Concord City Council
April 26, 2022

1 COUNCILMEMBERS
Dominic D. Aliano, Mayor
Laura M. Hoffmeister, Vice Mayor
Edi E. Birsan
Timothy A. McGallian
Carlyn S. Obringer
Civic Center
1950 Parkside Drive
Concord, CA 94519
www.cityofconcord.org
Regular Meeting of the
Concord City Council/City
Council Sitting as the
Local Reuse Authority
Tuesday,
April 26, 2022
6:30 p.m. - Open Session Council Chamber
1950 Parkside Drive
and various
telephonic/electronic
locations
NOTICE: Members of the City Council, City staff/consultants, and the public will be able to participate either in-person or remotely via Zoom.

Pursuant to AB 361, the City is authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public. Tonight’s meeting will be conducted both in-person and remotely via Zoom.

How to Watch the Meeting:
Watch on TV on Comcast Channel 28, Astound Channel 29, and U-verse Channel 99 Watch the TV broadcast through the City’s website by following THIS LINK Watching Live Streaming of the meeting by following THIS LINK Join the Zoom webinar by following THIS LINK.
For meeting interpretation from English to Spanish during the meeting, please join the meeting Zoom webinar by following THIS LINK.
Para traducción de Ingles a Espanol durante esta junta, por favor entre a la junta de Zoom usando ESTE ENLACE
2 How to Submit Public Comments:

Please note that emailed comments will not be read aloud by staff.

Written: All comments received before 3:00 pm the day of the meeting will be posted on the City’s website as “Correspondence” under the relevant agenda item and provided to the City Councilmembers prior to the meeting.
Email comments to [email protected].
If you are commenting on a particular item on the agenda, please identify the agenda item number and letter.
If you are commenting on an item not listed on the agenda, please identify your comment as a General Public Comment.

To Participate in Public Comment During the Meeting:

Please note that emailed comments will no longer be read aloud by staff.

In-Person Comments: Blue Speaker Identification Cards are located near the Council Chamber entrance. Please complete a Speaker Card and give it to the City Clerk prior to the agenda item you wish to speak on and preferably prior to the Council meeting. When the Mayor opens a public comment period, the City Clerk will call speakers to provide comment in the order the Speaker Cards are received. Should you have any questions after consulting the Speaker Identification Card, please contact the City Clerk prior to the start of the Council meeting.

Live Remote Public Comments: Members of the public may submit a live remote public comment via Zoom video conferencing. Download the Zoom mobile app from the Apple Appstore or Google Play. If you are using a desktop computer, you can test your connection to Zoom by clicking here. Zoom also allows you to join the meeting by phone.
Join the meeting at any point, but be sure you are in the meeting prior to the City Council consideration of the item on which you would like to provide comments. From a PC, Mac, iPad, iPhone or Android:
https://cityofconcord.zoom.us/j/86786611802?pwd=RGh4ZDNsVnFEY1RkZjNZdVp1RWtVQT09 oWebinar ID: 867 8661 1802
oPasscode: 525054
oBy phone: US: +1 669 900 6833 or +1 346 348 7799 or 1 253 215 8782 Speakers will be asked to provide their name and city of residence, although providing this is not required for participation.
Each speaker will be afforded up to 3 minutes to speak. Speakers will be muted until their opportunity to provide public comment. When called upon to speak, speakers will be promoted to panelists so they have the ability to turn on their cameras so they are visible to the Council and public.

When the Mayor opens a public comment period on the item on which you would like to comment, please use the “raise hand” feature (or press *9 if connecting via telephone) which will alert staff that you have a comment to provide.
3 OPEN SESSION

1. OPENING
Roll Call
Pledge of Allegiance - Councilmember McGallian

2. PUBLIC COMMENT PERIOD
This is a 15-minute Public Comment Period for items within the City Council’s subject matter jurisdiction that are not on this agenda. Each speaker will be limited to approximately three minutes.

State law prohibits the City Council from acting at this meeting on any matter raised during the Public Comment Period. Please see “How to Submit Public Comments” above. a. Written Public Comment

3. PRESENTATION
a. Presentation – by Aaron Hawkins, Concord Pavilion General Manager, providing an update on the Concord Pavilion. Introduction by Mayor Aliano.

4. CITY COUNCIL/LOCAL REUSE AUTHORITY (LRA) CONSENT CALENDAR The public is entitled to address the City Council/LRA on items appearing on the Consent Calendar before or during the City Council’s/LRA’s consideration of the Consent Calendar. Adoption of the Consent Calendar may be made by one motion of the City Council/LRA, provided that any Councilmember, individual or organization may request removal of an item from the Consent Calendar for separate consideration. If a request for removal of an item from the Consent Calendar has been received, the Mayor may defer action on the particular item and place the same on the regular agenda for consideration in any order s/he deems appropriate. Please see “How to Submit Public Comments” above.

City Council Consent Calendar
a. Considering – approval of the minutes from the March 22 and April 2, 2022, meetings. Recommended by the City Clerk.
b. Considering – adoption of Ordinance No. 22-4 entitled, "An Uncodified Ordinance of the City Council of the City of Concord Requiring Electronic Filing of Campaign Finance Disclosure Statements." Ordinance No. 22-4 was introduced on April 5, 2022, by reading of the title only and waiving further reading. Recommended by the City Clerk.
c. Considering – adoption of Ordinance No. 22-5 entitled, "An Ordinance Approving and Adopting a Development Agreement by and Between the City of Concord and Kolaboration Concord, LLC, Regarding the Development of a 4 Cannabis Microbusiness with a Storefront Retail Component Located at 2366 Stanwell Circle, Assessor's Parcels Numbers: 112-252-021, -022, and -006 (PL21109 - DA, UP, VA, DR)." Ordinance No. 22-5 was introduced on April 12, 2022, by reading of the title only and waiving further reading.

Recommended by the City Clerk.

CEQA: Categorically exempt pursuant to the following CEQA Guidelines Sections 15301, 15302, 15303, 15304; and/or Section 15305. d. Considering – adoption of a Resolution Amending Policy and Procedure No. 31 – Budget Appropriation Transfer Controls Recommended by the Director of Finance.

CEQA: Not a project/exempt per Public Resources Code Section 21065, 14 Cal Code Regs. Sections 15060(c)(2), 15060(c)(3), 15378, 15061(b)(2), 15061(b)(3) and/or 15378(b)(4).
e. Considering – introduction of an Ordinance amending Concord Municipal Code, Title 12 (Streets & Sidewalks), Chapter 12.15, Street Encroachments, to add a moratorium on and require enhanced restoration for certain street cuts within a five year period in order to formally define a moratoria of trenching on streets that have received maintenance or rehabilitation within a period of five (5) years, and either prohibit encroachments or, by exception granted by the City Engineer, to require enhanced restoration during the moratorium period; by reading of title only and waiving further reading.

Recommended by the Director of Community Development.

CEQA: Not a project/exempt under CEQA Guidelines Sections 15060(c)(2), 15061(b)(3), 15378, 15301, 15302, 15303, and/or 15304.
f. Considering – approval of funding agreement with CCTA as part of the Cooperative Agreement No. 08C.05 with County Connection, Contra Costa Transportation Authority and City of Walnut Creek for the IDEA Grant – TSP System approved by Council on October 12, 2021; and authorizing the City Manager to execute these agreements in a form acceptable to the City Attorney. Recommended by the Director of Community Development.

CEQA: Not a project/exempt per CEQA Guidelines Sections 15060(c), 15061(b)(3), 15273, 15378, 15262, and or Public Resources Code Section 21065.
g. Considering – approval of letter of support for SJR 15 – Port Chicago (Glazer) to Senator Bob Archuleta, Chairman of the Committee on Military and Veterans Affairs, to provide full exoneration of the 50 African American Sailors of the United States Navy who were tried and convicted of mutiny in connection with their service at the Port Chicago Naval Magazine in Concord, 5 California, during World War II. Recommended by the Assistant City Manager.

Local Reuse Authority Consent Calendar
h. Considering – an amendment to the Professional Services Agreement (PSA) with Burke, Williams & Sorenson, LLP in the amount of $40,000 for work drafting the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not-to- exceed amount of $100,000; and authorizing the Executive Director of the Local Reuse Authority to execute the amendment in a form acceptable to the City Attorney. (From ENA Deposit to the LRA by Concord First Partners, LLC) Recommended by the Director of Economic Development and Base Reuse. i. Considering – an amendment to the Professional Services Agreement (PSA) with Jarvis, Fay & Gibson, LLP in the amount of $30,000 for work land use advice on the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not-to- exceed amount of $90,000; and authorizing the Executive Director of the Local Reuse Authority to execute the amendment in a form acceptable to the City Attorney. (From ENA Deposit to the LRA by Concord First Partners, LLC) Recommended by the Director of Economic Development and Base Reuse.

5. CITY COUNCIL CONSIDERATION ITEM
The public is entitled to address the City Council on items appearing on the agenda before or during the City Council’s consideration of that item. Each speaker will be limited to approximately three minutes. Please see “How to Submit Public Comments” above. a. Considering – the following:

1. Receiving a presentation on community feedback for American Rescue Plan Act (ARPA) Investments;

2. Approving the ARPA spending categories;

3. Approving the dollar amounts allocated to each spending category from the $19.0 million of one-time ARPA funds and $1.0 million on annual, recurring Measure V funds; and

4. Providing direction to staff on next steps for developing a funding allocation process for each spending category. Report by Karan Reid, Director of Finance.

CEQA: Not a project/exempt per Public Resources Code Section 21065, 14 Cal Code Regs. Sections 15060(c)(2), 15060(c)(3), 15378, 15061(b)(2), 15061(b)(3), and/or 15378(b)(4).

6. CORRESPONDENCE
Correspondence received at the City Council meeting will be listed here on the Annotated Agenda. 6 7

7. REPORTS AND ANNOUNCEMENTS
a. Closed Session Announcements
b. City Manager or Staff Reports
c. Council Reports

8. ADJOURNMENT
Next Meeting: Regular Meeting
Date: 5/3/2022 6:30 PM

NOTICE TO THE PUBLIC
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders which require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you challenge an action taken by the City Council in court, you may be limited by California law to raising only those issues you or someone else raised in the hearing or in a written correspondence delivered to the City Council prior to or at the hearing.

In accordance with the Americans with Disabilities Act and California Law, it is the policy of the City of Concord to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including those with disabilities. If you are disabled and require a copy of a public hearing notice, or an agenda and/or agenda packet in an appropriate alternative format; or if you require other accommodation, please contact the ADA Coordinator Tianjun Cao at (925) 671-3243 or [email protected], at least 24 hours in advance of the meeting. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility.

2.a

1 REGULAR MEETING OF THE

CONCORD CITY COUNCIL/CITY COUNCIL

SITTING AS THE LOCAL REUSE

AUTHORITY/CITY COUNCIL SITTING AS THE

CONCORD-PLEASANT HILL HEALTH CARE

DISTRICT

VARIOUS ELECTRONIC LOCATIONS
TUESDAY, MARCH 22, 2022
The Concord City Council met in a regular meeting via various electronic locations at 6:30 p.m. on Tuesday, March 22, 2022, with Mayor Aliano presiding. Minutes follow in abbreviated form per Resolution 3361 and Council Minutes of September 26, 1966.

ROLL CALL

COUNCILMEMBERS PRESENT VIA
VARIOUS ELECTRONIC LOCATIONS: Edi Birsan, Laura Hoffmeister, Tim McGallian, Carlyn Obringer, Dominic Aliano

STAFF PRESENT VIA VARIOUS
ELECTRONIC LOCATIONS: Valerie Barone, City Manager; Susanne Brown, City Attorney; Justin Ezell, Assistant City Manager; Joelle Fockler, City Clerk; Greg Taylor, Director of Information Technology; Kevin Marstall, Director of Community Development; Karan Reid, Director of Finance; Mark Bustillos, Chief of Police; William Tarbox, Director of Public Works; Mindy Gentry, Planning Manager; Brenda Kain, Housing Manager; Sophia Huckabay, Housing Program Analyst

MEMBERS OF THE PUBLIC
WHO ADDRESSED THE COUNCIL: Yvanna; Natalie; Charlotte Ling; Ady; Annie Wright; Lisa Fulton; Laura Nakamura

PUBLIC COMMENT PERIOD
The following people spoke in opposition to the City’s agreement with Contra Costa County Animal Services:

Yvanna
Charlotte Ling
Annie Wright
Lisa Fulton
Natalie stated that donating to World Central Kitchen, wck.org, is an easy way to show support for Ukraine refugees and was concerned about anti-transgender messages being sent and anti-transgender laws being passed throughout the nation.

Ady spoke of an unhoused Concord resident and stated that Concord needs a hotel for unhoused residents.

Laura Nakamura stated that there are not enough services for all of the needs.

4.a4.a

City Council Minutes March 22, 2022

PRESENTATION

CYBERSECURITY
Mayor Aliano introduced Director of Information Technology Greg Taylor, who gave a presentation on cybersecurity.

Following questions from the City Council, Mayor Aliano opened a public comment period.

Natalie spoke of USB Flash Drives being unsafe.

Mayor Aliano closed the public comment period.

ANNOUNCEMENT
City Clerk Joelle Fockler announced a recruitment to fill an unscheduled vacancy for a design professional on the Design Review Board for a term ending February 28, 2025; and setting a deadline of Friday, April 22, 2022, at 5 p.m. as the deadline for receipt of applications by the City Clerk.

Mayor Aliano opened a public comment period, and upon receiving no public comment, closed the public comment period.

CONSENT CALENDAR
Mayor Aliano opened a public comment period, and upon receiving no public comment, closed the public comment period.

ADOPTION OF ORDINANCE NO. 22-2 – Councilmember Compensation This item was pulled from consideration on the Consent Calendar by Councilmember Obringer who stated she would be voting no on the Ordinance.

Mayor Aliano opened a public comment period.

Natalie spoke of a needs test to assess the need of individual Councilmember’s to receive a salary.

Mayor Aliano closed the public comment period.

A motion was made by McGallian and seconded by Birsan to adopt Ordinance No. 22-2 entitled, “An Ordinance Amending Concord Municipal Code Chapter 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers) Increasing Councilmember Compensation by 3 percent and 3 percent, not Compounded, to $1,433.12 per Month, to be Effective after the November 2022 City Council Election." Ordinance No. 22-2 was introduced on February 22, 2022, by reading of the title only and waiving further reading. The motion passed by the following vote of the Council:

AYES: Birsan, Hoffmeister, McGallian, Aliano NOES: Obringer ABSENT: None REAPPOINTMENT TO MEASURE V COMMITTEE – Beckon and Leidgen A motion was made by Obringer and seconded by Birsan to reappoint incumbents Brian Beckon (resident position) and Brandy Leidgen (business community position) to the Measure V Oversight Committee for terms ending December 31, 2025. The motion passed by unanimous vote of the Council.

City Council Minutes March 22, 2022
APPROVAL OF THIRD AMENDMENT TO LEASE AGREEMENT – Monument Impact A motion was made by Obringer and seconded by Birsan to approve the third amendment to the August 1, 2009, lease agreement between the City of Concord and Monument Impact, extending the lease by up to five years, for the use of the Keller House located at 1760 Clayton Road, and authorize the City Manager to execute the amendment in a form acceptable to the City Attorney. The motion passed by unanimous vote of the Council.

ADOPTION OF RESOLUTION NO. 22-16 – Opposing the Taxpayer Protection and Government Accountability Act Initiative 21-0042A1
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-16 entitled, “A Resolution Opposing the Taxpayer Protection and Government Accountability Act Initiative 21- 0042A1.” The motion passed by unanimous vote of the Council.

ACCEPTANCE OF 2021 GENERAL PLAN ANNUAL PROGRESS REPORT
A motion was made by Obringer and seconded by Birsan to accept the 2021 General Plan Annual Progress Report for submission to the Governor’s Office of Planning and Research and the State Department of Housing and Community Development. The motion passed by unanimous vote of the Council.

ADOPTION OF CITY COUNCIL RESOLUTION NO. 22-17, LOCAL REUSE AUTHORITY RESOLUTION NO. 22-35, CONCORD-PLEASANT HILL HEALTH CARE DISTRICT RESOLUTION NO. 22-027 – Continue Meetings Remotely, AB 361
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-17, Local Reuse Authority Resolution No. 22-35, and Concord/Pleasant Hill Health Care District Resolution No. 22- 027 entitled, “A Resolution Declaring the ability of the City Council, Local Reuse Authority, Concord/Pleasant Hill Health Care District, Standing City Council Subcommittees, and all City Boards, Commissions, and Committees to Continue to Meet Remotely Pursuant to AB 361.” The motion passed by unanimous vote of the Council.

ADOPTION OF CONCORD/PLEASANT HILL HEALTH CARE DISTRICT RESOLUTION NO. 22-028 – 2022-23 Concord/Pleasant Hill Health Care District Funds A motion was made by Obringer and seconded by Birsan to adopt Concord/Pleasant Hill Health Care District Resolution No. 22-028, entitled, “A Resolution Authorizing the Executive Director to Disburse Funds and Execute all Attendant Documents and Agreements for Fiscal Year 2022/23 Funding on behalf of the Concord/Pleasant Hill Health Care District (Subject to District Attorney Approval), Appropriate $65,000 from Concord/Pleasant Hill Health Care District Fund 530 Grant Funds, and Accept and Appropriate $25,000 from John Muir Health for Administration of the Program.” The motion passed by unanimous vote of the Council.

CORRESPONDENCE
a. PowerPoint Presentation, Agenda Item No. 3.a – Cybersecurity b. Benched Correspondence, Agenda Item No. 5.a – City Council Compensation

COUNCIL REPORTS
Councilmembers shared information on events and activities in which they had participated since the last meeting and commented on items of interest.

Councilmembers McGallian and Obringer and Mayor Aliano reported out from their recent attendance to the National League of Cities Conference.

City Council Minutes March 22, 2022

ADJOURNMENT
By order of the Mayor, the meeting was adjourned on March 22, 2022, at 7:49 p.m.

DOMINIC ALIANO
MAYOR

JOELLE FOCKLER, MMC

CITY CLERK

1 SPECIAL MEETING OF THE

CONCORD CITY COUNCIL

CONCORD SENIOR CENTER
2727 PARKSIDE CIRCLE

CONCORD, CALIFORNIA
SATURDAY, APRIL 2, 2022
The Concord City Council met in a special meeting at the Concord Senior Center located at 2727 Parkside Circle, at 9:30 a.m. on Saturday, April 2, 2022, with Mayor Aliano presiding.

Minutes follow in abbreviated form per Resolution 3361 and Council Minutes of September 26, 1966.

ROLL CALL
COUNCILMEMBERS PRESENT: Edi Birsan; Laura Hoffmeister; Tim McGallian; Carlyn Obringer; Dominic Aliano
STAFF PRESENT: Valerie Barone, City Manager; Susanne Brown, City Attorney; Justin Ezell, Assistant City Manager; Joelle
Fockler, City Clerk; Karan Reid, Director of Finance; Will Tarbox, Director of Public Works; Kevin Marstall,
Director of Community Development; Guy Bjerke,
Director of Community Reuse Planning; Steve Voorhies,
Director of Parks and Recreation; Greg Taylor, Director of Information Technology; Mark Bustillos, Chief of
Police; Jasmin Loi, Director of Human Resources;
Jennifer Ortega, Community Relations Manager; Marie
Suvansin, Economic Development Manager; James
Nakayama, Police Captain; Craig Blythe Administrative
Services Manager; Wendy McAuley, Executive Assistant
WHO ADDRESSED THE COUNCIL: Joe Higby, Concord Police Officers Association; Laura Nakamura, Concord; Mariah Lauritzen, Concord

ANNUAL WORKSHOP ON CITY COUNCIL PRIORITIES
City Manager Valerie Barone and Mayor Aliano provided introductions and introduced workshop facilitator Patrick Ibarra, Mejorando Group. Mr. Ibarra reviewed the workshop agenda and meeting outline.

Director of Human Resources Jasmin Loi, Chief of Police Mark Bustillos, and Director of Public Works William Tarbox reported on staffing challenges.

Following questions from the City Council, Mayor Aliano opened a public comment period on the presentation on staffing challenges.

Joe Higby, Concord Police Officers Association, stated that there was a crisis in police staffing and agreed with opening negotiations for the benefit of hiring.

Laura Nakamura, Concord, spoke of using red light runner technology saving manpower and in support of opening negotiations for the benefit of hiring.

Mayor Aliano closed the public comment period.

Mayor Aliano recessed the meeting at 11:03 a.m. The meeting resumed at 11:13 a.m.

Economic Development Manager Marie Suvansin presented an Economic Development Update.

City Council Minutes April 2, 2022
2 Following questions from the City Council, Mayor Aliano opened a public comment period, and upon receiving no public comment, closed the public comment period.

Mayor Aliano recessed the meeting at 12:10 p.m. The meeting resumed at 12:30 p.m.

Assistant City Manager Ezell reviewed past year’s achievements, then City Manager Barone presented the existing work program using flip charts and Mr. Ibarra facilitated conversation on existing goals and possible Tier 1 priorities.

Mayor Aliano opened a public comment period.

Mariah Lauritzen, Concord, proposed that Concord become a 15-Minute City. A 15- Minute City is a residential urban concept in which most daily necessities can be accomplished by either walking or cycling from residents’ homes.

Laura Nakamura, Concord, spoke of the need to ask equity questions and requested that a Racial Equity Committee be formed.

City Manager Barone informed Council and the public as to the reasons why GARE assessments were not and will not be conducted by staff.

Mayor Aliano closed the public comment period.

The City Council participated in a dot voting exercise to determine the Tier 1 priorities.

Following discussion, the Council defined the following Tier 1 and Tier 2 priorities for the organization:

Tier 1 Priorities
Staffing: Filling the many open positions across all departments so that we can continue to provide essential services that the community expects and deserves. The Council expressed a grave concern with the vacancies, current and expected, within the police department and the public works department – two critical departments in supporting quality of life within our community.

Homelessness: Creating, adopting and beginning to implement a strategic plan to address our homelessness crisis. A work program for this effort will be proposed to Council in the fall of this year. The work will be funded, in part, by the $2.4 million of one-time funds that Council set aside to support homelessness response.

Development of the former Concord Naval Weapons Station: Taking the next steps on this multi-decade project includes working with the Concord First Partners team on the next set of approvals. The first step of which is agreement and approval of a term sheet; followed by development of a specific plan, a disposition and development agreement, and an Environmental Impact Report.

Objective Design Standards: In response to recent State legislation intended to stimulate housing production, the City cannot apply subjective design standards when considering multi-family housing development projects. To retain local control over the design of such projects, Council prioritized the creation of objective design standards. The goal is to continue Concord’s tradition of high-quality design.

Council also identified a “Tier 2” priority, which is something that is identified as important to Council but not at the same level of importance as the Tier 1 priorities.

City Council Minutes April 2, 2022
3 Tier 2 Priority
LPR Camera Deployment: Purchase and deployment of License Plate Recognition (LPR) cameras throughout the city to assist in identifying vehicles of interest in support of solving crimes more efficiently. It is a “service multiplier” that will enable the use of technology to assist our police department with public safety.

ADJOURNMENT
By order of the Mayor, the meeting was adjourned at 2:15 p.m.

DOMINIC A. ALIANO
MAYOR

JOELLE FOCKLER, MMC

CITY CLERK

Ord. No. 22-4 1
ORDINANCE NO. 22-4

AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF CONCORD REQUIRING ELECTRONIC FILING OF

CAMPAIGN FINANCE DISCLOSURE STATEMENTS
WHEREAS, Government Code Section 84615 currently provides that a local agency may adopt an ordinance to require an elected officer, candidate, committee, or other person required to file campaign disclosure statements, required by Chapter 4 of the Political Reform Act (commencing with Section 84100 of the Government Code); and WHEREAS, the City has entered into an agreement with Granicus, a vendor approved by the Secretary of state to provide an online electronic filing system (“System”) for campaign disclosure statements; and
WHEREAS, the System will operate securely and effectively and will not unduly burden filers. Specifically: 1) the System will ensure the integrity of the data and includes safeguards against efforts to temper with, manipulate, alter, or subvert data; 2) the System will only accept a filing the standardized record format developed by the Secretary of State and compatible with the Secretary of State’s system for receiving an online or electronic filing; and 3) the System will be available free of charge to filers and to the public for viewing filings.

WHEREAS, the City Council, after giving all public notices required by state law and the Concord Municipal Code, held a duly noticed public hearing on April 5, 2022, on this proposed ordinance (“Ordinance”), and declared their intent to approve and adopt the Ordinance as an uncodified ordinance requiring electronic filing of campaign statements.

WHEREAS, at such public hearing, the City Council considered all oral and written information, testimony, and comments received during the public review process, including oral and written staff reports, materials, documents, exhibits, testimony, and community presentations received at the April 5, 2022 City Council public hearing, that constitutes the record of proceedings upon which the City Council has based its action (collectively, “Ordinance Information”).

4.b

Ord. No. 22-4 2

THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS
FOLLOWS:

Section 1. Recitals. The City Council finds that the above recitals (which are hereby incorporated by reference) are accurate and constitute findings in this matter and, together with the Ordinance Information, serve as an adequate and appropriate evidentiary basis for the findings and actions set forth in this Ordinance and further makes the following findings.

Section 2. Ordinance Information. The City Council has reviewed, considered, and evaluated all of the Ordinance Information prior to acting upon Ordinance. The Ordinance Information is located in and may be obtained from the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord, CA 94519.

Section 3. CEQA. Adoption of this Ordinance is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, because the adoption of the Ordinance does not constitute a “project” and is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment pursuant to CEQA Guidelines Section 15378(b)(5), and will not result in a direct or reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guidelines Sections 15060(c), 15378 and Public Resources Code Section 21065. In addition, the proposed Ordinance is categorically exempt pursuant to Section 15061(b)(3), the common sense exception of the CEQA Guidelines because it can be seen with certainty that there is no possibility that the ordinance may have a significant effect on the environment. No unusual circumstances are present. This determination reflects the City’s independent judgment and analysis.

Section 4. Electronic Filing of Campaign Statements.
(a) Whenever any elected officer, candidate, or committee is required to file a campaign statement under the Political Reform Act or the Regulations with the City Clerk, the

Ord. No. 22-4 3
elected officer, candidate, or committee shall file the statement in an electronic format prescribed by the City Clerk.
(b) Any statement, report, or other document filed electronically or online pursuant to this section will be accepted as an original statement and need not be filed in paper format. (c) The date of filing for a statement, report, or other document that is filed online or electronically shall be the day that it is received by the local filing officer, and the electronic system will confirm with a timestamp ensuring that the statement, report, or other document was received.
(d) If access to online filings has not been prescribed in a timely manner, the elected city officer, candidate, or committee may file an original statement by paper, at the discretion of the Filing Officer (City Clerk).
(e) The provisions of this subsection shall apply only to persons or combinations of persons who qualify as a committee under Section 82013 of the Political Reform Act. //
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Ord. No. 22-4 4
Section 5. This Ordinance No. 22-4 shall become effective thirty (30) days following its passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to its adoption and within fifteen (15) days after its adoption, including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorney’s Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the East Bay Times, a newspaper of general circulation in the City of Concord.

Dominic Aliano
Mayor
ATTEST:

Joelle Fockler, MMC
City Clerk
(Seal)
Ordinance No. 22-4 was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on April 5, 2022, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council of the City of Concord on April 26, 2022, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -

Ord. No. 22-4 5
I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California.

Joelle Fockler, MMC
City Clerk

ORDINANCE NO. 22-5

AN ORDINANCE APPROVING AND ADOPTING A DEVELOPMENT

AGREEMENT BY AND BETWEEN THE CITY OF CONCORD AND

KOLABORATION CONCORD, LLC, REGARDING THE DEVELOPMENT

OF A CANNABIS MICROBUSINESS WITH A STOREFRONT RETAIL
COMPONENT LOCATED AT 2366 STANWELL CIRCLE, ASSESSOR’S
PARCELS NUMBERS: 112-252-021, -022, AND -006 (PL21109 – DA, UP, VA, DR)
WHEREAS, on June 12, 2018, the City Council adopted Ordinance No. 18-3, which amended the Municipal Code and Development Code to establish a Commercial Cannabis Overlay District, associated development standards, and a licensing framework for medicinal-only cannabis manufacturing and distribution, and adult-use and medicinal testing laboratories; and WHEREAS, on April 2, 2019, the City Council and Planning Commission conducted a Joint Study Session and directed staff to pursue revisions to the existing cannabis regulations to potentially allow additional commercial cannabis uses including adult-use and medicinal non-storefront retail; and consideration of allowing adult-use and medicinal storefront retail and microbusinesses; and WHEREAS, on November 5, 2019, the City Council considered introduction of an Ordinance amending Concord Municipal Code Chapter 5.80 (Cannabis) to add adult-use City Cannabis Licenses for manufacturing and distribution; to increase the maximum number of City Cannabis Licenses for manufacturing, distribution, and testing laboratories; to allow City Cannabis Licenses for medicinal and adult-use retail (storefront and non-storefront); and allow City Cannabis Licenses for microbusinesses. At the meeting, the City Council provided direction to staff regarding the allowable number of each cannabis license type, and directed staff to bring the Development Code amendments required for implementing corresponding changes to the Concord Development Code to the Planning Commission for consideration and recommendation to the City Council; and WHEREAS, on May 26, 2020, the City Council Adopted Ordinance No. 20-4, Amending Concord Municipal Code Chapter 5.80 (Cannabis) and Development Code (Title 18) to Allow Adult- Use City Cannabis Licenses for Manufacturers and Type 13 Distributors; Increase the Maximum Number of City Cannabis Licenses for Manufacturers, Type 13 Distributors, and Testing

4.c4.c

Ord. No. 22-5 2
Laboratories, and Allow City Cannabis Licenses for Retail (Storefront and Non-Storefront), Microbusinesses, and Type 11 Distributors; and
WHEREAS, on July 28, 2020, the City Council approved the procedure, criteria, and scoring for a merit-based competitive process to review and select eligible applicants to apply for available City Cannabis Licenses for cannabis storefront retailers, non-storefront retailers, and microbusinesses with a storefront retail component; and
WHEREAS, on October 5, 2020 the City of Concord issued a Request for Proposals for storefront retailers, non-storefront retailers, and microbusinesses with a storefront retail component; and
WHEREAS, on May 26, 2021, following interviews, public comment, and City Council deliberation, Kolaboration Concord LLC (dba “CoCo Farms” and herein referred to as “Applicant”) was invited to apply for one of two available cannabis microbusiness licenses; and WHEREAS, Kolaboration Concord, LLC (herein referred to as “Applicant”) was invited to apply for one of two available licenses for a microbusinesses with a storefront retail component; and WHEREAS, California Government Code section 65864 et seq. authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long-term development agreement establishing certain development rights in the property; and WHEREAS, Municipal Code Chapter 18.460 Development Agreements authorizes the execution of development agreements and sets forth the required contents and form of those agreements; and
WHEREAS, on June 11, 2021, Applicant submitted an Administrative Permit, Design and Site Review, and Development Agreement applications to establish a cannabis microbusiness with storefront retail use at 2366 Stanwell Circle, APN 112-252-021, -022, and -006 (“Property”), (herein collectively referred to as “Project”); and
WHEREAS, on June 22, 2021, the Project was revised to include a Use Permit to allow on- site parking in excess of the maximum parking allowed; and WHEREAS, on February 11, 2022, the Project was further revised to include a Variance for fence height and deemed complete by staff; and

Ord. No. 22-5 3
WHEREAS, the City and Applicant have reached mutual agreement on the terms of the Development Agreement to facilitate development of the Project subject to the conditions and requirements set forth therein, in the form attached hereto as Exhibit A (the “Development Agreement”); and
WHEREAS, the Planning Commission, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing March 16, 2022, on the proposed Development Agreement; and
WHEREAS, at such public hearing, the Planning Commission considered all oral and written information, testimony, and comments received during the public review process, including information received at the public hearing, the oral report from City staff, the written report from City staff dated March 16, 2022, materials, exhibits presented, and all other information that constitutes the record of proceedings on which the Planning Commission has based its decision that are maintained at the offices of the City of Concord Planning Division (collectively, “Planning Commission Information”); and
WHEREAS, on March 16, 2022, the Planning Commission, after consideration of all pertinent plans, documents, and testimony, adopted Resolution No. 22-01 PC and did recommend City Council approval of the Development Agreement by a 5-0 vote (AYES: Mizutani, Laub, Barbour, Mercurio, Weinmann); and
WHEREAS, the City Council, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing on April 12, 2022 on the Development Agreement; and
WHEREAS, at such public hearing, the City Council also considered and adopted a Resolution 22-29 Approving a Use Permit, Variance, Administrative Permit, and Design and Site Review for a Cannabis Microbusiness with a Storefront Retail component at 2366 Stanwell Circle, APNS: 112-252-021, -022, and -006 (PL21109 – UP, AP, VA, DR, DA) (“Resolution 22-29”); and WHEREAS, at such public hearing, the City Council considered all oral and written information, testimony, and comments received during the public review process, including information received at the public hearing, the oral report from City staff, the application materials,

Ord. No. 22-5 4
the written report from City staff dated April 12, 2022, and other exhibits presented, Resolution 22-29, and the Planning Commission Information, which are maintained at the offices of the City of Concord City Clerk (collectively, “City Council Information”), and declared their intent to approve and adopt the Ordinance.

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

Section 1. All of the facts set forth in the Recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

Section 2. The City Council has reviewed, considered, and evaluated the City Council Information, all other pertinent plans, documents, and testimony prior to acting upon Ordinance.

Section 3. The documents and other materials that constitute the record of proceedings upon which the City Council has based its recommendation are located in and may be obtained from the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord 94519.

Section 4. Pursuant to the California Environmental Quality Act (CEQA) of 1970, Public Resources Code Section 21000, et. seq., as amended and implementing State CEQA Guidelines, Title 14, Chapter 3 of the California Code of Regulations (collectively “CEQA”), the proposed project is categorically exempt pursuant to following CEQA Guidelines: a) Section 15301 (“Existing Facilities”); b) Section 15302 (“Replacement or Reconstruction”); c) 15303 (“New Construction or Conversion of Small Structures”); d) Section 15304 (“Minor Alterations to Land”); and/or e) Section 15305 (“Minor Alterations in Land Use Limitations”). These categorical exemptions apply because the project consists of tenant improvements to an existing building, with de minimis façade and landscaping improvements.

Furthermore, pursuant to Section 15300.2(c), there are no exceptions to the categorical exemptions, because the project: 1) is not located in a sensitive environment; 2) will not cause a cumulative impact due to successive projects of the same type in the same area; 3) will not have a significant effect on the environment due to a cumulative impact of other projects or unusual circumstances; 4) will not result in damage to scenic resources; 5) is not located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code; and, 6) will not

Ord. No. 22-5 5
cause a substantial adverse change in the significance of a historical resource. Therefore, the proposed project does not warrant further environmental review.

Section 5. Development Agreement.
a. The Development Agreement is consistent with the general plan and any applicable specific plan. No specific plan applies to the Project. The proposed cannabis microbusiness and storefront retail includes manufacturing and distribution that are consistent with the uses envisioned by the Business Park designation. Additionally the project will be consistent with the following General Plan policies.
 Establish land use priorities that foster entrepreneurship, growth, and innovative business development (Policy E-2.1.1). If approved by the City Council, the proposed microbusiness would be the first of its kind in the City of Concord and the second storefront retail. Having an innovative and desirable use coupled with limited availability of these uses in the surrounding area could help attract other new innovative businesses to the City of Concord’s business park areas.  Support the creation of job and contracting opportunities for Concord residents and businesses through the establishment of local hire preference, apprenticeships, internships, and other programs which support local hiring, training, and skill enhancement. (Policy E-2.1.7). The applicant has committed to hiring a large proportion of its employees from within Concord. The business plans to hire approximately 100 full-time employees primarily from the Concord community.  Provide sites for employment-generating businesses, technology-based businesses, and light industrial uses wishing to locate in Concord (Policy LU-6.1.2). The project includes manufacturing at a scale consistent with light industrial uses. As explained above, the project would generate approximately 100 full-time jobs primarily hired from the Concord community
 Require new commercial development to provide comprehensive landscaping, including hardscape and parking lot areas as well as pervious areas (Policy LU-

9.1.3). The applicant will be making minor but noticeable improvements to the

Ord. No. 22-5 6
building and site, including repainting the building and installing new landscaping, lighting, and trash enclosure. These improvements will enhance the look of the site and contribute to the overall attractiveness of the area.  Require trees and other landscaping within parking lots (Policy LU-10.1.5). The project will upgrade the existing parking lot with new landscaping including shade trees.
 Evaluate the effects of new development on law enforcement service and take public safety issues into account when reviewing land use proposals (Policy S-

7.1.1). The potential effects of the proposed cannabis microbusiness with storefront retail have been evaluated to ensure appropriate measures will be in place to enhance public safety. The measures include: 1) a security plan reviewed and approved by the Chief of Police that requires, among other things, a commercial burglar alarm monitoring system and video surveillance system, procedures for verifying identification of customers entering and leaving the retail establishment, and on-site security guards; 2) a Neighborhood Compatibility Plan and the designation of a Community Relations Officer to respond to any complaints from the public, customers, and businesses with respect to the cannabis operations or property; and 3) an Annual Review Report with the City that includes documentation on how complaints from the community were addressed. b. The Development Agreement is in conformity with public convenience, general welfare, and good land use practices. The cannabis microbusiness with a storefront retail component will be in conformity with public convenience, general welfare, and good land use practices. Municipal Code regulations pertaining to cannabis businesses have been incorporated into the Conditions of Approval that will require the business to implement a security plan approved by the Chief of Police and to contain odors within the building, among other things. Additionally, approval of the Development Agreement will include requirements for community benefits, including financial contributions to the City to further community programs, and a Neighborhood Compatibility Plan to respond to

Ord. No. 22-5 7
complaints from the public, customers, and businesses with respect to the cannabis operations or property. The cannabis microbusiness with storefront retail component use is permitted in the OBP (Office Business Park) zoning district subject to an Administrative Permit and competitive selection process. The proposed use will be occupying an existing building, which is in conformance with the regulations and standards for the zoning district. No known sensitive uses as defined in CMC Chapter 5.80 are located within 250 feet of the subject property.
c. The Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the city as a whole. Approval of the Development Agreement will not be detrimental to the health, safety, and general welfare of residents of the City. The Development Agreement, Conditional City Cannabis License, Use Permit, Variance, and Administrative Permit contain conditions of approval, including a safety and security plan that will ensure the use will not impact surrounding businesses and properties. The Development Agreement contains commitments from CoCo Farms, codified through adoption of the Agreement by the City Council to provide community benefits with the purpose of youth drug use prevention and education efforts, drug treatment and mental health programs, including programs providing supervised diversion from the criminal justice system to avoid recidivism, workforce development, small business assistance, providing amenities for public use and enjoyment, including streetscape and sidewalk improvements and public art installations, event programming and other activation of public space, and improving quality of life and providing economic opportunities.
d. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values. The proposed business will be occupying an existing building. The Applicant will be making minor changes to the exterior of the building, including new paint, awnings, and signage, but no changes that would adversely affect the orderly development of property. The Applicant will also be making exterior

Ord. No. 22-5 8
improvements to the site, including new landscaping, fencing, and trash enclosure. These improvements will help preserve property values for the area. e. The Development Agreement is consistent with California Government Code sections 65864 through 65869.5. Approval of the Development Agreement between the City and Kolaboration Concord, LLC is in conformance with the provisions and intent of Government Code Sections 65864 through 65869.5 for the following reasons:
i. Assurances have been provided to the Developer due to vesting certain regulations. ii. The Developer has a legal or equitable interest in real property and the City will recover from the direct costs associated with the consideration of the Development Agreement.
iii. The Development Agreement contains a provision requiring an annual review for compliance with the terms of the Agreement, including provisions allowing for the modification or termination of the Agreement if it is found the Developer has not complied in good faith with the terms and conditions of the Agreement. iv. The Development Agreement specifies the duration, the permitted uses of the property, and the required land use approvals.
v. The Agreement is enforceable by any party thereto.

Section 6. The City Council does hereby pass and adopt this Ordinance No. 22-5 and approves and authorizes the City Manager to execute the Development Agreement in form attached hereto as Exhibit A, and (as more specifically set forth in the Development Agreement) further authorizes the City Manager or designee the authority to determine, review, and approve any “Minor Amendment” as set forth in the Development Agreement and subject to approval of the City Attorney.

Upon execution of the Development Agreement by all parties, the City Clerk is hereby directed to record the Development Agreement with the Contra Costa County Recorder’s Office.

Section 7. This Ordinance No. 22-5 shall become effective thirty (30) days following its passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to its adoption and within fifteen (15) days after its adoption,

Ord. No. 22-5 9
including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorney’s Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the East Bay Times, a newspaper of general circulation in the City of Concord.

Dominic Aliano
Mayor
ATTEST:

Joelle Fockler, MMC
City Clerk
(Seal)
Ordinance No. 22-05 was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on April 12, 2022, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council of the City of Concord on April 26, 2022, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California.

Ord. No. 22-5 10
Joelle Fockler, MMC
City Clerk
Attachment: Exhibit A – Development Agreement

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Concord
1950 Parkside Drive, MS/03
Concord, CA 94519
Attention: City Clerk
Record Without Fee
Pursuant to Government Code
Section 27383
APN 112-252-021
APN 112-252-022
APN 112-252-006
Space Above Reserved for Recorder’s Use Only

DEVELOPMENT AGREEMENT

BY AND BETWEEN

CITY OF CONCORD
AND

KOLABORATION CONCORD, LLC,
D.B.A. COCO FARMS
[PL21109]
Exhibit A

TABLE OF CONTENTS
Page
-i-
SECTION 1 DEFINITIONS...........................................................................................................3 SECTION 2 EFFECTIVE DATE AND TERM.............................................................................6 SECTION 3 DEVELOPMENT OF THE PROPERTY..................................................................9 SECTION 4 FEES, EXACTIONS, REIMBURSEMENTS.........................................................12 SECTION 5 DEVELOPER COMPLIANCE WITH LAW..........................................................13 SECTION 6 COMMUNITY BENEFITS.....................................................................................14 SECTION 7 AMENDMENT OF AGREEMENT AND PROJECT APPROVALS....................18 SECTION 8 INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT OF LEGAL CHALLENGE ...........................................................................................19 SECTION 9 RESTRICTIONS ON TRANSFER, ASSIGNMENT .............................................21 SECTION 10 MORTGAGEE PROTECTION ............................................................................22 SECTION 11 DEFAULT; REMEDIES; TERMINATION .........................................................24 SECTION 12 GENERAL PROVISIONS ....................................................................................26

________________
Development Agreement

DEVELOPMENT AGREEMENT
This Development Agreement is entered into by and between the City of Concord (“City”) and Kolaboration Concord, LLC, a California limited liability corporation, d.b.a. CoCo Farms (“Developer”). Capitalized terms used herein are as defined in Section 1, below.

RECITALS
This Agreement is entered into on the basis of the following facts, understandings and intentions of the Parties. The following recitals are a substantive part of this Agreement:

A. In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs and risks of development, the Legislature of the State of California enacted section 65864 et seq. of the Government Code (“Development Agreement Statute”), which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long-term development agreement establishing certain development rights in the property.

B. In accordance with the Government Code Section 65864 et seq., the City Council of the City of Concord enacted Municipal Code Chapter 18.460 Development Agreements (“Development Agreement Ordinance”) which authorizes the execution of development agreements in the City, and sets forth the required contents and form of those agreements.

C. The State of California enacted a series of laws commonly referred to as the “Medical Cannabis Regulation and Safety Act,” which created a state licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution and sale of medical cannabis. The voters of the State of California subsequently approved Proposition 64, known as the “Control, Regulate and Tax Adult Use of Marijuana Act,” referred to as the “Adult Use of Marijuana Act,” which legalized, subject to certain restrictions, specified nonmedical or adult cannabis uses for purposes of state law.

D. In addition, the state legislature passed the “Medicinal and Adult-Use Cannabis Regulation and Safety Act,” which reconciled the differences between the prior laws referenced above, and created a comprehensive state licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, delivery and sale of both adult and medicinal use of cannabis.

E. In 2020, the City adopted Municipal Code Chapter 5.80 Cannabis (“Cannabis Ordinance”), establishing the City’s system for regulating cannabis businesses, consistent with state law, to protect the health, safety, and welfare of the residents of Concord, and requiring that licensed cannabis businesses comply with the Municipal Code, state law, and all other applicable local codes and regulations, including all applicable land use and zoning regulations. A cannabis license issued by City pursuant to the Cannabis Ordinance is referred to generically herein as a “City Cannabis License.”

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Development Agreement

F. The Cannabis Ordinance and Municipal Code Section 18.460.010 authorize the City and Developer to enter into a development agreement relating to licensed cannabis business operations and related development activities.

G. On October 5, 2020, the City issued a request for proposals from applicants for several types of City retail cannabis licenses, Request for Proposals #2436 for Commercial Cannabis Businesses: Storefront, Retail, Non-Storefront Retail, & Microbusiness with Storefront Retail (“RFP”). Developer’s response to the RFP led to Developer’s selection by City Council as an applicant permitted to apply for a Developer Cannabis License in the microbusiness with storefront retail category located at 2366 Stanwell Circle, Concord, California (“Cannabis Business”) pursuant to the Cannabis Ordinance. The term “Developer Cannabis License” as used herein means a City Cannabis License applicable to the Cannabis Business as contemplated under the Cannabis Ordinance.

H. If issued a City Cannabis License and granted all additional required licenses and permits, Developer shall operate the Cannabis Business in accordance therewith and in compliance with Applicable City Law (as that term is defined in Section 3.C).

I. During the Term, Developer shall maintain a legal or equitable interest (as contemplated in the Development Agreement Statute) in that certain real property located at 2366 Stanwell Circle, with the following Assessor’s Parcel Numbers: 112-252-021, 112-252- 022, and 112-252-006, as more particularly described and depicted in Exhibit A attached hereto and incorporated herein (“Property”). Developer’s current legal or equitable interest in the Property consists of a leasehold interest.

J. It is the intent of City and Developer herein to establish certain conditions and requirements related to review and development of the Project, which are or will be the subject of subsequent development applications and land use entitlements. Developer is applying to the City for approvals to develop and Property in accordance with existing land use, zoning, and other regulations (“Project”), and to operate the Cannabis Business in accordance with Applicable City Law, and has applied for a Development Agreement to vest the Applicable City Laws for the Project.

K. In addition, Developer and City wish to establish mutual commitments regarding the Project, operation of the Cannabis Business, related Community Benefits to be provided by Developer, and certain City commitments. The Community Benefits regarding the operation of its Cannabis Business are provided voluntarily pursuant to this Agreement, as consideration for the vesting of regulations and other City commitments as set forth herein.

L. City finds that the Agreement is consistent with the City’s General Plan and any applicable specific plan; is in conformity with public convenience, general welfare, and good land use practices; will not be detrimental to the health, safety, and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole; will not adversely affect the orderly development of property or the preservation of property values; and is consistent with California Government Code Sections 65864 through 65869.5.

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Development Agreement

M. City has given the required notice of its intention to adopt this Agreement and has conducted public hearings thereon pursuant to Government Code Section 65867 and the Development Agreement Ordinance. The City has reviewed and evaluated this Agreement in accordance with the Development Agreement Laws and found that the provisions of this Agreement and its purposes are consistent with the Development Agreement Laws and the goals, policies, standards and land use designations specified in the General Plan.

N. On ______________ the City Council introduced Ordinance No. _________ approving this Agreement and authorizing its execution, and adopted that Ordinance on ____________. That Ordinance became effective on _______________ (“Enacting Ordinance”).

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other valuable consideration, the Parties hereby agree as follows:

SECTION 1

DEFINITIONS
“Agreement” means this Development Agreement between City and Developer, including all recitals and Exhibits hereto.
“Applicable City Law” is defined in Section 3.C.
“Cannabis Business” is defined in Recital G.
“Cannabis Business Owner” is defined in Cannabis Ordinance Section 5.80.020. “Cannabis Ordinance” is defined in Recital E.
“CEQA” means the California Environmental Quality Act of 1970, California Public Resources Code Section 21000, et seq. together with and implementing State CEQA Guidelines, Title 14, Chapter 3 of the California Code of Regulations, all as amended from time to time. “City” is defined in the preamble.
“City Cannabis License” is defined in Recital E.
“City Clerk” means the City Clerk of the City of Concord “City Council” means the City Council of the City of Concord. “City Manager” means the City Manager of the City of Concord or designee.

________________
Development Agreement

“City Parties” means and includes City and its elected and appointed officials, officers, employees, agents, volunteers, attorneys, contractors and representatives. “Claims” means any and all liabilities, obligations, judgments, orders, claims, damages, fines, penalties and expenses, actions, causes of action, claims, cross-claims, disputes, demands, losses, taxes, costs, loss of service, expenses, liabilities, debts whatsoever, in law or in equity, whether known or unknown, of any kind or character, including attorneys’ fees and costs. “Community Benefits” means those benefits, commitments, and monetary contributions identified in Agreement Section 6 Community Benefits, as more fully described in Exhibit B. “Concord Resident” means an individual domiciled within the City of Concord. For purposes of this definition, “domiciled” has the meaning set forth in section 349(b) of the California Election Code.
“Connection Fee(s)” means any fees charged by City on a citywide basis or by a utility provider to utility users as a cost for connecting water, sanitary sewer, and other applicable utilities, except for any such fee or portion thereof that constitutes an Impact Fee, as defined below.
“DCC” is defined in Section 5.C.
“Default” is defined in
Section 11.A.
“Developer” is defined in the preamble.
“Developer Cannabis License” is defined in Recital G.
“Developer Contributions” is defined in Section 6.B.
“Development Agreement Laws” means the Development Agreement Ordinance and the Development Agreement Statute.
“Development Agreement Ordinance” is defined in Recital B. “Development Agreement Statute” is defined in Recital A. “Director of Finance” means the City’s Director of Finance or designee. “Effective Date” means the date that this Agreement becomes effective as determined under Section 2.A.
“Enacting Ordinance” refers to the Ordinance identified in Recital N. “Exactions” means exactions that may be imposed by the City as a condition of developing the Project, including requirements for acquisition, dedication or reservation of land; and obligations to construct On-Site or off-site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project, whether such

________________
Development Agreement

exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or impositions made under Applicable City Law. For purposes of this Agreement, Exactions do not include Impact Fees. “First Extension Term” is term of years described in Section 2.B.2. “Generally Applicable Laws” is defined in Section 5.F.
“Gross Receipts/Gross Revenues” is defined in Section 6.B.3. “Impact Fee(s)” means any monetary amount charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of mitigating the impacts of the development project or development of the public facilities related to the development project, including, any “fee” as that term is defined by Government Code Section 66000(b). For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee and an Exaction shall be considered to be an Impact Fee. “Initial Term” is the term of years described in Section 2.B.1. “Litigation Challenge” is defined in Section 8.C.
“Major Amendment” is defined in Section 7.B.
“Minor Amendment” is defined in Section 7.C.
“Mortgage” means any mortgage, deed of trust, security agreement, and other like security instrument encumbering all or any portion of the Property or any of the Developer’s rights under this Agreement.
“Mortgagee” means the holder of any Mortgage, and any successor, assignee or transferee of any such Mortgage holder.
“Municipal Code” means and refers to the City of Concord’s Municipal Code, as amended from time to time.
“New City Laws” means any ordinances, resolutions, orders, rules, official policies, standards, specifications, requirements of licenses or permits, guidelines or other regulations, which are promulgated or adopted by the City (including any City agency, body, department, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date.
“Notice of Default” is defined in Section 11.A.
“On-Site” means located at the Property; with regard to employment, “On-Site” describes employees that regularly perform at least ten hours of work per week at the Property. “Permitted Delay” is defined in Section 12.F.

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Development Agreement

“Parties” means the City and the Developer.
“Party” means either the City or the Developer.
“Planning Division” means the Planning Division of the City’s Community and Economic Development Department.
“Processing Fees” is defined in Section 4.B.
“Project Approval(s)” is defined in Section 3.A.
“Project” is defined in Recital J.
“Property” is defined in Recital I.
“RFP” is defined in Recital G.
“Second Extension Term” is term of years described in Section 2.B.3. “State License” is defined in Cannabis Ordinance Section 5.80.020. “Suitable Financial Qualifications and Experience” means that the proposed assignee or transferee has a financial net worth, according to a current financial statement prepared by a certified public accountant, which is reasonably acceptable to City, the proposed assignee or transferee has a reputation for and experience and qualifications in operating and maintaining comparable first class Cannabis Business, and upon the proposed assignee or transferee having a first-class business reputation. In evaluating the acceptability of the net worth of a proposed assignee or transferee, City may require that the proposed assignee’s or transferee’s net worth be sufficient to carry out the performance of Developer’s obligations under this Agreement. “Term” is term of years described in Section 2.C.

SECTION 2

EFFECTIVE DATE AND TERM
A. Effective Date. The Effective Date of this Agreement is the later of (a) the date that is 30 days after the date that the Enacting Ordinance is adopted, and (b) the date this Agreement is fully executed by the Parties.

B. Term of Agreement

1. Initial Term. The Initial Term shall commence on the Effective Date and shall expire on the fifth anniversary of the Effective Date, unless earlier terminated.

2. First Extension Term (Automatic). The Initial Term shall automatically be extended until the date that is two years from the date of expiration of the Initial Term (“First

________________
Development Agreement

Extension Term”), provided that at the end of the Initial Term: (a) this Agreement has not expired or otherwise been terminated; (b) Developer is not, at the time, in Default of any of its obligations hereunder following notice and expiration of applicable cure periods; (c) applicable Developer warranties and representations in Section 2.F below continue to be true and correct; (d) no event has occurred that with the passage of time or giving of notice or both would constitute a Default by Developer hereunder; and (e) Developer is operating the Cannabis Business on the Property in compliance with the Project Approvals, Applicable City Law, Generally Applicable Laws, and this Agreement. Prior to invoking failure to satisfy the conditions of (a)-(e) above as a basis to decline to extend the Initial Term, the City shall provide written notice to Developer and a reasonable opportunity to satisfy such conditions.

3. Second Extension Term (Discretionary). “Second Extension Term” means a term of five years commencing upon expiration of the First Extension Term. Developer may request that the City approve a Second Extension Term by submitting such request in writing to City as provided in Section 12.E (General Provisions, Notice) no more than more than 180 days and no fewer than 90 days prior to the expiration of the First Extension Term. The City Council shall consider Developer’s request for a Second Extension, provided that at the end of the First Extension Term: (a) this Agreement has not expired or otherwise been terminated; (b) Developer is not in Default of any of its obligations hereunder following notice and expiration of applicable cure periods; (c) applicable Developer warranties and representations in Section 2.F below continue to be true and correct; (d) no event has occurred which with the passage of time or giving of notice or both would constitute a Default by Developer hereunder; and (e) Developer is operating the Cannabis Business on the Property, in compliance with the Project Approvals, Applicable City Law, and Generally Applicable Laws, and this Agreement. Upon City Council’s approval of Developer’s request, the Initial Term, as extended by the First Extension Term, shall be extended an additional five years for the Second Extension Term.

C. Term. The Initial Term, together with the First Extension Term (if any) and the Second Extension Term (if any) constitutes the “Term” of this Agreement. In no event shall there be a First Extension Term if this Agreement has expired or been terminated on or before the fifth anniversary of the Effective Date. In no event shall there be a Second Extension Term if this Agreement has expired or been terminated on or before the date of expiration of the First Extension Term. Following the expiration or other termination of the Term or the earlier completion of development of the Project and satisfaction of all of Developer’s obligations in connection therewith, this Agreement shall be deemed terminated and of no further force and effect, except for the provisions of this Agreement that survive expiration or other termination of this Agreement.

D. Memorandum of Extension. If the First Extension Term or the Second Extension Term is granted, City and Developer agree to execute, acknowledge and record in the Official Records of Contra Costa County a memorandum evidencing approval of such extension.

E. City Representations and Warranties. City represents and warrants to Developer that, as of the Effective Date:

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1. City is a municipal corporation, and has all necessary powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.

2. The execution and delivery of this Agreement and the performance of the obligations of the City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.

3. This Agreement is a valid obligation of City and is enforceable in accordance with its terms.

4. During the Term, City shall, upon learning of any fact or condition which would cause of any of the warranties and representations in this Section 2.E not to be true, promptly give written notice of such fact or condition to Developer.

F. Developer Representations and Warranties. Developer represents and warrants to City that, as of the Effective Date:

1. Developer is duly organized and validly existing under the laws of the State of California, and is in good standing and has all necessary powers under the laws of the State of California to own property interests and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.

2. The execution and delivery of this Agreement and the necessary performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate action and all necessary approvals have been obtained.

3. This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.

4. Developer has not (a) made a general assignment for the benefit of creditors; (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors; (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer’s assets; (d) suffered the attachment or other judicial seizure of all, or substantially all, of Developer’s assets; or (e) admitted in writing its inability to pay its debts as they come due.

5. During the Term, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.F not to be true, promptly give written notice of such fact or condition to City.

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SECTION 3

DEVELOPMENT OF THE PROPERTY
A. Project Approvals. Certain land use approvals, entitlements, and permits will be necessary for development and implementation of the Project and operation of the Cannabis Business (each a “Project Approval” and collectively the “Project Approvals”). The Project Approvals shall include a Developer Cannabis License; a City business license; and land use permits and entitlements, such as an administrative permit, design and site review, and tree removal permits, any amendments to, or repealing of, any of the foregoing [PL21109]. Except as otherwise expressly provided herein, the City shall not impose requirements or conditions upon the development and construction of the Project, or operation of the Cannabis Business, that are inconsistent with the terms and conditions of this Agreement.

B. Vested Rights. The Property, the Cannabis Business, and Developer Cannabis License are hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property and operate the Cannabis Business in accordance with and subject to Applicable City Law, the Project Approvals, and this Agreement. The term of the Developer Cannabis License shall be concurrent with the Term as set forth in Section 2, above, so long as Developer is in compliance with this Agreement, Applicable City Law, and Generally Applicable Laws, and so long the Developer Cannabis License does not expire pursuant to Cannabis Ordinance Section 5.80.060(d), License Expiration.

C. Applicable City Law. Laws, regulations, and requirements applicable to the Project and the Cannabis Business pursuant to this Section 3.C are referred to herein as “Applicable City Law.”

1. City and Developer acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power that cannot be so limited. Notwithstanding the foregoing reservation of City, it is the intent of City and Developer that this Agreement be construed to provide Developer with certain rights afforded by law, including the Development Agreement Statute.

2. Effectiveness and application of all types of laws other than laws described in Sections 3.C.3 and 3.C.4, and imposition of fees and other charges pursuant to Section 4 (Fees, Exactions, Reimbursements), are unaffected by this Agreement, whether adopted before or after the Effective Date. Specific requirements set forth in Project Approvals or in this Agreement regarding development of the Project and operation of the Cannabis Business shall govern when in conflict with Section

3.C.3 or 3.C.4.

3. Laws Relating to Land Use and Development.
i. Existing Land Use Laws. Those laws, rules, regulations, official policies, construction standards and specifications (including City ordinances and resolutions) governing land use, design and improvement, including permitted uses, densities and intensities of uses, maximum building heights and sizes, requirements for on- and off-site infrastructure and public improvements, including the 2030 General Plan (including the Complete Streets Text

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Amendment to the Transportation and Circulation Element of the Concord 2030 General Plan and the Housing Element Update 2014-2022), the Concord Trails Master Plan, the Downtown Specific Plan, and zoning provisions set forth in the Municipal Code, and the Concord Citywide Climate Action Plan; each as in force on the Effective Date, shall be applicable to the Project and the Cannabis Business.
ii. New Land Use Laws. Notwithstanding Section 3.C.3.i above, the following New City Laws shall be effective if uniformly applied on a City-wide basis to all substantially similar types of development projects and properties:

1. New City Laws that relate to or impose charges as
described in Section 4 (Fees, Exactions, Reimbursements).

2. New City Laws that relate to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure; New City Laws that revise City’s uniform construction codes, including City’s building code, plumbing code, mechanical code, electrical code, fire code, grading code and other uniform construction codes; and

3. All New City Laws that are necessary to protect physical health and safety of the public.

4. Laws Relating to Cannabis Businesses.
i. Existing Cannabis Laws. The City’s laws, regulations, and policies regarding cannabis-related business operations, including the Cannabis Ordinance, each as in force on the Effective Date, shall be applicable to the Project and the Cannabis Business. ii. New Cannabis Laws. Notwithstanding Section 3.C.4.i above, New City Laws that constitute changes to the Cannabis Ordinance shall be effective if such changes are uniformly applied on a City-wide basis to all substantially similar types of Cannabis Businesses, and provided such changes do not prohibit operation of the Cannabis Business at the Property or restrict the sale of Cannabis, Cannabis Products, or Cannabis Accessories (as those terms are defined in Cannabis Ordinance Section 5.80.20. Developer shall not be required to submit a sensitive land use hardship application pursuant to Cannabis Ordinance Section 5.80.060(f) in order to continue Cannabis Business operations at the Property pursuant to this Agreement and the Developer Cannabis License. Developer acknowledges and agrees that nothing in this Agreement restricts the power of City to amend the Cannabis Ordinance with respect to the permitted number and type of City Cannabis Licenses.

D. Acknowledgement of Receipt of City Fee Schedule and Municipal Code. City has provided Developer, and Developer acknowledges receipt of, the Municipal Code (https://www.codepublishing.com/CA/Concord) and the City’s fee schedule (http://www.cityofconcord.org/citygov/municode/feescharges/fees-charges.pdf), which are in force and effect as of the Effective Date. Copies of both documents are available in the City Clerk’s office and are incorporated herein by this reference.

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E. Regulation by Other Public Agencies. City and Developer acknowledge and agree that other governmental or quasi-governmental entities not within the control of City possess authority to regulate aspects of the development of the Property and/or the Project, and/or operation of the Cannabis Business, and that this Agreement does not limit the authority of such other public agencies. City, at Developer’s sole cost and expense, shall reasonably cooperate with Developer in Developer’s effort to obtain such permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Property and/or the Project, and/or operation of the Cannabis Business. City shall have no obligation to incur any costs, without compensation or reimbursement from Developer, or to amend any City policy, regulation or ordinance in connection therewith.

F. Development Agreement Annual Review.

1. Purpose. As required by California Government Code Section 65865.1 and Municipal Code Section 18.460.090, City and Developer shall review this Agreement and all actions taken pursuant to the terms of this Agreement with respect to the development of the Project and operation of the Cannabis Business every 12 months from the date this Agreement is recorded to determine compliance with this Agreement.

2. Conduct of Annual Review. The annual review shall be conducted as provided in this Agreement and the Development Agreement Ordinance. If the Planning Division finds and determines that Developer has not complied in good faith with the terms and conditions of this Agreement, including commitments regarding Community Benefits, a public hearing shall be held by the City Council, at which time Developer must demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof of good faith compliance is on Developer. The City Council shall determine, upon the basis of substantial evidence, whether or not Developer has, for the time period under review, complied in good faith with the terms and conditions of this Agreement. If the City Council finds and determines, based upon substantial evidence, that Developer has complied in good faith with the terms and conditions of this Agreement during the period under review, no further action is required. If the City Council finds and determines, based upon substantial evidence, that Developer has not complied in good faith with the terms and conditions of this Agreement during the period under review, the City Council may modify or terminate the Agreement or extend the time or waive compliance upon a showing of good cause. The decision to terminate or modify the Agreement is final. As part of that final determination, the City Council may impose conditions as necessary to protect the interests of the City. The decision of the City Council shall be final and any court action or proceeding to attack, review, set aside, void, or annul any decision of the determination by the City Council shall be commenced within the time period specified in California Government Code Section 65009. The term “good faith” as used herein shall have the meaning pursuant to Government Code Section 65865.1.

3. Failure to Conduct Annual Review. Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review.

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SECTION 4

FEES, EXACTIONS, REIMBURSEMENTS
A. Impact Fees; Exactions; Taxes and Assessments. Developer shall pay any Impact Fees in place as of the Effective Date, at the rate in effect as of the Effective Date. In addition, City may charge and Developer shall pay any new Impact Fees imposed by City, including new Impact Fees, such as sewer fees, adopted after the Effective Date, at the rate in effect at the time of payment; provided, however, City shall only require Developer to pay new Impact Fees that are uniformly applied by City to all substantially similar types of development projects and properties. Further, City may impose and Developer shall comply with any Exactions required by this Agreement and the Project Approvals. Lastly, Developer shall pay any and all taxes and assessments imposed on the Project or Property, at the rate in effect at the time of payment.

B. Processing Fees.
“Processing Fees” means all fees for processing development project applications, including any required supplemental or other further environmental review, plan checking (time and materials) and inspection and monitoring for land use approvals, design review, peer review, grading and building permits, General Plan maintenance fees, and other permits and entitlements required to implement the Project, which are in effect at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing. Subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Processing Fee, City may charge and Developer shall pay all Processing Fees, at the rate in effect as of the Effective Date, with periodic increases in accordance with City policies and procedures.

C. Other Agency Fees. Nothing in this Agreement shall preclude City from collecting fees from Developer that are lawfully imposed on the Project or Property by another agency having or asserting jurisdiction over the Project or Property, which the City is required to collect or impose.

D. Connection Fees. Subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Connection Fee, City may charge and Developer shall pay any Connection Fee that is lawfully adopted.

E. Reimbursement of Annual Review/Audit, Assignment or Transfer Requests, Amendments, and Administration Costs. Developer shall reimburse City for any and all costs incurred in conducting the annual review of this Agreement including pursuant to Section 3.F, addressing any assignment or transfer requests pursuant to Section 9 (even if such request is denied), amending this Agreement pursuant to Sections 7 and/or 9, and the City’s costs in conducting an audit pursuant to Section 6.B.5. Developer shall reimburse City for City staff time incurred at City’s fully loaded actual cost, including overtime where applicable. City, in its reasonable discretion, may engage third party consultant(s) and may determine the scope of work or services to be provided by third party consultant(s) rather than City staff. Developer shall reimburse City for any and all fees, costs and expenses incurred by the City in retaining third party consultant(s), including an administrative fee of twenty percent (20%) on any and all consultant or other third party fees, costs, or expenses.

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F. Payment of Fees and Reimbursable Costs/Expenses. City shall provide Developer a copy of each invoice, bill, demand or other evidence or reasonable substantiation of City’s fees or costs incurred pursuant to this Section 4. Any payments made to City pursuant to this Section 4 shall be made through procedures established by the Director of Finance. Unless otherwise required by the Director of Finance, payments shall be made payable within thirty (30) days upon written demand by City for payment. Delinquent payments and late charges shall be assessed and shall be due to City in compliance with Section 6.B.4, set forth below.

SECTION 5

DEVELOPER COMPLIANCE WITH LAW
A. City of Concord Business License. Developer, at its expense, shall obtain and maintain a City of Concord business license at all times during the Term, and shall include a provision in all general contractor agreements for the Project requiring each such general contractor to obtain and maintain a City of Concord business license during performance of the work of construction.

B. City Cannabis License. Developer, at its sole cost and expense, shall obtain and maintain in effect a Developer Cannabis License pursuant to the Cannabis Ordinance at all times that it operates the Cannabis Business during the Term.

C. State License and Compliance with State Law. Developer shall at all times comply with state laws and regulations regarding operations of the Cannabis Business, including regulations issued and laws enforced by the California Department of Cannabis Control (“DCC”), and Child-Resistant Packaging requirements established by the DCC. At all times that the Cannabis Business is in operation, Developer shall maintain in effect any State Licenses or permits required by the State of California for such operation.

D. Acknowledgement of Federal Law. Developer is aware of federal laws and regulations regarding cannabis use, sale, and consumption, and acknowledges and agrees that Developer’s execution of this Agreement and operation of the Cannabis Business is at Developer’s sole risk.

E. Compliance with Terms of Licenses and Permits. At all times that the Cannabis Business is in operation, Developer shall maintain in effect and comply with the terms of all licenses, permits, and approvals required or issued by the City of Concord, including the Project Approvals, and shall comply with all local laws and regulations.

F. The foregoing are collectively referred to as “Generally Applicable Laws.”

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SECTION 6

COMMUNITY BENEFITS
A. Community Benefits. As part of the competitive selection process, Developer in its RFP response and at public hearings made voluntary commitments to provide certain Community Benefits. In consideration of the rights and benefits provided by City to Developer under this Section 6 and elsewhere in this Agreement,
Developer shall provide the Community
Benefits, as set forth in this Section 6 and more particularly described in Exhibit B. The Parties agree that the mutual commitments set forth this Section 6 are intended to (i) help strengthen the relationship between the Developer and members of the surrounding community, (ii) help improve public awareness and reputation of this emerging operation and new local industry, and (iii) deliver a range of community benefits for the benefit of the general public and the surrounding community.

B. Developer Contributions. The following are collectively referred to herein as “Developer Contributions.” Such contributions shall become due on the 15th of each month with regard to the prior calendar month; and shall be remitted in accordance with procedures established by the Director of Finance.

1. Cannabis Community Benefits Fund. The City shall establish a Cannabis Community Benefits Fund (“CCB Fund”) into which local cannabis businesses, the City, and others may contribute funds. Disbursement of such funds shall be pursuant to direction of City Council. Such funds shall be maintained and administered by the City in accordance with procedures established by the Director of Finance, and may be distributed through grants, direct expenditures, or other mechanisms. Expenditures of the CCB Fund are intended to advance the following community and public purposes:
i. youth drug use prevention and education efforts;
ii. drug treatment programs and mental health programs, including programs providing supervised diversion from the criminal justice system to avoid recidivism; iii. workforce development;
iv. small business assistance;
v. providing amenities for public use and enjoyment, including streetscape and sidewalk improvements and public art installations; vi. event programming and other activation of public space; and vii. improving quality of life and providing economic opportunities.

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2. Contribution Amounts.
i. CCB Fund. Developer shall contribute to the CCB Fund a percentage of Gross Revenues from the Cannabis Business, and/or specified amount, each as set forth in Exhibit B.
ii. City of Concord. Developer shall contribute to the City a percentage of Gross Revenues from the Cannabis Business, and/or specified amount, each as set forth in Exhibit B.
iii. Offset of Gross Receipts Tax. If during the Term, the City adopts a Gross Receipts tax applicable to the Cannabis Business, Developer Contributions shall offset the Developer’s liability pursuant to such Gross Receipts tax. For example, if Developer’s Gross Receipts tax liability for the Cannabis Business in a calendar year were $750,000, but Developer Contributions amounted to $300,000, then Developer’s Gross Receipts tax liability for the calendar year would be reduced to $450,000.

3. Gross Receipts/Gross Revenues Definition. For the purposes of this Agreement, the terms “Gross Receipts” and “Gross Revenues” are used interchangeably and mean, however designated, the total amount (including all receipts, charges/surcharges/line items intended to represent all or any portion of the Developer Contributions passed through to consumers or other third parties, cash, credits, services, and property of any kind or nature) received or payable for sales of goods, wares or merchandise, gains realized from trading stocks or bonds, interest discounts, rents, royalties, fees, commissions, dividends, or other remunerations, however designated, or for the performance of any act or service of any nature for which a charge is made or credit allowed (whether such service, act or employment is done as part of or in connection with the sale of goods, wares, merchandise or not), without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, interest paid or payable, losses or any other expense whatsoever. However, the following shall not be included as Gross Receipts:
i. cash discounts where allowed and taken on sales;
ii. any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser;
iii. such part of the sale price of any property returned by purchasers to the seller as refunded by the seller by way of cash or credit allowances or return of refundable deposits previously included in gross receipts;
iv. receipts derived from the occasional sale of used, obsolete or surplus trade fixtures, machinery or other equipment used by the taxpayer in the regular course of the taxpayer's business;
v. cash value of sales, trades or transactions between departments or units of the same business located in the City; and

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vi. receipts of refundable deposits, except that such deposits when forfeited and taken into income of the business shall not be excluded when in excess of one dollar.

The intent of this definition is to ensure that in calculating the payment required under Section

6.B, all sales of cannabis products shipped through the Cannabis Business are captured, regardless of whether the product is shipped directly from the Cannabis Business to a retailer or wholesaler, or to another distribution facility that then distributes the product to the retailer or wholesaler. This definition shall therefore be given the broadest possible interpretation consistent with this intent.

4. Delinquent Amounts; Liquidated Damages. Because actual damages to compensate the City for delays in community benefits implementation would be difficult to calculate, the Parties agree to the liquidated damages provisions set forth in this Section 6.B.4.
i. Liquidated damages in the amount of 10 percent of Developer Contribution will be added to any Developer Contribution that is not paid by last day of the month in which it came due. An additional liquidated damages amount of 10 percent will be added on the last day of each additional month the Developer Contribution remains unpaid, but in no case will such damages exceed 50 percent of the amount of the Developer Contribution. ii. Where the final due date for a Developer Contribution falls on a weekend or a holiday, the period prior to imposition of liquidated damages may be extended to include the next city working day.
iii. Upon documented evidence of an existing hardship that caused delay in payment of the Developer Contribution, and where there is a previous history of prompt payment, the Director of Finance may waive all liquidated damages that would otherwise have accrued as a result of a failure to pay a Developer Contribution when due. In such cases, seven percent simple interest shall be added to any Developer Contribution determined to be due and payable calculated from the day liquidated damages would have been assessed until the date of actual payment of the Developer Contribution.
iv. If Developer fails to remit all or any portion of the Developer Contribution on or before a period of 30 days following the date on which the Developer Contribution first became delinquent shall pay an additional liquidated damages amount of ten percent of the amount of the Developer Contribution, in addition to the amount of the Developer Contribution and the amount first imposed.

5. Recordkeeping. Upon written request from the City, Developer shall allow audit of records necessary to determine the amount of required contributions pursuant to this Section 6.B. At a minimum, Developer shall keep and preserve, for a period of five years after expiration of the Initial Term, First Extension Term, or Second Extension Term, whichever is later, all business records as may be necessary to determine the amount of such monies hereunder for which the Developer is liable for the collection and payment to the City. The Director of Finance, in the exercise of duties imposed by this Agreement, shall have the right to inspect such records at all reasonable times and to apply auditing procedures necessary to

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determine the amount of monies due to the City. All records which may be necessary to inspect shall be kept within the boundaries of the City or shall be produced within ten working days of written notice at the business location within the City. In the event records are not produced upon request, or such records are not reasonably able to be audited, the monies due under this Agreement, interest, and penalties will be levied based upon the City’s best estimate, taking into account any relevant information, including prior collections and remittances of monies by the Developer to the City for the Cannabis Business. Any Developer who does not produce records following written notice as set forth herein shall pay as additional liquidated damages the sum of $1,000.00 per day for each business day the records are not produced for audit.

C. City Commitments Related to Community Benefits.

1. CCB Funds. The City shall reserve and expend funds collected from various entities and sources through the CCB Fund, as described in Section 6.B.1 above.

2. Processing Applications for Project Approvals.
i. Timely Submittals by Developer. Developer acknowledges that City cannot begin processing applications for Project Approvals until Developer submits complete applications on a timely basis. Developer shall use diligent good faith efforts to:
(a) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (b) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable City Law. It is the express intent of the Parties to cooperate and diligently work to pursue and process any and all Project Approvals.
ii. Expedited Processing by City. Upon submission by Developer of all appropriate applications and Processing Fees for any pending Project Approval, City shall endeavor to promptly and expeditiously commence and complete all steps necessary to act on Developer’s currently pending Project Approval applications, including: (a) providing at Developer’s sole cost and expense, third-party consultants for planning and processing of each pending Project Approval application (Developer shall pay such costs at cost plus 20 percent for administrative costs incurred); and (b) if legally required, providing notice and holding public hearings.

D. Effectiveness and Mutual Consideration. The Parties to this Agreement have agreed to terms of this Section 6 for their mutual benefit and agree that the terms of this Section 6 are material to this Agreement and are valid and mutually effective consideration for each party’s respective commitments. If this Agreement is found by a court of competent jurisdiction to be an invalid exercise or application of Government Code Section 65864 et seq. or is otherwise found ineffective or impermissible by a court of competent jurisdiction, the Parties’ respective commitments set forth in this Section 6 shall continue in effect as contractual commitments voluntarily entered into by the Parties, regardless of the effectiveness of other terms of the Agreement.

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SECTION 7

AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
A. Amendment by Written Consent. Except as otherwise expressly provided herein (including Section 7.A relating to City’s annual review and Section 3.F relating to termination in the event of a Default), this Agreement may be terminated, modified or amended only by mutual written consent of the Parties hereto or their successors in interest or assignees and in accordance with the provisions of Government Code Sections 65967, 65867.5 and 65868.

B. Major Amendments. Any amendment to this Agreement which affects or relates to: (a) the Term (except as provided in Section 2.B); (b) permitted uses of the Property; (c) provisions for the reservation or dedication of land; (d) conditions, terms restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of the use of the Property or the maximum height or size of proposed buildings; or (f) terms of Section 6 (Community Benefits); shall be deemed a “Major Amendment” and shall require giving of notice and a public hearing before the Planning Commission and City Council. Any amendment that is not a Major Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent otherwise required by Applicable City Law, require notice of public hearing before the Parties may execute an amendment hereto. The City Manager, in his or her sole discretion, shall have the authority to determine if an amendment is a Major Amendment or a Minor Amendment.

C. Minor Amendment. The City Manager or designee shall have the authority to review and approve Minor Amendments.

D. Requirement for Writing. No modification, amendment, or other change to this Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing which refers expressly to this Agreement and is signed by duly authorized representatives of the Parties or their successors in interest.

E. CEQA Review. Developer agrees and acknowledges that additional CEQA review may be legally required for certain discretionary Project Approvals. The City, at Developer’s sole cost and expense, shall endeavor to conduct such CEQA review promptly and expeditiously. Developer agrees and acknowledges that the Project shall be subject to any and all mitigation measures adopted in connection with such CEQA review and the provisions of any Mitigation and Monitoring Plan. Further, if the CEQA review requires an Environmental Impact Report and the City determines that a Statement of Overriding Considerations is required for Developer to move forward with the Project Approval, the City reserves its absolute discretion to consider adoption of the findings required by CEQA and the Statement of Overriding Considerations. If the City does not adopt the Statement of Overriding Considerations, Developer may choose to modify its Project and submit an amended application or may terminate this Agreement upon written notice to City.

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SECTION 8

INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT OF

LEGAL CHALLENGE
A. Insurance Requirements. As required by Cannabis Ordinance Section

5.80.080(m), Developer shall, at its own expense, procure and maintain in full force at all times during the Term the following insurance:

1. Commercial General Liability Coverage. Developer shall maintain at all times commercial general liability providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury with limits of not less than $2,000,000 per occurrence and comprehensive automobile liability (owned, non-owned, hired) providing coverage at least as broad as ISO Form CA 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than $2,000,000. The commercial general liability policy shall provide contractual liability, shall include a severability of interest or equivalent wording, shall include an endorsement that specifies the insurance coverage afforded to the City shall be primary and noncontributory, and shall name the city, its officials and employees as additional insured. Failure to maintain insurance as required herein at all times shall be grounds for suspension of the Developer Cannabis License immediately and, ultimately, revocation.

2. Automobile Liability Coverage. Developer shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.

3. Professional Liability Coverage (Errors and Omissions). Developer shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by Developer, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.

4. Compliance with State Workers’ Compensation Requirements. Developer covenants that it will insure itself against liability for Workers’ Compensation pursuant to the provisions of California Labor Code Section 3700, et seq. Developer shall, at all times, upon demand of the City, furnish proof that Workers’ Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by Developer for City. This provision shall not apply upon written verification by Developer that Developer has no employees.

5. Other Insurance Provisions. Developer shall ensure that the policies satisfy the following provisions:
i. Additional Insured. City, its officers, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities

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performed by or on behalf of Developer and operations of Developer, premises owned, occupied, or used by Developer. The coverage shall contain no special limitations on the scope or protection afforded to City, its officers, officials, employees, or volunteers. Except for worker’s compensation and professional liability insurance, the policies mentioned in this subsection shall name City as an additional insured and provide for notice of cancellation to City. Developer shall also provide timely and prompt notice to City if Developer receives any notice of cancellation or nonrenewal from its insurer.
ii. Primary Coverage. Developer’s insurance coverage shall be primary insurance with respect to City, its officers, officials, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be in excess of Developer’s insurance and shall not contribute with it.
iii. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the City, its officers, officials, employees, or volunteers.
iv. Verification of Coverage. Developer shall furnish City with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to City at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. City reserves the right to require complete certified copies of all required insurance policies at any time.

B. Indemnity and Hold Harmless. Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City Parties from and against any and all Claims (state or federal), including Claims for any bodily injury, death, or property damage, resulting directly or indirectly from, arising out of, or connected in any way with the Property, the development or construction of the Project by or on behalf of Developer, the operation of the Cannabis Business, third party Claims, and/or from any other acts or omissions of Developer under this Agreement, whether such acts or omissions are by Developer or any of Developer’s contractors, subcontractors, agents, or employees, except to the extent such Claims arise from the sole or gross negligence or willful misconduct of City or City Parties. In addition, the waivers, releases, and indemnification commitments set forth in Exhibit E of Developer’s competitive selection application regarding eligibility for application for a Developer Cannabis License, “City of Concord Limitations on City’s Liability and Certifications, Assurances, and Warranties” shall apply. This Section 8.B shall survive expiration or other termination of this Agreement .

C. Defense and Cooperation in the Event of a Litigation Challenge. At Developer’s sole cost and expense, City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other state or federal governmental entity or official challenging the validity of any provision of this Agreement, or the Project Approvals (for

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purposes of this section, a “Litigation Challenge”). To the extent Developer desires to contest or defend such Litigation Challenge, Developer shall take the lead role defending such Litigation Challenge and shall indemnify, defend (with legal counsel reasonably acceptable to the City Attorney) and hold harmless, City Parties, from and against any and all Claims raised in connection with the Litigation Challenge. City may, in its sole discretion, elect to be separately represented by the legal counsel of its choice in any such action or proceeding with the reasonable costs of such representation to be paid by Developer, in which case Developer shall reimburse City, within ten (10) business days following the date of City’s written demand therefor (City may make multiple demands from time to time during the course of such Litigation Challenge), all actual costs incurred by City in connection with the Litigation Challenge, including City’s fully loaded administrative, legal, expert, witness, consultant, and court costs and City Attorney oversight expenses. Developer shall indemnify, defend, and hold harmless City Parties from and against any and all Claims, including attorneys’ fees awarded under Code of Civil Procedure Section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge shall be subject to City’s approval not to be unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approval, the settlement shall not become effective unless such amendment or modification is approved by City, and City reserves its full legislative discretion with respect thereto. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so. This
Section 8.C shall survive expiration or other termination of this Agreement.

SECTION 9

RESTRICTIONS ON TRANSFER, ASSIGNMENT
A. Personal Relationship. Developer’s personal relationship, involvement, history with, and connection to, the Concord community, Community Benefit commitments, and Developer structure (including the owners, members, and entities comprising Developer, their respective ownership percentages, and any Developer parent company/ies) are a material reason City selected Developer pursuant to the RFP process. Because of that particular importance of Developer to operation of the Cannabis Business and development of the Property, certain restrictions on the right of Developer to transfer or assign its interest under this Agreement, ownership or control of the Cannabis Business (including through acquisition or merger), interest in the Property, or rights under licenses, permits, or approvals required or granted by the City (including the Project Approvals), in whole or in part, for any reason, without consent of the City, are material to this Agreement and are necessary in order to assure the achievement of the goals, objectives and public benefits of the Project and this Agreement. Developer accepts the restrictions set forth in this Section 9 as reasonable and as a material inducement for City to enter into this Agreement.

B. Restriction on Transfer or Assignment. Developer shall not transfer or assign its interest under this Agreement, or its ownership or control of the Cannabis Business, or its interest in the Property, or its rights under licenses, permits, or approvals required or granted by

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the City (including the Project Approvals), in whole or in part, for any reason, without the express written consent of the City, which shall be granted, withheld, or conditioned at the sole discretion of the Chief of Police. Any transfer or assignment of the Developer Cannabis License is also subject to the requirements of the Cannabis Ordinance.

C. Notice and Consent. Developer shall provide City with 60 days prior written notice of any desired assignment or transfer, together with supporting documentation sufficient to allow City to analyze the effects of the proposed assignment or transfer. The Chief of Police, on behalf of City, shall determine whether the proposed assignment or transfer: is consistent with Section 9.A above; complies with the Project Approvals, the Cannabis Ordinance, and the Municipal Code; and would be to a proposed assignee or transferee with Suitable Financial Qualifications and Experience; and shall grant, withhold, or condition consent to such assignment or transfer. Any assignment or transfer without the express written consent of the City shall constitute a Default, subject to immediate termination, including any transfer as a matter of law due to foreclosure or some other event. Any assignment or transfer shall require the assignee or transferee to become subject to all of the terms and conditions of this Agreement, including any commitment to enter into a labor peace agreement, and Developer and such assignee or transferee shall execute such documents as City determines necessary or desirable in connection therewith. The City Manager is hereby authorized to execute any and all documentation necessary or desirable to effect such assignment or transfer, to the extent consistent with the Chief of Police determination, and subject to City Attorney approval.

D. Developer shall bear all associated costs and expenses pursuant to Section 4.

SECTION 10

MORTGAGEE PROTECTION
A. Mortgagee Protection. Neither entering into this Agreement nor a breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value. Nothing in this Agreement shall prevent or limit Developer, at its sole discretion, from granting one or more Mortgages encumbering all or a portion of Developer’s interest in the Property or portion thereof or improvement thereon as security for one or more loans or other financing, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of Mortgagee who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise. Developer shall provide the City with a copy of the deed of trust or mortgage within 10 days after its recording in the official records of Contra Costa County; provided, however, that Developer’s failure to provide such document shall not affect any Mortgage, including the validity, priority or enforceability of such Mortgage.

B. Mortgagee Not Obligated. No Mortgagee (including one who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise) shall have any obligation to construct or complete construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with

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this Agreement and the other Project Approvals nor to construct any improvements thereon or institute any uses other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this Section, all of the terms and conditions contained in this Agreement and the other Project Approvals shall be binding upon and effective against and shall run to the benefit of any person or entity, including any Mortgagee, who acquires title or possession to the Property, or any portion thereof.

C. Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any Notice of Default given Developer hereunder and specifying the address for service thereof, then City shall use its diligent, good faith efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any Notice of Default given to Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of Default claimed or the areas of noncompliance set forth in City’s Notice of Default. If a Mortgagee is required to obtain possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure, but in no event may this period exceed 120 days from the date the City delivers the Notice of Default to Developer.

D. No Supersedure. Nothing in this Section 10 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Section 10 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 10.C.

E. Estoppel Certificate. Developer or Mortgagees may, at any time, and from time to time, deliver written notice to the City requesting the City to certify in writing that: (a) this Agreement is in full force and effect; (b) this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications; and (c) Developer is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Defaults. Developer shall pay, within 30 calendar days following the date of City’s invoice, the actual costs incurred, expended, or otherwise borne by City in connection with its review of the proposed estoppel certificate, including the actual costs incurred, expended, or otherwise borne by the City Attorney’s Office in connection therewith. The City Manager shall be authorized to execute any certificate requested by Developer hereunder. The form of estoppel certificate shall be in a form reasonably acceptable to the City Attorney. The City Manager shall endeavor to execute and return such certificate within 45 days or as soon as reasonably practicable following Developer’s request therefor. Developer and City acknowledge that a certificate hereunder may be relied upon by tenants, transferees, investors, partners, bond counsel, underwriters, bond holders and Mortgagees. Notwithstanding anything in any estoppel certificate to the contrary no estoppel certificate shall waive or amend, and no estoppel certificate shall be deemed to waive or amend, any of the provisions of this Agreement, it being understood and agreed that all of the rights of the Parties under this Agreement are hereby expressly reserved, and it being further understood that this Agreement shall control in the event of any conflict between this Agreement and any estoppel certificate.

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SECTION 11
DEFAULT; REMEDIES; TERMINATION
A. Breach and Default. Subject to a Permitted Delay or by mutual consent in writing, and except as otherwise provided by this Agreement, breach of, failure, or delay by either Party to perform any term or condition of this Agreement shall constitute a “Default.” In the event of any alleged Default of any term, condition, or obligation of this Agreement, the Party alleging such Default shall give the defaulting Party notice in writing specifying the nature of the alleged Default and the manner in which the Default may be satisfactorily cured (“Notice of Default”). The defaulting Party shall cure the alleged Default within 30 days following receipt of the Notice of Default, provided, however, if the nature of the alleged Default is non- monetary and such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure within six months thereafter, provided that if the cure is not diligently prosecuted to completion within six months, then no additional cure period shall be provided. If the alleged Default is cured within the time provided above, then no Default shall exist and the noticing Party shall take no further action to exercise any remedies available hereunder. If the alleged Default is not cured, then a Default shall exist under this Agreement and the non-defaulting Party may exercise any of the remedies available under this Agreement.

B. Withholding of Permits. In the event of a Default by Developer, or following Notice of Breach to Developer pursuant to Section 11.A above and during the cure period provided therein, upon a finding by the City Manager that Developer is in breach, the City shall have the right to revoke or refuse to issue any permit or Project Approval relating to the Project or the Cannabis Business until such Default is cured. This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals.

C. Termination. In the event of a Default by Developer, in addition to the right to terminate under Section 3.F.2, the City shall have the right to terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code Section 65868. Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Section 65867. Following consideration of the evidence presented in said review before the City Council, the City may give written notice of termination of this Agreement to the Developer, and may revoke or refuse to issue any permit or Project Approval relating to the Project or the Cannabis Business. Developer expressly waives any right to revocation hearings or similar process(es) regarding such permits or Project Approvals, and shall not contest or oppose revocation thereof, or termination of this Agreement, including pursuant to the Development Agreement Statute. In the event of a Default by City, Developer may terminate this Agreement upon written notice to City.

D. Specific Performance for Violation of a Condition. If City issues a Project Approval pursuant to this Agreement in reliance upon a commitment by Developer that a specified condition shall be satisfied in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of causing Developer to

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satisfy such condition, including taking action to revoke such Project Approval. Developer expressly waives any right to revocation hearings or similar process(es) regarding such permits or Project Approvals, and shall not contest or oppose revocation thereof.

E. Legal Actions.

1. Institution of Legal Actions; Venue. In addition to any other rights or remedies and subject to the limitation of damages in Section 11.G, a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the purpose of this Agreement. Any such legal action shall be brought in the Superior Court for Contra Costa County, California, except for actions that include claims in which the Federal District Court for the Northern District of the State of California has original jurisdiction, in which case the Northern District of the State of California shall be the proper venue.

2. Governing State Law. This Agreement shall be construed in accordance with the laws of the State of California, without reference to its choice of law provisions.

3. Acceptance of Service of Process. In the event that any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon the individual identified in Section 12.E (Notice; To Developer) as “Agent for Service of Process” and whom Developer hereby represents and warrants is Developer’s registered agent for service of process, or in such other manner as may be provided by law.

F. Rights and Remedies Are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein.

G. Limitation of Damages/No Damages. In no event shall a Party, or its boards, commissions, officers, agents or employees, or any City Parties, be liable in damages, including actual, consequential or punitive damages, for any Default under this Agreement. It is expressly understood and agreed that the sole legal remedy available to a Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance, or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement including obligations to pay attorneys’ fees, and obligations to advance monies or make financial contributions. Refund or reimbursement of contributions made by Developer to the CCB Fund pursuant to Section 6.B is not an available remedy. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party

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hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party’s rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any Default of this Agreement by the other Party. By waiving and relinquishing rights and remedies hereunder regarding Claims both known and unknown, Developer expressly waives on behalf of itself and its successors and assigns any rights under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR 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."
Developer Initials
H. Surviving Provisions. In the event this Agreement is terminated, the obligations of Developer set forth in this Section shall survive expiration or other termination of this Agreement.

SECTION 12

GENERAL PROVISIONS
A. Covenants Binding on Successors and Assigns and Run with Land. Except as otherwise more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code Section 65868.5. All references to Parties or entities in this Agreement refer to successors and assigns of such Parties or entities.

B. Recordation. The City Clerk shall record this Agreement in the Official Records of Contra Costa County no later than 10 days after the City enters into this Agreement.

C. Recordkeeping. Upon written request from the City, Developer shall allow inspection of records sufficient to determine compliance with Developer’s obligations under this Agreement, including audit of records necessary to determine such compliance. Developer shall maintain and provide information requested by the City as necessary to determine compliance with all terms of this Agreement. Project Approvals, and related laws, regulations, licenses, and permits.

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D. Nondiscrimination. City, Developer, and all contractors and service contractors shall refrain from discrimination or harassment based on race, ethnicity, national origin, gender, sexual orientation, age, religion, disability, veteran status, or any other basis prohibited by law, in all activities in furtherance of or on site of work performed in relation to the Project and the Cannabis Business. Such entities shall take active steps to ensure that all On-Site activities are conducted without discrimination or harassment on these bases, by all employees and representatives.

E. Notice. Any notice, demand or request which may be permitted, required or desired to be given in connection herewith shall be given in writing and directed to City and Developer as follows:

If to the City: City Clerk
City of Concord
1950 Parkside Drive
Concord, CA 94519
Telephone: (925) 671-3390
with a copy to: City Attorney
City of Concord
1950 Parkside Drive, M/S 08
Concord, CA 94519
Telephone: (925) 671-3160
If to Developer: Charles M. Wesley
Kolaboration Concord, LLC dba CoCo Farms
16 Wood Duck Court
Copperopolis, CA 94571
Notices are deemed effective if delivered by certified mail, return receipt requested, or commercial courier, or personal delivery, with delivery to be effective upon verification of receipt. Any Party may change its respective address for notices by providing written notice of such change to the other Parties.

F. Permitted Delays. Performance by either Party of an obligation hereunder shall be excused during any period of Permitted Delay. “Permitted Delay” means mean delay beyond the reasonable control of a Party caused by: (a) calamities, including earthquakes, floods, and fire; (b) civil commotion; (c) riots or terrorist acts; (d) strikes or other forms of material labor disputes; (e) shortages of materials or supplies; or (f) vandalism. A Party’s financial inability to perform or obtain financing or adverse economic conditions generally shall not be grounds for claiming a Permitted Delay. The Party claiming a Permitted Delay shall

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notify the other Party of its intent to claim a Permitted Delay, the specific grounds of the same and the anticipated period of the Permitted Delay within 30 business days after the occurrence of the conditions which establish the grounds for the claim. If notice by the Party claiming such extension is sent to the other Party more than 30 days after the commencement of the cause, the period shall commence to run only 30 days prior to the giving of such notice. The period of Permitted Delay shall last no longer than the conditions preventing performance. In no event shall any Permitted Delay extend the Term.

G. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

H. Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies, or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. Consent by one Party to any act by the other Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future.

I. Construction of Agreement. All Parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement.

Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; (e) “includes” and “including” are not limiting; and (f) “days” means calendar days unless specifically provided otherwise.

J. Headings. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement.

K. Severability. Except as set forth in Section 6.D, if any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found to be invalid or unenforceable, in whole or in part for any reason, the remaining terms and provisions of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which case any Party may terminate this Agreement by providing written notice thereof to the other Party. The Parties hereby agree that the Parties’ mutual commitments set forth in Section 6 are material terms of this Agreement, advancing essential purposes of this Agreement, which would be defeated if Section 6 were found invalid or unenforceable in whole or in part.

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L. Time is of the Essence. Time is of the essence in satisfaction of terms of this Agreement.

M. Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of and bind the respective legal entities of Developer and City with their signatures.

N. Entire Agreement. This Agreement (including all recitals and all exhibits attached hereto, each of which is fully incorporated herein by reference), integrates all of the terms and conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the Parties with respect to the subject matter hereof, and all prior or contemporaneous oral agreements, understandings, representations and statements, and all prior written agreements, understandings, representations, and statements are terminated and superseded by this Agreement. This Section 12 does not affect the validity of terms of licenses, permits, or regulations, as established over time.

O. Recordation of Termination. Upon termination, expiration, or amendment of this Agreement, a written statement acknowledging such action shall be recorded by City in the Official Records of Contra Costa County.

P. City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise.

Q. Negation of Partnership. The Parties specifically acknowledge that the Project and the Cannabis Business are private initiatives, that no Party to this Agreement is acting as the agent of any other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Parties in the businesses of Developer, the affairs of the City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise.

R. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the signatory Parties and their successors and assigns, including Mortgagees. No other person shall have any right of action based upon any provision in this Agreement.

S. Exhibits. The following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full:

Exhibit A: Property Legal Description
Exhibit B: Community Benefits
Exhibit B-1: Neighborhood Compatibility Plan
[signatures follow on next page]

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

CITY:

CITY OF CONCORD, a municipal corporation
By:

Valerie J. Barone, City Manager
[Signature must be notarized]
ATTEST:

By:

Joelle Fockler, MMC, City Clerk
APPROVED AS TO FORM:

By:

Susanne Brown, City Attorney
DEVELOPER:

KOLABORATION CONCORD, LLC,
d.b.a. COCO FARMS
By:

Name:

Its:

By:

Name:

Its:
[Signatures must be notarized]

Exhibit A
Property Legal Description
2366 Stanwell Circle, Concord CA 94520
APN: 112-252-021 and 112-252-022:

Description: Lease Management Building, 2366 Stanwell Circle, Concord, CA 94520 Parcel 1: Lot 13, as said lot is shown on the Map of Subdivision 3564, filed August 10, 1966, in Book 112 of Maps, Pages 29 to 31 inclusive, in the Office of the County Recorder of Contra Costa County.

Parcel 2: Parcel B, as said parcel is shown on the Map of Resubdivision Lots 14 and 15, Subdivision 3564, filed December 18, 1968, in Book 6 of Parcel Maps, Page 30, in the Office of the County Recorder of Contra Costa County.

APN: 112-252-006:

Commonly known as: Lot on Stanwell Circle, Concord, CA 94520 Lot 22 as said Lot is shown on the. Map of Subdivision 3564, filed August 10, 1966, in Book 112 of Maps. Pages 29 to 31, inclusive, in the Office of the County Recorder of Contra Costa County.

2 Exhibit B
Community Benefits
In consideration of the rights and benefits provided by City to Developer as set forth in the Agreement, Developer shall provide the following Community Benefits. Capitalized terms used herein are as defined in Agreement Section 1. “CoCo Farms” and “Developer” are used interchangeably herein. The Parties acknowledge and agree that this Exhibit B is simply a summary of the Community Benefits identified in Developer’s RFP response. “Developer’s RFP response” means Developer’s written response to the RFP, Developer’s presentation to the City Council at the public meeting dated April 13, 2021, and oral representations made at such City Council meeting. City has the right, but not the obligation, to enforce some or all provision of Developer’s RFP response. In the event of any conflict between the two, the more stringent provision (as determined by the City Manager) shall control. In the event of an omission from this summary, the RFP Response shall control. A redacted version of Developer’s RFP response is available at the following link:
https://stream.ci.concord.ca.us/OnBaseAgendaOnline/Meetings/ViewMeeting?id=632&doctype =1. Developer’s unredacted RFP response is maintained in the offices of the City of Concord City Clerk, 1950 Parkside Drive MS/03, Concord, CA 94519, and may be requested subject to certain restrictions under the California Public Records Act.

I. Developer Contributions. As of commencement of Cannabis Business operations (as determined by the City):

A. Developer shall contribute $25,000 per month (i.e., $300,000 per year) to the City’s CCB Fund.

B. Developer shall contribute to the City five percent (5%) of Developer’s Cannabis Business Gross Revenues, or $50,000 per month (i.e., $600,000 annually), whichever is greater.

C. Such contributions shall become due on the 15 th of each month with regard to the prior calendar month; and shall be remitted in accordance with procedures established by the Director of Finance.

II. Volunteer Hours. Developer shall provide at least four volunteer hours per Cannabis Business Owner and per On-Site employee each month. Volunteer hours shall be provided to directly aid, participate in, or assist with sponsored activities, non-profits, or community-based organizations, and/or and civic or social services with preference to those in or serving Concord and/or Contra Costa County. Such volunteer hours shall be provided beginning upon Developer’s commencement of Cannabis Business operations (as determined by the City) and continue each month thereafter. Such volunteer hours shall be provided free of charge to the nonprofit organization, and all On-Site employees shall be compensated by Developer at their normal pay rate for time spent providing such volunteer hours.

3 III. Labor and Hiring Practices/Preferences.

A. In hiring employees for its Cannabis Business, Developer shall give preference to Concord Residents and persons experiencing homelessness in Concord, in that order of priority.

If the City establishes a First Source Hiring Program generally applicable to cannabis businesses, Developer shall comply with the terms thereof.

B. Developer shall provide a wage for all Cannabis Business employees of at least $15 per hour, with at least 80% of Cannabis Business employees (including all “budtenders”) earning at least $20 per hour.

C. Developer shall ensure the eligibility of all full-time Cannabis Business employees and their immediate family members to participate in an employer-based health insurance plan, with 90% of the premium paid by Developer.

D. Developer shall provide fifteen days per year of paid time off for all full-time employees, plus an additional three days of paid sick leave.

E. Developer shall implement its “CoCo Cares” program as part of its Concord Cannabis Business, by, on an annual basis, hiring and providing interim housing for at least ten (10) individuals who are near homeless or are experiencing homelessness in Concord, with a living wage, training, and health care provided to such individuals.

F. Developer has entered into a labor peace agreement (as defined in Business and Professions Code Section 26001, subdivision (x)) with the United Food and Commercial Workers Union Local 8-Golden State ("UFCW 8 Golden State") dated February 19, 2021 with a three (3) year term, with regard to operations of the Cannabis Business. Developer shall maintain one or more labor peace agreements as needed for compliance with Bus. & Prof. Code Section 26001(x) for the duration of the Term.

IV. Neighborhood Compatibility Plan. Developer shall follow and adhere to the Neighbor Compatibility Plan (attached hereto as Exhibit B-1) submitted as part of Developer’s RFP response, including the designation of a Community Relations Officer, who shall be responsible for addressing and mitigating any complaints from the public, customers, and businesses with respect to the Cannabis Business or the Property. As part of Developer’s Annual Review Report to the City (Section 3.F), Developer shall provide written records or documentation regarding any complaints made to Developer, the interactions between Developer and complainants, and any resolution or mediation thereof.

4 Exhibit B-1
Neighborhood Compatibility Plan

5

6

7

8

9

Staff Report
Date: April 26, 2022
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Karan Reid, Director of Finance
Prepared by: Donna Lee, Budget and Treasury Officer
[email protected]
(925) 671-3261
Subject: Considering adoption of a Resolution Amending Policy and Procedure No. 31 – Budget Appropriation Transfer
Controls.

CEQA: Not a project/exempt per Public Resources Code
Section 21065, 14 Cal Code Regs. Sections 15060(c)(2),
15060(c)(3), 15378, 15061(b)(2), 15061(b)(3) and/or
15378(b)(4).

Report in Brief
At the Mid-Year Budget Update on March 8, 2022, staff presented proposed amendments to Policy and Procedure No. 31 – Budget Appropriation Transfer Controls in order to update the policy to meet best practices and to provide better clarity in the appropriation transfer language. The proposed changes included adding language regarding interfund loans and transfers, and also increasing the limit for project transfers that can be approved by the City Manager from $20,000 to $75,000 cumulatively per project. The City Council directed staff to make further amendments to Policy and Procedure No. 31 – Budget Appropriation Transfer Controls regarding limitations of transfers related to the Concord Naval Weapons Station (CNWS), which would require City Council approval for all transfers related to the CNWS. The updated amendments are now being brought back for further consideration.

4.d4.d4.d

City Council Agenda Report
Agenda Item 4.d
April 26, 2022
Recommended Action
Adopt the attached Resolution amending Policy and Procedure No. 31 – Budget Appropriation Transfer Controls (Attachment 1).

Background
The purpose of Policy and Procedure No. 31 – Budge Appropriation Transfer Controls is to provide a procedure allowing for efficient and cost effective transfers of budgeted funds between City programs, capital project, and line item accounts. Policy and Procedure No. 31 – Budget Appropriation Transfer Controls is being updated for staff to more efficiently handle transfers in alignment with best practices.

Discussion
Policy and Procedure No. 31 – Budget Appropriation Transfer Controls is being updated to add language regarding interfund loans and transfers, and also increases the limit for project transfers that can be approved by the City Manager from the current $20,000 limit to the recommended $75,000 cumulatively per project. This amount is consistent with the recent council action to increase the City Manager’s purchasing threshold. Any project transfers over $75,000 cumulatively per project would require City Council approval. The changes are being recommended to update the policy to meet best practices and to provide better clarity in the appropriation transfer language within the policy and allow for staff to transfer funds within projects on a timelier basis. The proposed amendments to Policy and Procedure No. 31 – Budget Appropriation Transfer Controls were brought to the City Council for consideration at the March 8, 2022 Council Meeting. Following feedback and direction from Council, additional language has been added to require City Council approval for any transfers related to the CNWS.

Financial Impact
There is no financial impact. This is a policy update.

Environmental Determination
None of the activities addressed herein constitute a “project” within the meaning of Public Resources Code Section 21065, 14 Cal Code Regs. Section 15060(c)(2), 15060(c)(3), or 15378 because none of the activities has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, even if any activity was a project under CEQA, each is exempt under 14 Cal. Code Regs. Sections 15061(b)(2), 15061(b)(3), and 15378(b)(4).

Public Contact
The City Council Agenda was posted.

Attachment

1. Resolution amending Policy and Procedure No. 31 – Budget Appropriation Transfer Controls

Attachment 1
Res No. 21-XX 1

BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD

COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
A Resolution Amending Policy and Procedure No. 31
– Budget Appropriation Transfer Controls Resolution No. 22-XX /
WHEREAS, the City Manager has recommended making amendments to Policy and Procedure No. 31, Budget Appropriation Transfer Controls, to update language to best practices including interfund loans and transfers and increasing the limit to $75,000 for project transfers that can be approved the City Manager;
WHEREAS, the City Council directed staff to include language restricting transfers related to the Concord Naval Weapons Station and requiring City Council authority for all transfers related to it in the amendments to Policy and Procedure No. 31, Budget Appropriation Transfer Controls on March 8, 2022; and
WHEREAS, the amendments provide concepts and processes to help protect City resources and long-term fiscal health.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD DOES RESOLVE AS FOLLOWS:

Section 1. None of the activities addressed herein constitute a “project” within the meaning of Public Resources Code Section 21065, 14 Cal Code Regs. Section 15060(c)(2), 15060(c)(3), or 15378 because none of the activities has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, even if any activity was a project under CEQA, each is exempt under 14 Cal. Code Regs. Sections 15061(b)(2), 15061(b)(3), and 15378(b)(4).

Section 2. The City Council amends Policy and Procedure No. 31, Budget Appropriation Transfer Controls to make changes to update City practices, as shown on Exhibit A.

Section 3. This resolution shall become effective immediately upon its passage and adoption.

PASSED AND ADOPTED by the City Council of the City of Concord on April 26, 2022, by the following vote:

Attachment 1
Res No. 21-XX 2
AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing Resolution No. 22-XX was duly and regularly adopted at a regular meeting of the City Council of the City of Concord on April 26, 2022.

Joelle Fockler, MMC
City Clerk
APPROVED AS TO FORM:

Susanne Meyer Brown
City Attorney
Attachment: Exhibit A, Policy & Procedure No. 31, Budget Appropriation Transfer Controls

CITY OF CONCORD
Number:

Authority:

Effective:

Revised:

POLICY & PROCEDURE Reviewed:

Initiating Dept.:
31 Res. 3440.82
4-02-73
04-26-2022
FI

BUDGET APPROPRIATION TRANSFER CONTROLS

1. PURPOSE
To provide a procedure allowing for efficient and cost effective transfers of budgeted funds between City programs, capital projects and line item accounts.

2. POLICY
The City Council recognizes the benefit of adopting a policy for the processing of budget transfers that not only provides for strong internal financial controls, but also encourages improved accountability and budgetary estimates from Department Heads. An integral part of the process should be increased responsiveness, cost effectiveness and elimination of redundant tasks.

3. BUDGET TRANSFER CATEGORIES

3.1 Department Groups
Budget amounts which are assigned to a specific organizational function consisting of programs related in nature or purpose.

3.11 Examples: Departments covere d by this section include such functions as City Management, City Attorney, Human Resources, Finance, Information Technology, Community Development& Recreation Services , Public Works , – Maintenance Services, Public Works- Engineering Services, Planning & Economic Development & Base Reuse , Building & Neighborhood Services Parks & Recreation, and Police Services.

3.2 Program Groups
Budget amounts which are assigned to a specific organizational function within a department directed to attaining specific purposes or objectives.

3.21 Examples: Programs covered by this section include such functions as City Council, Recruitment and Selection, Network Systems, Finance Administration, Sports and Events, Traffic Operations, Design, Police Operations, Planning, Housing, etc.

3.3 Projects
Budget amounts assigned to projects approved by the City Council. Projects are classified into two general categories; Capital Projects and Other Projects. Capital Projects are projects related to City infrastructure assets. Other Projects are projects not related to City infrastructure assets.

3.31 Capital Projects consist of Specific Projects and Master Projects.

3.311 Specific Projects are one-time projects. An example is the construction of a new police facility which becomes a City asset.

Exhibit A to Attachment 1

POLICY & PROCEDURE NO. 31

or all of the a

3.312 Master Projects are related to programs that receive annual funding for a particular purpose, such as street rehabilitation or building maintenance. The programs are implemented through specific projects. The schedule for implementing specifi c projects is based on the prioritization criteria established by the appropriate department. An example of a Master Project is “Arterial/collector Street Overlay/Pavement Management System .” An ex ample of a specific project is Willow Pass Pavement Rehabilitation.

3.32 Other Projects are not related to infrastructure asset. An example would be the California Symphony production.

3.4 Group Appropriation and Accounts
Budgeted amounts within programs which are categorized by nature or purpose within four groups:

Personnel Services (Wages & Benefits)
Materials and Supplies
Fixed Expenses
Capital Outlay

3.41 Examples: Line item accounts addressed in this section include but are not limited to Overtime, Office Supplies, Meetings and Conferences, Small Equipment, etc.

3.5 Appropriations of Money Received for Specific Purposes Money received for specific purposes requires the establishment of an appropriation and revenue account of equal value. Purposes include a study for a possible or pending improvement or to construct a possible or pending improvement or other designated purposes.

3.51 Example: A developer payment to fund a traffic study.

4. PROCEDURE – LEVEL AND TYPES OF BUDGET TRANSFERS

4.1 General

4.11 All transfers of appropriations are to be processed through the Finance Director for certification as to availability of the budget appropriation, for transfer and account correctness and to ensure that the new use of funds remains consistent with underlying authority.

4.12 All transfers of appropriations affecting Personnel Services type accounts require the approval of the Human Resources Director.

4.13 The City Manager may add requirements that may abrogate any or all of the authority delegated to Department Heads under this policy.

4.2 Program Group Appropriation Transfers (Accounts)

4.21 These transfers are between the groups defined in Paragraph 3.2. In addition to the requirements stated in Section 4.1, the following approvals are required:

4.22 City Council approval is not required for program group transfers.

POLICY & PROCEDURE NO. 31

ived for specif

4.23 Program group transfers of Personnel services type accounts within the same fund and department require Department Head and City Manager approval.

4.24 Program group transfers of Personnel services type accounts between funds within the same department require Department Head and City Manager approval.

4.25 Program group transfers of Materials and Supplies type accounts within the same fund and department require Department Head approval.

4.26 Program group transfers of Materials and Supplies type accounts between funds within the same department require Department Head and City Manager approval.

4.27 Department Heads may approve requests within their department’s budget to convert operating line item accounts into project accounts provided no addition is made to the original appropriation approved by the City Council and no changes are made to the funding source or purpose for which the appropriation was originally made.

4.28 Department Heads may spend more than is budgeted in a line item account p rovided the budget for the entire program is not exceeded in total.

4.29 Department Heads may substitute the purchase of a capital equipment item for another originally approved during the budget process provided the cost of the substitute item is less than or equal to the amount approved by the City Council. Items greater than that amount require the approval of the City Manager.

4.3 Department Appropriation Transfers
These transfers are between the departments defined in Paragraph 3.1. In addition to the requirements stated in Section 4.1, the following approvals are required:

4.31 Department Heads may transfer budget appropriations between departments. The approval of all Department Heads involved in the transfer is required.

4.32 Department budget appropriation transfers between departments require the approval of the City Manager.

4.4 Appropriations of Money Received for Specific Purpose These offsetting budget adjustments are defined in Paragraph 3.5

4.41 Offsetting budget appropriation adjustments required as a result of the receipt of money for specific purposes require Department Head approval.

4.42 Budget appropriation adjustments greater than the money received for specific purposes require City Manager and City Council approval.

4.5 Project Appropriation Transfers
Paragraph 3.3 describes these transfers.

4.51 All Project appropriation transfers require City Manager approval.Transfers to or from a project up to a cumulative $75,000 per project require Department Head and City Manager approval.

4.52 Additional appropriations of $20,000 or more for projects require City Council approv- al.Additional transfers to or from a project over $75,000 cumulatively per project require City Council approval.

4.53 Transfer of savings on a project of $20,000 or more to another project requires City Council approval.

POLICY & PROCEDURE NO. 31

4.53 All transfers into or out of the Concord Community Reuse Project for the Concord Naval Weapons Station require City Council approval.

4.54 Any unspent funds on a completed Project will be returned to reserves at year-end.

4.6 Special Revenue Appropriation

4.61 Budget appropriations based on funds provided by donations, contributions or special grants.

4.62 The special revenue appropriation is limited to the exact amount received or to be received.

4.63 The City Manager must approve special revenue budget appropriations.

4.64 Budget appropriations engendered by grants, donations or contributions require City Council approval.

4.7 Transfers Between Funds and Interfund Loans

4.71 Each fund exists as a separate financing entity from other funds, with its own revenue sources, expenditures, and fund equity.

4.72 Transfers between funds consist of transferring resources from one fund to another.

Interfund loans are advances from one fund to another with the expectation of repayment through the collection of principal payments and interest.

4.73 When possible, transfers between funds that support operating purposes should be clearly described in the Biennial Budget.

4.74 Interfund borrowing in the form of a transfer between funds is allowed so long as the fiduciary purpose for that fund is met.

4.75 Transfers between funds may be approved by the Department Head and City Manager if they are within the same program. All other transfers between funds and loans require City Council approval obtained by the approval of the Biennial Budget or through budget amendment.

Staff Report
Date: April 26, 2022
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Kevin Marstall, PE, Director of Community Development [email protected]
(925) 671-3257
Subject: Considering introduction of an Ordinance amending Concord Municipal Code, Title 12 (Streets & Sidewalks), Chapter 12.15, Street Encroachments, to add a moratorium on and require enhanced restoration for certain street cuts within a five year period in order to formally define a moratoria of trenching on streets that have received maintenance or rehabilitation within a period of five (5) years, and either prohibit encroachments or, by exception granted by the City Engineer, to require enhanced restoration during the moratorium period, by
reading of the title only and waiving further reading.

CEQA: Not a project/exempt under CEQA Guidelines Sections 15060(c)(2), 15061(b)(3), 15378, 15301, 15302, 15303, and/or 15304.

Report in Brief
The proposed Ordinance would amend the Concord Municipal Code to formally define a moratoria of trenching on streets that have received maintenance or rehabilitation within a period of five (5) years, and either prohibit encroachments or, by exception granted by the City Engineer, to require enhanced restoration during the moratorium period.

Recommended Action
Introduce the attached Ordinance (Attachment 1) by reading of title only and waiving further reading.

4.e4.e4.e4.e4.e

City Council Agenda Report
Agenda Item No. 4.e
April 26, 2022
Background
In October 2017, as part of the Broadband Master Plan, the Information Technology Department originated a study into a potential Dig-Once Policy, from which the consultant made a recommendation for the City of Concord to formally codify regulations pertaining to street moratoria which would prohibit trench excavation within roadways having been improved over the prior five (5) years.

On June 21, 2018, City staff conducted a Dig-Once Policy Workshop attended by representatives of the majority of utilities operating within the City, at which staff shared the draft Ordinance to solicit comments, in anticipation of presenting to the Policy Development & Internal Operations (PD&IO) Council Committee on August 13, 2018.

Subsequently, in December 2018, a determination was made to focus on negotiating reimbursement agreements with providers for specific projects, rather than pursuing an Ordinance, and it was not brought to City Council for consideration.

Through 2019, the language to incorporate Street Moratoria into Concord Municipal Code was developed but, with the onset of the COVID-19 pandemic and resulting staff changes, the item was not prioritized.

In 2020, separate water and gas main replacement projects by the Contra Costa Water District (CCWD) and Pacific Gas & Electric (PG&E), respectively, impacted two (2) of Concord’s residential neighborhoods: Turtle Creek and Holbrook. Each of these projects required extensive trench excavations by the utility companies, and although the local street restoration performed as part of the projects met the City standards and repaired the roadways to a better structural integrity than existed prior to the project, neighbors expressed concern about the look of the street and worried their streets were degraded in the process, which led to staff reviewing and recommending revisions to the current City standard drawing for trench restoration.

On January 27, 2021, City staff presented information to the Infrastructure & Franchise Committee (Chair Obringer/Hoffmeister) considering direction to staff for enhanced roadway restoration standards, and also took the opportunity to recommend incorporating the previously developed street moratorium provisions into the Streets & Sidewalks Ordinance for an amendment to Municipal Code by City Council.

As a result of the I&F Committee recommendations, the Standard Drawing was revised under the authority of the City Engineer to incorporate enhanced restoration, and the Ordinance is now being forwarded to the City Council for formal adoption of the street moratoria language into Title 12.

Analysis
As an outcome from the review of surrounding standards and municipal code sections in other cities, it became apparent to City staff that most jurisdictions had included moratorium street (as defined below) limitations and special restoration requirements in

City Council Agenda Report
Agenda Item No. 4.e
April 26, 2022
their Ordinances. Currently, Concord includes a note on the City Standard Detail, S-17, which states “that new trench excavation shall not be allowed on streets that have been resurfaced or slurry sealed within the last five (5) years. If new excavation is approved, restoration shall be required by the City Engineer,” however this ‘policy’ is not codified.

Since the draft language for Concord to modify the Streets & Sidewalks Ordinance (Title 12) had already been developed through staff work done in 2019, staff recommends incorporating those code revisions to strengthen the existing enforcement and protection of street moratoria, as applicable to utility trenching, which are included below.

Proposed Revisions to City Ordinance
Staff proposes the following Municipal Code revisions to Title 12 for “Moratorium Streets” and “Emergency Work,” associated with the enhanced utility trench restoration recommendations:
 Under Municipal Code Section 12.15.010, add the following definition(s):

City Engineer. Any references to “Superintendent of Streets” as stated in this Chapter shall also refer to “City Engineer,” as defined by section 2.10.150.

Moratorium Street. Any block that has been reconstructed, repaved, or resurfaced by the City of Concord or any other owner or person in the preceding five year period, or slurry sealed in the preceding two year period.  Add the following new Municipal Code Section 12.15.055:

12.15.055 Street cut moratorium
No applications will be accepted, nor permits issued therefor, to excavate in any moratorium street, unless otherwise provided in this article for emergency work. (a) Temporary Prohibition after Construction or Reconstruction. On a paved, constructed, or reconstructed street, the pavement surface shall not be cut or otherwise opened for any encroachment for a five (5) year period after such pavement, construction or reconstruction is completed. On a slurry sealed street, the pavement surface shall not be cut or otherwise opened for any encroachment for a two (2) year period after such pavement, construction or reconstruction is completed.
(b) Exceptions. (1) Upon a written request by an applicant, the City Engineer may grant exceptions to a moratorium imposed on any street under CMC §

12.15.055 for (A) emergencies that endanger life or property; (B) work necessary to prevent essential utility service interruptions or restore such services after an interruption; (C) any work mandated by any federal, state or City legislation; (D) situations in which the applicant has no other reasonable means to provide utility service to a building; or (E) any other situation in which the City Engineer deems an exception to be in the City’s and its residents’ best interests.

City Council Agenda Report
Agenda Item No. 4.e
April 26, 2022
(2) The City Engineer may impose conditions on any exception that, in the City Engineer’s determination, are necessary or appropriate to rapidly and completely restore the street and/or pavement surface, which may include, without limitation, base and sub-base repairs, curb replacement and/or restoration, repainting and/or restoring street markings and repaving the street over its full width and/or to any other natural breakpoint in the pavement surface. All such restoration work shall be (A) performed at the applicant’s sole cost and expense; (B) performed in accordance with all applicable provisions in CMC Title 12 and the City’s Standard Specifications for public improvements; and (C) completed within 90 days after the applicant completes the work for which the exception was granted.  Add the inserted language under Municipal Code Section 12.15.060, as follows:

12.15.060 Emergency work.

This article shall not prevent any person from maintaining any pipe or conduit lawfully on or under any public street, or from making excavation as may be necessary for the preservation of life or property or for the restoration of interrupted service when an urgent necessity therefor arises during the hours the offices of the city are closed, except that the person making an emergency use or encroachment on a public street shall apply for a permit therefor within one calendar day after the offices of the city are again opened.
(Code 1965, § 7205; Code 2002, § 90-206. Ord. No. 687)
Financial Impact
There would be no immediate fiscal impact with the adoption of the recommended Ordinance. If enhanced restoration standards are implemented, the savings on routine pavement maintenance over time might be significant, considering the overall pavement condition citywide would not deteriorate as quickly.

Environmental Determination
The approval of Ordinance language establishing Street Moratoria is not an activity that constitutes a “project” within the meaning of CEQA Guidelines Section 15060(c)(2) and CEQA Guidelines Section 15378; if this were determined to be a “project” for CEQA analysis, this activity falls within the “Common Sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3) or is Categorically Exempt from the requirement for preparation of an environmental document as provided for in CEQA Guidelines Section 15301 “Existing Facilities”, CEQA Guidelines Section 15302 “Replacement and Reconstruction”, Section 15303 “New Construction or Conversion of Small Structures,” or Section 15304 “Minor Alterations to Land” as the project involves construction and restoration on existing streets. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgment and analysis.

City Council Agenda Report
Agenda Item No. 4.e
April 26, 2022
Public Contact
The City Council Agenda was posted. Notification was published in the East Bay Times, as required by state law and the Concord Municipal Code. This item has also been posted at City Hall at least 10 days prior to the public hearing. Utility companies were also noticed of this meeting, including CCWD and PG&E.

Attachments

1. Ordinance with Exhibit A, various text amendments to the Streets & Sidewalks Code

2. January 27, 2021, Annotated Agenda for Infrastructure & Franchise Committee

3. Concord City Standard Detail for Trench Restoration, S-17

Ord. No. 22-XX 1
ORDINANCE NO. 22-XX
AN ORDINANCE AMENDING CONCORD MUNICIPAL CODE, TITLE 12
(STREETS & SIDEWALKS), CHAPTER 12.15, STREET ENCROACHMENTS

TO ADD A MORATORIUM ON AND REQUIRE ENHANCED RESTORATION FOR CERTAIN STREET CUTS WITHIN A FIVE YEAR PERIOD_

WHEREAS, Government Code Section 65800 et seq. provides for the amendment of any and all adopted City of Concord (“City”) zoning laws, ordinances, rules and regulations; and WHEREAS, in preparation of the March 2018 City of Concord Broadband Master Plan, the City and its consultant identified the recommendation to adopt street moratorium language into the Concord Municipal Code; and
WHEREAS, on January 27, 2021, the City Council Committee on Infrastructure & Franchise (hereafter referred to as “Committee”) approved the draft language and directed staff to prepare an Ordinance update to Chapter 12.15 of Title 12 (Streets & Sidewalks Code); and WHEREAS, the amendments collectively are shown in the form of the proposed Chapter

12.15 Street Encroachments code section, attached hereto as Exhibit A (hereafter referred to as “Amendment”) and incorporated by reference; and
WHEREAS, the City Council, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing on April 26, 2022, on the proposed Amendment; and
WHEREAS, at such public hearing, the City Council considered all oral and written information, testimony, and comments received during the public review process, including the oral report from City staff, the written report from City staff dated April 26, 2022, materials, exhibits presented, the Streets & Sidewalks Code, and all other information that constitutes the record of proceedings relating to the proposed Amendment, which are maintained at the offices of the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord, CA (collectively, “Amendment Information”); and
THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS FOLLOWS:

Section 1. All the facts set forth in the Recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

Attachment 1

Ord. No. 22-XX 2
Section 2. The City Council has reviewed, considered, and evaluated all of the Amendment Information, all other pertinent plans, documents and testimony prior to acting upon Ordinance.

Section 3. The documents and other materials that constitute the record of proceedings upon which the City Council has based its decision are located in and may be obtained from the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord, CA 94519.

Section 4. In accordance with CEQA Guidelines Sections 15060(c)(2) and 15378, the approval of Ordinance language establishing Street Moratoria is not an activity that constitutes a “project”, if this were determined to be a “project” for CEQA analysis, this activity falls within either the “Common Sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3) or is Categorically Exempt from the requirement for preparation of an environmental document as provided for in CEQA Guidelines Sections 15301 - 15304. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgement and analysis.

Section 5. The Amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City because the Amendment concerns codifying street moratorium language which existed as part of the City standard drawing for trench restoration.

Section 6. Concord Municipal Code, Title 12 (Streets & Sidewalks Code), Chapter 12.15, Street Encroachments, is hereby amended as set forth in Exhibit A attached hereto and made a part hereof.

Section 7. Severability. If any section, subsection, clause, or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, or its application to any other person or circumstance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause, or phrase be declared invalid.

Section 8. This ordinance shall become effective thirty (30) days following passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least

Ord. No. 22-XX 3
five (5) days prior to its adoption and within fifteen (15) days after its adoption, including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorney’s Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the East Bay Times, a newspaper of general circulation in the City of Concord.

Dominic Aliano
Mayor
ATTEST:

Joelle Fockl
City Clerk
(Seal)

Ordinance No. 22-XX was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on April 26, 2022, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council held on May 24, 2022, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California.

By:

Joelle Fockler
City Clerk

Ord. No. 22-XX 4
Attachment: Exhibit A: Amended Title 12 (Streets & Sidewalks Code), Chapter 12.15 Street Encroachments

1 COMMITTEE MEMBERS
Carlyn S. Obringer, Chair
Laura M. Hoffmeister, Member

Civic Center
1950 Parkside Drive
Concord, CA 94519
www.cityofconcord.org

ANNOTATED
Special Meeting of the
Infrastructure and
Franchise Committee

Wednesday
January 27, 2021 5:30 p.m. various
telephonic/electronic
locations

The Contra Costa County Health Department has ordered individuals in Contra Costa County to “shelter in place”. The California Department of Public Health issued its “Mass Gatherings Guidance on Novel Coronavirus or COVID-19” followed by a recommendation that certain gatherings in California be postponed or canceled. The Governor of the State of California issued Executive Order N-25-20 which, among other things, orders that all California residents are to “. . . heed any orders and guidance of state and local public health officials, including but not limited to the imposition of social distancing measures, to control the spread of COVID-19” and pursuant to Executive Order N-33-20 has ordered all individuals in California to stay home or at their place of residence with very limited exceptions. That means residents must obey State, County, and City of Concord rules and guidelines.

City of Concord Rules: The City of Concord has declared a local state of emergency due to COVID-19 and is closed to the public. This Committee meeting is an essential event; therefore, it has not been cancelled. However, City of Concord officials and staff will conduct this meeting telephonically or otherwise electronically. The City will not make available any physical location from which members of the public may observe the meeting and offer public comment. Instead, members of the public may observe and address the meeting remotely.

Below is information on how to do that.

Attachment 2

2 Join from a PC, Mac, iPad, iPhone or Android device:
https://cityofconcord.zoom.us/j/93410267833?pwd=dU4ySUQ1YjYxNHR1Nzl5SFY0UnBUUT09

Webinar ID: 934 1026 7833
Passcode: 148344
By phone: US: +1 669 900 6833

Under California law, public comments at special meetings are limited to subjects on the agenda only. Therefore, public comment will only be taken prior to Council’s consideration of each item.

How to Submit Public Comments:

Written: All comments received before 3:00 pm the day of the meeting will be posted on the City’s website as “Correspondence” under the agenda item and provided to the City Council prior to the meeting.
• Email comments to [email protected].
• Please identify the agenda item number and letter.

To Participate in Public Comment During the Meeting:

Live Remote Public Comments: Members of the public may submit a live remote public comment via Zoom video conferencing. Download the Zoom mobile app from the Apple Appstore or Google Play. If you are using a desktop computer, you can test your connection to Zoom by clicking
here. Zoom also allows you to join the meeting by phone. • From a PC, Mac, iPad, iPhone or Android:
• Webinar ID: 934 1026 7833
• Passcode: 148344
• By phone: US: +1 669 900 6833
• Speakers will be asked to provide their name and city of residence, although providing this is not required for participation.
• Each speaker will be afforded up to 3 minutes to speak. • Speakers will be muted until their opportunity to provide public comment.

When the Chair opens a public comment period on the item on which you would like to comment, please use the “raise hand” feature (or press *9 if connecting via telephone) which will alert staff that you have a comment to provide.

3 Meeting of the
Infrastructure and Franchise Committee

1. ROLL CALL - all present

2. REPORTS
The public is entitled to address the Committee on items appearing on the agenda before or during the Committee’s consideration of that item. Each speaker will be limited to approximately three minutes. Please see “How to Submit Public Comments” above.

a. Considering – adoption of enhanced Roadway Restoration standards, and recommending staff prepare an update to Streets and Sidewalk Ordinance for presentation to full City Council. Report by Kevin Marstall, City Engineer.

ACTION: City Engineer Kevin Marstall provided an oral report and presentation. After a question and answer period, public comments were received. Rachel Murphy of Contra Costa Water District was present and spoke on the subject. Vic Baker of PG&E was present and also spoke. Suzanne Delbou of Holbrook Heights HOA was present and spoke on the subject. Following further discussion, the Committee directed staff to implement proposed standard detail revisions, work closely with utility companies to maximize surface restoration, and to bring an update to Title 12: Streets and Sidewalk Ordinance to full City Council at a future date (not specified).

3. ADJOURNMENT 7:13 p.m.

NOTICE TO THE PUBLIC
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders which require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6).

Further, if you challenge an action taken by the City Council in court, you may be limited by California law to raising only those issues you or someone else raised in the hearing or in a written correspondence delivered to the City Council prior to or at the hearing.

In accordance with the Americans with Disabilities Act and California Law, it is the policy of the City of Concord to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including those with disabilities. If you are disabled and require a copy of a public hearing notice, or an agenda and/or agenda packet in an appropriate alternative format; or if you require other accommodation, please contact the ADA Coordinator Tianjun Cao at (925) 671-3243 or [email protected]
, at least 24 hours in advance of the meeting. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility.

Distribution: City Council
Valerie Barone, City Manager
Susanne Brown, City Attorney
Justin Ezell, Director of Public Works
Joelle Fockler, City Clerk

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019.

Chapter 12.15

STREET ENCROACHMENTS
Sections:

Article I. General

12.15.010 Definitions.

12.15.020 Exemptions.

12.15.030 Restriction of use.

12.15.040 Permit required and encroachment agreement required.

12.15.050 Prohibited encroachments.

12.15.055 Street cut moratorium.

12.15.060 Emergency work.

12.15.070 Painting of paved surfaces.

12.15.080 Appeal.

Article II. Permits and Fees

12.15.090 Authority to issue permits and approve encroachment agreements.

12.15.100 Application for permit; issuance.

12.15.110 Form of encroachment agreement; form of permit; term; display; transfer; changes in permit or work.

12.15.120 Fees.

12.15.130 Bonds; insurance.

Article III. Standards for Work

12.15.140 Liability; indemnification of city.

12.15.150 Public safety requirements.

12.15.160 Facilitation of traffic flow.

12.15.170 Notices.

12.15.180 Care of drainage.

12.15.190 Specific standards.

Article I. General

12.15.010 Definitions.

For the purpose of this article, the following words and phrases shall have the meanings ascribed to them as follows:

City. The City of Concord, a municipal corporation.

City Engineer. Any references to “Superintendent of Streets” as stated in this Chapter shall also refer to “City Engineer,” as defined by section 2.10.150.

Encroach or encroachment. Going over, upon, under, or using any right-of-way or watercourse in such a manner as to prevent, obstruct, or interfere with its normal use, including the performance thereon of any of the following acts:
(1) excavating, filling, or disturbing the right-of-way or watercourse; (2) erecting or maintaining any flag, banner, decoration, post, sign, pole, fence, guardrail, wall, loading platform, mailbox, pipe, conduit, wire, or other structure on, over, or under a right-of-way or watercourse; (3) planting any tree, shrub, grass or other growing thing within a right-of-way or watercourse; (4) placing or leaving on a right-of-way or watercourse any rubbish, brush, earth, or other material of any nature whatsoever; (5) constructing, placing, or maintaining on, over, under, or within the right-of-way any pathway, sidewalk, driveway, curb, gutter, paving, or other surface or subsurface drainage structure or facility, any pipe, conduit, wire, or cable; (6) traveling on the right-of-way by any vehicle or combination of vehicles or object of dimension, weight, or other characteristic prohibited by law without a permit; (7) lighting or building a fire; (8) constructing, placing, planting, or maintaining any structure, embankment, Exhibit A to Attachment 2

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. excavation, tree, or other object adjacent to a right-of-way or watercourse which causes or will cause an encroachment.

Encroachment agreement. An agreement between the permittee and the City for the installation, construction, creation, revision, operation, and maintenance of encroachment, including the removal of such encroachment.

Moratorium Street. Any block that has been reconstructed, repaved, or resurfaced by the City of Concord or any other owner or person in the preceding five year period, or slurry sealed in the preceding two year period.

Permittee. Any person, firm, or corporation that proposes to do work or encroach upon a right-of-way or watercourse as herein defined and has been issued a permit for such encroachment by the Director of Public Works.

Private contract. A contract between two or more parties for the installation, construction, revision, operation, or creation of an encroachment, to which contract the city is not a party.

Public street. The full width of the right-of-way of any road, street, highway, alley, lane, or pedestrian walkway used by or for the general public, whether or not said road, street, highway, alley, lane, or pedestrian right-of-way has been improved or accepted for maintenance by the city, except streets and highways forming part of the state highway system.

Right-of-way. Land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for and dedicated to the general public for street, highway, alley, public utility, or pedestrian walkway purposes.

Superintendent of Streets. The City Engineer, Public Works Director, or his authorized agent.

Watercourse. A channel for the carrying of stormwater, including both natural and artificial watercourses. (Code 1965, § 7200; Code 2002, § 90-201. Ord. No. 687; Ord. No. 02-8) Cross references: Definitions generally, § 1.05.100.

12.15.020 Exemptions.

This article shall not apply to officers or employees of the city acting in the discharge of their official duties or to any work being performed by any person, firm, or corporation pursuant to a contract with the city. (Code 1965, § 7201; Code 2002, § 90-202. Ord. No. 687)

12.15.030 Restriction of use.

All permits granted subject to this article shall be subject to the right of the city, and any person or persons entitled thereto, to use any part of a public right-of-way for any purpose for which it may be lawfully used, and no part of a right-of-way may be unduly obstructed at any time.
(Code 1965, § 7202; Code 2002, § 90-203. Ord. No. 687)

12.15.040 Permit required and encroachment agreement required. (a) Permits. No person shall encroach or cause to be made any encroachment of any nature whatever within, upon, over, or under the limits of any right-of-way or watercourse; or make or cause to be made any alteration of any nature within, upon, over, or under such right-of-way or watercourse; or construct, put upon, maintain or leave thereon, or cause to be constructed, put on, maintained or left thereon, any obstruction or impediment of any nature whatsoever; or remove, cut, or trim trees thereon; or set a fire thereon; or place on, over, or under such right-of-way any pipeline, conduit, or other fixtures; or move over or cause to be moved over the surface of any right-of-way or over any bridge, viaduct, or other structure maintained by the City any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the right-of- way; or place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment in such a way as to endanger the normal usage of the right-of-way or watercourse without having first obtained a permit as required by this article.

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. (b) Encroachment agreements. No applicant shall be granted a permit for an encroachment that is planned to continue for an indefinite period of time without first entering into an encroachment agreement with the City. No encroachment agreement shall be considered or approved if the applicant has an application for a discretionary permit, license or other entitlement pending before an approving body of the City until final action on the application has been taken by the approving body.
(Code 1965, § 7203; Code 2002, § 90-204. Ord. No. 687; Ord. No. 02-8)

12.15.050 Prohibited encroachments.

The following encroachments are specifically prohibited and no applications will be accepted nor permits issued therefor:
(1) Construction or maintenance of a loading dock on or in a public right-of-way; (2) Erection or maintenance of a post, pole, column, or structure for the support of advertising signs; (3) Installation or maintenance of underground tanks, vaults, or elevators, except that underground vaults may be permitted as a part of facilities owned by public utilities; (4) Erection, installation, or maintenance of posts, poles, or columns for the purpose of carrying lights intended primarily for lighting of abutting private property;
(5) Installation or maintenance of signs bearing flashing or moving lights, except for temporary warning signs, barricades, or flashers required for protection of the public during construction operations; (6) Construction or placement of any fill, wall, pipe, column, pole, fence, tree, shrub or any other thing which would constrict and reduce the capacity of any watercourse to carry stormwater. (Code 1965, § 7204; Code 2002, § 90-205. Ord. No. 687; Ord. No. 932)

12.15.055 Street cut moratorium
(a) Temporary moratorium after paving, construction, or reconstruction of public streets. On any paved, constructed or reconstructed public street, the pavement surface shall not be cut or otherwise opened for any encroachment for a five (5) year period after such pavement, construction or reconstruction is completed. On a slurry sealed street, the pavement surface shall not be cut or otherwise opened for any encroachment for a two (2) year period after such pavement, construction or reconstruction is completed.
(b) Exceptions. Upon a written request by an applicant, the City Engineer may grant an exception to the moratorium imposed on any public street under this section based a determination by the City Engineer of any of the following:
(1) For emergencies that endanger life or property;
(2) For work necessary to prevent essential utility service interruptions or restore such services after an interruption;
(3) For any work mandated by any federal, state or City legislation; (4) For situations in which the applicant has no other feasible means to provide utility service to a building; (5) Or for any other situation in which the City Engineer deems an exception to be in the City’s and the residents’ best interests.
(c) Conditions may be imposed. The City Engineer may impose conditions on any exception granted under this section that, in the City Engineer’s determination, are necessary or appropriate to rapidly and completely restore the street and/or pavement surface, which may include, without limitation, base and sub-base repairs, curb replacement and/or restoration, repainting and/or restoring street markings and repaving the street over its full width and/or to any other natural breakpoint in the pavement surface. All such restoration work shall be: (1) performed at the applicant’s sole cost and expense; (2) performed in accordance with all applicable provisions in Title 12 and the

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019.

City’s Standard Specifications for public improvements; and, (3) completed within 90 days after the applicant completes the work for which the exception was granted.

12.15.060 Emergency work.

This article shall not prevent any person from maintaining any pipe or conduit lawfully on or under any public street, or from making excavation as may be necessary for the preservation of life or property or for the restoration of interrupted service when an urgent necessity therefor arises during the hours the offices of the city are closed, except that the person making an emergency use or encroachment on a public street shall apply for a permit therefor within one calendar day after the offices of the city are again opened. (Code 1965, § 7205; Code 2002, § 90-206. Ord. No. 687)

12.15.070 Painting of paved surfaces.

It shall be unlawful for any person to apply paint or other permanent marking substance to any paved surface or curbs, except for official traffic markings made by the city or its agents and markings of underground facilities in connection with construction or maintenance work; provided, however, that home street numbers may be painted or applied to city curbs if the applicant shall first procure an encroachment permit as set forth in this article. (Code 1965, § 7206; Code 2002, § 90-207. Ord. No. 932)

12.15.080 Appeal.

Any person aggrieved by the actions of any administrative official of the city may appeal said decision to the City Council. Such appeal shall be in accordance with section 2.05.050 of this Code. The City Council may affirm, modify, or reverse the action of the administrative official. (Code 1965, § 7230; Code 2002, § 90-208. Ord. No. 845)
Article II. Permits and Fees

12.15.090 Authority to issue permits and approve encroachment agreements.

The written permits required by this article shall be issued by the superintendent of streets, subject to the provisions of this article and other applicable laws.

Encroachment agreements required by this article may be approved by the City Manager. (Code 1965, § 7210; Code 2002, § 90-231. Ord. No. 687; Ord. No. 02-8)

12.15.100 Application for permit; issuance.
(a) Application form. The Superintendent of Streets shall prescribe and provide a regular form of applications for the use of applicants for permits required by this article. The application shall show such information and details as the Superintendent of Streets may deem necessary to establish the exact location, nature, dimensions, duration, and purpose of the proposed use or encroachment.
(b) Exhibits. When required by the Superintendent of Streets, the application shall be accompanied by maps, sketches, diagrams, or similar exhibits to the size and in the quantity as the Superintendent of Streets may prescribe, sufficient to clearly illustrate the location, dimensions, nature, and purpose of the proposed encroachment and its relation to existing and proposed facilities in the right-of-way or watercourse. (c) Consent of public agencies required. The applicant shall also enclose with, attach, or add to the application the written order or consent to any work thereunder which may be required by law to be obtained. A permit shall not be issued until and unless such order or consent is first obtained and evidence thereof filed with the Superintendent of Streets. The permittee shall keep himself adequately informed of all state and federal laws and local ordinances and regulations which in any manner affect the permit. The applicant shall at all times comply with and shall cause all his agents and employees to comply with all such laws, ordinances, regulations, decisions, and court and similar authoritative orders.
(d) Action on application; issuance of permit. Applications may be approved, conditionally approved, or denied.

Where the Superintendent of Streets finds that the application is in accordance with the requirements of this article,

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. he shall issue a permit for the use or encroachment, attaching such conditions as he may deem necessary for the health, safety, and welfare of the public and for the protection of the city. If the Superintendent of Streets finds the application is in conflict with the provisions of this article, he shall deny the permit, giving in writing the reasons for said denial.
(Code 1965, § 7211; Code 2002, § 90-232. Ord. No. 687)

12.15.110 Form of encroachment agreement; form of permit; term; display; transfer; changes in permit or work.
(a) Form and validity. Permits must be written on a form prescribed by the Superintendent of Streets. No permit shall be valid unless signed by the Superintendent of Streets or his authorized representative. Encroachment agreements shall be in a form acceptable to the City Attorney and shall be recorded in the Office of the County Recorder.
(b) Time limit for beginning work. The permittee shall begin the work or use authorized by a permit issued pursuant to this article within 90 days from date of issuance, unless a different period is stated in the permit. If the work or use is not begun accordingly, then the permit shall become void. (c) Time limit for completion of work. The permittee shall complete the work or use authorized by a permit issued pursuant to this article within the time specified in the permit. If at any time the Superintendent of Streets finds that the delay in the prosecution of completion of the work or use authorized is due to lack of diligence on the part of the permittee, he may cancel the permit and restore the right-of-way or watercourse to its former condition. The permittee shall reimburse the city for all expenses by the Superintendent of Streets in restoring the right-of-way or watercourse.
(d) Display of permit.
(1) The permittee shall keep any permit issued pursuant to this article at the site of work or in the cab of a vehicle when movement thereof on a public street is involved, and the permit must be shown to any authorized representative of the Superintendent of Streets or law enforcement officer on demand. (2) A permit issued for continued use or maintenance of an encroachment may be kept at the place of business of the permittee or otherwise safeguarded during the term of validity, but shall be made available to an authorized representative of the Superintendent of Streets or law enforcement officer within a reasonable time after demand therefor is made.
(e) Nonassignment of permits. Permits shall be issued only to the person, firm, or corporation making application therefor and may not be assigned to another person by the permittee. If any permittee assigns his permit to another, the permit shall become void.
(f) Changes in permit or work. No changes may be made in the location, dimension, character, or duration of the encroachment or use as granted by the permit, except upon written authorization of the Superintendent of Streets; however, the location of underground pipes or conduits smaller than six inches in diameter shall be exempt from this requirement. No permit shall be required for the continuing use or maintenance of encroachments installed by public utilities or for changes therein or thereto where such changes or additions require no excavation of the right-of-way. (Code 1965, § 7212; Code 2002, § 90-233. Ord. No. 687; Ord. No. 02-8)

12.15.120 Fees.
(a) The schedule of fees will be those recommended by the Superintendent of Streets and established and adopted by the City Council from time to time by resolution. Before a permit is issued, the applicant shall deposit, with the city, cash or check in a sufficient sum to cover the fee for issuance of the permit, charges for field investigation, and the fee for necessary inspection, all in accordance with schedule established and adopted by the City Council. (b) Public utilities may, at the Superintendent of Streets’ option, make payment for the above charges as billed by the city instead of advance deposit as required above.
(Code 1965, § 7213; Code 2002, § 90-234. Ord. No. 687; Ord. No. 850)

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019.

12.15.130 Bonds; insurance.
(a) Cash deposits. Unless this part is waived in the permit and before a permit is effective, the permittee shall deposit with the Superintendent of Streets, or agent authorized by resolution of the City Council, cash or a certified or cashier’s check, in the sum to be fixed by the Superintendent of Streets as sufficient to reimburse the city for costs of restoring the right-of-way or watercourse to its former condition, based on the schedules, if any, adopted by resolution of the City Council; provided, however, that the permittee may file a cash deposit on an annual basis in a sum estimated by the Superintendent of Streets as sufficient to cover his activities during any 12-month period. (b) Bond in lieu of cash deposit. In lieu of the cash deposit prescribed by subsection (a) above, the permittee may, upon approval by the Superintendent of Streets, file a cash deposit in the minimum sum established by the schedule, if any, adopted by the City Council and in effect at the time of application for a permit, and the balance of the sum fixed by the Superintendent of Streets as sufficient to reimburse the city expenses incurred in restoring the right-of- way or watercourse to its former condition may be filed in the form of an approved surety bond issued by a company authorized to do a general surety business in the state. (c) Annual bond. In lieu of a cash deposit, the permittee may, upon approval of the Superintendent of Streets, annually file with the Superintendent of Streets an approved surety bond issued by a company authorized to do a general surety business in the state, in a sum fixed by the Superintendent of Streets as sufficient to reimburse the city for expenses to be incurred in restoring the right-of-way or watercourse to its former condition, subject to the schedules, if any, adopted by resolution of the City Council. (d) Bond for continuing use. An applicant for a permit for a use or encroachment, which is to continue or remain within, under, or upon a watercourse or right-of-way of a public highway beyond the time authorized for construction or installation, shall file with the City Clerk a cash deposit or surety bond issued by a company authorized to do a general surety business in the state in a penal sum to be fixed by the Superintendent of Streets as sufficient to reimburse the city for all expenses incurred by the Superintendent of Streets in making the watercourse available for flow of stormwater or in making the right-of-way safe and convenient for the travel of the general public, subject to the schedules, if any, adopted by resolution of the City Council and in effect at the time of application for a permit.
(e) Additional bond or cash deposit. The Superintendent of Streets may require an additional bond or cash deposit at any time when in his opinion the amount of the bond or cash deposit previously made is insufficient, subject to the schedules, if any, adopted for that purpose by the City Council and in effect at the time of application for a permit. (f) Condition of bond and cash deposit. The condition of any bond or cash deposit made pursuant to this division shall be that the permittee will diligently and with good faith comply with this article and the terms and conditions of the permit.
(g) Bond payable to city. Any bond or cash deposit required by the Superintendent of Streets pursuant to this article shall be payable to the city. Upon satisfactory completion of all work authorized in the permit and fulfillment of all conditions of the permit, the bond or cash deposit will be released. (h) Exclusions. Cash deposits or bonds will not be required of any public utility or public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any public street or right-of-way. (i) Insurance. Each person or entity prior to the granting of an encroachment permit shall furnish to the city a certificate showing that such person or entity has then in force a policy of commercial general liability insurance naming the city as an additional insured in an amount of not less than $1,000,000.00 per person or per occurrence combined single limit or some other amount as shall be determined to be acceptable by the Director of Public Works and/or the City Attorney. The permittee shall keep in full force and provide evidence of such policy of insurance to the Director of Public Works during such time as the permittee is performing work in the public right-of-way for which the encroachment permit was issued.
(Code 1965, § 7214; Code 2002, § 90-235. Ord. No. 17; Ord. No. 687)

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019.

Article III. Standards for Work

12.15.140 Liability; indemnification of city.

The permittee shall be responsible for all liability imposed by law for personal injury or property damage proximately caused by work permitted and done by the permittee under permit or proximately caused by failure on the permittee’s part to perform his obligations under said permit in respect to maintenance. If any claim of such liability is made against the city, its officers, or employees, the permittee shall defend, indemnify, and hold them, and each of them, harmless from such claim insofar as permitted by law. (Code 1965, § 7220; Code 2002, § 90-251. Ord. No. 687)

12.15.150 Public safety requirements.
(a) The permittee, in the conduct of the work, use, or maintenance of an encroachment authorized by a permit issued pursuant to this article, shall provide, erect, and/or maintain such lights, barriers, warning signs, patrols, watchguards, and other safeguards as are necessary to protect the traveling public. Any omission on the part of the Superintendent of Streets to specify in the permit what lights, barriers, or other protective measures or devices [are required] shall not excuse the permittee from complying with all requirements of law and appropriate regulations and ordinances for adequately protecting the safety of those using public streets. If, at any time, the Superintendent of Streets finds that suitable safeguards are not being provided, the city may provide, erect, maintain, relocate, or remove such safeguards as are deemed necessary or may cancel the permit and restore the right-of-way to its former condition, all at the expense of the permittee.
(b) A permittee making any excavation or erecting or leaving any obstruction within, under, or upon the right-of- way, or causing the same to be made, erected, or left, shall place and maintain lights at each end of the excavation or obstruction at no more than 50-foot intervals along the excavation or obstruction, from one-half hour before sunset of each day to one-half hour after sunrise of the next day, until the excavation is entirely refilled or the obstruction removed and the right-of-way made safe for use. Reflectorized warning signs conforming to the requirements of the state Division of Highways shall be placed 100 feet in advance of any obstruction or excavation within the traveled way in such a position as to adequately warn vehicular traffic; also, on major streets, additional similar signs shall be placed 400 feet in advance.
(c) Pursuant to the provisions of Government Code § 50022.1 et seq., there is hereby adopted, by reference, as if set forth in full, the United States Department of Transportation’s Work Zone Traffic Control Standards and Guidelines, a copy of which is on file with the Clerk of Council. All warning signs, lights, and other safety devices shall conform to the requirements of the California Vehicle Code and the aforementioned standards and guidelines. (Code 1965, § 7221; Code 2002, § 90-252. Ord. No. 687; Ord. No. 855; Ord. No. 913; Ord. No. 970; Ord. No. 87- 22)

12.15.160 Facilitation of traffic flow.
(a) General standards. The permittee shall give particular attention to facilitating the flow of vehicular and pedestrian traffic. Unless prior written approval is obtained from the Superintendent of Streets, the permittee may not: (1) obstruct more than one-half of the area used by vehicles; (2) obstruct a driveway approach on a developed property, except that, with permission of the occupant of the affected property, a driveway approach may be obstructed when the permittee’s construction personnel are present within 400 feet of the obstructed driveway; and (3) obstruct the area between the curb (or the shoulder if there is no curb) and the right-of-way line in such a way as to create a hazardous path for pedestrians. The use of flagpersons is mandatory (1) where the two-way vehicular traffic has less than 20 feet in which to pass; or (2) where vehicular traffic must pass to the left of dividing islands in passing the site of the encroachment. The permittee may be required to remove excavated material from the site of the encroachment as it is excavated rather than stockpiling it on the street when such removal is necessary to permit traffic to pass freely and safely.
(b) Limited operations areas. The City Council may, from time to time, designate, by resolution, certain public streets to be limited operations areas. The following acts are prohibited in limited operations areas: (1) to conduct construction operations between the hours of 7:00 a.m. and 9:00 a.m. and between the hours of 3:30 p.m. and 6:00 p.m.; and (2) to obstruct more than one traffic lane between the hours of 7:00 a.m. and 10:00 p.m., provided that in the event of emergency the Superintendent of Streets may give permission to vary the requirements of this section.

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. (Code 1965, § 7222; Code 2002, § 90-253. Ord. No. 687)

12.15.170 Notices.
(a) Notices to city. All notices required by this division to be given by the permittees to the Superintendent of Streets shall be given at his office at the City Hall.
(b) Notices to permittee. Any notice to be given to the permittee shall be deemed to have been received by him upon mailing by certified mail to the address shown on the permit. (c) Notification of beginning of work. Before beginning any work which is or includes excavation, construction of concrete sidewalks, curbs, gutters, or driveway approaches; planting, trimming, or removing trees; or making, placing, or causing an obstruction in the watercourse or traveled way, the permittee shall notify the Superintendent of Streets.
(d) Notification of completion of work. The permittee shall, upon completion of all work authorized in the permit, notify the Superintendent of Streets. No work shall be deemed to be completed until notification of completion is given pursuant to this section and the work is accepted by the Superintendent of Streets. (Code 1965, § 7223; Code 2002, § 90-254. Ord. No. 687)

12.15.180 Care of drainage.

If the work, use, or encroachment authorized in the permit issued pursuant to this article shall interfere with the established drainage, the permittee shall provide for proper drainage as directed by the Superintendent of Streets.

Should the permittee fail to properly care for drainage, the Superintendent of Streets shall notify the permittee to take corrective action; if the permittee fails to complete such corrective action immediately upon receiving said notice, the Superintendent of Streets shall take such action as may be necessary to correct the drainage at the expense of the permittee.
(Code 1965, § 7224; Code 2002, § 90-255. Ord. No. 687)

12.15.190 Specific standards.
(a) Inconvenience to public and property owners to be minimized. It shall be incumbent upon the permittee to plan and execute the work or use so as to cause the least inconvenience to the general public and abutting property owners.
(b) Restoring of street. Upon completion of the work, acts, or things for which the permit was issued, or when required by the Superintendent of Streets, the permittee shall replace, repair, or restore the right-of-way or watercourse at the place of work to the same condition existing prior thereto, unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, materials, or rubbish caused or placed within or upon the watercourse or the right-of-way of the public street under the permit, and shall do any other work or perform any act necessary to restore the watercourse or right-of-way to a safe and usable condition. (c) Maintenance of encroachment. After completion of all work, the permittee shall exercise reasonable care in inspecting and maintaining the area affected by the encroachment. For a period of one year after the completion of the work, the permittee shall repair and make good any injury or damage to any portion of the street which occurs as the result of work done under the permit, including any and all injury or damage to the street which would not have occurred had such work not been done. By the acceptance of the permit, the permittee agrees to comply with the above. The permittee shall, upon notice from the Superintendent of Streets, immediately repair any injury, damage, or nuisance in any portion of the right-of-way or watercourse, resulting from the work done under the permit. In the event that the permittee fails to act promptly or should the exigencies of the injury or damage require repairs or replacement to be made before the permittee can be notified or can respond to the notifications, the city may, at its option, make the necessary repairs or replacement or perform the necessary work, and the permittee shall be charged with all the expenses incurred in the performance of the work. (d) Relocation or removal of encroachment. When any encroachment authorized hereunder is found to be in conflict with existing or proposed facilities or improvements owned, maintained, or operated by the city, such encroachment shall, upon written demand of the Superintendent of Streets, be relocated in such a way as to eliminate the conflict,

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. said relocation to be at the sole expense of the permittee. Should the permittee fail to comply with said written demand within a reasonable period of time, the city may cause such relocation of the encroachment at the expense of the permittee; provided, however, that this section shall become inoperative when any right-of-way shall become a freeway and thus cease to be used for the usual street purposes. Provided, further, that this section shall not apply to any public utility possessing a franchise from the city, which franchise, either by express provision or by statute, imposes a relocation obligation upon said public utility. (e) Standards and specifications. The Superintendent of Streets shall establish such standards and specifications as he may deem necessary for the proper construction, use, and maintenance of encroachments. Any work or use done under such permit issued under provisions of this article shall conform to said standards and specifications. In the absence of specific standards and specifications, recognized standards of construction or approved practices shall govern the work or use.
(f) Supervision and inspection of work. The Superintendent of Streets is authorized to make such inspections in person, or through authorized subordinates, as he may deem necessary in connection with permits issued under this article. All work done or uses under such permits shall be under the supervision of, and to the satisfaction of, the Superintendent of Streets.
(g) Storage of materials. Unless otherwise approved by the Superintendent of Streets, no material shall be stored within the traveled way or on any sidewalk; excess earth materials from trenching or other operations shall be removed from the pavement, traveled way, or shoulder as the trench is backfilled or other work carried forward. (h) Installation of pipes and conduits under paved surfaces. Pipes or rigid conduits 2 1/2 inches or less in diameter shall be jacked or otherwise forced underneath paved surfaces, unless otherwise specifically authorized in the permit. Under no circumstances will tunneling be permitted. (i) Minimum cover over pipes. The minimum cover over any and all pipes larger than 2 1/2 inches installed within the right-of-way shall be 36 inches of earth or imported materials measured from the top of curb; where curbs are not level with respect to each other at any section drawn perpendicular to the centerline of the pavement, cover shall be measured from a straight line drawn between the curbs at the section in question. Top-of-curb elevations shall be established by the Superintendent of Streets. Where the above specified cover cannot be maintained due to topography, existing structures, or engineering necessity, the Superintendent of Streets may permit a reduced cover, attaching such additional requirements as he may deem necessary for protection of facilities or improvements in the right-of-way.
(j) Backfill. Backfilling of an excavation shall be in accordance with specifications established by the Superintendent of Streets or as otherwise required by him, both as to material and method; and backfill shall not be placed in any excavation with compaction of the material used therein, the degree and method thereof to be to the satisfaction of the Superintendent of Streets.
(k) Poles and transmission line carriers.
(1) Clearances and types in the construction of poles and transmission line carriers shall be in accordance with rules, regulations, and orders of the Public Utilities Commission and other public agencies having jurisdiction. (2) No guy wires are to be attached to trees without specific authorization to do so in the permit, and in no event shall guy wires be so attached as to girdle the tree or interfere with its growth. Guy wires shall not be below the minimum elevation above the ground prescribed in the rules, orders, and regulations of the Public Utilities Commission.
(3) When a pole, brace, stub, or similar timber is removed and not replaced, the entire length thereof shall be removed from the ground and the hole backfilled and compacted. Where such pole, brace, stub, or similar timber was located in an area paved with concrete, asphalt, or other permanent surfacing, the area occupied shall be trimmed and resurfaced in kind to the satisfaction of the Superintendent of Streets. (l) Cutting exposed concrete pavement. Any cuts made in exposed concrete sidewalk, curb, gutter, driveway, or paving shall be defined by a saw cut to a depth of not less than one-sixth the thickness of said concrete, to a

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. maximum of 1 1/2 inches. All cuts in concrete shall be made to the nearest score line, unless otherwise permitted by the Superintendent of Streets. Cuts in asphalt paving shall be kept as straight and uniform as practicable. The Superintendent of Streets may require removal of additional concrete or asphalt when necessary to present a suitable appearance upon restoration.
(m) Aids to visibility. When the location or position of a pole or other obstruction makes accentuation of its visibility to vehicular traffic necessary, the Superintendent of Streets may require that the pole or other obstruction be painted or equipped with reflectors or other aids to visibility prescribed or authorized by the Public Utilities Commission or the state Department of Public Works at the expense of the permittee. (n) Moving vehicles or objects.
(1) Before a vehicle or combination of vehicles or object of weight or dimension or characteristic prohibited by law without a permit is moved on any public right-of-way, a permit to do so must first be granted by the Superintendent of Streets, as set forth in specifications established by the Superintendent of Streets, or as otherwise required by him.
(2) When authorized by a permit issued pursuant to this article to move a vehicle or combination of vehicles or load of dimension or weight in excess of that permitted by law, the permittee shall comply with the general law regulating traffic over a public street, including posted signs or notices which limit speed or direction of travel, or weight which may be placed upon a structure, or the width or height that may be moved thereon or thereover, or otherwise restrict or control travel on a public street. The permittee shall at all times conform to and abide by the practice and procedure necessary to make safe and convenient the travel of the general public and to keep safe and preserve the public highway over and on which movement is being made. Any violation of this section shall cancel the permit issued to the permittee. (3) Prior to commencing any move for which a permit is granted pursuant to this article and section, the permittee shall give at least 48 hours’ written notice to all Police and Fire Department authorities having jurisdiction.
(o) Mailboxes. All mailboxes must be placed in accordance with the rules and regulations of the United States Post Office Department, but no box shall be so placed within the road right-of-way as to endanger the life or safety of the traveling public. A permit is not required for the placing of mailboxes. (p) Hedges, fences, or shrubbery.
(1) Planting or erection.
a. No hedge, fence, shrub, or similar structure shall be planted, erected, or maintained in a watercourse or right-of-way without a permit.
b. No hedge, shrub, or other planting whatever, fence, or similar structure shall be maintained across any existing walkway in a sidewalk area or shoulder. The intent of this restriction is to keep free a walkway for pedestrian or other lawful public travel without interference by or with vehicular travel. No encroachment of any nature will be permitted or maintained which impedes, obstructs, or denies such pedestrian or other lawful travel within the limits of the right-of-way of a public street, or which impairs adequate sight distance for safe pedestrian or vehicular traffic.
(2) Maintenance. The permittee, or the owner of the adjacent property, shall maintain the hedges, shrubs, walls, fences, or similar structures erected for landscaping purposes in a neat and orderly condition at all times. If the encroachment is not maintained as specified in this article, the Superintendent of Streets may direct the permittee or property owner to remove the encroachment and restore the right-of-way or watercourse to its former condition at the expense of the permittee or property owner. (3) Lawns. Notwithstanding anything contained herein to the contrary, any person may plant and maintain a lawn of any grass or type not prohibited by other law, within the right-of-way of a public street, without a

Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. written permit. However, the lawn shall not extend into the traveled way of the public street nor into the drainage ditches, gutters, or other drainage facilities.

The general public may not be denied the use of the planted area for pedestrian or other lawful travel. The city may use the planted area for any purpose whatever, and may issue a permit to any applicant to go thereon to perform work or otherwise encroach pursuant to this article. If the lawn is damaged or disturbed in the course of an authorized encroachment, it will be removed and replaced by the permittee unless the permit specifically states otherwise.
(q) Irrigation systems. No portion of any irrigation system shall extend above the level of the surrounding ground or pavement. No irrigation system shall be installed in such a way as to direct sprays or streams of water onto or over adjacent street, sidewalk, or driveway areas.
(r) Preservation of monuments. Any monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any public street or right-of-way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed without first obtaining permission from the Superintendent of Streets to do so, said permission to be granted in conformance with requirements as set forth in specifications established by the Superintendent of Streets. Replacement of removed or disturbed monument will be at the expense of the permittee. (s) Maps of underground facilities. Each permittee installing, constructing, or maintaining underground facilities, such as pipes, wires, conduits, or similar structures, under permit granted pursuant to this article shall maintain accurate and complete maps of location, depth, size, and character of such facilities and shall furnish, at no cost to the city, copies of said map to the Superintendent of Streets upon his demand. (t) Public service directional signs. Public service directional signs for churches, hospitals, and similar places of public use may not be erected, placed, maintained without first obtaining a permit hereunder. The City Council may, from time to time, adopt, by resolution, special regulations and fee schedules pertaining to encroachment by such signs.
(Code 1965, § 7225; Code 2002, § 90-256. Ord. No. 687)

ROADWAY AREAS* CONVENTIONAL SECTION
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Attachment 3Page 24 of 30

RESTORATION OF ASPHALT REQUIREMENTS
NOTES:

1. EXISTING PAVEMENTS SHALL BE REMOVED TO CLEAN, STRAIGHT LINES PARALLEL AND PERPENDICULAR TO THE FLOW OF TRAFFIC. DO NOT CONSTRUCT FINAL RESTORATION PATCHES WITH ANGLED SIDES AND IRREGULAR SHAPES.

2. IF A PROPOSED CUT IS WITHIN 10 FT OF AN EXISTING PATCH ORIGINALLY

PERFORMED BY THE SAME AGENCY, EXTEND THE FINAL RESTORATION TO THE EXISTING PATCH (FOR BELL HOLE OR TRENCH NO GREATER THAN 10 FT LONGITUDINAL).

3. IF A NEW PATCH IS DONE WITHIN AN EXISTING PATCH, THE BOUNDARIES OF THE FINAL RESTORATION FOR THE PATCHES SHALL COINCIDE.

4. IF A SECTION OF PAVEMENT IS DAMAGED DURING CONSTRUCTION, THE FAILED AREA SHALL BE REMOVED TO SOUND PAVEMENT AND PATCHED. IF THE DAMAGED AREA IS WITHIN 10 FT OF THE NEW PATCH, THE FINAL RESTORATION OF THE PATCHES SHALL COINCIDE.

5. LIMITS OF FINAL PAVEMENT RESTORATION TO STOP AT ONE OF THE FOLLOWING LOCATIONS : CENTER OF LANE, TRAVEL LANE LINE, BIKE LANE LINE, ISLAND CURB/ GUTTER, EDGE OF ROADWAY PAVEMENT CUR B/ GUTTER. NO PAVING JOINTS SHALL BE ALLOWED IN A VEHICULAR WHEEL PATH.

6. STEEL PLATES USED FOR BRIDGING SHALL EXTEND A MINIMUM OF 1 FT BEYOND THE EDGE OF TRENCH. PLATES SHALL HAVE NONSKID ABRASIVE SURF ACE PER CAL TRANS SPECIFICATIONS 75-1.03F, AND COUNTER-SINKING MAY BE REQUIRED WHEN DEEMED NECESSARY BY CITY ENGINEER.

7. CUTBACK SHALL NOT BE USED EXCEPT WHEN PRE-APPROVED BY THE CITY ENGINEER OR WHEN TRIMMING TRENCH PLATES.

8. ROADWAY RESTORATION WIDTH, BEYOND THE TRENCH EDGES, VARIES FROM 12"-48". DURING THE PERMIT PROCESS, THE CITY MAY REVIEW GEOTECHNICAL

AND HISTORICAL INFORMATION OF THE TRENCHING LOCATION, AS PRESENTED BY

THE UTILITY OWNER, AND CONSIDER EXISTING PAVEMENT CONDITION, SUITABLE

SUBGRADE AND THE PROPOSED SCOPE OF WORK TO DETERMINE RESTORATION WIDTH. THE CITY RESERVES THE RIGHT TO ADJUST THE RESTORATION WIDTH DUE

TO FIELD OBSERVATIONS DURING CONSTRUCTION SUCH AS, BUT NOT LIMITED TO,

OBSERVING BREAKOUT, UNDERMINING OF ADJACENT PAVEMENT, UNSTABLE WALLS

OF TRENCH, DAMAGE TO SURROUNDING UNDISTURBED PAVEMENT, AND/OR PAVEMENT OR SUBGRADE DAMAGE FROM CONTRACTOR OPERATIONS.

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S-17

Staff Report
Date: April 26, 2022
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: William Tarbox, PE, Public Works Director
Prepared by: Abhishek Parikh, Deputy Public Works Director - Transportation [email protected]
(925) 671-3139
Subject: Considering approval of a funding agreement with CCTA as part of the Cooperative Agreement No. 08C.05 with County Connection, Contra Costa Transportation Authority and City of Walnut Creek for the IDEA Grant – TSP System approved by Council on October 12, 2021; and authorizing the City Manager to execute these agreements in a form acceptable to the City Attorney.

CEQA: Not a project /exempt per CEQA Guidelines Sections 15060(c), 15061(b)(3), 15273, 15378, 15262, and or Public Resources Code Section 21065.

Report in Brief
In partnership with the Metropolitan Transportation Commission (MTC), County Connection, and the cities of Walnut Creek and Concord, the Contra Costa Transportation Authority (CCTA) is leading a project that would deploy a central conditional Transit Signal Priority (TSP) system on County Connection buses and along various corridors within the cities of Walnut Creek and Concord. The CCTA hopes that this TSP system can be expanded countywide in the future.

On October 12, 2021 Council approved a Cooperative Agreement No. 08C.05 which outlines the responsibilities and commitments of the project stakeholders in implementing the project. By signing this cooperative agreement, the City agreed to the project deployment, management, operations, and maintenance terms included in the

4.f4.f4.f

City Council Agenda Report
Agenda Item No 4.f
April 26, 2022
agreement and enter into funding agreements with CCTA and County Connection (if needed in the future).

Recommended Action
Approve funding agreement with CCTA, as part of the Cooperative Agreement No. 08C.05 with County Connection, Contra Costa Transportation Authority and City of Walnut Creek for the IDEA Grant – TSP System approved by Council on October 12, 2021; and authorize the City Manager to execute this agreement in a form acceptable to the City Attorney.

Background
The CCTA, County Connection and the cities of Concord and Walnut Creek share the mutual goal of enhancing and promoting a shift from auto trips to transit along the cities’ roadways. Current intersection delays along primary arterials impact transit reliability.

Short of providing physical infrastructure improvement, a proven method to improve transit reliability and efficiency is through a TSP system.

In 2018, the CCTA, in partnership with the City of Concord and County Connection, was awarded $588,854 in MTC IDEA Grant funds to deploy a conditional TSP system along two major routes in the City of Concord. The conditional system would allow configuration of parameters or set of rules under which a transit bus would get a priority green. For example, when the transit bus is behind schedule by more than X minutes or when the bus is more than 30% full.

Analysis
The CCTA is taking the lead in deploying the project in both cities and will manage the hosting and support of the Central TSP system following the deployment. The project will deploy a centralized cloud-based TSP system within the cities of Walnut Creek and Concord. TSP system will be deployed on all buses that travel County Connection routes 15 and 20 in the City of Concord. These routes collectively cross through 21 signalized intersections along Willow Pass Road, Clayton Road, and Concord Boulevard, between Farm Bureau Road and Diamond Way shown in Figure 1. It is envisioned that this system could be expanded in the future to include additional transit routes, and additional partner cities within Contra Costa County.

The Cooperative agreement in Attachment 1 specifies roles and responsibilities for the agencies involved with respect to day to day operations and maintenance of the equipment that is being provided by the grant. Attachment 2 includes the funding agreement to be executed under the umbrella of the Cooperative Agreement No. 08C.05, which in general describes the agreement with CCTA, to fund the deployment, hosting and support of the TSP system using MTC’s Idea Grant Funds. Additionally, it specifies

City Council Agenda Report
Agenda Item No 4.f
April 26, 2022
 Maximum amount reimbursable through the MTC grant to CCTA for implementation of the TSP system
 Executing a contract with the TSP system vendor
 To upgrade communications and traffic signal system components to permit TSP system operations at selected project intersections, subject to funding being provided for this purpose from the IDEA Grant funds and with the mutual agreement of the involved agencies.

Figure 1: Project Area and Intersections
Procurement Process
In September 2021, the CCTA authorized the release of Request for Proposals No. 21- 2 to select a vendor for the deployment of the system. In response, the following vendors submitted proposals:

1. Global Traffic Technologies (GTT)

2. Sinwaves, Inc. DBA LYT

3. Kimely Horn

4. ACT Traffic Solutions, Inc.

5. TNL USA, Inc.

6. Zero Infrastructure Mobility Solutions

City Council Agenda Report
Agenda Item No 4.f
April 26, 2022
An evaluation panel comprised of staff from County Connection, cities of Walnut Creek and Concord, City of San Jose, MTC and CCTA evaluated the proposals. GTT was ranked at the top and selected for the TSP system deployment.

Financial Impact
There is no direct financial impact to the City signing the funding agreement. Concord and MTC entered into Supplement 1 to Master Agreement on July 1, 2018, whereby MTC agreed to provide an amount not to exceed five hundred eighty-eight thousand, eight hundred fifty-four dollars ($588,854) to Concord to fund the deployment of a transit signal priority system on reimbursement basis for actual eligible costs incurred for this project. CCTA will take a lead in deployment, hosting and support of the TSP system and City will reimburse CCTA for the cost incurred for this implementation for up to $253,178, through the funding available from MTC grant. The remaining funding in the amount of up to $335,676 from the MTC grant will be available for qualified upgrades for City’s signalized infrastructure. The cooperative agreement between Concord and CCTA will be brought to the CCTA Board for approval in May, 2022.

The City will enter into funding agreements with CCTA in a form acceptable to the City’s legal counsel to fund the project using MTC’s IDEA Grant funds.

Environmental Determination
Pursuant to CEQA Guidelines Sections 15060(c), 15061(b)(3), 15273, 15378, 15262, and/or Public Resources Code Section 21065, approval of this funding Agreement is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, as it does not constitute a “project,” does not commit the City to a definite course of action, does not constitute discretionary approval of a specific project, and will not result in a direct or reasonably foreseeable indirect physical change in the environment, falls within the "Common Sense" CEQA exemption, and in the alternative is exempt from CEQA. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgment and analysis. Individual projects will undergo CEQA analysis as necessary.

Public Contact
The City Council Agenda was posted.

Attachments

1. Cooperative Agreement No. 08C.05

2. Funding Agreement with CCTA

Attachment 1

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FUNDING AGREEMENT No 08C.07
City of Concord

FUNDING AGREEMENT NO. 08C.07

BETWEEN

THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND

THE CITY OF CONCORD
This Agreement is made and entered into on ______________, 2022 by and between the City of Concord hereinafter referred to as ("CITY") and the CONTRA COSTA TRANSPORTATION AUTHORITY hereinafter referred to as ("AUTHORITY"). CITY and AUTHORITY are collectively referred to herein as “the Parties.”

RECITALS

1. AUTHORITY and CITY entered into a multi-party Cooperative Agreement No. 08C.05 in September 2021 for the deployment, management, operation and maintenance of the Innovative Deployments to Enhance Arterials (“IDEA”) Central Transit Signal Priority (TSP) Project.

2. CITY desires AUTHORITY to take the lead in implementing TSP in the City of Concord, as described in Exhibit A to this AGREEMENT, hereinafter referred to as "PROJECT".

3. The PROJECT is eligible for funding under the Metropolitan Transportation Commission (“MTC”) IDEA Grant program

4. CITY and MTC entered into Supplement 1 to Master Agreement on July 1, 2018, whereby MTC agreed to provide an amount not to exceed five hundred eighty-eight thousand, eight hundred fifty-four dollars ($588,854) in sales tax funds to CITY to fund the deployment of a transit signal priority system on reimbursement basis for actual eligible costs incurred for PROJECT.

5. CITY wishes to reimburse AUTHORITY for actual costs incurred for PROJECT from MTC IDEA Grant.

NOW, THEREFORE, in consideration of the foregoing, the AUTHORITY and CITY do hereby agree as follows:

SECTION I
CITY AGREES:

1. To reimburse AUTHORITY for actual costs incurred on PROJECT up to $253,178 no later than 30 days from receiving an invoice from AUTHORITY.

Attachment 2

FUNDING AGREEMENT No 08C.07
City of Concord

SECTION II
AUTHORITY AGREES:

1. To enter into contract with System Vendor as describe in Exhibit A to implement PROJECT.

2. To submit invoices to CITY as described in this Agreement for incurred costs related to PROJECT.

SECTION III
IT IS MUTUALLY AGREED:

1. (a) That the cost to complete PROJECT shall not exceed $253,178. If AUTHORITY determines that this amount will be exceeded, it will notify and seek approval of CITY to expend additional funds.
(b) If additional funds beyond those identified in paragraph 1 (a) of Section III, are necessary to complete PROJECT, the PARTIES will work cooperatively to secure new or increased funding commitments.
(c) If additional funds are not secured, CITY and AUTHORITY will cooperatively determine responsibility for securing the additional funds, subject to the approval of their respective governing boards.

2. Term: This Agreement will remain in effect through December 31, 2028 or until discharged as provided in Paragraph 3 below or as a result of paragraph 12 below.

3. Discharge: This Agreement shall be subject to discharge as follows:
a. Either Party may terminate this Agreement at any time, other than for breach, by giving written notice of termination to the other Party which shall specify both the cause and the effective date of termination. Notice of termination under this provision shall be given at least ninety (90) days before the effective date of such termination.
b. This Agreement may be canceled by a Party for breach of any obligation, covenant or condition hereof by the other Party, upon notice to the breaching Party. With respect to any breach which is reasonably capable of being cured, the breaching Party shall have 30 days from the date of the notice to initiate steps to cure. If the breaching party diligently pursues cure, such party shall be allowed a reasonable time to cure, not to exceed sixty (60) days from the date of the initial notice, unless a further extension is granted by the non-breaching Party. On cancellation, the non-breaching party retains the same rights as a Party exercising its right to terminate under the provisions of paragraph 3(a), except that the canceling Party also retains any remedy for breach of the whole contract or any unperformed balance.

FUNDING AGREEMENT No 08C.07
City of Concord

c. By mutual consent of both PARTIES, this Agreement may be terminated at any time. d. In the event of termination, AUTHORITY shall submit an invoice to CITY for an amount representing the actual cost of services performed up to the effective date of termination for which AUTHORITY has not been previously reimbursed. In no event shall the maximum expenditure allowed under this Agreement, as it may be adjusted by a written amendment signed by both parties, be exceeded.

4. Indemnity: It is mutually understood and agreed, relative to the reciprocal indemnification of AUTHORITY and CITY:
a. That neither AUTHORITY, nor any officer or employee thereof, shall be responsible for, and CITY shall fully indemnify and hold harmless AUTHORITY against any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction by CITY under the Agreement. It is also understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully indemnify and hold the AUTHORITY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by CITY under this Agreement or in connection with any work, authority, or jurisdiction delegated to CITY under this Agreement.
b. That neither CITY, nor any officer or employee thereof, shall be responsible for, and AUTHORITY shall fully indemnify and hold harmless CITY against any damage or liability occurring by reason of anything done or omitted to be done by AUTHORITY under or in connection with any work, authority or jurisdiction by AUTHORITY under the Agreement. It is also understood and agreed that, pursuant to Government Code Section 895.4, AUTHORITY shall fully indemnify and hold the CITY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by AUTHORITY under this Agreement or in connection with any work, authority, or jurisdiction delegated to AUTHORITY under this Agreement.

5. Notices: Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal service, or by certified or registered mail, return receipt requested, to the addresses set forth below, or to such addresses which may be specified in writing to the parties hereto.

Valerie Barone
City Manager
1950 Parkside Drive, MS/01,
City of Concord
Concord, CA 94519
Timothy Haile
Executive Director
Contra Costa Transportation Authority
2999 Oak Road, Suite 100
Walnut Creek, CA 94597

FUNDING AGREEMENT No 08C.07
City of Concord

6. Additional Acts and Documents: Each Party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this Agreement.

7. Integration: This Agreement represents the entire Agreement of the PARTIES with respect to the subject matter hereof. No representations, warranties, inducements or oral agreements have been made by any of the PARTIES except as expressly set forth herein, or in other contemporaneous written agreements.

8. Amendment: This Agreement may not be changed, modified or rescinded except in writing, signed by all PARTIES hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.

9. Independent Agency: AUTHORITY renders its services under this Agreement as an independent agency. None of the AUTHORITY’s agents or employees shall be agents or employees of the CITY.

10. Assignment: This Agreement may not be assigned, transferred, hypothecated, or pledged by any Party without the express written consent of the other Party.

11. Binding on Successors, etc.: This Agreement shall be binding upon the successor(s), assignee(s) or transferee(s) of the AUTHORITY or CITY as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Agreement other than as provided above.

12. Severability: Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either Party to enter into or carry out, such determination shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of thePARTIES.

13. Limitation: All obligations of AUTHORITY under the terms of this Agreement are expressly subject to the AUTHORITY's continued authorization to collect and expend the sales tax proceeds provided by MEASURE C and MEASURE J. If for any reason the AUTHORITY's right to collect or expend such sales tax proceeds is terminated or suspended in whole or part, the AUTHORITY shall promptly notify CITY, and the PARTIES shall consult on a course of action to determine how to accomplish the PROJECT or if this Agreement should be terminated. If, after sixty (60) working days of the termination or suspension of sales tax proceeds authority, a course of action is not agreed upon by thePARTIES, this Agreement shall be deemed terminated by mutual or joint consent; provided, that any obligation to fund from the date of the notice shall be expressly limited by and subject to (i) the lawful ability of the AUTHORITY to expend sales tax proceeds for the purposes of the Agreement; and (ii) the availability, taking into consideration all the obligations of the AUTHORITY under all outstanding contracts, agreements to other obligations of the AUTHORITY, of funds for such purposes.

14. No Third Party Beneficiaries: This Agreement is not for the benefit of any person or entity

FUNDING AGREEMENT No 08C.07
City of Concord

other than the parties.

15. Dispute Resolution: The PARTIES shall work together in the spirit of good faith and cooperation to successfully implement this Agreement. Should a substantive disagreement arise between the PARTIES, the disagreement shall immediately be raised between the PARTIES. Prior to initiating any legal action, the PARTIES agree to meet in good faith to attempt to resolve any dispute, including but limited to meetings between executive management and participating in mediation.

The PARTIES shall jointly select and engage the effort of a mediator to help resolve the dispute. The PARTIES shall equally share the costs of the mediator. If the issue is still unresolved, either Party may bring a legal action seeking resolution of the disagreement. However, any and all legal actions may only be brought if the preceding dispute resolution process has been satisfied.

16. Venue: This Agreement and all work performed thereunder shall be interpreted under and pursuant to the laws of the State of California. The PARTIES agree that the jurisdiction and venue of any dispute arising under this Agreement shall be the Superior Court of Contra Costa County.

17. Counterpart: This Agreement may be executed in any number of original counterpart signature pages, and each counterpart signature page shall be attached to and incorporated into this original Agreement.

CONTRA COSTA TRANSPORTATION

CITY OF CONCORD AUTHORITY
By: By:

Dominic Aliano, Mayor Chris Kelly, Chair
ATTEST:

By: By:

Joelle Fockler, City Clerk Tarienne Glover, Clerk of the Board APPROVED as to form:

By: By:

Susanne Brown, City Attorney David McCray, Legal Counsel

FUNDING AGREEMENT No. 08C.07
Exhibit A City of Concord

FUNDING AGREEMENT NO. 08C.07
between
The Contra Costa Transportation Authority
and
The City of Concord

EXHIBIT A

DESCRIPTION OF THE PROJECT
The Contra Costa Transportation Authority (CCTA) is looking for the next generation of transit signal priority (TSP) system that can leverage the use of existing infrastructure and transportation investments while providing enhanced features and functionality over traditional TSP systems. This initial deployment serves as the first step in CCTA’s assessment of such an approach. It is envisioned that this system could be expanded in the future to include additional transit routes, additional partner cities within Contra Costa County, and potentially incorporate additional features such as emergency vehicle preemption (EVP).

The PROJECT will deploy a cloud-based TSP system within the City of Walnut Creek and the City of Concord. In Concord, the PROJECT area is along Willow Pass Road, Clayton Road, and Concord Boulevard between Farm Bureau Road and Diamond Way, and the TSP system will be deployed on all buses that travel County Connection’s Routes 15 and 20 as shown in Figure 1. Those routes collectively cross through 35 signalized intersections throughout the project area as summarized in Table 1.

The PROJECT will implement conditional transit signal priority operational strategies at the 44 total signalized intersections to provide real time changes to the signal timing parameters in response to priority requests from County Connection transit vehicles. The purpose of providing TSP control along these corridors is to overcome delay that is typically experienced by transit vehicles at signalized intersections. The project will improve transit operations and overall transit customer experience as travel time and schedule reliability improves, by way of providing prioritized operational treatment to transit vehicles at signalized intersections. Upgrading the corridor infrastructure is expected to produce cascading benefits that include ridership growth, that results in a reduction in auto trips and improve air quality.

This PROJECT is primarily funded by MTC’s Innovative Deployment to Enhance Arterials (IDEA) program, with MTC providing program management, systems engineering, and overall PROJECT oversight.

FUNDING AGREEMENT No. 08C.07
Exhibit A City of Concord

1 2
3 4
14 8
Concord Signal
Route 20
Route 15
N
7 6
5 12
1 1
10 9
18 21
2019
17 16 13
15 30
3231
33 35
Concord
22 23
25 26
28 2927
24 34
Figure 1: City of Concord PROJECT Area and Intersections Table 1: City of Concord PROJECT Intersections
No. Intersection No. Intersection
1 Willow Pass Rd and Farm Bureau Rd 19 Clayton Rd and Grant St 2 Willow Pass Rd and 6th St 20 Clayton Rd and Park St
3 Willow Pass Rd and Parkside Dr 21 Galindo St and Oak St 4 Willow Pass Rd and Port Chicago Hwy 22 Port Chicago Hwy and High School Ave 5 Willow Pass Rd and Gateway Blvd 23 East St and High School Ave 6 Willow Pass Rd and Market St 24 East St and Bacon St
7 Willow Pass Rd and Franquette Ave 25 East St and Almond Ave 8 Willow Pass Rd and Diamond Blvd 26 Port Chicago Hwy and Almond Ave 9 Concord Blvd and Galindo St 27 East St and Bonifacio St 10 Clayton Rd and Ellis St 28 Port Chicago Hwy and Bonifacio St 11 Clayton Rd and Fry Way 29 Port Chicago Hwy and Pacheco St 12 Clayton Rd and Gateway Blvd 30 East St and Willow Pass Rd 13 Concord Blvd and Port Chicago Hwy 31 East St and Sunset Ave 14 Salvio St and Port Chicago Hwy 32 Port Chicago Hwy and Sunset Ave 15 Salvio St and East St 33 Willow Pass Rd and Grant St 16 Concord Blvd and East St 34 Concord Blvd and Diablo St 17 Concord Blvd and Grant St 35 Clayton Rd and Sutter Ave 18 Clayton Rd and Galindo St

FUNDING AGREEMENT No. 08C.07
Exhibit A City of Concord

CCTA will enter into contract with “System Vendor” to furnish, install, configure, integrate all subsystems, test all necessary software and hardware, and make operational a cloud-based conditional transit signal priority (TSP) system capable of implementing real-time centralized priority decision, control and monitoring of traffic signals and transit vehicles that conforms to the System Requirements developed for the project. The System Vendor shall be responsible for all items necessary to furnish, install, configure, integrate, implement, test, and provide training and documentation on the proposed TSP system. Integration may require close coordination with Clever Devices, the provider of the transit CAD/AVL system used by County Connection, and Cubic/Trafficware, the provider of the central signal system and intersection traffic signal controllers used by Walnut Creek and Concord.

The System Vendor shall be fully responsible for the maintenance and care of all hardware, equipment, and software furnished by the System Vendor until the time of final acceptance of the TSP system by CCTA and thereafter for the entire contract duration.

CCTA, working with its partner agencies including City of Concord, will be responsible for providing the following:
 Ethernet communications between each city’s central office or Traffic Management Center (TMC) and the traffic signal controllers at each project signal;  Access to a broadband internet connection at each city’s central office or TMC and at County Connection’s central office if needed;
 Traffic signal controllers at each project intersection that support NTCIP communications protocol (1202 and 1211) and TSP operations such as providing an early green or extending a green phase when granting a TSP request; and
 Access to County Connection’s centralized CAD/AVL system and/or the transit vehicle’s on- board system related to any integration work.

Staff Report
Date: April 26, 2022
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Justin Ezell, Assistant City Manager
[email protected]
(925) 671-3155
Subject: Considering approval of letter of support for SJR 15 – Port Chicago (Glazer) to Senator Bob Archuleta, Chairman of the Committee on Military and Veterans Affairs, to provide full exoneration of the 50 African American Sailors of the United States Navy who were tried and convicted of mutiny in
connection with their service at the Port Chicago Naval Magazine in Concord, California, during World War II.

Report in Brief
Senator Glazer is urging the President and the Congress of the United States to take all necessary actions to restore honor to, and rectify the mistreatment by the United States Military of, any sailors who were unjustly blamed for and convicted of mutiny after the Port Chicago disaster, which occurred in the town of Port Chicago, California, in 1944.

Recommended Action
Authorize sending a letter of support for SJR 15 – Port Chicago (Glazer) to Senator Bob Archuleta, Chairman of the Committee on Military and Veterans Affairs, to provide full exoneration of the 50 African American Sailors of the United States Navy who were tried and convicted of mutiny in connection with their service at the Port Chicago Naval Magazine in Concord, California, during World War II.

Background
On the night of July 17, 1944, two transport vessels loading ammunition at the Port Chicago naval base in Concord, California, were suddenly engulfed in a gigantic explosion, the incredible blast of which wrecked the naval base and heavily damaged the town of Port Chicago, located 1.5 miles away.

4.g4.g

City Council Agenda Report
Agenda Item No. 4.g
April 26, 2022
Everyone on the pier and aboard the two ships was killed instantly—some 320 American naval personnel, 200 of whom were African American enlisted men; and another 390 military and civilian personnel were injured, including 226 African American enlisted men. This single, stunning disaster accounted for nearly one-fifth of all African American naval casualties during the whole of World War II and was the worst home- front disaster of the war.

The blame for the explosion went to the African-American munitions handlers who had been killed in the disaster, yet had not been properly trained in the handling of those explosives. A few weeks later, seamen were ordered back to work loading munitions at the same location. Two-hundred fifty eight black sailors were ordered to load these munitions, but due to what they felt were unsafe work conditions and themselves not being adequately trained in the proper handling of munitions, they refused orders. After being threatened with the death penalty, 208 of these men reluctantly returned to work.

However, the remaining 50 were court-martialed and sentenced to 17 years in prison.

After the war had ended in 1945, the Navy announced that 47 of the 50 men would be released to active duty. Two remained in a hospital recuperating from injuries, while a third remained in prison due to bad conduct. Eventually, those of the 50 who had not committed later offenses were given a general discharge from the Navy under honorable conditions. Yet their convictions were never rescinded and the “Port Chicago 50” carried with them charges of mutiny until they died.

Analysis
The California State Legislature urges the President and the Congress of the United States to take all necessary actions to restore honor to, and rectify the mistreatment by the United States Military of, any sailors who were unjustly blamed for and convicted of mutiny after the Port Chicago disaster, which occurred in the town of Port Chicago, California, in 1944. This would be done by providing the full exoneration of those who were wrongfully court-martialed and have the military records of those involved cleared of any wrongdoing or discharge references that were other than honorable, regardless of whether those sailors are alive or deceased. To exonerate these men would close an ugly chapter in California’s history as well as illuminate and recognize the discrimination that took place at the time, in an effort to ensure events like these can never happen again.

Financial Impact
No fiscal impact.

Public Contact
The City Council Agenda was posted.

Attachment

1. Support letter

Attachment 1
April 26, 2022
The Honorable Bob Archuleta
Chairman
Committee on Military and Veterans Affairs
1020 N Street, Room 251
Sacramento, CA 95814
RE: SJR 15 – PORT CHICAGO (GLAZER)
Dear Senator Archuleta:

The Concord City Council supports SJR 15 (Port Chicago) aimed to publicly exonerate the 50 African American sailors of the United States Navy who were tried and convicted of mutiny in connection with their service at the Port Chicago naval base in Concord, California, during World War II.

In July 1944, at the Port Chicago naval base, munitions loaded onto a cargo vessel bound for the Pacific Theater detonated. Massive explosions destroyed everything in the vicinity. The blasts were felt as far away as Nevada. Every building in Port Chicago and many in Concord were damaged or destroyed.

Smoke and fire extended nearly two miles into the air. It was the deadliest home front disaster of World War II.

The explosions killed or injured 710 people, 426 of whom were African American. This single incident accounted for nearly 1/5 all African American Naval casualties in WWII. Just weeks after the explosion, the surviving sailors were ordered to continue loading munitions under the same unsafe conditions. When the surviving 208 out of 258 African American sailors reluctantly returned to work, the 50 who refused were charged with mutiny and court-martialed and sentenced to 17 years in prison. Although their sentences were eventually commuted, their convictions were never rescinded.

We wholeheartedly support Senator Glazer’s plea to the President and the Congress of the United States to restore honor to and rectify the

mistreatment of any sailors who were unjustly convicted of mutiny and blamed for the Port Chicago disaster in 1944.

Sincerely,
_______________________ ___________________________
Dominic Aliano, Mayor Laura Hoffmeister, Vice Mayor
_______________________ ___________________________
Edi Birsan, Councilmember Tim McGallian, Councilmember
_______________________
Carlyn Obringer, Councilmember
Copy: Senator Steve Glazer
Valerie Barone, City Manager
Joelle Fockler, City Clerk

Staff Report
Date: April 26, 2022
To: City Council/City Council Sitting as the Local Reuse Authority From: Valerie J. Barone, City Manager
Prepared by: Guy Bjerke, Director, Economic Development & Base Reuse [email protected]
(925) 671-3076
Subject: Considering an amendment to the Professional Services Agreement (PSA) with Burke, Williams & Sorenson, LLP in the amount of $40,000 for work drafting the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not-to-exceed amount of $100,000; and authorizing the City Attorney to execute the amendment. (From Exclusive Negotiating
Agreement (ENA) Deposit to the LRA by Concord First
Partners, LLC)
Report in Brief
The negotiation and drafting of the Term Sheet between the Local Reuse Authority and Concord First Partners, LLC is exceeding the original estimated scope and budget in the Professional Services Agreement (PSA) the City entered into with Burke, Williams & Sorenson, LLP (BWS) at the beginning of this fiscal year.

To ensure that this additional work and the original work scope requested of BWS can be performed through June 30, 2022, staff is seeking an amendment to BWS’s PSA in the amount of $40,000. The $40,000 will come from the ENA deposit made by Concord First Partners, LLC to the LRA.

Recommended Action
Approve the amendment to the Professional Services Agreement with BWS in the amount of $40,000 for work drafting the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not-to-exceed amount of $100,000; and authorizing the City Attorney to execute the amendment.

4.h4.h

City Council Agenda Report
Agenda Item No. 4.h
April 26, 2022
Background
The current Professional Services Agreement with BWS was approved by the City Council on June 23, 2021 for a not-to-exceed amount of $60,000.

At that time, staff conservatively estimated all consulting team work scopes and budgets not knowing how fast or whether a Master Developer would be selected and/or an Exclusive Negotiating Agreement and/or a Term Sheet would be required.

Analysis
The work under the requested amendment to the BWS PSA will be paid for from the ENA deposit made by Concord First Partners, LLC to the LRA.

The additional work related to the drafting of the Term Sheet will add $40,000 to their existing contract, establishing a new not-to-exceed amount of $100,000. It will not extend the term of the agreement, which expires on June 30, 2022.

The requested funding increase ensures that the work required of BWS through June 30, 2022 can be paid for by the LRA
Financial Impact
The requested amendment increases the Reuse Project’s spending in FY 21-22 by $40,000. The increased spending will be paid for from the ENA deposit made by Concord First Partners, LLC to the LRA.

Public Contact
The City Council Agenda was posted.

Attachment

1. Amendment to BWS PSA

FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
This First Amendment to Professional Services Agreement (“First Amendment”) is entered into on this date, April 26, 2022, and amends the Professional Services Agreement between the City of Concord (“CITY”) and Burke, Williams & Sorenson, LLP (“CONSULTANT”).

WHEREAS, CITY and CONSULTANT entered into a Professional Services Agreement dated June 23, 2021 (the “Agreement”), wherein CONSULTANT agreed to provide specialized expertise in the following:

1. Scope of Work.

A. CONSULTANT shall assist and represent the CITY in all matters, including but not limited to, the following:

1. Review of Statement of Qualifications submitted by Master Developer candidates

2. Review of proposed Exclusive Negotiating Agreement

3. Review of proposed Term Sheet

4. Advice on any related matters as directed by the CITY from time to time.

B. CONSULTANT shall obtain prior CITY approval for the retention of any subconsultants and/or expert witnesses.

WHEREAS, under Section 5 “AMENDMENT TO AGREEMENT” the Agreement provides that Agreement may be amended by the parties subject to consent and in accordance with the CITY’S Municipal Code.

WHEREAS, the parties mutually desire to amend the Agreement to increase the expenditure cap to cover the cost of additional services.

NOW THEREFORE, in consideration of the promises and conditions set forth in the Agreement, the parties mutually desire to amend the Agreement as follows:

1. The not to exceed expenditure cap in Section 3, PAYMENT, is increased by $40,000 to a total not to exceed amount of One-Hundred Thousand Dollars ($100,000) for the term of this agreement. 1 Attachment 1

2. Except as expressly amended herein, all other terms and conditions of the Professional Services Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed this First Amendment on the date indicated above.

Dated: BURKE, WILLIAMS & SORENSEN, LLP
By:

Gerald J. Ramiza, Esq.

Dated: CITY OF CONCORD
By:__________________________
Susanne Brown
City Attorney
APPROVED AS TO FORM: ATTEST:

___________________________ _____________________________ Susanne Brown Joelle Fockler, MMC City Attorney City Clerk
FINANCE DIRECTOR'S CERTIFICATION:

Concord, California
Date:

I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2021/2022 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.

THE SUM OF $100,000. Account Code 4009500C999-4002011111-63800

___________________________
Finance Director’s Signature
2

Staff Report
Date: April 26, 2022
To: City Council/City Council Sitting as the Local Reuse Authority From: Valerie J. Barone, City Manager
Prepared by: Guy Bjerke, Director, Economic Development & Base Reuse [email protected]
(925) 671-3076
Subject: Considering an amendment to the Professional Services Agreement (PSA) with Jarvis, Fay & Gibson, LLP in the amount of $30,000 for work land use advice on the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not- to-exceed amount of $90,000; and authorizing the City
Attorney to execute the amendment. (From ENA Deposit to the LRA by Concord First Partners, LLC)
Report in Brief
The negotiation and drafting of the Term Sheet between the Local Reuse Authority and Concord First Partners, LLC is exceeding the original estimated scope and budget in the Professional Services Agreement (PSA) the City entered into with Jarvis, Fay & Gibson, LLP (Jarvis) at the beginning of this fiscal year.

To ensure that this additional work and the original work scope requested of Jarvis can be performed through June 30, 2022, staff is seeking an amendment to Jarvis’ PSA in the amount of $30,000. The $30,000 will come from the ENA deposit made by Concord First Partners, LLC to the LRA.

Recommended Action
Approve the amendment to the Professional Services Agreement with Jarvis in the amount of $30,000 for work drafting the Term Sheet related to the Master Developer Selection process at the former Concord Naval Weapons Station establishing a new total not-to-exceed amount of $90,000; and authorizing the City Attorney to execute the amendment.

4.i4.i

City Council Agenda Report
Agenda Item No. 4.i
April 26, 2022
Background
The current Professional Services Agreement with Jarvis was approved by the City Council on June 23, 2021 for a not-to-exceed amount of $60,000.

At that time, staff conservatively estimated all consulting team work scopes and budgets not knowing how fast or whether a Master Developer would be selected and/or an Exclusive Negotiating Agreement and/or a Term Sheet would be required.

Analysis
The work under the requested amendment to the Jarvis PSA will be paid for from the ENA deposit made by Concord First Partners, LLC to the LRA.

The additional work related to the drafting of the Term Sheet will add $30,000 to their existing contract, establishing a new not-to-exceed amount of $90,000. It will not extend the term of the agreement, which expires on June 30, 2022.

The requested funding increase ensures that the work required of Jarvis through June 30, 2022 can be paid for by the LRA.

Financial Impact
The requested amendment increases the Reuse Project’s spending in FY 21-22 by $30,000. The increased spending will be paid for from the ENA deposit made by Concord First Partners, LLC to the LRA.

Public Contact
The City Council Agenda was posted.

Attachment

1. Amendment to Jarvis PSA

FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
This First Amendment to Professional Services Agreement (“First Amendment”) is entered into on this date, April 26, 2022, and amends the Professional Services Agreement between the City of Concord (“CITY”) and Jarvis, Fay & Gibson, LLP (“CONSULTANT”).

WHEREAS, CITY and CONSULTANT entered into a Professional Services Agreement dated June 23, 2021 (the “Agreement”), wherein CONSULTANT agreed to provide specialized expertise in the following:

1. Scope of Work.

A. CONSULTANT shall assist and represent the CITY in all matters, including but not limited to, the following:

1. Provide CEQA and land use advice related to Concord Naval Weapon Station matters.

2. Advice on any related matters as directed by CITY from time to time.

B. CONSULTANT shall obtain prior CITY approval for the retention of any subconsultants and/or expert witnesses.

WHEREAS, under Section 5 “AMENDMENT TO AGREEMENT” the Agreement provides that Agreement may be amended by the parties subject to consent and in accordance with the CITY’S Municipal Code.

WHEREAS, the parties mutually desire to amend the Agreement to increase the expenditure cap to cover the cost of additional services.

NOW THEREFORE, in consideration of the promises and conditions set forth in the Agreement, the parties mutually desire to amend the Agreement as follows:

1. The not to exceed expenditure cap in Section 3, PAYMENT, is increased by $30,000 to a total not to exceed amount of Ninety Thousand Dollars ($90,000) for the term of this agreement.

2. Except as expressly amended herein, all other terms and conditions of the Professional Services Agreement shall remain in full force and effect.

Attachment 1

IN WITNESS WHEREOF, the parties have executed this First Amendment on the date indicated above.

Dated: JARVIS, FAY & GIBSON, LLP
By:

Alexandra Barnhill
Senior Partner
Dated: CITY OF CONCORD
By:

Susanne Brown,
City Attorney
APPROVED AS TO FORM: ATTEST:
_____________________________
Susanne Brown Joelle Fockler, MMC
City Attorney City Clerk
FINANCE DIRECTOR'S CERTIFICATION:

Concord, California
Date:

I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2021/2022 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.

THE SUM OF $90,000. Account Code 4009500C999-4002011111-63800

___________________________
Finance Director’s Signature

Staff Report
Date: April 26, 2022
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Karan Reid, Director of Finance
[email protected]
(925) 671-3192
Subject: Considering the following:

1. Receiving a presentation on community feedback for
American Rescue Plan Act (ARPA) Investments;

2. Approving ARPA spending categories;

3. Approving the dollar amounts allocated to each spending category from the $19.0 million of one-time ARPA funds and $1.0 million on annual, recurring Measure V funds; and

4. Providing direction to staff on next steps for developing a funding allocation process for each spending category.

CEQA: Not a project/exempt per Public Resources Code Section 21065, 14 Cal Code Regs. Sections 15060(c)(2), 15060(c)(3), 15378, 15061(b)(2), 15061(b)(3), and/or 15378(b)(4).

Report in Brief
The American Rescue Plan Act of 2021 (ARPA) was signed into law on March 11, 2021, and provides federal stimulus funds totaling $1.9 trillion to assist individuals, businesses and state and local governments in an effort to address the public health and economic, impacts from the COVID-19 pandemic. Through the efforts of the National League of Cities and state associations such as the League of California cities, the bill included $130 billion in federal stimulus funds for local governments. This money was divided evenly between counties and local government agencies ($65 billion each). Funding was provided to cities based on 2019 population size and is being disbursed in two equal tranches 12 months apart. The City of Concord will receive ARPA funds totaling

5.a5.a5.a5.a5.a5.a5.a5.a

City Council Agenda Report
Agenda Item No. 5.a
April 26, 2022
$27.0 million. In addition to ARPA funding, as part of the adoption of the current budget, the Council directed $1.0 million of Measure V funds annually for community priority spending, with the specific investment to be determined in conjunction with the ARPA Investment Plan.

The City contracted with Management Partners for the development of an ARPA Investment Plan. A first step in developing that plan was an extensive community engagement effort. At their meeting on April 26, Council and the community will receive a presentation that shares the results of the community engagement and be asked to take additional steps towards developing the ARPA Investment Plan.

Recommended Action

1. Receive a presentation on community feedback for American Rescue Plan Act (ARPA) Investments;

2. Approve ARPA spending categories;

3. Approve dollar amounts allocated to each spending category from the $19.0 million of one-time ARPA funds and $1.0 million of annual, recurring Measure V funds; and

4. Provide direction to staff on next steps for developing a funding allocation process for each spending category.

Background
ARPA is a $1.9 trillion economic stimulus bill passed by the 117th United States Congress as H.R. 1319 and signed into law by the President on March 11, 2021. The main objective of the act is to speed up the United States’ recovery from the economic and health effects of the COVID-19 pandemic and the ongoing recession. This package builds upon many of the measures in the Coronavirus Aid, Relief, and Economic Securities (CARES) Act from March 2020.

Funding for eligible expenditures must be spent or obligated by December 31, 2024, and covers expenditures from March 3, 2021, through December 31, 2024. Funds obligated by December 31, 2024, but not yet spent must be spent by December 31, 2026, or they are returned to the Federal Government. For purposes of ARPA, obligated means an order placed for property or services and entering into contracts, subawards and similar transactions that will require payment after December 31, 2024.

The City of Concord will be receiving a total of $27,040,883 directly from the U.S.

Treasury, split into two payments. The first payment was received in May 2021 with the second payment to be received in May 2022. In addition to the ARPA funding, the Council approved an annual reservation of $1.0 million of Measure V funding to be allocated in conjunction with the ARPA Investment Plan.