Agenda packet — Concord City Council, August 8, 2023 (part 3 of 3)

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28 descriptions, reports, other written, recorded, photographic, visual materials, documents, data, deliverables, and other work products prepared or furnished by or for CONTRACTOR pursuant to this Agreement. CONTRACTOR shall deliver copies of all Work Materials to CITY upon project completion or other termination of this Agreement (see Section 16 below). The CITY reserves the right to specify the file format that electronic Work Materials are presented to the CITY. CITY shall not have access to, control of, or actual or constructive possession of, the Work Materials prior to project completion or Agreement expiration or termination. Upon project completion or Agreement termination, title to all Work Materials shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY.

Work Materials are instruments of CONTRACTOR’s services in respect to this project, and are not intended nor are represented to be suitable for reuse by others except CITY on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONTRACTOR for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONTRACTOR, including attorney’s fees arising out of such unauthorized reuse. Notwithstanding the foregoing, basic survey notes and sketches, charts, computations, and other data prepared or obtained under this Agreement shall have no restriction or limitations on their use. CONTRACTOR shall not disclose or discuss any Work Materials or other information gathered, discussed or generated in any way through this Agreement without the written permission of CITY, unless required by law.

10. INDEMNIFICATION. The following obligations are in addition to those imposed by applicable provisions of the Concord Municipal Code. CONTRACTOR agrees to and shall defend (with independent counsel approved by the CITY), indemnify and hold harmless the CITY, its officers, officials, employees, agents and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney’s fees and other litigation expenses) arising out of or connected in any way with CONTRACTOR’s performance, non- performance, breach, or default, or any subconsultant’s, expert’s, contractor’s, or subcontractor’s performance, non-performance, breach, or default, under the terms of this Agreement. This

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28 indemnification obligation on CONTRACTOR’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY. This Section 10 shall survive expiration or other termination of this Agreement.

11. INSURANCE. CONTRACTOR shall, at its own expense, procure and maintain in full force at all times during the term of this Agreement the following insurance:

A. Commercial General Liability Coverage. CONTRACTOR shall maintain commercial general liability insurance with limits of no less than one million dollars ($1,000,000) combined single limit per occurrence or two million dollars ($2,000,000) aggregate limit for bodily injury, personal injury, and property damage.

B. Automobile Liability Coverage. CONTRACTOR 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.

C. Compliance with State Workers’ Compensation Requirements.

CONTRACTOR covenants that it will insure itself against liability for Workers’ Compensation pursuant to the provisions of California Labor Code §3700, et seq. CONTRACTOR 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 CONTRACTOR for CITY. This provision shall not apply upon written verification by CONTRACTOR that CONTRACTOR has no employees.

D. Other Insurance Provisions. The policies are to contain, or be endorsed to contain the following provisions:
(1) Additional Insured. CITY, its officers, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONTRACTOR and operations of CONTRACTOR, premises owned, occupied, or used by CONTRACTOR. 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

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28 compensation insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONTRACTOR shall also provide timely and prompt notice to CITY if CONTRACTOR receives any notice of cancellation or nonrenewal from its insurer.
(2) Primary Coverage. CONTRACTOR'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 CONTRACTOR's insurance and shall not contribute with it.
(3) 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.
(4) Verification of Coverage. CONTRACTOR 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.

12. TIME OF PERFORMANCE. The time of performance of the services under this Agreement is of the essence, and all time deadlines identified in this Agreement or Scope of Services shall be strictly construed.

13. SUSPENSION OF WORK. CITY may, at any time, by ten (10) days’ written notice, suspend further performance by CONTRACTOR. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONTRACTOR shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONTRACTOR shall not receive any payment for services, or expenses, except for

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28 reasonable administration expenses, incurred by CONTRACTOR by reason of such suspension.

14. TERMINATION. CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate this Agreement upon five (5) days written notice if CONTRACTOR breaches this Agreement. In the event of any termination, CONTRACTOR shall promptly deliver to the CITY any and all Work Materials prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONTRACTOR for the services which the CITY determines were satisfactorily performed as of the effective date of the termination.

15. COMPLIANCE WITH CIVIL RIGHTS. During the performance of this contract, CONTRACTOR agrees as follows:

A. Equal Employment Opportunity. In connection with the execution of this Agreement, CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.

B. Nondiscrimination Civil Rights Act of 1964. CONTRACTOR will comply with all federal regulations relative to nondiscrimination in federally assisted programs.

C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONTRACTOR for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONTRACTOR of CONTRACTOR’S obligation under this Agreement and the regulations relative to nondiscrimination on the grounds of race, religion, color, sex, or national origin.

16. CONFLICT OF INTEREST.

A. CONTRACTOR covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONTRACTOR’s

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28 performance of services under this Agreement. CONTRACTOR further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY.

CONTRACTOR agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.

B. CONTRACTOR is not a designated employee within the meaning of the Political Reform Act because CONTRACTOR:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)

17. COMPLIANCE WITH LAWS. CONTRACTOR shall comply with all applicable Federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses, including a business license with the CITY, and permits for the conduct of its business and the performance of the services.

18. CHOICE OF LAW. This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.

19. NON-WAIVER. The waiver by either party of any breach of any term, covenant, or condition contained in this Agreement, or any default in their performance of any obligations under this Agreement shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.

20. ENFORCEABILITY; INTERPRETATION. In the event that any of the provisions or portions of application of any of the provisions of this Agreement are held to be illegal or invalid

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28 by a court of competent jurisdiction, CITY and CONTRACTOR shall negotiate an equitable adjustment in the provisions of this Agreement with a view toward affecting the purpose of this Agreement. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of this Agreement shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of this Agreement. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. The words “include” and “including” shall be interpreted as though followed by the words “without limitation.”

21. INTEGRATION. The recitals and any exhibits attached to this Agreement are incorporated by reference as though fully restated herein. This Agreement contains the entire agreement and understanding between the parties as to the subject matter of this Agreement. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONTRACTOR and CITY, whether oral or written. In the event of any conflict or other inconsistency between the provisions of this Agreement (disregarding any exhibits) on the one hand, and any exhibits hereto (including any Request for Bids, Request for Proposal, or similar documents, responses to the same, terms and conditions, sample agreements, sample purchase orders, or other attachments thereto) or any purchase order issued in connection with this Agreement, on the other hand, the provisions of this Agreement (disregarding any exhibits) shall control.

22. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE. CITY and CONTRACTOR respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONTRACTOR shall not assign or transfer any interest in this Agreement without the CITY’s prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONTRACTOR, its officers, employees and agents shall

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28 not have any power to bind or commit the CITY to any decision.

23. FINANCIAL RECORDS. Records of CONTRACTOR’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this Agreement will be kept on a generally recognized accounting basis and made available to CITY if and when required.

24. NOTICES. All notices required hereunder shall be in writing and mailed postage prepaid by certified or registered first class United States mail, postage prepaid, return receipt requested, or by personal delivery to the CITY’s address as shown below, or such other places as CITY or CONTRACTOR may, from time to time, respectively, designate in a written notice given to the other. Notices shall be deemed effectively served upon deposit in the United States Mail, or upon personal delivery.

To CITY: Guy Bjerke, Director
Economic Development and Base Reuse
City of Concord
1950 Parkside Drive
Concord, CA 94519-2578
Telephone: (925) 671-3076
To CONTRACTOR: David J. Travers, President
Guardian Security Agency
1820 Galindo Street, #3
Concord, CA 94520
Telephone: (925) 356-3034

25. NON-LIABILITY. No member of the CITY and no other officer, official, employee or agent of the CITY shall be personally liable to CONTRACTOR or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONTRACTOR or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.

26. EXECUTION; COUNTERPARTS. Each individual or entity executing this Agreement on behalf of CONTRACTOR represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONTRACTOR and that such execution is binding upon CONTRACTOR. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding

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28 upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

27. TIME OF ESSENCE. Time is of the essence in the performance of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement in one (1) or more copies as of the date and year first written above.

CONTRACTOR: CITY:

Guardian Security Agency, City of Concord,
a California corporation a California municipal corporation By: _______________________________ By: _____________________________ Name: David J. Travers Name: Valerie J. Barone
Title: President Title City Manager
Company: Guardian Security Agency Company: City of Concord Address: 1820 Galindo Street, #3 Address: 1950 Parkside Drive Concord, CA 94520 Concord, CA 94519
Telephone: (925) 356-3034 Telephone: (925) 671-3150
APPROVED AS TO FORM: ATTEST:

City Attorney City Clerk
FINANCE DIRECTOR’S CERTIFICATION:

Concord, California
Date: _____________________________, 2023

I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/2024 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.

THE SUM OF $422,000. Account Code 4009500C999-4002011111-63800.

Finance Director’s Signature

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From: Bjerke, Guy <[email protected]>
Sent: Monday, August 7, 2023 10:11 AM
To: Barone, Valerie <[email protected]>; Ezell, Justin <[email protected]>; Brown, Susanne <[email protected]>; Ortega, Jennifer <[email protected]>; Fockler, Joelle <[email protected]> Cc: McAuley, Wendy <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]> Subject: RE: Question about Item 5i

*This email is being sent to all Councilmembers*

We estimate that 90% of gate and security costs are related to use by GoMentum Station. GoMentum pays for 100% of their use.

The remaining 10% paid for by the LRA covers gate and security costs attributable to use by the U.S.

Navy, LRA, East Bay Regional Park District, and Contra Costa County (Fire & Sheriff). In our responsibilities as the LRA we facilitate the use by these other public agencies because we have an interest in their success or are informally trading services (fire suppression, base clean-up, protection of endangered species, etc.)

Once we have a master developer and agreed-upon term sheet – we will have further discussions with U.S. Navy and all parties about interim base management issues – including gate and security costs.

Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
[email protected]
(925) 671-3076

Agenda Item No. 5.i
Benched Correspondence
August 8, 2023

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From: Obringer, Carlyn <[email protected]> Sent: Sunday, August 06, 2023 2:23 PM
To: Barone, Valerie <[email protected]>; Bjerke, Guy <[email protected]> Subject: Question about Item 5i

Hi Valerie and Guy,
I understand that 90% of the security needs at the CNWS are related to Gomentum. What comprises the 10% of security needs that the LRA is funding? Is the EBRPD kicking in any funding for security? If not, why not?

Best Regards,
Carlyn

Carlyn Obringer
Councilmember, District 2
City of Concord
925-324-9595

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From: Suzan Requa <[email protected]>
Sent: Monday, August 7, 2023 7:10 PM
To: Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Hoffmeister, Laura <[email protected]>; Nakamura, Laura <[email protected]>; Aliano, Dominic <[email protected]>; Bjerke, Guy <[email protected]>; City Clerk <[email protected]> Subject: Security Guard Services - Grand Jury Report

Dear City/LRA Leadership:

This expense is completely a slap in the face to your Concord community. You are in denial being promoted by the erroneous statement from your own staff that this is really a typical Grand Jury Report and that not one of you sees this report as a wake up call. You are spending City of Concord taxpayer money - including your own hard earned money. You said you would not risk Concord financials for the CNWS.

Is this on the consent calendar so you don't even have to publicly discuss it. Take it off the Consent Calendar and if you can explain why you are overruling the Grand Jury statement that you completely eliminate these expenses then do explain it to us. The only reason for the security guard service is due to GoMentum...our city would not need a security guard if this project were not in progress (on the property that is still not ours!) The security guard company needs to be provided a list of our access needs and personnel and we should not be paying for this service. CCTA should be responsible as noted in the MOA or whatever document is required. This expense is solely, CCTA and AAA responsibility. Or charge the GoMentum project rent for the use of the land that covers all expenses. GET FINANCIAL EXPERTISE on staff. This should not have been allowed to go forward.

Sincerely, Suzan Requa

CITY COUNCIL/LOCAL REUSE AUTHORITY CONSENT CALENDAR

Considering – award of a contract for security guard services at the former Concord Naval Weapons Station to Guardian Security Agency, in the not-to-exceed amount of $422,000 (consisting of $400,000 based on the estimated need for services which includes temporary 24/7 security, plus an additional $22,000 should the City require additional services) for the initial term to June 30, 2024, with the option to extend the contract two (2) additional one (1) year periods in the not-to-exceed amount of $422,000 for each extension term (up to a total amount of $1,266,000); and authorizing the City Manager to execute the contract in a form acceptable to the City Attorney. (Funding will be provided by GoMentum Station (100% of their use), and the Local Reuse Authority (LRA) using funds previously loaned to the authority from the General Fund). Recommended by the Director of Economic Development and Base Reuse.

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From: Hope Johnson <[email protected]>
Sent: Tuesday, August 8, 2023 12:33 PM
To: Bjerke, Guy <[email protected]>; Barone, Valerie <[email protected]>; City Clerk <[email protected]>; Fockler, Joelle <[email protected]> Cc: Brown, Susanne <[email protected]>; McAuley, Wendy <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]>; Hoffmeister, Laura <[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]> Subject: RE: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) Director Bjerke:

Thank you for your clarifying explanation. I would still suggest that the draft response to be changed to indicate the estimate was previously 80% as the response has not yet been sent out and currently says or at least leaves the impression the estimate is 80%:
"The determination that 80 percent of access and security costs should be paid for by GoMentum is a reasonable estimate at this time and will be reviewed in the future." (emphasis added)
Council is considering a different estimate during tonight's meeting before consideration of the response to the Civil Grand Jury and the response the jury receives should be accurate.

Hope Johnson

-----Original Message-----
From: Bjerke, Guy <[email protected]>
Sent: Aug 8, 2023 12:24 PM
To: Hope Johnson <[email protected]>, Barone, Valerie <[email protected]>, City Clerk <[email protected]>, Fockler, Joelle <[email protected]>
Cc: Brown, Susanne <[email protected]>, McAuley, Wendy <[email protected]>, Mora, Israel <[email protected]>, Ryan, Joan <[email protected]>
Subject: RE: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) *This email is being shared with all Councilmembers*
Hope-
Thank you for your email.

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The difference between the GoMentum Station use estimates in the Grand Jury response (5.j) and the Guardian Security agreement (5.i) is the first is looking at the past and the second is going forward into the future.

In the past the GoMentum Station share of estimated security costs was 80%. That’s what is reflected in the proposed response to the Grand Jury with a commitment to review the estimate in the future.

The Guardian Security agreement estimates GoMentum Station’s share of security costs at 90% because, as stated in the staff report, GoMentum Station has indicated they will be requiring additional after-hours gate access and security – such that their share of use/costs will increase.

The reports are consistent – and the difference is looking backwards versus projecting forward.

The LRA is agreeing in the Grand Jury response to make efforts to improve how project funding is tracked and making that more accessible in the future.

Again, thank you for your question.

Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
[email protected]
(925) 671-3076

From: Hope Johnson <[email protected]>
Sent: Tuesday, August 08, 2023 11:48 AM
To: Barone, Valerie <[email protected]>; Bjerke, Guy <[email protected]>; City Clerk <[email protected]>
Cc: Hoffmeister, Laura <[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]>; Brown, Susanne <[email protected]>
Subject: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) Dear City Manager and Base Reuse Director:

Please note there is a discrepancy between the percentage of use of the CNWS security gate estimated for the GoMentum Station in Items 5i and 5j. Staff Report for Item 5i (contract for security guard services) estimates GoMentum Station's use at 90%

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and the proposed draft response to the Civil Grand Jury for Item 5j estimates the use at 80%.

Both the Civil Grand Jury and the LRA should be receiving consistent information on this estimate considering that the City of Concord has been and will be partially funding this on an ongoing basis based on the estimated percentage, even if only until a master developer is selected. City staff and various competing developers have indicated the CNWS process will not be funded by the City of Concord's general fund (presumably also to include other city sources such as workers' comp funds), and Council, LRA, and the public should be able to accurately track that this is the case.

It would be helpful for these contracts, supporting evidence for the estimates of percentages used, amounts paid, and funding sources were easily accessible on the Concord Reuse web site.

Thank you for your attention to this matter.

Hope Johnson
Concord Resident

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Staff Report
Date: August 8, 2023
To: City Council/City Council Sitting as the Local Reuse Authority From: Valerie J. Barone, City Manager
Prepared by: Guy Bjerke, Director of Economic Development and Base Reuse [email protected]
(925) 671-3076
Subject: Considering the City/Local Reuse Authority Response to Contra Costa County Grand Jury Report No. 2305, Concord Naval Weapons Station "A Promise Unfulfilled."
Report in Brief
The Contra Costa County Grand Jury has issued Grand Jury Report No. 2305, Concord Naval Weapons Station “A Promise Unfulfilled” (“Report”). The Report requires a City/Local Reuse Authority (LRA) approved response from the City Council to the findings and recommendations set forth in the Report.

Recommended Action
Authorize the City Manager to submit the attached response letter to the Grand Jury on behalf of the City/Local Reuse Authority (“Response” at Attachment 1).

Background
Each year the Contra Costa County Grand Jury selects governmental issues to research and analyze on behalf of the citizens of the County. Their reports are intended to help bring exposure to important government issues, provide research and analysis, and make findings and recommendations for possible solutions. The result is a report to which identified public entities are required to respond.

The FY 2022-23 Grand Jury elected to issue a Report to the City of Concord and the Local Reuse Authority (Attachment 2). The Report was issued on June 15, 2023 and provides analysis, findings, and recommendations. The Grand Jury has requested that the City of Concord and Local Reuse Authority respond to the findings and recommendations in the Report. While the City and LRA are separate legal entities, the same five elected officials serve as the governing body of each such entity. The

5.j5.j5.j5.j5.j5.j

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City Council Agenda Report
Agenda Item No. 5.j
August 8, 2023
attached response letter serves as the joint response of the governing bodies of the City and LRA.

Analysis
The Report topics and the required formatting of the City/LRA Response are discussed below.

The format of the Response to the findings and recommendations is prescribed by law (Penal Code Section 933.05). The City/LRA have complied with that format. However, it is important to note that State Law does not provide a clear avenue for correcting a Grand Jury’s basic premise. Accordingly, the City/LRA have included a statement of disagreement with the Grand Jury’s notion that “little has been achieved” over the past seventeen years, and provided a list of significant accomplishments made possible by robust public input, City/LRA staff efforts, partner efforts (e.g. the East Bay Regional Parks District, affordable housing advocates, the Navy), and elected officials.

With regard to the findings, the City/LRA must provide a response of agreement, disagreement, or partial disagreement with discussion of any reasons for “non- agreement.”
With regard to the recommendations, State Law requires a response to be in one of the following four formats:
 The recommendation has been implemented, with a summary describing the implemented action.
 The recommendation has not yet been implemented, but will be implemented in the future, with a time frame for implementation.
 The recommendations requires further analysis. This response should explain the scope and parameters of the analysis or study, and a time frame for the matter to be prepared for discussion. This time frame shall not exceed six months from the date of the publication of the Report.
 The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation thereof.

The Report is designed to analyze and critique six different components of the Reuse Project:

1. 2021 Master Developer Selection

2. LRA Contractor Management

3. Transparency

4. Concord City Loans to the Local Reuse Authority

5. GoMentum Station Expenses

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City Council Agenda Report
Agenda Item No. 5.j
August 8, 2023

6. Jenkins Report Charged Against LRA City Loan
The Report outlines findings and recommendations intended to improve public accountability.

The Response was drafted by City/LRA staff well in advance of the 90 day response timeframe granted pursuant to Penal Code Section 933(c), and satisfies the requirements set forth in Penal Code Section 933.05.

Financial Impact
There is no fiscal impact to the City created by responding to the Grand Jury Report.

Public Contact
The City Council Agenda was posted.

Attachments

1. Proposed Response to Grand Jury Report No. 2305

2. Grand Jury Report No. 2305, Concord Naval Weapons Station “A Promise Unfulfilled”

3. Correspondence Received

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August 9, 2023
By U.S. Mail and email ([email protected]) Ms. Cynthia Roberts, Foreperson
Contra Costa County Civil Grand Jury
P.O. Box 431
Martinez, CA 94553
Re: City of Concord and Local Reuse Authority Response to June 15, 2023 Grand Jury Report No. 2305, “Concord Naval Weapons Station Grand Jury Report, A Promise Unfulfilled” Dear Ms. Roberts:

This letter serves as the City of Concord’s (and Local Reuse Authority’s) response to the Contra Costa County Civil Grand Jury’s findings and recommendations set forth in Report No. 2305, hereafter referenced as the “Report” in this letter. This letter was reviewed by the Concord City Council, sitting as the Local Reuse Authority, at its August 8, 2023, meeting, and I was directed to submit the response for the City of Concord and Local Reuse Authority. This response satisfies both the Local Reuse Authority (LRA) response requested by August 13, 2023 and the City of Concord response requested by September 13, 2023.1 Before responding to the Grand Jury’s findings and recommendations, the City/LRA wishes to object and refute a statement found in the Report’s Summary:
“Now, seventeen years after Concord was designated as the Local Reuse Authority, little has been achieved….”
The LRA disagrees with the Grand Jury’s conclusion that over the past seventeen years “little has been achieved…” The City/LRA recognizes that the scope of materials available on the LRA website may be challenging to review and process. However, it appears that the Report title and this statement demonstrates a lack of understanding as to how much progress the LRA has made working with the community, stakeholders, local agencies, regulators, and the U.S.

Navy on this complicated project, including:
 The Reuse Plan and Environmental Impact Report was adopted after 3 years of community engagement in 2010.
a. http://concordreuseproject.org/DocumentCenter/View/1523/2006-09-CNWS-Phase- 1-Report
1 A city has 90 days to respond under Penal Code Section 933(c). While that section references a 60 day response timeframe with respect to county officers and boards, the LRA is not a county board. Rather, the LRA and the City Council are two separate legal entities they are made up of the same five elected officials. Out of respect to the Grand Jury, and in the interest of transparency, the City/LRA’s response was nevertheless drafted with the 60 day timeframe in mind.

Attachment 1

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

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b. http://concordreuseproject.org/DocumentCenter/View/167/Final-Reuse-Plan-EIR- 2010
 The Reuse Area Plan and environmental amendments were adopted into the City’s General Plan in 2012.
a. http://concordreuseproject.org/DocumentCenter/View/1105/2012-01-24-CRP-Area- Plan---Book-1-Vision-and-Stand
b. http://concordreuseproject.org/DocumentCenter/View/1106/2012-01-24-CRP-Area- Plan---Book-2-Technical-Chapters
c. http://concordreuseproject.org/DocumentCenter/View/1092/2012-01-24-CRP-Area- Plan---Book-3-Climate-Act-Plan
d. http://concordreuseproject.org/DocumentCenter/View/152/Final-Area-Plan-EIR- Addendum--Initial-Study-of-Environmental-Significance-2012  Consulted with U.S. Fish & Wildlife Service to obtain a Biological Opinion permitting the transfer and development of the entire project area; all 5,000+ acres in 2017. a. 2017-05-30-US-Fish-Wildlife-Biological-Opinion (concordreuseproject.org)  Assisted the U.S. Navy with their Environmental Impact Statement in support of future property transfer in 2017.
a. http://concordreuseproject.org/DocumentCenter/View/802/BRAC-Final- Environmental-Impact-Statement-Vol-1-and-2-Aug-2017
 Prepared a Conceptual Plan for the Tournament Sports Complex in 2018/19, which Council received in 2019.
a. http://www.concordreuseproject.org/DocumentCenter/View/1755/Tournament- Sports-Complex-Conceptual-Plan-and-Feasibility-Report---website  Facilitated the Blue Ribbon Committee’s Campus District Vision Framework in 2018/19 which Council received in 2019
a. http://www.concordreuseproject.org/DocumentCenter/View/1746/2019-06-04-BRC- Campus-District-Vision-Framework-Final-Report
 Surveyed and established property boundaries allowing for the future transfer of property; this work was necessary to facilitate the Public Benefit Conveyance to the East Bay Regional Park District of approximately 2,600 acres of land to create the Thurgood Marshall Regional Park in 2019.
a. Regional Park at Concord Naval Weapons Station Reaches Major Milestone | East Bay Parks (ebparks.org)
b. Thurgood Marshall Regional Park Land Use Plan | East Bay Parks (ebparks.org) All of these efforts were accomplished while also monitoring the U.S. Navy’s clean-up of the property, facilitating GoMentum Station’s interim use for autonomous vehicle testing, coordinating law enforcement and fire district use of the base for training purposes, seeking a

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

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suitable master developer to author and implement a Specific Plan; and negotiating an Economic Development Agreement with the U.S. Navy agreeing to financial and other terms for property transfer.

In short, the City/LRA has facilitated a great deal of progress towards the eventual development of the CNWS.

1. 2021 Master Developer Selection
Findings

1.a The LRA team allowed master developer applicant CFP to continue to be considered in 2021 master developer selection process even though its SOQ submission dated June 18, 2021, did not include many required financial documents.

Response: The LRA2 agrees with this finding.

1.b The LRA allowed applicant CFP to continue to be considered in the 2021 master developer selection process after CFP did not comply with the LRA team follow up request for financial documents made in July 7, 2021, correspondence.

Response: The LRA agrees with this finding.

1.c The RFQ process adopted by the Concord City Council ad hoc committee did not utilize the LRA staff and consultants to issue a written report with a recommendation for CNWS master developer.

Response: The LRA agrees with this finding.

1.d. The RFQ process used in 2021 master developer selection process did not use practices such as stated weighted criteria and objective scoring.

Response: The LRA agrees with this finding.

1.e The RFQ process used in 2021 master developer selection process did not include a written, scored evaluation of the SOQ submitted for the CNWS project from LRA staff and consultants.

Response: The LRA agrees with this finding.
2 The Concord City Council is the Local Reuse Authority board for the Concord Naval Weapons Station Reuse Project. All references to the LRA in responses also serve as responses from the Concord City Council.

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

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Recommendations

1.a The Concord City Council should consider adding language to the Selection Process and Submittal Requirements section of an RFQ or RFP that incomplete or nonresponsive submissions may lead to disqualification of the applicant.

Response: The recommendation will not be implemented because the RFQ for the next master developer selection process was considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023. However, the City Council has full discretion to reject respondents based on incomplete or nonresponsive submissions as outlined in Appendix F of the RFQ. Please also see the response to Recommendation 1.e, below.

1.b The LRA team should specify that the stated RFQ or RFP response date and time is the final cutoff for submission of materials by any applicant.

1.c The LRA should specify that there will be no extensions or second requests for information that was clearly requested in the RFQ or RFP.

1.d RFQs and RFPs for the CNWS project should be created by designated city staff and outside consultants of the LRA team.

Response: The recommendation has been implemented. All of the RFQs and RFPs for the CNWS project have been created by designated staff and outside consultants of the LRA team.

1.e The Concord City Council should provide input on parameters and scope of a RFQ or RFP, prior to the document being written.

Response: The recommendation has been implemented. At a public meeting on March 14, 2023, the City Council provided input into the current master developer selection process and at a public meeting on May 9, 2023, reviewed the draft RFQ, provided direction to staff, and authorized its release.

1.f The LRA staff and designated consultants should be the sole evaluators of the RFQ or RFP responses for the CNWS project.

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Response: The recommendation will not be implemented because the RFQ for the next master developer selection process was considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023. The defined process in the issued RFQ states that staff and consultants will provide a basic evaluation in a Summary Table for Council and the public to review. Further, the issued RFQ states that the Council will evaluate the RFQ responses and the selection will be made by the City Council. The City Council are the directly elected governing representatives of the community and it falls within their scope of authority and responsibilities to make the decision on which firm the LRA will work with as a Master Developer for the CNWS project and it is also within the Council's authority to define the level of staff analysis that supports their evaluation.

1.g Scoring criteria for RFQ or RFP evaluations used in the CNWS master development process should be provided on an RFQ or RFP template sent to each potential applicant.

1.h A raw score or percentage weight should be assigned for each evaluation criteria used on CNWS master developer RFQs or RFPs. This methodology should be created and documented before the SOQ due date and council review of the responses.

1.i The LRA director should issue a report with staff recommendations for the master developers considered for the CNWS project. The report should provide objective detail based on selection criteria on why the master developer candidates were chosen or eliminated.

1.j The report on staff recommendations for the master developer should be publicly released immediately following the council meeting in which the Concord City Council selects the master developer.

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item, as is its practice, concurrent with publication of the agenda. Moreover, specific to matters related to master developer selection, it is the City/LRA practice to release documents early, such as a week to several weeks before City Council consideration.

2. LRA Contractor Management
Findings

2.a LRA staff and consultant reference checks in the 2021 master developer selection process missed certain points involving prior BRAC experience and litigation history.

Response: The LRA agrees with this finding.

2.b The PSAs between the City of Concord and ARUP, HRA Advisors, Inc., and ALH Urban & Regional Economics during the period 2020 to 2022 did not have language to restrict hourly rate increases by consultants during one-year PSA terms.

Response: The LRA agrees with this finding.

Recommendations

2.a To control costs and foster more accurate expense forecasting, City of Concord PSAs for LRA consultants should have specified hourly rates by either position or by individual and the hourly rates should remain fixed across the one-year PSA.

Response: The recommendation has not yet been implemented, but will be implemented as contracts are offered, renewed, or extended in the future.

3. Transparency
Findings

3.a The RFQ and SOQ process used in the 2021 CNWS master developer selection prevented LRA staff from providing analysis and recommendations on the three respondents.

Response: The LRA agrees with this finding.

Recommendation

3.a For future RFQs and RFPs used to select a master developer for the CNWS project, there should be a full analysis and report issued by LRA staff.

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4. Concord City Loans to the Local Reuse Authority
Findings

4.a Concord city staff provided the Concord City Council in February 2020 a report that provided detail on CNWS-related expenses paid from loans the City of Concord has made to the LRA.

Response: The LRA agrees with this finding.

4.b The annual Program Reports issued by the LRA do not show the actual funding source.

Annual forecasts by vendor show projected funding sources but fiscal year actuals are shown as totals with no indication of the funding source.

Response: The LRA agrees with this finding.

4.c The City of Concord borrowed $3.15 million from the city’s self-insured workers compensation fund in FY 2017 and FY 2018 to provide funds to the City of Concord’s loan to the LRA.

Response: The LRA agrees with this finding.

4.d The City of Concord’s financial reporting does not show that loans made from Concord’s workers compensation fund to the LRA have been paid off.

Response: The LRA agrees with this finding.

Recommendations:

4.a Concord city staff should provide updates to the February 2020 report to show payments made against Concord’s loan to the LRA for CNWS-related expenditures for 2021, 2022 and 2023 and to show details on what funds were deposited and/or refunded from Concord First Partners and future master developers.

Response: The recommendation has not yet been implemented, but will be implemented in the future. The February 2020 report and associated table of expenditures will be updated to reflect expenditures to date against the loan to the LRA by September 30, 2023. The details of deposits and/or refunds to Concord First Partners or future master developers is a separate fund and different document. The record of deposits and refunds to Concord First Partners will be released by the LRA by September 30, 2023.

4.b The City of Concord should produce annual reporting on the city loans to the LRA, showing annual and project to date expenses by vendor in detail as was done in the February 2020 report.

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4.c The City of Concord should find funding sources other than its self-insured workers compensation fund when making loans to the LRA.

Response: The recommendation has been implemented. The latest loan from the City to the LRA of $530,000, approved by the City Council on June 13, 2023, comes from unallocated General funds.

4.d The City of Concord should repay its self-insured workers compensation fund for any loans made to the LRA that are outstanding more than 36 months per state guidelines.

Response: This recommendation will not be implemented. The City is not self-insured for workers’ compensation claims. The City participates in a joint powers authority, Public Risk Innovation, Solutions, and Management (PRISM), along with other cities and governmental agencies. The City contracts for several different coverages, including workers’ compensation. The City’s deductible is $500,000 per claim.

Additional information on the City’s risk and insurance management is available in Note 16 of the City’s annual comprehensive financial report available here:
https://www.cityofconcord.org/DocumentCenter/View/8855/2022-Annual- Comprehensive-Financial-Report
The City is self-insured for its deductibles for workers compensation claims and does have a fund called the City’s workers compensation fund to be used for this purpose. The amount of this fund is evaluated every 2 years and when needed during budgeting, the City adds funding to this fund. The current loan from this fund is not creating undue risk to the fund in that it is funded to 90% certainty.

Further, it is worth noting that the reference the Grand Jury makes to state guidelines are guidelines intended to guide county’s not cities.

5. GoMentum Station Expenses
Findings

5.a CCTA, AAA, and their partner clients have been using the GoMentum test facility on the CNWS site since 2014.

Response: The LRA agrees with this finding.

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5.b There is language in a 2017 LRA document that CCTA would pay 80 percent of Guardian Security costs.

Response: The LRA agrees with this finding.

5.c In 2020, 2021, and 2022, AAA forwarded to Concord memos listed as Security Guard coverage for GoMentum Station that stated maximum monthly payments AAA will pay for GoMentum security services. These memos were signed only by AAA and are not signed by Concord city staff.

Response: The LRA agrees with this finding.

5.d The signed MOU between Concord and CCTA states that CCTA should reimburse Concord for incurred fees/costs associated with providing access and security for GoMentum facility at CNWS.

Response: The LRA agrees with this finding.

5.e Since 2016, Concord has paid 33 percent of Guardian Security fees associated with GoMentum and CCTA and AAA have jointly reimbursed Concord for 67 percent of Guardian Security’s costs associated with providing security services at CNWS.

Response: The LRA disagrees with this finding. The calculation incorrectly assumes that all Guardian Security costs are attributable to GoMentum/CCTA/AAA. The U.S. Navy, LRA, East Bay Regional Park District, and Contra Costa County required gate access during this timeframe and those costs were borne by the LRA.

Recommendations

5.a The agreement for gate security between Concord, AAA, and CCTA should be modified to require that AAA and CCTA reimburse the Concord LRA for 100 percent of CNWS gate security costs as stated in the May 2019 MOU.

Response: This recommendation will not be implemented because the May 2019 MOU states that AAA and CCTA will reimburse the LRA for “fees/costs associated with providing access and security for the TESTBED site and facilitating the PROGRAM on the site.” The costs associated with providing access and security are not exclusively related to GoMentum Station. The City/LRA, U.S. Navy, East Bay Regional Park District and Contra Costa County also access the site and require security to do so and the LRA funded that share of security costs. The determination that 80 percent of access and security costs should be paid for by GoMentum is a reasonable estimate at this time and will be reviewed in the future.

5.b Notice on updated security reimbursements should be sent to AAA and CCTA within 90 days of this report being received by Concord City Council and LRA.

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Response: The recommendation requires further analysis to assess the share of access and security costs attributable to GoMentum Station versus other Base users. The LRA will conduct this analysis in conjunction with AAA and CCTA and either confirm or change the reimbursement amount as appropriate by December 15, 2023.

5.c The change in the CNWS security service rate agreement reimbursement should be effective within 90 days of AAA and CCTA being notified.

Response: The recommendation requires further analysis. See answer to 5.b above.

5.d The LRA should seek reimbursement from AAA and CCTA on CNWS gate security payments in excess of 20% in 2020 and 2021.

Response: The recommendation requires further analysis. By December 15, 2023, LRA staff will reevaluate past invoicing and determine if the terms of the agreement with AAA and CCTA were met regarding GoMentum gate guard costs being carried by GoMentum.

6. Jenkins Report Charged Against LRA City Loan
Findings

6.a The Jenkins Report presented the findings of an investigation authorized by the Concord City Attorney in 2015.

Response: The LRA agrees with this finding.

6.b The expense to the LRA for the investigation and report done by Michael Jenkins was $63,154 and it was paid as a 2016 expense against the city loan to the LRA.

Response: The LRA agrees with this finding.

6.c The issues investigated in the Jenkins Report were improper lobbying by a council member, removing staff recommendation from final report on the master developer and Brown Act violations. These findings involved real or perceived improper activity by the Concord city staff and the Concord City Council.

Response: The LRA agrees with this finding.

Recommendations

6.a The expenses for this investigation should not be charged to the LRA loan and ultimately to the master developer on the CNWS project.

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Response: The recommendation will not be implemented. The Jenkins investigation was related to the LRA Base Reuse Project. One of the adopted goals of the Reuse Area Plan is the concept of fiscal neutrality – that all aspects of the project should pay for itself and not rely on any subsidy from current taxpayers. The Jenkins investigation is appropriately a Reuse Project/LRA expense and was treated as such in 2016.

6.b The payment for the Jenkins investigation should be reversed as an expense against the city loan to the LRA.

Response: The recommendation will not be implemented. See answer to 6.a above.

6.c The payment for the Jenkins investigation should be paid as an expense from Concord general funds.

Response: The recommendation will not be implemented. See answer to 6.a above.

While the City and LRA are separate legal entities, the same five elected officials serve as the governing body of each such entity. Consequently, pursuant to Penal Code Section 933(b), this letter serves as the joint response of the governing bodies of the City and LRA to the Report.

Guy Bjerke, Executive Director of the Local Reuse Authority and Director of Economic Development and Base Reuse, is available to answer any questions or provide any additional information concerning the above responses. You can reach him at (925) 671-3076 or by email at [email protected].

Sincerely,
Valerie J. Barone
City Manager

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Concord Naval Weapons Station
Grand Jury Report
A Promise Unfulfilled
2022 – 2023
Contra Costa County
Civil Grand Jury
Report # 2305
June 5, 2023
Attachment 2

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Contact: Cynthia Roberts
Foreperson
(925) 608-2621

Contra Costa County Grand Jury Report 2305
Concord Naval Weapons Station
Grand Jury Report
A Promise Unfulfilled

To: Concord City Council
To: Local Reuse Authority

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page i of ii Grand Jury Reports are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Contents
GLOSSARY AND ABBREVIATIONS......................................................................................... 1 SUMMARY .................................................................................................................................... 2 METHODOLOGY ......................................................................................................................... 3 BACKGROUND ............................................................................................................................ 4 DISCUSSION ................................................................................................................................. 6 2021 MASTER DEVELOPER SELECTION ................................................................................ 6 Genesis of 2021 Master Developer Selection Process ...............................................................6 Implementation of the Selection Process ...................................................................................7 Failure of Selection Process .......................................................................................................8 Financials Included in Other RFQ Submissions from CFP Partners .........................................9 RFQ Structure Impacted Council Deliberations on August 21, 2021 .....................................10 Findings....................................................................................................................................12 Recommendations ....................................................................................................................13 LRA CONTRACTOR MANAGEMENT ...................................................................................... 13 LRA Team Contracts (PSAs)...................................................................................................14 Findings....................................................................................................................................15 Recommendation .....................................................................................................................16 TRANSPARENCY ...................................................................................................................... 16 Finding .....................................................................................................................................16 Recommendation .....................................................................................................................17 CONCORD CITY LOANS TO LOCAL REUSE AUTHORITY .................................................. 17 Findings....................................................................................................................................19 Recommendations ....................................................................................................................20 GOMENTUM STATION EXPENSES ........................................................................................ 20 Use of CNWS Grounds as a Facility for Autonomous Vehicle Testing..................................20 Acquisition of GoMentum Station Operating Rights by AAA ................................................21 Allocated Security Service Payments and Reimbursement from GoMentum .........................22 Findings....................................................................................................................................23 Recommendations ....................................................................................................................23 JENKINS REPORT CHARGED AGAINST LRA CITY LOAN................................................... 23 Findings....................................................................................................................................24 Recommendations ....................................................................................................................24 REQUIRED RESPONSES ........................................................................................................... 25

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page ii of ii Grand Jury Reports are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx APPENDICES .............................................................................................................................. 26 APPENDIX 1. MASTER DEVELOPER RFQ PROCESS TIMELINE .................................... 27 APPENDIX 2. CCIG FINANCIALS FOR 2008 OAKLAND ARMY BASE RFQ .................... 28 APPENDIX 3. LEWIS 2020 RFQ RESPONSE – SOLANO360 MIXED-USE SITE ............... 29 APPENDIX 4. TRANSCRIPTION OF 8/21/2021 CONCORD COUNCIL MEETING .......... 30 APPENDIX 5. USE OF CITY LOAN TO LRA - FEBRUARY 2020 ........................................ 31 Current Consultants ..............................................................................................................31 Previous Consultants ............................................................................................................31 Summary of Costs-All Consultants .....................................................................................32 APPENDIX 6. LRA PROJECT REPORTS - JUNE 2020/2021/2022 ..................................... 33 APPENDIX 7. MEMORANDUM OF UNDERSTANDING .................................................... 36 ENDNOTES ................................................................................................................................. 37

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 1 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx

GLOSSARY AND ABBREVIATIONS
AAA AAA of Northern California, Nevada, and Utah
ADS Automated Driving System
BRAC Base Realignment and Closure
CAV Connected and Autonomous Vehicle
CCG California Capital Group (predecessor to CCIG)
CCIG California Capital & Investment Group
CCTA Contra Costa Transportation Authority
CFP Concord First Partners
CNWS Concord Naval Weapons Station
CPRA California Public Records Act
CRP Concord Reuse Project
DA Development Agreement
DDA Disposition and Development Agreement
EBRPD East Bay Regional Park District
EIR Environmental Impact Report
ENA Exclusive Negotiating Agreement
LRA Local Reuse Authority
MOTCO Military Ocean Terminal Concord
MOU Memorandum of Understanding
OSIP Office of Self-Insurance Plans
PSA Professional Services Agreement
RFB Request for Bid
RFP Request for Proposal
RFQ Request for Qualifications
SOQ Statement of Qualifications

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 2 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx

SUMMARY
Almost twenty years ago, the City of Concord began to study future use of the land available after the decommissioning of the Concord Naval Weapons Station (CNWS). In the intervening years there have been several false starts and the city’s portion of the former base remains undeveloped. Concord is at another crossroads and the civil grand jury makes recommendations to address a series of prior missteps and to adopt measures to advance and accelerate the productive utilization of the area.

In 2006, Concord was designated as the Local Reuse Authority (LRA) for a large portion of the decommissioned military facility. Ten years passed before Concord selected Lennar Urban as the master developer for the project. However, distrust grew between the city and Lennar and the project stalled in 2019 when Lennar was unable to negotiate a project labor agreement with the Contra Costa Building and Construction Trades Council. Lennar’s Exclusive Negotiating Agreement (ENA) expired in March 2020 and the city council did not extend it.

Due to delays associated with the coronavirus epidemic, the next master developer selection phase did not begin until November 2020. In August 2021, Concord First Partners (CFP) was chosen as master developer. We make several findings regarding the 2020-21 bidding process and recommend major changes to improve the process in the future. Sixteen months of delays and extensions followed as CFP sought to create an economically viable term sheet outlining the material terms and conditions. CFP asked the city council to amend the ENA to provide CFP with an enforceable right to the property at the same time the term sheet was signed. The city council rejected CFP’s request to modify the ENA and extended the deadline to finalize the Term Sheet until January 2023. A proposed term sheet was released in December 2022, but the city council voted it down and CFP’s Exclusive Negotiating Agreement expired in January 2023.

Now, seventeen years after Concord was designated as the Local Reuse Authority, little has been achieved and the project is once again at a crossroads. In the minutes of a 2022 meeting the Navy real estate contracting officer is quoted stating the Navy does “not want this to drag on for 6 more months or we (Navy) will have to cut.” In interviews with the grand jury, city staff and council members indicate that the Navy remains supportive of the city’s efforts to move forward with a third master developer selection cycle. The grand jury recommends that the city considers remedying various prior practices and select a master developer with strong financial resources, and with experience in multi-decade military base conversion projects and working with varied stakeholders and constituents.

During this investigation, the grand jury also reviewed loans the City of Concord made to the LRA from Concord’s general fund and two other funds. We developed several findings about the use of these loans and provide recommendations on improved reporting and the appropriateness of certain payments made from these loans.

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 3 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx

METHODOLOGY
This investigation was initiated by a Concord citizen’s complaint to the grand jury. This individual was interviewed, and the complaint and testimony indicated that there were issues involving the Concord Naval Weapons Station project, which required further investigation.

The grand jury used the following investigative tools:

 Reviewed local, regional, and business publications, including blogs and websites  Reviewed documents posted on the Concord Local Reuse Authority (LRA) website  Reviewed Concord city meeting agendas and attached documents when city council met as the LRA from 2020 through 2023
 Attended a Concord community meeting presentation of the draft term-sheet by Concord city staff and CFP in December 2022
 Reviewed nine-hour video of August 21, 2021, Concord council meeting in which CFP was chosen as the master developer
 Did a site visit to Concord Naval Weapons Station
 Reviewed Concord budget and finance documents
 Reviewed Memorandums of Understanding
 Obtained and reviewed additional documents and materials from the City of Concord  Interviewed the complainant
 Interviewed eleven other individuals with expertise and information pertinent to this report.

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Concord Naval Weapons Station Grand Jury Report
A Promise Unfulfilled
Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 4 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx

BACKGROUND
Following the 1944 Port Chicago disaster in which 320 people were killed, the US Navy purchased 5,200 acres of land located within the City of Concord’s limits adjacent to the 7,600- acre Navy base located north of Concord. The Navy used the new site for the storage of ammunition, barracks, and other administrative and logistical purposes. With the end of the Cold War, the Navy determined that the Concord Naval Weapons Station site was no longer needed for its original purposes and could be decommissioned. Beginning in 1999, the City of Concord began a study to reimagine the potential utilization for this land. The area north of Route 4 continues to operate as a major ammunition transshipment port on the West Coast for the Department of Defense as the Military Ocean Terminal Concord (MOTCO).

In 2005, the Base Realignment and Closure Commission (BRAC) approved the closure of the 5,200-acre inland area of the CNWS. BRAC is a congressionally authorized process in which independent commissions review and approve military base changes which are then submitted to the Secretary of Defense. In 2006 the Department of Defense designated the Concord City Council as the Local Reuse Authority (LRA). An LRA is the entity recognized by the Secretary of Defense to create a development plan for a closed military base. The Concord LRA began a process, completed in 2012 with significant citizen input, to develop a detailed, transit-oriented, reuse plan for the site. The plan called for the development of 12,200 homes, with 25 percent sold at affordable housing rates, various public amenities such as parks and utilities to complement the housing development, and more than 6 million square feet of commercial space, schools, and other facilities. The East Bay Regional Park District (EBRPD) portion of the CNWS site, which totals 2,687 acres, is located on the eastern portion of the CNWS, bordering the City of Pittsburg foothills. It was conveyed from the Navy to the EBRPD in July 2019.

In 2014, the City of Concord initiated a Request for Qualifications (RFQ) for Phase 1, or the first five hundred acres development of its portion of the site. The RFQ called for 4,392 residential units (25 percent affordable), nearly 1.7 million square feet of commercial space, and 105 acres of parks, community centers and utilities. After an initial screening in 2014, Concord narrowed the prospective developer pool and received proposals from three developers in February 2015.

In April 2015 after further reviews, Concord began negotiations with Catellus Development Corp and with Lennar for the rights to develop the first phase. There was controversy in this phase with allegations of improper campaign contributions to a council member and favoritism by both developers. In March 2016, Catellus exited the process after raising issues about financial risk and lack of trust. In May 2016, the Concord City Council announced its agreement on a term sheet with Lennar, designating it as the master developer for the first phase of the project. A term sheet summarizes the main points of the deal before executing legal agreements.

It is a nonbinding written agreement that sets forth the key business terms to be included in a Disposition and Development Agreement (DDA) and Development Agreement (DA) between Concord and the master developer for the CNWS project.

The Concord-Lennar term sheet included language that Lennar agreed to negotiate “in good faith” at least one labor agreement with the building unions. During the next three years, Lennar was unable to reach an agreement with the Contra Costa Building Trades Council on how much union labor the developer would use on the CNWS project. In October 2019 Lennar stopped

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Concord Naval Weapons Station Grand Jury Report
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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 5 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx funding of city staff to work on the project’s draft specific plan and Environmental Impact Report (EIR) until the project labor agreement issue was settled, In March 2020, the ENA with Lennar expired after the city council declined to extend it for an additional six months.

In April of 2021, Concord issued a new RFQ for the development of the CNWS site. The RFQ resulted in proposals from three companies: Brookfield Properties, City Ventures, and Concord First Partners (CFP), a joint venture of three companies. CFP was selected as the master developer in August 2021 and entered into an ENA in October 2021. Following two extensions of the ENA, CFP presented its term sheet in December 2022, which included 3,300 more homes than on the original plan. On January 28, 2023, the Concord City Council rejected the CFP term sheet to develop the project and directed staff to let the ENA with CFP expire on January 31, 2023.

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DISCUSSION
2021 Master Developer Selection
The grand jury’s investigation of the Concord Naval Weapons Station project revealed several issues involving the August 2021 master developer selection process.  how the specified RFQ selection process was followed
 the LRA staff’s investigation of the master developer applicants  the city manager and city council’s decision to preempt city staff from providing a recommendation on the master developer

Genesis of 2021 Master Developer Selection Process
In December 2020, the Concord city council and the LRA agreed to restart the CNWS project following expiration of the ENA with Lennar. They established an ad hoc team of two city council members (Birsan and Aliano) to address certain issues and to return to the council with a recommended approach for selecting a new master developer. The Master Developer Selection ad hoc committee met five times and addressed the following issues:

1. Selection approach/City expectations

2. Qualifications requested from respondents

3. Questions for respondents

4. Selection/ranking criteria, selection process and timeline

5. Review of the draft RFQ1

The ad hoc committee considered the prior master developer selection process and decided to modify the structure and process in several ways. First, they followed the city staff recommendation to use a hybrid RFQ solicitation process. This approach would include a standard RFQ along with additional questions that would provide detail on a master developer’s approach to the project. The benefit would be an accelerated selection process while providing the necessary qualitative information for the council to consider, not using the two-step RFQ/RFP process used to select Lennar. Second, the proposed RFQ made it clear it preferred a project labor agreement. Third, the scope of development project expanded to include the entire 2,350-acre Concord LRA footprint as opposed to an initial 500-acre phase 1 development established for the 2016 selection process.2

The RFQ issued in April 2021 included subsections addressing Qualifications Requested, Questions for Respondents, Financial Capabilities, and Required Appendices. The RFQ also provided specific selection criteria in Section 5.3. They are shown below as they are listed in the RFQ which states they are listed in order of importance:

1. Demonstrated understanding and commitments of the developer to satisfy the City’s priorities for the CNWS, including development vision as expressed in the CRP Area Plan and community facilities in located in Section 3.4, including the Concord First commitment found in Section 3.11.

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2. Financial capability and history of successfully financing projects of a similar scale, particularly those with a large infrastructure component.

3. Experience of Lead Developer with successful completion of similar projects, including projects that are large-scale, mixed-use, military base reuse, and transit oriented.

4. Organization of the Master Developer Team

5. Experience of Master Developer Team members who are not the Lead Developer – such as architects/engineers/permitting/remediation specialists

6. Responses from references.3

In a December 2020 staff report to the city council, Guy Bjerke, Concord’s Economic Development & Base Reuse Director, proposed that the city LRA team’s role in evaluating the RFQ submissions would be to score information on evaluation criteria including performance on past projects, financial capacity to deliver the project, references, and responses addressing the applicant’s approach to the project. Following interviews, the city council would select the preferred master developer candidate.4 The 2021 master developer selection team (listed as City or LRA team) consisted of Bjerke, one Concord city planner partially allocated to this project and five outside consultants.5

Implementation of the Selection Process
The RFQ that was issued varied on several points from the staff proposal. The LRA Team’s (staff and consultants) participation in the selection process was limited to reviewing the Statements of Qualifications (SOQs) for responsiveness to the selection criteria and the preparation of a summary table conveying that information. The LRA Team would not make any recommendations as to which respondents to interview. The full city council would decide which respondents to interview based on their review of the summary table and each applicant’s Privacy Redacted Statements of Qualifications (with confidential information removed). 6 There was no mention of applicant scoring in the RFQ issued on April 16, 2021, which was due on June 18, 2021.

The RFQ timeline is shown in Appendix 1. The Selection Process and Timeline found in section

5.1 of the RFQ was based on the number of applicants and the city council’s schedule. The August 3 meeting was cancelled and the LRA Team brought the three applicants forward for presentations and council interviews on August 21. The applicants were Brookfield, City Ventures, and CFP, a three-company joint venture comprised of Discovery/Seeno Companies (Discovery), Lewis Group of Companies (Lewis), and California Capital & Investment Group (CCIG). Concord First Partners is the name this joint venture adopted after its selection.

Applicant presentations were made available for public review as part of the agenda packet for the August 21 city council meeting when the council selected the master developer. The three applicants each forwarded PowerPoint presentations of approximately forty pages, which provided overviews of their project teams, detail on their master developer experience, their visions for the CNWS project, and answers to eight questions from the RFQ. The presentations contained minimal company financial data, but the applicants were advised that hard copies of Appendix F, which included additional financial information, should be sent to Gerald Ramiza, an attorney who was a member of the LRA team.7 The RFQ contained language regarding

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Failure of Selection Process
A significant issue in the RFQ selection process was the submission of documents to determine and verify financial capability. The required documents from CFP were (1) not returned on time and (2) were incomplete. Financial capability was listed as the second most important criteria in the selection process. The total CNWS project cost was estimated at six billion dollars. In addition, initial infrastructure costs before any property sales, were estimated at five hundred million dollars.9 As these would be extremely large investments for the applicant companies, there would need to be thorough and complete reviews to vet their financial capabilities. Based on the grand jury review of the records provided, this due diligence for the financial capabilities of CFP was not done.

The financial materials submitted by CFP as part of their SOQ were not complete. This omission was noted in a July 7 letter Guy Bjerke sent to the three CFP principals: Albert Seeno III, Richard Lewis, and Phil Tagami. This letter asked for specific information requested in the RFQ but not provided. This information was required on the SOQ submission due on June 18. 10 The missing information included three years of audited financial statements, information regarding material changes in financial condition over the past three years, and questions about the availability of credit ratings for each of the three CFP companies.

The RFQ stated that the financial statement requirement applied to both privately held companies and public companies. Mr. Bjerke acknowledged receipt of Seeno and Lewis reference letters and advised that CCIG needed to submit these documents. The letter also repeated requests for litigation information previously requested in the RFQ. Mr. Bjerke’s letter set a July 15 deadline for the CFP partners to submit these materials and documents. 11

The CFP response, dated July 15, was signed by the three CFP principals. It acknowledged that the city needed to ensure that the selected master developer would have the financial capacity to complete the CNWS project. The response also advised that since “...the Discovery team is comprised of (3) separate local and non-publicly traded companies, we feel that a broad, generic request for financial information (at this point) is premature and unnecessary.” The response also addressed the questions about material changes and credit ratings in two sentences without providing further documentation except for financial reference contacts. CFP advised that their team had the capabilities and financial standing to manage a project of this magnitude based on prior projects built in California.12 On July 30, counsel for Discovery/Seeno provided a litigation summary of cases over the prior ten years.

The LRA team compiled a summary of the three applicants’ SOQ in a file dated August 2. This file was the means for the LRA team to present a summary of each applicant’s SOQ to the council. As part of the agenda package for the August 21 city council meeting, this summary was made public to facilitate the deliberations and vote for the new developer. 13 Regarding

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 9 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx CFP’s financials, the summary table indicated that CFP maintained its position on not supplying the financial data required in the RFQ and the follow-up request letter. The SOQ showed that Brookfield provided audited financials for three years, a Moody’s credit rating report and showed consistent annual revenues of $2B. The LRA summary table indicated Brookfield’s finances show “... it has the capacity to execute very large land development projects.” The third master developer, City Ventures, a privately held limited liability company, provided confidential audited financials for its three most recent operating years. They had annual revenues of $400 million and were judged as having “...the capacity to execute very large land development projects.”14 The LRA did not provide an assessment that CFP had the capacity to execute a large land development project in this summary.

On July 22, Louis Parsons, President of Discovery/Seeno Companies, sent e-mails to request meetings with individual council members before the August 21 meeting to vote on the master developer. Council member Birsan met with the Discovery and Lewis teams twice. He addressed several issues with the CFP in writing on August 16 prior to a second meeting and made the following points about their financial data submission:

Finance: there is a bunch of information on references (page 5 and 6), but it is not exactly clear to me what is actually available. You may have a line of credit of 'millions' but how much is available for this project? The transparency issue is a problem, while a compromise of having some Third Party review the info that can be shown confidentially and simply answer the question of can this project be done financially or not, this seems reasonable, but does such a group exist and can they get it done by Saturday?15
This questioning indicates the financial data requested in the RFQ and the July follow letter had not been submitted by CFP and that missing data was an issue for one council member days before the August 21 vote on the master developer selection.

The Discovery portion of the CFP presentation to the council on August 21 reiterated its position on financial disclosure. It stated that as “...a private company that has been in business for decades, financial statements are not and will not be made public.” They also advised the scale and scope of the CFP partner’s past and current projects “...leave no doubt about the financial capabilities of this Development Team to easily finance this project.” The Seeno presentation includes language such as “track record speaks for itself”, “leave no doubt about the financial capabilities”, and “private company with a track record of success”.16 A CFP principal stated that their size and prior success afforded them the right to have the financial disclosure requirements waived; their financial position can only be validated through the financial disclosure requirements in the RFQ.

Financials Included in Other RFQ Submissions from CFP Partners The grand jury reviewed other RFQs that CFP partners had completed. We were not able to find records of prior project RFQs completed by Discovery but did find RFQ submissions from CCIG and Lewis. We reviewed CCIG’s response to a 2008 Oakland Army Base RFQ in which CCIG, then operating as California Capital Group (CCG) was the junior partner in a joint venture submission with AMB Property Corporation. In 2009, the joint venture between CCG and

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 10 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Prologis (which acquired AMB) was selected as the master developer for the Oakland Army Base.

In his 2008 RFQ submission, Phil Tagami, CEO of CCG, detailed that CCG had raised $57 million from a dozen sources and owned, managed, leased, and/or renovated over 4.5 million square feet with a value of $328 million. In section D2 of this RFQ, Tagami provided three years of personal tax returns for himself and another CCG partner as well as real estate loan data from two projects that they retained an ownership interest in. This RFQ information was sourced from CCIG’s joint venture website, and a summary of the financial information submitted for that RFQ is shown in Appendix 2.17

Lewis responded in January 2020 to an RFQ for the Solano360 Mixed Use Site Project. This project was for the redevelopment and reenergizing of the 149-acre site that housed the Solano County Fairgrounds. Approximately 25 percent of the property would be retained for the fairgrounds with the rest being developed in this project. The specific plan from Solano County proposed “a mix of region-serving entertainment and amusement attractions, along with complementary restaurant, retail, commercial, and other uses.” The financial portion of the RFQ required applicants to provide “...a statement of the entity’s financial resources and fiscal capacity sufficient to undertake and successfully complete a project of the scale envisioned.” Financial disclosures were requested to verify abilities to provide necessary capital to fund predevelopment costs, secure construction and permanent loan financing, provide equity capital and provide funding for ongoing operations. The county’s RFQ stated that “...submittals that are complete, responsive, and meet the minimum qualifications will be evaluated and considered.” 18

Lewis’s response to the Solano360 RFQ stated in the Confidential Financial Submittal - section 5, that they would provide three years of Profit/Loss Statements. A copy of this page in the Lewis RFQ response is shown in Appendix 3.19 Although the grand jury could not view these financial documents, we have verified independently that they were submitted and responsive to the RFQ’s requirements. A cover letter signed by Richard Lewis, President of Lewis Planned Communities, accompanied the RFQ submission and confirmed their understanding of the submittal requirements. Note this RFQ request provided a weighting for each evaluation category. The financial capability category was weighted 25%.

Nineteen months later, Guy Bjerke sent a follow-up letter to the three CFP principals reiterating the requirements for financial documents in the SOQ. In an email response, Richard Lewis advised “...we are happy to provide the additional info you need and will comply by the 15th.

We do not have audited statements as our strength financially does not require us to waste money on audited statements. We will provide you with adequate info showing we are capable of handling transactions internally with our own cash.”20

RFQ Structure Impacted Council Deliberations on August 21, 2021 Just before council deliberations and the vote to select the master developer for the CNWS project, a council member raised questions about responsiveness by certain applicants to requirements of the RFQ. Council member Hoffmeister indicated that one of the candidates did not submit certain financial information while the other two submitted the required financial

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 11 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx documents. She asked if this failure to submit this financial information would be a material defect to their application and if it was mandatory to supply it. Mr. Bjerke replied that the council had asked staff to provide summaries but not evaluations, so the SOQs represented what was submitted and that there were some follow-up clarifications with the applicant teams. He said that some of the applicant teams provided additional information too late to include in the summary table. He advised that the “...best way to approach the financing aspect of things is to base your decisions based on the representations made in the presentations and the answers to the questions today.”21

Mr. Bjerke noted that the city council had limited LRA staff’s role to summarizing and not evaluating the three respondent RFQs. His statement did not answer the council member’s question. A transcript of this portion of the council meeting is shown in Appendix 4. The RFQ for the CNWS master developer selection did contain language that could have been invoked regarding CFP’s failure to provide required financial data. Appendix F, section F2, Reservations and Options states that the LRA reserves the right to reject “... any submittal that is determined to contain false, misleading, or materially incomplete information.” 22

The CFP partners did not comply with the RFQ requirements to provide a complete set of financial documents showing evidence of sufficient financial strength to undertake and successfully complete a project of this scale. In contrast, both Brookfield (public company) and City Ventures (private company) provided the necessary financial documents and were each evaluated by the LRA team as having a financial position that indicates “...it has the capacity to execute very large land development.” The LRA team did not provide that assessment for CFP.

Although Lewis and CCIG have a history of complying with other project’s RFQ financial disclosure requirements, the language in Discovery’s August 21 presentation showed an unwillingness by that partner to provide financial information for their SOQ submission.

The grand jury researched best practices in RFQ development and implementation. RFQs are used across many industries and there are many nuances depending on the project being considered. We did not find a definitive source but did review an article from a 2019 presentation to the League of California Cities. The authors are partners at one of the law firms that Concord has engaged for the CNWS project. The article recommends that the criteria used to evaluate an RFQ be listed in rank order and each one be assigned a raw score or weighted percentage. The city should document its scoring process using scoresheets that show scoring instructions provided in the RFQ and track selection criteria and scoring. The city’s plan for review of the submittals and award of the agreement should also be included in the RFQ document.23

The grand jury conducted a review of RFQ requirements pertaining to financial capability and overall responsiveness for recent public agency building projects in California. We examined eight RFQs used in vendor selection of development and construction projects over the past five years. Table 1 shows seven of eight RFQs provided a defined scoring matrix and three-quarters specified a percent weight for rating financial capability. A seventh RFQ evaluated finance capability on a pass/fail basis, with a failure in this category resulting in elimination from overall consideration. Another attribute found in the majority of the RFQs was language on nonresponsive submissions. The CSU Pomona RFQ stated “If a major item is not mentioned at

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Findings

1.c The RFQ process adopted by the Concord City Council ad hoc committee did not utilize the LRA staff and consultants to issue a written report with a recommendation for CNWS master developer.

1.d The RFQ process used in 2021 master developer selection process did not use practices such as stated weighted criteria and objective scoring.

1.e The RFQ process used in 2021 master developer selection process did not include a written, scored evaluation of the SOQ submitted for the CNWS project from LRA staff and consultants.

Table 1 – RFQs for California Public Building/Development Projects Table 1 – RFQs for California Public Building/Development Projects

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1.b The LRA team should specify that the stated RFQ or RFP response date and time is the final cutoff for submission of materials by any applicant.

1.c The LRA should specify that there will be no extensions or second requests for information that was clearly requested in the RFQ or RFP.

1.d RFQs and RFPs for the CNWS project should be created by designated city staff and outside consultants of the LRA team.

1.e The Concord City Council should provide input on parameters and scope of a RFQ or RFP, prior to the document being written.

1.f The LRA staff and designated consultants should be the sole evaluators of the RFQ or RFP responses for CNWS project.

1.g Scoring criteria for RFQ or RFP evaluations used in the CNWS master development process should be provided on an RFQ or RFP template sent to each potential applicant.

1.j The report on staff recommendations for the master developer should be publicly released immediately following the council meeting in which the Concord City Council selects the master developer.

LRA Contractor Management
The Concord LRA team missed several misstatements about the information listed on the master developer applicants’ SOQ submissions and listed a BRAC project not listed on Lewis’ presentation. The SOQ summary prepared by the LRA team listed reuse projects at Mather Air Force Base (Mather South) and March Air Force Base (Meridian). It also listed a 1,271-home development at Independence at Mather Air Force Base.26 Our investigation shows that Lewis was not involved in the infrastructure and construction of the BRAC project. Over the five years needed to complete the Mather Independence housing sale from the U’S. government, the property deteriorated and lost value. The Air Force transferred the property title to Sacramento County in September 1998.27 Razing of the military housing units began in the fall of 1998.28 In October 1998, Lewis entered into a purchase agreement with Kaufman and Broad to sell its residential housing business including Independence at Mather. The sale of this business closed in January 1999.29

A second issue with the Lewis SOQ response is reporting it had developed the 3,500-unit Mather South project. Sacramento County ceded control of 639 acres of land at the former Mather Air Force Base to Lewis in 2011. Although the project was approved by Sacramento County in

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 14 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx January 2020, in February 2020, Tsakopoulos Investments filed a lawsuit against Sacramento County and Mather South LLC (Lewis). In January 2022, Tsakopoulos filed an appeal on this case with the California Third District Court of Appeal.30 At the time of the RFQ, Lewis had completed the regulatory requirements for the project, but there was no building activity because of this lawsuit.

A third issue was that the Lewis SOQ claimed that there were no lawsuits against Lewis Land Developers LLC. Although correct, note that the entity Lewis Land Developers was used only by parent company Lewis Planned Communities to submit the CNWS RFQ response. The same Lewis Land Developers LLC entity was used when Lewis Planned Communities submitted their SOQ for the Solano360 project in January 2020.31 In the case of Lewis participation on the CNWS project, Lewis Concord Member, LLC was incorporated on September 21, 2021, and was the company listed on a Memorandum of Understanding (MOU) created on October 13, 2021 by the three CFP companies.32 Mather South LLC is an example of an LLC created for a specific project. As noted previously, Mather South was involved in litigation at the time when Lewis replied on the SOQ to questions about litigation.

LRA Team Contracts (PSAs)
The grand jury reviewed invoices for the five outside companies that made up the LRA team.

We reviewed the billings from these firms associated with the development, implementation, and analysis of the RFQ that was issued in April 2021 and received three submissions. Table 2 below summarizes billings for services associated with the RFQ through August 2021.

Table 2 -- LRA Team Billings for 2021 CNWS Master Developer RFQ and SOQ Firm Billings 2000-2021 RFP Services per PSA
ALH Urban & Regional
Economics
$ 8,000 Review of SOQ submitted by Master Developer
candidates
HRA Advisors, Inc 14,090 Review of SOQ submitted by Master Developer candidates
ARUP 5,834 Review of SOQ submitted by Master Developer candidates, etc.

Burke, Williams &
Sorensen, LLP
NA Review of SOQ submitted by Master Developer
candidates
Jarvis, Fay & Gibson,
LLP
NA Participation in lessons learned & policy confirmation process ahead of RFQ issuance for master
developer
Total $27,924
* NA – Not Available

Invoices from ALH and HRA were straightforward as the duties performed were well detailed and only related to the RFQ in this period. ARUP’s bills were more complicated as this firm provided an array of technical services involving upwards of a dozen team members each month.

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 15 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Dahlia Chazan was the ARUP lead on their CNWS team and was listed as a LRA team member.

For the majority of the bills, ARUP invoices provided details on her hours and duties related to the RFQ. For other months we used a calculated percentage of her time allocated to RFQ work (8.3%) and assessed it against Chazan’s total project management time. The two legal firms’ bills were more difficult to breakdown because the bills only showed a monthly charge and noted that a separate, detailed billing statement that “conveys attorney/client privileged information is also enclosed.” As such, we cannot determine the hours and expense the two legal firms spent on matters specific to the 2021 CNWS RFQ.

The costs from ALH, ARUP and HRA associated with the RFQ and SOQ total $27,924 for 84 hours of work at an average cost of $333 per hour. Once the RFQ responses were received, the LRA tasks were limited to compiling the SOQ and including some review and analysis within it.

Certain items were misstated or missed, particularly Lewis’ BRAC experience and the CFP litigation history.

Concord entered into annual Professional Services Agreements (PSAs) with each of the firms that comprised the LRA team. A review of invoices from the five outside companies engaged as the LRA team revealed billing rate increases within the PSA period. For HRA Advisors, nine invoices were reviewed from March 2021 to June 2022. The hourly rate on the first invoice was $395/hour (February /April 2021). The next three 2021 invoices were billed at $415/hour and the final five starting in December 2021 were billed at $450/hour. We noted two rate increases across a calendar year. There were also rate increases at ARUP, which impacted all positions in April of each year.

The PSA agreements reviewed by the grand jury in this investigation are for one year and align with the city’s fiscal year (July to June). They authorize a not-to-exceed payment amount for services specified in the scope of duties across the one-year agreement. Various other standards and duties are described in these agreements. Except for agreements signed by two legal firms, there are no specifications of hourly rates by position or person in the PSAs.

Burke, Williams & Sorensen’s 2020/2021 PSA agreement shows rates of:

Sr. Partner $350 per hour
Jr. Partner $325 per hour
Sr. Associate $300 per hour
Jr. Associate $270 per hour
Paralegal $210 per hour

Jarvis, Fay & Gibson rates for 2020/2021 were also broken down by position:

Senior Partner $325 per hour
Partner/Of Counsel $300 per hour
Associate $230 per hour
Paralegal $125 per hour
Findings

2.a LRA staff and consultant reference checks in the 2021 master developer selection process missed certain points involving prior BRAC experience and litigation history.

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Recommendation

Transparency
The grand jury discovered that the LRA staff and their outside consultants were not allowed to offer recommendations on the selection of CNWS master developer applicants during the SOQ.

This situation was present during the selection between Lennar and Catellus in September 2015.

According to data officially released in the 2016 Jenkins Report, on September 1, 2015, there was discussion about whether the city council wanted staff to make a recommendation in the report presented at the meeting at which the city council would select the master developer. The initial decision by the city council was that “…consistent with general city policy, staff should make a recommendation.”33 This decision was made in response to questions posed in a report on Master Developer Term Sheets and Selection Process by LRA staff.34 Additionally, both companies vying for the master developer selection were advised there would be a staff recommendation at the end of negotiation process.

On September 16, in a closed city council session, a near final staff report was presented, which included staff’s recommendation of Catellus as Master Developer.35 In late September 2015, the City Manager instructed the LRA staff to remove the staff recommendation from the staff report, after meeting separately with three members of the city council. In the days following the closed session, several council members changed their positions regarding inclusion of a recommendation in the staff report. The impetus for this change was a series of questionable allegations against Catellus and concerns by council that there would be a perception of favortism in the staff report. In late September, the city manager instructed LRA Manager Michael Wright, to remove the staff recommendation from the final staff report. 36 Catellus then withdrew from the master developer selection process, and Lennar was awarded the CNWS master developer contract in May 2016.

As stated in the Implementation of the Selection Process section earlier in this report, the Master Developer Selection ad hoc committee did not follow the LRA manager’s December 2020 recommendations on RFQ content. The RFQ limited the LRA team’s role to reviewing and vetting materials submitted for each applicant’s SOQ and then compiling these materials. There was no written report from the LRA team, just a spreadsheet showing the responses of the three applicants.

Finding

3.a The RFQ and SOQ process used in the 2021 CNWS master developer selection prevented LRA staff from providing analysis and recommendations on the three respondents.

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3.a For future RFQs and RFPs used to select a master developer for the CNWS project, there should be a full analysis and report issued by LRA staff.

Concord City Loans to Local Reuse Authority
Through fiscal year 2019-2020, the City of Concord loaned the LRA $14.06 million to pay for CNWS expenses not paid from funds from governmental entities or the initial master developer, Lennar. These loans began in fiscal year 2012-2013 and were made through fiscal year 2019- 2020. In fiscal year 2019-2020, they totaled $3.35 million.37 These loans came from three Concord revenue sources: General Fund reserves of $9.91 million and Workers’ Compensation Fund of $3.15 million and Pavilion Fund of $1.0 million that total $14.06 million. 38

Table 3 –CNWS Expenses Paid with City Loans ($ million) - February 2020
Prior Fiscal Year 10.46
Fiscal Year 19-20 2.73
Unencumbered Funds 0.87
Total 14.06

These loan agreements state that the Lender (General Fund or Workers’ Compensation Fund or Pavilion Fund) agree to lend to Borrower (Local Reuse Authority) and that Borrower agrees to repay to Lender an amount not to exceed the Loan amount plus applicable interest. Regarding payment of the loan, the agreement states “…principal payments shall be paid by the Borrower to the Lender at the time that sale proceeds of raw land at the Community Reuse Project are available…”.39 The sale of land regarding these loans is not the transfer to the LRA but a subsequent sale to a master developer. This will not occur until after a master developer is selected, the Navy and Concord have completed all regulatory requirements for transfer of the CNWS land to the LRA and the LRA has sold the land to the master developer. The grand jury was advised it would be two to three years following the master developer selection before the Navy would transfer land to the LRA and there would be two years of infrastructure development at CNWS before residential construction would begin.

The December 2022 term sheet proposal negotiated with CFP called for paying Concord approximately $5 million before issuance of building permits for 90 percent of the market rate dwelling units (2,180) in phase one, and paying the City approximately $10 million before issuance of building permits for 90 percent of the market rate dwelling units (3,777) in phase two.40 Using, the timelines from these statements and contracts, the loans to the LRA would repaid in two payments four to five years after a master developer is selected plus the time required to buildout the units specified in phases one and two.

There are many issues to be addressed before construction at CNWS can begin, including hydrology, air quality, traffic flow, hazardous materials, soil geology, BRAC disposition activities, and affordable housing that require analysis and study involving public and private

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 18 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx entities at federal, state, and local levels. To complete these prerequisites, Concord has engaged various consultants, attorneys, and other experts to study, analyze and complete reports. When a master developer is selected, the ENA and term sheet agreements include language that will require the master developer to provide reimbursement of certain ongoing and previously incurred expenses associated with the CNWS project. Such expense reimbursement policies were detailed in the term sheet signed by Lennar in 2016 and in the one negotiated with CFP in 2022. In our investigation, we found that it is common for municipalities to charge developers upfront fees and seek reimbursement for third party costs. LRA financial reporting shows that more than $37 million has been spent on the CNWS project since 2006, with the City of Concord providing loans to the LRA totaling over $14 million. In reviewing payments made from city loans, there are two vendor expenses that will be discussed in the next two sections of the report.

A memo on the interfund loans was compiled at the city council’s request in February 2020, shortly before the expiration of Lennar’s ENA in March 2020 (see Appendix 5). It shows vendors by active or inactive status, vendor payments totaled for prior fiscal years and vendor payments for the 2019/2020 fiscal year. Aside from this report, there have been no written reports by Concord city staff detailing how the loan funds have been spent on the CNWS project.

Reporting on CNWS vendor expenditures is done quarterly or biannually under the section heading of Program Report on the LRA website but these reports provide no detail on spending against the city loans to the LRA.

The Program Reports also show budgeted and actual expenses by CNWS project vendor for the city fiscal year. The initial citizen complainant advised the grand jury of their concerns about the amount spent by Concord on the CNWS project and the lack of financial reporting on it. On the LRA website, we reviewed a June 2022 CNWS report that showed expenditures to date of $37.4 million, which includes federal grants, state redevelopment money, developer funds, and city loans.41 The annual Program Reports issued by the LRA do show multiple funding sources such as city loans and developer funds. Annual forecasts by vendor show projected funding sources but fiscal year actuals are shown as totals with no indication of the funding source used to pay the vendor expenses. Table 4 is a pro forma of how the funds available in the city loan to the LRA have changed since early 2020. Unencumbered balances are funds that have been appropriated but not spent or targeted for use. This concept is employed in governmental accounting. 42 Starting with listed unencumbered balances of $866,000, the loan initially was about a half million dollars over the forecast based on final 2019/2020 expenses shown in that year’s Project Report. This discrepancy was due to a $1.050 million payment to Lennar, which was a refund of previously deposited funds that had not been spent when Lennar’s ENA expired in March 2020. The city’s reporting of this payment as an expense is not accurate, as it was a reimbursement of previously deposited funds by Lennar. At the end of fiscal year 2020/2021, the loan reserve balance was $1.496 million. For fiscal year 2020/2021, there was no master developer on the CNWS project, and $1.088 million in expenses were incurred. Following a GoMentum reimbursement of $99,423, the loan reserve balance stood at $507,349.

When CFP signed the ENA in October 2021, they deposited $250,000 to pay for expenses on the CNWS project. In the same period, CNWS project expenses of $1.138 million were shown as paid from the General Fund in the 2021/2022 program report.43 By June 2022, the LRA loan

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 19 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx reserve stood at -$243,000, a net decrease of $1.108 million. With LRA expenses averaging $1.113 million over the last two fiscal years (38% are salary/benefits) and no funds coming from a master developer, the reserve balance in the pro forma is trending to exceed -$1.5 million by December 2023. The financial data for the three budget cycles used to compile this pro forma can be found in Appendix 6.

Table 4 – Cumulative Change to Concord-LRA Loan Obligations (Feb20 - Jun22) Feb20 Loan
Report
June 20/21/22
Project
Reports
Reserve
Balance
Cumulative
Change to
Reserve
Unencumbered Funds 865,645

865,645

FY 19/20 Exp (Feb20) (2,731,990)

FY 19/20 Exp (Jun20) *

(3,239,831) 357,804 (507,841)
Repayment to Lennar of previous deposit

1,049,951 1,407,755 542,110
FY 19/20 GoMentum reimbursement

88,400 1,496,155 630,510
FY 20/21 Exp

(1,088,229) 407,926 (457,719)
FY 20/21 GoMentum reimbursement

99,423 507,349 (358,296)
FY 21/22 CFP ENA deposit

250,000 757,349 (108,296)
FY 21/22 General Fund

(1,138,289) (380,940) (1,246,585)
FY 21/22 GoMentum reimbursement

138,325 (242,615) (1,108,260)
* FY19/20 Exp (Jun20) worse than forecast primarily due to $1.05 million payment to Lennar (refund of previously deposited funds not spent at expiration of ENA in March 2020)

The City of Concord has provided a loan of $14.06 million to the LRA to help fund costs associated with the development of the CNWS site. Sources of funds include a loan of $3.15 million from the city’s self-insured workers compensation claims fund. According to the terms of Interfund Loan Agreement 5, executed on June 27, 2017, Concord borrowed $1.35 million in FY 2017 and $1.8 million in FY 2018 to avoid dropping below its 30 percent general fund reserve target. The city intends to pay back the loans, with interest, from future proceeds as properties are sold in the CNWS development.

California self-insured workers compensation employers are regulated by the California Office of Self-Insurance Plans (OSIP). These funds are needed to pay current and future workers compensation claims. There is a guideline in the Handbook of Cost Plan Procedures for California Counties (Cost Plan) that if funds are borrowed from a self-insured workers compensation fund, they should be paid back with interest within 36 months and if not repaid by then, the loan is considered a bad debt and requires an immediate rebate from the general fund. 44

Findings

4.a Concord city staff provided the Concord City Council in February 2020 a report that provided detail on CNWS-related expenses paid from loans the City of Concord has made to the LRA.

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4.b The annual Program Reports issued by the LRA do not show the actual fundings source.

Annual forecasts by vendor show projected funding sources but fiscal year actuals are shown as totals with no indication of the funding source.

4.c The City of Concord borrowed $3.15 million from the city’s self-insured workers compensation fund in FY 2017 and FY 2018 to provide funds to the City of Concord’s loan to the LRA.

4.d The City of Concord’s financial reporting does not show that loans made from Concord’s workers compensation fund to the LRA have been paid off.

Recommendations

4.b The City of Concord should produce annual reporting on the city loans to the LRA, showing annual and project to date expenses by vendor in detail as was done in the February 2020 report.

4.c The City of Concord should find funding sources other than its self-insured workers compensation fund when making loans to the LRA.

4.d The City of Concord should repay its self-insured workers compensation fund for any loans made to the LRA that are outstanding more than 36 months per state guidelines.

GoMentum Station Expenses
In a 2017 memo, Concord’s Director of Community Reuse Planning, stated that Concord has “…temporarily provided security guard services to monitor the former Concord Naval Weapons Station (CNWS) entry gates at the request of, and at the expense of, GoMentum Station since September 2016.” Believing that there would be increased level of activities at CNWS over the next several years,45 LRA staff issued a Request for Bid (RFB) in April 2017 to provide security services at the entry gate to CNWS. The funding source was listed to be a combination of the LRA, the master developer, and GoMentum Station. The bid was awarded to Guardian Security in June 2017. Note in the narrative below, GoMentum is the name of the operator of the facility both when it was a non-profit corporation and after its acquisition in 2018 by AAA of Northern California, Nevada, and Utah (AAA).

Use of CNWS Grounds as a Facility for Autonomous Vehicle Testing GoMentum was founded in 2014 by the Contra Costa Transportation Authority (CCTA) and incorporated as a nonprofit corporation in California in September 2015.46 The existing road network of 20 miles at the CNWS is the largest Connected and Autonomous Vehicle (CAV) proving ground in the nation, and GoMentum acts as “a facilitator between suppliers, OEMs, and public and private partners…” to conduct in-depth testing of Automated Driving System (ADS) technologies.47

GoMentum Station, Inc. was set up by the CCTA specifically to run autonomous vehicle testing at CNWS. Inquiries by the grand jury to CCTA about onsite testing partners, daily test site

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 21 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx charges and annual revenue were declined due to nondisclosure agreements or claimed lack of knowledge. GoMentum filed IRS Form 990 for the years 2016 to 2019. Two officers were listed, one a full-time manager at CCTA, the other an outside consultant that CCTA engaged as the GoMentum project manager.

GoMentum declared program service revenue of $772,000 in 2016, $908,000 in 2017, $1.824 million in 2018, and $14,000 in 2019.48 GoMentum filed annually with the California Department of Justice’s Registry of Charitable Trusts from 2016 to 2019 but did not file in subsequent years. AAA acquired the operating rights to the GoMentum Station on August 1, 2018. CCTA records show they were notified on September 12, 2018, by AAA of their acquisition of GoMentum. CCTA staff advised the transfer did not require CCTA’s approval and terms of the acquisition were never disclosed to the CCTA. On September 24, 2018, the CCTA received requests from GoMentum and AAA to assign master cooperative agreements from GoMentum to AAA.49

Acquisition of GoMentum Station Operating Rights by AAA Although AAA is a nonprofit corporation, it is a large multi-state organization operating in seven states with 4,600 employees. It has increased sales by $1.2 billion, while welcoming 1.6 million new members over the past four years.50 AAA launched A3Ventures in 2016 to invent and test autonomous and connected vehicle prototype solutions and bring them to market. This division of fifty-one employees is located in Berkeley, California. Their venture capital arm invests directly in innovative startups. Among their listed investments are GIG Car Share, a hybrid- electric, one-way car share; RapidSOS, a technology focused on the 911 mobile location problem; a partnership with Keolis for a self-driving shuttle in Las Vegas,51 Zippity, a workplace amenity offering comprehensive repair, diagnostic, and detailing services to employees at their workplace,52 and GoMentum Station.

AAA’s letter of intent that accompanied a Preliminary Agreement on Transfer of Assets between GoMentum and AAA is informative. Signed by a senior AAA executive, it stated a goal of reaching a long-term land agreement with Concord to “…re-invest GoMentum revenue into site development and local job creation, with a goal of $50 Million over a five-year period.” 53 Security guard services were set up to monitor entry gates at CNWS as activity related to the testing of autonomous and connected vehicles increased at GoMentum Station, Inc. As shown above, AAA and its operating subsidiary, A3Ventures, have the resources to assume full monetary responsibility for security guard services at the CNWS entry gates. Moreover, the development and usage of the test facilities begun by CCTA and now overseen by AAA, have resulted in higher security costs due to increased day time hours, occasional weekend hours and the opening of a security station at the Bailey Road entrance April 2022. The Bailey Road entrance was opened to handle autonomous tractor trailer test vehicles because the Willow Pass Road entrance to the CNWS site has a bridge with a 10,000-pound limit.

In 2016, when gate security arrangements were initially made, the CCTA had just begun vehicle testing, facility usage was much lower and there was a belief that the master developer would begin infrastructure construction in the next year or two.54 In the subsequent years, GoMentum’s operational test sites have increased to ten and annual utilization of the GoMentum site has

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 22 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx increased to about 80 percent. With the absence of a master developer and the projected timeline provided by the LRA ENA, conveyance of the CNWS land to the City of Concord will occur no earlier than 2026.

In the cover memo regarding the security gate services request for bid, it is indicated that “...GoMentum Station currently reimburses the LRA for their share of the cost of these services – currently set at approximately 80 percent of these costs.”55 The MOU between Concord (CITY) and CCTA (AUTHORITY) specific to the CNWS Transportation Innovation Program signed in July 2019 states on page four, section H, that the Authority is responsible to “Reimburse CITY FOR all CITY incurred fees/costs associated with providing access and security for the TESTBED site and facilitating the PROGRAM on the site.”56 The applicable section of the MOU is shown in Appendix 7. Note that even with AAA acquiring the operating rights to GoMentum, a November 2018 MOU between CCTA, AAA and GoMentum specifies that the CCTA will serve as the manager and facilitator for all activities related to the CCTA’s Innovation Program. It also states that CCTA will coordinate access to the facility in a manner that protects the safety, security, and confidentiality of all partners.57 This agreement binds AAA to the terms of the existing Concord-CCTA MOU.

Allocated Security Service Payments and Reimbursement from GoMentum There are single-page documents from 2019 and 2020 signed by AAA staff that specify fixed monthly amounts of $7,900 for 12-hour gate security services, with higher rates for weekend access. During this two-year period, Guardian Security monthly charges averaged $10,652 with an allocation of $5,540 to GoMentum (52%) and $5,112 to the Concord LRA (48%). Billing records from 2020 show no security cost reimbursements from GoMentum for five months and that the LRA was allocated 64 percent of Guardian Security’s costs. There is no indication of a correction of the misallocation in subsequent months. The allocated security costs and LRA percent share by year since September 2016 are shown below in Figure 1.

Figure 1 – CNWS Security Expense Allocation
September 2016 to December 2022 ($ thousand)

GoMentum=$574,279; LRA=$284,891
(Data from Concord LRA staff)

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In mid-2021, AAA signed an updated rate memo. This document referenced a 7 percent rate increase for Guardian Security (which is a catch up because prior year rate increases were not reflected in prior year billing). There was also an additional monthly charge of $6,453 for a guard at the Bailey Road entrance. GoMentum’s billing allocation share rose to 81 percent over the last five months of 2021 and was 87 percent for the full year of 2022. Concord provided data showing Guardian Security billings for services at CNWS were $859,170 from September 2016 through December 2022. These records show that GoMentum reimbursed Concord $574,279 (66.8%) while Concord paid the balance of $284,891 (33.2%).

Findings

5.a CCTA, AAA, and their partner clients have been using the GoMentum test facility on the CNWS site since 2014.

5.b There is language in a 2017 LRA document that CCTA would pay 80 percent of Guardian Security costs.

5.c In 2020, 2021 and 2022, AAA forwarded to Concord memos listed as Security Guard Coverage for GoMentum Station that stated maximum monthly payments AAA will pay for GoMentum security services. These memos were signed only by AAA and are not signed by Concord city staff.

5.d The signed MOU between Concord and CCTA states that CCTA should reimburse Concord for incurred fees/costs associated with providing access and security for the GoMentum facility at CNWS.

Recommendations

5.b Notice on updated security reimbursements should be sent to AAA and CCTA within 90 days of this report being received by Concord City Council and the LRA.

5.c The change in the CNWS security service rate agreement reimbursement should be effective within 90 days of AAA and CCTA being notified.

5.d The LRA should seek reimbursement from AAA and CCTA on CNWS gate security payments in excess of 20% in 2020 and 2021.

Jenkins Report Charged Against LRA City Loan
The city loan to the LRA includes $63,154 for the costs of a 2016 investigation, (Jenkins Report) authorized by the City of Concord to investigate improprieties associated with the master developer selection in 2015.58 According to the 2020 memo provided to the city council on the status of loans to the LRA, this expense was described as providing “...independent investigation into allegations surrounding the Master Development selection process.”59 Concord commissioned attorney Michael Jenkins to conduct an independent investigative in response to a

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 24 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx letter received from Catellus asserting that Lennar had violated the terms of an Agreement to Negotiate, signed by both firms, by lobbying the city council. Catellus also raised questions about the removal of the Concord staff’s analysis and recommendation for a master developer from a published staff report.

Jenkins found that Lennar violated the no-lobbying provision of the Agreement to Negotiate and left it to the city to see if this warranted disqualification. The report determined that one-on-one meetings conducted between the City Manager and Councilmembers Grayson, Birsan and Hoffmeister resulted in a reversal of the Council’s September 2015 decision to include a staff recommendation in the final staff report. It also found those meetings constituted a hub-and- spoke serial meeting that was in violation of the Brown Act. Concord staff recommended the city council accept the report’s findings and that both city council members and senior city staff participate in advanced Brown Act training.60

Findings

6.a The Jenkins Report presented the findings of an investigation authorized by the Concord City Attorney in 2015.

6.b The expense to the LRA for the investigation and report done by Michael Jenkins was $63,154 and it was paid as a 2016 expense against the city loan to the LRA.

Recommendations

6.a The expenses for this investigation should not be charged to the LRA loan and ultimately to the master developer on the CNWS project.

6.b The payment for the Jenkins investigation should be reversed as an expense against the city loan to the LRA.

6.c The payment for the Jenkins investigation should be paid as an expense from Concord general funds.

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REQUIRED RESPONSES
As required by California Penal Code § 933(b) and California Penal Code § 933.05, the 2022-2023 Contra Costa County Civil Grand Jury requires responses from the following governing bodies:

Responding Agency Findings Recommendations
Concord City Council F1.a through F1.c
F2.a through F2.b
F3.a
F4.a through F4.d
F5.a through F5.e
F6.a through F6.c
R1.a through R1.j
R2.a
R3.a
R4.a through R4.d
R5.a through R5.d
R6.a through R6.c
Local Reuse Authority F1.a through F1.c
F2.a through F2.b
F3.a
F4.a through F4.d
F5.a through F5.e
F6.a through F6.c
R1.a through R1.j
R2.a
R3.a
R4.a through R4.d
R5.a through R5.d
R6.a through R6.c

These responses must be provided in the format and by the date set forth in the cover letter that accompanies this report. An electronic copy of these responses in the form of a Word document should be sent by e-mail to [email protected] and a hard (paper) copy should be sent to:

Civil Grand Jury – Foreperson
725 Court Street
P.O. Box 431
Martinez, CA 94553-0091

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APPENDICES

THIS PAGE INTENTIONALLY LEFT BLANK

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 27 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 1. Master Developer RFQ Process Timeline
Selection Process and Timeline Dates (all 2021)
Issuance of the RFQ April 16 April 16
Pre-response conference (see sign-up information in
Section 4)
May 4 at 10am PDT
Deadline for questions
submitted in writing
Deadline for questions submitted in writing May 14 at 5pm PDT Responses to questions posted May 28
SOQ submitted June 18 by 3pm PDT
LRA Team Reviews SOQs for responsiveness to Selection
Criteria and prepares Summary Table
July 16
City Council reviews Summary Table, Redacted SOQs (with Confidential Information removed), and selects SOQs to
interview
August 3
Interviews with City Council – Possible Selection August 24 City Council Selection for Initial Negotiations August 31 Finalize Exclusive Negotiating Agreement (ENA) September 23 * Dates following SOQ submittal are subject to change

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 28 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 2. CCIG Financials for 2008 Oakland Army Base RFQ Note: Mr. Epstein is co-owner of CCIG

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 29 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 3. Lewis 2020 RFQ response – Solano360 Mixed-Use Site

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Concord Naval Weapons Station Grand Jury Report
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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 30 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 4. Transcription of 8/21/2021 Concord Council Meeting Interaction between Council Member Laura Hoffmeister and LRA Manager Guy Bjerke

(8:04 mark in Council meeting video)

Hoffmeister: Related to financial information submitted by the three master developers and one of the three deferred basically deferred not to submit financial information due to confidentiality issues that they’re privately traded and I believe one privately traded company did submit and the other one submitted, so do you have a comment on that on how that works in terms of a technical aspect on our information that we received, is that a material defect to the application, is that something, was it mandatory that they submit it, I know they we asked for it, they commented back they felt it was premature at this time and so if you could maybe speak to that particular issue?

Bjerke: So, so remember that council asked staff to provide summaries but not evaluate and so in the summary table we summarized what each of the SOQs said in those particular areas, we did ask each of the teams in different ways for certain clarifications and we tried to represent those to you and so some of the teams got us additional information just too late for us to get it properly into the summary table and so, so I think the best way to approach the financing aspect of things is to base your decisions based on the representations made in the presentations and the answers to the questions today. I don’t know if there have been financing questions asked today and representations made in the presentations today and I would make your decision on those.

Hoffmeister: Thank you very much.

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 31 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 5. Use of City Loan to LRA - February 2020
Current Consultants LRA Loan  Grand Total from Inception Consultant/Vendor Previous FY's FY19-20 with FY19/20 Amendments ALH Economics 206,177  67,810   273,987
Arup  1,886,647   436,671  2,323,318
Burke Williams Sorensen  619,702  32,000  651,702
ERS Corp 783,217  200,788  984,005
ESA 1,228,546  499,660  1,728,206
Friedman & Rolapp 24,741  -    24,741
Garrity & Knisely 574,140  186,900  761,040
Guardian Security 99,346  68,872  168,218
HR&A 407,121  60,815  467,936
HT Harvey 1,136,871  598,939  1,735,810
Johnson Marigot 307,517  293,010  600,527
Lubin Olsen 456,113  236,525  692,638
Towill 309,646  50,000  359,646
Victoria Walker 26,775  -    26,775
Total Active Vendor $8,066,559  $2,731,990 $10,798,549

Previous Consultants LRA Loan  Grand Total from Inception Consultant/Vendor Previous FY's FY19-20 With FY19/20 Amendments Accela 3,667  3,667
Civic Plus 13,200  13,200
Craig Labadie 73,880  73,880
Dell Computers 201  201
Ebbin Moser 461,000  461,000
EKI 53,560  53,560
Folger Graphics 5,930  5,930
Hallmark 261,741  261,741
Jenkins & Hogin 63,154  63,154
KRPA 6,000  6,000
LPA 167,300  167,300
MIG 115,786  115,786
Mike Wright 109,137  109,137
Peak Democracy 12,160  12,160
Peckham & McKenney 12,861  12,861
Salas O'Brien 36,000  36,000
Salaries 859,775  859,775
Office Supplies 140,827  140,827
Unencumbered Funds 866,645  866,645
Subtotal 2,396,179  2,396,179
Total $10,462,738 $3,598,635  $14,061,373
Interfund Loans $14,080,983

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 32 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Summary of Costs-All Consultants
Previous FY's FY19/20 Total
Current Active Vendors $ 8,066,559 $ 2,731,990 $ 10,798,549 Inactive Vendors $ 1,395,577 $ 1,395,577
Salaries/Office Supplies $ 1,000,602 $ 1,000,602
Unencumbered Funds $ 866,645 $ 866,645
Total $ 10,462,738 $ 3,598,635 $ 14,061,373
Interfund Loans $14,080,983

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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 33 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 6. LRA Project Reports - June 2020/2021/2022
July 2019-June 2020 (Source June 2020 CRP Program Report, p. 5) Description
DDA DDA Loan Loan SP SP
FY19/20
Total
Budget
YTD
Expense
FY 18/19
Rollover
FY 19/20
Rollover
FY 18/19
Rollover
FY 19/20
Rollover
FY 18/19
Rollover
FY 19/20
Rollover
Vendors / Consultants
ALH 3,675 - 28,708 67,810 5,619 - 105,812 21,384 ARUP 18,232 - (46,443) 436,671 (49,706) 261,000 619,754 181,828 Burke, Williams
Sorenson
223,868 - 680 32,000 (13,570) - 242,978 153,524 State of California - - - - - - 32,670 Civic Plus - - - - - - 1,866 ERS Corp - 106,984 200,788 - - 307,772 35,291 ESA - 273,049 499,660 76,726 7,680 857,115 180,960 Fieldman, Rolapp
and Associates
4,725 - - - 10,250 - 14,975 -
Garrity & Knisely 6,300 - (19,266) 186,900 - - 173,934 49,821 Gilpin & Lipman
LLP
- - - - 1,865 1,865 1,865
Guardian Security * - 4,320 160,872 - - 165,192 43,404 HR&A Advisors 59,760 - 83,475 60,815 - - 204,050 25,842 HT Harvey &
Associates
- 20,384 598,939 25,166 74,031 718,520 179,023 Jarvis Fay
Associates
- - - 159,482 109,587 269,069 107,518 Johnson Marigot
Consulting
- 104,938 293,010 - - 397,948 2,750 Kittelson - - - 177,319 55,115 232,434 87,115 Lennar Concord - - - - - - 1,049,951 Lubin Olsen &
Niewiadomski
5,096 - 80,768 236,525 41,752 7,900 372,041 89,744 MIG 13,127 - - - - - 13,127 13,127 SWCA - - - - 1,481,301 397,510 1,878,811 436,036 Towill, Inc - - 21,037 50,000 - - 71,037 (253) Victoria Walker - - - 180 - - 180 180 Vlaming &
Associates
- - - 6,132 - - 6,132 6,132
Vendor Subtotal 334,783 - 658,634 2,830,302 1,914,339 914,688 6,652,746 2,699,778 City Costs
Staffing - - - - 412,203 1,315,372 1,727,575 533,738 Office Expense: - - - - 23,056 52,500 75,556 6,315 Total 334,783 - 658,634 2,830,302 2,349,598 2,282,560 8,455,877 3,239,831 DDA: Disposition and Development Agreement
SP: Specific Plan
* Total contract for $160,872. City paid $72,472 and GoMentum Station paid $88,400

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July 2020-June 2021 (Source June 2021 CRP Program Report, p. 5) Vendors and Consultants FY 20/21
Total Budget
YTD
Expense
%
Spent
ALH 36,000 12,493 35%
ARUP 382,000 314,149 82%
Burke, Williams & Sorenson LLP 61,000 48,390 79%
State of California 5,477 5,477 100%
Civic Plus 1,940 1,940 100%
ERS Corp 60,000 28,300 47%
ESA 5,000 0%
Garrity & Knisely 60,000 21,105 35%
Guardian Security 239,000 146,750 61%
HR&A Advisors 60,000 28,191 47%
HT Harvey & Associates 60,000 19,059 32%
Jarvis Fay & Associates 61,000 42,795 70%
Johnson Marigot Consulting 24,000 2,250 9%
Lubin Olsen & Niewiadomski 60,000 24,319 41%
OpenGov 12,160 12,160 100%
Vendor Subtotal 1,127,577 707,378 63%
City Costs
Staffing 490,743 369,614 75%
Office Expense 19,000 11,237 59%
Total 1,637,320 1,088,229 66%
* Total contract for $239,000. City paid $47,327 and GoMentum Station paid $99,423

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July 2021-June 2022 (Source June 2022 CRP Program Report, p. 5) Vendors and Consultants General
Fund ENA Total
Budget
YTD
Expense
%
Spent
ALH 16,000 20,000 36,000 24,054 67%
ARUP 302,500 47,500 350,000 123,031 35%
Burke, Williams &
Sorenson LLP 10,000 90,000 100,000 83,639 84%
ERS Corp 60,000 60,000 51,329 86%
ESA 5,000 5,000 4,529 91%
Garrity & Knisely 52,500 7,500 60,000 3,885 6%
Guardian Security * 91,186 232,349 167,839 72%
HR&A Advisors 35,000 25,000 60,000 28,055 47%
HT Harvey & Associates 60,000 60,000 16,130 27%
Jarvis Fay & Associates 30,000 60,000 90,000 71,402 79% Johnson Marigot
Consulting 24,000 24,000 4,949 21%
Lubin Olsen &
Niewiadomski 60,000 60,000 34,997 58%
Subtotal 746,186 250,000 1,137,349 613,839 54%
City Costs
Staffing 522,308 491,926 94%
Office Expense 2,000 69 3%
Utilities 32,455
Total 1,661,657 1,138,289 69%
*Total contract is for $232,349. City paid $29,514 and GoMentum Station paid $138,325

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Concord Naval Weapons Station Grand Jury Report
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Contra Costa County 2022-2023 Civil Grand Jury Report 2305 Page 36 of 37 are posted at https://www.cc-courts.org/civil/grand-jury-reports.aspx Appendix 7. Memorandum of Understanding

MOU between Concord and Contra Costa Transportation Authority – page 4, signed June 17, 2019

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1 Guy Bjerke, “Master Developer Selection Staff Report and Draft Request for Qualifications”, Concord City Council sitting as LRA, April 6, 2021, Agenda Item No 5.b, 3. 2 Bjerke, “Master Developer Selection…”, 2-3.
3 “RFQ 2021-4-16 Final”, Concord Community Reuse Project, Document Library, Master Developer Selection 2, 31. RFQ 2021-4-16 Final
4 Bjerke, “Project Restart Analysis”, 10-11.
5 Guy Bjerke, “Staff Report Considering the Selection of a Master Developer for the Former Concord Naval Weapons Station”, Concord City Council sitting as LRA, August 21, 2021, Agenda Item No. 2.a, 3. 6 “RFQ 2021-4-16 Final”, Concord Community Reuse Project, Document Library, Master Developer Selection 2, 25. RFQ 2021-4-16 Final.
7 “Brookfield + Concord Community Reuse Project”, Concord City Council sitting as LRA, August 21, 2021, Agenda Item No. 2.a, Attachment 2, 2.
8 RFQ 2021-4-16 Final, April 16, 2021, p F3.
9 Laura Waxman, “Controversy in Concord, The Long Saga of 5,200-Acre Weapons Station Remake in Contra Costa County”, San Francisco Business Times, July 28, 2022, (accessed 8/18/2022). 10 RFQ 2021-4-16 Final, April 16, 2021, pp 29-30.
11 July 7, 2021 correspondence from Bjerke to Seeno III/Lewis/Tagami , obtained in public records request from City of Concord.
12 July 15, 2021 correspondence from Seeno III/Lewis/Tagami to Bjerke, obtained in public records request from City of Concord.
13 “Summary Table of Master Developer Statements of Qualifications (SOQs)” , Concord City Council sitting as LRA, August 21, 2021, Agenda Item No. 2.a, Attachment 1, 1-9. 14 “Summary Table of Master Developer Statements of Qualifications (SOQs)”, 5-7. 15 “DISCUSSION POINTS DISCOVERY TEAM”, Edi Birsan, attachment to August 16, 2021, email from Guy Bjerke to Louis Parson, obtained in public records request from City of Concord. 16 “Concord Naval Weapons Station Concord Reuse Project Area Plan Implementation” Concord City Council Sitting as LRA, August 21, 2021, Agenda Item No. 2.a, Attachment 4, 38-39. 17 http://oaklandglobal.com/archive/?dir=606, City-RFQ-Response.pdf, 98, 145. 18 https://www.solanocounty.com/solano360/rfq.asp, RFQ Packet, 6, 19-22. 19 https://www.solanocounty.com/solano360/rfq.asp , “Lewis Planned Communities RFQ Packet”, 46. 20 July 7, 2021, email from Richard Lewis to Wendy McAuley, et al., obtained in public records request from City of Concord.
21 Audiovideo Transcript of Concord City Council Meeting on August 21, 2021, discussion between Council member Laura Hoffmeister and Guy Bjerke at 8 hours, 4 minutes, https://stream.ci.concord.ca.us/OnBaseAgendaOnline/Meetings/ViewMeeting?id=675&doctype=2 . 22 RFQ 2021-4-16 Final, April 16, 2021, p F1.

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23 Christine Crowl and Clare Gibson , “Mind Your [RF] Ps & Qs”, (League of California Cities 2019 Annual Conference, City Attorneys' Track, Long Beach, October 17, 2019). 24 CSU Pomona Lanterman RFP 20-007, p, 22.
25 https://cao.lacity.org/LASCB_RFQ.pdf, p. 21.
26 “CONCORD NAVALWEAPONS STATION CONCORD REUSE PROJECT AREA PLAN IMPLEMENTATION Statement of Master Developer Qualifications Discovery/Seeno, Lewis Planned Communities, California Capital Investment Group”, Concord Council meeting sitting as LRA, August 21, 2021, attachment 4, 17.
27 “MILITARY BASE CLOSURES Questions Concerning the Proposed Sale of Housing at Mather Air Force Base”, U.S. General Accounting Office, Washington, DC, October 1998, 8-10. https://www.gao.gov/products/nsiad-99-13
28 “Deconstruction Training Manual Waste Management Reuse and Recycling at Mather Field”, (Sacramento, Integrated Waste Management Board Public Affairs Office, 2001), 3. https://p2infohouse.org/ref/34/33885.pdf, 29 https://corporate.findlaw.com/contracts/planning/purchase-agreement-kaufman-and-broad-home-corp-lewis- homes-of.html, 9.
30 Ben van der Meer, “Tsakopoulos Investments Appeals Court Ruling over Mather South”, Sacramento Business Journal, February 3, 2022, (accessed 3/02/2023). 31 https://www.solanocounty.com/solano360/rfq.asp , Lewis Planned Communities RFQ Packet, 46. 32 “Memorandum of Understanding (“MOU”) is entered into on October 13, 2021, by and between the intended Members of Concord First Partners, LLC, obtained in public records request from City of Concord. 33 Exhibit CC, Jenkins Report, report authorized by Concord Interim City Attorney to investigate allegations of improprieties by Concord council members and staff on the selection of the CNWS master developer 34 Exhibit DD, Jenkins Report, 20. http://www.concordreuseproject.org/documentcenter , Archive/Master Developer Selection/Investigative Report/Exhibit T – FF. 35 Jenkins Report, 14.-15.
36 Jenkins Report, 16, 30-32.
37 Guy Bjerke, “Use of City Loans to Local Reuse Authority”, Concord City Council sitting as LRA, February 4, 2020, Agenda Item No. 3.a,1.
38 City of Concord Biennial Budget, FY 2019-20 & FY 2020-21, p, 142, https://www.cityofconcord.org/DocumentCenter/View/365/Adopted-2020-to-2021-Operating-Budget- PDF?bidId=
39 “Interfund Loan Agreement 5”, Concord City Council sitting as LRA, June 27, 2017, Attachment No.4, exhibit

1. 40 “Term Sheet For Disposition and Development Agreement and Statutory Development Agreement Between City of Concord, in its Capacity as the Local Reuse Authority (“City” or “LRA”) and Concord First Partners, LLC (“Developer”) Dated November 15, 2022”, Concord Community Reuse Project, Document Library, Term Sheet 2023, Jan07Staff ReportandTS, 20, https://www.concordreuseproject.org/documentcenter, 41 “2022 - 06 - CRP Program Report”, Concord Community Reuse Project, Document Library , Program Reports,

6., https://www.concordreuseproject.org/documentcenter,

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42 AccountingTools, Dictionary, accessed June 2, 2023, https://www.accountingtools.com/terms-u 43 “2022 - 06 - CRP Program Report”, “2021 - 06 - CRP Program Report”, “2020 - 06 - CRP Program Report”, Concord Community Reuse Project, Document Library , Program Reports, 7, https://www.concordreuseproject.org/documentcenter,
44 Handbook of Cost Plan Procedures for California Counties, State of California-Office of the Controller, December 2021,Section 4160:Insurance Loans /https://sco.ca.gov/Files-ARD- Local/Cost_Plan_Handbook_Rev_Dec_2021.pdf
45 Guy Bjerke, “Considering Award of Contract for Security Guard Services at the Former Concord Naval Weapons Station to Guardian Security…”, Concord City Council sitting as LRA, June 6, 2017, 1. 46 GoMentum Station, Founding Documents, “GoMentum Station, Inc. Amended Bylaws - 2018”, State of California Department of Justice Office of the Attorney General,

1. https://rct.doj.ca.gov/verification/web/SearchResults.aspx 47 “USDOT Automated Driving System Demonstration Grant Application for Contra Costa Transportation Authority’s ADS Demonstration Program Part I”, Contra Costa Transportation Authority, 1. 48 GoMentum Station, Form RRF-1, “Annual Registration Renewal Fee Report to Attorney General of California”, State of California Department of Justice Office of the Attorney General, https://rct.doj.ca.gov/verification/web/SearchResults.aspx 49 Connected Vehicle and Autonomous Vehicle (CV/AV) Program – Authorization to Assign Agreement No.

GMS.002 and Agreement No. GMS.002.001 to the American Automobile Association of Northern California (AAA)”, CCTA Staff Report, September 24, 2018, 1.
50 AAA, About Us, Leadership Team, “Bio - Tim Condon, President & CEO”, accessed 2/27/2023, https://mwg.aaa.com/about-us/leadership/tim-condon
51 “Inventing, Incubating and Test-driving Ideas to Help our Members Navigate the Future”, A3 Ventures, accessed 2/4/2023, https://www.a3.com/innovation-lab/
52 Zippity, “A3Ventures and BP Ventures Invest in Zippity, Onsite Car Maintenance for Workplaces”, press release, https://www.prnewswire.com/news-releases/a3ventures-and-bp-ventures-invest-in-zippity-onsite-car- maintenance-for-workplaces-300751930.html
53 Letter of Intent and Preliminary Agreement Regarding Transfer of Assets by and between GoMentum Station and AAA Northern California, Nevada & Utah…”, March 2018, 1. obtained through grand jury request for records from CCTA.
54 “Redefining Mobility GoMentum Station”, CCTA Staff Report. April 18, 2018, 12. 55 Guy Bjerke, “Considering Award of Contract for Security Guard Services…”, 2. 56 “Concord Naval Weapons Station Transportation Innovation Program”, Memorandum of Understanding between City of Concord and Contra Costa Transportation Authority, signed July 17, 2019, 4. 57 Master Cooperative Agreement No. GMS.002 between Contra Costa Transportation Authority & GOMENTUM, November 16, 2018, 9.
58 Jenkins Report, http://www.concordreuseproject.org/documentcenter . 59 “Spreadsheet Use of City Loans”, http://www.concordreuseproject.org/documentcenter , Program Reports/Use of City Loans, 2.

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60 “City Response to Investigative Report by Michael Jenkins”, February 23, 2016, http://www.concordreuseproject.org/documentcenter ., Archive/Master Developer Selection/Investigative Report

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From: Bjerke, Guy <[email protected]>
Sent: Monday, July 31, 2023 8:10 AM
To: Suzan Requa <[email protected]>
Cc: Barone, Valerie <[email protected]>; Ezell, Justin <[email protected]>; Brown, Susanne <[email protected]>; Ortega, Jennifer <[email protected]>; Fockler, Joelle <[email protected]>; McAuley, Wendy <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]>
Subject: Re: Why Do We Care? - Grand Jury Report CNWS
*This email is being shared with all Councilmembers*
Suzan-
Thank you for your comments on the Grand Jury report regarding the former Concord Naval Weapons Station.

Standard practice with Grand Jury reports is to have staff prepare a response and bring both the Grand Jury report and the proposed response to the City Council for their consideration. The Grand Jury report was released publicly about June 20 and the City Council has been on recess (not meeting) in July, so the first opportunity for any public discussion is the first meeting in August.

The City Council will consider a response to the Grand Jury report at their August 8, 2023, meeting. That response will be released to the public as part of the agenda packet for that meeting later this week.

I hope this clarifies when a response will be considered.

Best regards,
Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
(925) 671-3076
From: Suzan Requa <[email protected]>
Date: Sunday, July 30, 2023 at 2:22 PM
To: Birsan, Edi <[email protected]>, Hoffmeister, Laura <[email protected]>, Nakamura, Laura
<[email protected]>, Obringer, Carlyn <[email protected]>, Aliano, Dominic <[email protected]>, Bjerke, Guy <[email protected]>
Subject: Why Do We Care? - Grand Jury Report CNWS
“EXTERNAL EMAIL: This email originated from outside of the organization. Do not follow guidance, click links, or open attachments unless you recognize the sender and know the content is safe.”
Attachment 3

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Dear Concord City Councilmembers:

Our activist members of Concord are sending this message below wherever we have contacts. You have already seen that your City communities care and that is why there is a Civil Grand Jury Report. The report strongly endorses the creation of a qualified LRA and city staff. This is such a complex project. It is necessary for you to have the expertise you need on staff to protect our existing city and grow the new city successfully in an ever changing, climate impacted technological world. The Grand Jury has made it clear what is needed. We ask for an outsourced financial audit and that you take responsibility for the recommendations.

Your non-response so far feels like a brush-off. You are better than your current messaging.

The recommendations are very constructive and that is what we know you can achieve with strategic planning based on the recommendations. We are asking for constructive change this 3rd time of developer and design decisions.

Sincerely, Suzan and Dave Requa
Why do we care about a Contra Costa Civil Grand Jury report on the Concord Naval Weapons Station project which includes a $14.06 MILLION dollar taxpayer question? Why do we care - the Concord community, business communities? our BART ridership? - 242, 680, Hwy 4 commuters? - families with children in school? the environmental organizations? - the affordable housing needy? - the water, recycled water, electricity users? We care about the $ 14.06 million dollars that is a city loan without specific accountability how it was spent on the project and how it will be repaid.

We care because decisions were made without appropriate Concord city council following their own procedures to gain the detailed information needed about each developer and their financial capability for high cost start up procedures. Two times now decisions have been questionable. We don't want a third time like this.

We care because for all of the above and more- CNWS is such an important opportunity that we must get this right for all of us!
Read the report it is very clearly written: Concord Naval Weapons Station Grand Jury Report: A Promise Unfulfilled. 2305

https://www.cc-courts.org/civil/docs/grandjury/2022-2023/2305/2305wSignature.pdf

Urgent! Email the Concord City Councilmembers and ask that they clearly respond to all of us with a commitment on recommendations on how to go forward and with an outside auditor for a financial audit of CNWS/Concord City Council/Developer expenses and repayment.

Suzan Requa
Concord Resident

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From: Bjerke, Guy <[email protected]>
Sent: Tuesday, July 11, 2023 8:39 PM
To: [email protected]
Cc: Barone, Valerie <[email protected]>; Ezell, Justin <[email protected]>; Brown, Susanne <[email protected]>; Ortega, Jennifer <[email protected]>; Fockler, Joelle <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]>; McAuley, Wendy <[email protected]> Subject: Concord Naval Weapons Station Grand Jury Report - A Promise Unfulfilled *This email is being shared with all Councilmembers*
Graciela-
The Contra Costa Grand Jury Report No. 2305 – Concord Naval Weapons Station – A Promise Unfulfilled was dated July 15, 2023, and released to the public by the Grand Jury on July 21, 2023. It can be found on the Grand Jury’s website here: https://www.cc-courts.org/civil/grand-jury-reports.aspx The City Council and staff are in the process of reviewing the report. The City is preparing a response as requested and that response will be on the City Council’s August 8, 2023, agenda for public review and Council approval.

There are no Council meetings in July. When the agenda packet for the August 8, 2023, meeting is posted to the website both the Grand Jury Report and the City’s response will be on the City’s website.

Thank you for your continued support of the Reuse Project.

Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
(925) 671-3076

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From: Bjerke, Guy <[email protected]>
Sent: Tuesday, August 1, 2023 3:17 PM
To: [email protected]
Cc: Fockler, Joelle <[email protected]>; McAuley, Wendy <[email protected]>; Ananthan, Stefanie <[email protected]> Subject: RE: Grand Jury Report responses
Thank you for your comments on the Grand Jury report regarding the former Concord Naval Weapons Station.

Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
[email protected]
(925) 671-3076
From: Janet Thomas <[email protected]>
Sent: Tuesday, August 1, 2023 2:28 PM
To: Concord City Council Email <[email protected]> Subject: Grand Jury Report responses

Dear City Council,
As a Contra Costa County resident, I have recently read the Grand Jury Report citing numerous concerns about the status of the Naval Weapons Station land development.

I am particularly concerned with the flawed selection process of the Master Developer and lack of transparency. I ask that you give a detailed response to the Grand Jury recommendations and make judicious development of the Weapons Station as a high priority of your service to the region.

Thank you.

Janet Thomas
Lafayette, CA 94549

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August 9, 2023

By U.S. Mail and email ([email protected])

Ms. Cynthia Roberts, Foreperson
Contra Costa County Civil Grand Jury
P.O. Box 431
Martinez, CA 94553

Re: City of Concord and Local Reuse Aut hority Response to June 15, 2023 Grand Jury Report No. 2305, “Concord Naval Weapons Station Grand Jury Report, A Promise Unfulfilled”

Dear Ms. Roberts:

“Now, seventeen years after Concord was designated as the Local Reuse Authority, little has been achieved….”

The LRA disagrees with the Grand Jury’s conclusion that over the past seventeen years “little has been achieved…” The City/LRA recognizes that the scope of mate rials available on the LRA website may be challenging to review and process. However, it appears that the Report title and this statement demonstrates a lack of understanding as to how much progress the LRA has made working with the community, stakeholders, local agencies, regulators, and the U.S.

Navy on this complicated project, including:

 The Reuse Plan and Environmental Impact Report was adopted after 3 years of community engagement in 2010.
a. http://concordreuseproject.org/DocumentCenter/View/1523/2006-09-CNWS-Phase- 1-Report

1 A city has 90 days to respond under Penal Code Section 933(c). While that section references a 60 day response timeframe with respect to county officers and boards, the LRA is not a county board. Rather, the LRA and the City Council are two separate legal entities they are made up of the same five elected officials. Out of respect to the Grand Jury, and in the interest of transparency, the City/LRA’s response was nevertheless drafted with the 60 day timeframe in mind.

Agenda Item No. 5.j
Benched Attachment 1
August 8, 2023

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All of these efforts were accomplished while also monitoring the U.S. Navy’s clean-up of the property, facilitating GoMentum Station’s interim use for autonomous vehicle testing, coordinating law enforcement and fire district use of the base for training purposes, seeking a

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suitable master developer to author and implement a Specific Plan; and negotiating an Economic Development Agreement with the U.S. Navy agreeing to financial and other terms for property transfer.

In short, the City/LRA has facilitated a great deal of progress towards the eventual development of the CNWS.

1. 2021 Master Developer Selection

Findings

1.a The LRA team allowed master developer appl icant CFP to continue to be considered in 2021 master developer selection process even though its SOQ submission dated June 18, 2021, did not include many required financial documents.

Response: The LRA2 agrees with this finding.

1.b The LRA allowed applicant CFP to conti nue to be considered in the 2021 master developer selection process after CFP did not comply with the LRA team follow up request for financial documents made in July 7, 2021, correspondence.

Response: The LRA agrees with this finding.

1.c The RFQ process adopted by the Concord C ity Council ad hoc committee did not utilize the LRA staff and consultants to issue a written report with a recommendation for CNWS master developer.

Response: The LRA agrees with this finding.

1.d. The RFQ process used in 2021 master developer selection process did not use practices such as stated weighted criteria and objective scoring.

Response: The LRA agrees with this finding.

1.e The RFQ process used in 2021 master deve loper selection process did not include a written, scored evaluation of the SOQ submitted for the CNWS project from LRA staff and consultants.

Response: The LRA agrees with this finding.

2 The Concord City Council is the Local Reuse Authority board for the Concord Naval Weapons Station Reuse Project. All references to the LRA in responses also serve as responses from the Concord City Council.

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Recommendations

1.b The LRA team should specify that the stated RFQ or RFP response date and time is the final cutoff for submission of materials by any applicant.

Response: The recommendation has been implemented. will not be implemented because the RFQ for the next master developer selection process was considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023. The response date and time is July 14, 2023, 3 p.m.

1.c The LRA should specify that there will be no extensions or second requests for information that was clearly requested in the RFQ or RFP.

Response: The recommendation has been implemented. The LRA is not providing extensions or second requests for information that was clearly requested in the RFQ. will not be implemented because the RFQ for the next master developer selection process was considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023.

1.d RFQs and RFPs for the CNWS project shou ld be created by designated city staff and outside consultants of the LRA team.

Response: The recommendation has been implemented. All of the RFQs and RFPs for the CNWS project have been created by designated staff and outside consultants of the LRA team.

1.e The Concord City Council should provide input on parameters and scope of a RFQ or RFP, prior to the document being written.

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1.f The LRA staff and designated consultants s hould be the sole evaluators of the RFQ or RFP responses for the CNWS project.

Response: The recommendation will not be implemented because the RFQ for the next master developer selection process was discussed at a public meeting on March 14, 2023, and considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023. The defined process in the issued RFQ states that staff and consultants will provide a basic evaluation in a Summary Table for Council and the public to review. Further, the issued RFQ states that the Council will evaluate the RFQ responses and the selection will be made by the City Council. The City Council are the directly elected governing representatives of the community and it falls within their scope of authority and responsibilities to make the decision on which firm the LRA will work with as a Master Developer for the CNWS project and it is also within the Council's authority to define the level of staff analysis for that supports their evaluation.

1.g Scoring criteria for RFQ or RFP evaluati ons used in the CNWS master development process should be provided on an RFQ or RFP template sent to each potential applicant.

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

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1.j The report on staff recommendations for the master developer should be publicly released immediately following the council meeting in which the Concord City Council selects the master developer.

Response: The recommendation will not be implemented because: 1) staff will not be making a recommendation to Council regarding master developer candidates and, 2) state law requires agendas be released to the public prior to the Council meeting where the item in question is heard. Staff will release the report that accompanies the agenda item, as is its practice, concurrent with publication of the agenda. Moreover, specific to matters related to master developer selection, it is the City/LRA practice to release documents early, such as a week to several weeks before City Council consideration.

2. LRA Contractor Management

Findings

2.a LRA staff and consultant reference checks in the 2021 master devel oper selection process missed certain points involving prior BRAC experience and litigation history.

Response: The LRA agrees with this finding.

2.b The PSAs between the City of Concord a nd ARUP, HRA Advisors, Inc., and ALH Urban & Regional Economics during the period 2020 to 2022 did not have language to restrict hourly rate increases by consultants during one-year PSA terms.

Response: The LRA agrees with this finding.

Recommendations

Response: The recommendation has not yet been implemented, but will be implemented as contracts are offered, renewed, or extended in the future.

3. Transparency

Findings

3.a The RFQ and SOQ process used in th e 2021 CNWS master developer selection prevented LRA staff from providing analysis and recommendations on the three respondents.

Response: The LRA agrees with this finding.

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

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Recommendation

3.a For future RFQs and RFPs used to select a master developer for the CNWS project, there should be a full analysis and report issued by LRA staff.

Response: The recommendation has been will not be implemented. T because the RFQ for the next master developer selection process was approved after a full analysis and report was issued by LRA staff; was discussed at a public meeting on March 14, 2023, and was considered and approved by the City Council at a public meeting on May 9, 2023, and issued on May 15, 2023.

4. Concord City Loans to the Local Reuse Authority

Findings

4.a Concord city staff provided the Concord City Council in February 2020 a report that provided detail on CNWS-related expenses paid from loans the City of Concord has made to the LRA.

Response: The LRA agrees with this finding.

4.b The annual Program Reports issued by the LR A do not show the actual funding source.

Annual forecasts by vendor show projected funding sources but fiscal year actuals are shown as totals with no indication of the funding source.

Response: The LRA agrees with this finding.

4.c The City of Concord borrowed $3.15 million from the city’s self-insured workers compensation fund in FY 2017 and FY 2018 to provide funds to the City of Concord’s loan to the LRA.

Response: The LRA agrees with this finding. The City is not self-insured for workers’ compensation claims. The City did loan the above amount from a General Fund account designated to pay deductibles for workers’ compensation claims.

4.d The City of Concord’s financ ial reporting does not show that loans made from Concord’s workers compensation fund to the LRA have been paid off.

Response: The LRA agrees with this finding.

Recommendations:

4.a Concord city staff should pr ovide updates to the February 2020 report to show payments made against Concord’s loan to the LRA for CNWS-related expenditures for 2021, 2022 and

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

Page 8 ends

2023 and to show details on what funds were deposited and/or refunded from Concord First Partners and future master developers.

4.b The City of Concord should produce annual reporting on the city loans to the LRA, showing annual and project to date expenses by vendor in detail as was done in the February 2020 report.

4.c The City of Concord should find funding s ources other than its self-insured workers compensation fund when making loans to the LRA.

Response: The recommendation has been implemented. The latest loan from the City to the LRA of $530,000, approved by the City Council on June 13, 2023, comes from unallocated General funds.

4.d The City of Concord should repay its self -insured workers compensation fund for any loans made to the LRA that are outstanding more than 36 months per state guidelines.

The City is self-insured for its deductibles for workers compensation claims and does have a fund called the City’s workers compensation fund to be used for this purpose. The amount of this fund is evaluated every 2 years and when needed during budgeting, the City adds funding to this fund. The current loan from this fund is not creating undue risk to the fund in that it is funded to 90% certainty.

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

Page 9 ends

Further, it is worth noting that the reference the Grand Jury makes to state guidelines are guidelines intended to guide countyies’s not cities.

5. GoMentum Station Expenses

Findings

5.a CCTA, AAA, and their partner clients have been using the GoMentum test facility on the CNWS site since 2014.

Response: The LRA agrees with this finding.

5.b There is language in a 2017 LRA docu ment that CCTA would pay 80 percent of Guardian Security costs.

Response: The LRA agrees with this finding.

5.d The signed MOU between Concord and CCT A states that CCTA should reimburse Concord for incurred fees/costs associated with providing access and security for GoMentum facility at CNWS.

Response: The LRA agrees with this finding.

Recommendations

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

Page 10 ends

5.b Notice on updated security reimbursements should be sent to AAA and CCTA within 90 days of this report being received by Concord City Council and LRA.

5.c The change in the CNWS security serv ice rate agreement reimbursement should be effective within 90 days of AAA and CCTA being notified.

Response: The recommendation requires further analysis. See answer to 5.b above.

5.d The LRA should seek reimbursement from AAA and CCTA on CNWS gate security payments in excess of 20% in 2020 and 2021.

6. Jenkins Report Charged Against LRA City Loan

Findings

6.a The Jenkins Report presented the findings of an investigation authorized by the Concord City Attorney in 2015.

Response: The LRA agrees with this finding.

6.b The expense to the LRA for the investig ation and report done by Michael Jenkins was $63,154 and it was paid as a 2016 expense against the city loan to the LRA.

Response: The LRA agrees with this finding.

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City of Concord/Local Reuse Authority Response Letter to Grand Jury Report No. 2305 August 9, 2023

Page 11 ends

6.c The issues investigated in the Jenk ins Report were improper lobbying by a council member, removing staff recommendation from final report on the master developer and Brown Act violations. These findings involved real or perceived improper activity by the Concord city staff and the Concord City Council.

Response: The LRA agrees with this finding.

Recommendations

6.a The expenses for this investigation should not be charged to the LRA loan and ultimately to the master developer on the CNWS project.

6.b The payment for the Jenkins investigation shou ld be reversed as an expense against the city loan to the LRA.

Response: The recommendation will not be implemented. See answer to 6.a above.

6.c The payment for the Jenkins investigation should be paid as an expense from Concord general funds.

Response: The recommendation will not be implemented. See answer to 6.a above.

Sincerely,

Valerie J. Barone
City Manager

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From: Birsan, Edi <[email protected]>
Sent: Monday, August 7, 2023 2:34 PM
To: Barone, Valerie <[email protected]>
Subject: Fwd: Grand Jury amendments

These are my suggested amendments to the staff report.

Should this be listed as a benched item as I hope to have them discussed?

Suggested Response

Response: The LRA2 agrees with this finding.

This underlines the lack of perspective found elsewhere wherein the whole picture is ignored to highlight one specific negative and target one applicant as seen below. ALL three applicants failed to provide the full requirements in their SOQ response. CFP did agree to a review of their financials in line with an accepted procedure for confidentiality and trade secret protections. As for the other two applicants: Brookfield and City Ventures, they did not comply with a major component: Labor Agreement until just before the final selection vote- Brookfield 5 days, and City Ventures 24 hours.

Response: The LRA agrees with this finding

Again the financial side was eventually satisfied. Note that the other applicants did not comply with the request for labor agreement until just before the vote.

1.c The RFQ process adopted by the Concord City Council ad hoc committee did not utilize the LRA staff and consultants to issue a written report with a recommendation for CNWS master developer.

Response: The LRA agrees with this finding.

Agenda Item No. 5.j
Benched Correspondence
August 8, 2023

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Again, the Jury ignored the fact that the council unanimously agreed that the position was to be that there would be no specific recommendation by the staff. The Ad Hoc committee worked with the staff on the process to be followed and that process was discussed and approved in open Council Session.

1.d. The RFQ process used in 2021 master developer selection process did not use practices such as stated weighted criteria and objective scoring. Response:

The LRA agrees with this finding.

Again, the jury ignores the background, that the Council unanimously rejected the concept of a weighted scoring system. With the consideration of a 30-50 year project and 20 billion dollars at least, as was seen the non-objective factors or the emotional ones were applied by the community. The fact is that scoring systems in this situation could not be made objective either relative to the scored category or relative to the values of one category vs another. For example, the actions of the father of the president of a minority shareholder 37 years prior how does that compare with a monarchial pseudo theocracy holding positions on the board of directors or the participation of fossil fuel investments or the activities concurrent in 6 different countries and while the accusations of misdeeds(even when legally defeated and tossed out) or the value of dealing with local private companies vs international Wall Street conglomerates are major community concerns?

1.e The RFQ process used in 2021 master developer selection process did not include a written, scored evaluation of the SOQ submitted for the CNWS project from LRA staff and consultants.

Response: The LRA agrees with this finding.

See above.

Recommendations:

1.b The LRA team should specify that the stated RFQ or RFP response date and time is the final cutoff for submission of materials by any applicant.

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Additionally it is not considered in the interest of the city to do so since experience has shown that all applicants would have been rejected on various degrees of failure thus compromising our goal to achieve results that would not negatively impact the future reissue of the SOQ.

1.e The Concord City Council should provide input on parameters and scope of a RFQ or RFP, prior to the document being written.

Response: The recommendation had already been implemented before the report and the Grand Jury appeared to either ignore it or missed it. At a public meeting on March 14, 2023, the City Council provided input into the current master developer selection process and at a public meeting on May 9, 2023, reviewed the draft RFQ, provided direction to staff, and authorized its release.

1.d RFQs and RFPs for the CNWS project should be created by designated city staff and outside consultants of the LRA team.

Response: The recommendation has been implemented. All of the RFQs and RFPs for the CNWS project have been created by designated staff and outside consultants of the LRA team by 1.f

The LRA staff and designated consultants should be the sole evaluators of the RFQ or RFP responses for the CNWS project working with a possible Council ad hoc committee as seen fit by the Council.

3. Transparency

Findings 3.a The RFQ and SOQ process used in the 2021 CNWS master developer selection prevented LRA staff from providing analysis and recommendations on the three respondents.

Response: The LRA agrees with this finding.

Again the Grand Jury ignores the background to promote a negative. The fact is that the LRA did provide analysis which the Jury ignored. They did not provide a recommendation because they were specifically directed by the council to not do so.

Edi Birsan
950 Alla Ave.

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Concord, CA 94518

510 812- 8180

Please take the survey at
www.PulseOfConcord.com

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From: Suzan Requa <[email protected]>
Sent: Tuesday, August 8, 2023 10:09 AM
To: Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Hoffmeister, Laura <[email protected]>; Nakamura, Laura <[email protected]>; Aliano, Dominic <[email protected]>; Bjerke, Guy <[email protected]>; City Clerk <[email protected]> Subject: Public Comment Aug. 8th

Dear City/LRA Leadership:

Please read during public comment, Aug. 8th. Suzan Requa Consent Calendar Grand Jury Report approval?? That you would choose not to hear from nor respond to your community at the council meeting when the grand jury request came from your community, is yet another major disappointment.

It is about the money. You have broken your own rules created to protect our city financially and your staff facilitated the movement of city money to questionable "loans."
Its about impossible RFPs that now even include collecting payment for past developer bills in these failed selection processes.

You may be able to land on your feet by considering both locally connected developer applicants and work with them to build a collaborative effort. They each have money and unique qualities and experience that is needed for the CNWS project.

You may be able to get this right by an all out search for credentialed, experienced, ethical, city staff in key positions to protect finances, fully explain details, design/cost options and negotiate with Navy and developers.

You may be able to get this right with an expert Community Advisory Board that would bring meaningful innovative ideas over the stretch of time of the project and help integrate our existing city and CNWS in a healthy constructive manner.

With the help described, we can feel confident that the results will build successful structural housing and thriving business community and a healthy, family centric Concord.

Sincerely, Suzan Requa
Concord resident

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From: Hope Johnson <[email protected]>
Sent: Tuesday, August 8, 2023 1:20 PM
To: City Clerk <[email protected]>
Subject: Fw: legally inaccurate decision maker info in draft CGJ response (Item 5j on council agenda today)

Dear City Clerk:

I don't know if it is required or not but I had intended to copy you on the email below so am forwarding it now.

Thank you,
Hope Johnson
-----Forwarded Message-----
From: Hope Johnson <[email protected]>
Sent: Aug 8, 2023 12:25 PM
To: <[email protected]>, <[email protected]> Cc: <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]> Subject: legally inaccurate decision maker info in draft CGJ response (Item 5j on council agenda today)
Dear City Manager and City Attorney:

Please consider making legally clarifying changes to the draft response to the Civil Grand Jury Report being considered under Item 5j at the City Council meeting today.

Responses throughout the draft indicate the City Council has approved or has the authority to approve or oversee items related to the base reuse. See, for example, Section 1.f:
"the RFQ for the next master developer selection process was considered and approved by the City Council at a public meeting on May 9, 2023" and "the issued RFQ states that the Council will evaluate the RFQ responses and the selection will be made by the City Council. The City Council are the directly elected governing representatives of the community and it falls within their scope of authority and responsibilities to make the
decision on which firm the LRA will work with as a Master Developer for the CNWS project and it is also within the Council's authority to define the level of staff analysis that supports their evaluation."

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This is not accurate. As indicated in footnote 1 of the draft response "the LRA and the City Council are two separate legal entities." The City Council does not have authority to make decisions related to the CNWS, only the LRA makes those decisions. While the current LRA is made up of the members of the City Council, they are not acting as elected members of the Council when making decisions related to the CNWS - they are acting as members appointed to the LRA.

Although the current City Council appointed themselves to be the members of the LRA, and that is not likely to change in the near future, the State of California does not require the LRA to consist of elected officials and it does not grant authority to the City Council to make decisions on the base reuse. The wording in the draft should be changed to accurately reflect that it is the "separate legal entity" of the LRA making these decisions to avoid any confusion and to provide legally accurate information to the Civil Grand Jury.

Please also consider removing or changing the description that the City Council are elected representatives of the community which gives them authority to make decisions on base reuse. That is not legally correct. The City Council are elected representatives who have been given the legal authority to determine who sits on the LRA but have no authority to make decisions on base reuse as the Council. The Council does not sit on the LRA because they are elected, they sit on the LRA because they appoint themselves to do so. The Civil Grand Jury should received legally accurate information and the public should not be under the false impression that the Council is making the decisions on base reuse in their capacity as elected representatives.

Thank you for your attention to this matter.

Hope Johnson
Concord Resident

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From: Hope Johnson <[email protected]>
Sent: Tuesday, August 8, 2023 12:33 PM
To: Bjerke, Guy <[email protected]>; Barone, Valerie <[email protected]>; City Clerk <[email protected]>; Fockler, Joelle <[email protected]>
Cc: Brown, Susanne <[email protected]>; McAuley, Wendy <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]>; Hoffmeister, Laura
<[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura
<[email protected]>
Subject: RE: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) Director Bjerke:

Hope Johnson
-----Original Message-----
From: Bjerke, Guy <[email protected]>
Sent: Aug 8, 2023 12:24 PM
To: Hope Johnson <[email protected]>, Barone, Valerie <[email protected]>, City Clerk <[email protected]>, Fockler, Joelle <[email protected]>
Cc: Brown, Susanne <[email protected]>, McAuley, Wendy <[email protected]>, Mora, Israel <[email protected]>, Ryan, Joan <[email protected]>
Subject: RE: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) *This email is being shared with all Councilmembers*
Hope-
Thank you for your email.

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The reports are consistent – and the difference is looking backwards versus projecting forward.

The LRA is agreeing in the Grand Jury response to make efforts to improve how project funding is tracked and making that more accessible in the future.

Again, thank you for your question.

Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
[email protected]
(925) 671-3076

From: Hope Johnson <[email protected]>
Sent: Tuesday, August 08, 2023 11:48 AM
To: Barone, Valerie <[email protected]>; Bjerke, Guy <[email protected]>; City Clerk <[email protected]> Cc: Hoffmeister, Laura <[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]>; Brown, Susanne <[email protected]> Subject: GoMentum CNWS use discrepancy (Items 5i & 5j on council agenda today) Dear City Manager and Base Reuse Director:

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and the proposed draft response to the Civil Grand Jury for Item 5j estimates the use at 80%.

It would be helpful for these contracts, supporting evidence for the estimates of percentages used, amounts paid, and funding sources were easily accessible on the Concord Reuse web site.

Thank you for your attention to this matter.

Hope Johnson
Concord Resident

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From: Graciela Reynoso <[email protected]>
Sent: Tuesday, August 8, 2023 2:34 PM
To: Fockler, Joelle <[email protected]>
Cc: Aliano, Dominic <[email protected]>; Birsan, Edi <[email protected]>; Hoffmeister, Laura <[email protected]>; Nakamura, Laura <[email protected]>; Obringer, Carlyn <[email protected]> Subject: Request to remove from Consent Calendar Item 5 and any other Item pertaining to City Council sitting as LOCAL REUSE AUTHORITY

Subject: Request to remove from Consent Calendar Item 5 and any other Item pertaining to City Council sitting as LOCAL REUSE AUTHORITY
This letter is directed to our City Council Members, Representatives to the People they serve. This Grand Jury report should be taken very seriously.

Please find the time to read, reread - reread as much as you can the Grand Jury Report.

Do Not let anything pass.

On Page 3 of Grand Jury Report
“A Promise Unfulfilled”
Methodology- Please read this first sentence.

Concord City Hall - Staff Report prepared by Guy Bjerke, Director of Economic Development and Base ReUse

Please read what he wrote in Staff Report under:

BACKGROUND
“Each year the Contra Costa County Grand Jury selects governmental issues to research and analyze”

Wow!!!!! The Cover Letter from your City Manager to imply this is routine when in fact is is not.

I worried about the 14M - Where is it? Grand Jury found 37M and where did this go? When all we have to show for it is a City full of Pot Holes.

This is a scathing report regarding (CNWS). Both Lennar & Seeno failed. They were chosen because of politics and the public was short changed. The process was a sham. What assurances do we have that anything would be different if staff is the same. The Council with the exception of one is the same.

Former Human Rights Commissioner for the City of Concord,

Graciela Guerrero Reynoso

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From: Colleen Coll <[email protected]>
Sent: Tuesday, August 8, 2023 2:46 PM
To: Fockler, Joelle <[email protected]>
Subject: Grand Jury Report:

The Civil Grand Jury report states that "through 2019-2020 the Council loaned the LRA 14.06 million to cover Council expenses." Yet, the Council assured its residents that CNWS expenses would not burden the City's General Fund.

Our City's General Fund monies were used and AT PRESENT there is no means of repaying the 14.06 plus interest. The Council promised not to burden the General fund and did so. Councilmembers violated their fiduciary by not protecting our taxpayer dollars. Taxpayers' dollars should be spent on essential services.

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From: Hope Johnson <[email protected]>
Sent: Tuesday, August 8, 2023 2:59 PM
To: City Clerk <[email protected]>
Cc: Hoffmeister, Laura <[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]>
Subject: comment re 5j on agenda this evening

Dear Concord City Council/LRA:

The response to the Civil Grand Jury is your opportunity to require staff to be transparent with funds related to the base reuse. Please consider the following:

1. Require staff to provide quarterly accountings be presented to the LRA at public meetings of funds for the base reuse. It should include the amounts spent, who received them, what the purpose was, where the funds to pay them originated from (including amounts taken from money received from developers or if borrowed money was taken from the general fund or some other city account), and if interest on loaned money is being used to pay back funds borrowed from the city.

2. Require staff to add to the draft response a specific plan on how they propose to have the $14.6M outstanding loans repaid. Merely stating the master developer will pay for it, the response should include if repayment requirements were included in the RFQ, what is the plan to ask the selected master developer to repay the loans, and how many years does staff believe it will take to repay them.

We need this transparency and the LRA needs to step up to monitor it. The Civil Grand Jury report evidences it. As does the fact that thousands of dollars was spent between 2014 and 2016 for an evaluation board to assess developers, and then their recommendation was thrown out because then Mayor Tim Grayson suddenly wanted no recommendation after being lobbied by Lennar. Now we two failed attempts at selection of the master developer with only two submissions for the new RFQ.

Something isn't right and needs oversight.

Please also ask for an explanation why Director Bjerke included work that Lewis group did not do in his presentation to you during the last RFQ submission presentations.

Lastly, the city budget should not combine Economic Development with the Base Reuse because one can use city funds and one cannot. These should not be combined.

Thank you
Hope Johnson
Concord Resident

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Staff Report
Date: August 8, 2023
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Justin Ezell, Assistant City Manager
[email protected]
(925) 671-3231
Subject: Considering adoption of a Resolution amending Resolution No. 23-55 authorizing the disbursement of Cannabis
Community Benefit Funds by providing for one-time
appropriation and disbursement of $28,000 through the
organization Community Initiatives, to support the One Day at a Time (ODAT) Program for two years ($14,000 per year).

CEQA: Not a project/exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections
15060(c)(2),15061(b)(1), 15051(b)(3), 15262, 15273, 15306, and/or 15378 (including subsections 15378(b)(2), (4) and/or (5)).

Report in Brief
On June 13, 2023 the City Council adopted a Resolution which authorized the disbursement of some Cannabis Community Benefit Funds to the Rainbow Community Center. At the same meeting, staff was directed to return to Council with more information on the funding request from the One Day at a Time Program for Cannabis Community Benefit Funds, so that Council could consider amending the resolution to appropriate funds for the program.

Recommended Action
Adopt a resolution amending Resolution No. 23-55 authorizing the disbursement of Cannabis Community Benefit Funds by providing for one-time appropriation and disbursement of $28,000 through the organization Community Initiatives, to support the One Day at a Time (ODAT) Program for two years ($14,000 per year). (Attachment 1)

6.a6.a6.a6.a6.a

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City Council Agenda Report
Agenda Item No. 6.a
August 8, 2023
Background
Council directed staff to develop a proposal on how to distribute Cannabis Community Benefit funds during its March 11, 2023 goal-setting workshop. The City anticipates receiving $400,000 in annual revenue when all six cannabis businesses are operating, which is expected to occur by June of 2024. Actual revenues may be higher or lower.

The Cannabis Community Benefit Fund balance as of August 1, 2023 is $332,454.

On June 13, 2023 the City Council adopted Resolution No. 23-55 which provides a procedure for distributing the Cannabis Community Benefit Funds. The adopted Resolution includes a one-time appropriation for the Rainbow Community Center to operate a clinical mental health services program for two years, in the total amount of $59,268. When adopting the Resolution, Council also considered a two-year appropriation for the One Day at a Time (ODAT) Program of $28,000 (total for the two years). Council deferred a decision on the ODAT funding and requested additional information, which is provided in the analysis section of this report.

Analysis
On June 14, 2023 MDUSD entered into a contract with ODAT to run its program at Ygnacio Valley High School during the 2023-24 school year at a cost of $74,880 for up to 50 students (Attachment 2). MDUSD is not including funding for certain elements of the ODAT program, such as family celebrations and t-shirts to commemorate milestones achieved. ODAT estimates the cost of these additional elements to be $14,000 per year for up to 50 students and their families. If the City of Concord partners with MDUSD and ODAT by contributing the additional $14,000 of funding, it will facilitate a more enriching experience for the youth.

ODAT funding was first discussed by Council during its March 11, 2023 goal-setting workshop, at which time Council directed staff to explore one-time funding for the ODAT program using Cannabis Community Benefit Funds. Cannabis Community Benefit Funds are derived from Cannabis Retailers through voluntary commitments which are codified in each business’ adopted Development Agreement with the City. Previous Council action authorized use of the funds for youth drug use prevention and education efforts; drug treatment programs and/or mental health programs, including programs providing supervised diversion from the criminal justice system to avoid recidivism; and workforce development.

The ODAT proposal (Attachment 3) is in line with these authorized uses because the organization will be partnering with MDUSD to run their program to provide positive educational personal growth opportunities to youth at Ygnacio Valley High School.

ODAT describes its approach as one that combines community, school and family resources to combat risks associated with low self-esteem, poor academic performance, family problems, domestic violence, abuse, depression, substance abuse, gang association and crime. ODAT’s school linked program incorporates four

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City Council Agenda Report
Agenda Item No. 6.a
August 8, 2023
components: youth, school, family, and community. ODAT focuses on empowering students to perform better in school and lead positive lives.

ODAT proposed use of the $14,000 (annual cost/request is for two years of funding) to fund three program elements they find as critically important to the success of the program, specifically:

1. ODAT Graduation - $3,500
This is a critical component of the program. ODAT’s annual graduation ceremony recognizes participants who successfully finished the 9-month school-based program. The program anticipates that between 30-50 students will successfully graduate the program. To graduate, students must attend 70% of the after-school groups and community events, and improve in school attendance, grades and discipline. Graduating students, their entire families, ODAT staff, and program stakeholders (school leaders, school board members, councilmembers, city leaders, etc.) are invited to the graduation dinner. The dinner is a semi-formal event; the location is TBA since it is our first year with MDUSD. This is an evening filled with celebrating not just students’ academic achievements but also their internal growth alongside their families. Estimated Attendees: 250 to 350 people.

2. ODAT BBQ - $4,000
This is an ODAT family tradition and a critical program element for building community and supporting program success. ODAT rents a picnic area in a park; invited are all our participants and their families, as well as former participants and their families, community members and leaders, stakeholders, and ODAT staff. This is a very special event which supports the program by bringing families, and the community together with positive and fun activities. Many of the activities at the BBQ are rented and can include jumpy houses, obstacle courses, games and music. We average about 50 families during this day at the park. The goal is to create bridges between youth, families, communities, and staff and strengthen community connections amongst the participants and their families.

Estimated Attendees: 250 to 350 people

3. ODAT T-Shirts - $5,100
T-shirts are the visible display of the program’s reward system and critical to the success of the program. ODAT incorporates an improvement point system with T-Shirts as the visible reward. All participants receive an initial “participation” T- shirt, and then as students achieve milestones they “level up” to a different “achievement” T-shirt; students can “level-up” multiple times. “Leveling-up” requires students to improve in attendance, grades, and discipline. By the end of the 9-month program students can earn up to 5 different levels of T-shirt improvement recognitions. The goal is to promote the student’s achievements through the point system and to make the achievements visible through the T-

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City Council Agenda Report
Agenda Item No. 6.a
August 8, 2023
shirts. This allows for public and peer recognition in hopes to motivate each student to create positive changes and for the students to motivate each other.

Estimated 250 shirts per year at an average cost of $20 per shirt.

In 2012 ODAT became a fiscally sponsored project of Community Initiatives, a 501(c)(3), public benefit, not for profit organization. The Fiscal Sponsor fee of 10%, or $1,400, is included in the $14,000 proposal.

If ODAT does not enter into a second year for the program at Ygnacio Valley High the second year’s funding of $14,000 would not be provided to ODAT but would remain as part of the Cannabis Community Benefit for allocation through the Council adopted process.

Environmental Determination
Council action on this item is exempt from California Environmental Quality Act (CEQA) review as none of these activities constitute a "project" and/or all of these activities are otherwise exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2),15061(b)(1), 15262, 15273, 15306, and/or 15378 (including subsections 15378(b)(2), (4) and/or (5)), do not commit the City to a definite course of action, and do not constitute discretionary approval of a specific project. If any of these activities 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). 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.

Financial Impact
The City’s Cannabis Community Benefit Fund was established to provide funding for these types of programs; the current balance of the fund is $332,454 as of August 1, 2023. Of that amount, Council obligated $59,268 to the Rainbow Community Center on June 13, 2023, leaving an available fund balance of $273,186.

Budget Adjustment or Transfer Required
Funding allocated to 292-8800-1Z01-66600 in the amount of $14,000 per year for Fiscal Year 2023-24 and 2024-25.

Public Contact
The City Council Agenda was posted.

Attachments

1. Resolution Authorizing the Disbursement of Cannabis Community Benefit Funds

2. Agreement between MDUSD and ODAT

3. ODAT Proposal

4. ODAT Flyer

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Res No. 23-XX 1

BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD

COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
A Resolution Amending Resolution No. 23-55
Authorizing the Disbursement of Cannabis
Community Benefit Funds, Providing for One-Time
Appropriation and Disbursement of $28,000 through
the Organization Community Initiatives, to Support
the One-Day at a Time (ODAT) Program for Two
Years ($14,000 per year)
Resolution No. 23-XX
/
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 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 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, 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
Attachment 1

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Res No. 23-XX 2
WHEREAS, from time to time the City Council will hold duly noticed public hearings to consider the adoption of Ordinances that approve and authorize the City Manager to execute Development Agreements with holders of City Cannabis Licenses; and WHEREAS, on April 12, 2022, the City established a Cannabis Community Benefits Fund for the purpose of collecting voluntary funding commitments made by holders of Cannabis Licenses within their Development Agreements; and
WHEREAS, on May 16, 2023, the City Council provided direction on the procedure for distributing funding from the City’s Cannabis Community Benefits Fund.

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

Section 1. Council action on this item is exempt from California Environmental Quality Act (CEQA) review as none of these activities constitute a "project" and/or all of these activities are otherwise exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2),15061(b)(1), 15262, 15273, 15306, and/or 15378 (including subsections 15378(b)(2), (4) and/or (5)), do not commit the City to a definite course of action, and do not constitute discretionary approval of a specific project. If any of these activities 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). 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.

Section 2. Authorizes disbursement of the Cannabis Community Benefit Funds as follows:
a. The City Council will distribute funds to nonprofit organizations through grant awards i. Organizations receiving grants must serve residents within the City of Concord and must provide any of the following services:

1. Youth drug use prevention and education efforts

2. Drug treatment programs and/or mental health programs, including programs providing supervised diversion from the criminal justice system to avoid recidivism

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Res No. 23-XX 3

3. Workforce development
ii. At least 20% of the Cannabis Community Benefit Fund will be appropriated for the City’s low-resource areas in accordance with Program 26.1 of the Housing Element.
iii. The Community Services Commission will recommend grant awards on alternating three year and two-year cycles beginning in Fiscal Year 2023-24. iv. Awards will automatically carry over to years two (and three if in the three-year cycle) at the same amount, upon verification that performance metrics have been met and initial funding was spent according to the grant award. v. Up to $150,000 will be allocated for the first year of the first cycle; funding amounts for the second year and future cycles will be based on actual revenue generation from the fund, and staff are authorized to increase or decrease funding amounts as revenue grows or shrinks.
vi. Award amounts can be lowered proportionately if grant funds come in lower in years two and three.
vii. If there is a significant increase in available funding, staff and the Community Services Commission may choose to re-open a grant award mid-cycle. viii. The minimum award amount for each nonprofit organization will be $10,000; there is no maximum award amount.
ix. Funds will be distributed to organizations 50% up front with the remaining balance released upon verification of expenditures and documentation of having met performance requirements.

Section 3. The City Manager is authorized to disburse funds and execute all attendant documents and agreements in a form acceptable to the City Attorney for the following one-time appropriation and disbursement:
a. $59,268 to support Clinical Mental Health Services at the Rainbow Community Center for two years ($29,634 per year). The second year of disbursement shall be contingent upon City Manager’s verification of expenditures and documentation of such

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Res No. 23-XX 4
organization having met performance requirements.
b. $28,000 through the organization Community Initiatives, to support the One Day at a Time (ODAT) Program for two years ($14,000 per year). The second year of disbursement shall be contingent upon City Manager’s verification of expenditures and documentation of such organization having met performance requirements and entered into a new contract with MDUSD for year 2 of the ODAT program at Ygnacio Valley High School.

PASSED AND ADOPTED by the City Council of the City of Concord on August 8, 2023, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing Resolution No. 23-XX was duly and regularly adopted at a regular meeting of the City Council of the City of Concord on August 8, 2023.

Joelle Fockler, MMC
City Clerk
APPROVED AS TO FORM:

Susanne Meyer Brown
City Attorney

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ATTACHMENT 2

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It is with great gratitude that ODAT would like to thank you for your consideration of $14k to support services with MDUSD.

One Day at a Time is committed to creating a platform for youth to feel safe, connected, self-empowered, inspired and heard.

With the support of your funding One Day at a Time will invite youth and their families to participate in our ODAT BBQ which is a community gathering with the youth in the program and their families to celebrate as a unit and gather as a family. You will also be supporting our end of the year graduation for students that finish our 9-month program in Ygnacio Valley High School. Here we celebrate their achievements of improving in grades, attendance, and discipline. During this ceremony the youths’ families and community members gather to celebrate a great milestone for these youths. ODAT will incorporate an improvement point system with T- Shirts, where youth in MDSUD will meet certain requirements and level up to a different T-shirt. Your funding will support all of these efforts as ODAT works to create a positive impact in all of Concord.

Attachment 3

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One Day At a Time is a fiscally sponsored project of Community Initiatives a 501 (c)(3) non-profit public benefit organization. 331 Pine Street, Brentwood CA 94513 – Ph: (925) 240-1359 – Fax (925) 240-1367 Ygnacio Valley High School
Events and Activities
2023-2024
ODAT Graduation
This is our annual graduation ceremony where we recognize the participants who successfully finished the 9-month school-based program. We average from 15-30 students who graduate the program.

Students must attend 70% of the after-school groups and community events, improve in school attendance, grades and discipline in order to graduate. We invite over 50 students even if they did not meet the requirements for graduation. Graduating students and their families are invited to a dinner which is a semi-formal event, the location is TBA since it is our first year with MDUSD. This is an evening filled with celebrating not just students’ academic achievements but also their internal growth along side their families.
$3,500.00

ODAT BBQ
This is an ODAT family tradition. We rent a park in which we invite all our participants and their families, as well as former participants and their families, community members and ODAT staff. This is a very special event where we bring families, and the community together with positive and fun activities such as an obstacle course, games such as volleyball and music. We average about 50 families during this day at the park. The goal is to create bridges between youth, families, communities, and staff. $4,000.00
ODAT T-shirts
ODAT will incorporate an improvement point system with T-Shirts, where youth in MDSUD will meet certain requirements and level up to a different T-shirt. Each student starts with an introduction to the program T-shirt. As they improve in attendance, grades, and discipline they can earn 200 points and level up to an achievement T-shirt. By the end of the 9-mo program they can earn up to 5 different levels of T-shirt improvement.

The Goal is to promote the student’s achievements through the point system. This allows for public and peer recognition in hopes to motivate each student to create positive changes and for the students to motivate each other.
$5,100
Fiscal Sponsor 10% Fee $1,400
Total Cost: $14,000

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We put youth
at the center
of our work.

In the last two years, over
80% of seniors that
graduate from ODAT go
on to attend college.
“After I graduated from ODAT, I was still on
probation for another 3 years. I landed in
juvenile hall and was on house arrest 3 separate
times. Despite all of this a man named Johnny
Rodriguez never gave up on my potential. He
taught me what it means to be a man, a son,
and a leader. Fast forward to the present
and I now have the honor and privilege to
do the same for other young people
as an ODAT staff member.”
– Jose Cordon
Every young
person is filled
with potential.

We tap in to that potential. First
by building their confidence and
spirit and then by allowing them
to showcase their talents in our
groups, presentations, and
various events.

We believe
in our young
people.

We give our young people
opportunities and a voice
in their communities.

Attachment 4

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ODAT is transformational because:

MAKE A DIFFERENCE
One Day at a Time
Do you want all youth to have a safe space
to flourish and know that they matter? Your
donation to ODAT sparks the empowerment
and confidence of our youth.

Donate Today!
ODATEC.ORG
Our After School Program:

We pair high expectations with a strong support system
so students can improve academically, heal emotionally, and develop socially.

Our Circles of Respect, Trust
and Confidentiality:

Students are seated in a circle to represent equality, to give the most respect to the individual speaking, and to show homage to our ancestors.

Disrupt Violence:

Our Beyond Violence program offers direct services to
victims of intentional violence to help reduce retaliation and recidivism. 100% of participants have survived.

We Create Transformational Experiences:

Through field trips and community events we expose
our young people to a variety of experiences that help
develop character and ignite their aspirations.

Respects Youth Leadership:

Young people are represented in every aspect of ODAT
through our Youth Advisory Council- La Mesa. La Mesa
students help shape and guide our organization while
building their skills and confidence to lead. Our youth leaders also shape the annual Brown Paper Youth
Conference – a student-driven day of political education, skill-building workshops, and cultural empowerment.

One Day At a Time (ODAT)
331 Pine Street,
Brentwood, CA 94513
925-240-1359
odatec.org

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Staff Report
Date: August 8, 2023
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Joelle Fockler, MMC, City Clerk
[email protected]
(925) 671-3390
Subject: Considering introduction of an Ordinance amending Concord Municipal Code Chapter 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers)
increasing Councilmember compensation to $1,900/month to be effective after the November 2024 City Council election by reading of the title only and waiving further reading.

Report in Brief
Introduction of an Ordinance amending Concord Municipal Code Chapter 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers) increasing Councilmember compensation to $1,900/month to be effective after the November 2024 City Council election by reading of the title only and waiving further reading.

Recommended Action
Introduce an Ordinance amending Concord Municipal Code Chapter 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers) increasing Councilmember compensation to be effective after the November 2024 City Council election by reading of the title only and waiving further reading.

Background
State law regulates maximum compensation for councilmembers and when those adjustments can become effective. The compensation schedule for general law cities has not been adjusted since 1984, meaning that city council compensation has not kept pace with inflation. On June 29, 2023, the Governor approved Senate Bill No. 329 (Dodd) (“SB 329”) that increases the maximum amount of salary, based upon the

7.a7.a7.a

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City Council Agenda Report
Agenda Item No. 7.a
August 8, 2023
population of the city, approved by an ordinance passed by the city council. SB 329 amends Section 36516 of the Government code to read:
336516. (a)(1) A city council may enact an ordinance providing that each member of the city council shall receive a salary based on the population of the city as set forth in paragraph (2).
(2) The salaries approved by ordinance under paragraph (1) shall be as follows:
(A) In cities up to and including 35,000 in population, up to and including nine hundred fifty dollars ($950) per month.
(B) In cities over 35,000 up to and including 50,000 in population, up to and including one thousand two hundred seventy-five dollars ($1,275) per month. (C) In cities over 50,000 up to and including 75,000 in population, up to and including one thousand six hundred dollars ($1,600) per month. (D) In cities over 75,000 up to and including 150,000 in population, up to and including one thousand nine hundred dollars ($1,900) per month. (E) In cities over 150,000 up to and including 250,000 in population, up to and including two thousand five hundred fifty dollars ($2,550) per month. (F) In cities over 250,000 population, up to and including three thousand two hundred dollars ($3,200) per month.
(3) For the purposes of this subdivision, the population of a city shall be determined by the last preceding federal census, or a subsequent census, or estimate validated by the Department of Finance.
(4) The salary of council members may be increased beyond the amount provided in this subdivision by an ordinance or by an amendment to an ordinance, but the amount of the increase shall not exceed the greater of either of the following:
(A) An amount equal to 5 percent for each calendar year from the operative date of the last adjustment of the salary in effect when the ordinance or amendment is enacted.
(B) An amount equal to inflation since January 1, 2024, based upon the California Consumer Price Index, which shall not exceed 10 percent for each calendar year.

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City Council Agenda Report
Agenda Item No. 7.a
August 8, 2023
(5) No ordinance shall be enacted or amended to provide automatic future increases in salary.
(b) Notwithstanding subdivision (a), at any municipal election, the question of whether city council members shall receive a salary for services, and the amount of that salary, may be submitted to the electors. If a majority of the electors voting at the election favor it, all of the council members shall receive the salary specified in the election call. The salary of council members may be increased beyond the amount provided in this section or decreased below the amount in the same manner.
(c) Unless specifically authorized by another statute, a city council may not enact an ordinance providing for compensation to city council members in excess of that authorized by the procedures described in subdivisions (a) and (b). For the purposes of this section, compensation includes payment for service by a city council member on a commission, committee, board, authority, or similar body on which the city council member serves. If the other statute that authorizes the compensation does not specify the amount of compensation, the maximum amount shall be one hundred fifty dollars ($150) per month for each commission, committee, board, authority, or similar body.
(d) Any amounts paid by a city for retirement, health and welfare, and federal social security benefits shall not be included for purposes of determining salary under this section, provided that the same benefits are available and paid by the city for its employees.
(e) Any amounts paid by a city to reimburse a council member for actual and necessary expenses pursuant to Section 36514.5 shall not be included for purposes of determining salary pursuant to this section. (f) A city council member may waive any or all of the compensation permitted by this section.
(g) (1) For the purposes of this section, a city council shall consider the adoption of an ordinance to increase compensation in open session during at least two regular meetings of the city council.
(2) At the first meeting, the city council shall present the proposed ordinance, which shall include findings demonstrating the need for the increased compensation. The ordinance shall not be adopted at the first meeting. (3) At least seven days after the first meeting, the city council shall hold a second meeting to consider whether to adopt the ordinance.

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City Council Agenda Report
Agenda Item No. 7.a
August 8, 2023
Currently, Council compensation is $1,433.12 per month, or $17,197.44 per year, an amount approved in February 2022 for implementation following the General Election of 2022. This represented a three percent (3%) and three percent (3%), not compounded, increase from the prior rate of compensation, which had remained unchanged since 2018. With the adoption of the 2018-19 and 2019-20 biennial budget, Council directed staff to bring the topic of Council compensation forward every two years when the Council considers the biennial budget. Council’s reason for doing so was to avoid the possibility of large increases at some point in the future, as would be allowed under state law, were Council to decline to address their compensation on a more regular basis.

At the budget workshop held on May 16, 2023, the City Council directed staff to return to the City Council with an ordinance establishing an increase to be effective after the November 2024 election.

Analysis
Senate Bill 329 (Dodd) is recently enacted law and authorizes a city council to pass an ordinance to provide each member of the city council a salary based upon the population of the city, as specified.

According to the author Senator Dodd’s statement in the April 24, 2023 Assembly Floor Analysis, “[t]he Legislature has not raised the base pay amounts for City Councilmembers since 1984,” and the increases authorized by SB 329 are designed to address recent inflationary increases and economic realities, “enable city councilmembers to balance their careers and personal obligations with the calling to serve their community,” and “also make it easier for members of marginalized communities to serve.”
SB 329 increased the maximum amount of salary, based upon the population of the city that may be approved by an ordinance passed by the City Council. The amount for Concord is $1,900 per month, or $22,800 per year.
$1,900 per month is the maximum amount of salary allowed by SB 329. The Council could choose to increase the salary of Councilmembers to a lower amount. For example, the Council could choose a salary increase of 5% and 5% per year since the last increase in 2022, for a total salary of $1,576.24 per month.

An Ordinance has been prepared for introduction that establishes an increase in Councilmember compensation to $1,900 per month to be effective after the November 2024 City Council election. This represents an increase of $466.88 per month over the current monthly Council compensation of $1,433.12 per month per councilmember. The total cost of this increase within the two-year budget is $16,340.80 and includes the months of December 2024 through June 2025.

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City Council Agenda Report
Agenda Item No. 7.a
August 8, 2023
Alternatives
Council has discretion to choose not to adjust its salary or to set it at any amount between the current $1,433.12 per month per Councilmember and $1,900 per month per Councilmember.

Financial Impact
Assuming Council moves the draft Ordinance forward as written, with a Councilmember compensation of $1,900 per month per Councilmember, the increase to the 2023-2025 Biennial Operating Budget is $16,340.80.

Public Contact
The City Council Agenda was posted, and a Notice of Public Hearing was published in the East Bay Times on July 28, 2023.

Attachments

1. Ordinance increasing Councilmember compensation to $1,900 per month, effective after the November 2024 City Council election

2. California Bill Analysis, S.B. 329, (2023-2024 Reg. Sess.) April 24, 2023

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Ord. No. 23-XX 1
ORDINANCE NO. 23-XX
AN ORDINANCE AMENDING CONCORD MUNICIPAL CODE CHAPTER 2.10 (OFFICERS AND EMPLOYEES), ARTICLE II (COMPENSATION), SECTION 2.10.020 (COUNCILMEMBERS) INCREASING COUNCILMEMBER COMPENSATION TO $1,900 PER MONTH, TO BE EFFECTIVE AFTER THE NOVEMBER 2024 CITY COUNCIL

ELECTION
WHEREAS, Government Code section 36516 provides that a City Council may enact an ordinance setting the salary for each member of the City Council, the amount of which shall be based upon population; and
WHEREAS, the City Council adopted Ordinance No. 06-13 on November 28, 2006, effective following the November 2008 election, setting City Council compensation at $1,300 per month; and WHEREAS, the City Council adopted Ordinance No. 18-4 on June 12, 2018, effective after the November 2018 election, setting City Council compensation at $1,352 per month; and WHEREAS, the City Council adopted Ordinance No. 22-2 on March 22, 2022, effective after the November 2022 election, setting City Council compensation at $1,433.12 per month; and WHEREAS, Concord Municipal Code 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers) provides that each City Councilmember shall receive a salary of $1,433.12 per month; and
WHEREAS, Senate Bill 329 (Dodd) (“SB 329”) was recently passed, making changes to the amount of compensation certain city council members may receive. According to the author’s statement in the April 24, 2023 Assembly Floor Analysis, “[t]he Legislature has not raised the base pay amounts for City Councilmembers since 1984,” and the increases authorized by SB 329 are designed to address recent inflationary increases and economic realities, “enable city councilmembers to balance their careers and personal obligations with the calling to serve their community,” and “also make it easier for members of marginalized communities to serve;” and WHEREAS, Government Code section 36516(a)(1) provides that a city council may enact an ordinance providing that each member of the city council shall receive a salary based on the population of the city; and
Attachment 1

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Ord. No. 23-XX 2
WHEREAS, Government Code section 36516(a)(2)(D) provides that in cities over 75,000 up to and including 150,000 in population, the salary approved by ordinance shall be up to and including one thousand nine hundred dollars ($1,900) per month.

WHEREAS, the Concord City Council desires to increase Councilmember compensation by from $1,433.12 per month to $1,900 per month; and
WHEREAS, California Government Code section 36516.5 prohibits any change in compensation until one councilmember commences a new term of office; and WHEREAS, the next general municipal election is to be held November 5, 2024.

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

Section 1. Concord Municipal Code 2.10 (Officers and Employees), Article II (Compensation), Section 2.10.020 (Councilmembers) is hereby amended to read as follows:

Each City Councilmember shall receive compensation of $1,900 per month for services to the City as a Councilmember.

Section 2. The compensation rates shall go into effect for all City Councilmembers, pursuant to Government Code section 36516.5, when one or more members of the City Council become eligible for a salary increase by virtue of that member beginning a new term of office following the November 5, 2024, general municipal election.
//
//
//
//
//
//
//
//
//
//

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Ord. No. 23-XX 3
Section 3. 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.

Laura M. Hoffmeister
Mayor
ATTEST:

Joelle Fockler, MMC
City Clerk
(Seal)
Ordinance No. 23-XX was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on August 8, 2023, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council of the City of Concord on August 22, 2023, 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.

Joelle Fockler, MMC
City Clerk

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SB 329

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SENATE THIRD READING
SB 329 (Dodd)
As Amended April 24, 2023
Majority vote

SUMMARY
Makes changes to the amount of compensation certain city council members may receive.

Major Provisions
1) Increases the compensation city council members can generally receive to the following amounts:
a) In cities up to and including 35,000 in population, up to and including $950, instead of $300, per month.
b) In cities over 35,000 up to an including 50,000 in population, up to and including $1,275, instead of $400, per month.
c) In cities over 50,000 up to and including 75,000 in population, up to and including $1,600, instead of $500, per month.
d) In cities over 75,000 up to 150,000 in population, up to and including $1,900, instead of $600, per month.
e) In cities over 150,000 up to and including 250,000 in population, up to and including $2,550, instead of $800, per month.
f) In cities over 250,000 population, up to and including $3,200, instead of $1,000, per month.
2) Specifies that the salary of council members may be increased beyond the above amounts by an ordinance or by an amendment to an ordinance, but the amount of the increase shall not exceed the greater of either of the following:
a) An amount equal to 5% for each calendar year from the operative date of the last adjustment of the salary in effect when the ordinance or amendment is enacted. b) An amount equal to inflation since January 1, 2024, based upon the California Consumer Price Index, which shall not exceed 10% for each calendar year. 3) Requires a city council to consider the adoption of an ordinance to increase compensation in open session during at least two regular meetings of the city council. 4) Specifies that at the first meeting, the city council shall present the proposed ordinance, which shall include findings demonstrating the need for the increased compensation. The ordinance shall not be adopted at the first meeting.
5) Provides that, at least seven days after the first meeting, the city council shall hold a second meeting to consider whether to adopt the ordinance to increase compensation.

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SB 329

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COMMENTS
1) Background. California cities fall into one of two types: general law or charter cities. The California Constitution allows cities that adopt charters to control their own "municipal affairs." In all other matters, charter cities must follow the general, statewide laws. City charters specify the governance structure of the city, including the number of officers and their compensation. Unlike charter cities, general law cities must follow all general, statewide laws, including the compensation of their officers. State law allows city councils to enact an ordinance to provide their city council members with a salary and salaries are limited based on the city's population.

The Legislature last adjusted these amounts and populations in 1984 [AB 2281 (Hauser), Chapter 100, Statutes of 1984]. The city can enact an ordinance to increase city council salaries beyond these amounts, but the increase cannot exceed 5% for each calendar year from the last salary adjustment, and no ordinance can provide for automatic future increases.

The city can also increase or decrease these salaries in any amount by submitting a measure to the voters.
2) Previous Legislation. AB 701 (De La Torre) of 2007 would have increased the maximum amount of salary a city council member may receive per month, as specified. This bill was vetoed by Governor Schwarznegger saying, "This bill allows for various methods for the doubling of the compensation paid to city council members. One of these methods is the simple passage of an ordinance by the very council members who will receive the higher compensation. Our city councils are one of our society's most direct links between citizens and their government. Therefore, the citizens must be given the opportunity to decide through a vote of the people whether their city council members should be compensated at a higher rate. Under this bill, the compensation can be increased one-hundred percent without such a vote. Current law already provides reasonable flexibility for cities to increase the compensation if its citizens see fit."
According to the Author
According to the author, "City Councilmembers have one of the hardest jobs in California government. They deal with a wide range of issues, from street maintenance to emergency response duties. And all too often, they do this job with very little financial compensation. No one runs for City Council in order to make money. But the low levels of pay make it much harder for them to balance their careers and personal obligations with the calling to serve their community. The Legislature has not raised the base pay amounts for City Councilmembers since 1984. It's time those amounts caught up to the present economic reality, especially with the rapid increase in inflation we've seen recently. Raising the pay will also make it easier for members of marginalized communities to serve. City Councils should be reflective of the communities they represent and I believe raising their compensation is an important step to achieving that equitable outcome."
Arguments in Support
According to the League of California Cities, "Existing law sets a pay schedule that must be approved by the City Council through an ordinance or by the voters as a ballot measure. These amounts are determined by the population size of a city and set by state law. The lowest tier is cities up to 35,000 in population, with compensation up to three hundred dollars ($300) per month. The highest tier is cities over 250,000 population, up to one thousand dollars ($1,000) per

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SB 329

Page 3 ends

month. However, these amounts have not been adjusted since 1984 despite significant increases in the cost of living.
"Lengthy time commitments and limited pay discourage many, especially low-income residents, single parents, people of color, and young people, from running for public office. For many, being a council member is a full-time commitment with part-time pay. "Cal Cities is proud to sponsor this important legislation that lessens barriers for those interested in governing at the local level. This overdue reform is another tool communities can choose to use that can help ensure our city councils are reflective of the residents who live, work, and play in their communities."
Arguments in Opposition
None on file.

FISCAL COMMENTS
None
VOTES
SENATE FLOOR: 34-0-6
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Gonzalez, Grove, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener
ABS, ABST OR NV: Blakespear, Glazer, Jones, Nguyen, Ochoa Bogh, Wilk

ASM LOCAL GOVERNMENT: 8-0-0
YES: Aguiar-Curry, Dixon, Boerner, Pacheco, Ramos, Robert Rivas, Waldron, Wilson

UPDATED
VERSION: April 24, 2023
CONSULTANT: Jimmy MacDonald / L. GOV. / (916) 319-3958 FN: 0001063

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Concord City CouncilAugust 8, 2023

Concord City Council
August 8, 2023