Calistoga City Council
February 6, 2024

City Council Minutes
December 19, 2023

10. ADJOURNMENT
Mayor Williams adjourned the meeting, at 8:50 p.m.

Respectfully Submitted
Prepared by: Approved By:

Yudiana Galvan, City Clerk Donald Williams, Mayor

APPROVED: 2/6/24
Item #6.1.

MINUTES

CALISTOGA CITY COUNCIL - SPECIAL CLOSED SESSION
Monday, January 8, 2024 - 2:00 PM
Virtual
A. CALL TO ORDER - ROLL CALL
Mayor Williams called the session to order at 2:02 p.m.

Present: Mayor Williams and Councilmembers Eisenberg and Cooper

Absent: Vice-Mayor Lopez-Ortega
Recused: Councilmember Gift
B. ORAL COMMUNICATION
There was no oral communication.

C. ADJOURN TO CLOSED SESSION ON THE FOLLOWING MATTER:

1. Conference with Real Property Negotiations, GC §54956.8 Property: 1435 North Oak Street, APN 011-140-006, APN 011-140-007, APN 011- 140-055, APN 011-481-022
Agency Negotiator: Laura Snideman, City Manager
Negotiating Parties: Napa County CEO, Ryan Aslop
Under Negotiation: Price and/or Terms for Payment for Potential Purchase of Property D. ADJOURNMENT
Mayor Williams adjourned the closed session Special City Council meeting.

Respectfully Submitted
Prepared by: Approved by:

Yudiana Galvan, City Clerk Donald Williams, Mayor
APPROVED: 2/6/24
Item #6.1.

MINUTES

CALISTOGA CITY COUNCIL

REGULAR MEETING
Tuesday, January 16, 2024 - 6:00 PM
1307 Washington Street, Calistoga CA 94515

1. Call to Order/Roll Call/Pledge of Allegiance and Optional Patriotic Activity Mayor Williams called the regular session to order at 6:02 p.m.

Present: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg and Gift.

Absent: Councilmember Cooper

2. REPORT FROM CLOSED SESSIONS
Mayor Williams stated that the Council met regarding the Fairgrounds negotiation, but there was no reportable action.

3. ORAL COMMUNICATION ON CONSENT ITEMS OR NON-AGENDA ITEMS

3.1. There were public comments made by Charlotte Williams and Lucretia Marcus, who both spoke against the Mayor's committee appointment process from the last meeting.

4. CITY MANAGER’S REPORT
City Manager Snideman is looking forward to introducing new hires during the next meeting.

5. PROCLAMATIONS/PRESENTATIONS/ AWARDS

5.1. Lindsey Gallagher with Visit Napa Valley presented a Tourism Improvement District update. Ms. Gallagher and Mr. Mike Lennin answered Council and public questions.

5.2. Public Works Director Derek Rayner presented the Capital Improvement Program.

Council discussed.

6. CONSENT CALENDAR
Councilmember Gift moves to adopt the Consent Calendar as presented except for item 6.2, Vice-Mayor Lopez-Ortega seconded the motion.

6.1. Consideration of ordinance amending Municipal Code Section 2.04.010 regarding setting the schedule of regular City Council meetings by Resolution – APPROVED

6.2. Adoption of Ordinance No. 765 - Amending Municipal Code Section 2.04.050 Regarding Councilmember Salaries.

This item was pulled for discussion by Mayor Williams who stated that he would like to reiterate that although he supports the reasoning for such an amendment he will not make a motion as he feels this is an opportunity to discuss term limits to dissuade anyone from serving for the wrong reasons.

Item #6.1.

City Council Minutes
January 16, 2024
A motion was made by Councilmember Gift to adopt the ordinance, seconded by Councilmember Eisenberg.

AYES: Vice Mayor Lopez-Ortega and Councilmembers
Eisenberg and Gift.

NOES: Mayor Williams
ABSTAIN: None
ABSENT: Councilmember Cooper

6.3. Adoption of Resolution No. 2024-001 - California Office of Traffic Safety grant application to fund the replacement of outdated vehicle extrication tools ("jaws of life").

6.4. Adoption of Resolution No. 2024-002 - Resolution Accepting a Notice of Completion for the 2023 Slurry Seal Project, Phase I.

6.5. Adoption of Resolution No. 2024-003 - Accepting a Notice of Completion for the Cedar Street Utility Replacement and Pavement Rehabilitation Project (Spring Street to Lincoln Avenue).

7. PUBLIC HEARING – NO ITEMS

8. GENERAL GOVERNMENT

8.1. Adoption of Resolution No. 2024-004 - Approving the mid-year 2023-24 budget adjustments.

Mr. Catacutan from the Finance Department presented the Fiscal Year 2023-24 midyear budget amendments to the Council and discussion ensued.

Mayor Williams moved to adopt the resolution approving the budget adjustments, Councilmember Eisenberg seconded the motion.

AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg and Gift.

NOES: None
ABSTAIN: None
ABSENT: Councilmember Cooper

8.2. Adoption of Resolution No. 2024-06 - Approving minor interior improvements to City Hall including accessibility improvements, purchasing office cubicles and furniture to accommodate new positions, and upgrading the IT infrastructure in City Facilities.

Cynthia Battenberg from Admin presented to the Council and discussion ensued.

A motion was made by Councilmember Gift to adopt the resolution, seconded by Mayor Williams.

Item #6.1.

City Council Minutes
January 16, 2024
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg and Gift.

NOES: None
ABSTAIN: None
ABSENT: Councilmember Cooper

8.3. Adoption of Resolution No. 2024-005 - Confirming the Mayor's Appointments of Millie Pease to the Green Committee and Eugene Gorman to the Housing Advisory Committee's unscheduled vacancies. The appointment of an alternate to the Climate Action Committee was overlooked and will be resolved at the next regular City Council meeting.

There was public comment by Aaron Heth in support of Millie Pease for the Green Committee.

A motion was made by Mayor Williams to approve the appointments, seconded by Councilmember Eisenberg.

AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg and Gift.

NOES: None
ABSTAIN: None
ABSENT: Councilmember Cooper

9. COUNCIL REPORTS
Councilmember Gift wishes everyone a Happy New Year!
Councilmember Eisenberg states it has been a slow couple of months for his committees and he is expecting it to pick up soon.

Vice Mayor Lopez- Ortega announced the Latino Leaders conference is coming to San Jose and she hopes staff can attend. She also responded to earlier public comment in regard to her term appointments and election.

Mayor Williams attended the NCLOG quarterly meeting where the topic was water.

10. ADJOURNMENT
Mayor Williams adjourned the meeting, at 7:27 p.m.

Respectfully Submitted
Prepared by: Approved by:

Yudiana Galvan, City Clerk Donald Williams, Mayor
APPROVED: 2/6/24
Item #6.1.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Yudiana Galvan, City Clerk
Meeting: City Council - Feb 06 2024
Subject: Second Reading of an Ordinance of the City Council of the City of Calistoga Amending Calistoga Municipal Code section 2.04.010 Regarding Setting the Schedule of Regular City Council Meetings By Resolution DESCRIPTION:

Second Reading - Amending Municipal Code Section 2.04.010 regarding setting the schedule of regular City Council meetings by Resolution
RECOMMENDATION:

Adopt an Ordinance of the City Council of the City of Calistoga Amending Calistoga Municipal Code section 2.04.010 Regarding Setting the Schedule of Regular City Council Meetings By Resolution BACKGROUND/SUMMARY:

Currently, the Calistoga Municipal Code specifies the Regular City Council meeting schedule, with meetings to be held the first and third Tuesday of every month. The Council has indicated its desire to alter the regular meeting schedules annually and has approved a tri-weekly meeting schedule for the year of 2024.

Government Code section 54954, the City Council is authorized to set its regular meeting dates and times “by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body.” To allow the Council to annually schedule its regular meetings by resolution, the Council must revise Section 2.04.10 of the City Code to allow scheduling of regular City Council meetings annually by Resolution.

City staff have revised Section 2.04.010 to: (1) remove language in the code which provided for the City Council’s regular meetings to occur on the first and third Tuesdays of each month at 6:00pm; (2) add language that regular meetings shall be established by Resolution each year; and (3) remove language pertaining to the City’s ability to hold special meetings (which is already addressed in Section 2.04.020).

CEQA STATUS:

No Impact
FINANCIAL IMPACT:

None
Item #6.2.

ATTACHMENT(S):

NEW SCHEDULE ORDINANCE-CAO
APPROVAL(S):

Jessie Catacutan Approved - Jan 23 2024
Laura Snideman, City Manager Approved - Jan 24 2024
Yudiana Galvan, City Clerk Approved - Jan 24 2024
Item #6.2.

4889-8754-6005v2
ORDINANCE NO. 762

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CALISTOGA AMENDING CALISTOGA MUNICIPAL CODE SECTION 2.04.010 REGARDING

SETTING THE SCHEDULE OF REGULAR CITY COUNCIL MEETINGS BY

RESOLUTION
WHEREAS, under Government Code section 54954, the City Council is authorized to set its regular meeting dates and times “by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body”; WHEREAS, Calistoga Municipal Code Section 2.04.010 sets the City Council’s regular meeting date and time as “the first and third Tuesdays of each month at 6:00 p.m.”;
WHEREAS, the City Council desires to amend Section 2.04.010 to authorize the City Council to set its regular meeting schedule by Resolution each year; WHEREAS, providing for the City Council’s meeting dates by Resolution provides flexibility, while also providing ample opportunity for the community to be apprised of the City Council’s regular meeting schedule.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES ORDAIN AS FOLLOWS:

SECTION 1 – INTENT
It is the intent of the City Council of the City of Calistoga to update the City Code to fix the City’s regular meeting schedule by annual Resolution.

SECTION 2 – AMENDMENTS (deletions shown in strikethrough and additions shown in underline)
Section 2.04.010 of Chapter 2.04 of Title 2 of the Calistoga Municipal Code is hereby amended to read in its entirety as follows:

The regular meetings of the Council shall be held on the first and third Tuesdays of each month at 6:00 p.m., or at such other times as such regular meetings may be adjourned to. If any regular meeting falls on a holiday, such regular meeting shall be held on the next business day which is not a legal holiday.

A. Dates and locations of regular meetings of the Council shall be established by resolution. Regular meetings of the City Council shall be established by resolution each year.

B. The City may, from time to time, on an as needed basis, and at its sole discretion, hold duly noticed workshops, study sessions or other similar meetings, at dates, times and places, in accordance with the Brown Act and the wishes of the City Council.

C.B. Regular meetings can be adjourned to another date and time.

Item #6.2.

Ordinance No. 762

4889-8754-6005v2
SECTION 3 – FINDINGS
The above recitals are true and correct and incorporated herein by reference and each is relied upon independently by the City Council for its adoption of the Ordinance.

SECTION 4 – SEVERABILITY
If any section or portion of this ordinance shall be determined to be invalid or unconstitutional, such section or portions shall be deemed severable and all other sections or portions hereof shall remain in full force and effect.

SECTION 5 – EFFECTIVE DATE
This ordinance shall be effective 30 days from the date of passage and adoption.

SECTION 6 – PUBLICATION
The City Clerk is directed to cause this Ordinance to be published in the manner required by law.

THIS ORDINANCE was introduced with the first reading waived at the City of Calistoga City Council meeting of the 16th day of January 2024, and was passed and adopted at a regular meeting of the Calistoga City Council on the 6 th day of February
2024, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

ATTEST: APPROVED:
____________________________ __________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.2.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Jed Matcham, Fire Chief
Meeting: City Council - Feb 06 2024
Subject: Memorandum of Understanding for Fire Department Regional Grant Applications
DESCRIPTION:

Memorandum of Understanding for Fire Department Regional Grant Applications RECOMMENDATION:

Adopt the resolution authorizing a Memorandum of Understanding between the City of Calistoga Fire Department and all other fire agencies in Napa County, providing for participation in regional grant programs.

BACKGROUND/SUMMARY:

On December 5, 2023, Council moved to approve Resolution 2023-79, which authorized participation in regional grant applications with other Napa County fire agencies. This MOU included every fire agency in Napa County except St. Helena Fire Department. Since December, St. Helena Fire Department has decided to participate in the collaborative effort of this MOU. Adopting this resolution will allow St. Helena Fire Department to join as a participating agency. With the participation of St. Helena Fire Department, this MOU will now include every fire agency in Napa County, providing a stronger foundation for grant approval from local, state, and federal grant funding agencies. This version of the MOU also includes 2 minor edits to correct a mailing address and a signature block.

Fiscal responsibility requires that agencies find additional means to fund purchases, trainings, equipment and operations. the City of Calistoga must consider different means of qualifying for, and participating in, grant programs. One way we can improve our chances of receiving grant funds is through participation in this MOU with our neighboring Napa County fire agencies.

The participating agencies will collaborate on regional grant applications to apply for grants from various governmental agencies. These grant applications typically require an MOU setting forth the terms of the regional agencies' cooperation for purposes of securing and administering regional grants. Funding received from these regional grants may include, but are not limited to, vehicle acquisitions, training, equipment, wellness and fitness programs, and personal protective equipment.

Participation in this MOU provides additional methods of applying for and receiving grant funds.

Under federal grant application terms, Calistoga Fire Department is limited to one application per year for each type of grant. Operating as a part of the regional MOU, Calistoga Fire Department will be able to continue to apply for individual grants while also applying as a part of the regional grant.

Item #6.3.

Participating in this MOU with every other Napa County fire agency for federal grant programs is a strategic move that can offer the Calistoga Fire Department numerous advantages. It opens doors to increased funding and improved grant success, ultimately strengthening the department's ability to serve and protect the community.

CEQA STATUS:

Not Applicable
FINANCIAL IMPACT:

Potential for increase in funding resources for vehicle acquisitions, training, equipment, wellness and fitness programs, personal protective equipment, and other programs.

ATTACHMENT(S):

Resolution - Regional Grants MOU 02.06.24
FINAL Regional Grant MOU ST HELENA INCLUDED
APPROVAL(S):

Jessie Catacutan Approved - Jan 25 2024
Laura Snideman, City Manager Approved - Jan 29 2024
Yudiana Galvan, City Clerk Approved - Jan 29 2024
Item #6.3.

ATTACHMENT 1
RESOLUTION NO. 2024-XXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY OF

NAPA, STATE OF CALIFORNIA, AUTHORIZING THE EXECUTION OF A

MEMORANDUM OF UNDERSTANDING FOR REGIONAL GRANT APPLICATIONS

FROM MULTIPLE GOVERNMENT AGENCIES
WHEREAS, costs associated with operating a municipal fire department continue to rise; and
WHEREAS, fiscal responsibility and budgetary limitations require the Fire Department to augment funding with grant funds; and
WHEREAS, collaboration with other Napa County fire service agencies can provide additional grant funding opportunities; and
WHEREAS, the fire service agencies in Napa County are committed to improving services to the public through fiscally responsible grant funding opportunities; and WHEREAS, joining other Napa County fire service agencies in this Memorandum of Understanding (MOU) will provide a means for Calistoga Fire Department to benefit from any regional grant funding awarded to the parties of the MOU:

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES HEREBY find the following:

1. The City Council authorizes the City Manager to sign the Memorandum of Understanding for Regional Grant applications From Multiple Government Agencies.

PASSED, APPROVED, AND ADOPTED this 5
th day of December, 2023. I,

YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

ATTEST:

Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.3.

1 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS City of Napa Agreement No. _______
American Canyon Fire Protection District Agreement No. _______ Napa County Agreement No. _______
City of Calistoga Agreement No. _______
City of St. Helena Agreement No. _______

MEMORANDUM OF UNDERSTANDING FOR REGIONAL GRANT APPLICATIONS

FROM MULTIPLE GOVERNMENT AGENCIES
This Memorandum of Understanding for Regional Grant Applications from Multiple Government Agencies (this “MOU”) by and between the City of Napa, a California charter city ("CITY"), American Canyon Fire Protection District, a California special district (“AMERICAN CANYON”), Napa County, a political subdivision of the State of California (“COUNTY”), City of Calistoga, a California city (“Calistoga”) and City of St. Helena, a California city (“St. Helena”) is effective as of the effective date identified on the signature page. CITY, AMERICAN CANYON, COUNTY, CALISTOGA and ST. HELENA may be identified as “a Party,” or collectively, as “the Parties”. The Parties are public entities organized and operating under the laws of the State of California and each is a public agency as defined in California Government Code section 6500.

RECITALS
A. The CITY, COUNTY, AMERICAN CANYON, CALISTOGA, and ST. HELENA desire to collaborate on regional Grant applications to apply for regional Grants from various governmental agencies. These Grant applications typically require a memorandum of understanding setting forth the terms of the regional agencies’ cooperation for purposes of securing and administering regional Grants. This MOU is solely for the purpose of establishing an administrative structure to apply for and administer multi-agency Grants. If any Grants are awarded, the Parties understand that each Grant will have further specific requirements that will be imposed at that time, subject to review and approval by each Party prior to submission of any Grant application.

B. The Parties, through the Fire Chiefs of the respective fire departments or districts, are committed to regional cooperation and coordination to achieve cost effectiveness, support regional efficiency and resilience, and benefit more than one local jurisdiction directly from the activities implemented with Grant funds if they are Awarded.

C. Regional Grant activities may include but are not limited to, vehicle acquisition, training, equipment, wellness and fitness, and personal protective equipment (“PPE”) activities.

D. None of the Parties is prevented from applying on behalf of its own organization for any activity; however, it cannot be for the same item as a regional Grant and will be subject to the individual Grant requirements.

NOW, THEREFORE, the CITY, COUNTY, AMERICAN CANYON, CALISTOGA, and ST.

HELENA for the considerations hereinafter set forth, mutually agree as follows:

1. DEFINITIONS.

Item #6.3.

2 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS (a) Application: The specific set of forms, documents, and attachments that comprise an applicant’s submission to a regional Grant opportunity. (b) Host Agency: Agency to act as host and apply for funding on behalf of itself and any number of other Participating Parties.
(c) Participating Parties: Parties to this MOU seeking a Grant Award directly from an Awarding agency to carry out an activity under a Grant program. (d) Regional Grant: A Grant that is offered by a local, state, or federal agency that, if Awarded, would provide some type of benefit (either monetary or otherwise) to more than one of the Participating Parties.
(e) Grant Agreement: A Grant between an Awarding agency to Participating Parties that sets the terms and conditions of a Grant, including for what it can be used. (f) Award: Financial assistance that provides support or stimulation to accomplish a public purpose.
(g) Cost Sharing or Matching: The portion of project costs not paid by Grant funds.

2. TERM OF THE AGREEMENT AND RIGHT TO TERMINATE. This Agreement takes effect upon the signature of the Parties and shall remain in effect until mutually modified or terminated. The term of this Agreement shall expire on December 31. 2028, except that the obligations of the Parties under paragraph 5 (Mutual Indemnification) shall continue in full force and effect after said expiration date as to the liability for acts and omissions occurring during the term of this Agreement. Any Party may terminate this MOU for convenience (with or without cause) by providing written notice of termination to the other Parties, effective upon the date stated in the notice.

Notwithstanding the foregoing, if the Grant Agreement is terminated for any reason, this MOU as to that Grant shall automatically terminate at the same time.

3. REGIONAL APPLICATION MANAGEMENT.
(a) To apply for a regional Grant, a Host Agency must be identified by the Parties and must agree, if Awarded, to be responsible for all aspects of that Grant. This includes, but is not limited to cost share, accountability for the assets, and all reporting requirements in the regional application. The Host Agency of the regional application is not considered a pass-through entity and may not issue sub-Awards.
(b) Regional Grant Applications may only be submitted on behalf of Parties that have consented in writing to join as a Participating Party, in accordance with each agency’s rules and regulations for applying for Grants. • The Host Agency shall prepare a memo specifying the individual and mutual responsibilities of the Host Agency and Participating Parties, the host’s, and participants’ level of involvement in the project(s), the Participating Parties’ Employer Identification Number, and the proposed distribution of all Grant-funded assets or contracted services. This memo shall be reviewed and signed by each Participating Party’s Fire Chief prior to Grant submission.
(c) Purpose. This MOU establishes the relationship between the Participating Parties for participation in regional Grant programs and Regional Grant Awards in the event of approval of each Application.

Item #6.3.

3 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS Collaboration Between the Parties. The Parties agree to the following:
• Determining which Party will serve as the Host Agency to submit a Regional Grant program Application and serve as Grant
administrator for the Participating Parties in the event of award. • Pursuant to the specific Grant program guidelines, all items approved under the Application will be procured and administered through the Host Agency in event of Award.
• The Host Agency will provide accountability for the assets acquired under the Regional Grant Award and provide reporting requirement deliverables. As such, Participating Parties agree to provide the Host Agency with this information on a timely basis to remain in compliance with the requirements of the Grant and the Grant Agreement.
• The Participating Parties agree to accept the regional Grant program Award and accept their respective items as listed in the Grant application in the event of approval, in accordance with each Party’s existing policies and practices.
• Any expenditure beyond the Grant Award for a Party’s approved item(s) remains the sole responsibility of that Party.
• The Participating Parties agree to allow the Host Agency to procure and distribute their respective assets if Awarded under the regional Grant program.
• The Participating Parties agree to participate in cooperative training on all equipment procured under the Regional Grant Award as appropriate. Training will be coordinated through the Host Agency.
• The Participating Parties agree to maintain/repair all items awarded to them under the Application in accordance with the manufacturer’s warranty, and to replace the equipment if it becomes inoperable for a period required after official closeout of the Grant Agreement.
• The Participating Parties agree to promptly provide any additional documentation to the Host Agency as requested, that may be necessary in connection with the Grant.
• Participating Parties agree to promptly return any equipment or deliverables that are received in error to the Host Agency. • Each Participating Party understands that all records created as a result of participating in the Regional Grant program may be subject to the public disclosure pursuant to the Public Records Act and shall be responsible for compliance with any public records request served upon it.
• Each Participating Party shall maintain its own respective records and documents associated with this MOU sufficient to
demonstrate compliance with the terms of this MOU for a period of five years from the termination of this MOU.

4. INVOICING AND PAYMENT. The Participating Parties agree to provide the required monetary match for the total cost of their requested items as detailed in the Regional Grant Application as required under the Regional Grant program guidelines. The required match shall be paid by the Participating Parties upon receipt of an invoice from the Host Agency, in Item #6.3.

4 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS advance of associated procurement. The cash match will be determined among the Parties and based on percentage of benefit.

In the event of a reduced award, the Participating Parties agree to accept this reduced amount and provide a cash match on the total reduced Award amount of their approved items.

5. MUTUAL INDEMNIFICATION. To the full extent permitted by law, each Party will indemnify, hold harmless, release, and defend the other Parties (including their officers, elected or appointed officials, employees, volunteers, and agents) from and against any and all liability or claims (including actions, demands, damages, injuries, settlements, losses, or costs [including legal costs and attorney's fees) (collectively, “Liability”) of any nature, arising out of, pertaining to, or relating to the indemnifying Party’s acts or omissions under this MOU. The indemnifying party’s indemnification obligations under this MOU are not limited by any limitations of any insurance held by each Party, including, but not limited to, workers’ compensation insurance.

6. NO WAIVER. The waiver by any of the Parties of any breach or violation of any requirement of this MOU shall not be deemed to be a waiver of any such breach in the future, or of the breach of any other requirement of this MOU.

7. NOTICES. All notices required or authorized by this MOU shall be in writing and shall be delivered in person or by deposit in the United States mail, by certified mail, postage prepaid, return receipt requested. Any mailed notice, demand, request, consent, approval, or communication that any Party desires to give to any other Party shall be addressed to the other Party at the address set forth below. Any Party may change its address by notifying the other Parties of the change of address. Any notice sent by mail in the manner prescribed by this paragraph shall be deemed to have been received on the date noted on the return receipt or five days following the date of deposit, whichever is earlier.

AMERICAN CANYON FIRE PROTECTION DISTRICT CITY OF NAPA
Fire Chief Fire Chief
911 Donaldson Way East P.O. Box 660
American Canyon, CA 94503 Napa, CA 94559
CITY OF CALISTOGA CITY OF ST. HELENA
Fire Chief Fire Chief
1113 Washington Street 1088 College Ave
Calistoga, CA 94515 St. Helena, CA 94574

COUNTY OF NAPA
Fire Chief
951 California
Napa, CA 94559

8. COMPLIANCE WITH LAWS. In performing any services required under this MOU the Parties shall observe and comply with all applicable Federal, State, and local laws, ordinances, and codes.

9. AUTHORITY TO CONTRACT. The Parties each warrant hereby that they are legally permitted and otherwise have the authority to enter and perform this MOU.

Item #6.3.

5 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS

10. PRIVILEGES AND IMMUNITIES. In accordance with California Government Code section 6513, all of the privileges and immunities from liability, all exemptions from laws, ordinances and rules, and all pension, relief, disability, workmen’s compensation, and other benefits which apply to the activity of the trustees, officers, employees or agents of the Parties when performing their functions within the territorial limits of their respective public agencies, shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties associated with performance of this MOU.

11. THIRD PARTY BENEFICIARIES. Nothing contained in this MOU shall be construed to create any rights in third parties and the Parties do not intend to create such rights.

12. ATTORNEY'S FEES. If any of the Parties commence legal action of any kind or character to either enforce the provisions of this MOU or to obtain damages for breach thereof, the prevailing party in such litigation shall be entitled to all costs and reasonable attorney's fees incurred in connection with such action.

13. ENTIRETY OF CONTRACT. This MOU constitutes the entire agreement between the Parties relating to the subject of this MOU and supersedes all previous MOUs, promises, representations, understandings, and negotiations, whether written or oral, among the Parties with respect to the subject matter hereof.

14. SEVERABILITY. If any term of this MOU (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, this MOU will be construed as not containing that term, and the remainder of this MOU will remain in full force and effect; provided, however, this section will not be applied to the extent that it would result in a frustration of the Parties’ intent under this MOU.

15. COUNTERPARTS. This MOU may be executed in counterparts, each one of which is deemed an original, but all of which together constitute a single instrument. [SIGNATURES ON FOLLOWING PAGE]
Item #6.3.

6 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS IN WITNESS WHEREOF, the Parties hereto have executed this MOU to be effective on the Effective Date set forth below.

CITY OF NAPA, a California Charter City:

STEVE POTTER, City Manager
ATTEST:

TIFFANY CARRANZA, City Clerk
Date: ___________________________
(“Effective Date”)
COUNTERSIGNED:

ERIKA LEAHY, City Auditor
APPROVED AS TO FORM:

MICHAEL W. BARRETT, City Attorney
NAPA COUNTY, a political subdivision of the State of California By:

JOELLE GALLAGHER, Chair Board of Supervisors

APPROVED AS TO FORM
Office of County Counsel
By: Shana A. Bagley
Deputy County Counsel
Date: January 9, 2024
[PL No. 102056_5]

APPROVED BY THE NAPA

COUNTY BOARD OF

SUPERVISORS
Date:

Processed By:

Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Supervisors
By:____________________
Item #6.3.

7 MEMORANDUM OF UNDERSTANDING – REGIONAL GRANT APPLICATIONS

AMERICAN CANYON FIRE PROTECTION DISTRICT,
a subsidiary special district of the City of American Canyon By:

LEON GARCIA, Chair, Board of Directors
By:

GEOFF BELYEA, Fire Chief / District Clerk
By: ___________________________________
WILLIAM D. ROSS, District Counsel

CITY OF CALISTOGA
a California city
By:

LAURA SNIDERMAN, City Manager
By:

YUDIANA GALVAN, City Clerk
CITY OF ST. HELENA
a California city
By:

ANIL COMELO, City Manager
By:

CINDY TZAFOPOULOS, City Clerk
Item #6.3.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Derek Rayner, Public Works Director/City Engineer Meeting: City Council - Feb 06 2024
Subject: Construction Contract Award to T&S Intermodal Maintenance, Inc. for the Community Center Siding Repair Project
DESCRIPTION:

1. Authorizes the City Manager to award a construction contract in an amount not to exceed $79,897.30 to T&S Intermodal Maintenance, Inc. to construct the Community Center Siding Repair Project.

2. Approves the Project construction budget in the amount of $96,000 that includes a contingency of 20% for change orders and authorizes the Public Works Director to negotiate and approve contract change orders, and contract with a special inspections firm, up to the approved construction budget amount.

3. Directs staff to issue a notice of award to T&S Intermodal Maintenance, Inc. and otherwise administer the Project.

4. Waives any informalities or irregularities in T&S Intermodal Maintenance, Inc. bid.

RECOMMENDATION:

Consider adopting resolution.

BACKGROUND/SUMMARY:

The city owns and maintains 11 buildings as well as three public bathroom structures. The project will consist of siding replacement community center building. The Community Center building is around 40-years old and has large sections of the exterior siding that have significant dry rot. The building has been painted over several times, but the recommended repair at this stage is to replace significant sections of the wood siding inspect framing, possible spot framing repairs, adding some new insulation, and repainting. This project will also replace the existing sliding glass doors with more energy efficient fixed frame windows.

The contract award is for T&S Intermodal Maintenance, Inc., to provide construction services to purchase and install the improvements. T&S Intermodal Maintenance, Inc. services were competitively bid through the Gordian/Sourcewell ezIQC®, process. The ezIQC® process streamlines procurement by taking advantage of the “already competitively bid” processes that meet California public contracting requirements.

Item #6.4.

Staff has reviewed the bid from T&S Intermodal Maintenance, Inc. and recommends that the City Council award the contract to T&S Intermodal Maintenance, Inc.

CEQA STATUS:

Per CEQA guidelines section 15301(b) this project is replacing existing facilities with negligible or no expansion of use, and therefore exempt from CEQA.

FINANCIAL IMPACT:

The Project is included in the FY23/24 Budget under Account #01-5653-4915 - Facility Improvements – Community Center which has $185,000 in total available funding. The total project cost of $96,000 is well within this budget amount. We have a higher-than-normal contingency on the project in case more significant repairs are needed to repair additional dry rot.

ATTACHMENT(S):

1. Draft Resolution

2. Construction Contract to T&S Intermodal Maintenance, Inc.

Item #6.4.

RESOLUTION 2024-XXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY OF

NAPA, STATE OF CALIFORNIA, AUTHORIZING THE CITY MANAGER TO AWARD A CONSTRUCTION CONTRACT IN AN AMOUNT NOT TO EXCEED $79,898 TO T&S INTERMODAL MAINTENANCE, INC. TO CONSTRUCT THE COMMUNITY CENTER

SIDING REPAIR PROJECT
WHEREAS, the City owns and maintains 11 buildings as well as three public bathroom structures; and
WHEREAS, due to the age of the Community Center building, large sections of the exterior siding have been found to have significant dry rot; and WHEREAS, the building has been painted over several times, but the recommended repair at this stage is to replace significant sections of the wood siding inspect framing, possible spot framing repairs, adding some new insulation, and repainting; and
WHEREAS, this project will also replace the existing sliding glass doors with more energy efficient fixed frame windows; and
WHEREAS, the contract award is for T&S Intermodal Maintenance, Inc., to provide construction services to purchase and install the improvements. T&S Intermodal Maintenance, Inc. services were competitively bid through the Gordian/Sourcewell ezIQC®, process. The ezIQC® process streamlines procurement by taking advantage of the “already competitively bid” processes that meet California public contracting requirements; and
WHEREAS, staff has reviewed the bid from T&S Intermodal Maintenance, Inc. and recommends that the City Council award the contract to T&S Intermodal Maintenance, Inc.; and
WHEREAS, per CEQA guidelines section 15301(b) this project is replacing existing facilities with negligible or no expansion of use, and therefore is exempt from CEQA; and

WHEREAS, the FY23/24 Budget under Account #01-5653-4915 - Facility Improvements – Community Center which has $185,000 in total available funding.

The total project cost of $96,000 is well within this budget.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES HEREBY find the following:

1. Authorizes the City Manager to execute the contract in an amount not to exceed $79,898 to T&S Intermodal Maintenance, Inc. to construct the Community Center Siding Repair Project.

2. Approves the Project construction budget in the amount of $96,000 that includes a contingency of 20% for change orders and authorizes the Public Works ATTACHMENT 1 Item #6.4.

Resolution No. 2024-XXX

Director to negotiate and approve contract change orders, and contract with a special inspections firm, up to the approved construction budget amount.

3. Directs staff to issue a notice of award to T&S Intermodal Maintenance, Inc. and otherwise administer the Project.

4. Waives any informalities or irregularities in T&S Intermodal Maintenance, Inc. bid.

PASSED, APPROVED AND ADOPTED this 6
th day of February, 2024. I,

YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

ATTEST: APPROVED:
____________________________ __________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.4.

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Item #6.4.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Yudiana Galvan, City Clerk
Meeting: City Council - Feb 06 2024
Subject: Appointments to the Active Transportation Committee and the Climate Action Committee
DESCRIPTION:

Consider adopting a resolution confirming the Mayor's appointments to the unscheduled vacancy in the Active Transportation Committee and the Climate Action Committee RECOMMENDATION:

Consider the recommendations and adopt the Resolutions.

BACKGROUND/SUMMARY:

Under Government Code § 40605 the Mayor, with the approval of the City Council, shall make all appointments to boards, commissions, and committees. The current openings include one (1) unscheduled vacancy in the Active Transportation Committee and one (1) alternate position in the Napa County Climate Action Committee
The recommended Resolution would confirm the Mayor's appointment of Melinda Mendoza to the unscheduled vacancy in the Active Transportation Committee with the term expiring on 12/31/2024.

The Napa County Climate Action Committee (CAC) regular meeting schedule for 2024 has been adopted and per the CAC bylaws amended 5/23/23, the CAC member “jurisdiction’s Council or Board shall also appoint one alternate to serve in a members’ place in the event they will be absent during a committee meeting.” Currently, Councilmembers Eisenberg and Gift are appointed to the committee and an alternate needs to be appointed by Resolution.

CEQA STATUS:

None
ATTACHMENT(S):

12.19.23 Committee Appointment Resolutions
Resolution Climate Action Committe Appointment

MENDOZA APP- ATAC
APPROVAL(S):

Item #6.5.

Jessie Catacutan Approved - Jan 25 2024
Laura Snideman, City Manager Approved - Jan 29 2024
Yudiana Galvan, City Clerk Approved - Jan 29 2024
Item #6.5.

RESOLUTION NO. 2024-XXX
ADOPTED FEBRUARY 6, 2024

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY

OF NAPA, STATE OF CALIFORNIA, CONFIRMING THE MAYORS APPOINTMENT

TO THE UNSCHEDULED VACANCY IN THE ACTIVE TRANSPORTATION

COMMITTEE
WHEREAS, California Government Code Section 65300 states that the Mayor, with the approval of the City Council, shall make all appointments to boards, commissions, and committees; and
WHEREAS, the State of California has adopted the “Maddy Appointive List Act”, which requires the preparation of a list of all regular and ongoing commissions and committees appointed by the local legislative body. The Act also requires public notice to be given anytime a vacancy occurs on any of these ongoing bodies; and WHEREAS, the City Council wishes to utilize the largely untapped reservoir of talent which exists among the citizenry that all too frequently is not aware of the opportunities for participation on local regulatory and advisory boards and commissions; and
WHEREAS, pursuant to State Legislation the City Council of the City of Calistoga is required to appoint representatives for the Planning Commission.

NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of Calistoga hereby confirms the Mayor’s appointment of the following individual to the unscheduled vacancy in the Active Transportation Committee expiring 12/31/2024:

Melinda Mendoza
PASSED, APPROVED AND ADOPTED this 6th day of February 2024. I,

YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
__________________________ __________________________
Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.5.

RESOLUTION NO. 2024–0XX
ADOPTED FEBRUARY 6, 2024

RESOLUTION OF THE CITY OF CALISTOGA, COUNTY OF NAPA, STATE OF CALIFORNIA CONFIRMING THE MAYOR’S APPOINTMENT OF AN ALTERNATE TO THE

NAPA COUNTY CLIMATE ACTION COMMITTEE
WHEREAS, California Government Code Section 40605 states the Mayor, with the approval of the City Council, shall make all appointments to boards, commissions, and committees; and
WHEREAS, The Napa County Climate Action Committee requires the appointing of an alternate board member from each jurisdiction per the recently amended CAC bylaws.

NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Calistoga hereby confirms the Mayor’s appointment of Vice Mayor Lopez-Ortega to be the alternate to the Napa County Climate Action Committee.

PASSED, APPROVED AND ADOPTED this 6th day of February 2024. I, YUDIANA GALVAN, INTERIM CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
____________________________ __________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.5.

CITYof CALISTOGA

BOARDS AND COMMISSIONS APPLICATION
Citizens are encouraged to serve on the various City commissions. Applications will be reviewed and interviews may be scheduled with the City Council. Commission appointments are made at a regular meeting of the City Council.

Application for:

City Active Transportation Advisory
Committee
City Building Standards and Advisory
Appeals Board
City Green Committee
County Library Commission
Napa County Bicycle Advisory Committee
Napa County Measure A Financial Oversight Committee
Napa County Mosquito Abatement Board
City Planning Commission
Other Committees______________________________
Name:

Last First M.I.

Telephone:

Home Business Facsimile
E-mail Address:

Physical Address of Residence:

Mailing Address:

Business Address:

Occupation:

Are you a resident of the City of Calistoga? Yes No Years of residency:

Education and/or related background:

Licenses or special certificates held:

Mendoza Melinda Calistoga, CA 94515 Bilingual Administrative Assistant- CJUSD 9 Some college ACTFL Certificate in Oral & Writing Proficiency- Spanish Item #6.5.

City of Calistoga Application for Appointment continued:

Organizations to which you belong (professional, technical, community, services):

State specifically why you wish to serve, why you believe you are qualified for the position, and what you might contribute to the group:

(Use additional paper, if necessary)
References (include name and daytime phone number: (1)
(2)
List any other committees/commissions on which you have served, and the year(s) of service:

Please Note: Appointment to this position may require you to file a conflict of interest disclosure statement with the City Clerk. This information is a public record and these statements are available to the public on request.

I have read, understand, and will abide by this statement (please initial) ______.

I have sufficient time to devote to this responsibility and plan to attend the required meetings if I am appointed to fill a vacancy
______________________ _______________________________________ Date Signature of Applicant
Completed application should be returned to
City Clerk
1232 Washington Street
Calistoga, CA 94515
For questions please call the City Clerk at (707) 942-2807.

ATAC (term ended 12/31/23) I wish to serve again because there are more ways in which I can contribute to our city through ATAC. During my previous term, our committe was able to succefully create a speed cushion policy which was adopted by our city. I believe I am qualifed for the position because I have proved that I can work as a team in order to provide a safer Calistoga for everyone. I am willing to contribute as muchas is needed ATAC- 1 year 1/11/2024 in order to continue improving the safety of our town.

Item #6.5.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Derek Rayner, Public Works Director/City Engineer Meeting: City Council - Feb 06 2024
Subject: Award the Riverside Ponds & Headworks Mitigation Project DESCRIPTION:

Consideration of a Resolution that: 1. Conditionally awards a construction contract to Argonaut Constructors Inc. for the Riverside Ponds & Headworks Mitigation Project (Project) for the base bid amount of $5,056,615, subject to Argonaut Constructors providing all documents in satisfaction of the bid award requirements, and the city waives and minor bid irregularities. 2. Approves the Project construction budget in the amount of $6,566,615, which includes the base bid in the amount of $5,056,615, a contingency of 15% for construction in the amount of $750,000 and 15% for construction management, environmental compliance, special inspections, and material testing with a budget amount of $760,000 and authorizes the Public Works Director to negotiate and approve contract change orders up to the approved construction budget amount. 3. Authorizes the City Manager to execute the Project contract on behalf of the City of Calistoga. 4. Authorizes the City Manager to negotiate and execute a Professional Service Agreement to a qualified consultant to perform construction management, environmental compliance, special inspections, and material testing with a budget amount of $760,000. 5. Directs staff to issue a notice of award to Argonaut Constructors Inc. and otherwise administer the Project.

RECOMMENDATION:

Consider adopting resolution.

BACKGROUND/SUMMARY:

The four riverside ponds built in 1974 at the Wastewater Treatment Plant, were designed as percolation ponds and are located adjacent to the Napa River and contain tertiary treated effluent.

Heavy erosion of the Napa Riverbank has significantly progressed towards the edge of these ponds and catastrophic failure of the bank is imminent without corrective action. The headA Mitigated Negative Declaration was prepared for the Project in August 2019 and a Notice of Completion of CEQA documents was filed with Napa County Recorders Office on December 16, 2019works structure at the Wastewater Treatment Plant, which was built in 2002, is located across from the Riverside Ponds adjacent to Simmons Creek and contains raw, untreated sewer influent.

Significant creek bank erosion has progressed towards the edge of the headworks structure and catastrophic failure of the bank is also imminent without corrective action.

The San Francisco Bay Area Regional Water Quality Control Board has adopted a Cease and Desist Order (CDO), mandating that the City line or abandon the Riverside Ponds so they are no longer percolation ponds adjacent to the Napa River. These ponds are critical to the treatment system and provide much needed storage of treated effluent, hydraulic control over discharge to the river, a buffer for us to reprocess if there is a disruption in the treatment process, and they provide habitat for local wildlife.

Item #6.6.

City staff applied for and received grant funding for the project from the Hazard Mitigation Grant Program (HMGP), along with Prop 1 funding from the Bay Areas Integrated Regional Water Management Plan (IRWMP).

The city was awarded funding and began the RFP and procurement process to hire a consultant to complete design/permitting and to prepare bid documents. Your council awarded Bennett Engineering the design/permitting contract in July 2022, and bid documents were finished in September of 2023.

The project was advertised for bid on October 23, 2023. The Engineer’s Estimate for the project was $3,600,000, with a bid alternative of $1,000,000. On January 10, 2024, six bids were received as summarized below:

Argonaut Constructors $5,056,615.00
Azul Works Inc. $5,080,575.00
Maggiora & Ghilotti, Inc. $5,334,557.00
Hanford Applied Restoration and Conservation $5,539,085.00 Granite Construction $6,491,970.00
Suulutaaq Inc $6,720,919.00
The bids were higher than the Engineer’s Estimate due to higher than anticipated cost of earth work and utilities.

Argonaut Constructors Inc. was initially identified as the apparent low bidder. Staff have reviewed the low bid from Argonaut Constructors Inc., performed due diligence, and performed reference checks. Based on this review staff recommends that the City Council find Argonaut Constructors Inc. to be the lowest responsive and responsible bidder.

CEQA STATUS:

A Mitigated Negative Declaration was prepared for the Project in August 2019 and a Notice of Completion of CEQA documents was filed with Napa County Recorders Office on December 16, 2019
FINANCIAL IMPACT:

The total construction cost is $6,566,615includes the base bid in the amount of $5,056,615, a contingency of 15% for construction in the amount of $750,000 and 15% for construction management, environmental compliance, special inspections, and material testing in the amount of $760,000.

The Riverside Ponds project was included in FY23/24 CIP, fund #13-5540-4905, totaling $5,120,000, and included an estimated $3,200,000 grant funds and $1,920,000 funds from Sewer Enterprise. The cost to complete design and permitting in FY23/24 was $80,084. The remaining available balance in the account is $5,039,916.

A budget adjustment of $1,526,699 ($6,566,615 - $5,039,916) is being requested to complete the construction project. Staff secured an additional $134,727 in FEMA HGP grant funding and was able to reallocate $334,655 of the IRWMP Grant funding to be used for this project, totaling $469,382. Staff recommends the remaining $1,057,317 ($1,526,699 - $469,382) be provided by:
$500,000 from the general fund loan to sewer enterprise, which was recently adopted in the midyear budget adjustment.

Item #6.6.

The remaining $557,317, would be funded by redirecting money from three Sewer CIP accounts to the Riverside Ponds River Restoration Account No. 13-5540-4905:
$50,000 Master Services Agreement Account No. 13-5661-4915 $257,317 Sewer Main Extension Reimbursement Account No. 13-5629-4915 $250,000 Equalization Basin Liner Project Account No. 13-5660-4915 Staff will be requesting additional grant funds from both agencies (HMGP/IRWMP), but we have limited confidence that there will be any additional grant funding available.

ATTACHMENT(S):

Draft Resolution

2. Contract Proposal

3. Contract for Construction
APPROVAL(S):

Jessie Catacutan Approved - Jan 29 2024
Laura Snideman, City Manager Approved - Jan 29 2024
Yudiana Galvan, City Clerk Approved - Jan 30 2024
Item #6.6.

RESOLUTION NO. 2024-XXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY

OF NAPA, STATE OF CALIFORNIA, CONDITIONALLY AWARDING A
CONSTRUCTION CONTRACT TO ARGONAUT CONSTRUCTORS, INC. AND

AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT WITH A BUDGET IN THE AMOUNT OF $6,396,615 FOR THE RIVERSIDE PONDS &

HEADWORKS MITIGATION PROJECT
WHEREAS, the four riverside ponds at the Wastewater Treatment Plant were built in 1974, and were designed as percolation ponds located adjacent to the Napa River and contain tertiary treated effluent; and
WHEREAS, heavy erosion of the Napa Riverbank has significantly progressed towards the edge of these ponds and catastrophic failure of the bank is imminent without corrective action; and
WHEREAS, the headworks structure at the Wastewater Treatment Plant was built in 2002, is located across from the Riverside Ponds adjacent to Simmons Creek and contains raw, untreated sewer influent; and
WHEREAS, significant creek bank erosion has progressed towards the edge of the headworks structure and catastrophic failure of the bank is also imminent without corrective action; and
WHEREAS, the San Francisco Bay Area Regional Water Quality Control Board has adopted a Cease and Desist Order mandating that the City address the Riverside Ponds line or abandon the Riverside Ponds so they are no longer percolation ponds adjacent to the Napa River; and
WHEREAS, these ponds are critical to the treatment system and provide much needed storage of treated effluent, hydraulic control over discharge to the river, a buffer for us to reprocess if there is a disruption in the treatment process, and they provide habitat for local wildlife; and
WHEREAS, city staff applied for and received grant funding for the project from the Hazard Mitigation Grant Program (HMGP), along with Prop 1 funding from the Bay Areas Integrated Regional Water Management Plan (IRWMP); and WHEREAS, project plans and specifications were prepared by Environmental Science Associates and Bennett Engineering; and
WHEREAS, an Invitation to Bid was circulated on October 23, 2023, and six bids were received by the City; and
ATTACHMENT 1
Item #6.6.

Resolution No. 2024-XXX

WHEREAS, the apparent low bidder is Argonaut Constructors Inc., with a base bid in the amount of $5,056,615 and the second apparent lowest bidder is Azul Works with a base bid in the amount of $5,080,575; and
WHEREAS, city staff has confirmed that the bid from Argonaut Constructors Inc. is responsible and responsive and satisfies the bidding requirements for the Project as described in the bid instructions. Staff has also determined that Argonaut Constructors Inc. possesses the required license(s) for this Project and is otherwise qualified to perform the Project in accordance with the Contract documents; and WHEREAS, staff has determined that Azul Works also possesses the required license(s) for this Project and is otherwise qualified to perform the Project in accordance with the Contract documents; and
WHEREAS, staff recommends a contract be awarded to Argonaut Constructors Inc. for its base bid in the amount of $5,056,615; and
WHEREAS, staff recommends the City Council approve a total construction budget in the amount of $6,566,615 that includes contract award amount of $5,056,615 plus a 15% contingency and $760,000 for construction management, inspection, environmental compliance and material testing; and
WHEREAS, staff recommends the City Council authorize the City Manager to execute a professional service agreement with a qualified consultant to perform construction management, inspection, environmental compliance and material testing for a budget amount of $760,000; and
WHEREAS, the Project was included in FY23/24 CIP, fund #13-5540-4905, totaling $5,120,000, and included an estimated $3,200,000 grant funds and $1,920,000 funds from Sewer Enterprise. The remaining available balance in the account is $5,039,916; and
WHEREAS, a budget adjustment of $1,526,699 ($6,566,615 - $5,039,916) is being requested to complete the construction project; and WHEREAS, staff secured an additional $134,727 in FEMA HGP grant funding and was able to reallocate $334,655 of the IRWMP Grant funding to be used for this project, totaling $469,382; and
WHEREAS, staff recommends the remaining $1,057,317 ($1,526,699 - $469,382) be provided by: $500,000 from the general fund loan to sewer enterprise, which was recently adopted in the mid-year budget adjustment, and the remaining $557,317 would be funded by redirecting money from three Sewer CIP accounts; $50,000 from the Master Services Agreement (#13-5661-4915), $257,317 from Sewer Main Extension Reimbursement (#13-5629-4915), and $250,000 from the Equalization Basin Liner Project (#13-5660-4915) to the Riverside Ponds River Restoration CIP Account No. 13-5540-4905; and
Item #6.6.

Resolution No. 2024-XXX

WHEREAS, a Mitigated Negative Declaration was prepared for the Project in August 2019 and a Notice of Completion of CEQA documents was filed with Napa County Recorders Office on December 16, 2019.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES HEREBY find the following:

1. The bid from Argonaut Constructors Inc. is the lowest responsive and responsible bid and the City hereby waives any and all minor bid irregularities.

2. Approves the Project Plans, Specifications and Construction Documents.

3. Approves a total construction budget in the amount of $6,566,615 that includes contract award amount of $5,056,615 plus a 15% contingency and $760,000 for construction management, inspection, environmental compliance and material testing.

4. Approves a construction management, environmental compliance, special inspections, and material testing budget for the amount of $760,000.

5. Approves the City Manager to execute a construction management contract with a qualified for this project on behalf of the City of Calistoga.

6. Approves budget adjustments as detailed in the "WHEREAS" statements and further authorizes expenditures from the FY 2023/2024 CIP Budget in sewer enterprise funds in the amount of $6,566,615.

7. Awards the construction contract to Argonaut Constructors Inc. for its base bid in the amount of $5,056,615 for construction of the Riverside Ponds & Headworks Mitigation Project conditioned upon Argonaut Constructors Inc. providing all documents in satisfaction of the bid award requirements.

8. Authorizes the City Manager to execute the Construction Contract on behalf of the City of Calistoga.

9. Directs staff to issue a Notice of Award to Argonaut Constructors Inc. and otherwise administer the Project.

Item #6.6.

Resolution No. 2024-XXX

PASSED, APPROVED AND ADOPTED this 6
th day of FEBRUARY 2024. I,

YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

ATTEST: APPROVED:
______________________________ ______________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #6.6.

CONTRACT PROPOSAL

TO CITY OF CALISTOGA FOR

RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT
NO. 21-5547
Name of Bidder Argonaut Constructors, Inc.

Business Address 360 Sutton Place Santa Rosa, CA 95407
Te lephone (ZOI} 542-4862
TO THE CITY COUNCIL OF THE CITY OF CALISTOGA:

Pursuant to and in comp liance with your Notice Inviting Bids for the RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT NO. 21-5547 and the other Contract Documents relating thereto, the undersigned Bidder, being ful ly famil iar with the terms of the Contract Documents, the current general prevailing wage rates, local conditions affecting the performance of the Project, the character, quality, quantities and scope of the work, and the cost of the work at the place of performance, hereby proposes and agrees, within the time stipulated in the Contract Documents, to furnish to the City of Calistoga all of the transportation, materials, equipment, tools, excavation, sheeting, shoring, bracing, supports, plant and other facilities, labor, services, permits, utilities, and other items necessary to conduct and complete said work, all in strict conformity with the Contract Documents, including Addenda No. _1_, dated 12/14/2023 , Addenda No. _2_ , dated 12/19/2023 , and Addenda No. _ 3_, dated 12/28/2023 (if applicable) on file in City Hall, for the total base bid price of hid/Yr/;/(,-,,, r.;-(9: Sr~ ¾!!1-J ~i'>'. Y...hJ (j(twi, Pofo.r~f ~ dollars ($ b. C'Yob .bI5" ), which is in agreement with the sum of the unit prices in the Base Bid Schedule, , ' hereinafter set forth.

As provided in Labor Code Section 6707, if the work to be performed includes trenching or excavation more than five feet {5') in depth, each bid must set forth as a separate bid item, sheeting, shoring, and bracing or equivalent method for protecting workers: All such costs are included in the total price set forth above.

Bidder declares that the only persons or parties interested in this proposal are those named herein, and that this proposal is made without coll usion with any person, firm or corporation. Bidder proposes and agrees, if the proposal is accepted, that Bidder wi ll execute a contract with the City, in strict conformity to the Contract Documents, in the form set forth in the Contract Documents, and will perform the entire work for the prices set forth in the attached Bid Schedule, upon which the award of contract is made.

SUBMITTED on January 10 , -=2-=c...02=-4-'----
State Contractor License No. ~1=7~1~4=3=2 _____________ _ Employer's Tax ID No. 94-1372854 ----------------- DIR Registration No._1_0_00_0_0_2_9_6_9 ____________ _ If Bidder is:

An Individual
Name (typed or printed): ______________________ _
15 SEAL, if required
by State
ATTACHMENT 2
Item #6.6.

Item #6.6.

By: __________________________ _
{Individual's signature)
Doing business as: ________________________ _
Business Address: ------------------------- Phone No. (_ ) ______ FAX No. (_ ) ____ E-Mail Address ____ _ A Partnership
Partnership Name: ________________________ _
By: ------------------------------
(Signature of general partner -- attach evidence of authority to sign) Name (typed or printed): ---------------------- Business address: ------------------------- Phone No.(_ ) _____ FAX No.(_ ) _____ E-Mail Address ____ _ A Corporation
Corporation Name: Argonaut Constructors, Inc.

State of Incorporation: _ C_a_l_if_o_rn_i_a _________________ _ neral Business, Profession, Service, Limited Liability): General Business By: --+--17:.~_;;Q~ ----"""---------------
(Signature - attach evidence of authority to sign)
Name (typed or printed): _L_a_nc_e_A_ B_u_s_h_n_el_l ______________ _ Business address: 360 Sutton Place Santa Rosa, CA 95407 SEAL, if required
by State

CORPORATE
SEAL, if required by
State
Phone No. (.1m)542-4862 FAX No. ( 70?)542-3210 E-Mail Address [email protected] Date of Qualification to do business is: __ 11...,L~D-S'+-/_19- 5- 7~---------- A Joint Venture
Joint Venture Name: ______________________ _
By: -----------------------------
16 SEAL,
if required
by State
Item #6.6.

{Signature of joint venture partner -- attach evidence of authority to sign) Name (typed or printed): ____________________ _
Title:
----------------------------
Business address: ------------------------
Phone No. (_ ) ____ FAX No. (_ ) _____ E-Mail Address ____ _ Joint Venture Name: ______________________ _
By: _______________________ _
{Signature of joint venture partner -- attach evidence of authority to sign) Name (typed or printed): ____________________ _
Title: ---------------------------- Business Address: ----------------------- Phone No. (_ ) ____ FAX No. (_ ) ___ E-Mail Address ______ _ Phone and FAX Number, and Address for receipt of official communications:

SEAL, if required
by State
(Each joint venturer must sign. The manner of signing for each individual, partnership, and corporation that is party to the venture should be in the manner indicated above.) 17 Item #6.6.

GRADING & PAVING • UNDERGROUND PIPELINE • ~ECHANICAL SYSTEMS ..

A SIGN OF PROGRESS SINCE 1 957
A C A LIFORN IA CO R PO RAT I ON CONTR A CTOR S LI C EN SE ND. 1 7 1 43 2 RESOLUTION OF ARGO:\AlJT CONSTRUCTORS, INC.,
a California Corporation
The undersigned, be ing the President of Argonaut Constructors. lnc .. a Cal iforn ia corporation (the ··Corporation .. ). hereby confirms that the following resolut ion v;as approved by the unanimous vote of the Corporation·s Board of Directors. as of November I. 2013 (the "Effccti c Date .. ) at a special meeting of the Board which \\as duly and regularly called and held in all respects as provided by the byla\VS of the Corporation.

RESOLVED THAT. the Corporation hereby approves and appo ints ~1ichael A. Sm ith. the P1\'!siclent and Chief Executive Officer of the Corporation, Josh Ramey. the Secretary and Chief Financial Officer of the Corporation. Dan Giordani. the Vice President of Operations of the Corporation, Trevor tewan. the \'ice President of Assets, Fac ilities and Development and Lance Bushnell. the \'ice President of Estimating (each an ·'Authorized Representative''), to. on behalf of the Corporation. prepare and submit proposals for contract work. includ ing al l bid documents and bidder·s bonds. and if awarded. co execute such any agreements. surety bonds. and other documents as may be requ ired.

IT IS FURTHER RL'OL\ 'ED THAT any and al l actions heretofore or hereafter taken by any Authorized Representative. to execute and de li ver any of the agreements authorized by this Resolution. or to take any of the actions authorized by this Resolution. are hereby approved, ratified and conl1rn1ed in all respects as binclingobli uations of the Corporation.

The forego ing Resolution ,vas duly adopted and approved by the Board of Directors on the Effective Date.
360 Sutton Place • P.O. Box 639, Santa Rosa, California 95402 • 707 .542.4862 • fax 707 .542.3210 www.argonautconstructors.com
Item #6.6.

THIS PAGE INTENTIONALLY BLANK
18 Item #6.6.

l
RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT f
NO. 21-5547
~ REVISED BID SCHEDULE tJ BASE BID
Item Description Est. ~ Quantity Unit Unit Cost Amount
1 Mobilization & Demobilization 1 LS l~C?a:Y- 1.J..S, 000 - (not to exceed 6% of total base bid) 2 Clearing, Grubbing, & Stripping 1 LS wwo- J_:J_D I ct)C) - I 3 Demolition 1 LS J..;20,oco ... ,,_ 120 I roo4 Temporary Dewatering 1 LS 115/JCO- 17'5', cco5 SWPPP Compliance 1 LS 45,CCO- 45'JX}O - 6 Tribal Monitoring 1 LS ?:/:), CU) - 10,000-
7 Tree Removal 118 EA 11:x::o- JS-3, L/:CV8 Electrical 1 LS L/(1),eooc lf {J) I (}00 - 9 Erosion Control and Planting 1 LS 5 '-ID (XX) - I S-t/0, 000- 10 PLC Programming & SCADA 1 LS $80,000 $80,000 Configuration Allowance 11 Earthwork 1 LS 7(:,0J~O- ?bo-,.ooo12 Vegetated Rock Slope Protection 1,871 CY 1ss-- lf77,i06-- 13 Outfall Protection 78 CY 4s-o- 3c;,J,CO14 Engineered Streambed Material 90 CY Jp- 1q /£CO15 Vegetated Soil Lift 226 LF 445- j_CO, <;;70 - 16 Shrimp Habitat 226 LF 1 ltO - 3),, ,bt.fO - - 17 Class II Aggregate Base 588 CY 11.s-- "73',500 - 18 Pond Lining 1 LS i75", caJ- f7S- COO- - I
19 Pond Underdrain System 1 LS 21 \ CX,O - JJ1:,, ()00- Item #6.6.

20 Pond Inlet Piping 1 LS ss-s;cw- S-S-5-:CO?-
21 Pond Discharge Piping 1 LS 363,~- 3b 3, ('.Xt} -
22 3'x3' Drainage Inlet 1 EA 1 SC\Y- t s-oo- I I
23 Concrete - Pond Structures 5 CY "3, '-f{J)- 1,, (XX)- 24 Full Depth Trail Restoration - Oat Hill 1 LS j1S'o Mine 1 coo- Jro, xv- Ditch to Simmons Creek

TOTAL BASE
BID AMOUNT: 5, OS°b/ :.1,,G
Total Base Bid: M1,v W;/l-,,,, (-~fre S,x Tl~ s7X'. ij,J,.J Fr(fu.,,. DJlsf-?co Wr ten Amount
Dollars

ALTERNATE BID
Item Description Est. Unit Quantity
1 Demolish Abandoned Sanitary Sewer 1 LS Crossings
2 Recycled Water Force Main 1 LS
3 Flow Equalization Basin Connection 1 LS
4 Replace Broken Valve with Check 1 EA Valve
5 Motor Operated Gate Valves 7 &8 1 LS
6 Concrete Culvert Headwall 1 LS
7 Napa River Level Transducer 1 LS Assembly
Argonaut Constructors, Inc.

Company Name
Lane A Bushnell Vice President
Title
Unit Cost
(1), (Xt)-
1, no,oco1os,C/XJt!J, (XX>-
jfO,CW55,@-
J._LfD/)OOTOTAL

AL TERNA TE BID
AMOUNT:
01/10/2024
Date
Amount
bO,CU?-
1 /f'IO/XO -
,1,os:000-
60/X)o-
.100,0X>-
55/X?OiltoJtt>-
Item #6.6.

Item #6.6.

PROPOSED SUBCONTRACTORS
(To be submitted with Bid)
Pursuant to California Public Contract Code Section 4100 et seq., the following list gives the name, business address, and portion of work (description of work to be done) for each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the work or improvements, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specifically fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of one percent of the prime contractor's total bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of one percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. Additional supporting data may be attached to this page. Each page shall be sequentially numbered, headed "Proposed Subcontractors" and shall be signed.

Name Address Contr Lie DIR Reg# Description & Cost of Work % of # Work
7Mtr ~(JV"' [/u,+r-,'v C11w.rCA Wb7b7 ~q [/u,fn u.-{ t3is-;~ro 7.6of, u-Jtrro.... s~+-w1 tA qb35'21 Jca;o~n16y PoJ L'f\.t,.r 1 J36, 76? 2.7</o Ul- 1'1.,J~ Si-Jw..._, CA. -ui;;J.t) Ja,,uiri;i... /ru Re,t,,()11~/ jl:23, W J.fo/o riv:""" w'x,o/'(/ wL~·r, l4 Lftl~ r; b :).- J~ :,q ~~t,, $ S'Ob15ocJ 1er;, The Prime Contractor must perform at least 50% of the work with its own forces.

After the award of contract, substitutions of the above-listed proposed subcontractors may only be made with the prior approval of the City of Calistoga in accordance with Public Contract Code Section 4107.

Sig2:-of~r
Lance A Bushnell Vice President Date
01/10/2024
21 Item #6.6.

PROPOSED SUBCONTRACTORS
(To be submitted with Bid)
Pursuant to Ca lifornia Public Contract Code Section 4100 et seq., the following list gives the name, business address, and portion of work (description of work to be done) for each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the work or improvements, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specifically fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of one percent of the prime contractor's total bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of one percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. Additional supporting data may be attached to this page. Each page shall be sequential ly numbered, headed "Proposed Subcontractors" and sha ll be signed.

Name Address Contr Lie DIR Reg# Description & Cost of Work % of # Work
The Prime Contractor must perform at least 50% of the work with its own forces.

After the award of contract, substitutions ofthe above-listed proposed subcontractors may only be made with the prior approval of the City of Calistoga in accordance with Public Contract Code Section 4107. ~ .... CAx<-7 __ _
Signature of Bidder
Lance A Bushnell Vice President Date
01/10/2024
21 Item #6.6.

PROPOSED SUBCONTRACTORS
(To be submitted with Bid)
Pursuant to Ca lifornia Public Contract Code Section 4100 et seq., the following list gives the name, business address, and portion of work (description of work to be done) for each subcontractor who wi ll perform work or labor or render service to the prime contractor in or about the construction of the work or improvements, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specifically fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-ha lf of one percent of the prime contractor's tota l bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of one percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. Additional supporting data may be attached to this page. Each page shall be sequentially numbered, headed /(Proposed Subcontractors" and shall be signed.

Name Address Contr Lie DIR Reg# Description & Cost of Work % of # Work
The Prime Contractor must perform at least 50% of the work with its own forces.

After the award of contract, substitutions of the above-listed proposed subcontractors may on ly be made with the prior approval of the City of Calistoga in accordance with Public Contract Code Section 4107. ~ture ~aof Bidder ~ Lance A Bushnell Vice President Date 01/10/2024
21 Item #6.6.

PROPOSED MAJOR MATERIAL SUPPLIERS
(To be submitted with Bid)
The bidder is required to furnish the following information on major materials and manufacturers who will be supplying materials in value of $10,000 or more. No substitutions will be allowed in materials or manufacturers without the prior written approval of the Engineer.

1. 2.

3. 4.

5. 6.

7. 8.

Lance A Bushnell Vice President Date
01/10/2024
22 ~ (l/
Dt211RI/<-f;rcJ/ £/~V
AFW- 5w~ cu ~
}J,...,~ ~~Cft!)o fl!v
[[!J~ -&II Rts~~~
51«- R~v- or HNt.bs
~ft{ B~r - ~, ~ f Cwstr s,i 0~
Item #6.6.

THIS PAGE INTENTIONALLY BLANK
23 Item #6.6.

CONTRACTOR'S EXPERIENCE AND QUALIFICATIONS
(TO BE COMPLETED BY BIDDER AND SUBMITTED WITH BID)
The following statements as to the experience and qualifications of the bidder are to be submitted with the Contract Proposal, as a part thereof. The truthfulness and accuracy of the information is guaranteed by the bidder.

1. The bidder has been engaged in the contracting business, under the present business name, for 66 years. Experience in work of a nature similar to that covered in the Proposal extends over a period of ...6,6__ years.

2. List two or more projects the bidder, as a contractor, has successfully completed that are of like magnitude, comparable difficulty and rates of progress to the proposed work, including:

YEAR DESCRIPTION
See attached list

CONTRACT AMOUNT

3. The bidder, as a contractor, has never failed to satisfactorily complete a contract awarded to the Contractor, except as follows: (name any and all exceptions and reasons therefor).

N/A

4. The bidder has satisfactorily completed the following contracts in the last three years, for the owner indicated, and to whom reference is made (list at least five contracts). Provide a contact person and telephone number for each project.

YEAR TYPE OF WORK
See attached list
24 CONTRACT

AMOUNT CONTACT
Item #6.6.

Owners Name Contact Phone# Job# Prolect Name Year Value of Work Tvoe of Work %Comolete Citv of St Helena Jon Lander 707 -968-2658 FOO St Helena Flood Protection-Phase 1 2009 $7,370,264.00 levees,wells,basins 100% :street
Town of Yountville Matt Schobel 510-206-1720 MO? Hoooer Creek lmorovement Proiect 2016 $2,518,578.00 imorovements 100% Drainage
Citv of Calistooa Derek Ravner 707-942-2789 M13 Grant Avenue Drainaae lmorovements 2016 $938,000.00 lmorovements 100% street dre,nage
Citv of Calistoga Mike Kirn 942-9472 17-2 Grant Street Drainage Phase II 2017 $563,705.00 improvements 100% Environmental Chemical Corp 17-23 2017- Santa Rosa Fire Cleanup 2017 $4,906,694.00 Fire debris removal 100% Private Private 21-22 Roseville Power Plant 2021 $344,000.00 100% Storm damage road
County of Sonoma Matt Vail 707-636-7020 21-21 Roadway repairs 3 locations in sonoma county 2021 $5,933,216.00 repairs 100% Item #6.6.

Attachment 2

CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than,Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loan, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
01/10/2024
Contractor Signature Date
68 Item #6.6.

DBE SUBCONTRACTOR UTILIZATION FORM
This form is intended to capture the prime contractor's actual and/or anticipated use of identified certified DBE1 subcontractors~ and the estimated dollar amount of each subcontract.

Prime Contractor Name Project Name
Argonaut Constructors Riverside Ponds & Headworks
Bid/Proposal No. Assistance Agreement ID No. (If known) Point of Contact Steve Langhals
Address
360 Sutton Place Santa Rosa, CA 95407
Telephone No.
707-542-4862
I Email Address
stevel@a rgon a utconstructors. com
Issuing/Funding Entity:

City of Calistoga
I have id entified potential DBE
0 NO certified subcontractors ffi YES
Subcontractor Name/ Company Address/Phone/Email Est. Dollar Amt Currently DBE Company Name Certified?
Nitta Erosion Control 3778 Del Mar Avenue
Loomis, CA 95650-9050 $4,600.00 Yes
1 A DBE is a Disadvantaged, Minority, Small or Woman Business Enterprise that has been certified as described in 40 CFR

33.204-33 .205.
2 Subcontractor is defined as a company, firm, joint venture or individual who enters into an agreement with a contractor to provide services.
33 Item #6.6.

I certify under penalty of perjury that the foregoing statements are true and correct. Signing this form does not signify a commitment to utilize the subcontractors above. In the event of a replacement of a subcontractor, I will adhere to the replacement requirements set forth in 40 CRF Part 33 Section 33.302(c).

Prime Contractor Print
Signature Name
l)(A_ a~ Lance Bushnell
" Title Date
Vice President January 10, 2024
34 Item #6.6.

• HYDROSEEDING
• EROSION CONTROL
• STRAW MULCHING
• PNEUMATIC MULCH SPREADING
• BONDED FIBER MATRIX
• SILT FENCE
EROSION CONTROL • DRILL SEEDING
A DIVISION OF NITTA INC. • FIBER ROLLS/ WATTLES
• BLANKETS
STATE LICENSE #401640 • C-27, C-61/D-59
3778 DEL MAR AVENUE• LOOMIS, CA 95650-9051 • PH (916) 652-7459 [email protected] • www.nittainc.net
Revised Bid - Proposal
January 9, 2024 To All General Contractors Requesting Sub-Bids.

Re: City of Calistoga, Department of Public Works, Riverside Ponds & Headworks Mitigation Project, Project No. 21-5547, Addendum Nos. 1-3. Bid Date: January 10, 2024 (2:00 p.m.).

Certified as DBE #217, as WMBE VON #10120139 (exp. 02/06/26) per CPUC Supplier Clearinghouse, and as SB (Micro) and SB-PW #0011303 (exp. 10/31/25). CCL #401640 C-27, C-61/D-59 (exp. 03/31/25). State of California Department of Industrial Relations Registration No. 1000000478 (exp. 06/30/24). Revised quotation supersedes one dated December 18, 2023 and is valid for (30) calendar days from bid date and unless quantities, scope of work and/or date of installation change(s). Nitta, Inc. dba Nitta Erosion Control is a full signat01y member of Local 185 of the Laborers' Union. Most cunent Laborers' Trust Fund Employer's Contribution Letter is available upon request to verify union membership status.

This revised quote will be for approximately 46,000 SF of Hydro seed to be installed in one (1) mobilization within 190 working days from the date of the notice to proceed(+/- fall 2024) . . ' . ) ; ~' . _____ , . .. , ;_· :',;
"'
Unit of Estimated Item
Item No. Item Measure Quantity Price Total
9 Erosion Control and
Planting (partial) -
Hydroseed (only) SF 46,000 $ 0,10 $ 4,600.00
Notes: 1) Total revised price includes submittals, certified payrolls, *standard certificates of insurance, waiver of subrogation (if required), materials, labor, equipment (air pollution control (CARB PERP-and DOORS-compliant)), taxes on materials, incidentals, and installation as per specifications and the following(@ per acre rates):

Seed Mix: 100# pure live seed (or PLS) - (25# PLS Wild (Common) Oats, 75ft PLS Annual Rye Grass).

Fertilizer: 300# I 6-6-8.

Fiber: 1,500# Profile wood fiber mulch.

Binder: 75# M-Binder.

Hydroseed materials shall be installed in one (I) application. * Our insurance limits are $1,000,000 for commercial general liability per occmTence with an aggregate of $2,000,000, $1,000,000 for automobile liability, $1,000,000 for workers' compensation and employer's liability, $1,000,000 for pollution liability and $5,000,000 for umbrella or excess liability. 2) Total revised price excludes Fiber Rolls, rolled erosion control products (RECPs), site preparation (trash, debris and weed removal and disposal, removal and disposal of loose rocks larger than 2 ½ inches in maximum dimension unless otherwise authorized), placement of stakes or other suitable markers at the locations designated by the Engineer, reinstallation ofHydroseed, coloring agent (already included in the wood fiber), Silt Fence, Bonded Fiber Matrix (BFM), Page I of2
Item #6.6.

City of Calistoga, Department of Public Works, Riverside Ponds & Headworks Mitigation Project, Project No. 21-5547, Addendum Nos. 1-3.

Nitta Erosion Control Revised Bid-Proposal dated January 9, 2024.

compost, straw mulching, straw incorporation, mycorrhizal inoculum, night work, clean up, dust control (our straw mulching machines are retrofitted for dust suppression with the "Dust Dog" (United States Patent US 8,550,384 B2 (10/08/13)), costs of local licenses, permits, fees and/or other taxes, watering, maintenance, pedesh·ian protection, guarantee and/or wairnnty, and traffic conh·ol (if required). 3) One (1) move-in (mobilization) is included in the total bid price. Additional move-ins (if necessary) are $950.00 each.

Approximately one (I) working day (weekends and holidays excluded) is required to complete an estimated 46,000 SF ofHydroseed. Stand-by time will be billed at $350.00 per hour. 4) Bond premium (performance and payment) rate is 2%. Minimum bond premium charge per project is $150.00.

Bond premium amount is not included in the bid price. Commercial Liability Insurance does not cover Railroad Protective Insurance, Coverage for "volunteers," Umbrella Liability Limits and/or Excess Liability Limits, Professional Liability, Avian Influenza A (Avian Flu --Absolute), Employment Related Practices, Silica (Absolute), Residential Conshuction Defect PCO, Consh·uction Wrap-UP/OCIP Exclusion, EIFS & Spray-on Siding, Known Damage or Injmy, Biological Contaminants - Mold, Fungus, Micro-Organisms (covered under Pollution policy), Engineers, Architects, or Surveyors Professional Liability, Nuclear Energy Liability, Lead (Absolute), Asbestos (Absolute), Injury to Independent Contractors, Residential Consh·uction Activities (Absolute except Apartments), Condominium Conversion, Beryllium, Advertising Liability and Certified Acts of Terrorism. With the exception that our bid-proposal shall in no event be construed to require indemnification by Subcontractor to a greater extent than pennitted under the public policy of the State of California, Subconh·actor shall indemnify and save hatmless Owner and Contractor only arising out of or in connection with Subconh·actor's operations to be perfmmed under this bid-proposal.
5) Terms: Due and payable within 30 days from date of installation and/or as per Business and Professional Code §7108.5 and Public Contract Code § 10262.5 (for progress payments) and/or as per Public Contract Code §7107 (for retention due).
6) Attorn.~y fees and interest: If comt actior; 0be instituted on this invoice, general conh·actor pron;ises to pay reasonable attorney fees. A late payment charge of I 1/2% per month will be charged on all invoices not paid within tenns of quote. This is annual percentage rate of 18 %. 7) General Contractor to provide and pay for water source on jobsite (i.e., fire hydrant with valid water meter and/or water pe1mit, 4,000-gallon capacity water truck, or other approved source at a minimum rate of200 g.p.m. and/or at a minimum vertical height of 14 feet (for water towers or stands)). We will require approximately 4,600 (5,000) gallons of water for an estimated 46,000 SF of Hydroseed. If water is not made available on jobsite, this bidproposal is invalid. 8) General Contractor to provide good, drivable truck access to each site to be treated with Hydroseed. 9) Final field measured quantities shall be provided by General Contractor and/or Owners' Representative prior to installation of Hyclroseed.

Thank you for the opportunity to quote on this project.

Yours truly,
Scott K. Nitta, President
Nitta Erosion Control
bid form 2024\city\calistoga_riversidepondsandhcadworks.jan Item #6.6.

DBE SUBCONTRACTOR PERFORMANCE FORM
This form is intended to capture the DBE:_subcontractors'~description of work to be performed and the price of the work submitted to the prime contractor. Prime contractor is required to have its DBE subcontractors complete this form and include all completed forms in the prime contractors bid or proposal package unless subcontractors will not be used.

Subcontractor Name Project Name
Nitta Erosion Control Riverside Ponds & Headworks
Bid/Proposal No. Assistance Agreement ID No. (If known) Point of Contact Address
3778 Del Mar Avenue Loomis, CA 95650-9051
Telephone No. Email Address
916-652-7459 [email protected]
Prime Contractor Name Issuing/Funding Entity:

Argonaut Constructors City of Calistoga
Contract Item Number Description of Work Submitted to the Prime Price of Work Contractor Involving construction, Services, Submitted to Equipment or Supplies the Prime
Contractor
9 Erosion Control and Planting (partial) and Hydroseed $4,600.00 BOE Certified by X DOT Other: - SBA Meets/ exceeds FEMA certification standards: X YES NO Unknown - - -
3 A DBE is a Disadvantaged, Minority, Small or Woman Business Enterprise that has been certified as described in 40 CFR

33.204-33.205
4 Subcontractor is defined as a company, firm, joint venture or individual who enters into an agreement with a contractor to provide services pursuant to an award of financial assistance. 35 Item #6.6.

DBE Subcontractor Performance - Continued
I certify under penalty of perjury that the foregoing statements are true and correct. Signing this form does not sign ify a commitment to utilize the subcontractors above. I am aware of t hat in the event of a replacement of a subcontractor, I will adhere to the rep lacement requirements set forth in 40 CRF Part 33 Section 33.302(c).

Prime Contractor Signature Print Name
xe,1 0 ✓ -_ Lance Bushnell
I ., Title Date
Vice President Januarv 10 2024
Subcontractor Signature Print Name
s~tr A/ dta, Scott Nitta
Title Date
President January 10, 2024
36 Item #6.6.

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Caltrans 23-23 Repair pavement, replace drainage systems, and replac, $768,679.60 Pavement repair 0% North Marin Weter District nm Fuette 23-22 Oceana Marin WVVTP and storage pond repair $1 ,495,900.00 Storage pond repairs 0% Cal-Water ChrisMartogllo 904-501-8611 23-21 Armstrong woods water services Install new water services 0% County of Napa Sub to SF Electric 23-20 Nepa airport sewer pipeline $648,140.00 Install new sewer jlpeline 0% Wright Contracting Private 23-19 Fire Station # 5 $1 ,026,401.00 Site civil & wet utilities 0% City of Santa Rosa Feficia Ong 707-495-2147 23-18 Coffey Park & Fountaingrove Neighborhood Paving $18,986,963.00 Road Disast8f Recovery 0% County of Napa Liang Su 707-259-8376 23-17 Monticello Area Paving $3,477,685.00 Roadway overlay 25% City of Fort Bragg Chantell O'Neal 707-001-2823 23-16 2022 Streets RehabiUtatlon Project $3,611,831 .45 City street overlays 10% City of American Canyon Ron Raneda 707-647-4559 23-15 RW3 Bentoln Way $2,175,159.60 racycied water pipeline 95% City of Willits Olivie Grupp 707-357-7009 23-14 West Mendocino Rehabilitation Project. Phase 1 5656,542.00 16~ stoITT1 drain pipe and manholes 20% Arbors Subdivision Private 23-13 37 Lot Subdivision 54,900,000.00 0% Cattrans Geoffrey Wright 707-485-1010 23-12 Emergency Slipout Repair Hwy 101 PM 42--45.5 $5,000,000.00 Slipout repair 85% Caltrans Trevor Goff 707-496-4532 23-11 Emergency culvert repair Hwy 101 PM 0.0-4.0 S2,000,000.00 Emergency culvert repair 85% City of Santa Rosa Sara Mathews 707-543-3866 23-10 E Haven Or Sewer and Water Improvements $2,633,410.20 Sewer & Water system replacements 0% County of Sonoma Olguin Caban 707-565-2857 23-09 2023 Pavement Preservation Program FOR & Overlay S17,434,415.70 County road paving 25% City of Sebastopcl Mario Landeros 707-823-2151 23-08 Bodega Avenue Bike Lanes and Rehabilitation Phase 1 $692,583.00 Bike lane, auto & ped Improvements 95% City of Clearlake Adeline Leyba 707-994-8201 23-07 Dam Road Extension & lmf)(ovements Project $989,009.00 extend existing city roadway 100% City of Healdsburg Clay Thistle 707-431-3391 23-06 Healdsburg Airpost Taxiway A2 $1 ,275,365.00 Taxiway rehabilitation 0% City of Clearlake Adeline Leyba 707-994-ll201 23-05 18th Avenue Road Improvements 54,000,645.00 Construct roadway lmf)(ovements 0% Golden Gate Bridge HT district Rodolofo Galang 415-923-2239 23-04 Golden Gate Bridge Toll Plaza Paving Project $3,020,795.00 Highway paving 90% Sub to T erracon 23-02 Install timber Jagging Install timber lagging 95% Caltrans Fabio la Serna 510-496-9271 23-01 04-2Y0304 Emergency sUpout repair $2,400,000.00 Roadway Slipout repair 65% City of Cotati Crelg Scott 707-$5-3620 22-24 2023 Pavement Rehabilitation $2,412,092.00 repave existing city streets 100% California American Water Co Bob McCraley 22-23 Lar1dield Backwash Tank $209,130.00 Sitework for steel tank 0% Stony HIiis Vineyard Private 22-22 0%
City of American Canyon Ron Ranada 707-647-4559 22-21 Wetlands Edge Court Extension Project $344,160.00 Wet utilities and pavement extension 10% City of St Helena Mario Traverso 707-204-9084 22-20 R22•79 Pavement Restoration Improvements Project. $1 ,157,192.00 Repave existing city streets 50% Private Private 22-19 Enchanted Hills Phase 2 $"\ ,060,285.50 Are recons\ruction of 8".l:isting facility 1 60% Marin Municipal Water District Kyle-Ortiz-OeKramer 415-945-1586 22-18 Treehaven FFP Plpellne Replacement Project $2,692.990.00 Install new steel water pipeline 95% Sub to VSS Jorge Martinez 916-373-1500 22-17 2022 Corrective Maintenance of County Roads $973,931 .00 Oigout & overlay 100% Constructing retaining wan and
Constructing retaining wall and confinement system to confinement syslem to restore Caltrans Fabio Le Serna 510-496-9271 22-16 restore slipout. $12,005,088.00 slipou1. 80% Sonoma Valley Unified SD Dennis lucchessi 707-837-5065 22-15 Sassarini Elementry school MP Building $795,904.00 site work 55% Clear Water Mutual Water Co Tom Warnock 530-224-0202 22-14 Upper Tank Replacement Project $2,158,576.00 Water stroage tank Replacement 1% Caltrans Katharine Perrin 22-13 01-0K9804 Hwy 101 Paving l.ay1onviiie $1,271 ,494.00 Highway paving 100% County of Sonoma Anthony Moore 707-565-2958 22-12 2022 Pavement Preservation & FRO Overlays $19,633,680.02 Highway paving 100% Catt.rans Leonard Brajnikoff 707-249-7557 22-11 COOT 01-1W9104 $733,395.00 Highway paving 100% County of Lake David Bingham 707-263-2341 22-10 Mlddletown Multi-Use Pathway $1 ,075,047.00 Perestrian Path 0% Private 22-09 Arbors Subdivision 54,161 ,882.00 Subdivision 0% Golden Gate Bridge HT district Rodolofo Galang 415-923-2239 22-08 Santa Rosa Bus Facility Resurfacing $1 ,429,211 .00 Parking tot resurfacing 100% City of Mill Valley Ahmed Aly 415-364-4755 22-07 East Blilhdale Avenue Rehabilitation Phase 2 & 3 $6,776,744.00 Street Rehabilitation 100% City of Woodland Mark Miller 530-$1-5008 22-06 2022 Sewer & Water Repairs and Replacement $3,742,116.00 New sewer & water lines 100% West Counry Transportation Agen Steve Petcavich 415-858-5010 22-05 Bus and Automobile Parking Expansion $4,397,750.00 Parking expansion 95% City of Clearlake Adeline Leyba 707-994-8201 22-04 Burns Valley Development Phase 1 $2.472,822.00 Street & Pedestrian Improvements 100% Caltrans Pararooeep Brar 925-260-6460 22-03 04-4J3004 Cold plane AC, place (HMA Type A) & RHMP $6,804,227.73 Oigouts and repave highway 100% Private Private 22-02 Sonoma Academy of Preforming Arts $1 ,270,164.00 85% Private Privale 21-26 Colgan VIiiage Phase 1 & 2 $3,125.832.00 Subdivision 95% Cairecycie (ECC) 21-25 Fire Cleanup lake County S1 ,100,375.00 Fire cleanup 100% Private Private 21-24 Holly Hock Subdivision S1 ,490,855.00 85% City of Clearlake Adeline Brown 707-994-8201 21-23 Sulphur Flre Roadway Disaster Repair $6,846,648.86 SD Crossings & streets overlay 100% Private Private 21-22 Roseville Power Plant $344 ,000.00 100% County of Sonoma Matt Vail 707-636-7020 21-21 Roadway repairs 3 locations in sonoma county $5,933,216.00 Storm damage road repairs 100% Prtvate Private 21 -20 Grocery Outlet Hidden Valley 5406.695.00 100% County of Marin Jasob Balattl 707-669-6678 21-19 2021 Norther Region Roads Rehab Phase 2 $651 ,151 .00 repave existing roadways 100% Caltraos Mike Anderson 707-354-1072 21 -18 Emergency Roadway Repairs $2,500,000.00 Emergency RoactNay Repairs 100% City of Lakeport Olivia Grupp 951-852-0513 21-17 North Main Street Paving Project $577,106.00 Repave existing city streets 100% Private Private 21-16 Casa Grande Subdivision $1 ,600,616.00 100% County of Napa Liang Su 707-259-8376 21-15 East Central Paving Project $3,141 ,631 .90 Repave existing roadways 100% City of Santa Rosa Sara Mathews 707-543-3866 21-14 Slater st & lewrosa Way sewer & water replacement $2,130,303.00 new sewer & water systems 100% City of St Helena Edrees Argand TBD 21-13 Year 2 Pavement restoration project $604,825.00 City street paving 100% City of Mill Valley Ahmed Aly 415-384-4755 21-12 East Blithdale Rehabilitation Project $3,036,210.87 Roadway Reconstruction 100% Cattrans Mike Anderson 707-354-1072 21 -11 01-0K5604 Hwy 101 SP)'rock paving & digouts $1 ,180,939.00 Hwy paving 100% County of Napa James Reese 707-259-8281 21 -10 Ml Veeder Road R9habililation $2,300,000.00 Roadway reconslfuction 100% City of Lakeport Olivla Grupp 951-852-0513 21-09 Waterfront Parking Rehabilitation $913,765.00 Parking lot reconstruction 100% City of Cotati Jonathan Cek:lwell 707-$5-4238 21-08 2021 Pavement Preservation Project 5449,465.00 St reel preserv a lion 100% vss William Cross 916-373-1500 21-07 Roseland Pavement Maintenance $165,000.00 Digouts and overiay 100% City of Rohnert Park Justin Brandt 707-588-2252 21-06 Commerce Blvd Water Line Replacement $880,242.00 Install new water pfpelins 100% Caltrans Leonadr Brajnlkoff 707-249-7557 21-05 Reconstruct & overlay Hwy 116 near Sebastopol $865,151 .00 Roadwway Improvements 100% City of Sebastopol Joe Gaffney 707-823-5331 21-04 Repave local Streets $355,397.00 Repave existing city streets 100% City of Rohnert Park Justin Brandt 707-588-2252 21-03 L Section Pavement Rehabilitation 5440,016.00 Street section repair 100% County of Sonoma Anthony Moore 707-565-2231 21-02 OBAG2 Rehabilitation of Various Roads $2,328,197.00 Paving & Digouts 100% City of Santa Rosa David Fradelizio 707-543-3862 21-01 Montgomery Drive Water System Improvements $998,405.00 Water system 100% CalRecycle 20-11 Santa Cruz Fire Cleanup $3,000,000.00 Ash & Debris clean up 100% City of Rohnert Park Justin Brandt 707-588-2226 20-10 Camino Colegio & Southwest Blvd sewer tie-in $214,335.00 Sewer Hne tie-in 100% Private Private 20-09 Kerry Ranch 85%
City of Santa Rosa Dave Montague 707543-3680 20-08 Pacific Avenue Reconstruction $5,070,016.00 Street & wet utllilies Improvements 100% Caltrens Paul Crawford 510-867-6793 20-07 Emergency roadway repairs $1 ,400,000.00 Emergency roadway repelrs 0% City of Heak1sburg Clay Thistle 707-431-3391 20-06 College Street Sewer & Waler Replacement Project $2,045,642.00 Sewer & Water line replacement 100% Caltrans Roozbeh Hadipour 707-496-4368 20--05 Repair AC pavement by cold planing AC and placing HW $1 ,535,326.00 Repave Hwy l in Fort Bragg 100% Caltrans Nash Munes 707-223-0791 20-04 Cold plane AC pavement and place HMA (Type A) $1.00 Repave Hwy 101 in Willits 100% City of Santa Rosa Gran! Bailey 707-543-4508 20-03 La Paloma /East Haven /Rogers se'N'8r & water $2,335,064.63 Sewer & water 100% Cobb Area County Water District Brent Beazor 707-576-1322 20-02 Summit Area Improvements $3,053,576.70 Water pipe line 100% City of Petaluma Jeff Stutsman 707-776-3673 20-01 N McDowell Blvd Water Main Extension $2,984,268.92 Recycled waler pipeline 100% Caltrans Katharine Perrin 707-490-5640 19-10 Contract 01-433604 Hwy 101 Paving $9,816,187.00 Paving and roadway section repair 100% County of Sonoma Sarah Frederickson 707-565-2131 19-09 2019 Flood disaster wlnterization project $3,000,268.00 Flood damage repair 100% Item #6.6.

5. Within the past 5 years, has your firm, or any firm with which any of your firm's owners, officers, directors or managing employees was associated, been disqualified, debarred, or otherwise prevented from bidding on any project for any reason?
Yes
If "Yes," provide the name of the firm, the name of the person who was associated with that firm (if applicable), the year of the incident, the name, address and telephone number of the owner and all relevant details about the incident.

6. Within the last 5 years, has your firm, or any firm with which any of your firm's owners, officers, directors or managing employees was associated, been found guilty of violating any federal, state or local law, rule or regulation related to conduct of business as a contractor, or a false claims act? Yes ~
If "Yes," give the name of the firm, the name of the person associated with that firm (if applicable), the year of the incident, and provide all relevant details about the incident including, but not limited to, the law, rule or regulation which the firm was convicted of violating, and the outcome of any proceedings, including any fine, penalties or jail sentences that were imposed.

7. Within the last five years, has your firm or any firm with which any of your firm's owners, officers, directors, or managing employees was associated been found by a public body not to be a responsible bidder? Yes ~
If "yes," provide the name of the firm, the name of the person associated with that firm (if applicable), and all details including, but not limited to, the year of the incident, the name of the awarding body, and the reasons given by that body for it actions.

8. Within the last five years, has your firm, or any firm with which any of your firm's owners, officers, directors or managing employees was associated, been terminated for default or defaulted on a construction contract?
Yes ~
If "yes," provide the name of the firm, the name of the person associated with that firm, the year of the default, the location of the project, the full name and address of the owner of the project, the full name and address of the general contractor, the value of the contract, and the reasons given for the default.

9. The names of all persons interested in the foregoing proposals as principals are as follows: (NOTE: If Bidder or other interested person is a corporation, state the legal name of the corporation, along with the names of the president, secretary, treasurer, and manager thereof; if a general partnership, state true name of the firm, also the names of all individual partners composing the firm; if a limited partnership, the names 25 Item #6.6.

of all general partners and limited partners; and if Bidder or other interested person is an individual, state first and last names in full.)
Michael Smith Jr President/Owner
Josh Ramey Secretary

10. Contractor's License No. 171432
Expiration Date: 12/31/2025
DIR Registration No. 1000002969
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Signed '7-. CL::.==-- Date: 01/10/2024
Print name: Lance A Bushnell
Relationship to bidder: _V_ic_e_P_r_e_si_d_e_n_t ___________ _ 26 Item #6.6.

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27 Item #6.6.

NONCOLLUSION AFFIDAVIT
PUBLIC CONTRACT CODE §7106
(TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID)
State of California
County of __..s ..... 0 .... 0 ..... 0 .... m...,a.___ _____ _ Lance A Bushnell , being first duly sworn, deposes and says that he or she is _ Vice President (Title) of Argonaut Constructors , the party making the foregoing bid, that the bid is not made in the interest of, or on beha lf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly co lluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.

Lance A Bushnell Vice President
Name of Bidder
~ ~<> a~
01/10/2024
ature of Principal
Note: If Bidder is a partnership or a joint venture, this affidavit must be signed and sworn to by every member of the partnership or venture.

Note: If Bidder (including any partner or venturer of a partnership or joint venture) is a corporation, this affidavit must be signed by the chairman, President, or Vice President and by the Secretary, Assistant Secretary, Chief Financial Officer, or Assistant Treasurer.

Note: If Bidder's affidavit on this form is made outside the State of California, the official position of the person taking such affidavit shall be certified according to law. 28 Item #6.6.

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29 Item #6.6.

IRAN CONTRACTING ACT CERTIFICATION
(Public Contract Code Sections 2200 et seq.)
Project Name: RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT As required by California Public Contract Code section 2204, Proposer certifies that the option checked below relating to Proposer's status in regard to the Iran Contracting Act of 2010 (Public Contract Code sections 2200 et seq.) is true and correct:
)( Proposer is not:
(i) identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203; or
(ii) a financial institution that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran. • Los Angeles County has exempted Proposer from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption , Los Angeles County will be unable to obtain the goods and/or services to be provided pursuant to the Contract.
• The amount of the Contract payable to Proposer for the Project is less than $1 ,000,000.

CERTIFICATION
I, the official named below, CERTIFY UNDER PENAL TY OF PERJURY, that I am duly authorized to legally bind the Proposer to the above selected option. This certification is made under the laws of the State of California.

Contractor
Argonaut Constructors, Inc.

Firm
01/10/2024 Lance A Bushnell Vice President
Date Name/Title
Note: In accordance with Public Contract Code section 2205, false certification of this form shall be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract amount, termination of the Contract and/or ineligibility to bid on contracts for three years. 30 Item #6.6.

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37 Item #6.6.

BID BOND
KNOW ALL PERSONS BY THESE PRESENTS that, Argonaut Constructors, Inc. hereinafter called the PRINCIPAL, and Travelers Casualty and Surety Company of America, a corporation duly organized under the laws of the State of Connecticut having its principal place of business at 100 California St., #300, San FranciscOjn the State of California and authorized to do business in the State of California, hereinafter called the SURETY, are held and firmly bound unto the City of Calistoga, hereinafter called the OBLIGEE, on order, in the sum of Ten Percent (10%} of the Total Amount Bid--- Dollars ($ --10%-- } (being at least ten percent (10%) of the total amount of PRINCIPAL 's Base Bid proposal) lawful money of the United States, for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these present.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT:

WHEREAS, the PRINCIPAL has submitted its Proposal for the project RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT to the OBLIGEE, said Proposal, by reference thereto; being hereby made a part hereof.

NOW, THEREFORE, if said Proposal is rejected or, in the alternate, if said Proposal is accepted and the PRINCIPAL timely signs and delivers a Contract and furnishes a Performance Bond and Payment Bond, and Certificates of Insurance in the form and within the time required by the Proposal and the Contract Documents, then this obligation shall become null and void, otherwise the same shall remain in full force and effect and upon default of the PRINCIPAL shall be forfeited to the OBLIGEE, it being expressly understood and agreed that the liability of the SURETY for any and all default of the PRINCIPAL shall be the amount of this obligation as herein stated, as liquidated damages. Such forfeiture and liquidated damages under this bond shall be without prejudice to the OBLIGEE'S right to pursue any excess actual damages from the PRINCIPAL for breach of contract or otherwise.

The SURETY, for value received, hereby agrees that the obligations of said SURETY and its bond shall not be impaired or affected by any extension of the time within which the OBLIGEE may accept such Proposal, and the SURETY hereby waives notice of any such extension.

In the event suit is brought upon this bond by the OBLIGEE and judgment is recovered, the SURETY shall pay, in addition to the sum set forth above, all costs incurred by the OBUGEE in such suit, including reasonable attorney's fees and expert witness fees, to be fixed by the court.

Signed this _ 9_th __ day of January 2024 Argonaut Constructors, Inc.

PRINCIPAL~ ~ U~
BY Lance A~ushnell, Vice President
38 Item #6.6.

Note: Signature of person executing for SURETY must be notarized and evidence of corporate authority attached.
39 Item #6.6.

ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.

State of California S t Cl
County of an a ara
On ___ 'J_AN_ -_9_2_02_4 ____ before me, Erin Bautista, Notary Public (insert name and title of the officer)
personally appeared _ J_e_a_n_L_._N_e_u _____________________ _ who proved to me on the basis of satisfactory evidence to be the person(~) whose name(s) is/a~ subscribed to the within instrument and acknowledged to me that ~e/she/~ executed the same in nts,her/1.:t:Tei~authorized capacity(~. and that by ~her/theif signature(s) on the instrument the person(:s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
(Seal)
~·_ .>~, ~;~ .... ~~ Nota~~~::i:u_i~~;~ornia f < ~..:::..--1,.:: t=, .,. z ~ :'.~~#)= Santa C: ara County ?;
\~"" Corr.mission ~ 24C0176 -
My Comm. Expires t..pr 25 . 2026 .,,... u--wa
Item #6.6.

~ TRAVELERS J
Travelers Casualty and Surety Company of America
Travelers Casualty and Surety Company
St. Paul Fire and Marine Insurance Company

POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint JEAN L NEU of SAN MATEO , California , their true and lawful Attorney(s)-in-Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law.

IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 21st day of April, 2021.

State of Connecticut
City of Hartford ss.

On this the 21st day of April, 2021 , before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of each of the Companies, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of said Companies by himself as a duly authorized officer.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

My Commission expires the 30th day of June, 2026
Anna P. Nowik, Notary Public
This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of each of the Companies, which resolutions are now in full force and effect, reading as follows:

RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-inFact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached.

I, Kevin E. Hughes, the undersigned, Assistant Secretary of each of the Companies, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect.

Dated this 9th day of January , 2024
t Kevin E. Hughes,Ass,tantSecretary
To verify the authenticity of this Power of Attorney, please call us at 1-800-421-3880.

Please refer to the above-named Attomey{s)-in-Fact and the details of the bond to which this Power of Attorney is attached.

Item #6.6.

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40 Item #6.6.

Attachment 1

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY

EXCLUSION - LOWER TIER COVERED TRANSACTIONS
(Lower Tier refers to the agency or contractor receiving Federal funds, as well as any subcontractors that the agency or contractor enters into contract with using those funds) As required by Executive Order 12549, Debarment and Suspension, as defined at 44 CFR Part 17, City may not enter into contract with any entity that is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal Government from participating in transactions involving Federal funds. Contractor is required to sign the certification below which specifies that neither Contractor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal agency. It also certifies that Contractor will not use, directly or indirectly, any of these funds to employ, award contracts to, engage the services of, or fund any contractor that is debarred, suspended, or ineligible under 44 CFR Part 17.

Instruction for Certification

1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

3. The prospective lower tier pa rticipant shall provide immediate written notice to the person to whom this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.

4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definition and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.

5. The prospective lower tier participant agrees by submitting this agreement that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, ~eclared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
66 Item #6.6.

6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause . The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction originated may pursue available remedies, including suspension and/or debarment.

Certification Regarding Debarment, Suspension, Ineligibility an Voluntary Exclusion - Lower Tier Covered Transactions

1. The prospective lower tier participant certifies, by submission of its proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. k_ 0~ _ O_l/_10_/_20_2_4 _______ _
Co~ ~r Signature Date
67 Item #6.6.

CONTRACT FOR CONSTRUCTION

RIVERSIDE PONDS & HEADWORKS MITIGATION PROJECT
THIS CONTRACT FOR CONSTRUCTION is made and entered into this day of , 2024 by and between the City of Calistoga, a municipal corporation, (hereinafter referred to as “City”) and Argonaut Constructors Inc. ,a California Corporation, located at 360 Sutton Place Santa Rosa, California (hereinafter referred to as “Contractor”).

The City and the Contractor agree as follows:
(1) CONTRACT SUM: The City agrees to pay, and the Contractor agrees to accept, in full payment for the above work, the sum of Five Million Fifty-Six Thousand and Six Hundred Fifteen Dollars ($ 5,056,615) is to be paid in accordance with the Contract Documents. (2) COMPLIANCE WITH LAW: The City is a public agency. All provisions of law applicable to public contracts are a part of this contract to the same extent as though set forth herein and will be complied with by the Contractor.

The Services shall be performed in accordance with all applicable federal, state and local laws, ordinances, rules, regulations and orders. Notwithstanding anything to the contrary in this Contract, pursuant to 29 CFR 97.36, Contractor is hereby notified of, and shall comply with the following requirements and regulations imposed by the Federal Emergency Management Agency (FEMA) when engaging in activities of Contractor under this Contract and as set forth in the FEMA Federal Provisions in Exhibit A, attached hereto and incorporated by reference herein. (3) CONTRACT DOCUMENTS: The following Contract Documents relating to this Contract for Construction, including all changes, addenda, and modification thereto are hereby made a part of and incorporated by reference into this Agreement: Contract Proposal, Bid Schedule, Notice of Award, Notice to Proceed, Contract for Construction, Faithful Performance Bond, Labor and Materials Payment Bond, Escrow Agreement for Security Deposits in Lieu of Retention (PCC § 22300), Substitution Request Form, Release of Claims, General Conditions, Supplemental Conditions, Special Provisions, Apprenticeship Program, Addenda, Technical Specifications, State of California Department of Transportation Standard Plans and Specifications, 2022 edition, most recent version of City of Santa Rosa Design and Construction Standards and Plans, most recent version of City of Santa Rosa Construction Specifications for Public Improvements, the Project Plans, duly issued addenda, duly issued interpretations, approved change orders, preliminary construction schedule, Contractor’s guarantee and bond, and supplemental agreements, certifications, and endorsements applicable to this work, with all modifications incorporated in said documents prior to receipt of the Contract Proposals. Any work called for in one contract document not mentioned in another is to be performed and executed the same as if mentioned in all Contract Documents.

There are no Contract Documents other than those listed above. The Contract Documents may only be amended, modified or supplemented as provided in the General Conditions.

ATTACHMENT 3
Item #6.6.

This Agreement (including all documents referred to above and incorporated herein) represents the entire and integrated Agreement between City and Contractor for the Project and supersedes all prior negotiations, representations, or agreements, either written or oral.

This document may be amended only by written instrument, as provided in the General Conditions.

Contractors are required by law to be licensed and regulated by the Contractor’s State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation.

A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

This Agreement is effective upon approval by the City Council, execution by the Contractor and concurrence by the Agency’s designated representative.

CITY OF CALISTOGA ,
a California Corporation
By: By:

Laura Snideman, City Manager (Authorized Representative of Contractor) Dated: Printed Name:

ATTEST: Title:
(Attach Acknowledgment for Authorized
Representative of Contractor)
City Clerk Date:
(Contractor signatures must be notarized.)
Item #6.6.

6 EXHIBIT F

FEMA FEDERAL PROVISIONS
I. DEFINITIONS
A. Government means the United States of America and any executive department or agency thereof.

B. FEMA means the Federal Emergency Management Agency.

C. Third Party Subcontract means a subcontract at any tier entered into by Contractor or subcontractor, financed in whole or in part with Federal assistance originally derived from the Federal Emergency Management Agency.

II. FEDERAL CHANGES
A. Contractor shall at all times comply with all applicable regulations, policies, procedures, and FEMA Directives as they may be amended or promulgated from time to time during the term of this Agreement, including but not limited to those requirements of 2 CFR 200.317 through 200.326 and more fully set forth in Appendix II to Part 200—Contract Provisions for non–Federal Entity Contracts Under Federal Awards, which is included herein by reference.

Contractor's failure to so comply shall constitute a material breach of this contract.

B. The Contractor agrees to include the above clause in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

III. ACCESS TO RECORDS
A. The Contractor agrees to provide the City, FEMA, the Comptroller General of the United States or any their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions.

B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

C. The Contractor agrees to maintain all books, records, accounts, and reports required under this Agreement for a period of not less than three years after the later of: (a) the date of termination or expiration of this Agreement or (b) the date City makes final payment under this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case, Contractor agrees to maintain same until the City, (EXHIBIT A)
Item #6.6.

7 FEMA, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims, or exceptions related thereto.

D. The requirements set for in paragraphs A, B, and C above are all in addition to, and should not be considered to be in lieu of, those requirements set forth in Section 21 of the Agreement.

IV. DEBARMENT AND SUSPENSION
A. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

B. Contractor represents and warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, "Debarment and Suspension" or on the USEPA's List of Violating Facilities. Contractor agrees that neither Contractor nor any of its third party subcontractors shall enter into any third party subcontracts for any of the work under this Agreement with a third party subcontractor who is debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs under executive Order 12549 or on the USEPA's List of Violating Facilities. Gov. Code § 4477.

C. The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. Contractor agrees to the provisions of Attachment 1, Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions, attached hereto and incorporated herein. For purposes of this Agreement and Attachment 1, Contractor is the “prospective lower tier participant.”
D. The Contractor agrees to include paragraphs A and B above in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the paragraphs shall not be modified, except to identify the subcontractor who will be subject to its provisions.

E. This certification is a material representation of fact relied upon by City. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the State of California, the City, and the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

F. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder Item #6.6.

8 or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.”
V. NO FEDERAL GOVERNMENT OBLIGATIONS TO CONTRACTOR
A. The City and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Government, the Government is not a party to this contract and shall not be subject to any obligations or liabilities to the City, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.

B. The Contractor agrees to include the above clause in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

VI. EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE (applicable to all construction contracts awarded meeting the definition of “federally assisted construction contract” under 41 CFR 61-1.3)
Contractor agrees to comply with Executive Order 11246 of September 24, 1965, entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR Part 60). 41 CFR 60.14 is hereby incorporated by reference.

A. Contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave.

B. Contractors, and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. Contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full.

D. Contractors, and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

Item #6.6.

9 VII. ANTI-KICKBACK ACT COMPLIANCE (applicable to all contracts and subgrants for construction or repair; 44 CFR §13.36(i)(4))
Contractor agrees to comply with the Copeland “Anti-Kickback” Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3).

VIII. DAVIS-BACON ACT COMPLIANCE (applicable to construction contracts in excess of $2,000 awarded by grantees and subgrantees when required by Federal grant program legislation;)
To the extent required by any Federal grant programs applicable to expected funding or reimbursement of City’s expenses incurred in connection with the services provided under this Agreement, Contractor agrees to comply with the Davis-Bacon Act (40 U.S.C. 276a to 276a–7) as supplemented by Department of Labor regulations (29 CFR Part 5) as set forth below. These requirements are in addition to the requirements set forth in Section 19(b) of the Agreement.

A. The Contractor shall be bound to the provisions of the Davis-Bacon Act, and agrees to be bound by all the provisions of Labor Code section 1771 regarding prevailing wages. All labor on this project shall be paid neither less than the greater of the minimum wage rates established by the U.S. Secretary of Labor (Federal Wage Rates), or by the State of California Director of Department of Industrial Relations (State Wage Rates). Current DIR requirements may be found at http://www.dir.ca.gov/lcp.asp.

B. The general prevailing wage rates may be accessed at the Department of Labor Home Page at www.wdol.gov. Under the Davis Bacon heading, click on “Selecting DBA WDs.” In the drop down menu for State, select, “California.” In the drop down menu for County, select “Napa.” In the drop down menu for Construction Type, make the appropriate selection. Then, click Search. (1)
IX. CONTRACT WORK HOURS AND SAFETY STANDARDS (applicable to all contracts in excess of $100,000 that involve the employment of mechanics or laborers, but not to purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence) A. Compliance: Contractor agrees that it shall comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327–330) as supplemented by Department of Labor regulations (29 CFR Part 5), which are incorporated herein.

B. Overtime: No contractor or subcontractor contracting for any part of the work under this Agreement which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

Item #6.6.

10 C. Violation; liability for unpaid wages; liquidated damages: In the event of any violation of the provisions of Paragraph B, the Contractor and any subcontractor responsible therefore shall be liable to any affected employee for his unpaid wages. In additions, such Contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph B in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of eight hours or in excess of his standard workweek of forty hours without payment of the overtime wages required by paragraph B.

D. Withholding for unpaid wages and liquidated damages: The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set for in paragraph C of this section.

E. Subcontracts: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs A through D of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs A through D of this section.

X. NOTICE OF REPORTING REQUIREMENTS
A. Contractor acknowledges that it has read and understands the reporting requirements of FEMA in Part III of Chapter 11 of the United States Department of Justice’s Office of Justice Programs Financial Guide, and agrees to comply with any such applicable requirements.

B. The Contractor agrees to include the above clause in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

XI. NOTICE OF REQUIREMENTS PERTAINING TO COPYRIGHTS
A. Contractor agrees that FEMA shall have a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for government purposes:

Item #6.6.

11 1) The copyright in any work developed with the assistance of funds provided under this Agreement;
2) Any rights of copyright to which Contractor purchases ownership with the assistance of funds provided under this Agreement.

B. The Contractor agrees to include paragraph A above in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

XII. PATENT RIGHTS (applicable to contracts for experimental, research, or development projects financed by FEMA; 44 CFR §13.36(i)(8))
A. General. If any invention, improvement, or discovery is conceived or first actually reduced to practice in the course of or under this Agreement, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the City and Contractor agree to take actions necessary to provide immediate notice and a detailed report to FEMA.

B. Unless the Government later makes a contrary determination in writing, irrespective of Contractor's status (a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual), the City and Contractor agree to take the necessary actions to provide, through FEMA, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” 37 CFR, Part 401.

C. The Contractor agrees to include paragraphs A and B above in each third party subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FEMA.

XIII. ENERGY CONSERVATION REQUIREMENTS
A. The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 USC 6201).

B. The Contractor agrees to include paragraph A above in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

Item #6.6.

12 XIV. CLEAN AIR AND WATER REQUIREMENTS (applicable to all contracts and subcontracts in excess $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year)
A. Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387), and will report violations to FEMA and the Regional Office of the Environmental Protection Agency (EPA).

B. Contractor agrees to report each violation of these requirements to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to FEMA and the appropriate EPA regional office.

C. The Contractor agrees to include paragraph A and B above in each third party subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FEMA.

XV. TERMINATION FOR CONVENIENCE OF CITY (applicable to all contracts in excess of $10,000)
See Paragraphs 10 and 11 of the Agreement.

XVI. TERMINATION FOR DEFAULT (applicable to all contracts in excess of $10,000) Contractor’s failure to perform or observe any term, covenant or condition of this Agreement shall constitute an event of default under this Agreement. See Paragraphs 9 and 11 of the Agreement.

XVII. CHANGES.

See Paragraph 17 of the Agreement.

XVIII. LOBBYING (Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended).) A. Contractor shall not use or pay any funds received under this Agreement to influence or attempt to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

B. Contractor agrees to the provisions of Attachment 2, Certification Regarding Lobbying, attached hereto and incorporated herein (applicable for contracts or subcontracts in excess of $100,000).

Item #6.6.

13 C. Contractor agrees to include paragraphs A and B above in each third party subcontract financed in whole or in part with Federal assistance provided by FEMA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

XIX. MBE / WBE REQUIREMENTS
The City intends to seek reimbursement of its costs incurred in connection with this project from FEMA. Accordingly, the CONTRACTOR shall make every effort to procure Minority and Women's Business Enterprises ("DBEs") through the "Good Faith Effort" process as required in 2 CFR 200.321. Failure to perform the "Good Faith Effort" process and submit the forms listed below with the bid shall be cause for a bid to be rejected as non-responsive and/or be considered as a material breach of the contract.

PRIME CONTRACTOR RESPONSIBILITIES
All recipients of this grant funding, as well as their prime contractors and subcontractors, must take all affirmative steps to assure that minority firms, women's business enterprises, and labor surplus area firms are used when possible make every effort to solicit bids from eligible DBEs. This information must be documented and reported.
(2)
"GOOD FAITH" EFFORT PROCESS
Any public or private entity receiving federal funds must demonstrate that efforts were made to attract MBE/WBEs. The process to attract MBE/WBEs is referred to as the "Good Faith" effort. This effort requires the recipient, prime contractor and any subcontractors to take the steps listed below to assure that MBE/WBEs are used whenever possible as sources of supplies, construction, equipment, or services. If a CONTRACTOR fails to take the steps outlined below shall cause the bid to be rejected as non-responsive and/or be deemed a material breach of the contract.

A. Place qualified small and minority businesses and women's business enterprises on solicitation lists;
B. Assure that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
C. Divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
D. Establish delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and
Item #6.6.

14 E. Use the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce.

F. If subcontracts are to be let, Contractor shall take the affirmative steps listed in 2 CFR 200.321.
(3)
XX. PROCUREMENT OF RECOVERED MATERIALS (2 CFR 200.322)
Contractor shall comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

XXI. INCORPORATION OF UNIFORM ADMINISTRATIVE REQUIREMENTS The preceding provisions include, in part, certain standard terms and conditions required by FEMA, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by FEMA are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FEMA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. Contractor shall not perform any act, fail to perform any act, or refuse to comply with any City requests that would cause City to be in violation of the FEMA terms and conditions.

XXII. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS.

The contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the contractor’s actions pertaining to this contract.

XXIII. DHS SEAL, LOGO, AND FLAGS.

The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre- approval.

Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 61 9 Attachment A1

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION – LOWER TIER COVERED TRANSACTIONS
(Lower Tier refers to the agency or contractor receiving Federal funds, as well as any subcontractors that the agency or contractor enters into contract with using those funds) As required by Executive Order 12549, Debarment and Suspension, as defined at 44 CFR Part 17, City may not enter into contract with any entity that is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal Government from participating in transactions involving Federal funds. Contractor is required to sign the certification below which specifies that neither Contractor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal agency. It also certifies that Contractor will not use, directly or indirectly, any of these funds to employ, award contracts to, engage the services of, or fund any contractor that is debarred, suspended, or ineligible under 44 CFR Part 17.

Instruction for Certification

1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

3. The prospective lower tier participant shall provide immediate written notice to the person to whom this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.

4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definition and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.

5. The prospective lower tier participant agrees by submitting this agreement that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 62 10 Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction originated may pursue available remedies, including suspension and/or debarment.

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transactions

1. The prospective lower tier participant certifies, by submission of its proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

Contractor Signature Date
March 10, 2022
Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 63 11 Attachment A2

CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loan, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Contractor Signature Date
March 10, 2022
Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 64 Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 65 Contractor Signature Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 66 Contractor Signature Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 67 9 Attachment A1

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION – LOWER TIER COVERED TRANSACTIONS
(Lower Tier refers to the agency or contractor receiving Federal funds, as well as any subcontractors that the agency or contractor enters into contract with using those funds) As required by Executive Order 12549, Debarment and Suspension, as defined at 44 CFR Part 17, City may not enter into contract with any entity that is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal Government from participating in transactions involving Federal funds. Contractor is required to sign the certification below which specifies that neither Contractor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal agency. It also certifies that Contractor will not use, directly or indirectly, any of these funds to employ, award contracts to, engage the services of, or fund any contractor that is debarred, suspended, or ineligible under 44 CFR Part 17.

Instruction for Certification

1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

3. The prospective lower tier participant shall provide immediate written notice to the person to whom this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.

4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definition and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.

5. The prospective lower tier participant agrees by submitting this agreement that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 68 10 Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction originated may pursue available remedies, including suspension and/or debarment.

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transactions

1. The prospective lower tier participant certifies, by submission of its proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

Contractor Signature Date
02/25/2022
Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 69 11 Attachment A2

CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loan, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Contractor Signature Date
02/25/2022
Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 70 Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 71 Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 72 Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 73 9 Attachment A1

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION – LOWER TIER COVERED TRANSACTIONS
(Lower Tier refers to the agency or contractor receiving Federal funds, as well as any subcontractors that the agency or contractor enters into contract with using those funds) As required by Executive Order 12549, Debarment and Suspension, as defined at 44 CFR Part 17, City may not enter into contract with any entity that is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal Government from participating in transactions involving Federal funds. Contractor is required to sign the certification below which specifies that neither Contractor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by the Federal agency. It also certifies that Contractor will not use, directly or indirectly, any of these funds to employ, award contracts to, engage the services of, or fund any contractor that is debarred, suspended, or ineligible under 44 CFR Part 17.

Instruction for Certification

1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

3. The prospective lower tier participant shall provide immediate written notice to the person to whom this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.

4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definition and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.

5. The prospective lower tier participant agrees by submitting this agreement that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 74 10 Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.

7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction originated may pursue available remedies, including suspension and/or debarment.

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transactions

1. The prospective lower tier participant certifies, by submission of its proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

Contractor Signature Date
February 25, 2022
Contractor Signature
Item #6.6.

BENNETT ENGINEERING SERVICES | CITY OF CALISTOGA Page 75 11 Attachment A2

CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loan, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Contractor Signature Date
February 25, 2022
Contractor Signature
Item #6.6.

City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Laura Snideman, City Manager
Meeting: City Council - Feb 06 2024
Subject: Consideration of Purchasing Approximately 70 Acres of County of Napa Property Known as the "Fairgrounds" and Initiating Steps for Transition of Ownership
DESCRIPTION:

Consideration of Purchasing Approximately 70 Acres of County of Napa Property Known as the "Fairgrounds" and Initiating Steps for Transition of Ownership RECOMMENDATION:

Consider adopting a resolution that allows for the purchase of the Fairgrounds and numerous related steps.

BACKGROUND/SUMMARY:

While the history of the Fairgrounds in Calistoga dates back almost a century, over the past year the Calistoga City Council and the Napa County Board of Supervisors have negotiated for the City of Calistoga to purchase approximately 70 acres of the site. City Council approval of the Purchase and Sale agreement is now required and planning for the long-term stewardship of the site needs to begin with a number of immediate next steps.

ANALYSIS:

Purchase and Sale Agreement
Under the terms of the Purchase and Sale Agreement (“PSA”), the City would acquire the Fairgrounds property (approximately 70.6 acres) in an “as is condition”, for the total price of $2,000,000 (the “Purchase Price”). The City is required to post a $20,000 refundable deposit which will be applied towards the Purchase Price of the Property at the close of escrow. Once the parties sign the PSA, a due diligence period of one-hundred and twenty days will commence (“Due Diligence Period”) during which the City will undertake a review of all entitlements, conduct inspections, investigations, tests, and surveys of the Property, including a Phase I, and if necessary, a Phase II environmental assessment.

The PSA also provides that the County has the right to repurchase the Property, or applicable portions of it, for a period of ninety (99) years in the event the City proposes to rezone the Property, or a portion of the Property, to allow for a use that is not an “Historical Use” as defined in Exhibit D-1 to the PSA or if the City proposes a sale or conveyance or a lease in excess of 25 years. The purchase price for the repurchase would be $2,000,000, increased by the change in the Consumer Price Index (CPI), plus the value of all unamortized capital improvements made to the Property by the City.

Item #8.1.

The PSA also provides the County with the right, along with other governmental entitles working in partnership with the County, to use the Property for emergency response purposes upon the declaration of any federal, state or local disaster.

Immediate Next Steps and Stewardship
In order to become effective stewards of the property, readying the City for ownership should begin immediately. Therefore, included in the resolution are various items that will allow staff to:
 Create and recruit for the new position of Fairgrounds Revitalization Director  Contract with vendors to address landscaping and related maintenance on the property following transfer to the city
 Prioritize creating a plan for the infrastructure necessary to re-open the RV park  Make all necessary budget adjustments by first looking for savings in the current budget year and otherwise spending from the reserves should there be insufficient budget savings by the Fiscal Year end in June
Timing Expectations
The PSA allows for up to 120 days for the City to conduct due diligence. This will include a Phase I environmental assessment. Therefore, transfer of the property might not occur until June. In addition, given the inadequate infrastructure on the property including collapsed and non-functional portions of the sewer system and a leaking water system, it will be quite some time -- maybe several years -- before any significant uses will be viable.

CEQA STATUS:

The action is exempt from environmental review under the California Environmental Quality Act, Public Resource's Code section 21000 et seq. ("CEQA") pursuant to CEQA Guidelines Section 15061(b)(3) as it can be seen with certainty that the project has no potential for causing a significant effect on the environment.

FINANCIAL IMPACT:

The $2 M purchase price is available in the current budget in Account #10-4110-4499. There is no funding source for any additional expenses such as capital investments or any of the other expenses mentioned in this report. The funding for all other activities other than the purchase price through June of this year will come from General Fund reserves to the extent other budget savings in the current budget are not identified prior to June 30, 2023.

ATTACHMENT(S):

City Council Resolution - Fairgrounds PSA - 02.06.2024
Exhibit 1 to Resolution - Fairgrounds PSA and Exhibits
APPROVAL(S):

Jessie Catacutan Approved - Jan 30 2024
Laura Snideman, City Manager Approved - Jan 30 2024
Yudiana Galvan, City Clerk Approved - Jan 30 2024
Item #8.1.

4879-7515-5871 v3
RESOLUTION NO. 20-2024- ________

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA APPROVING AND AUTHORIZING: 1) EXECUTION OF THE

PURCHASE AND SALE AGREEMENT AND ESCROW

INSTRUCTIONS WITH THE COUNTY OF NAPA FOR THE PURCHASE
OF THE NAPA COUNTY FAIR GROUNDS PROPERTY; 2) CREATION

OF A FULL TIME FAIRGROUNDS REVITALIZATION DIRECTOR
POSITION; 3) CITY MANAGER TO PROVIDE BASIC LANDSCAPING
MAINTENANCE OF THE PROPERTY; 4) DEVELOPMENT OF A PLAN

FOR INFRASTRUCTURE REPAIRS/IMPROVEMENTS NECESSARY
TO REOPEN THE RV PARK ON THE PROPERTY; 5) STAFF TO

MAKE ALL NECESSARY BUDGET ADJUSTMENTS NECESSARY TO
IMPLEMENT ITEMS (1) THROUGH (4) ABOVE; AND 6) FINDING

THAT THE ACQUISITION OF THE PROPERTY IS EXEMPT FROM
CEQA.

WHEREAS, the County of Napa (“County”) is the owner of approximately +/-

70.6 acres of improved land in the City of Calistoga, located at 1435 and 1601 N. Oak (APNS 11-140-055, 011-140-006, 011-140-007 AND 011-481-022) (“County Property”); and
WHEREAS, the County Property has multiple facilities that have provided important benefits to the community including serving as an R.V. park, car racetrack, golf course, and fairgrounds; however, the County Property has not been fully utilized for these purposes for years, and much of the infrastructure and buildings have suffered due to age and lack of adequate maintenance; and
WHEREAS, since early 2016 the City of Calistoga (“City”) and County have been negotiating for the City to purchase the County Property, or a portion thereof, and the City and County have now negotiated for the City to purchase the County Property, less an approximately 1.24 acres (“Retained Land”) consisting of certain land and improvements currently being leased to the Napa County Office of Education (“NCOE”), along with certain other adjacent property and storage building; the portion of the County Property that is the subject of the City’s proposed purchase is hereinafter referred to as the “Property”; and
WHEREAS, in early January 2024 the City’s negotiating team consisting of the Mayor, Councilmember Cooper, City Attorney and City Manager completed negotiating the terms and conditions of the Purchase and Sale Agreement and Escrow Instructions, including all exhibits thereto (“PSA”), and
WHEREAS, the County is willing to sell the Property to the City at a discounted price of Two Million Dollars ($2,000,000), subject to the County retaining certain reversionary rights to the Property should the City in the future wish to sell or lease the Property on a long-term basis (i.e., in excess of 25 years) or wish to change the historical use and zoning of the Property; and
Item #8.1.

4879-7515-5871 v3 -2-
WHEREAS, the PSA also includes the right of the County to use the Property for emergency response purposes, and the right of the City to use portions of the Retained Land for access and storage purposes; and
WHEREAS, within five (5) business days of the execution of the PSA by the City and the County, the City is required to post a Twenty Thousand Dollar ($20,000) refundable deposit in an escrow account which will be applied to final purchase of the Property unless the City terminates the PSA before the close of the due diligence period; and
WHEREAS, the PSA provides the City with a one-hundred and twenty day (120) day due diligence period to undertake inspection and review the Property and improvements, including undertaking a Phase I, and if necessary a Phase II, of the Property, and upon the expiration of the due diligence period, the City will have fifteen (15) calendar days to close escrow and deposit the balance of the purchase price into escrow (the “Closing Date”); and
WHEREAS, on January 23, 2019, the Planning Commission considered the location, purpose, and extent of the acquisition of the property pursuant to Government Code 65402(a) and confirmed that the acquisition of the Property was in conformity with the City’s General Plan and was consistent with Objective OSC-4.5 and General Plan Policies P4.5-1, P4.5-2, and A4.5-1; and
WHEREAS, the City staff has reviewed the proposed purchase of the Property in accordance with the California Environmental Quality Act (“CEQA”) and determined that the purchase itself will not have an impact on the environment and is therefore exempt from CEQA review pursuant to CEQA Guidelines Section 15061(b)(3), the “general rule” exemption, which states that, where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is exempt from CEQA. The proposed action would only transfer ownership of the Property; any future development or new uses of the Property, following its purchase by the City, will be subject to the appropriate level of CEQA analysis at the time it is proposed; and
WHEREAS, the City’s acquisition of the Property will require that the City’s Personnel and Staffing Full Time Personnel include a new position titled Fairgrounds Revitalization Director , with the position’s salary and benefits to be included within the City’s Unrepresented Executive Management document as most recently amended by the City Council on March 21, 2023, and City staff will need to initiate recruitment steps to fill this position, with the assistance of a professional recruiter; and WHEREAS, the City’s acquisition of the Property will require that the City staff undertake all necessary steps to provide basic landscaping maintenance on the Property beginning on the Closing Date, and create a plan for repairs and improvements to the Property’s infrastructure necessary to re-open the RV Park; and Item #8.1.

4879-7515-5871 v3 -3-
WHEREAS, the City staff will need to make Budget Adjustments to the Fiscal Year 2023-2024 Operating Budget to provide the funds necessary to fund the new Fairgrounds Revitalization Director position, including the recruitment costs for such position, the cost of basic landscaping maintenance on the Property and the cost for the City staff to create the infrastructure plan for re-opening of the RV Park; and WHEREAS, funds for the Two Million Dollar ($2,000,000) purchase price are available in the current budget in Account #10-4110-4499; and WHEREAS, the County has declared that the Property is “exempt surplus land” pursuant to Government Code section 54221(f)(1)(D) based on the facts and reasons set forth in the County’s Resolution declaring the Property “exempt surplus land”, adopted on January 23, 2024.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Calistoga that the City Council does hereby resolve, determine and find as follows:

1. The above referenced recitals are true and correct and are incorporated into and form a material part of this Resolution.

2. The City Council hereby approves and authorizes the purchase of the Napa County Fair Grounds and Calistoga R.V. Park (1435 and 1601 N. Oak Street) in Calistoga containing approximately +/- 70.6 acres, for the purchase price of Two Million Dollars ($2,000,000) (the “Purchase Price”).

3. The City Council hereby approves and authorizes the City Manager to execute the PSA for the purchase of the Property, in substantially similar form as provided in Exhibit 1, subject to minor modifications as may be approved by the City Attorney.

NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council hereby authorizes the City Manager to undertake the following actions:

1. Complete all necessary due diligence matters on the Property, including conducting a Phase I, and if necessary, a Phase II environmental assessment;

2. Modify the City’s Personnel and Staffing Full Time Personnel to include a new position titled Fairgrounds Revitalization Director, with the position’s salary and benefits to be included within the City’s Unrepresented Executive Management document as most recently amended by the City Council on March 21, 2023, draft a detailed job description, and initiate recruitment steps to fill this position, with the assistance of a professional recruiter;

3. Undertake all necessary steps to provide basic landscaping maintenance on the Property beginning on the Closing Date;
Item #8.1.

4879-7515-5871 v3 -4-

4. Develop a plan for repairs and improvements to the Property’s infrastructure necessary to re-open the RV Park;

5. Make all necessary budget adjustments to the Fiscal Year 2023-2024 Operating Budget to provide the funds necessary to fund the new Fairgrounds Revitalization Director position, including the recruitment costs for such position, the cost of basic landscaping maintenance for the Property and the cost to create the infrastructure plan for re-opening of the RV Park;

6. Deposit Twenty Thousand Dollars ($20,000.00) in the form of a cashier’s check or wire transfer to Placer Title Company, 5 Financial Plaza, #205, Napa, California 94558 and to further execute the Escrow instructions;

7. Execute a Certificate of Acceptance accepting the Grant Deed on behalf of the City of Calistoga, in a form approved by the City Attorney, conveying fee title to the Property after the satisfactory close of the due diligence period and pursuant to the terms of the PSA;

8. Take all other actions and execute all other documents as necessary or reasonably required to carry out, give effect to, and consummate the transaction contemplated by this Resolution and to take all action necessary in conformity therewith; and

9. Find that the proposed purchase is exempt from CEQA review pursuant to CEQA Guidelines Section 15061(b)(3), the “general rule” exemption where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Calistoga at a regular meeting thereof held this 6th day of February 2024, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:
__________________________________
Don Williams, Mayor
ATTEST:
______________________________
Yudiana Galvan, City Clerk
Item #8.1.

4879-7515-5871 v3 -5-
EXHIBIT “1”

PURCHASE AND SALE AGREEMENT AND

ESCROW INSTRUCTIONS
Item #8.1.

EXHIBIT “1”

PURCHASE AND SALE AGREEMENT AND

ESCROW INSTRUCTIONS
Item #8.1.

CNAP-55587\2877807.8 1
NAPA COUNTY AGREEMENT NO. __________

PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS

THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (“Agreement”) is dated for reference purposes only, as of __________, 2024, by and between NAPA COUNTY, a political subdivision of the State of California (hereinafter referred to as “Seller”), and CITY OF CALISTOGA, a general law city (hereinafter referred to as “Buyer”). Seller and Buyer shall be referred to from time to time hereinafter individually as “Party” or together as “Parties.”

RECITALS
A. Seller is the owner of approximately +/- 70.6-acres of real property as well as the buildings and other improvements located thereon in the City of Calistoga, County of Napa, commonly known as APN: 011-140-055, 011-140-006, 011-140-007 and 011-481-022 and more fully shown and described on Exhibit A to this Agreement (collectively, the “Fairgrounds”).

B. Seller wishes to sell to Buyer (i) the land, building, and other improvements consisting of the entirety of the Fairgrounds (except for and excluding approximately 1.24 acres of the parcel designated as a portion of APN 011-014-055 (the “Retained Land”), which Retained Land includes the +/- .57 acres of land and improvements currently being leased to the Napa County Office of Education [“NCOE”] (with a street address of 1407 N. Oak Street, Calistoga, CA 94515) (the “NCOE Leased Premises”), certain land located to the west of the NCOE Leased Premises and improved with a building used for maintenance and storage purposes and related improvements (the “Adjacent Storage Property”), as well as the portion of the Fairgrounds currently encumbered by that Access and Utility Easement Agreement, Napa County Agreement 8575, entered into by and between Seller, as grantor, and NCOE, as grantee, with an effective date of January 1, 2019, and recorded in the Official Records of Napa County on December 7, 2018 as Document No. 2018-0023386) (the “Access Easement Area”)) and (ii) any and all easement rights and appurtenances thereto (the “Property”). The approximate location of the Retained Land is depicted on Exhibit A-1 hereto. The exact boundaries and acreage of the Retained Land will be determined as set forth below.

C. Previously, Seller contracted with the Napa County Fair Association for over eighty (80) years to operate and maintain that portion of the Property commonly known as the “Napa County Fairgrounds”; which contract was terminated before the Effective Date of this Agreement. Since such termination, Seller and Buyer have discussed governance of the Property as well as Buyer’s desire to acquire the Property to preserve and utilize it for the greatest benefit of the residents of the City of Calistoga and the County of Napa. Seller and Buyer also entered into an agreement to sell the Property to Buyer, which contract terminated by its own terms before any of the Property was conveyed to Buyer.

D. California Government Code Section 25365 (a) provides that a board of supervisors may, by a four-fifths vote, convey or otherwise transfer to a city any real property belonging to a county upon the terms and conditions as are agreed upon and without complying with any other provisions regarding surplusing of public property, if the property is not required for county use.

Item #8.1.

CNAP-55587\2877807.8 2
E. Seller through its Board of Supervisors desires to declare the Property as no longer required for County use, designate it as surplus, and sell the Property to Buyer, and Buyer wishes to purchase the Property, each on the terms and conditions set forth below. With respect thereto, Buyer agrees and acknowledges that Seller is selling the Property to Buyer at a substantial discount below its fair market value in order to have Buyer own and operate the Property for public purposes consistent with historical uses, as defined herein, of the Fairgrounds for the benefit of the community.

F. Seller has given notice of its intended action to convey the Property to Buyer at least one week in advance of approving this Agreement pursuant to California Government Code Sections 25365 (c) and 6061.

TERMS
NOW, THEREFORE, in consideration of the promises set forth herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller agrees to sell, and Buyer agrees to purchase the Property according to the terms and conditions in this Agreement, as follows:

1. RECITALS. The foregoing recitals are true and correct. The Parties agree that this Agreement shall not be deemed invalid because the description of the Property is not exact or is incomplete as of the Effective Date.

2. PROPERTY TO BE PURCHASED. An exact legal description of the Property and the Retained Land will be agreed upon by the Parties and insured by the Title Company (as defined below) at Closing as hereinafter described. Within thirty (30) days after the Effective Date, Seller shall provide Buyer with the proposed final legal descriptions of the Property and the Retained Land for Buyer’s review and approval, which shall be consistent with the description of the Property and Retained Land as originally set forth in this Agreement. (If such does not occur within said 30-day period, then the Due Diligence Period shall be extended one day for each day past the thirty (30) days when the proposed, applicable final legal description is due on a day for day basis until the proposed final legal descriptions of the Property and Retained Land are delivered to Buyer.) During the Due Diligence Period (as defined below), Seller and Buyer shall attempt in good faith to agree on the final legal description of the Property and the Retained Land. If such occurs, then the Parties shall promptly enter into an amendment to this Agreement that shall include as exhibits thereto the agreed upon legal descriptions for the Property and the Retained Land. If no such agreement is reached but Buyer does not terminate this Agreement before the expiration of the Due Diligence Period as specified in Paragraph 11, then the final legal descriptions of the Property and the Retained Land shall be deemed to be the last respective descriptions of each provided to Buyer by Seller before the Due Diligence Period expired, and Seller and Buyer shall promptly document the same in an amendment to this Agreement.

3. EFFECTIVE DATE. This Agreement shall be effective as of the last date of execution by Seller or Buyer, as indicated on the signature page below (the “Effective Date”).

4. PURCHASE PRICE. Buyer agrees to pay to Seller, and Seller agrees to accept, for Buyer’s purchase of the Property, the total sum of Two Million Dollars ($2,000,000) all cash to Seller Item #8.1.

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(the “Purchase Price”).

5. ENTIRE AGREEMENT. THIS AGREEMENT, WHICH INCLUDES EXHIBITS A

THROUGH I ATTACHED HERETO, CONSTITUTES THE ENTIRE AGREEMENT

BETWEEN THE PARTIES RELATING TO THE SUBJECT OF THIS AGREEMENT AND

SUPERSEDES ALL PREVIOUS AGREEMENTS, PROMISES, REPRESENTATIONS,

UNDERSTANDINGS AND NEGOTIATIONS, WHETHER WRITTEN OR ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY WAIVER,

MODIFICATION OR CONSENT WITH RESPECT TO ANY PROVISION OF THIS

AGREEMENT MUST, IN ORDER TO BE ENFORCEABLE, BE SET FORTH IN WRITING

AND DULY EXECUTED BY BOTH PARTIES AS AN AMENDMENT OF THIS AGREEMENT. PERFORMANCE OF THIS AGREEMENT CONSTITUTES THE ENTIRE CONSIDERATION FOR THE CONVEYANCE OF THE PROPERTY.

6. BUYER’S OBLIGATIONS.
a. DEPOSIT AND TERMS GOVERNING DEPOSIT.
i. Buyer shall make a deposit of Twenty Thousand Dollars ($20,000.00) (“Deposit”) within five (5) business days of the Effective Date in the form of a cashier’s check or wire transfer to Placer Title Company, whose address is 5 Financial Plaza, #205, Napa, California 94558, acting through Laura Blessing [Phone No.: (707) 346-6948 and Email: lblessingplacertitle.com] and whom the Parties agree will serve as escrow holder for the Property’s purchase (the “Escrow Holder”) as specified more fully in Paragraph 8. The Deposit shall be refundable to Buyer during the Due Diligence Period. If Buyer elects to proceed with the transaction at the expiration of the Due Diligence Period, the Deposit shall then be non-refundable to Buyer except in the event of a Seller default that results in a termination of this Agreement or otherwise provided in Paragraphs 19 [damage due to destruction, damage or loss of the Property], or 20.c.i [failure of any of the conditions to Buyer’s obligations to purchase the Property and consummate the Closing]. The Deposit shall be credited towards the Purchase Price at the Closing. All days referenced in this Agreement shall mean calendar days unless otherwise specified.
ii. Buyer and Seller shall open escrow with Escrow Holder. Upon opening of escrow, Buyer shall deliver the Deposit to the Escrow Holder as specified above.

Escrow Holder shall place the Deposit in a federally insured bank in an interestbearing account whose term is appropriate and consistent with the timing requirements of this transaction. The interest therefrom shall be deemed part of the Deposit and accrue to the benefit of Buyer until the earliest of the following events: Close of Escrow (as defined below), refund of the Deposit to Buyer if Buyer timely exercises the right to cancel the escrow as provided for below (or otherwise expressly provided for herein), or payment by the Escrow Holder of the Deposit amount to Seller after the Deposit becomes non-refundable as provided for herein, including, as liquidated damages pursuant to Paragraph 26.b. below, if Item #8.1.

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Buyer fails to consummate purchase of the Property and proceed to the Close of Escrow as provided for below. Buyer will provide to the Escrow Holder, at the time of the opening of escrow, Buyer’s Federal Tax Identification Number. The interest-bearing account for the purpose of holding the Deposit cannot be opened until Buyer’s Federal Tax Identification Number is provided. Until then, the Escrow Holder shall hold the Deposit, and no interest shall accrue or be payable to Buyer on the Deposit.
iii. Within five (5) days after Escrow Holder receives the Deposit and places it in the interest-bearing account, Escrow Holder shall release One Hundred Dollars ($100) of the deposited funds (the “Independent Consideration”) to Seller as and for independent consideration for Seller’s execution of this Agreement and the granting of the Due Diligence Period to Buyer as herein provided. Such Independent Consideration is non-refundable to Buyer and shall not be considered part of the Deposit after the Deposit is received by Escrow Holder, but the Independent Consideration shall be credited toward Buyer’s payment of the Purchase Price at Close of Escrow, if such Closing occurs. b. PAYMENT OF PURCHASE PRICE AND OTHER CHARGES.
i. Prior to, and as a condition of Close of Escrow, Buyer shall pay into escrow the amount of money necessary to yield net funds payable by the Escrow Holder to Seller at the Close of Escrow in the amount of the Purchase Price, and Buyer shall also pay any and all escrow fees, title insurance premiums, and real property transfer or other taxes necessary for consummation of the purchase and any and all other closing costs, except as otherwise provided in Paragraph 40. If, however, escrow is terminated as a result of Seller’s default of this Agreement then Seller shall pay any Title Company and Escrow Holder cancellation fees and costs.
ii. Buyer shall deposit such additional funds necessary to satisfy its obligation to pay the Purchase Price with Escrow Holder, by federal funds wire transfer, or any other method acceptable to Escrow Holder in immediately collectable funds, no later than 2:00 P.M. on the business day prior to the Expected Closing Date (as defined on Paragraph 12); provided, however, that Buyer shall not be required to deposit such monies into escrow if at the time set for the deposit of such monies Seller is in default or has indicated that it will not perform any of its obligations hereunder. Instead, in such circumstances in order to reserve its rights to proceed, Buyer need only provide the Escrow Holder with evidence establishing that the required monies are available.

7. SELLER’S OBLIGATIONS. Prior to, and as a condition of the Close of Escrow, Seller shall deposit into escrow a Grant Deed in the form attached hereto as Exhibit B (the “Grant Deed”), which shall convey from Seller to Buyer fee title to the Property subject only to the Permitted Exceptions (as defined below). In addition, prior to the Expected Closing Date, Seller shall execute and submit to the Escrow Holder (1) an affidavit to the effect that (a) Seller is not a Item #8.1.

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“foreign person” within the meaning of Internal Revenue Code Section 1445 or successor statutes, and (b) that Seller is not a “nonresident” within the meaning of California Revenue and Tax Code Section 18662 or successor statutes, and (2) an easement agreement between Seller, as grantor, and Buyer, as grantee, whereby Buyer shall have the non-exclusive use of the Adjacent Storage Property and the Access Easement Area for Buyer’s use, at no cost, pursuant to an easement agreement in the form attached hereto as Exhibit I (“Adjacent Storage Property and Access Road Easement”).

8. ESCROW INSTRUCTIONS. Promptly following the Effective Date, the Parties shall deposit with Escrow Holder a copy of this Agreement. By its execution and delivery of this Agreement, Escrow Holder agrees to be bound by the terms and conditions of this Agreement to the extent applicable to its duties, liabilities, and obligations as “Escrow Holder” hereunder. Escrow Holder shall hold and dispose of the Deposit in accordance with the terms of this Agreement.

The Escrow Holder’s General Provisions are attached hereto as Exhibit C and made a part hereof. This Agreement shall constitute not only the agreement of purchase and sale between Buyer and Seller, but also instructions to Escrow Holder for the consummation of the purchase and sale through the escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending the Agreement unless specifically so instructed by both Parties. Buyer and Seller may execute and deliver such supplemental escrow instructions and closing documents consistent with this Agreement as they may deem necessary or desirable (“Supplemental Instructions”). The Supplemental Instructions shall not modify or amend the provisions of this Agreement unless otherwise set forth in a separate written document signed by duly authorized representatives of both Buyer and Seller, including each Party’s respective attorneys. In the event that there is any conflict between the provisions of this Agreement and the provisions of any Supplemental Instructions, the provisions of this Agreement shall prevail and control as to the Parties and the Escrow Holder.

9. DUE DILIGENCE PERIOD; TITLE REVIEW; SELLER’S CONTINGENCY. a. Subject to the terms of Paragraph 13, Buyer shall have one hundred twenty (120) days from the Effective Date (the “Due Diligence Period”), to review all entitlements for Buyer’s intended use and make any and all inspections, investigations, tests, surveys and appraisals of the Property as Buyer deems necessary or desirable including, without limitation, title matters, studies relating to environmental and soil conditions of the Property, and whether the Property is suitable for Buyer’s intended use of the Property, and any other matters Buyer determines relate to the Property; provided, however, Buyer shall not undertake any Phase II environmental testing or any destructive or invasive testing on the Property or of any buildings or other structures which is part thereof, without Seller’s consent as to the scope of such testing, which consent may be withheld or granted in Seller’s sole, but good faith discretion. Additionally, Buyer may review the Land Tenure Agreement (the “LTA”) between the State of California and Seller and the Recycled Water Use Agreement between the City and Fairgrounds Association for continued applicability as well as all other Seller’s Documents provided under Paragraph 10. Buyer may terminate this Agreement and receive a refund of the Deposit by providing written notice of such termination to Seller and Escrow Holder thereof at any time prior to expiration of the Due Diligence Period as specified more fully in Paragraph 11.

Item #8.1.

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b. Within the time periods set forth below, Buyer shall have the right to approve, in its sole and absolute discretion, a preliminary report or title commitment for the Property (the “Title Commitment”) and all exceptions and other title matters referenced therein or disclosed by an ALTA survey obtained by Buyer (the “Survey”). (All such exceptions and title matters are referred to herein as the “Exceptions.”) Immediately following the Effective Date, Escrow Holder shall at Buyer’s expense order the Title Commitment with copies of all Exceptions to title set forth on such report, which Title Commitment and Exceptions Escrow Holder shall deliver to Buyer with a copy to Seller. Buyer at its expense may order a Survey. The Survey (if any), Title Commitment, and copies of all Exceptions to title set forth on the Title Commitment are collectively referred to below as the “Title Documents”. Buyer shall have until 5:00 p.m. (Pacific Time) ninety (90) days from the Effective Date (“Title Inspection Period”) to give Seller written notice of Buyer’s objections to or disapproval of any Exception(s) disclosed by the Title Documents (the “Objection(s)”). The failure of Buyer to so object to an Exception set forth on the Title Commitment or any Survey within the Title Inspection Period shall be deemed Buyer’s approval of said Exception. Within ten (10) days after its receipt of the Objections, with respect to each Objection, Seller shall notify Buyer whether Seller (i) will cure or eliminate such Objection from title on or prior to Closing or (ii) is unwilling or unable to cure or have such Objection eliminated from title to the Property on or prior to Closing (“Seller’s Title Notice”), and Seller shall cure or eliminate from title to the Property prior to Closing any such Objection Seller has agreed to so cure or eliminate. If Seller fails to timely deliver such a Seller’s Title Notice as to a particular Objection within such ten (10) day period, then Seller shall be deemed to have made the election in clause (ii) above. If Seller elects not to remove any Objection(s) or is deemed to have made an election not to remove an Objection, then Buyer shall have until the end of the Due Diligence Period to notify Seller that either (1) Buyer is willing to purchase the Property subject to such Objection(s), upon the satisfaction of the remaining conditions to the Closing or (2) Buyer elects to terminate this Agreement. Any such Objection(s) that Buyer has elected to take title to the Property subject to, shall be deemed to be a Permitted Exception. Any failure by Buyer to so terminate this Agreement shall constitute Buyer’s election to proceed as specified in subclause (1) above. Any termination of this Agreement pursuant to this Paragraph 9.c or Paragraph 9.d below shall have the same effect as termination pursuant to Paragraph 9.a, Paragraph 9.b and Paragraph 11.
c. Buyer may, at or prior to Closing, notify Seller in writing (the “Gap Notice”) of any Objection(s) it may have to any Exceptions to title (i) raised by the Title Company between the expiration of the Due Diligence Period and the Closing and (ii) not disclosed in writing by the Title Company or otherwise actually disclosed in writing to Buyer prior to the expiration of the Due Diligence Period (each, an “Intervening Lien”). Buyer must notify Seller of such Objection to title within seven (7) days of being made aware of the existence of such Intervening Lien. If Buyer sends a timely Gap Notice to Seller regarding any Intervening Lien, then Buyer and Seller shall have the same rights and obligations with respect to such notice as apply to an Objection under Paragraph 9.c above, except that Buyer shall have until five (5) days after receipt of Seller’s Title Notice to an Intervening Lien to make Buyer’s election between subclauses (1) and (2) in Paragraph 9.c, above. If Item #8.1.

CNAP-55587\2877807.8 7
necessary, the Expected Closing Date shall be extended to give Buyer the time specified above to provide a Gap Notice and/or to make the above election, and/or Seller sufficient time to provide Seller’s Title Notice in response to a Gap Notice. d. As used herein, “Permitted Exceptions” means any and all Exceptions (i) approved in writing by Buyer or deemed approved pursuant to the terms of this Agreement, (ii) all real estate taxes and assessments for the Property not yet due and payable, (iii) any Exceptions caused by Buyer or any employee, agent, or contractor thereof; and/or (iv) any and all instruments required or stated in this Agreement to be recorded at Closing. e. This Agreement is contingent on Seller receiving confirmation satisfactory to Seller in its sole but good faith discretion from the California Department of Housing and Community Development (“HCD”) within thirty (30) days after the Effective Date that the conveyance of the Property and/or right to repurchase the Property pursuant to Paragraph 14 are not subject to the California Surplus Land Act, California Governmental Code Section 54220 et seq. (the “SLA”). If Seller does not receive such confirmation within the abovereferenced 30-day period, then Seller may terminate this Agreement by providing notice thereof to Buyer within five (5) days after the expiration of the 30-day period. Any such termination shall have the same effect as a termination of this Agreement pursuant to Paragraph 11. Subject to the above, to the extent applicable, Seller shall comply with the SLA with respect to the conveyance of the Property to Buyer.

10. SELLER DOCUMENTS. Prior to the Effective Date, in connection with the previous Purchase and Sale Agreement dated November 3, 2022 between the Parties for the purchase and sale of the Fairgrounds Property and/or this Agreement, Seller has provided Buyer copies of all material documents in Seller’s possession or control concerning the Property and listed on Exhibit F to this Agreement (“Seller’s Documents”). Seller’s Documents shall also include any other documents provided to Buyer by Seller concerning the Property no later than thirty (30) days before the expiration of the Due Diligence Period. Except as follows in the immediately following sentence, all of Seller’s Documents are being, or have been, provided to Buyer by Seller without any representation or warranty as to the completeness or accuracy of any information set forth therein. Seller represents and warrants to its actual knowledge that the copy of the LTA provided to Buyer is a true and complete copy thereof. With respect to events occurring after the Effective Date, but before the Closing, nothing set forth above is intended to alter or modify Seller's common law duty to disclose to Buyer any facts actually known to Seller, which would materially affect the value and desirability of the Property and which facts are to Seller's knowledge not known to, or within the reach of the diligent attention and observation of Buyer.

11. TIME FOR BUYER TO WAIVE CONTINGENCIES TO CLOSE OF ESCROW. As specified above, Buyer shall have until 5:00 p.m. on the last day of the Due Diligence Period in which to cancel escrow and withdraw from the purchase of the Property or to waive the contingencies set forth in Paragraphs 9.b. and 9.c., and in each case proceed to the Close of Escrow on Buyer’s purchase of the Property on the terms and conditions specified herein. To exercise the right to cancel the escrow and this Agreement pursuant Paragraphs 9.a, 9.b, and 9.c, Buyer must take steps to ensure actual receipt by the Escrow Holder and by Seller of the Buyer’s Item #8.1.

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written notice of cancellation of this Agreement and escrow resulting therefrom (the “Cancellation Notice”) prior to 5:00 p.m. on the last day of the Due Diligence Period. To be effective, the Cancellation Notice must be signed by an authorized representative of Buyer.

IF BUYER DOES NOT PROVIDE THE CANCELLATION NOTICE, WHICH IS

ACTUALLY RECEIVED BY ESCROW HOLDER AND SELLER NO LATER THAN 5:00 P.M. PACIFIC TIME ON THE LAST DAY OF THE DUE DILIGENCE PERIOD,

THEN IT SHALL BE CONCLUSIVELY PRESUMED THAT BUYER HAS WAIVED

ALL CONTINGENCIES AND OBJECTIONS TO CLOSE OF ESCROW AS SET FORTH IN PARAGRAPHS 9.a, 9.b. AND 9.c.

Unless the Parties otherwise agree in writing, and except as provided in Paragraph 9.d, Paragraph 20, below [Termination of Agreement Due to Destruction, Damage or Loss of the Property], and/or Paragraph 21.c [Closing Conditions], if and only if Buyer provides the written Cancellation Notice to the Escrow Holder and Seller, no later than 5:00 P.M. Pacific Time on the last day of the Due Diligence Period, that Buyer is withdrawing from the purchase and cancelling escrow and this Agreement, then Buyer shall receive a return from the Escrow Holder of the Deposit, less only: (a) the Independent Consideration paid to Seller as consideration for Seller’s execution of this Agreement and the granting of the contingency periods to Buyer as provided above, and (b) any and all Title Company and Escrow Holder cancellation fees and costs shall be shared equally between Buyer and Seller. Upon any such termination of this Agreement, neither Buyer nor Seller shall have any further duties or obligations hereunder, except for those obligations that are expressly stated to survive such termination.

12. DURATION AND CLOSE OF ESCROW. For purposes of this Agreement and any other escrow instructions, the Close of Escrow shall occur fifteen (15) calendar days following the expiration of the Due Diligence Period, or earlier waiver by Buyer of said contingency (the “Expected Closing Date”). Subject to satisfaction of the contingencies and obligations set forth in this Agreement as set forth or summarized in Paragraph 21.c below, Escrow Holder shall close the escrow (the “Closing” or “Close of Escrow”) by recording the Grant Deed executed by Seller and any other documents required to be recorded, including the Memorandum and Emergency Use Easement (as defined below) and by disbursing the funds and documents in accordance with this Agreement and any Supplemental Instructions not in conflict herewith. If all Closing Conditions set forth in Paragraph 21.c below have been met, and the Closing does not occur by the Expected Closing Date and said date is not extended by mutual agreement and instructions of the Parties, a Party not then in default under this Agreement may notify the other Party, and Escrow Holder, in writing that, unless the Closing occurs within five (5) business days following said notice, the escrow for this Agreement shall be deemed terminated without further notice or instructions.

13. BUYER’S ENTRY UPON THE PROPERTY DURING ESCROW. Subject to compliance with the insurance requirements set forth below and the limitations set forth in Paragraph 9.b, at any time during the Due Diligence Period, Buyer and its agents and representatives shall have the right, at reasonable times and with reasonable advance written notice, in a way that does not disturb Seller’s use or any tenant’s or licensee’s use of the Property in any material manner, to enter upon the Property for the purpose of making inspections and tests. No destructive or Phase Item #8.1.

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II testing shall be conducted, however, without Seller’s written prior approval as specified in Paragraph 9.b. Following any such entry or work, unless otherwise directed in writing by Seller, Buyer shall return the Property to substantially the same condition it was in prior to such entry or work, including the recompaction or removal of any disrupted soil or material as Seller may reasonably direct. All such inspections and tests and any other work conducted or materials furnished with respect to the Property by or for Buyer shall be paid for by Buyer as and when due and Buyer shall indemnify, defend (with counsel reasonably acceptable to Seller), protect and hold harmless Seller, any and all officers, officials, employees, agents and contractors of Seller, and the Property of and from any and all claims, liens, liabilities, losses, expenses (including reasonable attorneys’ fees), damages, including those for injury to person or property, arising out of or relating to any such work or materials or the acts or omissions of Buyer, its agents or employees in connection therewith; provided, however, the foregoing indemnity shall not apply to any conditions existing on the Property prior to the entry onto the Property by Buyer or any of its agents, employees or contractors unless such party exacerbates such existing condition. Buyer and any and all agents, employees and contractors of Buyer who enter upon the Property for purposes of conducting any inspections or tests (collectively “Buyer and its Agents”) shall have, and continue to have, the following insurance coverage in full force and effect as a condition of any entry or continued entry onto the Property or any portion thereof, and such insurance shall be maintained in full force and effect throughout the term of this Agreement:
a. Workers’ Compensation Insurance. To the extent required by law, Buyer and its Agents shall provide Workers’ Compensation insurance for the performance of any of Buyer’s and its Agents’ duties under this Agreement, including but not limited to, coverage for workers’ compensation and employer’s liability, and a waiver of subrogation. b. Liability Insurance. The following liability insurance coverages, issued by a company admitted to do business in California and having an A.M. Best rating of A VII or better or equivalent self-insurance satisfactory to Seller’s Risk Manager, or by a combination thereof:
i. General Liability. Commercial or comprehensive general liability insurance coverage (personal injury and property damage) of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, issued by a company admitted to do business in the State of California, covering liability for any personal injury, including death, to any person and/or damage to the property of any person arising from the acts or omissions of that party under this Agreement.

If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit.
ii. Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance policy (Bodily Injury and Property Damage) on owned, hired, leased and non-owned vehicles used in conjunction with that party’s activities under this Agreement of not less than One Million Dollars ($1,000,000) combined single limit per occurrence. If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit.

Item #8.1.

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c. Certificates of Coverage, Waiver of Subrogation and Additional Insureds. Insurance coverages referenced in 13.a and 13.b, above, shall be evidenced by one or more certificates of coverage and copies of applicable endorsements or, with the consent of Seller’s Risk Manager, demonstrated by other evidence of coverage acceptable to Seller’s Risk Manager, which shall be delivered by Buyer to Seller prior to each of Buyer and its Agents’ entry onto the Property, or any one of them (and anytime thereafter as may be reasonably requested by Seller).
i. The certificate(s) or other evidence of coverage shall reference this Agreement by its number or title and department; shall be kept current during the term of this Agreement; shall provide that, if such coverage is reasonably obtainable in the geographic area where the Property is located, Seller shall be given no less than thirty (30) days prior written notice of any non-renewal, cancellation, other termination, or material change, except that only ten (10) days prior written notice shall be required where the cause of non-renewal or cancellation is non-payment of premium; and shall provide that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, the coverage afforded applying as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the company’s liability.
ii. For the commercial general liability insurance coverage referenced in 13.b.i. and, for the comprehensive automobile liability insurance coverage referenced in

13.b.ii. where the vehicles are covered by a commercial policy rather than a personal policy, Buyer shall also deliver to Seller with the evidence of coverage an endorsement from the insurance provider naming Seller and its officers, employees, agents and volunteers as additional insureds and waiving subrogation. For the Workers Compensation insurance coverage, Buyer shall deliver to Seller with the evidence of coverage an endorsement waiving subrogation. All liability policies required by this Agreement shall be occurrence based policies.
iii. The certificate or other evidence of coverage shall provide that if the same policy applies to activities of Buyer not covered by this Agreement, then the limits in the applicable certificate relating to the additional insured coverage of Seller shall pertain only to liability for activities of Buyer under this Agreement, and that the insurance provided is primary coverage to Seller with respect to any insurance or self-insurance programs maintained by Seller.
d. Upon request by Seller’s Risk Manager, Buyer shall provide or arrange for the insurer to provide within thirty (30) days of the request, copies of the actual insurance policies or relevant portions thereof.
e. Minimum Limits Not Precluding Additional Coverage. No minimum limits of coverage set forth above shall serve to preclude the application of any coverage in excess of the Item #8.1.

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same, and insurance provided by Buyer shall be deemed to be primary and noncontributory with any insurance or self-insurance programs maintained by Seller. f. Deductibles/Retentions. Any deductibles or self-insured retentions shall be disclosed to Seller’s Risk Manager.
g. Inclusion in Subcontracts. Buyer agrees and acknowledges that the above-referenced liability and Workers’ Compensation insurance requirements shall apply to all subcontractors and any other entity or person who is involved in providing services under this Agreement involving any entry onto the Property, or any portion thereof, and Buyer shall require compliance of said persons or entities with such insurance requirements set forth in this Paragraph 13.

14. REPURCHASE RIGHT AND RIGHT OF FIRST REFUSAL.
a. Repurchase Right. Buyer agrees that Seller possesses and hereby grants Seller the right and option to repurchase the Property, or applicable portions thereof, from Seller for a period of ninety-nine (99) years or as otherwise provided in Paragraph 14.c, for the Adjusted Price (as defined below) on and subject to the terms and conditions set forth below (the “Repurchase Option”):
i. Right to Exercise the Repurchase Option. Seller may exercise its Repurchase Option if the Property, or any portion thereof, is subject to a Proposed Rezoning (as defined below) except as follows: If Buyer (or any other applicable governmental authority or body) finally denies (i.e. the denial is not subject to any right appeal or legal challenge) the Proposed Rezoning before the Repurchase Closing occurs, then the Repurchase Option for the specific Proposed Rezoning whether or not previously exercised by Seller shall become null and void (but not Seller’s right to exercise its Repurchase Option for other Proposed Rezonings).

Unless Seller agrees in its sole and absolute discretion otherwise in writing, Buyer shall not hold a vote on or otherwise approve of any Proposed Rezoning until the time for Seller to deliver Seller’s Election Notice has expired. ii. Exercise of Repurchase Option.

1. Before any Proposed Rezoning of all or part of the Property occurs, Buyer shall send Seller a written notice in compliance with the notice provisions of this Agreement specifying the Proposed Rezoning and what parts of the Property would be affected thereby (the “Option Property”), which notice shall also include the reasons why Buyer wishes to permit or consider the Proposed Rezoning and be accompanied by a reconciled statement (the “UCI Value Statement”) certified as being accurate by Buyer’s chief financial officer or an outside auditor of the monetary value of all unamortized capital improvements (amortized in accordance with IRS guidelines), if any, made by Buyer (through the use of the Buyer's general funds) on the Option Property (“Unamortized Capital Item #8.1.

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Improvements Value”) along with reasonable supporting documentation (the "Proposed Change in Use Notice"). Seller shall have until the later of (x) ninety (90) days after its receipt of the Proposed Change in Use Notice or (y), if Seller has agreed to permit such a vote on or approval to occur pursuant to subparagraph (i) above, thirty (30) days after the Proposed Rezoning has been finally approved to elect to exercise the Repurchase Option for the Option Property by providing notice of Seller’s election to Buyer in accordance with the notice provisions of this Agreement (“Seller’s Election Notice”). Buyer shall, however, have no obligation to convey the Option Property unless Seller pays the Adjusted Price (as defined below) to Buyer as specified in this Paragraph 14a. No more than once annually, Buyer shall provide Seller with an annual list of capital improvements, if any, made by the Buyer to the Property.

2. Notwithstanding the above, if less than the entirety of the Property is subject to a Proposed Rezoning and such portion of the Property is not a separate legal parcel or parcels in compliance with the California Subdivision Map Act (Government Code Section 66410 et seq. (the “Map Act”), then Seller and Buyer shall coordinate to process a lot line adjustment or parcel map creating a separate legal parcel for the portion of the Property subject to the Proposed Rezoning (“Rezoning Parcel”).

Alternatively, Buyer may determine a parcel map to create the Rezoning Parcel may be waived or that the conveyance of the Rezoning Parcel is exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2). If a Rezoning Parcel is created, whether by map, lot line adjustment, waiver conveyance or exemption, Seller shall be entitled to repurchase the Rezoning Parcel but only for an Adjusted Price calculated on said basis. If (i) the application to create, or waive a map for creation of a Rezoning Parcel is finally denied by Buyer (or other applicable governmental authority or body) (i.e. beyond any applicable appeal or legal challenge period) and (ii) Buyer reasonably determines that the conveyance of the Rezoning Parcel (or what would have been the Rezoning Parcel had the application been approved) would not be exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2) or any successor or other statute or law, then Seller shall be entitled to repurchase the entirety of the legal parcel or parcels on which the land subject to the Proposed Rezoning is located (and which land will be deemed to be the Option Property), but only for an Adjusted Price calculated on said basis.
iii. Escrow and Closing of the Repurchase. If Seller timely exercises the Repurchase Option, then an escrow shall be opened promptly with Escrow Holder (or any national title company selected by Seller if Escrow Holder is no longer in business) for purposes of facilitating the reconveyance of the Option Property to Seller in accordance with the terms of this Paragraph 14a. In such an event, the closing of the repurchase transaction (the “Repurchase Closing”) shall take place Item #8.1.

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on the ninetieth (90th) day following the delivery of Seller’s Election Notice (the “Repurchase Closing Date”) or such earlier date as Seller may elect subject to the following conditions and obligations being satisfied (but which date shall be subject to the extension to the extent that the Option Property does not initially entirely consist of one or more legal parcels to allow the process specified in subparagraph (ii) above to be completed). Title to the Option Property shall be conveyed to Seller by a grant deed substantially in the form of Exhibit B to this Agreement. Title to the Option Property shall be subject to all matters of record except Buyer shall cause the Option Property to be conveyed free and clear of all Monetary Liens (the “Excluded Exceptions”). As a condition of the Repurchase Closing, Seller shall be entitled to receive a CLTA owner’s title policy (or other similar owner’s title policy) in the amount of the Adjusted Price showing title vested in Seller with no Excluded Exceptions shown thereon. The Repurchase Closing shall take place on the Repurchase Closing Date at the offices of the applicable escrow holder or at such other location as may be agreed to by Buyer and Seller. All closing costs for the Repurchase Closing shall be allocated between Buyer and Seller per county custom as reasonably determined by the escrow holder for the transaction. Buyer and Seller shall sign and, if applicable, acknowledge such other documents and instruments as may be reasonably required to cause the Option Property to be conveyed to Seller pursuant to this Paragraph 14(a).
iv. No Extinguishment or Waiver. With respect to any future Proposed Rezoning not covered in a Proposed Change in Use Notice delivered to Seller, Seller’s Repurchase Option shall not be deemed waived or extinguished if Seller elects not to exercise the Repurchase Option for the Proposed Rezoning actually specified in the applicable Proposed Change in Use Notice. Seller’s repurchase right shall also survive any failure by Buyer to timely provide Seller with a Proposed Change in Use Notice as required under this Paragraph 14a. v. Declaration of Covenants and Memorandum. At Closing, the Parties shall have duly executed and acknowledged a declaration of covenants and restrictions and memorandum of option and right of first refusal to purchase (the “Memorandum”) and record the same in the official records of Seller to provide the public with notice of the Repurchase Option and the ROFR referenced below.

The Memorandum shall be substantially in the form attached hereto as Exhibit D.

The Grant Deed for the sale of the Property to Buyer shall also reference that the Property is being conveyed subject to the Repurchase Option and ROFR. b. Right of First Refusal.
i. Buyer agrees that Seller possesses and hereby grants Seller a right of first refusal for a term of ninety-nine (99) years, or as otherwise provided in Paragraph 14c, to repurchase the Property, or any part thereof, (the “ROFR”) for the Adjusted Price before, with respect to such Property, or any part thereof, (the “ROFR Property”) Buyer either (1) sells or conveys fee title to the ROFR Property or Item #8.1.

CNAP-55587\2877807.8 14
(2) enters into a Long Term Lease (as defined below) to any third-party entity for the ROFR Property. No such Long Term Lease or agreement to sell or convey the Property shall be effective until and unless Seller fails to timely provide a Seller’s ROFR Exercise Notice as specified below, and in no event shall any such Long Term Lease or agreement to sell or convey the Property be binding on Seller if Seller’s ROFR Exercise Notice is timely delivered and Seller proceeds to repurchase the Property, or the applicable portion thereof, pursuant to said notice. ii. Prior to offering the ROFR Property for any such sale, conveyance, or Long Term Lease or accepting an unsolicited offer for the same, Buyer shall send Seller a written notice in compliance with the notice provisions of this Agreement including the proposed purchase agreement or lease, or specifying the proposed terms of the sale or lease, as applicable, along with a UCI Value Statement (the “ROFR Notice”) for the ROFR Property certified, as being accurate by Buyer’s chief financial officer or an outside auditor, and with supporting documents as specified in Paragraph 14a. Seller shall have ninety (90) days after its receipt of the ROFR Notice to exercise its ROFR by providing notice thereof to Buyer (“Seller’s ROFR Exercise Notice”), which notice shall comply with the notice provisions of this Agreement. The ROFR Property shall be limited to the portion of the Property that is the subject of the proposed sale, conveyance or Long Term Lease.
iii. Notwithstanding the above, if less than the entirety of the Property is proposed to be subject to a Long Term Lease and such portion of the Property is not a separate legal parcel or parcels in compliance with the Map Act (as defined above) then Seller and Buyer shall coordinate to process a lot line adjustment or parcel map creating a separate legal parcel or parcels for the land included within the Long Term Lease and the ROFR Property shall consist of said legal parcel or parcels once such process is completed. Alternatively, Buyer may determine a parcel map to create the ROFR Property may be waived or that the conveyance of the ROFR Property is exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2). If the ROFR Property is created, whether by map, lot line adjustment, waiver, conveyance or exemption, Seller shall be entitled to purchase the ROFR Property but only for an Adjusted Price calculated on said basis. If (x) the application to create or waive a map to cause the ROFR Property to consist entirely of one or more legal parcels in compliance with the Map Act (as defined above) is finally denied by Buyer (or any other applicable governmental authority or body) and (y) Buyer reasonably determines that the conveyance of the ROFR Property is not exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2) or any successor or other statute or law, then Buyer shall not proceed with the Long Term Lease. iv. If the ROFR is timely exercised, subject to the payment of the Adjusted Price, the ROFR Property shall be conveyed to Seller by a grant deed through an escrow, free and clear of Monetary Liens, all as specified in Paragraph 14(a) on the later of the closing date specified in the ROFR Notice or ninety (90) days after the Item #8.1.

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delivery of Seller’s ROFR Exercise Notice (but which date shall be subject to the extension to the extent that the ROFR Property does not initially entirely consist of one or more legal parcels to allow the process specified in subparagraph (iii) above to be completed). Closing costs shall be allocated as specified in the ROFR Notice, or if not so specified, as stated in Paragraph 14(a). v. For the avoidance of doubt, if the ROFR is timely exercised, the purchase price paid for the ROFR Property shall be the Adjusted Price and not any purchase price specified in any applicable purchase or sale agreement or term sheet triggering the ROFR.
c. Term of the Repurchase Option and ROFR. The term of the Repurchase Option and ROFR shall commence as of the Closing of the sale of the Property to Buyer and, unless otherwise agreed by Buyer and Seller in a recorded instrument, shall expire on the earlier of (x) 5:00 p.m. Pacific Time ninety-nine (99) years following said Closing or (y) the maximum period allowed by applicable law. The Repurchase Option and/or ROFR shall automatically expire and be of no effect on the expiration of the term specified in this Paragraph; provided, however, that Seller shall execute such instruments (e.g., a quitclaim deed) as may be reasonably requested by Buyer to confirm the termination of the Repurchase Option and/or ROFR, as applicable, after such occurs. d. Defined Terms. Defined Terms. The following terms shall have the meanings ascribed to them below for purposes of this Paragraph 14.
i. “Adjusted Price” means the Purchase Price paid by Buyer at Closing increased by the change in the Index from the Closing of the sale of the Property to Buyer, plus the Unamortized Capital Improvements Value (as defined in Paragraph 14(a)(ii)), which Adjusted Price shall be prorated on a land to land basis (i.e. the ratio of the square footage of the land within the Option Property or ROFR Property, as the case may be, to the square footage of all of the land within the Property) if the Option Property or ROFR Property, as applicable, consists of less than all of the Property.
ii. “Index” means the Consumer Price Index for All Urban Consumers-All Items, published monthly by the United States Department of Labor (base year 1982- 84=100), or any successor index thereto as hereinafter provided. If the base year of the Index is changed, then all calculations pursuant to this Paragraph 14 that require the use of the Index shall be made by using the appropriate conversion factor published by the Department of Labor (or successor agency) to correlate to the base year of the Index herein specified. If no such conversion factor is published, then the Parties shall in good faith make the necessary calculation to achieve such conversion. Should the Department of Labor discontinue the publication of the Index, then the Parties will adopt a substitute index or procedure, which reasonably reflects and monitors consumer prices.

Item #8.1.

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iii. “Historical Use” means each prior use of the Property specified on Exhibit D-1 to this Agreement; provided, however, in no event shall a Historical Use include a proposed project involving large scale commercial or residential development for a use or uses listed on Exhibit D-1 or otherwise.
iv. “Long Term Lease” means any lease, license, occupancy, concession, or similar agreement with a term (including options to extend) in excess of twenty-five (25) years.
v. “Proposed Rezoning” means any proposed change in the zoning for the Property or any part thereof, to allow a use that is not a Historical Use of the Property and which such new use would not be allowed under the zoning for the Property as set forth in Calistoga Municipal Code Section 17.23.020 (A)(1), (2), (3) or (4) as of the Effective Date as stated in Exhibit D-2 to this Agreement. e. Right to Enforce. Buyer stipulates and agrees that Seller may enforce its Repurchase Option and ROFR through specific performance and/or other equitably relief, including through a mandatory or prohibitory injunction, and that the Property, and any part thereof, are of a special and unique character which gives it a peculiar value, and that Seller cannot be reasonably or adequately compensated in damages in an action at law in the event Buyer breaches its obligation to sell the Property, or any part thereof, to Seller pursuant to either Seller’s Repurchase Option or ROFR.
f. Buyer Compliance With Surplus Land Act. If Seller seeks to exercise its Repurchase Option and/or ROFR pursuant this Paragraph 14, Buyer shall take all actions necessary to designate the Option Property, or ROFR Property, as applicable, “exempt surplus property” under the SLA (as defined in Paragraph 9(e)) to be transferred back to Seller for its use as a local agency to the full extent that such is legally required to allow such conveyance or transfer to occur. This obligation includes but is not limited to scheduling all public meetings, making all necessary findings, and providing all necessary documentation to the HCD to lawfully transfer the Option Property and/or ROFR Property, as applicable, to Seller under the SLA.
g. Survival. This Paragraph 14 including Seller’s Repurchase Option and ROFR shall survive the Closing.

15. EMERGENCY USE EASEMENT. Buyer covenants and agrees that after Closing Seller shall have a perpetual right to use all or part of the Property for emergency response purposes at no cost to Seller upon the declaration of any federal, state or local disaster. At Closing, Buyer will grant Seller a perpetual right and easement for Seller and other governmental entities conducting the emergency response in partnership with the Seller to use along with their respective permittees all or part of the Property for emergency response purposes as specified above in the form of Exhibit D-3 to this Agreement (the “Emergency Use Easement”), which shall be recorded against the Property as specified in Paragraph 21(d). To the extent that any governmental entities and/or their respective permittees conducting the emergency response in partnership with the Seller pay any rent or other fees for use of the Property for emergency Item #8.1.

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purposes, all such rent and/or fees shall be paid to the Buyer, not the Seller. The Seller may not assign its rights under the Emergency Use Easement to any other party or entity. The provisions of this Paragraph 15 shall survive the Closing.

16. BUYER’S DELIVERY OF COPIES OF REPORTS AND INVESTIGATION/DUE

DILIGENCE AND ANALYSIS MATERIALS REGARDING THE PROPERTY AS A CONDITION TO RETURN OF DEPOSIT FUNDS. If the purchase of the Property is not consummated for any reason other than Seller’s default, then at Seller’s request, Buyer shall, within five (5) business days after written request from Seller, deliver to Seller, at no charge, copies of all surveys, engineering studies, analysis, soil reports, maps, master plans, feasibility studies and other similar items (“Reports”) prepared by or for Buyer that pertain to the Property.

Notwithstanding the above, Buyer shall not be obligated to provide to Seller any documents which are subject to any attorney-client privilege and/or which are proprietary in nature.

17. SELLER’S AND BUYER’S REPRESENTATIONS AND WARRANTIES; BUYER’S

PURCHASE OF PROPERTY IN AS-IS CONDITION WITHOUT RELIANCE ON ANY

REPRESENTATIONS OR WARRANTIES FROM SELLER OTHER THAN AS

EXPRESSLY STATED HEREIN, AND WITHOUT ANY RIGHT OF CONTRIBUTION OR INDEMNITY FROM SELLER EXCEPT AS EXPRESSLY STATED HEREIN. a. Buyer agrees and acknowledges that, subject to Seller’s representations and warranties as expressly set forth below in this Agreement, it is purchasing the Property and any and all improvements located on the Property at Close of Escrow in “as-is”, “where-is” condition with all faults. Except for the following personal property items or equipment belonging to the Napa County Fair Association, Mt. St. Helena Golf Club and Calistoga Garden Club (each of whom has a shed and items located therein), Calistoga School District (a score board), HMC Promotions (container, a ticket booth, traffic delineators, fence poles, and concession stand sign), all structures, improvements, furniture, fixtures, and equipment located on the Property, including all personal property and equipment located within the structures, will remain on the Property at Close of Escrow and be deemed part of the Property. Buyer acknowledges and agrees that the foregoing third-parties, and not other parties, may remove the foregoing personal property from the Property prior to Closing. At no material cost, prior to Closing, Seller will use commercially reasonable efforts to cause such third-parties to remove such items and equipment from the Property and will also provide each such third-parties a notice that if they do not remove their personal property before Closing that such property will be deemed abandoned pursuant to applicable law. After Closing, Buyer acknowledges and agrees that Seller will have no responsibility or liability to Buyer for any such personal property items and/or equipment owned by such third-parties whether or not left on or removed from the Property prior to Closing.
b. Buyer further agrees, acknowledges, and represents that in purchasing the Property, it is not relying at all on any representations or warranties by Seller relating in any manner to the Property, other than Seller’s representations and warranties expressly set forth in this Agreement. Seller is not and shall not be required to remove, pay for, contribute to the payment for, or to indemnify or hold Buyer or anyone else harmless against the costs of Item #8.1.

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any removal or cleanup of improvements, fixtures, personal property, Hazardous Materials (as defined below), or dangerous conditions located on or affecting the Property, or otherwise be responsible for the same in any manner. Buyer further acknowledges and agrees that Seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, including but not limited to, warranties with respect to the fitness of the Property for a particular purpose or the suitability of the Property for Buyer’s intended use thereof, other than Seller’s express representations and warranties set forth in this Agreement. c. Buyer acknowledges that by the end of the Due Diligence Period, Buyer must and will have either waived or caused to be conducted all inspections and investigations of the Property that Buyer believes are necessary to protect its own interests in, and its contemplated use of, the Property. The Parties acknowledge that, except as otherwise stated in this Agreement, no representations, inducements, promises, agreements, assurances, oral or written, concerning the Property, or any aspect of the occupational safety and health laws, Hazardous Materials laws, or any other act, ordinance, or law, have been made by either Party or any agent or representative thereof, or relied upon by either Party hereto. Any environmental reports, soils reports, surveys, and other similar documents which were prepared by third party consultants and provided to Buyer by Seller or Seller’s representatives, have been delivered as an accommodation to Buyer and without any representation or warranty as to the sufficiency, accuracy, completeness, and/or validity of said documents, all of which Buyer relies on at its own risk. As used herein, “Hazardous Materials” means any pollutants, contaminants, hazardous or toxic substances, materials, or wastes (including petroleum, petroleum by-products, radon, asbestos, and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCBcontaining equipment, radioactive elements, infectious agents, and urea formaldehyde), as such terms are used in any applicable environmental laws and/or regulations. d. Additionally, except as otherwise expressly provided for in this Agreement, Seller has not made, does not make and specifically negates and disclaims, any representations, warranties, promises, covenants, agreements, obligations, or guaranties of any kind or character whatsoever whether express or implied, oral or written, past present or future concerning or with respect to: (i) the value of the Property; (ii) the revenues to be derived from the Property; (iii) the manner, quality, state of repair, or lack of repair, of the Property; (iv) the nature quality or condition of the Property including without limitation, the water, soil and geology; (v) the compliance of or by the Property or its operation with any laws of any applicable governmental authority or body; (vi) the manner, condition, or quality of the construction or materials, if any, incorporated into the Property; (vii) compliance with any environmental protection, pollution or land use laws, including but not limited to, the Endangered Species Act, Title III of the Americans With Disabilities Act of 1990, and any other environmental laws or regulations, or other law governing access by disabled persons; (viii) the presence or absence of Hazardous Materials at, on, under, or adjacent to the Property; (ix) the conformity of the Property to past, current or future applicable zoning or building or code requirements; (x) the deficiency of any under shoring; (xi) the adequacy of any drainage; (xii) the fact that all Item #8.1.

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or a portion of the Property may be located on or near an earthquake fault line or located in an Alquist-Priolo special study zone; or (xiii) with respect to any other matter concerning the Property, discussed or disclosed in any Seller’s Documents, in any public records of any governmental agency or entity or utility company, or in any other documents available to Buyer.
e. Except for matters arising from Seller Parties’ (as defined below) intentional fraud or misrepresentation or any default by Seller under this Agreement, Buyer, for itself and its agents, affiliates, successors and assigns, hereby releases and forever discharges Seller and its directors, officers, principals, consultants, representatives, attorneys, agents and employees, successors and assigns (collectively with Seller, the “Seller Parties”), from and against any and all claims, actions, causes of action, demands, liabilities, damages, costs and expenses (including attorneys’ fees and costs), whether known or unknown at the time of this Agreement, which Buyer has or may have in the future, arising out of the physical, environmental, economic or legal condition of the Property. For the foregoing purposes, Buyer hereby specifically waives the provisions of Section 1542 of the California Civil Code (“Section 1542”) and any similar law of any other state, territory or jurisdiction. Section 1542 provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
BUYER’S
INITIALS: _________
Buyer hereby specifically acknowledges that Buyer has carefully reviewed this subparagraph and discussed its import with legal counsel and that the provisions of this subparagraph are a material part of this Agreement. The provisions of this Paragraph 17 shall survive Closing. For the avoidance of doubt, the releases provided in this Paragraph 17 do not apply to any breaches or defaults by Seller under this Agreement. f. Representations and Warranties.
i. By Seller. As a material inducement to Buyer, Seller represents and warrants to Buyer that, as of the Effective Date of this Agreement and as of the Expected Closing Date, with the same force and effect as if remade by Seller in a separate certificate at that time:

1. Seller is a duly organized and validly existing public entity in the State of California and has all requisite power and authority to conduct business in the state where the Property is located.

Item #8.1.

CNAP-55587\2877807.8 20

2. Seller has the legal power, right and authority to enter into this Agreement and the instruments referenced herein and to consummate the transaction contemplated hereby. The execution and delivery of this Agreement and the instruments referenced herein by Seller and the performance and observance of the terms, and the consummation of the transaction contemplated hereby have all been authorized by all necessary actions of Seller

3. This Agreement has been duly executed and delivered by Seller.

4. This Agreement and all documents required herein to be executed by Seller are and shall be valid, legally binding obligations in full force and enforceable against Seller in accordance with their terms.

5. To Seller’s actual knowledge without any duty of inquiry or investigation, there are no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings pending against Seller, which would materially adversely affect the ability of Seller to consummate the transactions contemplated by this Agreement.

6. To Seller’s actual knowledge without any duty of inquiry or investigation, there is no existing litigation regarding the Property, including, but not limited to, any pending proceedings in eminent domain which would affect the Property.

7. To Seller’s actual knowledge without any duty of investigation or inquiry, (a) there are no agreements affecting the right to possession of the Property except for the leases listed on Exhibit E (the “Existing Leases”) and (b) there are no maintenance, service or other agreements affecting or relating to the Property that will survive Closing. Seller shall provide Buyer with copies of each of the Existing Leases as part of Seller’s Documents.

8. Seller (A) is not listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of OFAC and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation or orders are collectively called, the “Orders”), and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”); (B) is not a Person (as defined in the Orders) who has been determined by competent authority to Item #8.1.

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be subject to the prohibitions contained in the Orders; or (C) is not owned or controlled by (including, without limitation, by virtue of such Person being a director or owning voting shares or interests), or acts for or on behalf of, any person on the Lists or any other Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders.

9. Seller has disclosed to Buyer that a certain claim has been made by David Abreu, individually, Abreu Vineyards, Inc. and David Abreu Vineyard Management, Inc. (individually and collectively “Abreu”), as set forth in the May 14, 2019 letter from Abreu’s attorney and addressed to the Napa County Fair Association, Inc., a copy of which is attached hereto as Exhibit H, regarding certain improvements located on the Property (the “Abreu Claim”). Specifically, Abreu alleges as part of the Abreu Claim that Abreu is the owner of certain improvements located on the portion of the Property improved with a racetrack (the “Racetrack”) and that he is entitled to remove the same from the Property (the “Disputed Items”).

Seller has received additional correspondence from Abreu after the May 14, 2019 letter concerning the Disputed Items. Seller has provided Buyer copies of all written communications regarding the Abreu Claim in Seller’s possession as of the Effective Date.
ii. By Buyer. As a material inducement to Seller, Buyer represents and warrants to Seller that, as of the Effective Date of this Agreement and as of the Expected Closing Date, with the same force and effect as if remade by Buyer in a separate certificate at that time:

1. Buyer is a duly formed and validly existing municipal corporation in the State of California, has all requisite power and authority to conduct business in the state where the Property is located.

2. Buyer has the legal power, right and authority to enter into this Agreement and the instruments referenced herein and to consummate the transaction contemplated hereby. The execution and delivery of this Agreement and the instruments referenced herein by Buyer and the performance and observance of the terms, and the consummation of the transaction contemplated hereby have all been authorized by all necessary actions of Buyer.

3. This Agreement has been duly executed and delivered by Buyer.

4. This Agreement and all documents required herein to be executed by Buyer are and shall be valid, legally binding obligations in full force and enforceable against Buyer in accordance with their terms.

Item #8.1.

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5. Buyer (A) is not listed on the Lists; (B) is not a Person (as defined in the Orders) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (C) is not owned or controlled by (including, without limitation, by virtue of such Person being a director or owning voting shares or interests), or acts for or on behalf of, any person on the Lists or any other Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders.

All of the representations, warranties and covenants of Seller and Buyer set forth in this Agreement shall survive the Closing and the recordation of the Grant Deed for a period of twelve (12) months after the Closing (the “Survival Period”). With respect to any claims and matters covered by the Survival Period, neither Party shall have a right to bring any action or proceeding against the other Party as a result of any untruth or inaccuracy of such representations and warranties, or any such breach, unless (a) the Party claiming the breach serves a written claim on the other Party within such Survival Period describing in reasonable detail the basis of the claim and (b) said Party thereafter commences and serves an action against the other Party within ninety (90) days after said Party gives such notice.

Notwithstanding anything to the contrary in this Agreement, (1) Seller shall have no liability, and Buyer shall make no claim against Seller, for (and Buyer shall be deemed to have waived any failure of a condition hereunder by reason of a failure of any condition or a breach of any representation or warranty) if the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to Buyer on or prior to the Closing and Buyer proceeds with the Closing and (2) Buyer shall have no liability, and Seller shall make no claim against Buyer, for (and Seller shall be deemed to have waived any failure of a condition hereunder by reason of a failure of any condition or a breach of any representation or warranty) if the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to Seller on or prior to Closing and Seller proceeds with the Closing.

18. Seller’s Environmental Disclosure. Seller makes the following disclosure in connection with the contemplated sale of the Property to Buyer. The Property has been owned by Seller since approximately 1939. Prior to that date, Seller is informed that the Property was used as a dairy farm. During Seller’s ownership, pesticides were used and stored on the Property. Additionally, at various times, diesel, gasoline (including gasoline containing lead), and liquid petroleum have been stored in the maintenance shop and yard, and/or in connection with the racetrack that was operated for decades on the Property. Antifreeze and potentially asbestos from brake pads were used or found on the Property, and automobile or vehicle maintenance and/or repair activities may have occurred on the Property. Waste oil, propane, diesel, and gasoline have been stored in tanks on the Property. Some of these tanks remain on the Property, although such tanks are not currently in service. In the 1950s, the fairgrounds portion of the Property was used by Civil Defense to store equipment and medical supplies that ultimately crystalized and became explosive. Seller’s sheriff’s department bomb unit, however, may have destroyed all such supplies. Other portions of the Property were previously used for an RV Park and golf course.

Because of the prior uses of the Property, it is potentially possible that petroleum, petroleum related compounds, pesticides, and other Hazardous Materials have been released on or under the Property. Such past uses of the Property may affect the Buyer or subsequent owner’s ability or rights to develop the Property. Among other things, oil-stained soil and/or pesticide residue are Item #8.1.

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sometimes found on properties that have been in such use; and Seller does not have the requisite information to determine the exact nature or environmental condition of the Property nor the exact effect, if any, that such past uses may have on the developability or other ability to use all or portions of the Property in the future. Seller makes no representations or warranties with respect to the present environmental condition of the Property, and/or the existence or lack of existence of Hazardous Materials located on or under the Property.

19. NO RECORDATION. Neither this Agreement nor any memorandum (excluding the Memorandum) thereof shall be recorded.

20. TERMINATION OF AGREEMENT AND CANCELLATION OF ESCROW DUE TO DESTRUCTION, DAMAGE OR LOSS OF THE PROPERTY.
a. If, prior to the Closing, Seller becomes aware that all or any material portion of the Property has been destroyed, lost, or substantially damaged, or has been condemned, subsequent to the Effective Date, Seller shall promptly give Buyer written notice of the event. If the destruction, loss or damage occurs due to any cause other than a cause attributable to the actions or omissions of Buyer or its agents, and would cost more than One Million Dollars ($1,000,000.00) to repair or cure or the condemnation affects a material portion of the Property as reasonably determined by Buyer, then Buyer may, within thirty (30) business days after becoming aware of such destruction, damage, loss or condemnation (but prior to the Expected Closing Date), withdraw from the purchase by giving written notice to the Escrow Holder and Seller of Buyer’s termination of this Agreement and cancellation of the escrow. If any such termination notice is timely provided, Buyer shall receive a return of the Deposit (exclusive the Independent Consideration). The existence of any Hazardous Materials on or under the Property that preexisted the Effective Date shall not be grounds for such termination of the Agreement and the cancellation of escrow, and subsequent return of the Deposit, pursuant to this Paragraph 20, but it may be grounds for termination of this Agreement pursuant to Paragraph 9.
b. If Buyer does not provide timely notice of its cancellation of escrow, then Buyer will be deemed to have elected to proceed with the purchase of the Property and with the Closing. In that case, notwithstanding any destruction, loss, damage, or condemnation affecting the Property, this Agreement shall remain in full force and effect and the purchase of the Property shall be consummated with no adjustment, reduction of the Purchase Price or other modification. In the event that Buyer proceeds with the Closing notwithstanding some occurrence of loss, damage, destruction or condemnation, Buyer shall be entitled to any insurance proceeds or condemnation award applicable to such loss, destruction, damage, or condemnation award (other than insurance payments or portion of any award paid to reimburse Seller for its costs or expenses incurred in addressing such loss, destruction, damage, or condemnation). At the Close of Escrow, Seller shall assign and transfer to Buyer the right to any such insurance proceeds or condemnation award.

21. DOCUMENTS REQUIRED AT OR BEFORE CLOSING; CLOSING CONDITIONS Item #8.1.

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AND CLOSING PROCEDURES.
a. Seller’s Deliveries. The following documents shall be submitted by Seller to Escrow Holder at or prior to the Expected Closing Date:
i. the Grant Deed duly acknowledged and executed by Seller; ii. an original of the Memorandum (as defined in Paragraph 14) duly acknowledged and executed by Seller;
iii. an original of the Emergency Use Easement (as defined in Paragraph 15) duly acknowledged and executed by Seller;
iv. an original of the Adjacent Storage Property and Access Road Easement (as defined in Paragraph 7) duly acknowledged and executed by Seller; v. an affidavit certifying that Seller is not a foreign entity under the Foreign Investment in Real Property Act as specified in Paragraph 7; vi. a California Form 593-C in the current form as established by the California Franchise Tax Board as specified in Paragraph 7;
vii. a commercially reasonable owner’s affidavit as may be requested by Title Company;
viii. an executed Closing statement reasonably acceptable to Seller; and ix. any other document or agreement required by this Agreement and/or such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
b. Buyer’s Deliveries. The following documents and sums shall be submitted by Buyer to Escrow Holder at or prior to the Expected Closing Date:
i. Sufficient immediately available wire transfer funds which, when added to the Deposit and accrued interest are sufficient to pay the (x) Purchase Price and (y) Buyer’s share of closing costs;
ii. an original of the Memorandum (as defined in Paragraph 14) duly acknowledged and executed by Seller;
iii. an original of the Emergency Use Easement duly acknowledged and executed by Buyer;
iv. an original of the Adjacent Storage Property and Access Road Easement, duly acknowledged and executed by Buyer;
Item #8.1.

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v. to the extent reasonably required by Escrow Holder, proof of Buyer’s authority and authorization to enter into this Agreement;
vi. an executed closing statement reasonably acceptable to Buyer; and vii. any other document or agreement required by this Agreement and/or such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.
c. Closing Conditions.
i. Conditions to Buyer’s Obligations: Buyer will have no obligation to purchase the Property and consummate the Closing unless each of the following conditions precedent has been satisfied or waived by Buyer as of the Expected Closing Date:

1. Title Company shall issue or be unconditionally and irrevocably committed to issue to Buyer the Title Policy (as defined below);

2. Seller shall cause all Monetary Liens (as defined below), if any so exist, be released, or otherwise removed from record title to the Property upon Closing. As used herein, “Monetary Liens” means any and all monetary liens or encumbrances recorded against the Property regardless of whether the same arise before or after the Due Diligence Period; provided, however, Monetary Liens shall not include (a) real estate taxes and assessments not yet due and payable, (b) monetary liens, encumbrances, or obligations imposed as a result of the acts of Buyer or any of Buyer’s agents, employees, contractors or subcontractors (or, with respect to Paragraph 14(a) [regarding the Repurchase Option and ROFR] only Seller or any of Seller’s agents, employees, contractors, or subcontractors), or (c) covenant or restriction on the use or change of the use of the Property resulting from (i) any contract with or monetary assistance provided by any governmental authority or entity, such, as by way of example only, any Williamson Act contract, or (ii) any other cause or circumstance.

3. Seller and Escrow Holder, respectively, shall have performed all of their covenants and obligations set forth in this Agreement;

4. Each of the representations and warranties of Seller in this Agreement will be materially true and correct as of the Effective Date and as of the Expected Closing Date with the same force and effect as if remade by Seller in a separate certificate at that time;

5. Buyer shall not have terminated this Agreement pursuant to the contingencies set forth in Paragraph 9; and
Item #8.1.

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6. Buyer shall have received from Seller an estoppel certificate (the “Tenant Estoppel Certificate”) from each tenant under each Existing Lease (excluding the lease with the Napa County Office of Education (the “NCOE Lease”)), if any, which in each case is substantially in the form of Exhibit G, or as otherwise required by any Existing Lease, and which does not disclose matters materially adverse to the Property or Buyer’s purchase thereof, that are not set forth in the applicable Existing Lease or disclosed in the Seller’s Documents or otherwise discovered by Buyer during the Due Diligence Period (“Material Adverse Information”). In the event an Existing Lease does not require the tenant thereunder to provide an estoppel certificate, Seller shall nonetheless use commercially reasonable efforts to obtain a Tenant Estoppel Certificate from such tenant as well as each other tenant under the Existing Leases. As long as Seller uses such commercially reasonable efforts to obtain such Tenant Estoppel Certificates, Seller shall not be deemed to be in breach of this Agreement because it does not obtain an Estoppel Certificate from any such tenant.

7. Notwithstanding the above, if Seller is unable to obtain Tenant Estoppel Certificates for each tenant under the Existing Leases (excluding the NCOE Lease), then Seller shall deliver a certificate to Buyer on or before the Expected Closing Date from Seller in the form attached hereto as Exhibit G-1 (a “Landlord Estoppel Certificate”) executed by Seller for any tenant for which no Tenant Estoppel Certificate has been previously delivered to Buyer, and in such event Seller shall be deemed to have delivered an Tenant Estoppel Certificate with respect to such tenant for purposes of satisfying the condition under this subparagraph 7 subject to Buyer’s approval rights as set forth below. The Landlord Estoppel Certificate shall be subject to the damage limitations set forth in Paragraph 26c and Survival Period set forth in Paragraph 17, but otherwise Buyer shall be entitled to rely on the same. Buyer shall have at least two (2) business days to review and approve any Landlord Estoppel Certificate (which approval shall be given unless the Landlord Estoppel Certificate contains any Material Adverse Information) and, if necessary for such to occur, the Expected Closing Date shall be extended notwithstanding anything to the contrary in this Agreement. Any Buyer disapproval of a Landlord Estoppel Certificate shall constitute Buyer’s decision to terminate this Agreement due to a failure of the subject Estoppel Certificate condition unless Buyer otherwise elects to close under this Agreement. Notwithstanding the above, if Seller delivers a Landlord Estoppel Certificate to Buyer, and a Tenant Estoppel Certificate is subsequently received from the applicable tenant, then the Tenant Estoppel Certificate in question shall replace the Landlord Estoppel Certificate, and Seller shall not have any obligations or liabilities under said Landlord Estoppel Certificate, except and to the extent that the Tenant Estoppel Certificate is received after Closing and contains Material Adverse Information not set forth in the Landlord Estoppel Certificate.

Item #8.1.

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If any of the conditions precedent in favor of Buyer set forth in Paragraph 21.c.i are neither satisfied nor waived by Buyer by the Expected Closing Date, then, Buyer (at its option) may terminate this Agreement by giving a written notice of termination to Seller as and to the extent provided in Paragraph 11. In the case of any such termination, (i) the escrow shall terminate, (ii) Buyer will have no further obligation to purchase the Property from Seller, (iii) Seller will have no further obligation to sell the Property to Buyer, and (iv) the Parties will have no further obligation to one another, except as otherwise expressly provided herein. In the event of such a termination, the Deposit (exclusive of the Independent Consideration) shall be returned to Buyer. Notwithstanding anything to the contrary contained herein, in the event of a failure of any condition precedent specified in this Paragraph 21.c.i. that is caused by a default hereunder on the part of Seller, then in lieu of terminating this Agreement and escrow pursuant to this Paragraph

21.c.i., then Buyer shall be entitled to exercise its rights pursuant to the provisions of Paragraph 26.c.
ii. Conditions to Seller’s Obligations: Seller will have no obligation to sell the Property and consummate the Closing unless each of the following conditions precedent has been satisfied or waived by Seller as of the Expected Closing Date:

1. Buyer and Escrow Holder, respectively, shall have performed all of its covenants and obligations set forth in this Agreement;

2. Each of the representations and warranties of Buyer in this Agreement will be materially true and correct as of Effective Date and as of the Expected Closing Date with the same force and effect as if remade by Buyer in a separate certificate at that time; and

3. Buyer shall not have terminated this Agreement pursuant to the contingencies set forth in Paragraph 9.

If any of the conditions precedent in favor of Seller set forth in this Paragraph 21.c.ii are neither satisfied nor waived by Seller by the Expected Closing Date, then Seller (at its option) may terminate this Agreement by giving a written notice of termination to Buyer as and to the extent provided in Paragraph 11. In the case of any such termination, (i) the escrow for this Agreement shall terminate, (ii) Seller will have no further obligation to sell the Property to Buyer, (iii) Buyer will have no further obligation to purchase the Property from Seller, and (iv) the Parties will have no further obligation to one another, except as otherwise expressly provided herein. In the event of such a termination, the Deposit shall be returned to Buyer. Notwithstanding anything to the contrary contained herein, in the event of a failure of any condition precedent specified in this Paragraph

21.c.ii. that is caused by a default hereunder on the part of Buyer, then in lieu of terminating this Agreement and escrow pursuant to this Paragraph 21.c.ii., Seller shall be entitled to exercise its rights pursuant to the provisions of Paragraph 26.b. d. Closing Procedures. On the Expected Closing Date, Escrow Holder will close escrow as Item #8.1.

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follows:
i. record the Grant Deed (marked for return to Buyer) with the County Recorder of Napa County, which will be deemed delivery to Buyer (and Escrow Holder shall also provide a copy of the Grant Deed to Buyer with the recording information provided thereon);
ii. record the Emergency Use Easement, the Adjacent Storage Property and Access Road Easement and the Memorandum with the County Recorder of Napa County and provide copies thereof with the recordation contained thereon to Buyer and Seller;
iii. issue the Title Policy, and cause it to be delivered to Buyer; iv. charge Buyer for those costs and expenses to be paid by Buyer pursuant to this Agreement and disburse any net funds remaining after the preceding disbursements to Buyer;
v. disburse to Seller the Purchase Price remaining after payment of the commission and any prorated amounts and charges to be paid by or on behalf of Seller, and disburse to Buyer the balance of any remaining funds in escrow; vi. prepare and deliver to both Buyer and Seller one signed copy of Escrow Holder’s closing statement showing all receipts and disbursements of the funds in escrow; vii. deliver to Buyer the FIRPTA Affidavit and the California Form 593-C (or any successor thereto);
viii. deliver any other documents and complete such other acts as required of Escrow Holder hereunder; and
ix. close escrow within the meaning of Section 6045 of the Internal Revenue Code of 1986, as amended (the “Code”), and promptly file all necessary information reports and returns regarding this transaction as required by the Code, including, without limitation, the returns required pursuant to Section 6045 of the Code.

22. TITLE INSURANCE. At Closing, Escrow Holder shall cause to be issued to Buyer a standard coverage owner’s form policy of title insurance effective as of the Closing, issued by Placer Title Company or any national title insurance company, such as Stewart Title, which underwrites policies for escrows handled by Escrow Holder, (“Title Company”) in the full amount of the Purchase Price, insuring title to the Property vested in Buyer, subject only to the Permitted Exceptions (the “Title Policy”). At its own cost, to the extent available, Buyer may elect to obtain an ALTA extended coverage owner’s title policy and/or any endorsements Buyer deems appropriate, but such extended coverage shall not be a condition of Closing.

23. INSURANCE. Any insurance which Seller may have maintained for the Property or any Item #8.1.

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insurance thereon will terminate on the Closing. It is Buyer’s sole responsibility to obtain appropriate insurance to cover the Property after Closing.

24. ASSIGNMENT OF LEASE. During the Due Diligence Period, Buyer shall review all Existing Leases. Prior to the Effective Date, Seller has provided Buyer with the Existing Leases identified in Exhibit E. After the Effective Date, Seller will not enter into any new leases or other occupancy agreements for any portion of the Property (each a “New Lease”) without Buyer’s written consent, which consent may be withheld or granted in Buyer’s sole and absolute discretion, except as follows: Nothing set forth above shall preclude or prevent Seller from allowing the Property to be used for staging areas for emergency personnel during wildfires or similar disasters; a community resource center during public safety power shutoffs; and/or entering into any short-term leases, licenses, or renewals of Existing Leases; provided, however, each such use, lease, license or renewal shall have a term ending before the Expected Closing Date or permit Seller to terminate the same before the Expected Closing Date, which termination Seller shall cause to occur before the Expected Closing Date unless Buyer elects otherwise in its sole and absolute discretion. Buyer may request of Seller that it terminate any Existing Lease or New Lease prior to Closing that has not yet terminated, or will not otherwise terminate pursuant to its terms prior to Closing, if the terms of such Existing Lease or New Lease (if any) expressly permit Seller to so terminate it (or the tenant is on a month-to-month basis), and the Existing Lease or New Lease does not require the payment of any sum, cost or expense to so terminate it, and Seller shall terminate any such Existing Lease or New Lease once all other Closing contingencies have been waived or satisfied. At Closing, Seller shall assign, and Buyer shall assume any other Existing Leases or New Leases that are not so terminated, pursuant to commercially reasonable assignment and assumption agreements.

25. INTEGRITY OF PROPERTY. Except as otherwise provided herein or by express written permission granted by Buyer, Seller shall not, after the Effective Date until the Close of Escrow, alienate, lien, encumber or transfer the Property or any interest therein or allow the same to occur, intentionally cause or allow any physical changes on the Property, or enter into an lease or contract with respect to the Property or any portion thereof, which would survive the Close of Escrow or otherwise materially impair Buyer’s use of the Property.

26. DEFAULT.
a. Notice of Default; Cure Period. With respect to a default or breach by either Party hereunder, neither Party will be in default under this Agreement unless and until the other Party gives the defaulting Party written notice specifying the default or defaults and such default or defaults have not been cured within two (2) business days from the defaulting Party’s receipt of such notice.
b. Liquidated Damages. IF BUYER FAILS TO COMPLETE THE PURCHASE

PROVIDED FOR IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER SHALL BE RELEASED FROM SELLER’S OBLIGATION TO SELL THE PROPERTY TO BUYER. FURTHER, BY INITIALING THIS PARAGRAPH 26b BUYER AND SELLER AGREE AND UNDERSTAND THAT

IN EVENT OF DEFAULT BY BUYER, (A) IT WOULD BE IMPRACTICAL OR Item #8.1.