AGREEMENT FOR
PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this 22nd day of February, 2019, by and between the City of Rancho Cucamonga, a municipal corporation (" City") and EPD Solutions, Inc., a California Corporation(" Consultant").
RECITALS
A. City hasheretofore issuedits requestfor proposalsto perform the following professional services: On- Call CEQA Consulting Services (" the Project").
B. Consultant has submitted a proposal to perform the professional services described in Recital " A", above, necessaryto complete the Project.
C. City desiresto engageConsultant to complete the Project in the manner set forth andmore fully describedherein.
D. Consultant representsthat it is fully qualified and licensed under the laws of the Stateof California to perform the servicescontemplatedby 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 engagesConsultant to perform all technical and professional servicesdescribedin Recitals "A" and "B" above, including, but not limited to On-Call CEQA Consulting Services, all as more fully set forth in the Consultant' s proposal, dated December 6, 2018 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 setforth in the Scopeof Work and are referred to herein as" the Services." In the event of any inconsistencies between 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 Consultantwill promptly meetwith City staff to discussanyrevisionsto the Projectdesired by the City. Consultant agreesthat the Scopeof Work may be amendedbasedupon said meetings, and, by amendmentto this Agreement, the parties may agreeon a revision or revisions to Consultant' s compensation based thereon. A revision pursuant to this Section Vendor Initials
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ATTACHMENT 2
that doesnot increasethe total cost payable to Consultant by more than ten percent( 10%) of thetotal compensationspecifiedin Section3, maybe approvedin writing by City' s City Manager without amendment.
1.3 Time for Performance. Consultant shall perform all services under this Agreement in atimely, regular basisconsistentwith industry standardsfor 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 Standardof Care. As a material inducement to City to enter into this Agreement, Consultantherebyrepresentsthat it hasthe experiencenecessaryto undertake the services to be provided. In light of such status and experience, Consultant hereby covenantsthat it shall follow the customary professional standardsin performing the Services.
1. 5 Familiarity 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 attendingperformanceof the servicesunder this Agreement.
Consultantrepresentsthat Consultant, to the extent required by the standardof practice, has investigatedany areasof work, as applicable, and is reasonablyacquaintedwith 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 suchfact and shall not proceedexcept at Consultant' srisk until written instructions arereceived from the City Representative.
2. Term of Agreement. The term of this Agreement shall be 5 year( s) and shall becomeeffective 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 1 year( s) increments to a total of 7 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 accordanceto all Terms and Conditions statedhereinunlessotherwiseprovided in writing by the City.
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$400,000( per year), 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 Vendor Initials
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more than ten percent ( 10%) of any invoice amountpendingreceiptof any deliverablesreflected in such invoice. Under no circumstance shall Consultant be entitled to compensationfor servicesnot yetsatisfactorilyperformed.
Thepartiesfurtheragreethatcompensationmaybeadjustedin accordance with Section1.2 to reflectsubsequentchangesto the Scopeof Services. City shall compensateConsultantfor any authorizedextra servicesassetforth in Exhibit A.
4. Method of Payment.
4. 1 Invoices. Consultantshallsubmitto City monthly invoicesfor the Servicesperformed pursuant to this Agreement. The invoices shall describe in detail the Servicesrenderedduringtheperiodandshallseparatelydescribeanyauthorizedextra services. Any invoice claiming compensationfor extra servicesshall include appropriate documentationof prior authorizationof suchservices. All invoicesshallberemittedto the City of Rancho Cucamonga, California.
4. 2 City shallreviewsuchinvoicesandnotify Consultantin writing within ten (10)businessdaysof any disputedamounts.
4. 3 City shallpay all undisputedportionsof the invoicewithin thirty 30) calendardaysafterreceiptof theinvoiceupto thenot-to-exceedamountssetforth in Section 3.
4. 4 All records, invoices, time cards, cost control sheets and other recordsmaintainedby Consultantrelating to serviceshereundershall be available for review andaudit by the City.
5. Representatives.
5. 1 City Representative. For the purposes of this Agreement, the contract administrator and City' s representative shall be Matthew Burris, or such other person as designated in writing by the City(" City Representative"). It shall be Consultant' s responsibility to assurethat the City Representative is kept informed of the progress of the performanceof theservices,andConsultantshallreferanydecisionsthatmustbemadeby City to the City Representative. Unlessotherwisespecifiedherein, anyapprovalof City requiredhereundershallmeantheapprovalof theCity Representative.
5. 2 Consultant Representative. For the purposes of this Agreement, Jeremy Krout 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 understoodthat the experience, knowledge, capability and reputation of the Consultant's Representativewere a substantialinducementfor City to enter into this Agreement.
Therefore, the Consultant's Representativeshallberesponsibleduringthetermof this Vendor Initials
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Agreementfor directing all activities of Consultantand devotingsufficient time to personallysupervisethe serviceshereunder. Consultantmay not changethe Responsible Principalwithout theprior written approvalof City.
6. Consultant' s Personnel.
6. 1 All Servicesshallbeperformedby Consultantor underConsultant's direct supervision, and all personnel shall possessthe qualifications, permits, and licenses requiredby Stateandlocallaw to performsuchServices, including, withoutlimitation, a City businesslicenseasrequiredby the City' sMunicipal Code.
6. 2 Consultantshall be solely responsiblefor the satisfactorywork performance of all personnel engagedin performing the Servicesand 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' wagesandbenefits, andshallcomplywith all requirementspertainingtoemployer' s liability, workers' compensation, unemployment insurance, and Social Security. By its execution of this Agreement, Consultantcertifies that it is aware of the provisionsof Section3700of theCaliforniaLaborCodethatrequireeveryemployerto be insured againstliability for Worker's Compensationor to undertakeself-insurancein accordancewith the provisions of that Code, and agreesto comply with suchprovisions beforecommencingthe performanceof the Services.
6. 4 Consultantshallindemnify, defendandhold harmlessCity andits elected officials, officers and employees, servants, designated volunteers, and agents servingasindependentcontractorsin theroleof Cityofficials, fromanyandall liability, damages, claims, costsandexpensesof anynaturetotheextentarisingfromConsultant'sviolations of personnel practices and/ or any violation of the California Labor Code. City shallhavetherightto offsetagainsttheamountof anyfeesdueto Consultantunderthis Agreementany amountdueto City from Consultantasa result of Consultant's failure to promptlypayto City anyreimbursementor indemnificationarisingunderthis Section6.
7. Ownership of Work Product.
7. 1 Ownership. All documents, ideas, concepts, electronic files, drawings, photographsandanyandall otherwritings, includingdraftsthereof, prepared, createdorprovidedby Consultantin thecourseof performingtheServices, includingany andallintellectualandproprietaryrightsarisingfromthecreationofthesame(collectively,Work Product"), areconsideredto be "worksmadefor hire" for thebenefitof the City.
Upon payment being made, and provided Consultant is not in breach of this Agreement, all Work Productshallbeandremainthepropertyof City withoutrestrictionor limitation upon its use or dissemination by City. Basic survey notes, sketches, charts, computations and similar datapreparedor obtainedby Consultantunderthis Agreementshall, upon request, bemadeavailableto City. Noneof theWorkProductshallbethesubjectof any Vendor Initials
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commonlaw or statutorycopyrightor copyrightapplicationby Consultant. In theeventof 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 deliveranydraftor final designs, plans, drawings, reportsor specificationsto City uponwritten demand by City for their delivery, notwithstanding any disputes between ConsultantandCity concerningpayment, performanceof the contract, or otherwise. This covenantshall survive the termination of this Agreement. City' sreuseof the Work Product for anypurposeotherthantheProject, shallbeat City'ssolerisk.
7. 2. Assignment of Intellectual Property Interests: Upon execution of thisAgreementandtotheextentnototherwiseconveyedto City by Section7.1,above,the Consultantshall be deemedto grant and assignto City, and shall requireall of its subcontractorsto assignto City, all ownershiprights, andall commonlaw andstatutory copyrights,trademarks,andotherintellectualandproprietarypropertyrightsrelatingto the Work Product and the Project itself, and Consultant shall disclaim and retain no rights whatsoeverasto anyof theWorkProduct, to themaximumextentpermittedby law. City shallbeentitledto utilize the WorkProductfor anyandall purposes, includingbut not limitedto constructing, using, maintaining, altering, addingto, restoring, rebuildingand publicizing the Project or any aspectof the Project.
7. 3 Title to Intellectual Property. Consultant warrants and represents thatit hassecuredallnecessarylicenses, consentsor approvalsto useanyinstrumentality, thing or componentasto which anyintellectualpropertyright exists, including computer software, usedin the renderingof the Servicesand the production of the Work Product and/or materialsproducedunderthis Agreement, andthat City hasfull legal title to andthe right to reproduceanyof the Work Product. Consultantshalldefend, indemnifyandhold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agentsservingas independentcontractorsin the role of City officials, harmlessfromanyloss, claimor liabilityin anywayrelatedto aclaimthatCity'suseis violatingfederal, stateorlocallaws, oranycontractualprovisions,relatingtotradenames, licenses,franchises,patentsorothermeansofprotectingintellectualpropertyrightsand/orinterests in products or inventions. Consultantshall bearall costsarisingfrom the useof patented, copyrighted, trade secret or trademarked documents, materials, software, equipment, devices or processes used or incorporated in the Services and materials producedunderthisAgreement. In theeventCity' suseof anyof theWork Productis held to constitutean infringementand anyusethereof is enjoined, Consultant, at its expense, shall: ( a) securefor City theright to continueusingtheWork Productby suspensionof anyinjunctionor by procuringa licenseor licensesfor City; or (b) modifythe Work Product so that it becomesnon-infringing. This covenantshall 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 incuranydebt,obligation,orliabilityonbehalfofCityorotherwiseactasanagentof City.
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NeitherCitynoranyof itsagentsshallhavecontrolovertheconductof Consultantorany of Consultant' s employees, except as set forth in this Agreement. Consultant shall not, at anytime, or in anymanner, representthatit or anyof its officers, agentsor employeesare in anymanneremployeesof City. Consultantshallpayall requiredtaxesonamountspaid to ConsultantunderthisAgreement, andtodefend, indemnifyandholdCityharmlessfrom anyandall taxes,assessments,penalties,andinterestassertedagainstCity by reasonof 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. Consultantmay have accessto financial, accounting,statistical, and personnel data of individuals and City employees. Consultant covenants that all data, documents, discussion, or otherinformationdevelopedor receivedby 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 suchauthorizationif applicablelaw requiresdisclosure. All City datashallbereturnedto 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 noticesrequiredby law or complyingwith anorderto provideinformationor datawhensuchan orderis issuedby a court, administrativeagencyor otherlegitimate authority, or if disclosureis otherwisepermittedby law andreasonablynecessaryfor the Consultantto defenditself from anylegal actionor claim.
10. Conflict of Interest.
10. 1 Consultantcovenantsthat it presentlyhasno interestand shall not acquireanyinterest, director indirect, which maybe affectedby the Services, or whichwould conflict in any manner with the performance of the Services. Consultant further covenantsthat, in performanceof thisAgreement,nopersonhavinganysuchinterestshallbe employed by it. Furthermore, Consultantshallavoidthe appearanceof havingany interest, which would conflict in any manner with the performanceof the Services.
Consultantshall not acceptany employmentor representationduring the term of this Agreement which is or may likely make Consultant " financially interested" ( as provided in California Government Code §§ 1090and87100) in anydecisionmadeby City on any matter in connection with which Consultant has been retained.
10. 2 Consultant further represents that it has not employed or retained anypersonor entity, otherthana bonafide employeeworking exclusivelyfor Consultant, to solicit or obtainthisAgreement. Consultanthasnotpaidor agreedto payanypersonor entity, other than a bonafide employeeworking exclusivelyfor Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of thisAgreement. Uponanybreachorviolationofthiswarranty, Cityshallhavetheright, atits soleandabsolutediscretion, to terminatethisAgreementwithoutfurtherliability, or Vendor Initials
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to deductfromanysumspayableto Consultanthereunderthefull amountorvalueof anysuch fee, commission, percentage or gift.
10. 3 Consultanthasno knowledgethat any officer or employeeof City hasanyinterest, whethercontractual, noncontractual, financial, proprietary, orotherwise, in thistransactionor in thebusinessof Consultant, andthatif anysuchinterestcomesto the knowledgeof Consultantat any time during the term of this Agreement, Consultant shallimmediatelymakeacomplete,writtendisclosureof suchinterestto City, evenif such interest would not be deemed a prohibited " conflict of interest" under applicable laws as described in subsection 10. 1.
11. Indemnification.
11. 1 Professional Services. In the connection with its professional services,theConsultantshalldefend,indemnify,andholdtheCity, andits electedofficials, officers, employees, servants,volunteers, and agentsserving as independent contractors in the role of City officials, ( collectively, " Indemnitees"), free and harmless with respect to anyandall damages, liabilities, losses, reasonabledefensecostsor expenses (collectively,Claims"), includingbutnotlimitedtoliabilityfordeathorinjurytoanypersonandinjury 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 thisAgreement. Consultantshallpayall reasonabledefensecostsandexpenses, including actual attorney' s fees and experts' costs incurred in connection with such defense.
11. 2 Other Indemnities. In connectionwith all Claims not coveredby Section11.1, andto the maximum extentpermittedby law, the Consultantshall defend, holdharmlessandindemnifytheIndemniteeswithrespecttoanyandall Claimsincluding butnotlimitedtoClaimsrelatingtodeathorinjurytoanypersonandinjurytoanyproperty, 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 theperformanceof this Agreement. ConsultantshalldefendIndemniteesin anyactionor actionsfiled in connectionwith anysuchClaimswith counselof City'schoice, andshall pay all costsandexpenses, including actualattorney's feesand experts' costsincurred in connectionwith suchdefense. Theindemnificationobligationhereinshallnotin anyway be limited by the insurance obligations contained in this Agreement provided, however, thattheContractorshallhaveno obligationto indemnifyfor Claimsarisingout of thesole negligence or willful misconduct of any of the Indemnitees.
11. 3 Nonwaiverof Rights. Indemniteesdonot, andshallnot, waiveany rightsthat theymaypossessagainstConsultantbecauseof the acceptanceby City, or the deposit with City, of any insurancepolicy or certificate required pursuant to this Agreement.
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11. 4 Waiver of Right of Subrogation. Except as otherwise expressly providedin thisAgreement, Consultant, onbehalfof itselfandall partiesclaimingunder orthroughit,herebywaivesallrightsof subrogationagainsttheIndemnitees, whileacting within the scopeof their duties, from all claims, lossesand liabilities arisingout of or incidentto activitiesor operationsperformedby or onbehalfof theConsultant.
11. 5 Survival. The provisions of this Section 11 shall survive the termination of the Agreementand are in addition to any other rights or remedieswhich Indemnitees may have under the law. Payment is not required asa condition precedentto anIndemnitee'srightto recoverunderthisindemnityprovision, andanentryofjudgment against Consultant shall be conclusive in favor of the Indemnitee' s right to recover under this indemnity provision.
12. Insurance.
12. 1 Liability Insurance. Consultant shall procure and maintain in full force and effect for the duration of this Agreement, insurance against claims for injuries to personsor damagesto 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. 2 Minimum Scopeof Insurance. Unlessotherwiseapprovedby City, coverage shall be at least as broad as:
1) InsuranceServicesOffice Commercial GeneralLiability coverage ( occurrence form CG 0001).
2) Insurance Services Office form number CA 0001 ( Ed. 1/87) coveringAutomobile Liability, code1 (any auto).
3) Worker' s Compensationinsuranceas required by the State of California, andEmployer' s Liability Insurance.
4) ProfessionalLiability insurancein a form approvedby the City, having, at City'soption, anextendedreportingperiod 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 performanceof the Servicesand otherwisecomplying with
all applicable provisions of this Section 12. The policy shall be endorsedto include contractualliability to the extent insurable.
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12. 3 Minimum Limits of Insurance. Consultant shall maintain limits no less than:
1) Commercial General Liability: $ 2, 000, 000 per occurrence for bodily injury, personalinjury and property damage.
Commercial General Liability Insurancewith a general
aggregatelimit shall apply separatelyto this Agreementor the general limit shall be twice the required occurrence limit. 2) Automobile Liability: $ 2,000,000 per accident for bodily injury andproperty damage.
3) Employer' s Liability: $ 1,000, 000 per accident and in the aggregate for bodily injury or disease and Workers'
CompensationInsurancein theamountrequiredby law.
4) Professional Liability: $ 1,000, 000 per claim/ aggregate. 5) The Insurance obligations under this agreement shall be the greaterof( i) the Insurancecoveragesandlimits carriedby the Contractor; or ( ii) the minimum insurance requirements shown in this Agreement. Any insuranceproceedsin excess of the specified limits and coverage required which are applicableto agivenloss, shallbeavailableto theCity. 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- insuredretentionsmustbedeclaredto andapprovedby theCity andshallnot 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 commercialgeneralliability and automobileliability policies are to contain the following provisions on a separate additionally insured endorsement naming the City, its
officers, officials, employees, designated volunteers and agentsservingasindependentcontractorsin therole of City officials asadditional insuredsas 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 Vendor Initials
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coverage shall contain no limitations on the scope of
protection afforded to City, its officers officials employees designatedvolunteers 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 insurancecoverageshall be primary insuranceas respects
City, its officers, officials, employees, designatedvolunteers and agentsserving as independentcontractors in the role of City or officials. ' Any insurance or self- insurance maintained by City, its officers, officials, employees, designatedvolunteers or agents serving as independent
contractorsin the role of City officials shall be excessof Consultant' s insurance and shall not contribute with it. 3) Consultant'sinsuranceshallapply separatelyto eachinsured against whom claim is made or suit is brought, except with respectto thelimits of theinsurer's liability.
4) Contractorshallprovideimmediatewrittennoticeif( 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 anycancellationor reductionin coverageor 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 substitutefor anycanceledpolicy, theCity mayprocuresuch 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 independentcontractorsin therole of City officials.
6) Each policy shall be issued by an insurance company approvedin writing by City, which is admittedandlicensed to do business in the State of California and which is rated ANII or better accordingto the most recent A.M. Best Co.
Rating Guide.
7) Eachpolicy shall specify that any failure to comply with reporting or otherprovisions of the requiredpolicy, including Vendor Initials
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breachesof warranty, shall not affect the coveragerequiredto 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) Contractorshall provide anyand all otherrequired insurance, endorsements, or exclusions as required by the City in any request for proposals applicable to this Agreement.
12. 6 Evidenceof coverage.Prior to commencingperformanceunderthis Agreement, the Consultant 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 declarationsor endorsementpagelisting all policy endorsements. Theendorsementsshall 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 Consultant commences performance. If performance of this Agreement shall extend beyond one year, Consultantshall provide City with the requiredpolicies or endorsementsevidencing renewalof therequiredpoliciesof insuranceprior to theexpirationof anyrequiredpolicies ofinsurance.
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 Agreementincludingtheindemnityandinsurancerequirementsto theextenttheyapplyto the scope of any such subcontractor' s work. Contractor shall require its subcontractors to be boundto Contractor and City in the samemanner andto the sameextent as Contractor is bound to City pursuant to this Agreement, and to require each of its subcontractorsto includethesesameprovisionsin its contractwith anysub-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, ConsultantshallrenderanyreasonableassistanceandcooperationthatCity might require.
City shall compensateConsultantfor any litigation supportservicesin an amountto be agreedupon by the parties.
14. Termination. City shallhavetheright to terminatethisAgreementatanytime for any or no reason on not less than ten ( 10) days prior written notice to Consultant. In theeventCity exercisesitsrighttoterminatethisAgreement,City shallpay 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 haveno otherclaimagainstCity by reasonof suchtermination, includinganyclaimfor Vendor Initials
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compensation. City mayterminatefor causefollowing adefaultremaininguncuredmore thanfive (5)businessdaysafterserviceof anoticeto cureonthebreachingparty.
ConsultantmayterminatethisAgreementfor causeupongivingtheCityten(10)businessdays prior written notice for any of the following: ( 1) uncuredbreachby the City of anymaterial 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 failureof thepartiesto reachaccordonthefeesandchargesfor anyAdditionalServices required because of such changes.
15. Notices. Any notices, bills, invoices, or reportsauthorizedor requiredby thisAgreementshallbein writing andshallbedeemedreceivedon (a)thedayof delivery if deliveredby handor overnightcourierserviceduringConsultant's andCity's regular businesshours; or(b) onthethirdbusinessdayfollowingdepositin theUnitedStatesmail, postage prepaid, to the addresses set forth in this Section, or to such other addresses as the partiesmay, from time to time, designatein writing pursuantto the provisions of this Section.
All notices shall be addressed as follows:
If to City: Matthew Burris, Deputy City Manager
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
If to Consultant: Jeremy Krout, President
EPD Solutions, Inc.
2030 Main Street, Suite 1200
Irvine, CA 92614
16. Non- Discrimination and Equal Employment Opportunity. In the performanceof this Agreement, Consultantshallnot discriminateagainstanyemployee, 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.
17. Assignment and Subcontracting. Consultant shall not assign or transfer any interestin this Agreementor subcontractthe performanceof any of Consultant's obligationshereunderwithoutCity'sprior writtenconsent. Exceptasprovidedherein, any attemptbyConsultantto soassign,transfer,or subcontractanyrights,duties,orobligations arising hereundershall be null, void and of no effect.
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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 CaliforniaLaborCodeSection1720, etseq., and1770, etse'q., aswell asCaliforniaCode 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 agreesto fully comply with such Prevailing Wage Laws. The applicable prevailing wage rate determinations can be found at http://www. dir. ca._gov/ dlsr/ DPreWaReDetermination. htm CONSULTANT shallmakecopiesof theprevailingratesof perdiemwagesfor eachcraft, 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 electedofficials, officers, employeesand agentsfree and harmlessfrom any claim or liabilityarisingoutof anyfailureor allegedfailureto complywith thePrevailingWageLaws.
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 makingby City of anypaymentto Consultantconstituteor beconstruedasawaiverby City of any breachof covenant, or any default which may then exist on the part of Consultant, andthe makingof any suchpaymentby 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 commenceany legal action or proceedingto enforce or interpret the provisions of this Agreement,theprevailingpartyin suchactionorproceedingshallbeentitledto recoverits costsof suit, including reasonableattorney'sfeesandcostsof experts.
21. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancybetweenthe expressprovisionsof thisAgreementandtheprovisionsof any documentincorporatedhereinby reference,the provisions of this Agreementshallprevail.
22. Applicable Law and Venue. The validity, interpretation, andperformance of this Agreement shall be controlled by and construedunder the laws of the State of California. Venuefor anyactionrelatingto this Agreementshallbe in the SanBernardino County Superior Court.
23. Construction. In the event of any assertedambiguity in, or dispute regardingthe interpretationof anymatterherein,the interpretationof this Agreementshall notberesolvedby anyrulesof interpretationprovidingfor interpretationagainsttheparty Vendor Initials
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who causesthe uncertainty to exist or againstthe 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 incorporatedhereinby suchreference, andthe samerepresentsthe entire and integratedagreementbetweenConsultantandCity. This Agreementsupersedesall prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breachhereofwaived, except in a writing signedby 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: EPD Solutions, Inc. City of Ra cho Cucamonga By: Z f BY: 24/
Name Date e Date
Mom..Title f- Title
j
City of Rancho Cucamonga
By: By:
110-
0 Name Date Name Date
Title Title
two si atures requi if co r ion)
Vendor Initials
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EXHIBIT A
SCOPE OF SERVICES
Proposal begins on the next page
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STATEMENT OF QUALIFICATIONS
On- call CEQA Consulting Services
Request for SOO # 18/ 19- 201
City of Rancho Cucamonga
Submitted by:
Environment Planning Development Solutions, Inc.
dba EPD Solutions, Inc.
2030 Main Street, Suite 1200
Irvine, Calif. 92614
Contact& Authorized Signatory:
Jeremy Krout, AICP, PresidentICEO
jeremy(@epdsolutions. com / ( 949) 794- 7 187
December 6, 2018
E I P I D SOLUTIONS, INC.
ENVIRONMENT I PLANNING I DEVELOPMENT
SOLUTIONS, INC.
December 6, 2018
City of Rancho Cucamonga
Procurement Division
10500 Civic Center Drive
Rancho Cucamonga, Calif. 91730
To Whom It May Concern:
Re: Statementof Qualifications to Provide On-call CEQAConsulting Services Request for SOO # 18/ 19- 201
Thank you for the opportunity to submit this statement of qualifications to serve as an on-call environmental consultantfor theCity of RanchoCucamonga. Basedona reviewof the RFP, we understandthe City seeks a consultant capable of carrying out a range of activities required by the California Environmental Quality Act ( CEQA), including the preparation of environmental assessmentsand the peer review of environmental assessmentsand technical reports prepared by project developers. EPD staff have extensive experience with similar efforts for both public- and private- sector clients.
EPDhasbeenin businessfor justoverfive years,andourlead CEQAspecialistseachhavenearly20 years of experience. We offer a management and technical team with unique project experiences and capabilities that match well with RanchoCucamonga's CEQA compliance needs. We view this opportunity as a partnership in which we are an extension of City staff as they manage development projects through the entitlement process.Although this RFPis specifically for CEQA compliance support, we also have substantial experience with projects in established communities that require a thorough knowledge of entitlement, environmental, and planning laws; the thoughtful handling of environmental issues; and detailed responses to community and agency comments. EPDstaff' s extensive experience working in various jurisdictions in the Inland Empire makes us an ideal fit for this project. We have entitled and/ or completed environmental analysis for hundreds of projects covering tens of thousandsof acres throughout California, with projects ranging from infill residential communities and commercial and mixed- use developments to solar power plants and surface mines.
Leading EPD's efforts on CEQA projects in Rancho Cucamonga would be Konnie. Dobreva, Director of Environmental Planning. Konnie's contact information follows:
Konnie Dobreva, JD
Director of Environmental Planning
2030 Main Street Suite 1200
Irvine, Calif. 92614
949) 794- 1183
konnieCC epdsolutions. com
In addition to our team' s strengths described above, we have outlined below what we feel to be additional considerations that set us apart:
Environmental Documentation Experience. EPD's staff has completed dozens of documents in compliance with CEQA. These documents have included CEQA exemptions, mitigated negative declarations, and environmentalimpact reports for a wide array of projects,includingresidential development,small- and large- scale commercial and industrial facilities, master plans and General Plans. Our CEQA project Urban Planning Due Diligence a Entitlements CEQA/ NEPA Development Services Management Public Outreach 2030 Main Street, Suite 1200 Irvine, Calif. 92614
949. 794. 1 180 info@epdsolutions. com
manager,KonnieDobreva,hasworkedon projectsas diverseasthe General PlanEIRfor theCountyof Los Angeles, CEQA analyses for industrial warehouses in the Inland Empire, and infill residential communities in Anaheim. With this background, we are able to produce CEQA documents of the highest quality for the type and scope proposed herein.
Senior CEQA Experts and Project Management Team. EPDbrings to RanchoCucamonga an experienced team skilled in complex projects and knowledgeable about CEQA standards and expectations. The proposed project would be managed by principal- level staff, who would be available as required to attend in-person meetings or conference calls with City staff to ensure information exchange is smooth and any issuesthat arise are resolved quickly.
Full Scope Services. For many of our clients, we fulfill the complete range of activities required to successfullycomply with CEQA, including the preparation of technical studies, consultations with outside agencies, preparation of all required notices, coordination of scoping meetings, reprographics, and meetingpresentations.Our staff functionsasan extensionof City staff, managingas muchor as little as requested for each project.
CapacityandResponsiveness. EPDtakesproductioncontrolsseriously. TheEPDteam maintainssufficient capacity for preparation and managementof highly complexassignments. We develop a realistic project schedule very early in the process and work with all parties involved to ensure individual tasks remain on target.
Dedicated Technical Expertise. EPD maintains in-house staff with advanced capabilities in all topic areas required for analysis. We also have substantialexperience in managing large numbersof technical specialists to ensure analyses are thorough and complete, and proceed on schedule and on budget.
We look forward to working with the City of RanchoCucamongaon future environmental review projects.
Pleasecontactmeat (949) 794- 1181 or jeremy((:Depdsolutions.comwith any questions.
Respectfully submitted,
EPD Solutions, Inc.
Jeremy K out, AICP
President/ CEO
TABLE OF CONTENTS
Executive Summary................................................................................................................................ 4 Experience.............................................................................................................................................. 5 Subcontractors........................................................................................................................................ 8 StaffBiographies................................................................................................................................... 11 Statementof Qualifications Response.................................................................................................. 17 EPDBACKGROUND........................................................................................................................................................ 17 RELEVANTEXPERIENCE..................................................................................................................................................... 18 PROJECT MANAGER AND SUPPORT TEAM...................................................................................................................... 19 APPROACH...................................................................................................................................................................... 20 QUALITYCONTROL......................................................................................................................................................... 20 BUDGETCONTROL.......................................................................................................................................................... 20 Exhibits................................................................................................................................................. 21 Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
Executive Summary
The EPD team include CEQA and entitlement specialists with decades of experience throughout Southern California. Ourteamhassignificantexperiencewitha widerangeof CEQA/NEPAdocumentation,including exemptions, initial studies, negative declarations ( NDs), mitigated negative declarations ( MNDs), environmental impact reports (EIRs),and mitigation monitoring and reporting programs (MMRPs),as well as National Environmental Policy Act ( NEPA) environmental assessments, Findings of No Significant Impact FONSIs),and EnvironmentalImpactStatements (EISs).Ourexperienceincludesindustrial,office,multi-family residential, and transit- oriented development projects in urban and suburban communities. Sample projects showing the range of our experience is provided below, under " Experience." We are uniqueamong environmentalplanningfirms in having the expertise to take projects beyond the conclusionof the CEQAprocess, intothe regulatorypermittingand constructionphases. EPDstaff routinely process permits through various Regional Water Quality Control Boards and the California Department of Fishand Wildlife, StateWater ResourcesControlBoard, U.S. Fishand Wildlife Service, Army Corpsof Engineers, and other agencies. EPD processes construction permits and ensures conditions compliance in collaboration with agency staff. In addition, not only do we develops mitigation measures for environmental documents,butwe alsoapplymitigationmeasuresinthefield by, for example,coordinatingpre-construction biologicalsurveys, contractingwithconstructionmonitorsfor biologicalandculturalresources, coordinating with tribal monitors, and ensuring contractors are aware of all required conditions and mitigations.
Ontopof ourCEQAexperience,wehaveprovidedentitlementdocumentation,permitprocessing,andother services throughout Southern California. Our staff' s expertise with entitlement documentation includes the preparation of specific plans, general plan amendments, annexations, sphere- of- influence amendments, and zone changes, and the processing of tract maps, water quality management plans, and other technical documents. Senior staff have extensive experience with public communication and presentations. EPD routinely serves as a prime contractor, managing a range of subconsultant technical and design firms on behalf of agency clients.
EPD's scope of work would generally include the following tasks, as further detailed under "Statement of Qualifications Response"-
1. Project Initiation, Document Review, and Preparation of Project Description
2. Preparation and/ or Peer Review of Technical Studies
3. Initial Study
A. Preparation of CEQA Document
5. Responseto Commentsand Mitigation Monitoringand ReportingProgram
6. Hearings
Throughoutthe process, EPDwill ensurethe necessarynotices are published in compliance with State law.
Thesenoticesvary based on the type of documentpublished, but may includea Notice of Preparation (for EIRs),Notice of Availability ( EIRs),Notice of Intent to Adopt a Negative Declaration( NDs and MNDs), Notice of Completion (NDs,MNDs, and EIRs), Noticeof Determination (followingadoptionof an ND,MND, or EIR), or a Notice of Exemption ( exempt projects).
EPD's lead CEQA project manager, KonnieDobreva, JD, has nearly 20 years of public and private sector planningand legal experiencehavemadeher an expert in environmentalplanningand an effectivewriter of environmental documents. She has managed and prepared environmental documents for a diverse range Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
of projects and clients: small- scale residential and large planned communities, commercial office, industrial, mixed-use, and schools. Konniehas been a planner with the City of Lake Forest and a planning consultant for the cities of Irvine, Anaheim, and Rancho Santa Margarita. Her duties included project management, evaluating developmentproposals, presentingstaff reportsand resolutionsbefore the ZoningAdministrator and Planning Commission, evaluating grading and building plans, and environmental review and documentation. Konnie'sdiverseplanningand legal experienceprovidesherwitha uniqueunderstandingof planning and zoning law, and CEQA. Sheis on the Board of Directorsof the Orange CountyAssociationof EnvironmentalProfessionals (AEP) and isa frequentlecturerfor AEPin theAdvancedCEQAWorkshopand CEQABasicsWorkshop, whichprovide training to manyof the region's developers, agencyplanners, and attorneys.Sheissupportedby JeremyKrout,AICP, LEEDGA, a plannerwith nearly 20 years of public- and private- sectorexpertise; Rafik Albert, AICP,with a decade of environmentalplanning experience; Meghan Macias, TE, a traffic engineer and CEQA specialist with 25 years of experience; Renee Escario, an environmental planner with 25 years of experience; and several other environmental planners.
Experience
EPDSolutions,Inc.isan environmental,land planning,development,and civilengineeringservicesfirm based in Irvine.We have been providing professional servicessince2013, and our project managers have between 10 and 25 yearsof experience. Our principalemployeeshavean extensiverecordof successfullyassisting clients in resolving difficult environmental, planning, engineering, and regulatory challenges, resulting in balanced decisions, better public policies and successful projects. Client satisfaction is the cornerstone of our business. We work as partners with government agencies, as well as private firms, to understand their needs and ensure that our services make a positive contribution. The experience and skill we bring to each assignment guarantees a flexible and efficient work effort.
EPD's staff have a long history of providing environmental documentation on behalf of both public agencies and private developers in California. EPDstaff have managed and prepared all types of CEQA/ NEPA documentation, including exemptions, initial studies, negative declarations, MNDs, EIRs, and MMRPs, as well as NEPA environmental assessments, FONSIs, and EISs.
EPDis a corporation, and was incorporatedin Californiaon August29, 2013. EPDis not involvedin any pending litigation.
Thefollowing are examplesof projects completed by EPDstaff, showingour breadth of experience in preparing various types of CEQA documents in diverse locations:
PROJECT TYPE OF DOCUMENT
Clearwater at North Tustin EIR Addendum EIR Addendum
Orange County, 2018 MMRP
EPD prepared an EIR Addendum to The Springs at Bethsaida Senior Living EIR (certified 2009) and analyzed the development of the Clearwater at North Tustin project, a 100-unit senior care facility offering assisted living/ memory care units, located within the North TustinSpecific Plan area of unincorporated Orange County.Thiswas a highly controversial project on a 6.6-acre site surrounded on three sides (the north, south, and west) by one- and two- story single-family homes. Area residentswere concernedwith issuessuchas building height, setbacks, drainage, operational noise from food delivery Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
PROJECT TYPE OF DOCUMENT
trucks and emergency vehicles, and landscaping, to name a few. With the support of the environmental analysis prepared by EPD, the project was approved by the County.
Alta Vista Specific Plan Amendment CEQA Initial Study
City of Placentia, 2017 - 2018 MND
EPD prepared an Initial Study/ MND and various technical studies MMRP supporting the CEQA analysis for this project, a mixed- use, 54- single- Technical Studies:
family- home subdivision and approximately 1 1, 000 square foot • Air Quality & GHG Emissions commercial development on 8. 5 acres. In addition, a tentative tract • Cultural & Paleo Resources map proposed subdividing the site into separate commercial and • Noise Study residential parcels. EPD also managed the tribal consultation in • Traffic Study compliance with AB 52 on behalf of the City of Placentia.
Saddleback Stadium CEQA EIR Addendum
City of Mission Viejo, 2017 - present MMRP
EPD prepared an Technical Studies:
addendum to the EIR Air Quality & GHG Emissionswo
Traffic Studpreviously prepared y
by EPD staff) for the
Saddleback College
Facilities Master Plan
to examine the
impacts of an 8, 000-
seat stadium to replace an existing, smaller facility. EPD prepared the traffic analysis for the project and coordinated air quality, greenhouse gas emissions, and noise analyses. Following approval, EPD coordinated cultural, paleo, and biological surveying and monitoring prior to and during construction.
Downtown Commercial Core Specific Plan • ill iProgram EIR City of Tustin, 2017— 2018 MMRP
EPD prepared a Specific Plan with detailed •
Design Guidelines and a Program EIR to ' PLA N
accommodate the addition of 887 residential
units and 300, 000 square feet of commercial
space to Old Town Tustin, with attendant -
development standards and public realm improvements.
901 E. South Street Infill Environmental Checklist
City of Anaheim, 2016- 2017 Appendix N of CEQA
EPD was selected by the Guidelines)q
City of Anaheim to
prepare an Infill
Environmental Checklist,
compliant with Appendix .-. Tr.
N of the CEQA
Guidelines, for the 901 E.
South Street residential project, consisting of 72 single- family Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
PROJECT TYPE OF DOCUMENT
clustereddetached, 160 single-family attached, and 314 multifamily residential units. The use of this checklist is intended to streamline the CEQA process for infill development. The project is a redevelopment of a warehouse site near the historical core of Anaheim. To support use of this checklist, EPD included an analysis in the environmental document of the project' s compliance with the Performance Standards contained in Appendix M of the CEQA Guidelines. The project analysis included a focus on noise impacts, due to the presence of an adjacent rail line; hazardous materials, due to the historical industrial uses on the site; aesthetics and compatibility with nearby residential areas; and traffic.
Colony Commerce Center East EIR EIR
City of Ontario, 2016 - 2018 MMRP
EPD was selected by the City of Ontario to prepare an EIR for a Technical Studies:
Specific Plan and other related development entitlements for over • Air Quality & GHG Emissions
1. 9 million square feet of industrial uses on a 94- acre site in a rapidly • Biological Resources developing area of the City. EPD also managed the preparation of • Cultural & Paleo Resources technical studies in support of the EIR. Important areas of impact • Energy Analysis assessment included historic resources within the Ontario Ranch, health • Health- Risk Assessment risks and residential adjacencies, tribal cultural resources, and • Historic Resources biological resources. Noise Study
Traffic Study
Village 605 EIR Addendum
City of Los Alamitos, 2016 - 2017 Technical Studies:
On behalf of the City of Los Alamitos, EPD analyzed the Village 605 • Air Quality & GHG Emissions project, which included demolition of two office buildings and a • Cultural & Paleo Resources vesting tentative tract map, major conditional use permit, and major • Noise Study site plan review to construct a 113, 880- square- foot commercial r
center( including a 365 by Whole Foods) on approximately 9.6 acres located on Katella Avenue and Interstate 605 ( 1-605) in the City of LosAlamitos. Theproject sitewas acrossthe street from single-family residential and adjacent to a middle school, a freeway onramp, and LosAlamitos City Hall. Due to the site's elevation drop and distance from the 1-605, a freeway pylon sign was proposed on the site to provide visibility to travelers on the freeway. The sign was 120 feet tall and 50 feet wide, and included a digital commercial center identification sign of approximately 1,130 square feet. EPD drafted an EIR Addendum substantiating that the commercial center was consistent with the scope and type of development analyzed on the project site as part of the LosAlamitos General Plan EIR.The primary environmental issues involved traffic; construction and operational Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
PROJECT TYPE OF DOCUMENT
noise; aesthetics; light, glare, and shading ( from the project' s pylon sign); and land use compatibility.
Claremont General Plan Housing Element EIR Addendum EIR Addendum City of Claremont, 2016 - 2017 MMRP
EPD was selected to prepare an EIR addendum for the City of Technical Studies:
Claremont' s General Plan Housing Element update. The addendum • Biological Resources provides a detailed analysis of two potential residential development • Cultural & Paleo Resources sites in order to minimize future analysis requirements for affordable • Traffic Study housing development on those sites. EPD' s role required close coordination with the City Attorney and detailed analysis of traffic impacts.
Primrose Avenue Residential Initial Study
City of Riverside, 2016 - 2018 MND
EPD prepared an MND for a subdivision of 63 single- family homes MMRP on 9. 3 acres. Entitlements included a Planned Residential Technical Studies:
Development, Tentative Tract Map, and Design Review. The project • Air Quality & GHG Emissions included the rerouting of public streets to accommodate a larger • Cultural & Paleo Resources recreational area. EPD also prepared a traffic study and • Noise Study coordinated other technical studies. Traffic Study
Los Angeles County General Plan EIR Initial Study
Los Angeles County, 2008 - 2014 Program EIR
EPD staff member Konnie Dobreva was the
CEQA manager of the Program EIR for the
comprehensive update to the 1980 Los
Angeles County General Plan. The General
Gets IPlxnU i to Plan serves the entire 2, 656 square mile unincorporated area of the county. For
specific areas of the county, the General Plan
includes 15 community- level plans. The EIR
evaluated the environmental impacts of the
General Plan update, including the addition
of new elements, technical changes, and reorganization to reflect current information and new legal requirements. As part of the EIR, Konnie also assisted the county in determining the ultimate population, housing, and employment projections for the buildout of the proposed land use plan. The buildout exercise and EIR were particularly challenging given the size and complexity of the county' s land use plan ( including the 15 disparate community-level plans).
Subcontractors
EPD proposes to subcontract focused technical analyses to specialized, experienced firms in the respective fields. This will include the services of Material Culture Consulting, Inc. for cultural and paleontological Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
resources analyses; Blackhawk Environmental, Inc. for biological resources analyses; and Urban Crossroads, Inc. for air quality, greenhouse gas emissions, and noise analyses.
Blackhawk Environmental, Inc.
Blackhawk Environmental, Inc. ( Blackhawk) specializes in biological resources. k5t Blackhawk provides environmental consulting services in biological and waternvironmental resources, mitigation management, monitoring and compliance, regulatory agency consulting, negotiations and permitting, habitat restoration, CEQA/ NEPA analyses, environmental document preparation, and associated disciplines. Blackhawk has worked extensively in Riverside County and has processed numerousprojects in compliance with MSHCP requirements. Blackhawk's project manager would be Kris Alberts, a principal biologist with 20 years of experience in biological surveying, jurisdictional delineations, wetland and native habitat restoration, and Stormwater Pollution Prevention Plan ( SWPPP) Best Management Practices ( BMP) implementation. He holds numerous state and federal permits for species located in Southern California.
EPD has worked with Blackhawk on habitat assessments, focused surveys, jurisdictional delineations, and monitoring and compliance at over 30 different projects over the past five years.
The following are references for Blackhawk:
San Diego Gas & Electric— Karen Wilson, Senior Environmental Specialist kwilson@semprautilities. com, ( 858) 636- 3972)
Blackhawk provides a wide range of services to support numerous SDG&E projects, including construction monitoring, endangered species surveys, nesting bird surveys, environmental compliance, and reporting services.
Ceresola Inspection Services— Shannon Ceresola, Environmental Compliance Specialist sceresola@sbcglobal. net,( 775) 240- 4785
Blackhawk provided construction monitoring and mitigation monitoring reporting services to complete the construction phase of the Sunrise PowerLink project.
Geosyntec Consultants— Alex Greene, Senior Engineering Geologist agreene@geosyntec. com, ( 858) 716- 2911
Blackhawk worked as a team with geologists and stormwater practitioners to complete BMP installation and slope stabilization practices on the Sunrise PowerLink project.
Material Culture Consulting, Inc.
V16J00*Material Culture Consulting, Inc. (MCC) offers services in archaeology, ethnography, history, Native American consultation, traditional land use studies, AB 52 SB 18 MATERIAL CULTURE consultation assistance, paleontology, and agency consultation to accomplishC O N S U L T I N G regulatory compliance under CEQA, NEPA, the National Historic Preservation Act NHPA) and other historic preservation statutes and implementing regulations. Their qualified cultural resource professionals have expertise in historic archaeology, history, architectural history, ethnography, regulatory compliance, architectural history, historic preservation, and GIS data management. All staff meet the professional Secretary of Interior Qualifications for Archaeology and Historic Preservation. StaffP Y 9Y conducts all phases of cultural resources fieldwork from records and archival searches, historic properties inventor assessment of historical significance, and treatment/ mitigation of adverse effects. MCC' sY, 9 ethnographers have decades of experience consulting with Native Americans to understand the inventory and traditional significance of cultural resources.
Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
EPD has worked with MCC on cultural and paleontological resources assessments, American Indian consultations, and monitoring and compliance at over 60 different projects over the past five years.
The following are references for MCC:
SWCA Environmental Consultants — Maria Wiseman, MA, RPA, Senior Archaeologist and Project Manager
Maria. Wiseman@swca. com, ( 626) 240- 0587
As part of an ongoing on-call contract, MCC provides cultural resources surveys, archaeological site testing, monitoring, and GIS data management in support of multiple SCEprograms, including Large Capital, Environmental Compliance, Grid Reliability and Maintenance, deteriorated pole replacement projects, and public lands compliance projects.
Arcadis— Brian Glenn, M.A., RPA, Principal Investigator for Archaeology Brian. Glenn@arcadis- us.com, ( 714) 345- 9883
MCC is providing ongoing cultural resources services to support construction of five major capital project rebuilds for SouthernCalifornia Edison, encompassingover 1200 miles of transmissionlines throughout California and Nevada. Services include cultural resources surveys, archaeological site assessments,monitoring, and GIS data management.
Crable & Associates, Environmental Consultants— Dennis Crable, Owner and Principal dennis@crable- associates. com,( 626) 676- 6993
MCC is providing cultural resources survey and resource assessmentsfor a 95- acre planned community near Adelanto. Fifteen cultural resourceswere identified during survey which required evaluation under CEQA.
Urban Crossroads, Inc.
Urban Crossroads, Inc. will provide technical study support services in CEQA URBANdocument preparation, including the preparation of air quality, greenhouse gasCROSSROADS emissions, and noise analyses.
Urban Crossroads provides air quality, greenhouse gas, and health risk assessmentanalysis servicesto meet national, state and various local compliance standard requirements. Services range from transportation and constructiondevelopment projects to long-term stationary and mobile source emitters. In determining potential air quality impacts, Urban Crossroadsutilizes industry-standard models to study the source-specific pollutant emissions. Urban Crossroadsstaff has extensive experience using U.S. EnvironmentalProtection Agency Air Dispersionmodels, includingISCST3and AERMOD; and air quality modelsaccepted for usein California including CaIEEMod, EMFAC, CALINE4 and CAL3QHC.
Urban Crossroads provides the full spectrum of environmental noise measurement and analysis expertise.
This may include a preliminary noise study to establish the barrier height requirements for plan approval, detailed building assemblyrequirementsas part of a final noisestudyto satisfy interior noiserequirements, project operational stationary- source noise levels, and potential short- term construction noise impacts. In addition, Urban Crossroads' noise group maintains a strong technical background in the application and development of noise prediction models.
Urban Crossroads' project manager would be Haseeb Qureshi, MES. Haseeb has over a decade of experience working in the areas of air quality and greenhouse gas analysis and health risk assessment.
Urban Crossroadsalso has project managers specializing in noise studies.
Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
EPDhas worked with Urban Crossroads on air quality, greenhouse gas emissions,noise, and traffic analyses at over 60 different projects over the past five years.
The following are references for Urban Crossroads:
City of Fontana— Zai AbuBakar, Director of Community Development zabubakar@fontana. org, ( 909) 350- 7625
Urban Crossroads has provided traffic, air quality, greenhouse gas emissions, and health risk assessment studies in support of various CEQA projects.
City of Yorba Linda— Ehab ( Max) Maximous, Public Works Director mmaximous@yorbalindaca. gov, ( 71 A) 961- 7170
Urban Crossroads provides the City with on-call transportation consultingservices.
City of Santa Ana— Candida Neal, Planning Manager
cneal@santa- ana.org, ( 71 A) 667- 2728
Urban Crossroads has provided traffic, parking, air quality, greenhouse gas emissions, and health risk assessment studies in support of various CEQA projects.
Staff Biographies
The following staff members would lead efforts related to Rancho Cucamonga projects.
KONNIE DOBREVA, JD EPD Solutions, Inc.
Position Director of Environmental Planning
Time with 4 years
Company
Required No licenses, registrations, or certifications are required by law for the scope of work Licenses, provided.
Registrations,
Certifications
Education Juris Doctor, Pepperdine University School of Law Bachelor of Arts in EnvironmentalAnalysis and Design,cumlaude, University of California, Irvine
Certificate in Alternative Dispute Resolution, Straus Institute Role in the Project Manager; lead reviewer of all environmental documents Project
Experience Konnie's nearly 20 years of public and private sector planning and legal experience have with made her an expert in entitlements, environmental, and policy planning, a keen analyst, Minimum and an effective writer of environmental documents. She has managed and prepared Requirements environmental documents for a diverse range of projects and clients: small- scale residential and large planned communities, commercial office, industrial, mixed- use, and schools. In law school, Konnie specialized in alternative dispute resolution. She clerked for two private law firms and the Thousand Oaks City Attorney' s Office. She was also a full- time extern for the Honorable Warren J. Ferguson, 9th Circuit Court of Appeals. Konnie has been a planner with the City of Lake Forest and a planning consultant for the cities of Irvine, Anaheim, and Rancho Santa Margarita. Her duties included project management, evaluating development proposals, presenting staff reports and resolutions before the Zoning Administrator and Planning Commission, evaluating grading and building plans, and environmental review and documentation. Konnie's diverse planning and legal experience provides her with a unique understanding of planning and zoning law, and CEQA. She is frequent lecturer on CEQA for the Association of Environmental Professionals Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
AEP)Advanced CEQA Workshop and CEQA BasicsWorkshop, which provides training to many of the area developers, agency planners and attorneys.
Work Konnie has nearly 20 years of experience in environmental planning and has worked on History environmental reviews for the counties of Los Angeles, Orange, Riverside, and San Bernardino, and the cities of Claremont, Ontario, Upland, Jurupa Valley, Fontana, Anaheim, and Irvine, among others. Examples of work experience similar to that of the City' s request include:
Clearwater at North Tustin, EIRaddendum for 100- unit senior care facility 901 E.SouthStreet, Infill Environmental Checklist for 546- unit multifamily development Twelve Oaks Winery Resort, MND and traffic study for 286- key resort and 96 residential units
Downtown Commercial Core Specific Plan, Program EIR for the addition of 887 residential units and 300, 000 sq. ft. of commercial space to historic Old Town Tustin Claremont General Plan Housing Element EIRAddendum
Colony Commerce Center East, EIRfor 1.9 million sq. ft. of industrial space Saddleback Stadium, EIRaddendum and traffic study for 8,000- seat stadium Rider Commerce Center, MND, traffic study, and community outreach for 200, 000 sq. ft. industrial building
JEREMY KROUT, AICP, LEED GA EPD Solutions, Inc.
Position President CEO
Time with 5 years
Company
Required No licenses, registrations, or certifications are required by law for the scope of work Licenses, provided. Jeremy has the following registrations/ certifications that are applicable to his Registrations, role:
Certifications Certified Planner, American Institute of Certified Planners ( AICP) LEED Green Associate
Education Master of City and Regional Planning, California Polytechnic State University, San Luis Obispo
Dual Bachelor of Arts, Geography and Environmental Studies, University of California, Santa Barbara
Role in the Principal in Charge; Quality Assurance/ Quality Control Project
Experience Jeremy has nearly 20 years of experience in environmental and policy planning. Over with this period, he has successfullymanaged many regionally significant and complex projects Minimum in these fields, which drew on his knowledge of federal, state, and local government Requirements regulations, natural interpersonal and negotiation skills, public presentation strengths, detail- oriented approach to project design oversight, and team leadership abilities. His multifaceted experience in infill residential, master planned communities, affordable housing, education, public and private redevelopment, transportation, mining, solar, recreation, hospitality and industrial projects has developed and honed his skills in entitlement strategy and implementation and environmental compliance.
Work Jeremy's experience in CEQA analysis includes the following recent projects:
History Twelve Oaks Winery Resort, MND and traffic study for 286- key resort and 96 residential units
Gemini Solar, EIS for 690 MW solar photovoltaic power plant Los Olivos, Riverside County, 48 homes
Downtown Commercial Core Specific Plan, Program EIR for the addition of 887 residential units and 300, 000 sq. ft. of commercial space to historic Old Town Tustin 901 E.South Street, Infill Environmental Checklist for 546- unit multifamily development Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
Colony Commerce Center East, EIRfor 1.9 million sq. ft. of industrial space Centennial Park Solar & Sherwood Park Solar, City of Paso Robles, canopy solar PV Advanced Technology & Education Park, City of Tustin,new community college Artisan Alley, City of Lake Elsinore, 130 keys and 95, 000 SF commercial RAFIK ALBERT, AICP, TEED AP EPD Solutions, Inc.
Position Director of Planning
Time with 5 years
Company
Required No licenses, registrations, or certifications are required by law for the scope of work Licenses, provided. Rafik has the following registrations/ certifications that are applicable to his Registrations, role:
Certifications Certified Planner, American Institute of Certified Planners ( AICP) LEED Accredited Professional
Education Master of BusinessAdministration, California State University, Long Beach Bachelor of Science in City and Regional Planning, magna cum laude, California Polytechnic State University, San LuisObispo
Role in the CEQA document preparer and peer reviewer; coordination of technical consultants Project
Experience Rafik has a decade of experience in the preparation of environmental documents, as well with as the peer review of environmental documents and technical studies. He has worked on Minimum projects including MNDs for solar power plants, an EIR for a concrete manufacturing Requirements facility,
Work Rafik's experience in CEQA analysis includes the following recent projects:
History Clearwater at North Tustin, EIRaddendum for 100- unit senior care facility 901 E.South Street, Infill Environmental Checklist for 546- unit multifamily development Pedley Crossings, EIR for 300, 000 sq. ft. commercial center with surface mining component during construction, consisting of 1.8 million cubic yards of rock export Downtown Commercial Core Specific Plan, Program EIR for the addition of 887 residential units and 300, 000 sq. ft. of commercial space to historic Old Town Tustin Saddleback Stadium, EIRaddendum and traffic study for 8,000- seat stadium Hemet Solar, MND for 20- MW solar power plant
MEGHAN MACIAS„ TE EPD Solutions, Inc.
Position Transportation Planning Director
Time with 2 years
Company
Required Registered California Traffic Engineer ( License No. 2697) Licenses, Treasurer, Orange County Association of Environmental Professionals Registrations, SB743 Subcommittee Member, Institute of Transportation Engineers Certifications m Orange County Traffic Engineering Council Education Master of Urban and Regional Planning, University of California, Irvine Bachelor of Arts in Geography, California State University, Fullerton Role in the Traffic study preparation and peer review; CEQA document preparation and peer Project reviewer
Experience Meghan' s primary responsibilities include preparation of technical analyses of land with development projects, including comprehensive transportation impact analyses, traffic Minimum operations analyses, and parking studies. Meghan has worked on numerous and varied Requirements projects through California including land development, infrastructure, active transportation and Master/ Specific/ General Plans. Meghan has a proven track- record of Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
managing complicated and controversial projects to achieve defensible and implementable solutions to technical issues. Her expertise in traffic engineering and operations analysis methodologies is complemented by her knowledge of CEQA.
Meghan has over 18 years of experience in the transportation planning field and has worked on hundredsof projects throughout California. She has a deep understanding of the regulations and methodologies used by local and regional agencies including application of local traffic study guidelines, CMP and CEQA requirements, and the Mitigation Fee Act. Meghan uses her experience to provides strategic transportation planning services to public- and private- sector clients. Her work is focused on providing implementable solutions that satisfy various stakeholders including developers, local a encies, and affected citizens.
Work Meghan' s extensive experience in traffic assessment and CEQA analysis includes the History following recent projects:
Alta Vista Specific Plan Amendment (Placentia), traffic study and MND for 54 single- family homesand 11,000 sq. ft. of commercial space, 2018 Saddleback Stadium (MissionViejo), traffic study and EIRaddendum for 8,000- seat stadium serving Saddleback College, 2017
LaVerne Elementary Prep Academy ( Hesperia), traffic study for 450- student charter school, 2018
Gemini Solar Project( Clark County, NV), traffic study for 690- MW solar power plant on 7, 000 acres, 2018
Highway 46 LogisticsCenter( Kern County),traffic study for 2 million sq. ft. warehouse, 2018
KRIS ALBERTS Blackhawk Environmental, Inc.
Position Vice President/ Principal Biologist ( Biological Resources) Time with 6 years
Company
Required USFWS Permit TE- 039640- 3 for California Gnatcatcher ( CAGN), Southwestern Licenses, Willow Flycatcher ( SWFL) & Least Bell' s Vireo ( LBVI) Presence/ Absence Surveys & Registrations, Nest Monitoring, and Quino Checkerspot Butterfly ( QCB) Presence/Absence Surveys - Certifications 2001- present
Arroyo Toad Handler— USFWS Approved, 2010- present
Flat- tailed Horned Lizard Handler— CDFW/ BLM Certified, 2007- present Brown- Headed Cowbird Trapping - CDFW Authorized, 2011- present Memoranda of Understanding for CAGN, SWFL, LBVI, QCB & ARTO— CDFW, 2011- present
011-
present
Scientific Collecting Permit# SC- 801 141 - CDFW, 2007- present Desert Tortoise Council Survey Techniques Workshop - Certified, 2007 Wetland Training Institute - Certified, 2007
Education Bachelorof Sciencein Natural Resourcesand EnvironmentalSciences, Universityof Illinois at Urbana Champaign
Role in the Biological resources report and jurisdictional delineation preparation and peer review Project
Experience Kris is the principal biologist and co- owner of Blackhawk Environmental. He is a well- with rounded biologist, environmental consultant, project manager, botanist, water resources, Minimum and compliance specialist with over 20 years of experience and numerous state and Requirements federal permits. His comprehensivebackground includesmany endangered and sensitive species surveys, flora and fauna surveys, large and small project management, wetland and native habitat restoration, jurisdictional delineations, SWPPP BMP implementation, Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
environmental compliance, permitting and regulatory agency experience, CEQA/ NEPA documentation, and creative mitigation approaches.
Work Kris' extensive experience in biological resourcesassessmentincludesthe following recent History projects:
San Diego Gas & Electric Sunrise Powerlink Transmission Line ( San Diego & Imperial Counties) nesting raptor/ bird surveys, Habitat Restoration and Management Plan, Biological Assessment and Management Indicator Species report, California gnatcatcher assessments, mitigation monitoring and compliance, burrowing owl and golden eagle nest surveys, arroyo toad and Quino checkerspot butterfly surveys, flat- tailed horned lizard handling and monitoring, peninsular bighorn sheep monitoring, Environmental Awareness Program
Southern California Edison Coolwater to Lugo Transmission Project ( San Bernardino County) habitat assessmentand desert tortoise, flowering plant, and golden eagle surveys
Nestle Waters( San Bernardino County) southwesternwillow flycatcher and least Bell's vireo surveys
Paradise Valley Specific Plan (Riverside County) jurisdictional delineations and desert tortoise surveys
CoronaMastersresidentialdevelopment(Corona) habitat assessments,burrowing owl surveys, vegetation mapping, jurisdictional delineations Etiwanda residential development mitigation site( Rancho Cucamonga) brown- headed cowbird trapping program design and reporting
TRIA BELCOURT, MA,, RPA Material Culture Consulting, Inc.
Position President and Principal Environmental Specialist ( Cultural and Paleontological Resources) Time with 3 years
Company
Required Registered Professional Archaeologist
Licenses, Professional Certification in GIS
Registrations,
Certifications
Education Graduate Certificate in EnvironmentalManagement of Military Lands, Colorado State University
Master of Arts in Anthropology, University of Florida
Bachelor of Arts in Anthropology, magna cumlaude, University of California, LosAngeles Role in the Cultural and paleontological resources report preparation and peer review Project
Experience Tria overseesand is responsible for the entire work processat Material Culture Consulting. with She plans, supervises, and oversees field projects, including responsibility for the Minimum professional quality of evaluations and recommendations. Tria has primary accountability Requirements for the technical completenessand competence of work conducted by her staff. She is responsible for development of work plans and/ or research designs, for performance of crew chiefs, for selection standards and limitations on work assignments of crew members, for analysis and interpretation of field data, for integration of fieldwork results into comparative regional perspectives, and for preparation of reports. Tria' s advanced academic training and more than twelve years of professional archaeological experience has included rigorous training and application of anthropological and archaeological theory and methods, and in recording, collecting, handling, analyzing, evaluating, and reporting cultural property data, relative to the type and scope of work proposed.
Tria has been an archaeological project manager and principal investigator for over six years, leading and managing several complex compliance projects throughout the State Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
of California and in Southern Nevada, which have involved each step of cultural resource compliance and management. Prior to this, she spent six years as a field technician and crew chief on projects throughout California and the Southeastern United States. Her experience includes conducting background research, field survey, resource testing and formal NRHP/CRHRevaluation, data recovery plan development and implementation. She has prepared hundreds of technical reports for all of the above to state and federal standards — ranging from simple clearance forms, to letter reports, to extensive data recovery reports. Tria regularly provides third party and QA/ QC review of cultural resource technical documents, due to her keen understanding of state and federal regulations and laws governing the management of cultural resources throughout the state of California.
Work Tria' s extensive experience in cultural and paleontological resources assessment includes History the following recent projects:
Pacific Gas & Electric, on- call Archaeological Principal Investigator, 2015- present Southern California Edison, on-call and emergency projects Archaeological Principal Investigator and Project Manager, 2013- present
Tehachapi Renewable Transmission Project, Principal Investigator, 2009- present Cultural and Paleontological Resources Assessment, Village 605 ( Los Alamitos), 2016 Cultural and Paleontological Resources Assessment, Tandis Homes 21- lot Subdivision Menifee), 2016
Cultural Resources Assessment of the Metropolitan State Hospital ( Norwalk), 2016 HASEEB QURESHI, MES Urban Crossroads, Inc.
Position Senior Associate ( Air Quality & Greenhouse Gas Emissions Assessment) Time with 12 years
Company
Required No licenses, registrations, or certifications are required by law for the scope of work Licenses, provided. Haseeb has the following organizational memberships that are applicable to Registrations, his role:
Certifications Association of Environmental Professionals Air and Waste Management Association
American Society for Testing and Materials
Education Master of Sciencein EnvironmentalStudies, California State University, Fullerton Bachelor of Arts in Environmental Analysis and Design, University of California, Irvine Barbara
Role in the Air quality, greenhouse gas emissions,and health risk assessments.
Project
Experience Haseeb has been working in the field of air quality, climate change, health risk assessment, with and vehicular and non-motorized transportation planning and analysis since 2006. In this Minimum time he has authored numerous air quality, health risk, greenhouse gas, traffic impact Requirements analysis studies, and provided input into project design to promote sustainability and walkability for projects ranging from small development projects to citywide General Plan updates and large scale specific plans. Recent activities include efforts to inventory greenhouse gas emissions for various projects and provide recommendations to reduce carbon impacts through innovative mitigation strategies. Haseeb is proficient in the use of unique software tools such as CaIEEMod, AERMOD, ISCST3, CALINE4 and EMFAC.
Work Haseeb' s extensive experience in air quality, greenhouse gas emissions, and health risk History assessmentincludes the following recent projects:
West Ontario Commerce Center Air Quality and GHG Analysis, 2018 Metropolitan State Hospital Police Facility (Norwalk) Air Quality, GHG, and Energy Analyses, 2018
Saddleback Stadium Mission Viejo) Air Quality and GHG Analysis, 2018 Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
Nittobo Manufacturing Facility (Murrieta) Air Quality and GHG Analysis, 2018 EICentro Aquatic Center Air Quality and GHG Analysis, 2016 Moreno Valley Logistics Center Air Quality, GHG, and Energy Analyses and Health Risk Assessment, 2016
BILL LAWSON, PE, INCE Urban Crossroads, Inc.
Position Principal ( Noise Assessment)
Time with 18 years
Company
Required Institute of Noise Control Engineering, member since 2004 Licenses, Registered California Traffic Engineer ( License No. 2537) Registrations, Certified Planner, American Institute of Certified Planners ( AICP) ( former) Certifications 0 Professional Transportation Planner ( PTP) ( former) Education Master of Science in Civil and Environmental Engineering, California Polytechnic State University, San LuisObispo
Bachelor of Science in City and Regional Planning, California Polytechnic State University, San Luis Obispo
Role in the Noise and vibration study preparation and peer review.
Project
Experience Bill is a founding principal partner, a Registered Professional Traffic Engineer and a with Certified Acoustical Consultant. Bill has over 22 years of community noise experience and Minimum has personally prepared and directed the development of well over 1,500 noise studies Requirements throughout Southern California. His work as a noise consultant focuses on helping communities identify and control noise impacts by developing meaningful solutions to complex noise issues. Bill also maintains a wide range of technical expertise that includes transportation planning, traffic engineering, and neighborhood traffic control.
Work Bill' s extensive experience as an acoustical consultant and traffic engineer includes the History following recent projects:
Certified Acoustical Consultant for the County of Orange, 2011- present Contract City Traffic Engineer, City of Rancho Santa Margarita, 2010- present Moreno Valley Logistics Center Noise Analysis, 2016
Canyon Springs Health Care Campus & Senior Living (Riverside), 2017 Santee Walmart Expansion Noise Impact Analysis, 2017
Bear Creek Master Association Traffic Calming Evaluation (Murrieta), 2017 San Gabriel Valley Water Company Plant Long-term Construction Noise Monitoring EI Monte), 2017- present
Aliso Viejo Medical Center Parking Demand Analysis, 2016 Statement of Qualifications Response
EPD Background
The EPD team include CEQA and entitlement specialists with decades of experience throughout Southern California. Our team has significant experience with a wide range of CEQA/ NEPAdocumentation, including exemptions, initial studies, negative declarations, mitigated negative declarations ( MNDs), environmental impact reports ( EIRs), and mitigation monitoring and reporting programs ( MMRPs), as well as National Environmental Policy Act (NEPA) environmental assessments, Findings of No Significant Impact (FONSIs),and Environmental Impact Statements ( EISs).
Request for Statement of Qualifications# 1819- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
We are unique among environmental planning firms in having the expertise to take projects beyond the conclusionof the CEQAprocess, into the regulatory permittingand constructionphases. EPDstaff routinely process permits through various Regional Water Quality Control Boards and the California Department of Fishand Wildlife, State Water ResourcesControl Board, U.S. Fishand Wildlife Service, Army Corps of Engineers, and other agencies. EPD processes construction permits, ensures conditions compliance, and not only develops mitigation measures for environmental documents, but also applies mitigation measures in the field by, for example,coordinatingpre-constructionbiologicalsurveys,contractingwithconstructionmonitors for biological and culturalresources, coordinatingwith tribal monitors, and ensuringcontractorsare aware of all required conditions and mitigations.
In addition, we have provided entitlementdocumentation, permit processing, and other servicesthroughout Southern California. Our staff' s expertise with entitlement documentation includes the preparation of specific plans, general plan amendments, annexations, sphere- of- influence amendments, and zone changes, and the processing of tract maps, water quality management plans, and other technical documents. Senior staff have extensive experience with public communication and presentations. EPD routinely serves as a prime contractor, managing a range of subconsultantfirms on behalf of agency clients.
Relevant Experience
Our experienceincludesenvironmentaldocumentationand entitlementsfor industrial, office, multi-family residential, and transit- oriented development projects in urban and suburban communities throughout Southern California. The following table lists a portion of our environmental project experience in recent years. Detailed descriptions of selected projects are provided above, in the " Experience" section.
Year
Project Name Pro' ectT a Completed Location
Rider Commerce Center Industrial In progress Riverside Count Twelve Oaks Winery Resort Commercial In progress Riverside County Residential
Gemini Solar In progress Clark County, NV
Los Olivos Residential In proqress Riverside Count
Chino Francis Estates Residential In progress Chino
The Retreat Residential In progress Orange Count
Advanced Technology& Education Park In progress Tustin
ClearwateratNorthTustin Residential 2018 Orange Count
Downtown Commercial Core Specific Plan Commercial 2018 Tustin Residential
Saddleback Stadium 2018 MissionVie' o
Primrose Avenue Residential Residential 2018 Riverside
Temescal Vatley Commerce Center Industrial 2018 Riverside Count El Paseo Residential 2018 Lake Forest
901 E. South Street I Residential 2017 Anaheim
Colony Commerce Center East Industrial 2017 Ontario
Claremont General Plan Housing Element 2017 Claremont
EIR Addendum
City Lane Townhomes Residential 2017 Mission Viejo
Vintage Lofts Residential 2017 Tustin
Centennial Park Solar& Sherwood Park 2017 Paso Robles
Solar
Village 605 Commercial 2017 Los Alamitos
Brodiaea Business Center Industrial 2017 Moreno Valle
Harvill Business Center I
Industriine2017 Riverside Count
Metropolitan State Hospital Modernization 017Norwalk
Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
The Diamond Specific Plan Commercial 2018 Lake Elsinore Residential
Simon Ranch Reservoir 2016 Tustin
Montebello Town Homes Residential 2016 Montebello
Cardinal Glass Expansion Industrial 2016 Moreno Valle
Caltrans Fontana Solar PV Project 2015 1 Fontana
Pedle Crossin s Commercial 2015 Juru a Valle
Camden Square Residential 2015 Lake Forest
Sol Mar Residential 2015 Rancho Palos Verdes
Cit Commons Residential 2014 Costa Mesa
Cascade Solar Energy 2014 San Bernardino Count
Los Angeles County General Plan EIR Government 2014 Los Angeles Count South Orange County Community College Institutional 2012 Irvine, Mission Viejo,& Tustin District Facilities Master Plan EIR
Shea/ Baker Ranch Area Plan Residential 2012 Lake Forest The Platinum Triangle EIR Residential 2012 Anaheim
RRG Antelope Valle Solar Energy 2012 Kern& Los Angeles Counties Duncan Road Solar, White Road Solar,& Energy 2012 San Bernardino County Pinon Hills Solar
GreaterTehachapi Area Specific& Government 2011 Kern County Communit Plan
Project Manager and Support Team
EPD'sCEQAproject manager, KonnieDobreva, JD,hasnearly 20 years of public and private sectorplanning and legal experience have made her an expert in environmental planning and an effective writer of environmental documents. She has managed and prepared environmental documents for a diverse range of projects and clients: small- scale residential and large planned communities, commercial office, industrial, mixed- use, and schools. Konnie has been a planner with the City of Lake Forest and a planning consultant for the cities of Irvine, Anaheim, and Rancho Santa Margarita. Her duties included project management, evaluating development proposals, presenting staff reports and resolutionsbefore the ZoningAdministrator and Planning Commission, evaluating grading and building plans, and environmental review and documentation. Konnie'sdiverse planningand legal experienceprovides her with a uniqueunderstandingof planning and zoning law, and CEQA. Sheis on the Board of Directorsof the Orange County Associationof EnvironmentalProfessionals (AEP) and is a frequent lecturer for AEPin the Advanced CEQA Workshop and CEQA BasicsWorkshop, which provide training to many of the region's developers, agency planners, and attorneys. Sheis supported by Jeremy Krout, AICP, LEERGA, a planner with nearly 20 years of public- and private- sector expertise; Rafik Albert, AICP,with a decade of environmental planning experience; Meghan Macias, TE, a traffic engineer and CEQA specialist with 25 years of experience; Renee Escario, an environmental planner with 25 years of experience; and several other environmental planners.
Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
Approach
EPD's scopeof work would typically includethe following tasks; this list would be subjectto adjustmentfor each project proposal as directed by City staff:
1. Project Initiation, Document Review, and Preparation of Project Description— As soon as project informationistransmittedto EPD,we will arrange for a project initiation meetingwith City staff and proceed with the review of available, relevant documents, plans, etc. Following this initial review, a project description will be generated.
2. Preparation and/ or Peer Review of Technical Studies — Once the project description is finalized and confirmed, technical studies will be initiated. Any applicant- supplied studies will be peer reviewed for adequacy in supporting a CEQA document.
3. Initial Study— An Initial Study will be prepared (or an applicant-supplied Initial Studywill be peer- reviewed) to determine the appropriate CEQA document in compliance with the CEQA Guidelines.
A. Preparation of CEQA Document— Depending on the determination after task 3, documentation will be prepared for an exemption, a negativedeclaration, an MND, an addendumto previously- adopted or certified document, or an EIR.As the scope of future projects is not defined at this time, a detailed scopeof work for the environmentalanalysiswould be provided to the City for each forthcoming project.
5. Responses to Comments and Mitigation Monitoring and Reporting Program — These documents will be prepared by EPDwhere applicable ( for MNDs and EIRs).
6. Hearings— If requested, EPD will attend hearings and present the environmental document findings.
Quality Control
Quality control is ensured by the review by an experienced, senior project manager of all documentation prepared for a project. All documentsreleasedby EPDare subjectto a two-step quality controlprocess.
First,all documentsare thoroughly reviewed by both the documentpreparer and theCEQAproject manager, KonnieDobreva. Konniereviewsdocumentswith a focusonlegal defensibilityand compliancewith localand Stateregulations. Documentsare thensubjectto QA/ QC by an EPDstaffer whowasnotdirectlyinvolvedin the project in order to provide a new perspective and ensure all technical features of the document and all analysesare clear and concisefor the benefit of third-party reviewers. Further,EPDconductsregular internal project meetings to review the status of each section.
Budget Control
All EPDemployeesare integratedinto an advanced, cloud-basedbudget, timetracking, and scheduling system. This system allows project managers and administrative staff to track in real time costs and hours associated with a project, and to immediately adjust resource allocations to ensure each task remains on scheduleand on budget. EPDadditionally holds a weekly resourceallocation meetingwhere each active projectisassessedfor budgetand schedulecompliance.Staffing isadjustedif necessaryat thesemeetings.
Thesetools have proven effective in ensuringschedulesand budgets are maintained for all EPDprojects.
Request for Statement of Qualifications# 18/ 19- 201 EPD Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
Exhibits
The following exhibits are enclosed:
Exhibit A: Conflict of Interest/ Non- disclosure Statement Exhibit C: Professional ServicesAgreement ExceptionsSummary Exhibit D: Acknowledgement of Insurance Requirements
Exhibit E: Addendum Acknowledgement
Exhibit F: Consultant Certification Form
Exhibit H: Signature of Authority
Exhibit B, References Worksheet, is provided as a separate document.
Exhibit G, Participation Clause, is excluded from this submittal, as directed by Addendum No. 001.
Request for Statement of Qualifications# 18 19- 201 EPDq Solutions, Inc.
On Call CEQA Consulting Services December 6, 2018
City of Rancho Cucamonga
Request for Statement of Qualifications(" SOQ")# 18/ 19- 201 for
On Call CEQAConsulting Services
EXHIBITA" CITYOF RANCHO CUCAMONGA CONFLICTOFINTEREST/NON-DISCLOSURESTATEMENT It is the policy of the City of Rancho Cucamonga to prevent personal or organizational conflict of interest, or the appearance of such conflict of interest, in the award and administration of City Contracts, including, but not limited to Contracts for Professional Services Agreements (" PSA") with potential Consultants.
I do not havespecificknowledgeof confidential information regardingSOQresponsesreceivedin responseto the Request for Statement of Qualifications (" SOQ")# 18/ 19-201 for On Call CEQAConsulting Services.
I agreenotto discloseorotherwisedivulgeanyinformationpertainingto thecontents,status, or rankingof any SOQ response to anyone. I understand the terms and " disclose or otherwise divulge" to include, but are not limitedto, verbalconversations, written correspondence, reproductionof anypart or anyportionof anySOQ response, or removal of same from designated areas.
I, the undersigned, hereby certify that the following statements are true and correct and that I understand and agree to be bound by commitments contained herein.
Jeremy Krout
Print Name)
None
Relationship to the City)
President/ CEO
Relationship to the Consultant)
Signature)
12/ 6/ 2018
Date)
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 20 of 28 City of Rancho Cucamonga
Request for Statement of Qualifications(" SO( X")# 18/ 19- 201 for
On Call CEQAConsulting Services
EXHIBIT C" PROFESSIONAL SERVICES AGREEMENT EXCEPTIONS SUMMARY Mark the appropriate choice below:
X Consultant accepts the PSA without exception.
OR
Consultant proposes exceptions to the PSA.
Summarize all exceptions on a separate document. Enclosea written summary of each change and title as " Exception Summary", which shall include the Consultant' s rationale for proposing each such exception. Each exception must be labeled with the Section number in the PSA. Failure to properly reference exceptions in the submitted summary may deem the response as non- responsive.
Signa ure
Jeremy Krout
Printed Name
President/ CEO
Title
12/ 6/ 18
Date
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 23 of 28 City of Rancho Cucamonga
Request for Statement of Qualifications(" SOC")# 18/ 19- 201 for
On Call CEQAConsulting Services
EXHIBIT D" ACKNOWLEDGMENT OF INSURANCE REQUIREMENTS AND CERTIFICATION OF ABILITY TO
PROVIDE AND MAINTAIN COVERAGES SPECIFIED
Jeremy Krout
the President
President, Secretary, Manager, Owner or Representative) of
EPD solutions, Inc.
certify that the
Name of Company, Corporation or Owner)
Specifications and General Provisions regarding insurance requirements as stated within the Professional Services Agreement ( PSA), for the Purchase Contract designated Request for Statement of Qualifications SOQ") # 18/ 19-201 for On Call CEQAConsulting Services have been read and understood and that our Consultant is able to provide and maintain the coverage as specified in the PSA. Failure to provide said coverage, upon request to finalize the PSA prior to award shall be sufficient cause for immediate disqualification of award.
Failure to maintain said coverage shall result in termination of the contract.
Sig ature
Jeremy Krout
Printed Name
President/ CEO
Title
12/ 6/ 18
Date
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 24 of 28 City of Rancho Cucamonga
Request for Statement of Qualifications(" SOW)# 18/ 19- 201 for
On Call CEQAConsulting Services
EXHIBIT E" ADDENDUM ACKNOWLEDGEMENT
The Consultant hereby acknowledges the following Addenda Number(s) to this SOQhave been received, if any.
Consultant understands failure to acknowledge any addenda issued may cause the SOQ response to be considered non- responsive. It is the Consultant' s responsibility to log into the Bid System to identify and download the number of addenda that have been posted.
Addendum No. 001 - Nov. 8, 2018
Sign ture
Jeremy Krout
Printed Name
President/ CEO
Title
12/ 6/ 18
Date
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 25 of 28 City of Rancho Cucamonga
Request for Statement of Qualifications(" SOQ")# 18/ 19- 201 for
On Call CEQAConsulting Services
EXHIBIT F" CONSULTANT CERTIFICATION FORM
I certify that neither EPD solutions,
Inc.( Consultant) nor any of its proposedsubcontractorsare currently under suspension or debarment by any state or federal government agency, and that neither Consultant nor any of its proposed subcontractors are tax delinquent with the State of California.
I acknowledge that if Consultant or any of its subcontractors subsequently are placed under suspension or debarment by a local, state or federal government entity, or if Consultant or any of its subcontractors subsequently become delinquent in California taxes, our Proposal may be disqualified.
Signature
Jeremy Krout
Printed Name
President/ CEO
Title
12/ 6/ 16
Date
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 26 of 28 City of Rancho Cucamonga
Request for Statement of Qualifications(" SOQ")# 18/ 19- 201 for
On Call CEQA Consulting Services
EXHIBIT H" SIGNATURE OF AUTHORITY
The undersigned firm declares that he has carefully examined the specifications and read the above terms and conditions, and hereby proposes and agrees, if this SOQ response is accepted, to furnish all material in accordance with the specifications and instructions, in the time and manner therein prescribed for the unit cost amounts set forth in the following SOQ response.
THECONSULTANTIN SUBMITTINGTHISSOQRESPONSEMUST FILLIN THEFOLLOWINGINFORMATION. FAILURETODO SO MAY DEEM YOUR SOQ RESPONSEAS NON- RESPONSIVE.
Company Name: Address:
Environment Planning Development Street, Su.# City, State, Zip) Solutions, Inc. dba
EPD Solutions, Inc. 2030 Main St. , Ste. 1200
Irvine, CA 92614
Telephone#:
949) 794- 1180
Fax#:
n/ a
E- mail address: Web Address:
jeremy@epdsolutions. com www. epdsolutions. com
Authorized Representative:( print) Title:
Jeremy Krout President/ CEO
Signature: Date:
Gzwt 12/ 6/ 18
Must be included in final SOQ submittal.
Submittals Due: December 6, 2018, by 9: 00 am Page 28 of 28
EXHIBIT B
SCHEDULE OF PERFORMANCE
Not applicable
Vendor Initials
PSA with Professional Liability Insurance( non- design) Page 16 Last Revised: 10/ 02/ 13
Attachment A— Sample Waiver of Subrogation
Sample Only— Not all forms will look identical to this Sample)
TRAVELERS J WORKERS COMPENSATION
AND
EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 00 03 13( 00)- Of
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 Rancho Cucamonga, its officers, officials, employees, designated volunteersandagentsserving asindependentcontractorsin the role of City or nfficinls_
DESIGNATED ORGANIZATION:
Vendor Initials
PSA with Professional Liahility Insurance( non- design) Page 17 Last Revised: 10/ 02/ 13
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), Locations 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:
7. 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 damage arises has been put to 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
Vendor Initials
PSA with Professional Liability Insurance( non- design) Page 18 Last Revised: 10/ 02/ 13
Initials