Agenda packet — Yorba Linda City Council, July 18, 2023 (part 2 of 4)

pf ml asset
management
Managed Account Security Transactions & Interest For the Month Ending May 31, 2023 CITY OF YORBA LINDA - 9748OOOO
Transaction TypeTrade Settle
Principal
Proceeds
Accrued
Interest
Realized G/L Realized G/L
Cost AmoftCost
Sale
Method

PAYDOWNS
0slLsl23
0s/t5123
1slrsl23
0sl7sl23
05lLsl230slrsl2305115123
0sl18l23
0s120123
osl20l23
05/20123
0sl2sl230sl2sl23
05115/23
0sltsl23
0s/tsl23
0sltsl23
0s/tsl230slLsl23
0slts/2305/t8/2305/20/230s/20/230s120/23
0sl2sl23
0st25t23
CUSIP
50117T4C5
14316NAC3
44933FACo65479CAD0
14316H4C64493314C7t4377DAC4
43813K4C6
922908AA9
380144AC989238EACo05591RAC809661RAD3
6,47t.763,022.887,880.374,4æ.0t7,352.795,692.02
13,961,6010.468.8618,323.68
24,348.54
13,080.42
3,681.97
4,967.96

6.47r.763,022.887,880.37
4,464.0t7,352.19
5,692.02
13,961.6010,468.8618,323.68
24,348.54
13,080.42
3,68t.97
4,967.96
Total
6,471.763,022.887,880.37
4,464.01
7,352.19s,692.02
13,961.6010,468.8618.323.68
24,348.54
13,O80.42
3,681.97
4,967.96
149,913.04

7.32 0.60

1.48 0.t2
r.62

0.60 2.30

1.54 3.Bs3.82

1.53 0.120.37
(239,29)
Par
KCOT 2021-1A A3DTD 04/ 1412021 O.6200/o 08115/2025
CARMX 2021-l A3
DfD 0L/27 12021 O.340o/o 1211512025HART 2O2O-B A3DID 07 /2212020 0.480o/o r2lt6/2024NAROT 2O2O-B A3DrD 06/30 12020 0.550o/o 07 | 1512024 CARMX 2020-4 A3
DrD rc12l12020 0.500o/o 0811512025HART 2021-A A3DTD 04/2812021 0.380o/o 09/ 1512025 CARMX 2021-3 A3
DrD 07 128 | 2021 0.550o/o 06 | 15 I 2026HAROT 2020-3 A3DTD 09/29 12020 0.370o/o l0l 1812024 vzoT 2020-8 A
DrD 081 t212020 0.470o/o 0212012025
GMALT 2021-2 A3
DfD 05126 12021 0.340o/o 0512012024
TLOT 2021-A A3
DrD 04 l2l 12021 0.390o/o 04 12212024BMWLT 2021.1 A3DTD 03/10/2021 0.290o/o 0I 125 I 2024BMWOT 2O2O-A A3DT D 07 I 75 | 2020 0.480o/o tQ / 25 I 2Q24 0,000.000.000.000.000.000.000.000.000.000.000.000.00

0.00 0.000.000.000.000.000.000.000.000.000.000.000,000.00 Transaction Type Sub-Total L49,9t3.O4 149,913.04 0,00
SELL
0sl0rl230sl0u23
051031230s103/23
3137EAEW59L2828W71
110,000.00
250,000.00
108.167.40
243,976.02

42.07 479.00
r08,209.47
244,395.02
(1,878.80)
(12,822.26)
(1,837.98)(7.450.51)
FREDDIE MAC NOTESDTD 09/0412020 0.250o/o 09/0812023

US TREASURY NOTES
DTD 03/3U2017 2.125o/o 0313112024
FIFO
FIFO
FFM Asset Management LLC Account 97480000 Page 41

Page 138 of 606 ends

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Managed Account Security Transactions & Interest For the Month Ending May 3L,2O23 Transact¡on Type
Trade Settle
Principal
Proceeds
AccruedInterest
Realized G/L
Cost
Realized G/L
Total Amort Cost
SELL
CUSIP
9128285U0912828WJ591282CCG4
91282CH42
91282CCG4459058JM6
1tot22DT2
125,010.00
1,000,000.00

5.000.00
330,000.00475,000.00
775,000.00
240,000.00
123,\64.06
977,539.06
4,763.67
330,077.34
452,363.28
755,671.50
234,808.80
119,23s.00
1,114.90
17,671.27

4.77 313.86
5t8.72

0.00 39.38
724,278.96
989,210.33
4,768.44
330.391.20
4s2,882.00
755,671.50
234,848.18
ß,762.70)
(6s,000.00)
(213.48)
L,70t.56
Q0,46s.82)
(L7.662.25)
(5,191.20)
(2,6s7.07)
(31,712.82)
(227.63\
1,695.33
(21,850.43)
(19,048.s1)
(s,191.20)
Par
05101123 0s1031230s102123 05103123
0s103123 0s1031230s108123 }slL0l23
0s119123 0s/231230s123123 0s124123
05123123 0s124123o5l3LI23 06102123
US TREASURY NOTESDI D t2 | 3U 20 18 2' 6250/o 12 | 3 U 2023US ÎREASURY NOTES DTD 051 l5l20I4 2'500o/o 051L512024

US TREASURY N/B NOTES
DTD 06/15/2021 O.250o/o 061 I5l2O24US TREASURY N/B NOTES DTD 04 | 30 | 2023 3.s00o/o 04 | 30 | 2028

US TREASURY N/B NOTES
DTD 06/1s/2021 0'250o/o 061 1512024

INTL BK RECON & DEVELOP NOTES
DTD IL12412020 0.250o/o 1U2412023

BRISTOL-MYERS SQUIBB CO(CALLABLE) CORP
DTD lVt3l2020 0'537o/o tUI3l2023
¡OHN DEERE CAPITAL CORP

CORPORATE NOTES
DTD 06/ 10/ 202L O.45Oo/o
24422ÊV09 125,O00.OO
FIFOFiFO

FIFOFIFO

RFOFIFO
FIFO
3,435,O00.OO 3,349,706.13
273.44 119,508.rt4 (s,608.7s) (s,71t.96) FrFO
3,364,L63.48 (133,903.70) (93,992.74)
06l07l2024
Transaction Type Sub-Total
Managed Account Sub-Total
Total SecuriÇ Transact¡ons
Bolded ¡tems are forward settling trades.

L4,457.35
(565,470.93) 88,204.67 (477,266.26) (L34,742.99) (93,992.74) ($565,470.93) $88,204.67 ($477,266.26) ($134142.99) ($93,992.78) PFM As¡et tvTanaþ*ment LLC Account 97480000 Page 42

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PUBLIC WORKS DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE COUNCIL
FROM: JAMIE LAI, P.E. PUBLIC WORKS DIRECTOR/CITY ENGINEER PREPARED BY: AUSTIN POSTOVOIT, SENIOR MANAGEMENT ANALYST SUBJECT: AWARD OF A MULTI-YEAR PROFESSIONAL SERVICES AGREEMENT TO ALL CITY MANAGEMENT SERVICES, INC., FOR SCHOOL CROSSING

GUARD SERVICES

RECOMMENDATION
It is recommended that the City Council:

1. Approve a supplemental budget appropriation in the amount of $24,687.20 from the unappropriated reserves of the General Fund (101) with a corresponding increase to Public Works Department Operating budget line item for Crossing Guard Services (Account No.1010320-432780) for Fiscal Year 2023-2024; and

2. Approve the award of a multi-year Professional Services Agreement to All City Management Services, Inc. (ACMS), in the amount of $1,291,399.20 for the initial multi-year term ($409,687.20 for Fiscal Year 2023-2024) for provision of School Crossing Guard Services; and

3. Authorize the City Manager to sign and execute the Professional Services Agreement and potential future annual renewal amendments to the agreement including Consumer Price Index based increase(s) as provided for within this agreement on behalf of the Council.

BACKGROUND
The City of Yorba Linda has been providing crossing guard services for school children since 1969. Crossing guards are provided at Placentia-Yorba Linda Unified School District (PLYUSD) sites within the City of Yorba Linda. Currently, twenty-three (23) school crossing guards are required for each typical school day as a part of the school crossing guard program. The contracted program, which is overseen by the Public Works department, is currently managed by All City Management Services, Inc. (ACMS) of Santa Fe Springs, California. This firm has been providing said services for the City since 2005 under successive contracts which were all competitively procured.

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A W A R D O F A M U L T I - Y E A R P R O F E S S I O N A L S E R V I C E S A G R E E M E N T T O A L L C I T Y M A N A G E M E N T S E R V I C E S , I N C . , F O R S C H O O L

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The current school crossing guard services contract provided by ACMS was approved by the City Council on July 5th, 2016, for a three-year original term with the option to extend for an additional four years. The agreement is set to expire on August 31, 2023, and no additional extensions of the agreement are allowed per the contract terms.

In advance of the contract expiration, City staff began to develop solicitation documents for replacement services and conduct research for similar procurements for other cities within Orange County. A multi-agency crossing guard survey was developed by staff and disseminated to local municipalities’ transportation and engineering managers to poll agencies on crossing guard service models, vendors, costs, and satisfaction. Additionally, staff utilized information gathered in the survey to determine potential qualified firms.

DISCUSSION
Staff issued a Request for Proposal (RFP) for school crossing guard services to qualified professional firms in June of 2023. The RFP was competitively and openly posted on the City’s website, and qualified firms were also informed of the solicitation opportunity. The selection of the firm is based upon factors such as experience, professional qualifications, and competence as outlined in the Yorba Linda Municipal Code, as well as cost and additional criteria.

On June 22, 2023, a total of two (2) firms submitted proposals in response to the solicitation.

Proposals were reviewed, evaluated, and ranked by an evaluation team comprised of City staff members. The two proposals received, their hourly guard rate (upon which the contract amount was to be determined) and their qualitative ranking are listed in the table below:

Proposing Firm Name Rank Proposal Hourly Guard Rate
All City Management Services, Inc. 1 $32.08
Belcher Enterprise, LLC N/A $30.00
One proposing firm, Belcher Enterprise, LLC, submitted a proposal that did not include sections required by the RFP, and was deemed unresponsive and thus rejected. After reviewing all the proposals received, staff ranked ACMS as the highest qualified proposal that provided the best information about their abilities to perform the crossing guard services to the City. ACMS, based in Santa Fe Springs, CA, specializes in school crossing guard services and is currently serving many cities, counties, and school districts throughout Southern California. Further, ACMS is currently providing crossing guard services for 13 out of 16 Orange County cities who responded to the City’s pre-procurement survey.

ACMS was rated as the top firm using their original cost proposal; however, City staff also negotiated a reduced hourly and annual cost proposal from ACMS. The revised cost proposal reduced the hourly amount for the first year of the term from $32.08 to $29.18 This negotiation reduced the year-over-year cost percentage increase from approximately 33% to 21%, resulting in an annual contract reduction from $450,403.20 to $409,687.20 for the first year of the contract term.

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A W A R D O F A M U L T I - Y E A R P R O F E S S I O N A L S E R V I C E S A G R E E M E N T T O A L L C I T Y M A N A G E M E N T S E R V I C E S , I N C . , F O R S C H O O L

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Since the planned initial contract term is for approximately three-years, the negotiation also reduced the potential costs for subsequent annual terms considerably. The fee schedule and hourly rates for potential award under the RFP were to be fixed for a period of three (3) years. However, a revised contract cost structure was negotiated to allow for an initial threeyear term wherein annual amounts are variable. The proposed second and third contract years were fixed at $450,403.20, but the revised amendment increases would be based upon the initial amount of $409,687.20 plus subsequent low percentage increases (5.20% and 4.42% respectively). Negotiations also yielded Consumer Price Index (CPI) based increases, at the City’s sole option, should renewals beyond the three-year term be pursued.

The per-year amounts within the agreement and the aggregate initial total are shown in the table below:

Multi-Year Agreement Contract Amounts by Fiscal Year
Fiscal Year/ School Year Annual Period Annual Amount
2023-2024 Agreement Year 1 $409,687.20
2024-2025 Agreement Year 2 $431,308.80
2025-2026 Agreement Year 3 (Final) $450,403.20
Not-to-Exceed Agreement Amount= $1,291,399.20
The first term of the agreement will be for a period of less than 12 months, in order to bring the contract into alignment with the City’s Fiscal Year which begins July 1st. Since the crossing guard services will be rendered in tandem with the school year schedule, a full annual amount is required for this shortened initial term. Subsequent potential extension periods would be for 12-months between July 1st and June 30th of each year. Therefore, it is the recommendation of staff that the Council approve award of a multi-year professional services agreement in the amount of $1,291,399.20 to ACMS, with the option to extend the agreement for up to two (2) additional one-year renewal terms.

FISCAL IMPACT
The negotiated hourly rate proposed by ACMS for the first year of the contact term is $29.18 per crossing guard. On average, the school year in PLYUSD is 180 days. Based upon a 180-day school year and the number of guards required for specific amounts of hours at each site, the grand total annual guard hours required for crossing guard services is 14,040.

Therefore, the first annual subset of the multi-year contract cost proposed for award is $409,687.20 (Fiscal Year 2023-2024). The second and third annual amounts in the initial multi-year term are $431,308.80 and $450,403.20, for an aggregate agreement total not-toexceed $1,291,399.20.

There is currently an available unencumbered balance of $385,000.00 programmed within the Public Works Operating budget under Account No. 1010320-432780 for Crossing Guard Services. An appropriation in an amount of $24,687.20 from the unappropriated reserves of the General Fund (101) for Fiscal Year 2023-2024 is required in order to accommodate the

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A W A R D O F A M U L T I - Y E A R P R O F E S S I O N A L S E R V I C E S A G R E E M E N T T O A L L C I T Y M A N A G E M E N T S E R V I C E S , I N C . , F O R S C H O O L

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proposed $409,687.20 first year agreement amount. It should be noted that a similar budget increase will be required as a part of the Fiscal Year 2024-2025 Midterm budget process for the second annual amount. Funds would need to be budgeted as a part of the next two-year budget cycle for the third year of the initial agreement term amount.

ALTERNATIVES
The Council may elect not to approve the recommended agreement award and direct staff to conduct an alternate procurement. However, this alternative is not recommended as it may result in the need to pursue temporary extension amendments that could be at increased rates higher than those being proposed.

ATTACHMENTS
Attachment 1 – All City Management Services, Inc. (Agreement)

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Project Name/No.: School Crossing Guard Services Contract No.: ____________ Dept./Contract Rep: PW / T. Wang Approved: 07/18/2023
-1-

PROFESSIONAL SERVICES AGREEMENT
FOR

SCHOOL CROSSING GUARD SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into as of July 18, 2023, by and between the CITY OF YORBA LINDA, a municipal organization organized under the laws of the State of California (“City”), and All City Management Services, Inc., a (“California corporation”) (“Consultant”).

NOW THEREFORE, the parties hereto agree as follows:

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services related to School Crossing Guard Services as specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference (the “services” or “work”). Consultant warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.

1.2 Changes and Additions to Scope of Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such work shall be undertaken unless a written order is first given by City to Consultant, incorporating therein any adjustment in (i) the Schedule of Compensation, and/or (ii) the Schedule of Performance, which adjustments are subject to the written approval of the Consultant. It is expressly understood by Consultant that the provisions of this Section 1.2 shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates, and that Consultant shall not be entitled to additional compensation therefor.

1.3 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it has thoroughly investigated and considered the work to be performed, (b) it has investigated the nature and factual context of the work and fully acquainted itself with the conditions pertaining to it, (c) it has carefully considered how the work should be performed, and (d) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, and such latent or unknown condition affects Consultant's ability to perform the Work for the Contract Sum (as defined in Section 2.1 below) Consultant shall immediately inform City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof).

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1.4 Standard of Performance. Consultant agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment, or personal property included within the services herein shall be of good quality, fit for the purpose intended.

1.5 Performance to Satisfaction of City. Consultant shall perform all work and tasks comprising the Services to the satisfaction of City within the time specified. If City reasonably determines that any portion of the services is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (a) meeting with Consultant to review the quality of the work and resolve matters of concern; (b) requiring Consultant to repeat unsatisfactory work at no additional charge until they are satisfactory; (c) suspending the delivery of work to Consultant for an indefinite time; (d) withholding payment; and (e) terminating this Agreement as hereinafter set forth.

1.6 Prohibition Against Subcontracting or Assignment. Consultant shall not contract with any entity to perform in whole or in part the work and services required of Consultant herein without the prior express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of the City. Any such prohibited assignment or transfer shall be void.

SECTION TWO: COMPENSATION

2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with Exhibit “B” (the “Schedule of Compensation”) in amounts not-to-exceed Four Hundred Nine Thousand Six Hundred Eighty-Seven and 20/100 Dollars ($409,687.20) for school year 2023-2024, Four Hundred Thirty-One Thousand Three Hundred Eight and 80/100 Dollars ($431,308.80) for school year 2024-2025, and Four Hundred Fifty Thousand Four Hundred Three and 20/100 Dollars ($450,403.20) for school year 2025-2026 for a total agreement compensation notto-exceed One Million Two Hundred Ninety-One Thousand Three Hundred NinetyNine and 20/100 Dollars ($1,291,399.20)(the “Contract Sum”), except as provided in Section 1.2. The method of compensation set forth in the Schedule of Compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the services, payment for time and materials based upon Consultant's rate schedule, but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement at Consultant's actual cost, without additional overhead or services charge, for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, and similar costs and expenses when and if specified in the Schedule of Compensation.

Contracted unit prices shall remain in place until June 30, 2026. Unit price increase is subject to review at each one-year contract extension thereafter not-to exceed consumer price index (CPI) changes in cost. The rates may be adjusted on July 1, as per above dates at the sole discretion of the city, and upon written request for an increase from contractor sixty (60) days prior to July 1, all based upon the percentage change in the CPI for all urban consumers for the Los Angeles-Riverside-Orange County Metropolitan area (“index”) published by the United States Department of Labor, Bureau of Statistics for the

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preceding year (May to May) calculated to the nearest one cent. The index published more immediately preceding the effective adjustment date is to be used in determining the amount of adjustment. If the index has changed from the previous index basis, the unite prices for the following year of the term of the contract shall be set, if approved by the city, by multiplying the previous unit prices by a ratio, the numerator being the new index value and the denominator being the previous index value. The index value for the beginning of the original contract term shall be the index in effect at the time of the proposal. The first rate adjustment, if approved by the City, will be effective July 1, 2026. The second rate adjustment if approved by the City, will be in effect July 1, 2027.

2.2 Method of Payment. Unless otherwise provided in the Schedule of Compensation, Consultant shall submit to City no later than the tenth (10th) working day of each month, in the form approved by City, an invoice for services rendered prior to the date of the invoice. Such invoice shall (1) describe in detail the services provided, including time and materials, and (2) specify each staff member who has provided services and the number of hours assigned to each such staff member. Such invoice shall contain a certification by a principal member of Consultant specifying that the payment requested is for work performed in accordance with the terms of this Agreement. City will pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement no later than thirty (30) days after approved invoices are received by the City.

SECTION THREE: PERFORMANCE SCHEDULE

3.1 Time of Essence. Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed diligently and within the time period established in Exhibit “C” (the “Schedule of Performance”). Extensions to the time period specified in the Schedule of Performance may be approved in writing by the Contract Officer.

3.3 Force Majeure. The time period specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than City, and unusually severe weather, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the forced delay when and if in his or her judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.

3.4 Term. The term of this agreement shall be from July 18, 2023, to June 30, 2026, unless earlier terminated as provided herein. The city shall have the unilateral option, at its sole discretion to renew this agreement for no more than two (2) additional one-year terms. Consultant shall complete the services within the term of this agreement and shall meet any other established schedules and deadlines.

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SECTION FOUR: COORDINATION OF WORK

4.1 Representative of Consultant. David Mecusker, Marketing & Contracts Manager, is hereby designated as the principal representative of the Consultant, authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith. A substitution of the designated representative must be approved in advance by the City.

4.2 Contract Officer. The Contract Officer shall be Tony Wang, P.E., Traffic Engineering Manager or such other person as may be designated by the City Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Consultant shall refer any decisions, which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer.

SECTION FIVE: INSURANCE AND INDEMNIFICATION

5.1 Without limiting Consultant's indemnification obligations, Consultant shall not undertake the services contemplated hereunder until Consultant has obtained all of the insurance required herein from a company or companies acceptable to City, and Consultant shall maintain all such insurance in full force and effect at all times during the term of this License and any extension or renewal thereof. Insurance shall be placed with insurers having a current A.M. Best rating of no less than A-: VII or equivalent or as otherwise approved by City.

5.2 Consultant shall take out and maintain the following insurance:

5.2.1. Workers' Compensation and Employer's Liability Insurance:

Consultant shall cover or insure as required by applicable laws relating to workers’ compensation insurance all of its employees performing the services contemplated hereunder, in accordance with the “Workers' Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any Acts amendatory thereof.

Consultant shall provide worker's compensation insurance and employer's liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence, One Million Dollars ($1,000,000) disease policy limit, and One Million Dollars ($1,000,000) disease each employee. Such policy of workers compensation insurance shall contain the following separate endorsements:
(a) “Insurer waives all rights of subrogation against the City of Yorba Linda, its officers, directors, employees, representatives and volunteers.” (b) “This insurance policy shall not be suspended, voided, reduced in coverage or in limits, cancelled, limited, non-renewed or materially changed for any reason by the insurer until thirty (30) days after receipt by the City of Yorba Linda of a written notice of such cancellation, limitation or reduction of coverage.” (c) Commercial General Liability Insurance providing coverage in the following minimum limits:

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(d) Combined single limit of One Million Dollars ($1,000,000) per occurrence for Bodily Injury, Personal Injury or Death and Property. (e) Damage Coverage shall be at least as broad as Insurance Services Office (ISO) Commercial General Liability coverage (occurrence Form CG 0001).
(f) If Commercial General Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the project/location (with the ISO CG 2503 or ISO CG 2504, or insurer's equivalent endorsement provided to City), or the general aggregate limit shall be twice the required occurrence limit.

5.2.2. Comprehensive Automobile Liability Insurance, including owned, non-owned, leased, hired, and borrowed automobiles and similar vehicles, providing the following minimum limits:
(a) Combined single limit of One Million Dollars ($1,000,000) per occurrence for Bodily Injury or Death and Property Damage. (b) Coverage shall be at least as broad as Insurance Services Office (ISO) Business and Auto Coverage (Form CA 0001) covering any auto.

5.3 Endorsements: The policies of liability insurance provided for in Paragraphs

5.2.2 through 5.2.4 shall specify that this specific Agreement is insured and that coverage for injury to participants resulting from Consultant's activities is not excluded, and shall be in a form satisfactory to City and contain the following separate endorsements:
(a) “The City of Yorba Linda, its officers, directors, employees, representatives and volunteers, are declared to be additional insureds on all of the above policies with respects to the operations and activities of the named insured at or from the premises of the City of Yorba Linda. The coverage shall contain no special limitations on the scope of protection afforded to the City of Yorba Linda, its officers, directors, employees, representatives and volunteers.” (b) “This insurance policy shall not be suspended, voided, reduced in coverage or in limits, canceled, limited, non-renewed, or materially changed for any reason until thirty (30) days after receipt by the City of Yorba Linda of a written notice of such cancellation, limitation or reduction of coverage.” (c) “This insurance policy is primary insurance and no insurance held or owned by the designated additional insureds shall be called upon or looked to cover a loss under said policy; the City of Yorba Linda shall not be liable for the payment of premiums or assessments on this policy.”
(d) “Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Yorba Linda, its officers, directors, employees, representatives, or volunteers.”

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(e) “This insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.”

5.4 Evidence of Coverage: Consultant shall at the time of the execution of the Agreement present to City the original policies of insurance required by this Section 5 or a certificate of the insurance, with separate endorsements (Insurance Services Office Form CG 2026, or equivalent), showing the issuance of such insurance and the additional insured and other provisions and endorsements required herein, and copies of all endorsements signed by the insurer's representative. All policies shall contain the Consultant's name and location of the Premises on the certificate. At least thirty (30) days prior to the expiration of any such policy, a signed complete certificate of insurance, with all endorsements provided herein, showing that such insurance coverage has been renewed or extended, shall be filed with City. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

5.5 Review of Coverage: City shall have the right at any time to review the coverage, form, and limits of insurance required under this Agreement. If, in the sole and absolute discretion of City, the insurance provisions in this Agreement do not provide adequate protection for City, City shall have the right to require Consultant to obtain insurance sufficient in coverage, form and limits to provide adequate protection and Consultant shall promptly comply with any such requirement. City's requirements shall not be unreasonable but shall be adequate in the sole opinion of City to protect against the kind and extent of risks which may exist at the time a change of insurance is required, or thereafter.

5.6 Deductibles: Any and all deductibles must be declared and approved by City prior to execution of this Agreement.

5.7 Agreement Contingent Upon Coverage: Notwithstanding any other provision of this Agreement, this Agreement shall be null and void at all times when the above-referenced original policies of insurance or Certificate of Insurance or Renewal Certificates or Endorsements are not on file with City.

5.8 Workers' Compensation Insurance. By his/her signature hereunder, Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing the performance of the work of this Agreement. To the extent required by law, Consultants and subcontractors will keep Workers' Compensation Insurance for their employees in effect during all work covered by this Agreement. In the event Consultant has no employees requiring Consultant to provide Workers' Compensation Insurance, Consultant shall so certify to the City in writing prior to the City's execution of this Agreement. The City shall not be responsible for any claims in law or equity occasioned by failure of the Consultant to comply with this section or with the provisions of law relating to Worker's Compensation.

5.9 Indemnification. Consultant shall indemnify, defend, and hold City and City's agents, officers, and employees (“City Personnel”) harmless from and against any and all

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actions, suits, claims, demands, judgments, attorney's fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (herein "claims" or "liabilities") that may be asserted or claimed by any person or entity arising out of the negligence, recklessness, or willful misconduct of Consultant, its employees, agents, representatives or subcontractors in the performance of any tasks or services for or on behalf of City, but excluding such claims or liabilities arising from the active negligence or willful misconduct of City or City Personnel. In connection therewith:

5.9.1. Consultant shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay all costs and expenses, including attorney's fees incurred in connection therewith, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8.

5.9.2. Consultant shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8..

5.9.3. In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the negligence, recklessness, or willful misconduct of Consultant, Consultant shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8.

SECTION SIX: RECORDS, REPORTS, AND INTELLECTUAL PROPERTY.

6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning Consultant's performance of the services required by this Agreement as the Contract Officer shall require.

6.2 Records. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the cost and the performance of such services. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.

6.3 Ownership of Documents and Data. All original drawings, specifications, reports, records, data, documents and other materials, whether in hard copy or electronic form, which are prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement, shall be the property of City and shall be delivered to City upon termination of this Agreement or upon the earlier request of the Contract Officer, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages suffered thereby.

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6.4 In the event City or any person, firm or corporation authorized by City reuses said documents and materials without written verification or adaptation by Consultant for the specific purpose intended and causes to be made or makes any changes or alterations in said documents and materials, City hereby releases, discharges, and exonerates Consultant from liability resulting from said change. The provisions of this clause shall survive the completion of this Contract and shall thereafter remain in full force and effect.

6.5 Intellectual Property and Proprietary Information.

6.5.1. Proprietary Information. All proprietary information developed specifically for City by Consultant in connection with, or resulting from, this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Consultant's underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Consultant agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Consultant's services under this Agreement. Consultant further understands and agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of Services by Consultant under this Agreement shall be made to City, and that Consultant shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City.

6.5.2. Reproduction Rights. Any and all patents and copyrights that arise from the services or the creation of work in carrying out this Agreement shall be vested in City, and Consultant hereby agrees to relinquish all claims to such copyrights in favor of City.

6.5.3. Use of Patented Materials. Consultant shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used, or incorporated in the Services performed by Consultant under this Agreement. Consultant shall indemnify, defend, and save City harmless from any and all suits, actions, or proceedings of every nature for or on account of the use of any patented or copyrighted materials.

SECTION SEVEN: RELEASE OF INFORMATION/CONFLICTS OF INTEREST.

7.1 Confidentiality. All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. Consultant, its officers, employees, agents, or subcontractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.

7.2 Release of Confidential Information. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subcontractors be served with any

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summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed hereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

7.3 Conflicts of Interest Prohibited. Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent, or subcontractor. Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that Consultant and/or its subcontractors shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement.

7.4 Covenant Against Contingent Fee. Consultant covenants that neither it nor any of its officers, employees, agents, or representatives employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement. Consultant further covenants that neither it nor any of its officers, employees, agents, or representatives has paid or agreed to pay any company or person, other than a bona fide employee of Consultant, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this provision, City shall have the right to annul this agreement without liability, or, at its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee.

SECTION EIGHT: LEGAL RELATIONS AND RESPONSIBILITIES.

8.1 Compliance with Law. Consultant shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Consultant.

8.2 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein, Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments

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and taxes, plus applicable penalties, and interest, which may be imposed by law and arise from or are necessary for the performance of the services required by this Agreement.

8.3 Covenant Against Discrimination. The Consultant covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement.

8.4 Independent Contractor. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Consultant. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Consultant nor any of Consultant's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from City; and neither Consultant nor any of its employees shall be paid by City time and one-half for working in excess of forty (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Consultant's compensation. Neither Consultant nor any of Consultant's employees shall have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement.

8.5 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.6 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

8.7 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the Contract Officer; provided that if the default is an immediate danger to the health, safety and general welfare, City may take such immediate action as City deems warranted. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 8.11.

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8.8 Retention of Funds. City may withhold from any monies payable to Consultant sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Consultant in the performance of the services required by this Agreement.

8.9 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting party on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval of any act by Consultant requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

8.10 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.

8.11 Termination Prior To Expiration of Term. This section shall govern any termination of this Agreement, except as specifically provided in the following Section 8.12 for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon ten (10) days' written notice to Consultant. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 8.8.

8.12 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.7, take over work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of setoff or partial payment of the amounts owed City as previously stated in Section 8.8.

8.13 Attorney's Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment.

8.14 Safety. The Consultant shall execute and maintain his/her work so as to avoid injury or damage to any person or property. The Consultant shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out his/her work, the Consultant shall at all times exercise all necessary precautions for the safety of employees appropriate to the nature

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of the work and the conditions under which the work is to be performed, and be in compliance with all applicable federal, state, and local statutory and regulatory requirements including California Department of Industrial Relations (Cal/OSHA) regulations; and the U.S. Department of Transportation Omnibus Transportation Employee Testing Act.

8.15 Compliance with California Unemployment Insurance Code Section 1088.8.

If Consultant is a sole proprietor, then prior to signing the Agreement, Consultant shall provide to City a completed and signed Form W-9, Request for Taxpayer Identification Number and Certification. Consultant understands that pursuant to California Unemployment Insurance Code section 1088.8, City will report the information from Form W-9 to the State of California Employment Development Department, and that the information may be used for the purposes of establishing, modifying, or enforcing child support obligations, including collections, or reported to the Franchise Tax Board for tax enforcement purposes.

8.16 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

8.17 Unauthorized Use of City's Name. Except as required by law or with the prior written consent of City (which consent may be withheld in city's sole and absolute discretion), Consultant shall not use City's name, seal or logo in any marketing materials, magazine, trade paper, newspaper, television or radio production or other similar medium, nor shall Consultant state, imply or in any way represent to any third party that City has endorsed or approved Consultant or any of its services or products.

SECTION NINE: MISCELLANEOUS

9.1 Notices. Any notice, demand, request, consent, approval, communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch.

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To City:

CITY OF YORBA LINDA
Attention: Tony Wang, P.E.

Traffic Engineering Manager
4845 Casa Loma Avenue
Yorba Linda, CA 92886
To Consultant:

ALL CITY MANAGEMENT SERVICES, INC.

Attention: David Mecusker
10440 Pioneer Boulevard, Suite 5
Santa Fe Springs, CA 90670

9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement.

9.3 Integration; Amendment. This Agreement contains the entire understanding of the parties herein and supersedes any and all other written or oral understandings as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered thereby. No amendment, change or modification of this Agreement shall be valid unless in writing, stating that it amends, changes or modifies this Agreement, and signed by all the parties hereto.

9.4 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or inability to enforce shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties.

9.6 Statutory References. All references in this Agreement to particular statutes, regulations, ordinances, or resolutions of the United States, the State of California, or the County of Orange shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.

9.7 Special Provisions. Any additional or supplementary provisions or modifications or alterations of this Agreement, if any, shall be set forth in an additional Exhibit “D” (“Special Provisions”) if any such Special Provisions exist. In the event of any discrepancy between the provisions of this Agreement and the Special Provisions, Special Provisions shall take precedence and prevail.

9.8 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement, (2) the Consultant’s signed Proposal (“Consultant’s Proposal”), and (3) the City’s Request for Proposals, (“City’s RFP), which shall all be

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referred to collectively hereinafter as the “Contract Documents”. The Consultant’s Proposal and the City’s RFP, which are both hereby incorporated by reference, and are made a part of this Agreement. All provisions of this Agreement, the Consultant’s Proposal, and the City’s RFP shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority, (1st) the terms and conditions of this Agreement, (2nd) the provisions of the City’s RFP, and (3rd) the provisions of the Consultant’s Proposal(s).
[SIGNATURES BEGIN ON NEXT PAGE]

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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.

CITY:

CITY OF YORBA LINDA
By:

Mark A. Pulone
City Manager
Dated:___________________________
CONSULTANT:

ALL CITY MANAGEMENT SERVICES,
INC.

By:

Signature:

Title:

Address:__________________________

_______________________________
By:
__________________________________
Dianna Honeywell, Finance Director
ATTEST:

By:

Marcia Brown, City Clerk
By:

Signature:

Title:

Address:__________________________

_______________________________

APPROVED AS TO FORM

RUTAN & TUCKER, LLP
By:

City Attorney, City of Yorba Linda

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ACMS Scope of Services

1. All City Management Services, Inc. will handle the Crossing Guard services for the City of Yorba Linda Crossing Guard program for a three (3) year period; to commence on: the start offall 2023 school semester, ending on the conclusion of the 2026 summer school session.

2. ACMS will provide twenty-three (23) personnel equipped and trained in appropriate procedures for crossing pedestrians in marked crosswalks. Such personnel 'shall be herein referred to as a Crossing Guard. ACMS is an independent Consultant and the Crossing Guards to be furnished by it shall at all times be its employees and not those of the City of Yorba Linda.

3. Crossing Guard Services shall be provided by ACMS at designated locations, identified by the City of Yorba Linda and ACMS shall provide coverage at the school crossings as required. ACMS shall be flexible and provide guards for the hours and locations needed on the instructions of appropriate City personnel.

4. ACMS and all persons who are employed for assignment to this contract shall undergo fingerprint background checks to ensure they have not been convicted of any offense involving moral turpitude, a felony for crimes against children and a felony for violent crimes. ACMS understands no one registered as a sex offender or narcotics offender will be hired as a crossing guard.

5. ACMS understands each Crossing Guard shall undergo a physical assessment to ensure they are physically able to perform the functions of the job.

6. ACMS designated Trainer will conduct training for Crossing Guards. ACMS shall provide personnel properly trained as herein specified for the performance of duties of Crossing Guards. In the performance of their duties ACMS and employees of the ACMS shall conduct themselves in accordance with the conditions of this Agreement and the laws and codes of the State of California pertaining to general pedestrian safety and school crossing areas.

7. ACMS understands all crossing guards shall also receive training pertaining to general traffic safety for pedestrians, motorists and themselves while serving as crossing guards.

8. ACMS employees shall work to the highest professional standards and act in a courteous, respectable manner and shall conduct themselves in a manner that is befitting a public servant. They shall present a professional appearance, that is neat, clean, well-groomed and be properly uniformed.
s

EXHIBIT A

SCOPE OF SERVICES

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EXHIBIT B

SCHEDULE OF COMPENSATION
Payment shall be on a “Fixed Fee” basis in accordance with the Consultants Schedule of Compensation attached herewith as Exhibit “B-2” for the work tasks performed in conformance with Section 2.2 of the Agreement. Total compensation for all work under this contract shall not exceed One Million Two Hundred Ninety-One Thousand Three Hundred Ninety-Nine and 20/100 Dollars ($1,291,399.20), in the annual amounts delineated below except as specified in Section 1.2 - Changes and Additions to Scope of Services of the Agreement.

Agreement Not-to-Exceed Annual Amounts by School Year:

I. School Year 2023-2024 = $409,687.20
II School Year 2024-2025 = $431,308.80
III. School Year 2025-2026 = $450,403.20
///

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37 Proposed Hourly Rate
August 1, 2023 – July 31, 2024
WITHOUT Professional Liability
As a full service contractor, the hourly rate quoted is a fully loaded rate, meaning all of our costs are included in the proposed hourly billing rate. This would include but be not limited to; recruitment, background clearance, training, equipment, insurance, supervision and management of the City of Yorba Linda, CA Crossing Guard Program.

Proposed Hourly Rate: Twenty-nine Dollars and Eighteen Cents ($29.18) per hour, per guard.

This pricing is based upon 16 crossing guards compensated an average of 3.0 hours per day, 5 crossing guards compensated an average of 4.0 hours per day and 2 crossing guards compensated an average of 5.0 hours per day, for 180 school days annually. Local field supervision and substitute guards are also included in the rate, as are all other costs except as noted below. Based upon 14,040 hours, we project a Not to Exceed price of $409,687.20 annually.

Invoices for services are mailed every two weeks. Included with each invoice is a Work Summary, which details each site, each day and the hours worked at that site. City of Yorba Linda would only be billed for Crossing Guard services rendered on designated “school days” unless otherwise requested by the City.

The hourly rate does not include additional safety equipment, crosswalk delineators, cones or safety devices. If the City should desire any such additional equipment the additional cost would be billed to the City.

ACMS Contact Information
Business Address: 10440 Pioneer Blvd, Suite 5 Santa Fe Springs, CA 90670 Phone numbers: 310.202.8284 or 800.540.9290
Fax number: 310.202.8325
Website address: www.thecrossingguardcompany.com
24 Hour Emergency Dispatch: 877.363.2267
General Manager: Baron Farwell: [email protected] Vice President of Operations: Patricia Pohl: [email protected] Director of Marketing: Harlan Sims: [email protected] Comptroller: John Varner: [email protected] Exhibit “B-2”

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37 Proposed Hourly Rate
August 1, 2024 – July 31, 2025
WITHOUT Professional Liability
As a full service contractor, the hourly rate quoted is a fully loaded rate, meaning all of our costs are included in the proposed hourly billing rate. This would include but be not limited to; recruitment, background clearance, training, equipment, insurance, supervision and management of the City of Yorba Linda, CA Crossing Guard Program.

Proposed Hourly Rate: Thirty Dollars and Seventy-two Cents ($30.72) per hour, per guard. This pricing is based upon 16 crossing guards compensated an average of 3.0 hours per day, 5 crossing guards compensated an average of 4.0 hours per day and 2 crossing guards compensated an average of 5.0 hours per day, for 180 school days annually. Local field supervision and substitute guards are also included in the rate, as are all other costs except as noted below. Based upon 14,040 hours, we project a Not to Exceed price of $431,308.80 annually.

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37 Proposed Hourly Rate
August 1, 2025 – July 31, 2026
WITHOUT Professional Liability
As a full service contractor, the hourly rate quoted is a fully loaded rate, meaning all of our costs are included in the proposed hourly billing rate. This would include but be not limited to; recruitment, background clearance, training, equipment, insurance, supervision and management of the City of Yorba Linda, CA Crossing Guard Program.

Proposed Hourly Rate: Thirty-two Dollars and Eight Cents ($32.08) per hour, per guard. This pricing is based upon 16 crossing guards compensated an average of 3.0 hours per day, 5 crossing guards compensated an average of 4.0 hours per day and 2 crossing guards compensated an average of 5.0 hours per day, for 180 school days annually. Local field supervision and substitute guards are also included in the rate, as are all other costs except as noted below. Based upon 14,040 hours, we project a Not to Exceed price of $450,403.20 annually.

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EXHIBIT C

SCHEDULE OF PERFORMANCE
Consultants Project Schedule is attached and made a part of this agreement.

Consultant shall complete services presented within the contained within the project schedule attached as Exhibit “C-2”.

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Exhibit “C-2”
Schedules of Performance and Staffing Schedule.
[Continued on following page]

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Site Intersection Maximum Hours
Allowed
1 Via Cantada/Paseo deToronto 3
2 Camino de Bryant/Paseo de Toronto 3
3 Fairmont Blvd/Yorba Linda Blvd, NW Corner 3
4 Fairmont Blvd/Yorba Linda Blvd, NE Corner 3
5 Fairmont Blvd/Yorba Linda Blvd, SW Corner 3
6 Fairmont Blvd/Yorba Linda Blvd, SE Corner 3
7 LakeviewNalley View 3
8 Ohio St/Linda Verde 3
9 Plumosa/Cari Ln 3
10 Rose Dr/School Xing 3
11 Dominguez/Via Escuela 4
12 Via FieroNia Escuela 4
13 Yorba LindaNia Escuela 4
14 Yorba Linda/Yorba Ranch 4
15 Yorba Linda/Stonehaven 4
16 Van Buren/La Collette 3
17 Buena VistaNan Buren 3
18 Old Ranch/Fairmont 5
19 Futura/Manor View 5
20 Yorba Linda/Casa Loma 3
21 Bastanchury/Denver 3
22 Imperial Hwy/Casa Loma 3
23 Casa Loma/Christie 3
Total 78
Guard Site Schedule

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COMMUNITY DEVELOPMENT DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DAVID BRANTLEY, COMMUNITY DEVELOPMENT DIRECTOR
PREPARED BY: MARY LEWIS, SENIOR COMMUNITY PRESERVATION

OFFICER
SUBJECT: DECLARING PUBLIC NUISANCE, INTENT TO PROVIDE ABATEMENT,

AND SETTING THE DATE FOR THE PUBLIC HEARING

RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 2023-5856, declaring its intent to set a public hearing on August 15, 2023, for this year’s Weed Abatement Program.

BACKGROUND
Every year the City Council implements a Weed Abatement Program to minimize hazardous fire conditions within the City. This involves a multi-step process of informing property owners that have large areas of undeveloped property that are prone to wildfire hazard, due to natural vegetation overgrowth, to perform weed abatement/vegetation reduction within certain specified time frames (i.e., over approximately 4 months between April and July) prior to the heightened portion of the fire season. Although the City does obtain a high degree of compliance response from property owners as a result of the initial outreach efforts and subsequent inspections and follow up notifications, there are some number of properties that for various reasons fail to comply in a timely manner. Presently, there are eighty-six (86) properties (out of approximately 1,200) that have not performed weed abatement on their properties in accordance with the timeframes requested (see attached Exhibit A to Resolution No. 2023-5856 for list of properties).

Article 2, Section 39560 et seq. of the California State Government Code authorizes cities to perform weed abatement on private properties that fail to comply through declaring such properties as a public nuisance. The adoption of Resolution No. 2023-5856 is required to declare the City’s intention to set a Public Nuisance Hearing on August 15, 2023, to provide for the Weed Abatement Program and receive any protest relating to the potential abatement of any remaining, non-compliant, private properties. As Council is aware, Community Preservation staff will continue to do outreach to subject properties in an effort to gain compliance prior to the August 15th public hearing. In the past, several of the identified properties ultimately resolve their non-compliance prior to the public hearing. Thus, it is anticipated that by the date of the public hearing, the list of non-complying properties will be reduced.

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DECLARING PUBLIC NUISANCE, INTENT TO PROVIDE ABATEMENT, AND SETTING

THE DATE FOR THE PUBLIC HEARING
P a g e | 2
Per the provisions of Article 2, Title 4, Division 3, Part 2, Chapter 13, compromised of Sections 39560-39588, inclusive, of the Government Code of the State of California, provided that upon the second and any subsequent occurrence of such nuisance on the same parcel or parcels within the same calendar year, no further Hearings need to be held, and it shall be sufficient to mail a postcard notice to the owners of the property as they and their addresses appear upon the current assessment roll, in accordance with the provisions for such notice contained in Section 39562.1 of the Government Code of the State of California. This Government Code provision allows the City, if necessary, to further abate any property declared a public nuisance currently that experiences hazardous regrowth within the remainder of this year, without need for another public hearing or other administrative process (other than mailed postcard notification). Give the amount of precipitation this year as a result of the “El Niño” weather pattern, this provision will help the City address any potential recurrence of a hazard vegetation condition on any of these properties that is not resolved by the private property owner(s).

DISCUSSION
The Weed Abatement Program is a budgeted item under the Weed Abatement section of the Community Preservation budget. Over the last couple of years, due to a high degree of resident compliance, the City’s cost to abate non-complying properties has averaged less than $10,000. The cost of abatement shall be assessed upon the private parcels requiring abatement, resulting in eventual reimbursement of City funds expended. Staff will return to the City Council at a future date for public hearing to consider attachment of special assessment liens to any affected properties.

ANALYSIS
Weed Abatement is an on-going concern within the City of Yorba Linda. In the last several years, California has experienced devastating wildland fires. This has increased the awareness of the citizens and stepped up their own involvement in preventing potential fire hazard situations. In addition to the City’s weed abatement enforcement role, the Orange County Fire Authority also assumes responsibility for the Fuel Modification parcels and for performing Wildland Task Force Inspections. The Orange County Fire Authority’s enforcement activities within these areas are separate and apart from the City enforced weed abatement properties.

FISCAL IMPACT
Should the City need to perform weed abatement on any private properties, costs would be anticipated to not exceed $10,000. However, these costs would be recovered through the placement of special assessment liens on affected properties resulting in eventual reimbursement of City expended funds.

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DECLARING PUBLIC NUISANCE, INTENT TO PROVIDE ABATEMENT, AND SETTING

THE DATE FOR THE PUBLIC HEARING
P a g e | 3

ALTERNATIVES
Continue to provide annual notices to properties that meet the Weed Abatement criteria, with no formal procedure or proactive follow-up, other than through standard code enforcement protocol, which is reactive in nature.

ATTACHMENTS

1. Resolution No. 2023-5856, with Exhibit “A” – 2023 Annual Weed Abatement List

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RESOLUTION NO. 2023-5856

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

YORBA LINDA, CALIFORNIA DECLARING THAT WEEDS

GROWING UPON OR IN FRONT OF CERTAIN PROPERTY

IN THE CITY OF YORBA LINDA CONSTITUTE A PUBLIC
NUISANCE; DECLARING ITS INTENTION TO PROVIDE

FOR THE ABATEMENT THEREOF, AND SETTING A DATE

FOR A PUBLIC HEARING

THE CITY COUNCIL OF THE CITY OF YORBA LINDA DOES FIND, DECLARE AND RESOLVE AS FOLLOWS:

1. That weeds growing upon or in front of, and that rubbish, refuse and dirt upon or in front of certain parcels of land described in Exhibit “A”, on file in the office of the City Clerk, and incorporated herein by this reference, constitute a public nuisance.

2. That the weeds on those certain parcels of land described in Exhibit “A” are seasonal and recurrent nuisances within the meaning of Government Code Section 39562.1.

3. That if said nuisance is not abated by the owners of said parcels of land, it is the intention of the City Council of the City of Yorba Linda to have said nuisance abated in accordance with the provisions of Article II, Title 4, Division 3, Part 2, Chapter 13, Article 3, comprised of Sections 39560 through 39588, inclusive, of the Government Code of the State of California.

4. The Senior Community Preservation Officer of the City of Yorba Linda is hereby designated as the Public Officer to perform the duties imposed by such Article II upon the Officer therein.

5. The Senior Community Preservation Officer is directed to mail notices to the owners of said property as provided in Section 39567.1 of such Code.

6. The time and place for such Hearing and consideration of objections of all property owners having any objections to the proposed abatement of said nuisance by destruction and/or removal of such weeds and removal of rubbish, refuse and dirt, is hereby set at 7:00 p.m. on TUESDAY, AUGUST 15, 2023, in the City Council Chambers located in City Hall, 4845 Casa Loma Avenue, Yorba Linda, California.

7. That as such, upon the second and any subsequent occurrence of said nuisance on the same parcel or parcels within the same calendar year, no further Hearing need be held.

PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Yorba Linda on this 18th day of July 2023.

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RESOLUTION NO. 2023-5856
PAGE NO. 2
__________________________

GENE HERNANDEZ, MAYOR

CITY OF YORBA LINDA
ATTEST:
______________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
__________________________

CITY ATTORNEY

STATE OF CALIFORNIA )
ss.

COUNTY OF ORANGE )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the City Council of the City of Yorba Linda held on the 18th day of July, 2023, and was carried by the following roll call vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:
_________________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA

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JULY 18, 2023 CITY COUNCIL MEETING
CONSENT CALENDAR – ITEM NO. 6. DECLARING PUBLIC NUISANCE, INTENT

TO PROVIDE ABATEMENT, AND SETTING THE DATE FOR THE PUBLIC

HEARING

REVISIONS TO EXHIBIT A TO RESOLUTION RECEIVED AFTER POSTING OF

THE AGENDA

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PUBLIC WORKS DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER PREPARED BY: COLLEEN CALLAHAN, PRINCIPAL MANAGEMENT

ANALYST
SUBJECT: AWARD OF CONTRACT TO ABOUND FOOD CARE FOR SB 1383 EDIBLE

FOOD RECOVERY COMPLIANCE PROGRAM

RECOMMENDATION
It is recommended that City Council:

1. Award the (4) four-year professional services agreement for SB 1383 Edible Food Recovery Compliance program to Abound Food Care in the amount of $19,200 per year to be paid monthly ($1,600 per month); and

2. Authorize the City Manager to sign and execute the contract including annual CPI increases as provided within this agreement on behalf of the Council.

BACKGROUND
On September 19, 2016, Governor Brown signed into law Senate Bill (SB) 1383 establishing methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants (SLCP) in various sectors of the California economy. The goal of SB 1383 is to reduce organic waste disposal in landfills by 75% and increase edible food recovery by 20%, by 2025. SB 1383 is the most significant waste reduction mandate to be adopted in the State of California in the last 30 years and requires all jurisdictions to implement a mandatory organic recycling ordinance by January 1, 2022. This legislation requires all businesses, residents, and multi-family complexes to have access to recycling programs that capture and divert from landfills food scraps, landscaping waste, and other organic waste materials. This also includes setting up the Edible Food Recovery Program for all Tier 1 and Tier 2 commercial food generators which Abound Food Care (in conjunction with Republic Services) will coordinate, monitor, and record-keep for compliance.

DISCUSSION
As part of the Third Amendment to Agreement for Solid Waste Handling Services between City of Yorba Linda and Republic Waste Services of Southern California, LLC, the hauler, Republic Service is to provide Edible Food Recovery Funding in the form of reimbursement

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A W A R D O F C O N T R A C T T O A B O U N D F O O D C A R E F O R S B 1 3 8 3

E D I B L E F O O D R E C O V E R Y C O M P L I A N C E P R O G R A M P a g e | 2
to the City. On or before June 30, 2023 and each June 30th thereafter during the Term, Contractor shall provide City with funding to assist it with contracting with third parties that will facilitate compliance with City’s obligations under 14 CCR Chapter 12, Article 10 (the “Edible Food Recovery Payment”). The Edible Food Recovery Payment due on or before June 30, 2023 shall be in the amount of $19,200.00. Thereafter, the annual amount of the Edible Food Recovery Payment due on or before June 30 each year shall be annually adjusted by the same formula set forth in Section 24.3 of the Original Agreement (as amended by the Third Amendment). Of note, Republic Services has made this year’s payment already.

Abound Food Care will serve as the third party and the Edible Food Recovery agreement is directly between the City and Abound Food Care, again with funding in the form of reimbursement from Republic to the City. The report is before the City Council tonight in anticipation of the total amount of the (4) four-year contract to potentially exceed the City Manager’s fiscal authority.

With City Council approval, the implementation of the agreement and scope of services with Abound Food Care will begin immediately July 19, 2023.

FISCAL IMPACT
The City is reimbursed by Republic Services each of the (4) four years, including the annual CPI increases referred to in the agreement. The appropriation of expenses is to be accounted for in Public Works Administration Misc. Consultant Services Account No.(1010300-431950).

ALTERNATIVES
The City Council may choose not to award the professional services agreement at this time.

However, staff does not recommend this alternative because the City risks potential SB 1383 non-compliance and consequences from Cal Recycle.

ATTACHMENTS
Attachment A – Abound Food Care Agreement and Proposal

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AGREEMENT FOR SERVICES BETWEEN

CITY OF YORBA LINDA AND

ABOUND FOOD CARE
This agreement (“Agreement”) is made and entered into as of the date of last signature below (“Effective Date”) by and between the City of Yorba Linda (“Client”) and Abound Food Care, a California nonprofit public benefit corporation (“Abound”).

Recitals
WHEREAS, Abound has a unique expertise in the area of food recovery; and WHEREAS, Abound represents that it is experienced and competent to perform the services which will be required by this Agreement; and
WHEREAS, Client desires to use Abound services to support achievement of its objectives in the City of Yorba Linda ; and
WHEREAS, Abound and Client (“Party” or “Parties”) desire to enter into this agreement to set forth the terms and conditions that will govern Abound’s provision of services to Client.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, upon the general terms and subject to the conditions set forth in this Agreement and intending to be legally bound, the Parties hereto agree as follows:

I. Scope of Service
Abound shall perform the the services set forth in its proposal which is attached hereto as Exhibit A.

II. Compensation
a. The cost of implementing the program is $19,200 per year to be paid monthly ($1,600 per month).
b. Cost of services may be adjusted by Abound each year on July 1 by a percentage equal to the percentage change in the Consumer Price Index for All Urban Consumers, CUURS49ASA0 not seasonally adjusted, all items index (CPI-U) – All items in Los Angeles-Long BeachAnaheim, for the twelve (12) month period ending three (3) months prior to the applicable adjustment date, although no such adjustment may exceed 3%.

III. Term
The term of this Agreement shall be for a period commencing on the Effective Date and terminating on June 30, 2027. This Agreement shall automatically renew for successive one year terms unless terminated by either party with 30 days notice prior to annual renewal.

IV. Billing and Payment
Abound shall submit to Client an invoice for each calendar month in which Abound performs services under this Agreement. Client shall make payment on each such invoice within thirty (30) days of receipt.

V. Indemnification
Each party shall defend, indemnify, and hold harmless the other Party, including affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties, and all associated losses, to the extent arising out of (a) a Party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a Party of any of its representations, warranties, obligations, covenants or agreements under this Agreement.

VI. Force Majeure

ATTACHMENT A

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In the event performance of this Agreement, or any obligation hereunder, is either directly or indirectly prevented, restricted, or interfered with by reason of fire, flood, earthquake or like acts of God, wars, revolution, civil commotion, explosion, acts of public enemy, embargo, acts of the government in its sovereign capacity, labor difficulties, including without limitation, strikes, slowdowns, picketing, or boycotts, unavailability of equipment from vendor, or any other circumstances beyond the reasonable control and without the fault or negligence of the Party affected, the Party affected, upon giving prompt notice to the other Party, shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction, or interference (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis until the delay, restriction or interference has ceased); provided however, that the Party so affected shall use diligent efforts to avoid or remove such causes of non-performance and both Parties shall proceed whenever such causes are removed or cease.

VII. Insurance
Abound shall, throughout the duration of this agreement, maintain comprehensive general liability and property insurance covering all operations of Abound, its agents and employees, performed in connection with this agreement including, but not limited to, premises and automobile. a. Abound shall maintain the following limits:

General Liability
Combined Single Limit Per Occurrence ............................... $1 million General Aggregate ................................................................ $1.5 million (The policy shall cover on an occurrence or an accident basis, and not on a claims made basis)
Automobile Liability
Combined Single Limit Per Occurrence ............................... $1 million (The policy shall cover on an occurrence or an accident basis, and not on a claims-made basis.)
Workers Compensation............................................….....As required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident.
b. All insurance companies with the exception of Worker’s Compensation affording coverage to Abound shall be required to add Client, its officers, employees, and agents, as “additional insureds” by endorsement under the insurance policy and shall stipulate that this insurance policy will operate as primary insurance for the work performed under this agreement and that no other insurance affected by Client or any other named insured will be called upon to contribute to a loss covered thereunder. The policy shall contain no special limitations on the scope of protection afforded to the additional insureds. c. All insurance companies affording coverage to Abound shall be insurance organizations authorized by the Insurance Commissioner to transact the business of insurance in the State of California.
d. All insurance companies affording coverage shall issue an endorsement to their policy, committing them to provide thirty (30) days written notice by certified or registered mail to Abound should the policy be canceled or reduced in coverage before the expiration date. For the purposes of this notice requirement, any material change prior to expiration shall be considered cancellation.
e. Abound shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the Client concurrently with the submittal of this agreement. A statement on the insurance certificate which states that the

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insurance company will endeavor to notify the certificate holder, “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives” does not satisfy the requirements of subsection (E) herein. Abound shall ensure that the above-quoted language is stricken from the certificate by the authorized representative of the insurance company. The insurance certificate shall also state the unpaid limits of the policy.
f. Abound shall provide substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by Abound to provide such a substitution and extend the policy expiration date shall be considered default Abound. g. Maintenance of insurance by Abound as specified in this Agreement shall in no way be interpreted as relieving Abound of any responsibility whatever and Abound may carry, at its own expense, such additional insurance as it deems necessary.

VIII. Assignment
Neither party may assign or transfer this Agreement without the prior written consent of the other party.

IX. Compliance with Laws, Rule, and Regulations
Services performed by Abound pursuant to this Agreement shall be performed in accordance and full compliance with all applicable federal, state, and local laws and any rules or regulations promulgated thereunder.

X. Integration and Amendment
This Agreement, including the proposal attached hereto and incorporated herein as Exhibit A, represents the entire understanding of Client and Abound as to those matters contained herein. The provisions of this Agreement shall govern as between Abound’s proposal and this Agreement. No prior oral or written understanding shall be of any force or affect with respect to those matters contained herein. No prior oral or written understanding shall be of any force or affect with respect to those matters covered in it. This Agreement may not be modified or altered except by amendment in writing signed by both parties.

XI. Jurisdiction
This agreement shall be administered and interpreted under the laws of the State of California.

Jurisdiction of litigation arising from this agreement shall be in the State of California in the County of Orange.

XII. Severability
If any part of this agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void in so far as it is in conflict with said laws, but the remainder of this Agreement shall continue to be in full force and effect.

XIII. Termination
If either Party believes that the other has materially breached any obligations under this Agreement, such Party shall so notify the breaching Party in writing with a detailed description of the breach. The breaching Party shall have thirty (30) days from the receipt of notice to use all reasonable means to cure the alleged breach and to notify the non-breaching Party in writing that cure has been effected. If the breach is not cured within the thirty (30) day period, the non-breaching Party shall have the right to terminate this Agreement without further notice. Termination is effective by the date of delivery such a notice. In addition to the forgoing provisions related to termination for cause, Client may terminate this Agreement without cause, at any time and for any reason, upon 30 days prior witten notice to Abound.

XIV. Notices

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Written notices to Abound and Client shall be addressed to:

To Abound: To Client:

Mike Learakos City of Yorba Linda
Abound Food Care Attn: Mark Pulone, City Manager
200 N Tustin Ave Ste 110 4845 Casa Loma Avenue
Santa Ana, CA 92705 Yorba Linda, CA 92886
All such notices shall either be delivered personally to the other party’s designee named above, or shall be deposited in the United States Mail, properly addressed as aforesaid, postage fully prepaid, and shall be effective the day following such deposit in the mail.

XV. Limitation of Liability
ABOUND’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF INSURANCE COVERAGE OUTLINED IN PARAGRAPH VII.

XVI. Survival
Paragraphs IV, and V shall survive termination of this Agreement.

IN WITNESS THEREOF, the parties hereto have made and executed this Agreement on the date below.

For Abound:

Signature: _______________________________
Name:

Title: ___________________________________
Date: ___________________________________
For Client:

Signature: _______________________________
Name:

Title: ___________________________________
Date: ___________________________________

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EXHIBIT A

SCOPE OF SERVICE

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200 N Tustin Ave, Ste. 110 Santa Ana CA 92705 | 1.657.335.4480 | Tax ID 87-2110835 | aboundfoodcare.org PROPOSED SCOPE OF SERVICES –

MUNICIPAL FOOD RECOVERY COMPLIANCE PROGRAM
This proposal is valid for a period of 60 days from time it is submitted by Abound Food Care.

I. Jurisdiction
Abound Food Care (“Abound”) will provide services on behalf of the City of Yorba Linda (“Jurisdiction”).

II. Generator List Update
Abound will complete a review of the Jurisdiction’s list of Tier I and Tier II food waste generators.

Review will check for completeness and accuracy of lists. Updates will be documented and made available to the Jurisdiction.

III. Outreach
Abound will conduct, and record, targeted outreach to capture required information related to the recovery of excess edible food. Outreach efforts will identify food generators that have implemented a food donation program and those that require additional follow-up to ensure they initiate a donation program. Outreach will be in cooperation with city and Republic Services staff.

Abound will conduct outreach to Tier I and Tier II edible food generators after the initial contact by Republic Services informing generators of the SB1383 edible food requirements. Results of outreach efforts will be tracked using the Abound CRM platform. Outreach touchpoints will include:
a. Tier I and Tier II food waste generators as defined by CA SB1383 and corresponding regulations in effect at the time of initial implementation.

IV. Outreach Material
Abound will provide material, including educational material highlighting the benefits of participation and requirements to be compliant with SB 1383, to support outreach efforts by both its own staff and by Jurisdiction staff.

V. Outreach Documentation
To support compliance with the municipal requirements mandated in CA SB1383, Abound will record the results of outreach efforts through the use of the Abound CRM platform. Data which will be captured includes elements such as generator name, date of contact, type of contact, and summary of discussion. Abound will provide to the Jurisdiction reports documenting outreach efforts and corresponding results.

VI. Jurisdiction Department Support

EXHIBIT A

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Abound will coordinate with, and provide support to, all applicable Jurisdiction departments to inform food waste generators about food recovery requirements. Applicable departments include Building and Planning Department, Parks and Recreation, Public Works, school districts, colleges, and universities.

VII. Donation Tracking
On behalf of the Jurisdiction, using food recovery or other platforms selected at its discretion, Abound will record excess edible food donated within the city by Tier I and Tier II generators through participating food recovery organizations. Tracking will include information on types of food donated, food recovery organization recipient, pounds of food recovered and frequency of donations in accordance with SB1383 requirements.

VIII. Safe Food Handling
Abound, using proprietary or partner platforms at its discretion, will make safe food handling training available to all nonprofit food pantries operating within the Jurisdiction. An option to use third-party food safety auditing services is also available.

IX. Resource Identification
In coordination with the Jurisdiction, Abound will identify additional assets and resources needed by non-profit food pantries operating within the Jurisdiction to effectively reduce food waste.

Potential resources may include, but are not limited to, food repurposing kitchens, educational partnerships including vocational training, food insecurity screening by health care providers and joint grant opportunities.

X. Non-Profit Pantry List Maintenance
Abound will provide, annually, an updated listing of non-profit pantries available to recover excess edible food within the Jurisdiction.

XI. Inspections
Abound will conduct annual inspections of identified Tier I and Tier II food generators to assure compliance with SB1383 regulations. Inspections will include confirmation of a written agreement with a food recovery organization or service, the active use of a food donation log which records the generators’ food donation activities, and identification of red flags.

Program Cost
The cost of implementing the Abound Municipal Program, as outlined above, is $19,200.00 per year to be paid monthly ($1,600.00 per month). Cost may be adjusted by Abound each year by an amount not to exceed the annual increase in the Consumer Price Index as published by the U.S. Department of Labor.

Term
Term of the agreement is four years.

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PUBLIC WORKS DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER PREPARED BY: RICK YEE, P.E. DEPUTY PUBLIC WORKS DIRECTOR SUBJECT: BLACK GOLD GOLF COURSE STORM DRAIN DAMAGE EMERGENCY REPAIR STATUS UPDATE (MS231002)

RECOMMENDATION
It is recommended that the City Council receive and file this report.

BACKGROUND
The 48-inch storm drainpipe located at the Black Gold Golf Course was substantially blocked, restricting storm water flow, as a result of debris and mudflows caused by recent winter storms. Under emergency direction, the City contracted with Innerline Engineering to remove mud and other debris from the inlet to approximately 75 feet downstream of the pipe inlet at which point the pipe appears to have collapsed. In addition, several pipe segments were observed to be compromised and will require replacement.

On June 20, 2023, Council approved a supplemental budget appropriation to allow for additional services, including geotechnical investigation, to be conducted prior to the end of the fiscal year for project MS231002. Council also ratified the City Manager’s declaration of emergency conditions required by the City’s purchasing policy. The City Council recommendations for the June 20th report obligated staff to return with a report at the next regularly scheduled meeting to provide an update regarding the emergency conditions.

DISCUSSION
Prior to commencement of construction, geotechnical investigation and CCTV inspections must be conducted. Staff has contracted with one of its on-call geotechnical engineers (Hushmand Associates, Inc.) to determine the extent of damage, conduct investigation and laboratory tests as well as engineering analysis and prepare mitigation recommendations.

The geotechnical report and recommendations are due to the City by late July. Once received and vetted, the City will prepare plans and specifications and then formally bid the project for a contractor to perform the permanent pipe repair and site restoration.

At the time of this report, all contractual services rendered by Innerline Engineering for the Black Gold Storm Drain Project MS231002, pertinent to the emergency procurement

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B L A C K G O L D G O L F C O U R S E S T O R M D R A I N D A M A G E E M E R G E N C Y R E P A I R S T A T U S U P D A T E ( M S 2 3 1 0 0 2 ) P a g e | 2
measures ratified by the City Council, have been completed. The total cost of the services rendered by Innerline totaled $24,240. Pursuant to the City’s purchasing policy, the City Manager has terminated the emergency action at the earliest possible date that conditions warranted, and the remainder of the project services required for project MS231002 will be completed within the City’s competitive purchasing procedures. There will be no further reports to Council on this matter unless emergency conditions are resumed, or the standard procurement thresholds warrant Council approval for future segments of the project.

FISCAL IMPACT
This project is being funded with local Master Plan of Drainage Funding. In addition, staff is pursing potential reimbursement for costs through the Federal Emergency Management Agency’s (FEMA) Public Assistance Recovery funds for debris removal and emergency protective measures. If approved, the FEMA funding would offset a portion of the emergency related costs due to damage caused by the winter storms. The cost for the permanent repairs is pending bid results.

ALTERNATIVES
None.

ATTACHMENTS
None.

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COMMUNITY DEVELOPMENT DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DAVID BRANTLEY, AICP

DIRECTOR OF COMMUNITY DEVELOPMENT
SUBJECT: CITY COUNCIL POLICY P-7 REVIEW OF PLANNING COMMISSION AGENDA OF JUNE 28, 2023

RECOMMENDATION
It is recommended that the City Council approve, by minute motion, the following Planning Commission agenda items form June 28, 2023:
1) Conditional Use Permit 2023-13 – Dance Star Academy, with conditions 2) Conditional Use Permit 2023-14, with conditions, and Administrative Adjustment 2023-06 – Laborde

BACKGROUND
City Council Policy P-7 (former known as Policy P-19) (Appeal of Planning Commission Decisions) was adopted December 1, 1992, (see attached copy). The purpose of the policy is to preserve the City Council’s ability to appeal a Planning Commission decision in those rare instances where the time frame between the Planning Commission meeting and the immediately following City Council meeting exceeds the standard appeal period of fifteen (15) days, or ten (10) days in the case of subdivision maps. Essentially, when the Policy is triggered due to exceedance of the above-noted time frames, each item on the Planning Commission agenda shall be conditioned such that the Planning Commission’s action is not final until forwarded to the City Council for review and final approval.

Given the cancelation of the July 4, 2023, City Council Meeting in observance of Independence Day, the next regularly scheduled City Council meeting of July 18th occurs beyond the appeal period threshold, thereby triggering the requirements of Policy P-7.

DISCUSSION
June 28, 2023, Planning Commission Agenda Items
The June 28, 2023, Planning Commission agenda included two discretionary applications, 1) Conditional Use Permit 2023-13 – Dance Star Academy and 2) Conditional Use Permit 2023-14 and Administrative Adjustment 2023-06 – Laborde. These items relate to the

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CITY COUNCIL POLICY P-7 REVIEW OF PLANNING COMMISSION AGENDA OF JUNE 28, 2023
P a g e | 2
approval of conditional use permits for a commercial dance studio and second-story room addition to an existing single-family residence within 70 feet of another neighboring home, respectively. Conditional Use Permit 2023-14 also includes a request for minor adjustment of the side yard setback (i.e., Administrative Adjustment 2023-06) to accommodate the proposed room addition. Complete project descriptions for each of these items may be found in the attached Planning Commission staff reports prepared for said items.

The Planning Commission held duly noticed public hearings for each of these items. Staff provided written and oral staff reports, did not identify any land use concerns, and recommended approval in each case. Accordingly, the Planning Commission adopted resolutions approving both items, subject to conditions of approval, including a condition pertaining to required final review and approval by the City Council pursuant to Policy P-7.

The Planning Commission draft meeting minutes and staff reports have been attached hereto for the City Council’s reference.

ENVIRONMENTAL ANALYSIS
Both subject matters qualified for exemption from the California Environmental Quality Act (CEQA) pursuant to Categorical Exemption Class 1 (Existing Facilities, in accordance with the provisions of Title 14 CCR § 15301.

FISCAL IMPACT
None.

ALTERNATIVES
The City Council may choose to appeal one or both subject Planning Commission agenda items. In this case, an appeal hearing would be scheduled for a future City Council meeting.

ATTACHMENTS
1) Copy of City Council Policy P-7
2) June 28, 2023, Planning Commission Agenda Item Summary 3) Draft Minutes from the June 28, 2023, Planning Commission Meeting 4) Planning Commission Staff Report for Conditional Use Permit 2023-13 – Dance Star Academy
5) Planning Commission Staff Report for Conditional Use Permit 2023-14 and Administrative Adjustment 2023-06 – Laborde

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CITY OF YORBA LINDA

PLANNING COMMISSION

AGENDA ITEM SUMMARY
Meeting Date: June 28, 2023
Community Development Department
Planning Division
Director
David Brantley, AICP
CONTINUED APPROVAL OF MAY 24, 2023, PLANNIING COMMISSION MEETING MINUTES A motion by Commissioner Bernstein, Second by Commissioner Behura to approve the continued May 24, 2023, Planning Commission meeting minutes with one correction. The motion carried (4-0-0-1) with the following roll call vote:

AYES: Bernstein, Behura, Pease, Singh
NOES: None
ABSENT: None
ABSTAIN: Masterson
APPROVAL OF JUNE 14, 2023, PLANNING COMMISSION MEETING MINUTES A motion by Commissioner Masterson, Second by Commissioner Behura to approve the June 14, 2023, Planning Commission meeting minutes as received. The motion carried (3-0-0-2) with the following roll call vote:

AYES: Bernstein, Behura, Masterson
NOES: None
ABSENT: None
ABSTAIN: Pease, Singh
CONDITIONAL USE PERMIT 2023-14 AND ADMINISTRATIVE ADJUSTMENT 2023-06 LABORDE A motion by Commissioner Bernstein, Second by Chair Pro Tem Singh to adopt Resolution No. 5559 approving Conditional Use Permit 2023-14 and Administrative Adjustment 2023-06 Laborde with an added condition that states, “pursuant to the requirements of City Council Policy P7, the action of the Planning Commission shall not be final until the review and determination action by the City Council at their next available meeting of July 18th, 2023.” The motion carried (5-0) with the following roll call vote:

AYES: Bernstein, Behura, Masterson, Pease, Singh
NOES: None
ABSENT: None
ABSTAIN: None
CONDITIONAL USE PERMIT 2023-13 DANCE STAR ACADEMY
A motion by Chair Pro Tem Singh, Second by Commissioner Bernstein to adopt Resolution No. 5560 approving Conditional Use Permit 2023-13 Dance Star Academy with an added condition that states Page 197 of 606 2 “pursuant to the requirements of City Council Policy P7, the action of the Planning Commission shall not be final until the review and determination action by the City Council at their next available meeting of July 18th, 2023.” and correction to Condition No. 19. The motion carried (5-0) with the following roll call vote:

AYES: Bernstein, Behura, Masterson, Singh, Pease
NOES: None
ABSENT: None
ABSTAIN: None
Adjournment: The meeting adjourned at 7:05 p.m. to the July 12, 2023, Planning Commission meeting at 6:30 p.m.

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1 PLANNING COMMISSION MEETING

MINUTES
June 28, 2023, 6:30 p.m.

Council Chambers
4845 Casa Loma Avenue
Commissioners

Present:

Behura, Bernstein, Masterson, Pease, Singh
Staff Present: Brantley, Diaz, Laviera, Sanders
_____________________________________________________________________

1. CALL TO ORDER
The Yorba Linda Planning Commission convened at 6:30 p.m. in the Council Chambers at 4845 Casa Loma Avenue, Yorba Linda, California.

Note: No new items will be considered after 11:00 p.m.

2. PLEDGE OF ALLEGIANCE
Led by Commissioner Bernstein.

3. ROLL CALL

4. APPROVAL OF THE MINUTES

4.1 CONTINUED APPROVAL OF MAY 24, 2023, PLANNING COMMISSION

MEETING MINUTES
Moved by Bernstein
Seconded by Behura

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2 It is recommended that the Planning Commission approve continued meeting minutes of May 24, 2023.

AYES (4): Behura, Bernstein, Pease, and Singh
ABSTAINED (1): Masterson
CARRIED (4 to 0)

4.2 APPROVAL OF JUNE 14, 2023, PLANNING COMMISSION MEETING

MINUTES
Moved by Masterson
Seconded by Behura
It is recommended that the Planning Commission approve the minutes of June 14, 2023, as mailed.

AYES (3): Behura, Bernstein, and Masterson
ABSTAINED (2): Pease, and Singh
CARRIED (3 to 0)

5. PUBLIC COMMENTS
None.

6. WAIVE READING IN FULL OF ALL RESOLUTIONS ON THE AGENDA Approval of reading by title all resolutions on the agenda and declare that said titles which appear on the public agenda shall be determined to have been read by title and further reading waived.

Moved by Bernstein
Seconded by Masterson
To approve waiving readings in full of all resolutions.

AYES (5): Behura, Bernstein, Masterson, Pease, and Singh CARRIED (5 to 0)

7. PUBLIC HEARINGS

7.1 CONDITIONAL USE PERMIT 2023-14 ADMINISTRATIVE
ADJUSTMENT 2023-06 LABORDE

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3 Director Brantley explained that after both of the following staff reports were prepared staff realized there is a unique City Council policy, P-7, that has come into play. Due to the July 4th holiday, the 15-day appeal period will be slightly extended; therefore, staff is suggesting that the Planning Commission add a condition of approval to 7.1 and 7.2 that should read:
“pursuant to the requirements of City Council policy P-7, the action of the Planning Commission shall not be final until the review and determination action by the City Council at their next available meeting of July 18th 2023”.

Director Brantley proceeded to introduce item 7.1 and stated the applicant is proposing a two-story 875 square foot room addition. Staff has reviewed the second-floor window locations relative to the neighboring properties and given the extensive landscaping and distance from any proposed windows to neighboring properties staff did not identify privacy impacts.

The proposed addition does integrate well with the architecture and massing of the home and recommends approval of the proposed project.

Mr. Laborde approached and stated he agreed with all the conditions of approval.

Chair Pease invited the applicant to step forward and asked if he agreed with all the conditions of approval.

Chair Pease opened the public hearing; seeing no one approach, the public hearing was closed.

Director Brantley advised this action by the Planning Commission this evening is final unless it is appealed to the City Council on July 18, 2023, through the City Clerk's office.

Moved by Bernstein
Seconded by Singh
The Planning Commission adopted Resolution No. 5559 approving Conditional Use Permit 2023-14 – Laborde, subject to the attached conditions of approval.

The Planning Commission approved, by minute motion, Administrative Adjustment 2023-06 – Laborde, with findings.

AYES (5): Behura, Bernstein, Masterson, Pease, and Singh CARRIED (5 to 0)

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4 7.2 CONDITIONAL USE PERMIT 2023-13 DANCE STAR ACADEMY Gabriel Diaz, Associate Planner, explained this is a request for a dance studio in the Richfield Plaza. An existing dance studio was approved in this location one year ago, north of this proposed location. There will be 12 students and one instructor consisting of evening classes Monday through Sunday from 4:00 to 8:00 PM with limited classes from 9:00 to 11:00 AM; the facility would operate the same as the existing studio with the same level of intensity. There is sufficient parking and staff recommends approval of the request.

Assistant City Attorney Sanders, noted an error in Condition 8 should be 2024, not 2023.

Director Brantley advised this action by the Planning Commission this evening is final unless it is appealed to the City Council on July 18, 2023, through the City Clerk's office.

Moved by Singh
Seconded by Bernstein
The Planning Commission adopted Resolution No. 5560 approving Conditional Use Permit 2023-13 – Dance Star Academy of Performing Arts, with conditions.

AYES (5): Behura, Bernstein, Masterson, Pease, and Singh CARRIED (5 to 0)

8. NEW BUSINESS

9. OLD BUSINESS

10. DIRECTOR’S REPORT
Director Brantley stated the Resident Housing Working Group met for the 6th time to discuss final revisions to revise the Housing Element. The group came to a consensus on a plan that they feel they could support. They are making final revisions and staff and the consultant will bring a presentation to the City Council on July 18th. There are a number of other steps including putting the draft plan together and submitting to HCD for their view and approval. Once that happens, staff will initiate a public hearing process, a CEQA compliance, before this body, as well as City Council, and ultimately culminating a revised housing element approval, then a vote on the November 2024 election to reconsider the housing plan.

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5 Typically, the first meeting in August is dark; staff will confirm with the Commissioners at the next meeting on July 12.

11. COMMISSIONER COMMENTS

12. CORRESPONDENCE RECEIVED
None.

13. ADJOURNMENT
7:05 p.m.

The next Planning Commission meeting is scheduled for July 12, 2023, beginning at 6:30 p.m.
_________________________

DAVID BRANTLEY, AICP

DIRECTOR OF COMMUNITY DEVELOPMENT

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CITY OF YORBA LINDA

PLANNING COMMISSION

AGENDA ITEM SUMMARY
Meeting Date: July 12, 2023
Community Development Department
Planning Division
Director
David Brantley, AICP
APPROVAL OF JUNE 28, 2023, PLANNIING COMMISSION MEETING MINUTES A motion by Commissioner Masterson, Second by Commissioner Bernstein to approve the June 28, 2023, Planning Commission meeting minutes. The motion carried (3-0-2-0) with the following roll call vote:

AYES: Bernstein, Singh, Masterson
NOES: None
ABSENT: Behura, Pease
ABSTAIN: None
*Commissioner Behura arrived at 6:34 p.m.

CONDITIONAL USE PERMIT 2022-52 CLEMENTINE ORANGE COUNTY A motion by Commissioner Masterson, Second by Commissioner Behura to continue Conditional Use Permit 2022-52 Clementine Orange County to a date certain of August 23, 2023, allowing staff to work with the applicant and the residents so that they can establish conditions addressing the issues raised by the neighbors. At the August 23, 2023, Planning Commission meeting, provide for the planning commissions’ consideration a resolution of approval with findings and conditions to include possible mitigation measures to address existing impacts, and a resolution of denial with findings. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Bernstein, Singh, Masterson, Behura
NOES: None
ABSENT: Pease
ABSTAIN: None
2023 CITIZEN OF THE YEAR SELECTION COMMITTEE
A motion by Commissioner Masterson, Second by Commissioner Bernstein appointing Chair Pro Tem Singh to the 2023 Citizen of the Year Committee. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Bernstein, Singh, Masterson, Behura
NOES: None
ABSENT: Pease
ABSTAIN: None
Adjournment: The meeting adjourned at 9:32 p.m. to the July 26, 2023, Planning Commission meeting at 6:30 p.m. Page 235 of 606

CITY CLERK'S OFFICE
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCIA BROWN, CMC, CITY CLERK
SUBJECT: COUNCIL COMMITTEE AND AGENCY REPORTS

RECOMMENDATION
It is recommended that the City Council receive and file this report.

DISCUSSION
City Council members serve on a number of outside committees and agencies. Attached are updates received recently from these agencies.

ATTACHMENTS

1. Reports from City Council Organizations, Agencies and Committees

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MONTHLY REPORT:

May
Monthly Year to Date (YTD) County Monthly County YTD

OPERATIONS
Service Requests Completed: 12 32 281 961
Mosquitoes: 11 25 223 733
Rats: 0 2 25 118
Rifa: 1 5 27 103
Number of Swimming Pools Treated/Inspected: 43 198 1,064 3,784 Hours Spent Treating/Inspecting Gutters 13.25 13.25 738.12 795.7 Undergrounds Treated: 48 48 3,468 3,952
Acres of Flood Channels Treated: 0.2 0.20688 48.2822 63.15678 Acres of RIFA Treated/Inspected: 210 531 7,002 17,215
Number of Inspection Treatments: 38 253 1,826 7,588

LABORATORY
Adult Mosquitoes Collected: 197 203 30,539 38,862
Collected From Trustee Home: 0 0 0 0
Invasive Aedes 0 0 18 20
Mosquito Pools (Samples) Tested: 7 7 490 687
WNV Positive Samples: 0 0 0 0
WNV Positive Birds: 0 0 0 0
Number of Human Infections/Deaths: 0 0 0 0
Fleas, Ticks, and Others Tested: - - - 0

COMMUNICATIONS
Outreach Events Attended: 0 0 9 21
General Presentations: 2 2 13 24
Educational Program Presentations: 0 0 26 105
Calls Received - - 278 1,016
None at this time
TOTAL 8
AVERAGE 2.00
Yorba Linda

PROJECTS IN COLLABORATION WITH OCMVCD
COUNTY RESPONSE LEVEL / AVERAGE RATING:

Normal Season (1.0 to 2.5)
Elevated Risk (2.6 to 4.0)
High Risk (4.1 to 5.0)

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Orange County Mosquito Vector Control District

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ADMINISTRATION DEPARTMENT
DATE: JULY 18, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DAVID CHRISTIAN, ASSISTANT CITY MANAGER
SUBJECT: SOLAR CANOPY PROJECT – RESOLUTION NO. 2023-5850 MAKING

FINDINGS OF ENERGY SAVINGS AND DETERMINING OTHER MATTERS

IN CONNECTION WITH ENERGY SERVICE AGREEMENTS

RECOMMENDATION
It is recommended that the City Council:

1. Approve the Solar Canopy Project by adopting Resolution No. 2023-5850 Making Findings of Energy Savings and Determining Other Matters in Connection With Energy Service Agreements; and

2. Authorize the City Manager to negotiate any further changes to the Power Purchase Agreements and execute them on behalf of the City.

BACKGROUND
In 1989 the School Project for Utility Rate Reduction (SPURR) Joint Powers Authority (JPA) was founded as a buying consortium of over 200 school and community college districts to aggregate procurement for utilities. SPURR issued its Renewable Energy Aggregated Procurement (REAP) Program Request For Proposals (RFP) in order to streamline the solar buying process, drive down project pricing and improve contract terms and conditions for public agencies. Forefront Power (Forefront) was the selected vendor of the REAP Program RFP competitive process and have since completed hundreds of solar projects with over 65 California public agencies, including school districts, community colleges, cities, counties, universities and the State of California.

About two years ago, the City was contacted by Forefront about the possibility of installing solar canopies in some City facility parking lots in an effort to off-set energy costs at those facilities. Based on Forefront’s analysis, three facilities were identified as meeting the criteria to make the project feasible. The three facilities are the Community Center, the Library & Arts Center, and Black Gold Golf Club (see Attachment 6). Based on the current cost of energy at each of these facilities and the estimated foreseeable increases going forward, it made sense to investigate alternative power sources that would lock in fixed pricing and generate savings.

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SOLAR CANOPY PROJECT
P a g e | 2
Because SPURR’s REAP Program is available to all California Public Agencies, the City is able to participate and piggyback on their competitive bidding process. In accordance with California Government Code Section 4217, this public hearing was noticed at least two weeks prior to the date of the hearing.

DISCUSSION
Over the past almost two years, staff have worked with Forefront and SPURR to find the best overall configuration for the solar canopies at each of the sites that would minimize any negative impact to aesthetics or functional use of the facility. The designs presented with this report represent the outcome of that effort and produce the optimal amount of kWh that would generate the most savings at each location.

Should Council approve staff’s recommendation, Forefront would finance, design, construct, own, operate and maintain the solar canopies installed at the City facilities. The City would then pay Forefront a 20-year flat rate for the solar energy generated and delivered to its facilities on a per kilowatt (kWh) basis, while at the same time using and paying for less energy from the utility company. Based on the analysis performed by Forefront, the City is estimated to save approximately $2.7 million at the three facilities combined. At the end of the 20-year contract period, the City has the option of entering into a new agreement to continue purchasing solar energy or having the solar canopies removed without cost to the City. In addition, the City has the ability to purchase the solar canopies at various times throughout the 20-year agreement period as well as at the end. Each of the Energy Service Agreements (ESAs) (one for each site) contain a performance guarantee ensuring that the City will be compensated for lost savings if Forefront does not deliver at least 95% of the expected annual solar generation calculated on a site-by-site basis.

Should Council approve this item, the initial stages of the process would begin immediately and could take up to 18 months before construction would commence. The long lead time is due mainly to the interconnection study process that needs to be performed by the utility as well as the procurement of critical project materials. Construction would occur concurrently at all three facilities and could take anywhere from 6 to 9 months with total project completion estimated to be early to mid 2025. In particular, staff would work with the vendor to ensure construction does not conflict with important events and programs at the facilities.

FISCAL IMPACT
There are no up-front costs to the City for the installation or operation of the solar canopies.

Based on the estimates from Forefront, the City will save approximately $2.7 million over the 20-year period, which assumes a conservative 3% annual increase to the current utility energy cost at the three facilities.

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SOLAR CANOPY PROJECT
P a g e | 3

ALTERNATIVES

1. Do not approve the project and continue operations at these three City facilities with the current utility provider.

2. Direct staff to move forward with at least two of the three proposed sites as presented or with allowable modifications.

ATTACHMENTS

1. Resolution No. 2023-5850

2. General Terms and Conditions of Energy Services Agreement

3. Community Center Energy Services Agreement

4. Library & Arts Center Energy Services Agreement

5. Black Gold Golf Club Energy Services Agreement

6. Facility photos

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RESOLUTION NO. 2023-5850

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

YORBA LINDA MAKING FINDINGS ON ENERGY SAVINGS

AND DETERMINING OTHER MATTERS IN CONNECTION

WITH ENERGY SERVICE AGREEMENTS
WHEREAS, it is the policy of the State of California and the intent of the State Legislature to promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources; and
WHEREAS, the City of Yorba Linda (“City”) desires to reduce the steadily rising costs of meeting the energy needs at its facilities; and WHEREAS, the City proposes to enter into power purchase agreements (“Power Purchase Agreements”) and related contract documents with ForeFront Power (“ForeFront”) for facilities at the City’s real property sites, pursuant to which Power Purchase Agreements ForeFront will design, construct, and install on City property solar photovoltaic and energy storage facilities and arrange with the local utility for interconnection of the facilities, which will generate and store energy for the sites on which such facilities are located; and
WHEREAS, ForeFront has provided the City with analysis showing the financial and other benefits of entering into the Power Purchase Agreements, which analysis is attached hereto as Exhibit A and made part hereof by this reference; and WHEREAS, Exhibit A includes data showing that the anticipated cost to the City for the electrical energy provided by the solar photovoltaic and energy storage facilities will be less than the anticipated cost to the City of electrical energy that would have been consumed by the City in the absence of such measures; and WHEREAS, ForeFront was the selected vendor for School Project for Utility Rate Reduction’s (“SPURR”) Renewable Energy Aggregated Procurement (“REAP”) Program, a competitive statewide solar and energy storage request for proposals (“RFP”) process, and the City adopts the REAP Program’s competitive process as its own; and WHEREAS, the City proposes to enter into the Power Purchase Agreements and related contract documents, each in substantially the form presented at this meeting, subject to such changes, insertions or omissions as the City Manager reasonably deems necessary following the Council’s adoption of this Resolution; and WHEREAS, pursuant to Government Code section 4217.12, this Council held a public hearing, public notice of which was given two weeks in advance, to receive public comment; and
WHEREAS, the Power Purchase Agreements are in the best interests of the City; and
WHEREAS, the City’s proposed approval of the Power Purchase Agreements is a “Project” for purposes of the California Environmental Quality Act (“CEQA”); and

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RESOLUTION NO. 2023-5850
PAGE NO. 2
WHEREAS, the Guidelines for CEQA, California Code of Regulations Title 14, Chapter 13 (“State CEQA Guidelines”), exempt certain projects from further CEQA evaluation, including the following: (1) projects consisting of the new construction or conversion of small structures (“Class 3 Exemption”; Cal. Code Regs., tit. 14, § 15303); (2) projects consisting of the construction or placement of minor accessory structures to existing facilities (“Class 11 Exemption”; Cal. Code Regs., tit. 14, § 15311); and (3) projects consisting of minor additions to existing schools (“Class 14 Exemption”; Cal.

Code Regs., tit. 14, § 15314), and the Project is categorically exempt under one or more of such exemptions; and
WHEREAS, the Project does not involve any of the following and so is eligible for a categorical exemption as described above under State CEQA Guidelines section 15300.2:
(a) the cumulative impact of successive projects of the same type in the same place, which over time are significant;
(b) an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances; (c) a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway; (d) a hazardous waste site which is included on any list compiled pursuant to Section 65962.5 of the Government Code; and
(e) a project which may cause a substantial adverse change in the significance of a historical resource; and
WHEREAS, Public Resources Code, section 21080.35 (added by Stats.2011, c. 469 (S.B.226), § 3), statutorily exempts from CEQA evaluation the installation of a solar energy system, including associated equipment, on the roof of an existing building or at an existing parking lot.

NOW, THEREFORE, based upon the above-referenced recitals, the City Council of the City of Yorba Linda hereby finds, determines and orders as follows:

Section 1. The terms of the Power Purchase Agreements and related agreements are in the best interests of the City.

Section 2. In accordance with Government Code section 4217.12, and based on data provided by Exhibit A, the Council finds that the anticipated cost to the City for electrical energy provided by the Power Purchase Agreements will be less than the anticipated cost to the City of electrical energy that would have been consumed by the City in the absence of the Power Purchase Agreements.

Section 3. The Council hereby approves the Power Purchase Agreements in accordance with Government Code section 4217.12.

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RESOLUTION NO. 2023-5850
PAGE NO. 3
Section 4. The City’s City Manager is hereby authorized and directed to negotiate any further changes, insertions and omissions to the Power Purchase Agreements as he reasonably deems necessary, and thereafter to execute and deliver the Power Purchase Agreements following the Council’s adoption of this Resolution. The City’s City Manager is further authorized and directed to execute and deliver any and all papers, instruments, opinions, certificates, affidavits and other documents and to do or cause to be done any and all other acts and things necessary or proper for carrying out this resolution and said agreements.

Section 5. The Project hereby found to be exempt from the requirements of CEQA pursuant to the Class 3, Class 11 and Class 14 Exemptions, as described above.

Section 6. The Project is hereby found to be exempt from the requirements of CEQA pursuant to Public Resources Code, section 21080.35 (added by Stats.2011, c. 469 (S.B.226), § 3), as described above.

Section 7. City staff are hereby authorized to file and process a Notice of CEQA Exemption for the Project in accordance with CEQA and the State CEQA Guidelines, and the findings set forth in this resolution.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Yorba Linda, on the 18th day of July, 2023.

GENE HERNANDEZ, MAYOR

CITY OF YORBA LINDA
ATTEST:

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP

CITY ATTORNEY

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RESOLUTION NO. 2023-5850
PAGE NO. 4
COUNTY OF ORANGE ) ss

STATE OF CALIFORNIA )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the City Council of the City of Yorba Linda held on the 18th day of July, 2023, and was carried by the following roll call vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA

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Project Cashflows: Yorba Linda City Solar PPA Savings
Rate Scenario NEM 2.0
Solutions Solar-Only Financial Assumptions
Project City-Wide PV Projects Parameter Value
Year 1 Savings $11,032 PPA Rate Escalator (%/yr) 0.0%
Cumulative Savings $2,778,563 Utility Energy Escalator (%/yr) 3.0% Payback Period Immediate Utility Demand Escalator (%/yr) 3.0% Solar System Size (KW) 1,190 PPA Term (Years) 20
Storage System Size (KW) 0 Solar Degradation Rate (%) 0.50% Year
Pre-Solar Utility Bill (without
solar) Solar PPA Payment New Utility Bill
(with solar)
Total Electricity Costs (PPA +
Utility) Net Savings Cumulative Savings
1 604,697 318,529 275,136 593,665 11,032 11,032
2 622,838 316,936 283,390 600,326 22,511 33,544
3 641,523 315,352 291,892 607,243 34,280 67,823
4 660,769 313,775 300,648 614,423 46,345 114,168
5 680,592 312,206 309,668 621,874 58,718 172,886
6 701,009 310,645 318,958 629,603 71,407 244,293
7 722,040 309,092 328,526 637,618 84,421 328,714
8 743,701 307,546 338,382 645,929 97,772 426,486
9 766,012 306,009 348,534 654,542 111,469 537,956
10 788,992 304,479 358,990 663,468 125,524 663,480
11 812,662 302,956 369,759 672,716 139,946 803,426
12 837,042 301,442 380,852 682,294 154,748 958,174
13 862,153 299,934 392,278 692,212 169,941 1,128,115
14 888,018 298,435 404,046 702,481 185,537 1,313,652
15 914,658 296,942 416,167 713,110 201,548 1,515,201
16 942,098 295,458 428,653 724,110 217,988 1,733,189
17 970,361 293,980 441,512 735,493 234,868 1,968,057
18 999,472 292,511 454,757 747,268 252,204 2,220,261
19 1,029,456 291,048 468,400 759,448 270,008 2,490,269
20 1,060,340 289,593 482,452 772,045 288,295 2,778,563
Total $16,248,432 $7,393,000 $13,469,869 $2,778,563 $2,778,563 Attachment A

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GENERAL CONDITIONS (JUNE 2018)

CONFIDENTIAL AND PROPRIETARY
***

GENERAL TERMS AND CONDITIONS OF

ENERGY SERVICES AGREEMENT
These General Terms and Conditions of Energy Services Agreement are dated as of the ____ day of _________, 2023 and are witnessed and acknowledged by FFP BTM SOLAR, LLC, a Delaware limited liability company (“ForeFront Power”) and City of Yorba Linda (“Purchaser”), as evidenced by their signature on the last page of this document.

These General Terms and Conditions are intended to be incorporated by reference into Energy Services Agreements that may be entered into between ForeFront Power and Purchaser or between their respective Affiliates. These General Terms and Conditions shall have no binding effect upon ForeFront Power or Purchaser, respectively, except to the extent Purchaser or ForeFront Power (or an Affiliate thereof) becomes a party to an Energy Services Agreement that incorporates these General Terms and Conditions.

1. DEFINITIONS.

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

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“Commercial Operation” has the meaning set forth in Section 3.3(b). “Commercial Operation Date” has the meaning set forth in Section 3.3(b). “Confidential Information” has the meaning set forth in Section 15.1. “Covenants, Conditions and Restrictions” or “CCR” means those requirements or limitations related to the Premises as may be set forth in a lease, if applicable, or by any association or other organization, having the authority to impose restrictions.
“Delay Liquidated Damages” means the daily payment of (i) $0.250/day/kW (DC) of the estimated nameplate capacity of the System (as set forth in Schedule 1 of the Special Conditions). “Disruption Period” has the meaning set forth in Section 4.3. “Early Termination Date” means any date on which this Agreement terminates other than by reason of expiration of the then applicable Term.
“Early Termination Fee” means the fee payable by Purchaser to Provider under the circumstances described in Section

2.2, Section 2.3 or Section 11.2.
“Effective Date” has the meaning set forth in the preamble to the Special Conditions. “Energy Services” has the meaning set forth in the Special Conditions. “Energy Services Agreement” means each Energy Services Agreement (including the Schedules attached thereto) that may be entered into between ForeFront Power and Purchaser or between their respective Affiliates that incorporates these General Terms and Conditions by reference.
“Energy Services Payment” has the meaning set forth in the Special Conditions. “Environmental Attributes” shall mean, without limitation, carbon trading credits, renewable energy credits or certificates, emissions reduction credits, emissions allowances, green tags, tradable renewable credits, or Green-e® products.
“Environmental Documents” has the meaning set forth in Section 7.2(f). “Environmental Law” means any and all federal, state, local, provincial and foreign, civil and criminal laws, statutes, ordinances, orders, common law, codes, rules, regulations, judgments, decrees, injunctions relating to the protection of health and the environment, worker health and safety, and/or governing the handling, use, generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging, labeling, or release to the environment of or exposure to Hazardous Materials, including any such requirements implemented through Governmental Approvals.
“Estimated Remaining Payments” means as of any date, the estimated remaining Energy Services Payments to be made through the end of the then-applicable Term, as reasonably determined by Provider. “Expiration Date” means the date on which this Agreement terminates by reason of expiration of the Term. “Fair Market Value” means, with respect to any tangible asset or service, the price that would be negotiated in an arm’s-length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer, neither of whom is under compulsion to complete the transaction. Fair Market Value of the System will be determined pursuant to Section 2.4.

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“Financing Party” means, as applicable (i) any Person (or its agent) from whom Provider (or an Affiliate of Provider) leases the System, (ii) any Person (or its agent) who has made or will make a loan to or otherwise provides financing to Provider (or an Affiliate of Provider) with respect to the System, or (iii) any Person acquiring a direct or indirect interest in Provider or in Provider’s interest in this Agreement or the System as a tax credit investor. “Force Majeure Event” has the meaning set forth in Section 10.1. “ForeFront Power” has the meaning set forth in the Preamble. “General Terms and Conditions” means these General Terms and Conditions of the Energy Services Agreement, including all Exhibits hereto.
“Guaranteed Commercial Operation Date” has the meaning set forth in Section 5 of the Special Conditions, subject to extension as set forth in Section 2.2(b).
“Guaranteed Construction Start Date” has the meaning set forth in Section 5 of the Special Conditions, subject to extension as set forth in Section 2.2(b).
“Governmental Approval” means any approval, consent, franchise, permit, certificate, resolution, concession, license, or authorization issued by or on behalf of any applicable Governmental Authority, including any such approval, consent, order or binding agreements with or involving a governmental authority under Environmental Laws. “Governmental Authority” means any federal, state, regional, county, town, city, or municipal government, whether domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial body of any such government.
“Hazardous Materials” means any hazardous or toxic material, substance or waste, including petroleum, petroleum hydrocarbons or petroleum products, and any other chemicals, materials, substances or wastes in any amount or concentration which are regulated under or for which liability can be imposed under any Environmental Law. “Initial Term” has the meaning set forth in Section 2 of the Special Conditions. “Installation Work” means the construction and installation of the System and the start-up, testing and acceptance (but not the operation and maintenance) thereof, all performed by or for Provider (by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will be installed) at the Premises.
“Invoice Date” has the meaning set forth in Section 6.2. “Liens” has the meaning set forth in Section 7.1(d).
“Local Electric Utility” means the local electric distribution owner and operator providing electric distribution and interconnection services to Purchaser at the Premises.
“Losses” means all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages, cleanup and remedial obligations, interest, fines, fees, penalties, costs and expenses (including all attorneys’ fees and other costs and expenses incurred in defending any such claims or other matters or in asserting or enforcing any indemnity obligation).
“Option Price” has the meaning set forth in Section 2.3(i). “Party” or “Parties” has the meaning set forth in the preamble to the Special Conditions. “Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a Governmental Authority.

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“Pre-existing Environmental Conditions” means any: (i) violation of, breach of or non-compliance with any Environmental Laws with respect to the Premises that first existed, arose or occurred on or prior to Provider’s commencement of construction at the Premises and (ii) the presence or release of, or exposure to, any Hazardous Materials at, to, on, in, under or from the Premises that first existed, arose or occurred on or prior to Provider’s commencement of construction at the Premises.
“Premises” means the premises described in Schedule 1 of the Special Conditions. The Premises includes the entirety of any structures and underlying real property located at the address in Schedule 1 of the Special Conditions. “Provider” has the meaning set forth in the Special Conditions. “Provider Default” has the meaning set forth in Section 11.1(a). “Provider Indemnified Parties” has the meaning set forth in Section 16.2. “Purchase Date” means the first Business Day that occurs after the applicable purchase date set forth in Schedule 3 of the Special Conditions.
“Purchaser” has the meaning set forth in the preamble to the Special Conditions. “Purchaser Default” has the meaning set forth in Section 11.2(a). “Purchaser Indemnified Parties” has the meaning set forth in Section 16.1. “Renewal Term” if applicable, has the meaning set forth in Section 2 of the Special Conditions. “Representative” has the meaning set forth in Section 15.1. “Security Interest” has the meaning set forth in Section 8.2(a). “Site-Specific Requirements” means the site-specific information and requirements as may be set forth in Schedule 6 of the Special Conditions.
“Special Conditions” means each Energy Services Agreement, excluding these General Terms and Conditions. “Stated Rate” means a rate per annum equal to the lesser of (a) the “prime rate” (as reported in The Wall Street Journal) plus two percent (2%) or (b) the maximum rate allowed by Applicable Law. “System” has the meaning set forth in Schedule 1 of the Special Conditions. “System-based Incentives” means any accelerated depreciation, installation or production-based incentives, investment tax credits and subsidies including, but not limited to, the subsidies in Schedule 1 of the Special Conditions and all other related subsidies and incentives.
“System Operations” means Provider’s operation, maintenance and repair of the System performed by Provider or for Provider (by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will be installed) in accordance with the requirements herein. “Term” means the Initial Term, and the subsequent Renewal Term(s), if any. “Term Year” means a twelve (12) month period beginning on the first day of the Term and each successive twelve (12) month period thereafter.
“Termination Date” means the date on which this Agreement ceases to be effective, including on an Early Termination Date or the Expiration Date.

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1.2 Interpretation. The captions or headings in these General Terms and Conditions are strictly for convenience and shall not be considered in interpreting this Agreement. Words in this Agreement that impart the singular connotation shall be interpreted as plural, and words that impart the plural connotation shall be interpreted as singular, as the identity of the parties or objects referred to may require. The words “include”, “includes”, and “including” mean include, includes, and including “without limitation” and “without limitation by specification.” The words “hereof”, “herein”, and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement. Except as the context otherwise indicates, all references to “Articles” and “Sections” refer to Articles and Sections of these General Terms and Conditions.

2. TERM AND TERMINATION.

2.1 Term. The Initial Term is as specified in the Special Conditions.

2.2 Early Termination.
(a) Purchaser may terminate this Agreement prior to any applicable Expiration Date for any reason upon sixty (60) days’ prior written notice. If Purchaser terminates the Agreement prior to the Expiration Date of the Initial Term, Purchaser shall pay, as liquidated damages, the Early Termination Fee set forth on Schedule 3, Column 1 of the Special Conditions, and Provider shall cause the System to be disconnected and removed from the Premises in accordance with Section 2.4. Upon Purchaser’s payment to Provider of the Early Termination Fee, this Agreement shall terminate automatically.
(b) Purchaser may (i) if Provider fails to commence construction by the Guaranteed Construction Start Date, be entitled (as its sole remedy) to Delay Liquidated Damages not to exceed $22.5/kW (DC) of the estimated nameplate capacity of the System (as set forth in Schedule 1 of the Special Conditions), (ii) terminate this Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee, if Provider fails to commence construction of the System by the date that is ninety (90) days after the Guaranteed Construction Start Date, or (iii) if Provider fails to achieve Commercial Operation by the Guaranteed Commercial Operation Date, be entitled (as its sole remedy) to Delay Liquidated Damages not to exceed $15/kW (DC) of the estimated nameplate capacity of the System (as set forth in Schedule 1 of the Special Conditions), plus (if Installation Work had commenced at the Premises as of the date of termination) any costs reasonably incurred by Purchaser to return its Premises to its condition prior to commencement of the Installation Work. Further, Purchaser may terminate this Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee, if Provider fails to commence Commercial Operation by the date that is sixty (60) days after the Guaranteed Commercial Operation Date. The Guaranteed Construction Start Date and Guaranteed Commercial Operation Date shall be extended on a day-for-day basis if any of the following occurs: (x) notwithstanding Provider’s commercially reasonable efforts, interconnection approval is not obtained within sixty (60) days after the Effective Date, provided that interconnection applications are submitted within 45 days of the later of (a) the Effective Date and (b) finalization of the System layout, (y) a Force Majeure Event occurs or for any delays by the Local Electric Utility or (z) an occurrence of any other unforeseeable event outside of Provider’s reasonable control, provided that Provider makes reasonable efforts to mitigate the impact of such events on the Guaranteed Construction Start Date or Guaranteed Commercial Operation Date (as applicable).

Any such extension pursuant to subsection (z) shall be subject to the approval of Purchaser which shall not be unreasonably withheld, conditioned or delayed.

2.3 Purchase Option.
(i) On any Purchase Date, so long as a Purchaser Default shall not have occurred and be continuing, Purchaser has the option to purchase the System for a purchase price (the “Option Price”) equal to the greater of (a) the Fair Market Value of the System as of the Purchase Date, or (b) the Early Termination Fee as of the Purchase Date, as specified in Schedule 3, Column 2 of the Special Conditions. To exercise its purchase option, Purchaser shall, not less than one hundred and eighty (180) days prior to the proposed Purchase Date, provide written notice to Provider of Purchaser’s intent to exercise its option to purchase the System on such Purchase Date. Within thirty (30) days of receipt of Purchaser’s notice, Provider shall specify the Option Price, and provide all calculations and assumptions supporting said Option Price to Purchaser. Purchaser shall then have a period of thirty (30) days after notification to confirm or retract its decision to exercise the purchase option or, if the Option Price is equal to the Fair Market Value of the System, to dispute the determination of the Fair Market Value of the System. In the event

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Purchaser confirms its exercise of the purchase option in writing to Provider (whether before or after any determination of the Fair Market Value determined pursuant to Section 2.3(ii)), (i) the Parties shall promptly execute all documents necessary to (A) cause title to the System to pass to Purchaser on the Purchase Date, free and clear of any Liens, and (B) assign all vendor warranties for the System to Purchaser, and (ii) Purchaser shall pay the Option Price to Provider on the Purchase Date, such payment to be made in accordance with any previous written instructions delivered to Purchaser by Provider or Provider’s Financing Party, as applicable, for payments under this Agreement. Upon execution of the documents and payment of the Option Price, in each case as described in the preceding sentence, this Agreement shall terminate automatically. Payment of the Option Price shall be in lieu of and instead of any payments as described in Section 2.2 hereof. In the event Purchaser retracts its exercise of, or does not timely confirm, the purchase option, the provisions of this Agreement shall be applicable as if Purchaser had not exercised any option to purchase the System.
(ii) Determination of Fair Market Value. If the Option Price indicated by Provider in accordance with Section 2.3(i) is equal to the Fair Market Value (as determined and demonstrated by supporting documentation provided by Provider) and Purchaser disputes such stated Fair Market Value within thirty (30) days of receipt of such notice from Provider, then the Parties shall mutually select an independent appraiser with experience and expertise in the Energy Services industry. Such appraiser shall have expertise and experience in valuing photovoltaic systems, resale markets for such systems and related environmental attributes, and shall act reasonably and in good faith to determine Fair Market Value and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error; however, if Purchaser in good faith disputes the valuation made by the appraiser, Purchaser shall have the right to retract its decision to exercise the Purchase Option. The costs of the appraisal shall be borne by Purchaser if such appraisal results in a value equal or greater than the value provided by Provider pursuant to Section 2.3(i); otherwise, the Parties shall equally share such cost.

2.4 Removal of System at Expiration. Subject to Purchaser’s exercise of its purchase option under Section 2.3, upon the expiration or earlier termination of this Agreement, Provider shall, at Provider’s expense, remove all of its tangible property comprising the System from the Premises on a mutually convenient date but in no case later than ninety (90) days after the Termination Date. The Premises shall be returned to its original condition, except for System mounting pads or other support structures on roof-mounted systems only, and ordinary wear and tear. If the System is to be located on a roof, then in no case shall Provider’s removal of the System affect the integrity of Purchaser’s roof, which shall be as leak proof as it was prior to removal of System (other than ordinary wear and tear).

For purposes of Provider’s removal of the System, Purchaser’s covenants pursuant to Section 7.2 shall remain in effect until the date of actual removal of the System. Provider shall leave the Premises in neat and clean order. If Provider fails to remove or commence substantial efforts to remove the System by such agreed upon date, Purchaser shall have the right, at its option, to remove the System to a public warehouse and restore the Premises to its original condition (other than System mounting pads or other support structures and ordinary wear and tear) at Provider’s reasonable cost.

2.5 Conditions Prior to the Commercial Operation Date.
(a) In the event that any of the following events or circumstances occur prior to the Commercial Operation Date, Provider may (at its sole discretion) provide notice that it is terminating this Agreement, in which case neither Party shall have any liability to the other except for any such liabilities that may have accrued prior to such termination, including but not limited to Provider’s restoration of the Premises in accordance with Section 2.4:
(i) Provider determines that the Premises, as is, is insufficient to accommodate the System or unsuitable for construction or operation of the System.
(ii) There exist site conditions (including environmental conditions) or construction requirements that were not known as of the Effective Date and that could reasonably be expected to materially increase the cost of Installation Work or would adversely affect the electricity production from the System as designed. (iii) There is a material adverse change in the regulatory environment, incentive program or federal or state tax code (including the expiration of any incentive program or tax incentives in effect as of the Effective Date) that could reasonably be expected to adversely affect the economics of the installation for Provider and its investors.

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(iv) Provider is unable to obtain financing for the System on terms and conditions satisfactory to it. (v) Provider has not received: (1) a fully executed a license in the form of Exhibit A of these General Conditions from the owner of the Premises (if the Purchaser is a tenant), (2) a release or acknowledgement from any mortgagee of the Premise, if required by Provider’s Financing Party, to establish the priority of its security interest in the System, and (3) such other documentation as may be reasonably requested by Provider to evidence Purchaser’s ability to meet its obligations under Section 7.2(d)(ii) to ensure that Provider will have access to the Premises throughout the Term.
(vi) There has been a material adverse change in the rights of Purchaser to occupy the Premises or Provider to construct the System on the Premises.
(viii) Purchaser has determined that there are easements, CCRs or other land use restrictions, liens or encumbrances that would materially impair or prevent the installation, operation, maintenance or removal of the System.
(ix) There has been a material adverse change in Purchaser’s credit-worthiness. (b) If any of the conditions set forth in Section 2.5(a) are partly or wholly unsatisfied, and Provider wishes to revise the information in the Special Conditions, then Provider may propose modifications to the Special Conditions for acceptance by Purchaser. If Purchaser does not accept such modified Special Conditions, Provider may terminate this Agreement as provided in Section 2.5(a) and shall restore the Premises in accordance with Section

2.4. If Purchaser accepts such revised Special Conditions, such revised Special Conditions shall be deemed an amendment of this Agreement, and this Agreement shall remain in force and effect upon execution by both Parties.

2.6 Co-Located Systems. With respect to any Systems that are co-located at the same Premises and connected to the same meter, the Parties acknowledge that the Systems are intended to be owned and operated as one integrated system, and that the Energy Services Payment (a) represents the added value of integrating the Systems to enable Provider’s delivery of the Energy Services pursuant to the Agreements when needed by Purchaser, and (b) is a component part of the total consideration payable to Provider in exchange for Provider’s comprehensive duties under this Agreement and the Agreement(s) related to the other co-located System(s). Accordingly, the Parties further agree (x) to treat the Systems as one integrated system for all purposes, and (y) that any right or option that is exercised with respect to the System or this Agreement, whether in respect of early termination, purchase option or otherwise, shall also be exercised with respect to the Agreement(s) related to the other co-located System(s).

3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.

3.1 Installation Work. Provider will cause the System (by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will be installed) to be designed, engineered, installed and constructed substantially in accordance with Schedule 1 of the Special Conditions and Applicable Law. At its request, Purchaser shall have the right to review all construction plans and designs, including engineering evaluations of the impact of the System. Provider shall perform the Installation Work at the Premises between the hours of 7:00 a.m. and 7:00 p.m. in a manner that minimizes inconvenience to and interference with the use of the Premises to the extent commercially practical.

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

3.3 System Acceptance Testing.
(a) Provider shall conduct testing of the System in accordance with such methods, acts, guidelines, standards and criteria reasonably accepted or followed by providers of Energy Services similar to those provided by the System in the United States. Provider shall provide Purchaser with reasonable advanced notice of such testing

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and shall permit Purchaser or Purchaser’s representative to observe such testing. Purchaser’s observation of such testing shall not be construed as or deemed an approval of such testing or test results. (b) If the results of such testing indicate that the System is capable of providing the Energy Services, using such instruments and meters as have been installed for such purposes, and the System has been approved for interconnected operation by the Local Electric Utility (“Commercial Operation”), then Provider shall send a written notice to Purchaser to that effect, and the date of such notice shall be the “Commercial Operation Date”.

4. SYSTEM OPERATIONS.

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

4.2 Metering. Provider shall install and maintain a utility grade kilowatt-hour (kWh) meter for the measurement of electrical energy provided by the System and may, at its election, install a utility grade kilowatt-hour (kWh) meter for the measurement of electrical energy delivered by the Local Electric Utility and consumed at the Premises. Such meter(s) shall meet the general commercial standards of the solar photovoltaic industry or the required standards of the Local Electric Utility.

4.2.1 Meter Testing.
(a) Provider shall provide certificates of calibration for all meters prior to the time of their installation, no meter will be placed in service for which Provider has not provided certificates of calibration. Provider shall test or arrange for all meters to be tested in accordance with the meter manufacturer’s recommendations. Provider shall bear all costs and expenses associated with each meter testing. Purchaser shall be notified at least ten (10) days in advance of such testing and shall have the right to be present during such tests. Provider shall provide Purchaser with detailed written results of all meter tests.
(b) Provider shall test or arrange for meter inspection and testing bi-annually when performing System operations and maintenance.

4.2.2 Cost of Meter Repair.
(a) If meter testing, as described above demonstrates that a meter was operating outside of its allowable calibrations (+/- 2%), then Provider will pay for the cost of repairs or replacement necessary to restore a meter to proper working order.
(b) If a meter is found to be inaccurate by more than two percent (2%), invoices for the prior six (6) months or from the last date such meter was registering accurately, whichever period is less, shall be adjusted to reconcile the discrepancy and payment for the amount of the adjustment issued by the appropriate party within 45 days, except that Purchaser shall not be obligated to pay interest on any amount found to be due because a meter was operating outside of its allowable calibration (+/- 2%).

4.2.3 Meter Data. Provider shall gather and maintain the data from all meters, including but not limited to, interval data registered at least once every fifteen (15) minutes (“Meter Data”), and shall make such Meter Data promptly available to Purchaser at Purchaser’s request.

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

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disruption (the “Disruption Period”), and (iii) reimburse Provider for any other lost revenue during the Disruption Period, including any lost revenue associated with any reduced sales of Environmental Attributes and any reduced System-based Incentives, if applicable, during the Disruption Period. For the purpose of calculating Energy Services Payments and lost revenue for such Disruption Period, Energy Services for each month of said months shall be deemed to have been produced at the average rate over the same month for which data exists (or, if the disruption occurs within the first twelve (12) months of operation, the average over such period of operation). Notwithstanding the foregoing, Purchaser shall be entitled to exercise its rights under Section 9 (Allowed Disruption Time) of the Special Conditions.

5. TITLE TO SYSTEM.

5.1 Throughout the duration of this Agreement, Provider or Provider’s Financing Party shall be the legal and beneficial owner of the System at all times, and the System shall remain the personal property of Provider or Provider’s Financing Party and shall not attach to or be deemed a part of, or fixture to, the Premises. The System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.

Purchaser covenants that it will use reasonable commercial efforts to place all parties having an interest in or lien upon the real property comprising the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which could reasonably be construed as attaching to the System as a fixture of the Premises, Purchaser shall provide, at Provider’s request, a disclaimer or release from such lien holder. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing by Provider, on behalf of Purchaser, of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises. If Purchaser is not the fee owner, Purchaser will, at Provider’s request, use commercially reasonable efforts to obtain such consent from such owner.

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

6. PRICE AND PAYMENT.

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

6.2 Invoice. Provider shall invoice Purchaser on or about the first day of each month (each, an “Invoice Date”), commencing on the first Invoice Date to occur after the Commercial Operation Date, for the Energy Services Payment in respect of the immediately preceding month. The last invoice shall include Energy Services provided only through the Termination Date of this Agreement. Invoices shall state, at a minimum, (i) the amount of actual electricity produced by the System and delivered to the delivery point during the invoice period (if applicable), (ii) the rates applicable to, and any charges incurred by, Purchaser under this Agreement, and (iii) the total amount due from Purchaser.

6.3 Time of Payment. Purchaser shall pay all undisputed amounts due hereunder within thirty (30) days after Purchaser’s receipt of an invoice from Provider.

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

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

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

7. GENERAL COVENANTS.

7.1 Provider’s Covenants. Provider covenants and agrees to the following:
(a) Notice of Damage or Emergency. Provider shall (x) promptly notify Purchaser if it becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System, (y) immediately notify Purchaser if it becomes aware of any event or circumstance relating to the System or the Premises that poses a significant risk to human health, the environment, the System or the Premises. In the event of unreasonable damage to the Premises caused by, or as the result of, the System, Provider shall, at its sole cost, repair said Premises to the condition existing prior to such damage. (b) Governmental Approvals. While providing the Installation Work, Energy Services, and System Operations, Provider shall obtain and maintain and secure all Governmental Approvals required to be obtained and maintained and secured by Provider and to enable Provider to perform such obligations. (c) Health and Safety. Provider shall take all necessary and reasonable safety precautions with respect to providing the Installation Work, Energy Services, and System Operations that shall comply with all Applicable Laws pertaining to the health and safety of persons and real and personal property. All work shall be performed by licensed professionals, as may be required by Applicable Law, and in accordance with such methods, acts, guidelines, standards and criteria reasonably accepted or followed by a majority of System integrators in the United States. (d) Liens. Other than a Financing Party’s security interest in or ownership of the System, Provider shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics’, labor or materialman’s lien), charge, security interest, encumbrance or claim of any nature (“Liens”) on or with respect to the Premises or any interest therein, in each case to the extent such Lien arises from or is related to Provider’s performance or non-performance of its obligations hereunder. If Provider breaches its obligations under this Section, it shall (i) immediately notify Purchaser in writing, (ii) promptly cause such Lien to be discharged and released of record without cost to Purchaser, and (iii) defend and indemnify Purchaser against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien; provided, Provider shall have the right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove such Lien from title to the Premises or that assure that any adverse judgment with respect to such Lien will be paid without affecting title to the Premises. (e) System Condition. Provider shall take all actions reasonably necessary, including but not limited to repair and maintenance, to ensure that the System is capable of operating at a commercially reasonable continuous rate throughout the Term.
(f) Environmental Indemnification by Provider. Provider shall indemnify, hold harmless and defend Purchaser Indemnified Parties from and against all claims, pay costs and expenses, and conduct all actions required under Environmental Laws in connection with the deposit, release, or spill of any Hazardous Materials at, on, above, below or near the Premises by Provider. In no event shall Provider be responsible for the existence of any Hazardous Materials at the Premises prior to the Effective Date. Provider shall promptly notify Purchaser if it becomes aware of any Hazardous Materials, or any deposit, spill, or release of any Hazardous Materials at, on, above, below or near the Premises.
(g) Production Data. Provider shall provide Purchaser with access to System production data in electronic format, such as tabular Excel or csv with each production unit in a separate cell. Production data could be delivered monthly or by granting Purchaser access to a web portal.

7.2 Purchaser’s Covenants. Purchaser covenants and agrees as follows:

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(a) Notice of Damage or Emergency. Purchaser shall (i) promptly notify Provider if it becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System, (ii) immediately notify Provider it becomes aware of any event or circumstance that poses an imminent risk to human health, the environment, the System or the Premises. In the event of damage to Purchaser’s premises caused by, or as the result of, the System, Provider shall, at its sole cost, repair said premises to the condition existing prior to such damage.
(b) Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer to exist any Liens on or with respect to the System or any interest therein. If Purchaser breaches its obligations under this Section, it shall immediately notify Provider in writing, shall promptly cause such Lien to be discharged and released of record without cost to Provider, and shall indemnify Provider against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien. (c) Consents and Approvals. To the extent that only Purchaser is authorized to request, obtain or issue any necessary approvals, Governmental Approvals, rebates or other financial incentives, Purchaser shall cooperate with Provider to obtain or issue such approvals, Governmental Approvals, rebates or other financial incentives in the name of Provider. Purchaser shall provide to Provider copies of all Governmental Approvals and CCRs applicable to the Premises, other than those obtained by Provider or to which Provider is a party. (d) Access to Premises, Grant of License.
(i) Purchaser hereby grants to Provider a revocable non-exclusive license coterminous with the Term containing all the rights necessary for Provider to use and occupy portions of the Premises for the installation, operation, maintenance and removal of the System pursuant to the terms of this Agreement, including ingress and egress rights to the Premises for Provider and its employees, contractors and subcontractors and access to electrical panels and conduits to interconnect or disconnect the System with the Premises’ electrical wiring; provided, with respect to Provider’s access to the Site, such license shall be subject to conditions or limitations for the protection of minor students that are imposed generally on commercial contractors by Purchaser or by Applicable Law. If Provider’s financing structure requires that Purchaser enter into a license agreement directly with Financing Party, Provider shall enter into such an agreement which shall be in a form set forth by Provider and which contain substantially the same rights as set forth in this Section 7.2(d). (ii) Regardless of whether Purchaser is owner of the Premises or leases the Premises from a landlord, Purchaser hereby covenants that (x) Provider shall have access to the Premises and System during the Term of this Agreement and for so long as needed after termination to remove the System pursuant to the applicable provisions herein, and (y) neither Purchaser nor Purchaser’s landlord will interfere or handle any Provider equipment or the System without written authorization from Provider; provided, Purchaser and Purchaser’s landlord shall at all times have access to and the right to observe the Installation Work or System removal. (iii) If Purchaser is a lessee of the Premises, Purchaser further covenants that it shall deliver to Provider, a license from Purchaser’s landlord in substantially the form attached hereto as Exhibit A of these General Conditions. (e) Temporary storage space during installation or removal. Purchaser shall use commercially reasonable efforts to provide for sufficient space at the Premises for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the Installation Work, System Operations or System removal, and access for rigging and material handling. Subject to Purchaser’s indemnity obligations set forth herein, Purchaser shall have no liability whatsoever in connection with personal property or equipment of Provider or Provider’s employees, consultants, contractors, subcontractors, and vendors. Provider shall be solely responsible for the safety and security of Provider’s employees, consultants, contractors, subcontractors, and vendors, as well as any personal property, including but not limited to, any tools, materials, and equipment of such parties used or stored on the Premises. (f) Environmental Documents. On or before the Effective Date of each Special Conditions Purchaser shall identify and set forth in each Special Conditions and unless previously delivered, Purchaser shall, to the extent the same are known and in the possession or control of Purchaser, deliver to Provider copies of all reports, agreements, plans, inspections, tests, studies or other materials concerning the presence of Hazardous Materials at, from or on the

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Premises including, but not limited to, soil reports, design drawings, environmental reports, sampling results or other documents relating to Hazardous Materials that have been identified or may be present on, in or under the Premises (collectively, the “Environmental Documents”). Thereafter, Purchaser agrees to provide copies of any new Environmental Documents within ten (10) days of receipt of same. Purchaser hereby agrees to furnish such other documents in Purchaser’s possession or control with respect to Governmental Approvals compliance with Environmental Law or Hazardous Materials with respect to the Premises as may be reasonably requested by Provider from time to time.
(g) Compliance with Environmental Laws. Notwithstanding anything to the contrary in this Agreement, Purchaser shall operate and maintain the Premises to comply with the requirements of all applicable Environmental Laws that limit or govern the conditions or uses of the Premises, without impairing or interfering with Provider’s construction, operation and ownership of the System or occupancy of the Premises. In no event shall Provider have any liability or obligation with respect to any Pre-existing Environmental Condition on, in or under the Premises, or operations or maintenance of the Premises required to comply with Environmental Laws with respect to Pre-Existing Environmental Conditions.
(h) Environmental Indemnification by Purchaser. Purchaser shall indemnify, hold harmless and defend Provider from and against all claims, pay costs and expenses, and conduct all actions required under Environmental Laws in connection with (i) the existence at, on, above, below or near the Premises of any Pre-existing Environmental Conditions, and (ii) any Hazardous Materials released, spilled or deposited at, on above or below the Premises by the Purchaser. Purchaser shall promptly notify Provider if it becomes aware of any Hazardous Materials, or any deposit, spill, or release of any Hazardous Materials at, on, above, below or near the Premises.

8. REPRESENTATIONS & WARRANTIES.

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

8.2 Representations of Purchaser. Purchaser represents and warrants to Provider as of the Effective Date that:

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(a) Purchaser acknowledges that it has been advised that part of the collateral securing the financial arrangements for the System may be the granting of a first priority perfected security interest (the “Security Interest”) in the System to a Financing Party;
(b) To Purchaser’s knowledge, the granting of the Security Interest will not violate any term or condition of any covenant, restriction, lien, financing agreement, or security agreement affecting the Premises; (c) Purchaser is aware of no existing lease, mortgage, security interest or other interest in or lien upon the Premises that could attach to the System as an interest adverse to Provider’s Financing Party’s Security Interest therein;
(d) To Purchaser’s knowledge, there exists no event or condition which constitutes a default, or would, with the giving of notice or lapse of time, constitute a default under this Agreement; (e) To Purchaser’s knowledge, Purchaser has identified and disclosed to Provider in the Special Conditions (i) all Environmental Documents in Purchaser’s possession or control, (ii) all CCRs, Governmental Approvals or other restrictions imposed under Applicable Laws with respect to the use of the Premises that could affect the construction and operation of the System within Purchaser’s possession or control, and (iii) all environmental reports, studies, data or other information relating to the use of the Premises by Provider within the Purchaser’s possession or control;
(f) To Purchaser’s knowledge, the Premises is in compliance with Environmental Laws, and that Purchaser holds and is in compliance with all Governmental Approvals required for the ownership and any current operations or activities conducted at the Premises; and (g) Purchaser has identified in the Special Conditions and delivered to Provider all material reports and information concerning the presence or release of Hazardous Materials on, in or under the Premises in Purchaser’s possession or control.

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

8.3 EXCLUSION OF WARRANTIES. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY

SET FORTH HEREIN, THE INSTALLATION WORK, SYSTEM OPERATIONS, AND ENERGY SERVICES PROVIDED BY PROVIDER TO PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE “AS-IS WHERE-IS.” NO OTHER WARRANTY TO PURCHASER OR ANY OTHER PERSON, WHETHER EXPRESS,

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

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

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

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

9. TAXES AND GOVERNMENTAL FEES.

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

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

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10. FORCE MAJEURE.

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

10.2 Excused Performance. Except as otherwise specifically provided in this Agreement, neither Party shall be considered in breach of this Agreement or liable for any delay or failure to comply with this Agreement (other than the failure to pay amounts due hereunder), if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event; provided, the Party claiming relief under this Article 10 shall as soon as practicable after becoming aware of the circumstances constituting Force Majeure (i) notify the other Party in writing of the existence of the Force Majeure Event, (ii) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other Party in writing of the cessation or termination of said Force Majeure Event and (iv) resume performance of its obligations hereunder as soon as practicable thereafter; provided, Purchaser shall not be excused from making any payments and paying any unpaid amounts due in respect of Energy Services delivered to Purchaser prior to the Force Majeure Event performance interruption. Subject to Section 10.3 below, the Parties agree that to the extent permitted by Applicable Law, the Term of this Agreement shall extend on a day for day basis for every day in which the occurrence of a Force Majeure Event has affected either Party’s performance of its obligations hereunder.

10.3 Termination in Consequence of Force Majeure Event. If a Force Majeure Event shall have occurred that has affected Provider’s performance of its obligations hereunder and that has continued for a continuous period of one hundred eighty (180) days, then either Party shall be entitled to terminate this Agreement upon ninety (90) days’ prior written notice to the other Party. If at the end of such ninety (90) day period such Force Majeure Event shall still continue, this Agreement shall automatically terminate. Upon such termination for a Force Majeure Event, neither Party shall have any liability to the other (other than any such liabilities that have accrued prior to such termination, including but not limited to Provider’s obligations to remove the System and restore the Premises as set forth herein), and Purchaser shall have no obligation to pay the Early Termination Fee.

11. DEFAULT.

11.1 Provider Defaults and Purchaser Remedies.
(a) Provider Defaults. The following events shall be defaults with respect to Provider (each, a “Provider Default”):
(i) A Bankruptcy Event shall have occurred with respect to Provider; (ii) Provider fails to pay Purchaser any undisputed amount owed under the Agreement within thirty (30) days from receipt of notice from Purchaser of such past due amount; and (iii) Provider breaches any material representation, covenant or other term of this Agreement and (A) if such breach can be cured within thirty (30) days after Purchaser’s written notice of such breach and Provider

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fails to so cure, or (B) Provider fails to commence and pursue a cure within such thirty (30) day period if a longer cure period is needed.
(b) Purchaser’s Remedies. If a Provider Default described in Section 11.1(a) has occurred and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Purchaser may terminate this Agreement with no penalty or liability whatsoever, including but not limited to the Early Termination Fee, and exercise any other remedy it may have at law or equity or under this Agreement.

11.2 Purchaser Defaults and Provider’s Remedies.
(a) Purchaser Default. The following events shall be defaults with respect to Purchaser (each, a “Purchaser Default”):
(i) A Bankruptcy Event shall have occurred with respect to Purchaser; (ii) Purchaser breaches any material representation, covenant or other term of this Agreement if (A) such breach can be cured within thirty (30) days after Provider’s notice of such breach and Purchaser fails to so cure, or (B) Purchaser fails to commence and pursue said cure within such thirty (30) day period if a longer cure period is needed, such longer cure period not to exceed ninety (90) days; and (iii) Purchaser fails to pay Provider any undisputed amount due Provider under this Agreement within thirty (30) days from receipt of notice from Provider of such past due amount. (b) Provider’s Remedies. If a Purchaser Default described in Section 11.2(a) has occurred and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Provider may terminate this Agreement and upon such termination, (A) Provider shall be entitled to receive from Purchaser the Early Termination Fee set forth on Schedule 3, Column 1 of the Special Conditions, and (B) Provider may exercise any other remedy it may have at law or equity or under this Agreement.

11.3 Cross Default. With respect to any Systems that are co-located at the same Premises, if a Party defaults under this Agreement, it shall also be a default of such Party under the Agreement(s) related to the other colocated System(s); provided, a cure of the original default shall be a cure of any such cross default. In the event of a cross default, the non-defaulting Party shall be entitled to exercises its rights with respect to this Agreement and all such other Agreements, including terminating all such Agreements and, if Provider terminates one or more Agreements due to a Purchaser Default, Purchaser shall pay the Early Termination Fees for all such terminated Agreements.

11.4 Removal of System. Upon any termination of this Agreement pursuant to this Article 11 and payment of the Early Termination Fee (if applicable), Provider will remove the System pursuant to Section 2.4 hereof.

12. LIMITATIONS OF LIABILITY.

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

12.2 A Party’s maximum liability to the other Party under this Agreement, shall be limited to the aggregate Estimated Remaining Payments as of the date of the events giving rise to such liability, provided, the limits of liability under this Section 12.2 shall not apply with respect to (i) indemnity obligations hereunder in respect of personal injury or environmental claims and (ii) any obligation of Purchaser to pay Energy Service Payments, the Early Termination Fee or the Option Price, (iii) any obligation of Provider to pay for Lost Savings in accordance with the Special Conditions and (iv) if applicable, any obligation of Provider to remove the System and restore the Premises in accordance with Section 2.4.

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13. ASSIGNMENT.

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

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

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

13.3 Assignment by Purchaser. Purchaser shall not assign this Agreement or any interest therein, without Provider’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any Assignment by Purchaser without the prior written consent of Provider shall not release Purchaser of its obligations hereunder.

14. NOTICES.

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

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

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

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15. CONFIDENTIALITY.

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

15.2 Permitted Disclosures. Notwithstanding any other provision herein, neither Party shall be required to hold confidential any information that:
(a) Becomes publicly available other than through the receiving Party; (b) Is required to be disclosed by a Governmental Authority, under Applicable Law, including but not limited to the California Public Records Act, or pursuant to a validly issued subpoena or required filing, but a receiving Party subject to any such requirement shall promptly notify the disclosing Party of such requirement; (c) Is independently developed by the receiving Party; or (d) Becomes available to the receiving Party without restriction from a third party under no obligation of confidentiality.

15.3 Goodwill and Publicity. Neither Party shall use the name, trade name, service mark, or trademark of the other Party in any promotional or advertising material without the prior written consent of such other Party.

The Parties shall coordinate and cooperate with each other when making public announcements related to the execution and existence of this Agreement, and each Party shall have the right to promptly review, comment upon, and approve any publicity materials, press releases, or other public statements by the other Party that refer to, or that describe any aspect of, this Agreement; provided, no such publicity releases or other public statements (except for filings or other statements or releases as may be required by Applicable Law) shall be made by either Party without the prior written consent of the other Party. At no time will either Party acquire any rights whatsoever to any trademark, trade name, service mark, logo or other intellectual property right belonging to the other Party.

Notwithstanding the foregoing, Purchaser agrees that Provider may, at its sole discretion, take photographs of the installation process of the System and/or the completed System, and Provider shall be permitted to use such images (regardless of media) in its marketing efforts, including but not limited to use in brochures, advertisements, websites and news outlet or press release articles. The images shall not include any identifying information without Purchaser permission and the installation site shall not be disclosed beyond the type of establishment (such as “Retail Store,” “Distribution Center,” or such other general terms), the city and state.

15.4 Enforcement of Confidentiality Obligation. Each Party agrees that the disclosing Party would be irreparably injured by a breach of this Article 15 by the receiving Party or its Representatives or other Person to whom

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the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Article 15. To the fullest extent permitted by Applicable Law, such remedies shall not be deemed to be the exclusive remedies for a breach of this Article 15, but shall be in addition to all other remedies available at law or in equity.

16. INDEMNITY.

16.1 Provider’s Indemnity. Subject to Article 12, Provider agrees that it shall indemnify and hold harmless Purchaser, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the “Purchaser Indemnified Parties”) from and against any and all Losses incurred by Purchaser Indemnified Parties to the extent arising from or out of the following: any claim for or arising out of any injury to or death of any Person or loss or damage to property of any Person to the extent arising out of Provider’s negligence or willful misconduct. Provider shall not, however, be required to reimburse or indemnify any Purchaser Indemnified Party for any Loss to the extent such Loss is due to the negligence or willful misconduct of any Purchaser Indemnified Party.

16.2 Purchaser’s Indemnity. Subject to Article 12 and to the extent permitted by Applicable Law, Purchaser agrees that it shall indemnify and hold harmless Provider, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the “Provider Indemnified Parties”) from and against any and all Losses incurred by Provider Indemnified Parties to the extent arising from or out of any claim for or arising out of any injury to or death of any Person or loss or damage to property of any Person to the extent arising out of Purchaser’s negligence or willful misconduct. Purchaser shall not, however, be required to reimburse or indemnify any Provider Indemnified Party for any Loss to the extent such Loss is due to the negligence or willful misconduct of any Provider Indemnified Party.

17. INSURANCE.

17.1 Generally. Purchaser and Provider shall each maintain the following insurance coverages in full force and effect throughout the Term either through insurance policies or acceptable self-insured retentions: (a) Workers’ Compensation Insurance as may be from time to time required under applicable federal and state law, (b) Commercial General Liability Insurance with limits of not less than $2,000,000 general aggregate, $1,000,000 per occurrence, and (c) automobile insurance with commercially reasonable coverages and limits. Additionally, Provider shall carry adequate property loss insurance on the System which need not be covered by Purchaser’s property coverage. The amount and terms of insurance coverage will be determined at Provider’s sole discretion.

17.2 Certificates of Insurance. Each Party, upon request, shall furnish current certificates evidencing that the insurance required under Section 17.1 is being maintained. Each Party’s insurance policy provided hereunder shall contain a provision whereby the insured agrees to give the other Party thirty (30) days’ written notice before the insurance is cancelled or materially altered.

17.3 Additional Insureds. Each Party’s insurance policy shall be written on an occurrence basis and shall include the other Party as an additional insured as its interest may appear.

17.4 Insurer Qualifications. All insurance maintained hereunder shall be maintained with companies either rated no less than A- as to Policy Holder’s Rating in the current edition of Best’s Insurance Guide (or with an association of companies each of the members of which are so rated) or having a parent company’s debt to policyholder surplus ratio of 1:1.

17.5 Additional Terms. Required insurance coverages shall not prohibit the Provider from waiving the right of subrogation prior to a loss. Provider shall waive all subrogation rights against the indemnified parties. Provider shall ensure that it carries adequate property loss insurance on the System, which need not be covered by Purchaser’s property or other insurance coverage. Provider shall further ensure that any qualified contractor purchases and maintains insurance of the types and limits of liability, containing the endorsements, as would ordinarily and reasonably be expected by an experienced contractor undertaking the type of work contemplated by this Agreement

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with respect to the potential liability for loss or damage under this Agreement. Provider shall further ensure that any qualified contractor’s insurance lists Purchaser as an additional insured.

18. MISCELLANEOUS.

18.1 Integration; Exhibits. The Agreement, together with the Exhibits and Schedules attached thereto or incorporated by reference, constitute the entire agreement and understanding between Provider and Purchaser with respect to the subject matter thereof and supersedes all prior agreements relating to the subject matter hereof which are of no further force or effect. The Exhibits and Schedules attached to this Agreement, including these General Terms and Conditions as incorporated by reference, are integral parts of this Agreement and are an express part of this Agreement. In the event of a conflict between the provisions of these General Terms and Conditions and any applicable Special Conditions, the provisions of the Special Conditions shall prevail.

18.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Provider and Purchaser.

18.3 Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement the normal standards of performance within the Energy Services industry in the relevant market shall be the measure of whether a Party’s performance is reasonable and timely. Unless expressly defined herein, words having well-known technical or trade meanings shall be so construed.

18.4 Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy of Provider or Purchaser shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not.

18.5 [Reserved].

18.6 Limited Effect of Waiver. The failure of Provider or Purchaser to enforce any of the provisions of this Agreement, or the waiver thereof, shall not be construed as a general waiver or relinquishment on its part of any such provision, in any other instance or of any other provision in any instance.

18.7 Survival. The obligations under Section 2.4 (Removal of System), Section 7.1 (Provider Covenants), Sections 7.2(d), (e), (f), (g) and (h) (Purchaser Covenants), Section 8.3 (Exclusion of Warranties), Article 9 (Taxes and Governmental Fees), Article 12 (Limitation of Liability), Article 14 (Notices), Article 15 (Confidentiality), Article 18 (Miscellaneous), all payment or indemnification obligations accrued prior to termination of this Agreement, or pursuant to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement shall survive the expiration or termination of this Agreement for any reason.

18.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to any choice of law principles. The Parties agree that the courts of the State of California and the Federal Courts sitting therein shall have jurisdiction over any action or proceeding arising under this Agreement to the fullest extent permitted by Applicable Law. The Parties waive to the fullest extent permitted by Applicable Law any objection it may have to the laying of venue of any action or proceeding under this Agreement any courts described in this Section 18.8.

18.9 Severability. If any term, covenant or condition in this Agreement shall, to any extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by Applicable Law and, if appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect to the underlying intent of the Parties and to the intended economic benefits of the Parties.

18.10 Relation of the Parties. The relationship between Provider and Purchaser shall not be that of partners, agents, or joint ventures for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including federal income tax purposes.

Provider and Purchaser, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk.

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18.11 Successors and Assigns. This Agreement and the rights and obligations under this Agreement shall be binding upon and shall inure to the benefit of Provider and Purchaser and their respective successors and permitted assigns.

18.12 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.

18.13 Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic, “pdf” delivery of the signature page of a counterpart to the other Party.

18.14 Liquidated Damages Not Penalty. Purchaser acknowledges that the Early Termination Fee constitutes liquidated damages, and not penalties, in lieu of Provider’s actual damages resulting from the early termination of this Agreement. Purchaser further acknowledges that Provider’s actual damages may be impractical and difficult to accurately ascertain, and in accordance with Purchaser’s rights and obligations under this Agreement, the Early Termination Fee constitutes fair and reasonable damages to be borne by Purchaser in lieu of Provider’s actual damages.
[Remainder of page intentionally left blank.]

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These General Terms and Conditions are witnessed and acknowledged by ForeFront Power and Purchaser below.

Neither ForeFront Power nor Purchaser shall have any obligations or liability resulting from its witnessing and acknowledging these General Terms and Conditions.
“FOREFRONT POWER”: FFP BTM SOLAR, LLC
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
Date: ________________________________________
“PURCHASER”: CITY OF YORBA LINDA
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
Date: ________________________________________

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Exhibit A
of General Terms and Conditions
[PURCHASER’S LETTERHEAD]
[Landlord’s Address]
Attn: Authorized Representative
Re: Proposed Energy System Installation at [Address of Premises]. Lease dated [ ] between [PURCHASER] and [LANDLORD] (the “Lease”)
Dear Authorized Representative:

As has been discussed with you, [PURCHASER] (“Purchaser”) and [FFP Entity], LLC (“Provider”) have entered into an Energy Services Agreement, pursuant to which Provider will install, finance, operate, and maintain a [solar photovoltaic] [battery storage] system at the above-referenced premises which [PURCHASER] leases from you pursuant to the Lease. By signing below and returning this letter to us, you confirm that:

1. The [solar photovoltaic] [battery storage] system and the renewable energy (including environmental credits and related attributes) produced by the system are personal property, and shall not be considered the property (personal or otherwise) of [LANDLORD] upon installation of the system at the premises. Landlord consents to the filing by Provider of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises.

2. Provider or its designee (including finance providers) shall have the right without cost to access the premises in order to install, operate, inspect, maintain, and remove the [solar photovoltaic] [battery storage] system. [LANDLORD] will not charge Purchaser or Provider any rent for such right to access the premises.

3. [LANDLORD] has been advised that the finance providers for the [solar photovoltaic] [battery storage] system have a first priority perfected security interest in the system. Provider and the finance providers for the [solar photovoltaic] [battery storage] system (including any system lessor or other lender) are intended beneficiaries of [LANDLORD]’s agreements in this letter.

4. [LANDLORD] will not take any action inconsistent with the foregoing.

We thank you for your consideration of this opportunity and we look forward to working with you in our environmental campaign to increase the utilization of clean, renewal energy resources.

Very truly yours,
[PURCHASER]
By:______________________________
Name:

Title:

Acknowledged and agreed by:
[LANDLORD]
By: ________________________
Name:

Title:

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Exhibit B
of General Terms and Conditions
Certain Agreements for the Benefit of the Financing Parties Purchaser acknowledges that Provider will be receiving financing accommodations from one or more Financing Parties and that Provider may sell or assign the System or this Agreement and/or may secure Provider’s obligations by, among other collateral, a pledge or collateral assignment of this Agreement and a first security interest in the System. In order to facilitate such necessary sale, conveyance, or financing, and with respect to any such Financing Party, Purchaser agrees as follows:
(a) Consent to Collateral Assignment. Purchaser consents to either the assignment, sale or conveyance to a Financing Party or the collateral assignment by Provider to a Financing Party, of Provider’s right, title and interest in and to this Agreement.
(b) Notices of Default. Purchaser will deliver to the Financing Party, concurrently with delivery thereof to Provider, a copy of each notice of default given by Purchaser under this Agreement, inclusive of a reasonable description of Provider default. No such notice will be effective absent delivery to the Financing Party. Purchaser will not mutually agree with Provider to cancel, modify or terminate this Agreement without the written consent of the Financing Party, however, this provision shall not be interpreted to limit any termination rights of either Party as set forth in the Agreement.
(c) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement:
i. The Financing Party shall be entitled to exercise, in the place and stead of Provider, any and all rights and remedies of Provider under this Agreement in accordance with the terms of this Agreement and only in the event of Provider’s or Purchaser’s default. The Financing Party shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System. ii. The Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of Provider thereunder or cause to be cured any default of Provider thereunder in the time and manner provided by the terms of this Agreement. Nothing herein requires the Financing Party to cure any default of Provider under this Agreement or (unless the Financing Party has succeeded to Provider’s interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement, but Purchaser hereby gives it the option to do so.
iii. Upon the exercise of remedies under its security interest in the System, including any sale thereof by the Financing Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Financing Party (or any assignee of the Financing Party) in lieu thereof, the Financing Party shall give notice to Purchaser of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement.
iv. Upon any default not reasonably susceptible to cure by a Finance Party, including, without limitation, rejection or other termination of this Agreement pursuant to any process undertaken with respect to Provider under the United States Bankruptcy Code, at the request of the Financing Party made within ninety (90) days of such default, Purchaser shall enter into a new agreement with the Financing Party or its designee having the same terms and conditions as this Agreement.
(d) Right to Cure.
i. Purchaser will not exercise any right to terminate or suspend this Agreement unless it shall have given the Financing Party prior written notice by sending notice to the Financing Party (at the address provided by Provider) of its intent to terminate or suspend this Agreement, specifying the condition giving rise to such right, and the Financing Party shall not have caused to be cured the condition giving rise to the right of termination or suspension within thirty (30) days after such notice or (if longer) the periods provided for in this Agreement. The Parties agree that the cure rights described herein are in addition to and apply and commence following the expiration of any notice

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and cure period applicable to Provider The Parties respective obligations will otherwise remain in effect during any cure period; provided, if such Provider default reasonably cannot be cured by the Financing Party within such period and the Financing Party commences and continuously pursues cure of such default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed additional ninety (90) days.
ii. If the Financing Party (including any purchaser or transferee), pursuant to an exercise of remedies by the Financing Party, shall acquire title to or control of Provider’s assets and shall, within the time periods described in Sub-section (c)(i). above, cure all defaults under this Agreement existing as of the date of such change in title or control in the manner required by this Agreement and which are capable of cure by a third person or entity, then such person or entity shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect.

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Exhibit C
of General Conditions
Requirements Applicable to the Installation Work
Section B.1 Prohibition Against Use of Tobacco. All properties and facilities owned, leased or operated by the Purchaser are tobacco-free work places. No person on, at or in any Purchaser-controlled property or facility, including, without limitation, the Premises, may smoke, chew or otherwise use tobacco products. Provider shall be responsible for: (i) informing any and all persons present on or at the Premises on account of the Installation Work about the Purchaser’s tobacco-free policy; and (ii) strictly enforcing such policy with respect to the Premises. The Purchaser, Provider, and each Subcontractor shall require that any person present on or at the Premises on account of the Installation Work who violates such policy must permanently leave the Premises, and shall prohibit such person from thereafter being present or performing any of the Installation Work on or at the Premises.

Section B.2 Prohibition Against Use of Drugs.
(a) Purchaser Drug-Free Policy. All properties and facilities owned, leased or operated by the Purchaser are drug-free work places. No person on, at or in any Purchaser-controlled property or facility, including, without limitation, the Premises, may: (i) engage in the unlawful manufacture, dispensation, possession or use, including being under the influence, of any controlled substance, (ii) possess or use any alcoholic beverage, or (iii) use any substance which may cause significant impairment of normal abilities. Provider shall be responsible for: (i) informing any and all persons present on or at the Premises on account of the Installation Work about the Purchaser’s drug-free policy; and (ii) strictly enforcing such policy with respect to the Premises. The Purchaser, Provider, and each Subcontractor shall require that any person present on or at the Premises on account of the Installation Work who violates such policy must permanently leave the Premises, and shall prohibit such person from thereafter being present or performing any of the Installation Work on or at the Premises.
(b) Drug-Free Workplace Certification. Provider is hereby made subject to the requirements of Government Code Sections 8350 et seq., the Drug-Free Workplace Act of 1990.

Section B.3 Compliance with Labor Requirements. The Installation Work is a “public works” project as defined in Section 1720 of the California Labor Code (“Labor Code”) and made applicable pursuant to Section 1720.6 of the Labor Code. Therefore, the Installation Work is subject to applicable provisions of Part 7, Chapter 1, of the Labor Code and Title 8 of the California Code of Regulations, Section 16000 et seq. (collectively, “Labor Law”). Provider acknowledges that, as provided by Senate Bill 854 (Stats. 2014, Ch. 28), the Project is subject to labor compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”).

Section B.4 Compliance with Labor Code Requirements. Provider must be, and shall be deemed and construed to be, aware of and understand the requirements of the Labor Law that require the payment of prevailing wage rates and the performance of other requirements on public works projects. Provider, at no additional cost to the Purchaser, must: (i) comply with any and all applicable Labor Law requirements, including, without limitation, requirements for payment of prevailing wage rates, inspection and submittal (electronically, as required) of payroll records, interview(s) of workers, et cetera; (ii) ensure that its Subcontractors are aware of and comply with the Labor Law requirements; (iii) in connection with Labor Law compliance matters, cooperate with the DIR, the Purchaser and other entities with competent jurisdiction; and (iv) post all job-site notices required by law in connection with the Installation Work, including, without limitation, postings required by DIR regulations. A Subcontractor that has been debarred in accordance with the Labor Code, including, without limitation, pursuant to Sections 1777.1 or 1777.7, is not eligible to bid on, perform, or contract to perform any portion of the Installation Work. Wage rates for the Installation Work shall be in accordance with the general prevailing rates of per-diem wages determined by the Director of Industrial Relations pursuant to Labor Code Section 1770. The following Labor Code sections are by this reference incorporated into and are a fully operative part of the Contract, and Provider shall be responsible for compliance therewith:
(a) Section 1735: Anti-Discrimination Requirements;

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(b) Section 1775: Penalty for Prevailing Wage Rate Violations; (c) Section 1776: Payroll Records;
(d) Sections 1777.5,1777.6 and 1777.7: Apprenticeship Requirements; (e) Sections 1810 through 1812: Working Hour Restrictions; (f) Sections 1813 and 1814: Penalty for Failure to Pay Overtime; and (g) Section 1815: Overtime Pay.

Section B.5 Requirements for Payroll Records. Provider must comply with all applicable provisions of Labor Code Sections 1776 and 1812, which relate to preparing and maintaining accurate payroll records, and making such payroll records available for review and copying by the Purchaser, the DIR Division of Labor Standards Enforcement, and the DIR Division of Apprenticeship Standards. The payroll records must be certified and made available as required by Labor Code Section 1776.

Section B.6 Contractor Registration. On and after March 1, 2015, no contractor may bid on a public works project unless the contractor is, and no subcontractor may be listed in any bid for a public works project unless the subcontractor is, currently registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. On and after April 1, 2015, no contractor or subcontractor may be awarded a contract for work on a public works project, or may perform any work on a public works project, unless the contractor or subcontractor is currently registered with the DIR and qualified to perform public work pursuant to Labor Code Section 1725.5. It is not a violation of Labor Code Section 1725.5 for an unregistered contractor to submit a bid authorized by Business and Professions Code Section 7029.1 or Public Contract Code Section 20103.5, if the contractor is registered at the time the contract is awarded.

Section B.7 Permits and Licenses. Without limiting anything set forth in Section B.7 of this Exhibit C, Provider, its Subcontractors, and all of their respective employees and agents: (i) shall secure and maintain in force at all times during the performance of the Installation Work such licenses and permits as are required by law; and (ii) shall comply with all federal and State, and County laws and regulations, and other governmental requirements applicable to the System or the Installation Work. Provider or its subcontractors shall obtain and pay for all permits and licenses required for the performance of, or necessary in connection with, the Installation Work, and shall give all necessary notices and deliver all necessary certificates to the Purchaser, and shall pay all royalties and license fees arising from the use of any material, machine, method or process used in performing the Installation Work. Provider shall be solely responsible for all charges, assessments and fees payable in connection with any such licenses, permits, materials, machines, methods, and processes.

Section B.8 Protection of Minor-Aged Students. Provider, in conformance with Education Code Section 45125.1, shall require and be responsible for ensuring compliance by each and every person who will be on or at the Premises in connection with the construction, maintenance, operation or other purposes related to the System with all California Department of Justice guidelines and requirements relating to fingerprinting and criminal-history background checks, regardless of whether Section 45125.1 otherwise by its terms would apply to any such activities.

In the event Education Code Section 45125.1 is repealed or superseded, Provider, following receipt of written notice from the Purchaser, shall comply with such successor or other requirements as determined by the Purchaser in its reasonable discretion. The Purchaser, in its discretion, may exempt in writing any person(s) from the foregoing requirements if Provider makes alternative arrangements for supervision of such person(s) that are acceptable to the Purchaser in its sole discretion.

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CONFIDENTIAL AND PROPRIETARY
ENERGY SERVICES AGREEMENT – SOLAR
Community Center
This Energy Services Agreement (“Agreement”) is made and entered into as of this ____ day of ______, 2023 (or, if later, the latest date of a Party’s execution and delivery to the other Party of this Agreement, the “Effective Date”), between FFP BTM SOLAR, LLC, a Delaware limited liability company (“Provider”), and City of Yorba Linda (“Purchaser”; and, together with Provider, each, a “Party” and together, the “Parties”).

RECITALS
A. Purchaser desires that Provider install and operate a solar photovoltaic system at the Premises (as hereafter defined) for the purpose of providing Energy Services (as hereafter defined), and Provider is willing to have the Installation Work performed by using one or more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will be installed; B. Provider is in the business of designing, constructing, owning, financing, and operating solar photovoltaic systems for the purpose of selling power generated by the systems to its purchasers; C. California Government Code sections 4217.10 et seq. authorizes a public entity to enter into energy service contracts, facility financing contracts, and related agreements to implement the State’s conservation and alternative energy supply source policy;
D. Purchaser’s governing body has made those findings required by Government Code section 4217.12 that the anticipated cost to the Purchaser for Energy Services provided by the System under this Agreement is expected to be less than the anticipated marginal cost to the Purchaser of electrical energy that would have been consumed by Purchaser in the absence of its purchase of the Energy Services; E. Provider and Purchaser acknowledged those certain General Terms and Conditions of Energy Services Agreement between FFP BTM Solar, LLC and Purchaser dated as of _____, 2023 (“General Terms and Conditions”), which are incorporated by reference as set forth herein; and F. The terms and conditions of this Energy Services Agreement, excluding the General Terms and Conditions incorporated herein, constitute the “Special Conditions” referred to in the General Terms and Conditions.

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

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

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

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

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

4. Privacy. Purchaser acknowledges that the System may collect certain information about Purchaser’s electricity usage and the System performance. Such information may be stored and processed in the United States or any other country in which Provider or its third-party service providers, or its or their respective affiliates, subsidiaries, or service providers, maintain facilities. Purchaser consents to any such transfer of information outside of Purchaser’s country.

5. Milestone Dates.

5.1 The Guaranteed Construction Start Date is 730 days from Effective Date provided that the Local Electric Utility is prepared to begin its construction on any required utility, (distribution or transmission), upgrades, if any. In the event that the Local Electric Utility is not prepared to commence construction on required upgrades, if any are required, Provider will be allowed a day for day extension to the Guaranteed Construction Start Date, as defined in the General Terms and Conditions between the Parties.

5.2 The Guaranteed Commercial Operation Date is: (i) 60 days from the date on which the Local Electric Utility authorizes Provider to schedule an inspection to energize the System after confirming completion of installation, and testing, or (ii) April 14, 2026, whichever occurs later.

6. Purchase Requirement; Energy Services Payment. “Energy Services” means the supply of electrical energy output from the System and any associated reductions in Purchaser’s peak demand from its Local Electric Utility. Purchaser agrees to purchase one hundred percent (100%) of the Energy Services generated by the System and made available by Provider to Purchaser during each relevant month of the Term, up to a maximum of one hundred and ten percent (110%) of Estimated Annual Production, as defined in Schedule

4. While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these Special Conditions, they represent a package of services and benefits.

7. Net Energy Metering.

7.1 The Parties acknowledge that the pricing assumes Net Energy Metering (NEM) 2.0 for the Initial Term. If (i) Provider fails to submit interconnection applications by 4/14/2023, or (ii) prior to the Commercial Operation Date, (A) Provider fails to keep such interconnection applications in good standing such that the System would not be eligible for NEM 2.0, or (B) the CPUC issues a decision such that the System would not be eligible for NEM 2.0 grandfathering for at least twenty (20) years, Purchaser may terminate this Agreement with no liability whatsoever, including, but not limited to the Early Termination Fee. The foregoing shall not apply to the extent Provider’s failure is caused by an act or omission by Purchaser in connection with Provider’s submittal of interconnection applications.

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

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

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

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

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

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

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

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

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

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

11. Distribution Upgrades, Scope and Schedule Changes.

11.1 For any distribution upgrades required or changes to the scope of Installation Work made pursuant to Schedule 2 of the Special Conditions, the Parties may execute an acknowledgment in the form attached hereto as Schedule 9 detailing (i) the description of the distribution upgrades or change in scope of the Installation Work (ii) the amount of the adjustment in the kWh Rate and Early Termination Fee that corresponds to such costs, if any (iii) changes to the Estimated Annual

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CONFIDENTIAL AND PROPRIETARY
4 Production in Schedule IV, if any, and (iv) any change to the Guaranteed Construction Start Date and Guaranteed Commercial Operation Date resulting from such upgrades or scope changes;

11.2 For any day for day extensions made pursuant to Section 2.2(b) of the General Conditions, the Parties may execute an acknowledgment in the form attached hereto as Schedule 9 detailing (i) the circumstances that warrant such day for day extension and (ii) the updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date;

11.3 For any extensions that are not made pursuant to Section 2.2(b) of the General Conditions, Provider may request extensions to the Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date to the extent that Provider can demonstrate to Purchaser that Provider is seeking such extension for good cause. Purchaser in its sole discretion may approve such extension(s) by executing an acknowledgment in the form attached hereto as Schedule 9 on which Provider details (i) the circumstances for which Provider deems good cause for such extension(s), (ii) the actions that Provider is taking to complete the System on a schedule agreeable to the Purchaser and (iii) the updated Guaranteed Construction Start Date and/or Guaranteed Commercial Operation Date.

For the avoidance of doubt, Purchaser designates [Insert Post(s) of person(s) authorized to Execute] as authorized to execute the acknowledgment form attached hereto as Schedule 9 provided the terms of such acknowledgment comply with this Section 11.

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

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

IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, Provider and Purchaser have executed this Agreement as of the Effective Date.

PROVIDER:

FFP BTM SOLAR, LLC
By:___________________________
Name:

Title:

Date:

PURCHASER:

CITY OF YORBA LINDA
By:___________________________
Name:

Title:

Date:

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CONFIDENTIAL AND PROPRIETARY
5 SCHEDULES
I. Schedule 1 – Description of the Premises, System and Subsidy A. Premises 4501 Casa Loma Ave, Yorba Linda, CA 92886
Site diagram attached: X Yes No
B. Description of Solar System
Behind the meter, grid interconnected, canopy mounted solar.

Solar System Size: 383.67 kW (DC) (this is an estimate (and not a guarantee) of the System size; Provider may update the System Size prior to the Commercial Operation Date.)
C. Anticipated Subsidy or
Rebate $0
II. Schedule 2 – Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the “Energy Services Payment”) for the Energy Services provided by the System during each calendar month of the Term equal to the product of (x) Actual Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.

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

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

PPA Rate Table
Term
Year
kWh Rate
($/kWh)
Term
Year
$/kWh Rate
($/kWh)
1 $0.1598 11 $0.1598
2 $0.1598 12 $0.1598
3 $0.1598 13 $0.1598
4 $0.1598 14 $0.1598
5 $0.1598 15 $0.1598
6 $0.1598 16 $0.1598
7 $0.1598 17 $0.1598
8 $0.1598 18 $0.1598
9 $0.1598 19 $0.1598
10 $0.1598 20 $0.1598

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CONFIDENTIAL AND PROPRIETARY
6 Distribution Upgrades. Within thirty (30) days of receipt of notice from the Local Electric Utility of distribution upgrade costs required by the Local Electric Utility, Purchaser will provide written notice (email is acceptable) to Provider of Purchaser’s election of one of the following options:
a. Purchaser will pay the entire amount of such distribution upgrade costs, and the kWh rate as stated in PPA Rate Table will remain unchanged. Purchaser shall make payments directly to the Local Electric Utility in accordance with the requirements of the Local Electric Utility. b. For every $0.01 per watt DC of such distribution upgrade costs, the kWh rate in PPA Rate Table will increase $0.00073 per kWh.

Scope Changes (ITC Eligible): If changes in project scope occur that are eligible for the Federal Investment Tax Credit (such as but not limited to adverse geotechnical conditions) and such additional scope and associated costs go beyond those contemplated as part of the development and implementation of the System in this Agreement, Provider will provide reasonable documentation demonstrating the direct and actual time and materials costs relating to such associated costs, and, within 30 days of receipt of notice from Provider reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of Purchaser’s election of one of the following options:
a. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA Rate Table will remain unchanged.
b. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase $0.00046 per kWh.

Scope Changes (Non-ITC Eligible): If changes in project scope occur that are not eligible for the Federal Investment Tax Credit (such as but not limited to additional required ADA upgrades) and such additional scope and associated costs go beyond those contemplated as part of the development and implementation of the System in this Agreement, Provider will provide reasonable documentation demonstrating the direct and actual time and materials costs relating to such associated costs, and, within 30 days of receipt of notice from Provider reasonably substantiating the associated costs, Purchaser will provide written notice to Provider of Purchaser’s election of one of the following options:
c. Purchaser will pay the entire amount of such associated costs, and the kWh rate as stated in PPA Rate Table will remain unchanged.
d. For every $0.01 per watt DC of such associated costs, the kWh rate in PPA Rate Table will increase $0.00061 per kWh.

If the aggregate of costs set forth above for which Purchaser has elected to pay for via increased kWh Rate exceed the maximum total kWh Rate increase of $0.03294 the Provider has the option to terminate this Agreement and to remove the System pursuant to Section 2.4 of the General Conditions. In no event shall Purchaser be responsible for costs that exceed the stated kWh Rate increase.

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

Early
Termination
Occurs in Year:

Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial Operation
Date)
Column 2
Early Termination Fee
where Purchaser takes
Title to the System
($/Wdc, does not include
costs of removal)
1* $4.93 --
2 $3.83 --
3 $3.61 --
4 $3.47 --
5 $3.36 --
6 $3.26 5th Anniversary $2.76
7 $3.21 6th Anniversary $2.71
8 $3.19 7th Anniversary $2.69
9 $3.16 8th Anniversary $2.66
10 $3.14 9th Anniversary $2.64
11 $3.12 10th Anniversary $2.62
12 $3.09 11th Anniversary $2.59
13 $3.07 12th Anniversary $2.57
14 $3.05 13th Anniversary $2.55
15 $3.03 14th Anniversary $2.53
16 $3.01 15th Anniversary $2.51
17 $2.99 16th Anniversary $2.49
18 $2.97 17th Anniversary $2.47
19 $2.95 18th Anniversary $2.45
20 $2.93 19th Anniversary $2.43
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date.

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

Term
Year
Estimated
Production
(kWh)
Term
Year
Estimated
Production
(kWh)
1 625,121 11 594,559
2 621,996 12 591,586
3 618,886 13 588,628
4 615,791 14 585,685
5 612,712 15 582,757
6 609,649 16 579,843
7 606,600 17 576,944
8 603,567 18 574,059
9 600,550 19 571,189
10 597,547 20 568,333

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CONFIDENTIAL AND PROPRIETARY
8 The values set forth in the table above are estimates (and not guarantees), of approximately how many kWhs are expected to be generated annually by the System assuming the System size indicated in Schedule 1 and based on initial System designs. Provider may deliver to Purchaser an updated table on or about the Commercial Operation Date based on the actual System size and design.

V. Schedule 5 – Notice Information
Purchaser:
[ ]
Provider:

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

1.1. All System structures shall be permitted through the authority having jurisdiction as carports or shade structures, as applicable. Provider shall obtain permits on behalf of the project(s), including building department, structural, grading, and/or electrical permits as required.

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

1.3. Solar arrays will be canopy height of 10' minimum clearance.

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

Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to

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CONFIDENTIAL AND PROPRIETARY
9 install the system and such approval shall not be unreasonably withheld. Purchaser shall be responsible for the costs associated with afforestation or reforestation for any trees removed.

Purchaser can elect to address afforestation or reforestation itself, or require that Provider address it through the change order process described in Schedule 2. Irrigation re-routing shall not be the responsibility of the Provider.

1.5. Provider intends to interconnect the System to Purchaser-owned 480V service conductors at a mutually agreeable location. Provider assumes that the existing conductors and service equipment are sufficiently capable of accepting the additional electrical load of the System.

Provider shall not bear responsibility for any required upgrades to the pre-existing electrical system.

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

1.7. Provider excludes all ADA related work. Should any excluded items for ADA-compliance be required, Provider will work with Purchaser in good faith to determine a mutually-acceptable solution for Purchaser to pay the costs associated with such upgrades, including potentially an increase in the kWh rate in Schedule 2.

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

1.9. Provider agrees to construct the System in no more than 1 construction phase, and that Provider will be allowed ample space, to the extent that it is available, to store material on site.

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

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CONFIDENTIAL AND PROPRIETARY
10 VIII. Schedule 8 – Site Diagram

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CONFIDENTIAL AND PROPRIETARY
11 IX. Schedule 9 – Acknowledgment of Upgrades, Schedule or Scope Change Upgrades, Scope and/or Schedule Change Acknowledgment
This Acknowledgment is made in accordance with Section 10 of the Special Conditions, as defined in that Energy Service Agreement – [Solar], between [PURCHASER] (“Purchaser”) and FFP BTM Solar, LLC (“Provider”), dated [_________, 20___] (the “Agreement”). Upon execution by both Purchaser and Provider, this Acknowledgment shall be effective as of [INSERT DATE] (the “Acknowledgment Effective Date”).

1. Type of Change:

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

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

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

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

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

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

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

Name: Name:

Title: Title:

Page 291 of 606 ends

CONFIDENTIAL AND PROPRIETARY
ENERGY SERVICES AGREEMENT – SOLAR
Public Library
This Energy Services Agreement (“Agreement”) is made and entered into as of this ____ day of ______, 2023 (or, if later, the latest date of a Party’s execution and delivery to the other Party of this Agreement, the “Effective Date”), between FFP BTM SOLAR, LLC, a Delaware limited liability company (“Provider”), and City of Yorba Linda (“Purchaser”; and, together with Provider, each, a “Party” and together, the “Parties”).

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

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

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

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5. Milestone Dates.

4. While the Energy Services are calculated and billed on a per kWh basis as set forth in Schedule 2 of these Special Conditions, they represent a package of services and benefits.

7. Net Energy Metering.

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

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

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

11. Distribution Upgrades, Scope and Schedule Changes.

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

PROVIDER:

FFP BTM SOLAR, LLC
By:___________________________
Name:

Title:

Date:

PURCHASER:

CITY OF YORBA LINDA
By:___________________________
Name:

Title:

Date:

Page 295 of 606 ends

CONFIDENTIAL AND PROPRIETARY
5 SCHEDULES
I. Schedule 1 – Description of the Premises, System and Subsidy A. Premises 4852 Lakeview Ave, Yorba Linda, CA 92886
Site diagram attached: X Yes No
B. Description of Solar System
Behind the meter, grid interconnected, canopy mounted solar.

Solar System Size: 319.73 kW (DC) (this is an estimate (and not a guarantee) of the System size; Provider may update the System Size prior to the Commercial Operation Date.)
C. Anticipated Subsidy or
Rebate $0
II. Schedule 2 – Energy Services Payment
Purchaser shall pay to Provider a monthly payment (the “Energy Services Payment”) for the Energy Services provided by the System during each calendar month of the Term equal to the product of (x) Actual Monthly Production for the System for the relevant month multiplied by (y) the kWh Rate.

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

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

PPA Rate Table
Term
Year
kWh Rate
($/kWh)
Term
Year
$/kWh Rate
($/kWh)
1 $0.1729 11 $0.1729
2 $0.1729 12 $0.1729
3 $0.1729 13 $0.1729
4 $0.1729 14 $0.1729
5 $0.1729 15 $0.1729
6 $0.1729 16 $0.1729
7 $0.1729 17 $0.1729
8 $0.1729 18 $0.1729
9 $0.1729 19 $0.1729
10 $0.1729 20 $0.1729

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If the aggregate of costs set forth above for which Purchaser has elected to pay for via increased kWh Rate exceed the maximum total kWh Rate increase of $0.02773 the Provider has the option to terminate this Agreement and to remove the System pursuant to Section 2.4 of the General Conditions. In no event shall Purchaser be responsible for costs that exceed the stated kWh Rate increase.

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Early
Termination
Occurs in Year:

Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial Operation
Date)
Column 2
Early Termination Fee
where Purchaser takes
Title to the System
($/Wdc, does not include
costs of removal)
1* $5.34 --
2 $4.13 --
3 $3.88 --
4 $3.72 --
5 $3.60 --
6 $3.49 5th Anniversary $2.99
7 $3.42 6th Anniversary $2.92
8 $3.39 7th Anniversary $2.89
9 $3.36 8th Anniversary $2.86
10 $3.33 9th Anniversary $2.83
11 $3.29 10th Anniversary $2.79
12 $3.26 11th Anniversary $2.76
13 $3.23 12th Anniversary $2.73
14 $3.19 13th Anniversary $2.69
15 $3.16 14th Anniversary $2.66
16 $3.12 15th Anniversary $2.62
17 $3.09 16th Anniversary $2.59
18 $3.06 17th Anniversary $2.56
19 $3.02 18th Anniversary $2.52
20 $2.99 19th Anniversary $2.49
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0). *Includes Early Termination prior to the Commercial Operation Date.

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

Term
Year
Estimated
Production
(kWh)
Term
Year
Estimated
Production
(kWh)
1 528,307 11 502,478
2 525,666 12 499,966
3 523,037 13 497,466
4 520,422 14 494,979
5 517,820 15 492,504
6 515,231 16 490,041
7 512,655 17 487,591
8 510,092 18 485,153
9 507,541 19 482,727
10 505,003 20 480,314

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V. Schedule 5 – Notice Information
Purchaser:
[ ]
Provider:

1.3. Solar arrays will be canopy height of 14' minimum clearance.

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

Purchaser shall acknowledge and approve removal of trees identified by Provider, in order to

Page 299 of 606 ends

Provider shall not bear responsibility for any required upgrades to the pre-existing electrical system.

1.9. Provider agrees to construct the System in no more than 1 construction phase, and that Provider will be allowed ample space, to the extent that it is available, to store material on site.

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

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CONFIDENTIAL AND PROPRIETARY
10 VIII. Schedule 8 – Site Diagram

Page 301 of 606 ends

1. Type of Change:

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

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

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

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

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

Name: Name:

Title: Title:

Page 302 of 606 ends

Yorba Linda City CouncilJuly 18, 2023

Yorba Linda City Council
July 18, 2023