16. MOU Cooperative purchasing of power with CountyOFFICE OF THI. CITY MANAGER
Environmental Affairs Division
CUPI*RTINO GREEN
PragrQm
CITY HALL
10300 TORRE A~TENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (4C-8} 777-3223 • FAX: (408) 777-3366
STAFF REPORT
Agenda Item No. 1 ~D Meeting Date: February 2nd, 2010
SUBTECT
Delegate authority to the City Manager to sign thf; Memorandum of Understanding for
Cooperative Purchasing of Power with the Country of Santa Clara if adopted by the County Board
of Supervisors in substantially the same form as the document attached to this report.
BACKGROUND
In 2007, Santa Clara County began collaborating -with Joint Venture Silicon Valley and the
Association of Bay Area Governments (ABAG) t~~ create regional Renewable Power Purchase
agreements {RPPA) for a group purchase. A Solar Power Purchase Agreement (SPPA) is a
financial arrangement in which athird-party developer owns, operates, and maintains the
photovoltaic (PV) system and a host customer agrees to site the system on its roof or elsewhere
on its property and purchases the system's electric; output from the solar services provider for a
predetermined period. Power purchase agreements address many of the traditional barriers to
adoption for organizations looking to install solar systems including high up-front capital costs,
system performance risk and complex design and permitting processes.
Since the summer of 2008, the County has been irsearching solar power purchase agreement
issuances, and developing RFQ and RFP docume:ats as a pilot program for ABAG. The objective
of this effort is multifold; to reduce transaction costs associated with development and
negotiation of RPPA contracts, to obtain favorable pricing and terms through a large scale
regional aggregate purchase, to rapidly diffuse solar and other renewable technologies, to enable
participation in RPPA contracts for small governmental entities that would otherwise be unable
to participate in RPPA financing structures due tc the size of project sites, and to generate local
job growth in the Bay Area.
The County has been leading the pilot program to develop a contract and procurement process
for Renewable Energy Power Purchase Agreements for use by Santa Clara County and other
jurisdictions in the Bay Area. This effort to date has involved;
• Informal meetings with various solar vendors and financiers to gather information about
SPPA best practices,
• Obtaining and comparing existing SPPA do~~uments and structures from other jurisdictions
in California and elsewhere in the nation,
• Creating and issuing an RFQ document to qualify "green power" vendors of solar, fuel cell,
wind, turbine, hybrid, and wave products,
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February 2, 2010
Page 2
• Developing templates for site data collection and gathering site specific information,
• Conducting an informal survey of Joint Venture Climate Change Task Force partners to
determine the level of participatory interest in a collaborative RPPA.
Over 22 jurisdictions in Sarita Clara and San Mateo County have indicated anon-binding interest
in "piggybacking" on Santa Clara County's RPPA effort assuming terms and conditions are
favorable. County staff have evaluated the opportunity of extending the RPPA to cover all types
of renewable power {solar, wind, geothermal, wave, and fuel cell) as this flexibility allows
participating entities to identify the best type of system for their needs. Staff surveyed all
members of the Joint Venture Public Sector Climate Change Initiative and discovered that there
is interest in all types of renewable power. The advantages of partnering are that a larger project
pool may attract more investors and potentially improve the price and terms of the RPPA for
local governments.
Furthermore, the County led an effort to review available financing structures for renewable
energy systems. Three types of financing are common: owned, leased or Power Purchase
Agreement. Each financing structure has advantages and disadvantages:
1. City-Owned -The City would own the solar power generation system. Advantages include
eligibility for incentive funds and ownership of tradeable enussion credits. Disadvantages
include up front capital costs, annual maintenance expenses for approximately 20 years, and
the replacement of inverters between years 10 and 13. Owned systems are generally
considered appropriate for county sites where security and access are restricted.
2. Lease to buy -Advantages include no up-front capital expenses, and long term leases that
allow amortization of costs with the potential for ownership. There is a growing market of
lenders and brokers interested in leasing solar installations.
3. Solar Power Purchase Agreements (SPPA) -This option creates a long term agreement for
the purchase of power generated from the solar installation. Typically SPPA's have 20 year
terms with prices determined through negotiations. In the past several years, local
governments throughout California have funded renewable energy projects through lease to
purchase, and Solar Power Purchase Agreements (SPPA). These types of financing structures
provide the opportunity to obtain solar power without the up-front capital investment as the
power generation system is designed and installed by a third party provider and financed
through a third party financier. The governmental entity benefits from capped or slowed
growth in electricity rates, as the normal utility bill is paid to the financier through terms
established in the SPPA. In California, at least ten jurisdictions have issued SPPA's in the
past two years. These issuances include State DGS, City of Fresno, San Francisco Public
Utilities Commission, County of Solana, County of San Diego, and County of Ventura,
among others. County staff reviewed all ten SPPA issuances to compare terms and
conditions. For further detail, visit htt~://www.californiasolarcenter.org to access the Rahus
Institute's Customer Guide to Solar Power Purchase Agreements (released October, 2008).
CHALLENGES OF SITING RENEWABLES
One of the major barriers for local governments in purchasing renewable energy systems is the
high upfront costs involved. Although purchasing a renewable energy system outright is
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February 2, 2010 Page 3
generally considered to be the most cast effective strategy in the long-term, the high capita] costs
are often prohibitive. An alternative method of fuiancing is needed in order to utilize renewable
energy and thereby decrease energy costs and aid in the reduction of carbon emissions in
compliance with AB32. In the past five years, the financial sector and renewable energy
providers have developed innovative third parry ownership financing structures (Power Purchase
Agreements) to take advantage of the tax incentives available to the private sector. However,
these financing structures require significant legal., procurement, property management, and
engineering expertise to execute and therefore ha~re high transaction costs that present a barrier to
local governments.
THE OPPORTUNITY OF REGIONAL AGG][ZEGATION
In order to reduce the transaction costs associated with Power Purchase Agreements and to
support the diffusion of renewable energy generation, the members of the Joint Venture Climate
Protection Task Force have suggested a regional collaborative procurement, lead by Santa Clara
County. By leveraging the contractual resource investment of the lead agency and creating a
procurement pool, all will benefit by reducing or ~:liminating a barrier to adoption of renewable
power.
A regional Power Purchase Agreement (PPA) is cane model which provides an opportunity to
break down both the upfront capital barriers to direct ownership and the transaction costs
associated with third party financing and move oL~r region forward in municipal renewable
energy usage. Additionally, by creating a regional PPA rather than individual ones for each city,
the costs of developing the agreement are reduced significantly for all parties involved. This
method not only conserves funds, but also accelerates the financing process and deployment of
renewable energy technologies, promotes compli~u~ce of AB32, and supports local economic
development.
The benefits of the project will stem beyond those: cities participating. For example, lessons from
this project will be shared with schools, landlords, and other organizations considering solar to
help them reduce their greenhouse gas emissions .and stabilize their cost of electricity.
Additionally, the project will stimulate the local economy by using local vendors thereby creating
more jobs. Initial estimates indicate that the total ,amount of energy produced through this project
may exceed I4 Mega Watts.
PROJECT STEPS AND STATUS
1. Issue Request for Information - COMPLETE
The purpose of the RFI was to test the assumptions and information gathered to date on different
financing mechanisms and procurement approaches. The RFI required vendors to show their
experience with what financing mechanisms, the extent of that experience, possible terms that
the County could expect, how the market would respond to bundled projects, whether additional
sites should be considered and whether collaborative procurement at scale would deliver
significantly reduced power purchase prices.
Nineteen vendors responded to the RFI. Most firms have experience with a variety of fmancing
methods. Installed price per kwH power varies as a reflection of the cost of capital, the Federal
tax incentive for private sector investment and state solar incentives, and economies of scale in
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February 2, 2010 Page 4
supply and financing. The attached RFI Summary Graphs provide general information from the
responses to the RFI. Preliminary observations provided by the County include:
• Most respondents indicated that their firm had been in business between 2 and 5 years -The
significance of this finding is that traditional municipal government procurement criteria
require extensive years of experience. Doing so in the renewable energy market would
preclude most fums from competition.
• Most respondents are specialized in either solar ground mount or rooftop systems. A few
firms offer expertise in two or more technology areas, but they tended to be large vendors.
• The majority of respondents indicated that the installed cost of power far systems in general
was below $0.19 per kwH. Many firms in lower cost ranges were newer market entrants.
• Most respondents indicated that economies of scale exist in collaborative procurement, and
that these are quantifiable around 5% for bundled project packages of 10 MW, 15 % for
packages of 20 MW, and 20% for packages of 50 MW. These discounts are incorporated to
be compared to the cost per kwH of PG&E rates over the 20 year term of power purchase
agreements.
2. City Si,~Memorandum of Understanding - DUE FEBRUARY 5`~
The County anticipates that several other jurisdictions will participate in a collaborative
procurement as part of the Joint Venture Regional Renewable Power Purchase Initiative. Joint
Venture staff has identified 89 sites including public buildings, parking lots and empty land as
potential opportunities for generating 40 MW worth of renewable power. The County has been
functioning as lead agency for this effort and providing results of research to all other
participating jurisdictions.
In order to obtain commitments, County staff has requested a Memorandum of Understanding
(MOU} from all jurisdictions. The MOUs are due to the County in early February. Staff held a
mandatory meeting with City attorneys and staff on December 4th to review PPA document
terms, the RFP process and other issues. At this meeting 12 jurisdictions indicated that they
wanted to participate in the first RFP issuance. These include; VTA, Morgan Hill, Mountain
View, Cupertino, Sunnyvale, Los Gatos, Milpitas, County of San Mateo, Pacifica, Burlingame,
Foster City and the Silicon Valley Waste Management Authority. A revised draft of the
Memorandum of Understanding (MOU) prepared by the County Counsel's office is attached to
this report. The County Counsel's office will be recommending to the Board of Supervisors to
adopt this version of the MOU. This MOU will be finalized upon review of the Board of
Supervisors on February 9`t'.
3. Conduct Detailed Solar Site Survey - DUE FEBRUARY 26th
Per Section 2.C. of the aforementioned Memorandum of Understanding, to participate in the bundled
PPA project, cities must submit proposed real property sites that may accommodate renewable
energy installations (individually, a "Site Survey", and collectively the "Site Surveys") prepared
by a licensed engineer in a uniform, industry standard format. To achieve this requirement, the
city will join neighboring jurisdictions to work with CH2M Hill (now Critigen, LLC) to conduct solar
site surveys by piggyback upon the competitively bid contract won by the company to analyze Santa
Clara County-owned assets.
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February 2, 2010
Page 5
The survey will be split into two tasks: Task 1 is for the Solar Site Analysis at $832.00 per site and
Task 2 is for the Electrical and Structural Analysis at $3,167.00 per site, for a total of $3,99$.00 per
site_'The Environmental Affairs Division Budget includes a professional services expenditure for this
work and, as such, the city has entered into this process with three sites and abutting parking lots
(Community Hall, Quinlan Community Center and the Service Center) at an estimated total cost of $
11,994. Work is expected to commence in early Febniary and conclude by the end of the month.
4. Issue Request for Proposal (RFP) for Power Purchase Agreements EST. MARCH
County staff is in the process of drafting the Request for Proposals to procure an initial 4MW of
renewable power for county sites through power purchase agreements. Given the preliminary
information from the RFI, County staff have recommended continuing to work with other
jurisdictions on a collaborative procurement to achieve economies of scale, provided that doing
so does not negatively impact the County's likelihood of receiving CSI benefits at Step 6.
FISCAL IMPLICATIONS
Renewable energy power generation presents two distinct fiscal benefits for Cupertino: revenue
generation from the sale of generated power and expenditure savings resulting from the use of
renewable energy sources. Consideration of the overall fiscal implications of the generation of
renewable energy using city facilities will be incorporated into the boarder scope of the
Environmental Affairs Division budget and work program. Specific financial benefits created
through this project include:
1. Conserve government funds available for capital equipment.
2. Reduce greenhouse gas emissions from local government operations at no cost.
3. Stabilize the cost of electrical energy during; a time when we expect prices to rise sharply.
4. Drive down the cost of photovoltaic systems through volume purchasing.
5. Help vendors drive down their costs through economics of scale, and standardization of
purchasing methods.
6. Help smaller cities access legal, procurement and technical expertise that they cannot
afford to hire.
7. Minimize the workload for cities through the use of turnkey installations of solar systems,
including financing, installation, maintenance, and operation.
8. Support the creation of local clean tech job:.
RECOMMENDED ACTION
Delegate authority to the City Manager to sign th{; Memorandum of Understanding for
Cooperative Purchasing of Power with the County of Santa Clara if adopted by the County Board
of Supervisors in substantially, the same farm as tike document attached to this report.
Su miffed by
rin ooke
Environmental Affairs Coordinator
Approved for mission:
~ I~GG ,
~~' David W. Knapp
City Manager
Attachments
Attachment A: Draft Memorandum of Understanding for Cooperative Purchasing of Power
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[DRAFT]
MEMORANDUM OF UNDERSTANDING FOR COOPERATIVE PURCHASING OF POWER
This Memorandum of Understanding ("MOU") is entered into as of
(the "Effective Date")
_, 2010
by and among the following California jurisdictions: County of
Santa Clara ("Santa Clara County"),
Signatories to this MOU
herein as "Non-County Parties."
and
County, are referred to
WHEREAS, the parties desire to purchase renewable eriei~~~fii~;'tlieir operations; ''1ai;E~'
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nr h $~~
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WHEREAS, the arties wish to take advanta e of otential disc~~~ ~~'~e when such urchases are made at
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large volumes; `;~~~P
WHEREAS, large volume purchases of renewable energy will result from a regional, multi-
"~~ ~~ @ ~ ~~` a ran ement where ro ect sites area a ated into rou son the basis of
jurisdiction p,~~~~ g p j ggr g g P
various n
~~sp'~`d other fin''a'r~~~~~; g related_factors;
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WHEREAS, large~;~;olume purchases likely result iu lower pricing than would otherwise be available if
individual
purchased renewable energy;
WHEREAS, the parties agree''"fit"Santa Clara County shall be the lead agency for issuing a
solicitation to purchase renewable energy (the "Solicitation");
WHEREAS, the parties acknowledge that the transaction costs associated with purchasing renewable
energy are significantly reduced when the parties agree to the same terms and conditions incorporated
within standardized template documents; and
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WHEREAS, at the completion of the Solicitation process, subject to their respective Baard's,
Council's or applicable governing body's approval, the parties may enter into power purchase,
financing, real estate and/or other required agreements with selected vendors ("Vendors") substantially
in the forms prepared by Santa Clara County.
NOW THEREFORE, in consideration of their mutual promises and agreements, and subject to the
terms, conditions and provisions hereinafter set forth, the parties ~g~ee as follows:
SECTION 1. ROLE AND RESPONSIBILITIES OF S~NTA~;; ~~~I,ARA COUNTY
A. Santa Clara County shall (i) perform the "l~~~l~'`-ole in preparing g~`~d,issuing the Solicitation,
(ii) create templates of transaction docume~~~~,,,, hich ma include, wt taut limitation, a form of
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power purchase agreement and a_form of lease ~}~ry~~,,4T}pl~.pl'ate Documen~~f;~~i}~~and (iii)
coordinate with the Non-County Parties, as r-ecessa'~iY~~;p~~.
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B. Santa Clara County will~consult with Non-County Parties wit~.~spect to the content of the
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Solicitation and the terms and conditions contained within Template Documents, provided,
however, that any comments or concerns mu sf be communicated to Santa Clara County within
the allotte:~'~ ~ frame provided by Santa Clara County.
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C. Then-County Pay.. '~~agree that Santa Cl~u-a County shall be the single point of contact for
Vendors a . ~l necessary th~~,~`parties throughout the Solicitation process.
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SECTION 2.
OF THE NON-COUNTY PARTIES
A. Each Non-County Party has undertaken their own due diligence prior to entering into this
MOU to determine feasibility of solar, fuel cell or other feasible technology to be located at
project sites.
B. Each Non-County Party is responsible for meting its individual legal, procedural and other
requirements.
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C. Non-County Parties are responsible for promptly providing site surveys, if available, of their
proposed real property sites that may accommodate renewable energy installations
(individually, a "Site Survey", and collectively the "Site Surveys") and each such Site Survey
shall be prepared by a licensed engineer in a unifoi~n, industry standard format. Each party
acknowledges that to the extent it does not undertake a site survey for a particular site, such site
(i) may not be considered by Vendors or {ii) Vendors may aggregate such sites into a higher
risk group and pricing for such group may be less favor~.~~•:
.u ir~ns~ ian
D. Upon conclusion of the Solicitation process, No~~,County Parf~s5may, subject to their
respective Board's, Council's or applicabl~~!~~~'verning entity's app~qu4a1, enter into binding
agreements, substantially in the form of the~~`l~emplate Documents, witl~~l-~}~e selected parties,
provided the Non-County Parties determine, to t~i~r sad~,, ~Ction, that the `'~ep;dors aze
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responsible, and comply with the Non-County Parties" terms, conditions and requirements.
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Santa Clara County shall not be responsible for referenc~~eE~ecks, performance, or for
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compliance with any agreement, regulations, laws or policie~fjX either the Vendors} or Non-
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County Parties).
E. Non Co~uu ~!a~~,arties agree to participate in the Solicitation under the lead role of Santa Clara
F 'Ii;,~ ~ ~;~zl€r ~.~~~r,~,~~~ ~~~~
CouptyEand agree~~,,o~~vork cooperatively and. promptly with Santa Clara County throughout the
Soltci;~ation process ',parties agree that time is of the essence; and failure of aNon-County
Party to~~'pt`~pyide the requited information in the requested format and within the deadlines
established by' Santa Clara County may result in termination of that party's participation in the
cooperative
SECTION 3. TERM OF MOU.
The term of this MOU shall commence on the Effective Date and shall expire on December 31, 2011.
SECTION 4. GOVERNING LAW AND VENUE.
The law governing this MOU shall be that of the State of California. In the event that suit shall be
brought by any party to this contract, the parties agree that venue shall be exclusively vested in the
16-8
State's courts of the County of Santa Clara, or if federal jurisdiction is appropriate, exclusively in the
United States District Court, Northern District of California, San Jose, California.
SECTION 5. WARRANTY DISCLAIMER; LIABILITY; WAIVER.
A. No warranty, express or implied, is provided by Santa Clara County as to results or success of
the Solicitation, this MOU, or any agreements ultimately erg red into by the Non-County
Parties. Each Non-County Party acknowledl;es that S,,I~~t~~ara County has not made, and is
not making, any assurances, guaranties or promisesKl~.~thlIu~ pest to the subject matter of this
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MOU and that each party is ultimately responsrl~~g for conduc'Gi rts own due diligence with
respect to feasibility, pricing, technology,.tl~r~~'parties and all oth~rr~atters in an wa related
~ i S k k " ~c{~i,~ Y Y
to the subject matter of this MOU. ~;~~, 1 ul~:,, ,, i~~~~tilry`Ik,;,
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B. In no event shall Santa Clara County; nor its officers,~,~.~'~ents, employers, or representatives be
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liable for any direct, indirect, incidental, special, exempt ~'I; r,,or consequential damages
(including, but not limited to, procurement o ~ substitute good services, loss of use, data, or
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profits, or business interruption) however caused-and on any. theory of liability, whether in
contract, strict liability, or tort. (including negligence or otherwise) arising in any way, directly
or ind~~~:y~~~~~om this NIOU, participation in the Solicitation, or any agreement(s) between a
Ng.,~C~c~tinty Part~~and any third parry, even if advised of the possibility of such damage.
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C. Each part;}s respons2ble' ~o~negotiation, execution, administration and enforcement of any
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contract w~tih~a''Vendor or third party related to the subject matter of this IvIOU and the
agreements ulti>'n~e~.y ente,'d into by each party shall not be cross-defaulted or cross-
a„ i~r, ~;ia~ , ~,,; ~ i I~~
~~I~ISI~~:Htii't"n~@i~l~ Ir
collateralized in any r~r~~,,ect with the agreements entered into by any other party to this MOU.
D. No waiver by any party to this MOU of any breach or violation of any term. or condition of this
MOU shall be deemed to be a waiver of any other term or condition contained herein or a
waiver of any subsequent breach,or violation of the same or any other term or condition.
SECTION 6. NOTICES.
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Notices shall be deemed effective on the date delivered if by personal service oz overnight delivery
service, or, if mailed, three (3) days after deposit in the U.S. Postal Service mail. All notices and other
communications required or permitted to be given under this MOU shall be in writing and shall be
personally served, delivered by overnight service, or by mail, first class, certified or registered postage
prepaid and return receipt requested, addressed to the respective parties as follows:
To County of Santa Clara:
To City of
To City of
To City of Tok~'ty ofF`w',f i;"'~ ~~ :i
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SECTION 7. MISCELLANEOUS PROVISIONS. 'f
A. If any term, condition or covenant of this Agreement is held by a court of competent
~unsdic~lc , ~ ~ e invalid,' void ar unenforceable, the remaining provisions of this Agreement
sha~la~'~va11d anc~,~~:ding on the parties.
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B. This MQIU,~may be executed Fin counterparts and will be binding as executed.
C. All changes or ei4'~',,"j"~sions,~tdr$~iis MOU shall be in writing in the form of an amendment
approved by all
D. This MOU is entered into only fox the benefit of the parties executing this MOU and not for the
benefit of any other individual, entity, or person.
SECTION S. TERMINATION.
16 -10
A. Santa Clara County may, upon thirty (30) da:~s' written notice, terminate this MOU without
penalty or liability.
B. Non-County Parties may terminate this agreement at any time up to three (3} weeks prior to the
issuance of the Solicitation pursuant to the schedule developed by the County, without penalty
or liability.
SECTION 9. INDENINIFICATION
in lieu of and notwithstanding the pro rata risk alloc~itiorz
the pasties pursuant to Government Code Section 895~;(I~~4I
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incurred by a party that are in any way related to...:' S~kC
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parties agree that, pursuant to Government Code ~;fon
I '~h'~~`~~i ht otherwise be im osed between
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parties "i~gree that all losses or liabilities
shall not be 'shred pro rata but, instead, the
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895.4, each of the pasties hereto shall fully
indemnify and hold each of the other parties, their o#fi~~r$ board'members, empld~'ees, and agents,
r~~p~ll b k Ir :! F li iCi1 ~.
harmless from any claim, expense or cost, damage o:r liabihty r~nposed for injury (as defined in
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Government Code Section 810.8) occurring by reason of the neg~gent acts or omissions or willful
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misconduct of the indemnifying party, its officers, employees, or aged, ,under or in connection with
$ ~:
or arising out of any work, authority,;or jurisdiction delegated to such party under this MOU. No
party, nor any officer, board` member,, or agent thereof shall be responsible for any damage or liability
occurring by reason o~ the negligent acts or omissions or willful misconduct of another party hereto, its
officers, bQatdlmembers; ~znployees,,or agents, under or in connection with or arising out of any work
authorit 6T~F`u}~sdiction delegatedd to such other party under this MOU.
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SECTION 10. NON-DISCRINBNATION
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Parties shall comply wit~b;°all apph~~b~e Federal, State, and local laws, regulations and policies
concerning nondiscrimination~aagd,~equal opportunity in contracting. Such laws include but are not
limited to the following: Title VII of the Civil Rights Act of I9b4 as amended; Americans with
Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sections 503 and 504); California Fair
Employment and Housing Act (Government Code sections 12900 et seq.}; and California Labor Code
sections 1101 and 1102. Parties shall not discriminate against any subcontractor, employee, or
applicant for employment because of age, race, color, national origin, ancestry, religion, sex gender,
sexual orientation, mental disability, physical disability, medical condition, political beliefs,
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organizational affiliations, or marital status in the recruitment, selection for training including
apprenticeship, hiring, employment, utilization, promotion, layoff, rates of pay or other forms of
compensation. Nor shall parties discriminate in provision of services provided under this contract
because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental
disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital
status.
IN WITNESS WHEREOF, the parties have exec
By:
Name and Title
By:
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Name and Title
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