Fairfield City Council
January 18, 2022

labor hours or number of days allotted in the applicable Professional Service Package description set forth in the applicable scope of work. Professional Service Packages expire if not used within 12 months of the Esri invoice date.

c. For Time and Materials Task Orders.

1. Esri will submit to Customer written monthly invoices to the Customer address provided in the Task Order. The invoices will include the payment due for work performed, including travel time, and any other direct costs (ODCs) incurred as authorized under a Task Order. The amount invoiced for labor will be equal to the number of hours expended during the previous month, multiplied by the applicable labor rates. Esri will invoice meals on a per diem basis in accordance with the full daily limits specified on the government General Services Administration (GSA) website at https://www.gsa.gov/ . Esri and Customer may include hourly labor rates in this Agreement; if the parties elect to do so, Attachment D will identify the hourly labor rates for each labor category. Esri may change hourly labor rates for Services; any increase in the first 5 years will not exceed 5 percent per year. Esri will invoice ODCs, including travel- related expenses incurred, plus a 15 percent burden.

2. Esri may reallocate the budget between activities, labor categories, and ODCs as necessary to facilitate the work effort, provided the overall price is not exceeded. If Esri reaches the funded not-to-exceed Task Order value and the activities are not completed, Customer may increase the order funding to allow additional work to be performed, or Esri may stop work without further obligation or liability.

5.10 System and Data Access. Each Task Order will specify any requirement for Customer to give Esri personnel access to Customer's systems or data.

6.0 ESRI MANAGED CLOUD SERVICES

6.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Esri Managed Cloud Services Environment" means the hardware, Software, Data, and network platform that Esri or its third-party supplier provides as part of Esri Managed Cloud Services. b. "Hosting" means the business of housing and making accessible Customer Content via the Internet.

6.2 Provision of Esri Managed Cloud Services.

a. General Terms. Use of Esri Managed Cloud Services is subject to the Cloud Services terms found in Attachment B of this Agreement.
b. Requirements Planning. It is Customer's responsibility to plan for and address with Esri changes to Customer's requirements, such as the need for additional capacity, the update of an application or dataset, or increased level of system availability.
c. Compensation and Expenses. Esri will invoice Customer for the one-time setup fee upon Task Order execution. Thereafter, Esri will invoice Customer monthly for the Esri Managed Cloud Services to be provided the following month. Customer will pay invoices within 30 days of receipt. Customer is responsible for any shipping or temporary storage costs incurred during the delivery of Customer Content to Esri or removal of Customer Content from the Esri Managed Cloud Services Environment. This paragraph does not apply to Esri Managed Cloud Services provided under the Advantage Program (see the section entitled "Advantage Program" in this Agreement).
d. Risk of Loss. Risk of loss for all Customer Content shall at all times remain with Customer, and it is Customer's sole responsibility to maintain regular backups of Customer Content. Risk of loss for the Esri Managed Cloud Services Environment shall at all times remain with Esri. e. Personally Identifiable Information. Prior to providing any Customer Content under this Agreement, Customer shall notify Esri if Customer Content includes personally identifiable information. f. Public Software. Customer may not use, and may not authorize its end users or contractors to combine or use any Esri Offerings with any software (including any underlying dependencies), documentation, or other material distributed under an open source or other similar licensing or distribution model that requires as a condition of such model that any component of the Esri Offering to be (1) disclosed or distributed in source Packet Page 117 of 316Attachment 4 Page 8 of 39

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code form, (2) made available free of charge to third parties, or (3) modifiable without restriction by third parties.
g. Monitoring. Customer will provide information and other materials related to its Customer Content as reasonably requested by Esri or its Hosting partner to verify Esri's or Customer's compliance with this Agreement. Esri or its Hosting partner, as applicable, may browse, index, or otherwise monitor the external interfaces of any Customer Content solely for the purpose of verifying compliance with this Agreement.

7.0 TRAINING

7.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Customer-Supplied Training Data" means any digital dataset(s) including, but not limited to, geographic vector data, coordinates, raster data reports, or associated tabular attributes supplied by Customer for use in training.
b. “Esri Academy LMS Integration Subscription” means an optional term-limited subscription to Esri Academy enabling a specific number of unique Customer student(s) access to Self-Paced E-Learning through the Customer's learning management system.
c. “Esri E-Learning Content (SCORM Format) License” means an optional term-limited license that provides Esri customers with Esri’s e-learning content in SCORM (Shareable Content Object Reference Model) format to import into their learning management system.
d. "Esri Mobile Lab" means a service in which Esri will deliver and set up a training environment at the Customer's site for use in conjunction with scheduled Esri Training Events only. The Esri Mobile Lab will include certain hardware, software, power cords, and network switches necessary for the instructor to set up the environment.
e. "Esri Training Event(s)" means an Esri site class, Esri instructor-led online class, a Customer site/private class, workshop, or coaching services.
f. "Esri Training Representative" means Customer's primary Esri liaison in organizing private Esri Training Events.
g. "Student(s)" means a Customer employee or agent who is a registered participant in a specific Esri Training Event or Training-related services. If Customer is an individual, then Student means Customer. h. "Training Pass" means a nonrefundable, nontransferable block of prepaid training days with a fixed price per day throughout the Term of the Training Pass.
i. "Esri Mobile Router" means a service in which Esri will deliver and setup a mobile router at the Customer's site for use in conjunction with a scheduled Esri Training Event only. The mobile router provides high-speed wireless internet access needed to run the Esri Training Event.

7.2 Permitted and Prohibited Uses.

a. Esri provides Training Materials for Training purposes only and for the exclusive use of the Student who attends the Training course for which the Training Materials are provided. b. Customer may reproduce copies of Training Materials for registered Students. c. Customer may not and may not permit any Student to (i) separate the component parts of Training Materials for any use or (ii) use audio or video recording equipment during an Esri Training Event. d. Esri may issue temporary Product authorizations if Customer has an insufficient number of Products available for Training. Customer may use such Products as Training Materials under the terms of this Agreement.

Customer will uninstall all deployed Products and return any media provided by Esri upon conclusion of the Esri Training Event.
e. Customer will retain ownership of any Customer-Supplied Training Data.

7.3 Esri's Responsibilities.

Esri will

a. Provide an instructor qualified to conduct Training; b. Provide all necessary Training Materials for Student; and Packet Page 118 of 316Attachment 4 Page 9 of 39

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c. Confirm Esri Training Events approximately 10 business days prior to the scheduled start date. Esri will only confirm Student registrations that include a payment method. Registrations without a confirmed payment method are placed on the reservation waiting list. All reservations on the waiting list are subject to availability.

Customer site/Private class and coaching services confirmation is also dependent on receipt of the completed Customer site training request form.

7.4 Customer's Responsibilities.

Customer will

a. Ensure that all Students have received confirmation from Esri to participate in an Esri Training Event. Esri reserves the right to disconnect any Student who permits unregistered student access to an online classroom Esri Training Event. In such case, the full Esri Training Event fee will be invoiced and payable; b. Ensure that all Students meet the minimum prerequisites for the applicable Esri Training Event as listed on Esri's training website;
c. Submit Student registrations with payment method information at least 15 business days before the scheduled start date;
d. Provide the Esri Training Representative with a list of names and email addresses of any Students who are to attend an Esri Training Event at least 3 business days before the scheduled start date, for compliance with the US embargoed country lists and the various US Government Lists of Parties of Concern or Specially Designated Nationals lists;
e. For classes held at the Customer-designated facility, complete a client-site training request form; consult with Esri personnel to determine classroom, computer, and network requirements; and provide all such required classrooms, computers, and network access;
f. Ensure that Student use of Training Materials provided by Esri complies with the terms of this Agreement; and g. Assume full liability and responsibility for Student attending Training course(s) under this Agreement. h. If the Esri Mobile Lab or Mobile Router is used, Customer will

1. Take delivery of the Esri Mobile Lab or Mobile Router from the shipping agent, and keep it in a secure, locked area at all times;

2. Immediately report any previously damaged Esri Mobile Lab or Mobile Router equipment to the Esri Training Representative upon receipt of the shipment; and

3. Be financially responsible for loss of, damage to, or theft of Esri Mobile Lab or Mobile Router equipment while in Customer's possession.

7.5 Student Registration and Training Event Change Policy.

a. Customer will provide advance written notice to Esri Customer Service at [email protected] to reschedule or cancel any Esri Training Event or to substitute a student in a scheduled Esri Training Event. b. A replacement Student must be from the same Customer organization as the Student being replaced. c. If Customer reschedules an Esri Training Event three or fewer days before the scheduled start date, Esri will charge Customer 50 percent of the fee plus the cost of the rescheduled Esri Training Event. d. If Customer (i) cancels an Esri Training Event 3 or fewer days before the scheduled start date without concurrently rescheduling or (ii) is absent without notice from the Esri Training Event, Customer will be liable for the full Esri Training Event fee.
e. If cancellation of an Esri Training Event is necessary due to causes beyond the party's reasonable control, the affected party may reschedule or cancel the Esri Training Event without incurring any liability. f. Termination of Agreement. Students who are currently registered for an Esri Training Event as of the date of termination of this Agreement may attend the scheduled Esri Training Event, subject to the terms and conditions of this Agreement.

7.6 Invoicing; Prepaid Fees.

a. Esri will invoice Customer upon completion of the Esri Training Event or on purchase of a Training Pass. On Customer request, Esri will invoice in advance for an Esri Training Event.

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b. If Customer is invoiced and pays that invoice prior to the scheduled Esri Training Event, then Customer has 1 year from the date of the invoice to consume training days. For a multiyear order, training days must be consumed by the end date specified on the Esri quotation. Thereafter, all prepaid fees are forfeited. c. Training Pass redemption rates are described at https://www.esri.com/training/training-for-organizations/ .

This section 7.6 does not apply to Training provided under the Advantage Program.

7.7 Availability and General Provision of Wireless Service

a. Esri will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to wireless service interruptions or unavailability.

7.8 Esri E-Learning in the Customer’s Learning Management System

a. Esri E-Learning Content (SCORM format) License, specific terms of use incorporated by reference are found at https://www.esri.com/en-us/legal/overview
b. Esri Academy LMS Integration Subscription, specific terms of use incorporated by reference are found at https://www.esri.com/en-us/legal/overview

8.0 ADVANTAGE PROGRAM

8.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Activity Description" means a mutually agreed upon written statement that confirms the number of Learning and Services Credits that Esri estimates is required to perform an activity and authorizes Esri to begin work based on such estimate. The Activity Description serves as the Task Order for Services provided under the Advantage Program.
b. "Advantage Program" means either Advantage Program, as described at www.esri.com/services/eeap/components , or the Advantage Program for Partners, as described at www.esri.com/partners/bpap/components .
c. "Authorized Contact" means Customer's point of contact for the Advantage Program identified below. d. "Learning and Services Credits" means a contracted unit of exchange that Customer may use to acquire Professional Services, Training, PSS, Esri Managed Cloud Services, or related travel expenses as described below.
e. "Premium Support Services" or "PSS" means a prioritized incident management and technical support program further described at https://support.esri.com/en/support/premium . f. "Advisor" means an Esri consultant assigned to work with Customer to provide Professional Services such as advising Customer on GIS strategies, facilitating annual planning, and developing and coordinating a collaborative work plan under the Advantage Program.

8.2 Advantage Program Description. The Advantage Program is provided on an order-by-order, annual subscription basis and provides strategy and planning support in addition to a menu of items including Professional Services, Training, PSS, and Esri Managed Cloud Services that Customer can select to best meet its needs with guidance from Advisor. The Advantage Program may change from time to time. The Advantage Program includes the following:

a. Advisor. Customer will receive up to the number of Advisor hours ordered. Customer may elect to retain additional Advisor hours for a supplemental price.
b. Annual Planning Meeting. A 1-day annual planning meeting is included. c. Work Plan. A collaboratively developed document is designed to drive the program's implementation through definition of Customer's GIS vision, goals, and objectives. d. Learning and Services Credits. Customer will receive the number of Learning and Services Credits ordered.

Customer may use the credits toward any combination of Professional Services, Training, PSS, Esri Managed Cloud Services, or related travel expenses. Customer may order, for an additional price, additional Learning and Services Credits. Learning and Services Credits may be exchanged as described at the applicable Packet Page 120 of 316Attachment 4 Page 11 of 39

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Advantage Program website. Esri will provide a monthly report outlining usage of Learning and Services Credits to date to the Authorized Contact.
e. Technology Webcasts. Esri will provide an email invitation to the Authorized Contact for webcasts presenting business and technical information related to enterprise GIS. f. No Project Services. The Advantage Program is not designed for Esri to provide project-specific Professional Services such as custom application or database development for solutions or applications. Esri will not provide these types of Professional Services under the Advantage Program and does not warrant that Deliverables provided under an Advantage Program will comply with Specifications.

8.3 Authorized Contact Information. Customer identifies the following person as its initial Authorized Contact.

(to be completed by Customer):

Contact Name:

Address:

City, State, ZIP:

Email:

Telephone:

Fax:

8.4 Current on Maintenance. Customer must remain current on standard Software Maintenance during the Advantage Program term.

8.5 Authorization of Learning and Services Credits Use. Customer will contact its account manager or Advisor to consume Learning and Services Credits for a particular request. Esri will submit an Activity Description by email to Customer for confirmation and authorization to use Learning and Services Credits. Customer may authorize the consumption of Learning and Services Credits by submitting an email. Esri will begin work and deduct the estimated credit amount stated in the Activity Description from the unused Learning and Services Credits available.

8.6 Activity Descriptions for Esri Managed Cloud Services. The Activity Description for Esri Managed Cloud Services orders must include the following:

a. The Esri Managed Cloud Services Term. The time period in which Esri provides the Esri Managed Cloud Services to Customer. The Esri Managed Cloud Services term does not begin until setup and deployment of the data and application are complete.
b. Targeted System Availability. The minimum percentage of time that Customer has external access to the application and associated Customer Content through the Internet. Examples of supported levels of system availability are 95 percent, 99 percent, and 99.9 percent. Not all EMCS offerings include a Targeted System Availability.
c. Number of Anticipated Requests. A The number of requests made by an end user through a client (e.g., desktop computer, web application, mobile device) and sent to a server(s) that is set up in the Esri Managed Cloud Services Environment by Esri and performs computational tasks on behalf of the end user. An example of a common request used in a GIS is a map request. A map request is made every time a user pans, zooms, or queries a map service.
d. Amount of Data Storage. The storage capacity required to retain digital data, which is to be used and consumed in Customer GIS applications or Cloud Services. e. Learning and Services Credits Consumption. The price for the Esri Managed Cloud Services in Learning and Services Credits.

The Data storage location may be defined in the Activity Description.

8.7 Travel and Per Diem Expenses. Any Esri travel and per diem expenses will be quoted separately. Travel expenses will include a 15 percent burden, and per diem will be determined in accordance with the full daily limits specified on the government General Services Administration (GSA) website at https://www.gsa.gov/ . Customer will use Learning and Services Credits for travel and per diem expenses.

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8.8 Notification of Consumed Credits. Esri will notify Customer if the authorized Learning and Services Credits are consumed prior to completion of the requested work. Customer may elect to direct the use of additional Learning and Services Credits, if available; procure additional Learning and Services Credits; or notify Esri to stop work on such requested work. Esri reserves the right to stop work if Customer has consumed all its Learning and Services Credits.

8.9 Review of Proposed Activities. Any activities proposed to be completed under the Advantage Program will be subject to Esri's review and approval to ensure alignment with the intent of the program.

8.10 Invoicing.

a. Esri shall invoice Customer as quoted for the Advantage Program subscription, additional Learning and Services Credits, or Advisor services upon receipt of Customer's order. Subsequently, Esri will invoice annually at least 30 days in advance of the Advantage Program subscription expiration date. Esri will extend the Advantage Program subscription for a subsequent annual term upon receipt of Customer's payment of the renewal invoice. Esri will invoice fees for additional Learning and Services Credits or Advisor services upon receipt of Customer's order.
b. Pricing for program renewals and new or additional Services will be in accordance with Esri's standard pricing at the time of purchase or renewal.

8.11 Termination and Expiration. Upon termination or expiration of an Advantage Program subscription:

a. Services will end as of the expiration or termination date stated; and b. Unless either party terminates the Advantage Program subscription for cause, Customer may apply any unused Learning and Services Credits toward any Professional Services, Training, PSS, or related travel expenses that are scheduled as of the termination or expiration date, provided that the Learning and Services Credits are used within 3 months after the termination or expiration date. Any other unused Learning and Services Credits will expire 30 days after the expiration or termination date; if Customer renews the Advantage Program subscription within this time period, any unused Learning and Services Credits will remain valid for up to 2 years from the purchase date or termination of this Agreement, whichever comes first.

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ATTACHMENT A

GLOSSARY OF TERMS

The following glossary of terms applies to all Esri Offerings and Services that Esri may provide to its customers.

Certain Esri Offerings or Services may not be within the scope of this Agreement. Please disregard any terms that are not applicable to Esri Offerings or Services offered under this Agreement.

"Affiliate" means any entity that directly or indirectly (i) Controls; (ii) is Controlled by; or (iii) is under common Control with a party, where "Control" means having more than 50 percent of the voting stock or other voting interest in the Controlled entity.

"API" means application programming interface.

"ArcGIS Website" means www.arcgis.com and any related or successor websites.

"Authorization Code(s)" means any key, authorization number, enablement code, login credential, activation code, token, user name and password, or other mechanism required for use of Esri Offerings.

"Beta" means any alpha, beta, or other prerelease version of a Product.

"Cloud Services" means Online Services and Esri Managed Cloud Services.

"Content" means data, images, photographs, animations, video, audio, text, maps, databases, data models, spreadsheets, user interfaces, graphics components, icons, software, and other resources used in connection with Esri Offerings and Services.

"Control" means having more than 50 percent of the voting stock or other voting interest in the Controlled entity.

"Customer Content" means any Content that Customer provides, uses, or develops in connection with Customer's use of Esri Offerings or Services, including Value-Added Applications. Customer Content excludes any feedback, suggestions, or requests for improvements that Customer provides to Esri.

"Data" means any commercially available digital dataset(s) including, but not limited to, geographic vector data, raster data reports, or associated tabular attributes that Esri bundles with other Esri Offerings or delivers independently.

"Deliverables" means anything that Esri delivers to Customer as a result of performance of Professional Services.

"Documentation" means all user reference documentation that Esri provides with a Deliverable or an Esri Offering.

"Esri Managed Cloud Services" means a Customer-specific cloud infrastructure, Software, Data, and network platform that Esri hosts, manages, and makes available to Customer or Customer's end users via the Internet.

"Esri Offering(s)" means any Product or Documentation. If Esri provides Training or Professional Services directly to Customer, then Esri Offerings also include Deliverables and Training Materials. Esri Offerings exclude Services and Third-Party Content.

"GIS" means geographic information system.

"Maintenance" means a subscription program that Esri provides and that entitles Customer to Product updates and other benefits such as access to technical support and self-paced, web-based learning resources.

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"Malicious Code" means software viruses; worms; time bombs; Trojan horses; or any other computer code, files, denial of service, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment.

"Online Services" means any commercially available, Internet-based geospatial system that Esri provides, including applications and associated APIs for storing, managing, publishing, and using maps, data, and other information. Online Services exclude Data and Content.

"Ordering Document(s)" means a sales quotation, Maintenance renewal quote, purchase order, proposal, Task Order, or other document identifying Esri Offerings, updates, or Services that Customer orders.

"Perpetual License" means a license to use a version of the Esri Offering for which applicable license fees have been paid, indefinitely, unless terminated by Esri or Customer as authorized under this Agreement.

"Product(s)" means Software, Data, and Online Services.

"Professional Services" means any development or consulting services that Esri provides to Customer.

"Sample(s)" means sample code, sample applications, add-ons, or sample extensions of Products.

"Service(s)" means Maintenance. If Esri provides Esri Managed Cloud Services, Training, or Professional Services directly to Customer, then Services also include Esri Managed Cloud Services, Training, and Professional Services.

"Software" means any proprietary commercial off-the-shelf software, excluding Data, accessed or downloaded from an Esri-authorized website or that Esri delivers on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies.

"Specification(s)" means (i) the Documentation for Software and Online Services, (ii) the scope of work set forth in any Task Order, or (iii) Esri's published course descriptions for Training.

"Task Order(s)" means an Ordering Document for Services.

"Term License" means a license for use of an Esri Offering for a limited time period ("Term").

"Third-Party Content" means any Content that Customer may obtain from a third-party website or that persons other than Esri employees, suppliers, or contractors may directly contribute to Esri's website.

"Training" means (i) Product training or (ii) related training that Esri provides under this Agreement.

"Training Materials" means digital or printed Content required to complete Training, which may include, but is not limited to, workbooks, data, concepts, exercises, assessments, and exams.

"Value-Added Application(s)" means an application developed by Customer for use in conjunction with the authorized use of any Software, Data, or Online Services.

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ATTACHMENT B

GENERAL TERMS AND CONDITIONS

The following general terms and conditions apply to all Esri Offerings and Services that Esri may offer to its customers. Certain Esri Offerings or Services may not be available under this Agreement. Please disregard any terms that are not applicable to Esri Offerings or Services offered under this Agreement.

ARTICLE B.1—GENERAL USE RESTRICTIONS

Except as expressly permitted in this Agreement, Customer will not

a. Sell, rent, lease, sublicense, distribute, lend, time-share, or assign Services or Esri Offerings; b. Distribute or provide direct access to Services or Esri Offerings to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs;
c. Distribute Authorization Codes to third parties;
d. Reverse engineer, decompile, or disassemble any Product or Deliverable delivered in compiled form; e. Make any attempt to circumvent the technological measure(s) that controls access to or use of Esri Offerings; f. Store, cache, use, upload, distribute, or sublicense Content or otherwise use Esri Offerings in violation of Esri's or a third-party's rights, including intellectual property rights, privacy rights, nondiscrimination laws, export laws, or any other applicable law or regulation; g. Remove or obscure any Esri or its licensors' patent, copyright, trademark, proprietary rights notices, or legends contained in or affixed to any Esri Offerings, output, metadata file, or online or hard-copy attribution page of any Data or Documentation;
h. Unbundle or independently use individual or component parts of Esri Offerings; i. Incorporate any portion of Esri Offerings into a product or service for third-party use that competes with the Esri Offerings;
j. Publish or in any other way communicate the results of benchmark tests run on Beta Products without the prior written permission of Esri and its licensors; or
k. Use, incorporate, modify, distribute, provide access to, or combine any Esri Offerings in a manner that would subject any Esri Offering to open-source or open-database license terms (e.g. GPL) that require any part of the Esri Offering to be subject to additional terms, for example

1. Disclosed in source code form to third parties;

2. Licensed to third parties for the purpose of making derivative works; or

3. Redistributable to third parties at no charge; or

l. Generate revenue by providing access to Software or Online Services through a Value-Added Application.

These restrictions will not apply to the extent that they conflict with applicable law or regulation.

ARTICLE B.2—TERM AND TERMINATION

B.2.1 Customer may terminate this Agreement or any Esri Offerings license or subscription at any time upon written notice to Esri. Termination without cause does not entitle Customer to receive any refund of fees paid. Any right to terminate pending Services engagements for convenience is set forth in the applicable section in the body of this Agreement. Either party may terminate this Agreement or any license or subscription for a material breach that is not cured within 30 days of written notice to the breaching party. Upon any termination of this Agreement for breach, Esri will stop providing Services. Any licenses in Esri Offerings that survive termination of this Agreement continue under the terms of this Agreement.

B.2.2 If Esri terminates this Agreement following Customer's breach, then Esri may also, at its election, terminate Customer's licenses or subscriptions to Esri Offerings. If Customer terminates this Agreement for cause or convenience, then Customer may, at its election, also terminate Customer's licenses or subscriptions to Esri Offerings.

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B.2.3 Upon any termination or expiration of a license or subscription, Customer will

a. Stop accessing and using the terminated or expired Esri Offerings; b. Clear any client-side data cache derived from the terminated or expired Cloud Services; and c. Stop using and uninstall, remove, and destroy all copies of the terminated or expired Esri Offerings in Customer's possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Esri or its authorized distributor.

Esri may stop performing Services immediately upon written notice to Customer if a bankruptcy or insolvency proceeding is commenced by or against Customer until the trustee cures any existing defaults and provides adequate assurance of future performance under this Agreement. This Agreement terminates upon the insolvency, liquidation, or dissolution of either party.

ARTICLE B.3—LIMITED WARRANTIES AND DISCLAIMERS

B.3.1 Limited Warranties. Except as disclaimed below, Esri warrants to Customer that (i) Products and Training will substantially comply with the applicable Specifications and (ii) Services will substantially conform to the professional and technical standards of the industry. The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period. The warranty period for Esri Offerings offered under a subscription or Term License basis runs for the lesser of (i) the duration of the subscription or term or (ii) 90 days from delivery or acceptance if this Agreement provides an acceptance period.

B.3.2 Special Disclaimer. Third-Party Content; Data; Samples; hot fixes; patches; updates; Online Services provided at no charge; and trial, evaluation, and Beta Products are delivered "as is" and without warranty of any kind.

B.3.3 General Disclaimer. Except for the express limited warranties set forth in this Agreement, Esri disclaims all other warranties or conditions of any kind, whether express or implied, including, but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, and noninfringement of intellectual property rights. Esri is not responsible for any nonconformities with Specifications or loss, deletion, modification, or disclosure of Customer Content caused by Customer's modification of any Esri Offering other than as specified in the Documentation. Esri does not warrant that Esri Offerings, or Customer's operation of the same, will be uninterrupted, error free, fault tolerant, or fail- safe or that all nonconformities can or will be corrected. Esri Offerings are not designed, manufactured, or intended for use in environments or applications that may lead to death, personal injury, or physical property or environmental damage. Customer should not follow any navigational route suggestions that appear to be hazardous, unsafe, or illegal. Any such uses will be at Customer's own risk and cost.

B.3.4 Disclaimers.

a. Internet Disclaimer. Neither party will be liable for damages under any theory of law related to the performance or discontinuance of operation of the Internet or to regulation of the Internet that might restrict or prohibit the operation of Cloud Services.
b. Third-Party Websites; Third-Party Content. Esri is not responsible for any third-party website or Third- Party Content that appears in or is referenced by Esri Offerings or Esri websites, including www.esri.com and www.arcgis.com . Providing links to third-party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind.

B.3.5 Exclusive Remedy. Customer's exclusive remedy and Esri's entire liability for breach of the limited warranties in this section will be to replace any defective media and to (i) repair, correct, or provide a workaround for the applicable Esri Offering or Services or (ii) at Esri's election, terminate Customer's right to use and refund the fees paid for Esri Offerings or Services that do not meet Esri's limited warranties.

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ARTICLE B.4—LIMITATION OF LIABILITY

B.4.1 Disclaimer of Liability. Neither Customer, Esri, nor any Esri distributor or third party licensor will be liable for any indirect, special, incidental, or consequential damages; lost profits; lost sales; loss of goodwill; costs of procurement of substitute goods or services; or damages exceeding the applicable license fees, or current subscription fees, or Services fees paid or owed to Esri for the Esri Offerings or Services giving rise to the cause of action.

B.4.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Customer's infringement, misuse, or misappropriation of Esri's or Esri's licensors' intellectual property rights, either party's indemnification obligations, gross negligence, willful misconduct, or violations of the Export Compliance clause of this Agreement or any applicable law or regulation.

B.4.3 Applicability of Disclaimers and Limitations. Esri or its authorized distributor has set its fees and entered into this Agreement in reliance on the disclaimers and limitations in this Agreement; the fees reflect an allocation of risk that is an essential basis of the bargain between the parties. These limitations will apply whether or not a party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of any exclusive, limited remedy.

B.4.4 The foregoing disclaimers, limitations, and exclusions may be invalid in some jurisdictions and apply only to the extent permitted by applicable law or regulation in Customer's jurisdiction. Customer may have additional rights that may not be waived or disclaimed. Esri does not seek to limit Customer's warranty or remedies to any extent not permitted by law.

ARTICLE B.5—INDEMNIFICATIONS

B.5.1 Definitions. The following definitions supplement the definitions provided in Attachment A:

a. "Claim" means any claim, action, or demand by a third party. b. "Indemnitees" means Customer and its directors, officers, and employees. c. "Infringement Claim(s)" means any Claim alleging that Customer's use of or access to any Esri Offering or Service infringes a patent, copyright, trademark, or trade secret. d. "Loss(es)" means expenditure, damage award, settlement amount, cost, or expense, including awarded attorneys' fees.

B.5.2 Infringement Indemnity.

a. Esri will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement Claim.
b. If Esri determines that an Infringement Claim is valid, Esri may, at its expense, either (i) obtain rights for Customer to continue using the Esri Offerings or Services or (ii) modify the Esri Offerings or Services while maintaining substantially similar functionality. If neither alternative is commercially reasonable, Esri may terminate Customer's right to use the Esri Offerings or Services and will refund any (a) license fees that Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a 5-year, straight-line depreciation basis beginning from the initial date of delivery or (b) unused portion of fees paid for Term Licenses, Subscriptions, and Maintenance. c. Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the Infringement Claim arises out of (i) the combination or integration of Esri Offerings or Services with a product, process, system, or element that Esri has not supplied or specified in the Specification; (ii) alteration of Esri Offerings or Services by anyone other than Esri or its subcontractors; (iii) compliance with Customer's specifications; or (iv) use of Esri Offerings or Services after Esri either provides a modified version to avoid infringement or terminates Customer's right to use the Esri Offerings or Services.

B.5.3 General Indemnity. Esri will defend and hold all Indemnitees harmless from, and indemnify any Loss arising out of, any Claim for bodily injury, death, or tangible or real property damage brought against any of the Indemnitees to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors, officers, employees, or agents performing Services while on Customer's site.

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B.5.4 Conditions for Indemnification. As conditions for indemnification, Indemnitee will (i) promptly notify Esri in writing of the Claim, (ii) provide all available documents describing the Claim, (iii) give Esri sole control of the defense of any action and negotiation related to the defense or settlement of any Infringement Claim, and (iv) reasonably cooperate in the defense of the Infringement Claim at Esri's request and expense.

B.5.5 This section sets forth the entire obligation of Esri, its authorized distributor, and its third party licensors regarding any Claim for which Esri must indemnify Customer.

ARTICLE B.6—INSURANCE

If Esri is providing Services, Esri will carry, at a minimum, the following coverage:

a. Comprehensive general liability or commercial general liability with a minimum coverage of $1,000,000.00 (US dollars) combined single limit per occurrence for bodily injury, including death, and property damage liability to include the following:

1. Premises and operations;

2. Blanket contractual liability;

3. Broad form property damage;

4. Independent contractors;

5. Personal injury, with employee exclusion deleted; and

6. Completed operations.

b. Workers' compensation insurance, with waiver of subrogation, in an amount that complies with statutory limits.

ARTICLE B.7—SECURITY AND COMPLIANCE

B.7.1 Security. Esri publishes its security capabilities at https://trust.arcgis.com . Customer may give Esri personnel access to Customer systems or to Customer or third-party personal information, controlled information, or sensitive data if access is essential for Esri's performance of Services and if Esri expressly agrees to such access. Esri will use reasonable administrative, technical, and physical safeguards to protect such data and guard against unauthorized access. Customer bears responsibility to (i) confirm that Esri's published security and privacy controls meet all applicable legal requirements for protection of Customer Content and (ii) upload or share Customer Content through Cloud Services only when it is legal to do so. Esri is not responsible to review Customer Content to ensure compliance with applicable laws and regulations. Customer must contact Esri at [email protected] for further instruction before providing any Customer Content that requires security measures other than Esri's published security capabilities.

B.7.2 Malicious Code. Esri will use commercially reasonable efforts to ensure that Esri Offerings will not transmit any Malicious Code to Customer. Esri is not responsible for Malicious Code that Customer introduces to Esri Offerings or that is introduced through Third-Party Content.

B.7.3 Export Compliance. Each party will comply with all applicable export laws and regulations, including the US Department of Commerce's Export Administration Regulations (EAR), the US Department of State's International Traffic in Arms Regulations (ITAR), and other applicable export laws. Customer will not export, reexport, transfer, release, or otherwise dispose of, in whole or in part, or permit access to or transfer or use of Services or Esri Offerings to any United States embargoed countries or denied entities or persons except in accordance with all then-current applicable US government export laws and regulations. Customer will not export, reexport, transfer, or use Services or Esri Offerings for certain missile, nuclear, chemical, or biological activities or end uses without proper authorization from the US government. Customer shall immediately notify Esri in writing if any US government entity or agency denies, suspends, or revokes Customer's export privileges. Customer will not upload, store, or process in Cloud Services any Customer Content that (i) has an Export Control Classification Number (ECCN) other than EAR99 or (ii) is controlled for export from the United States under ITAR. Customer will notify Esri in advance if Esri's performance of any Services or provision of any Esri Offerings is related to any defense article, defense service, or technical data, as defined under the ITAR Sections 120.6, 120.9, and 120.10, respectively; Esri will not perform any such Services or provide any such Esri Offerings until Esri obtains any Packet Page 128 of 316Attachment 4 Page 19 of 39

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necessary export license from the US government. Customer will reasonably assist Esri in applying for and obtaining an export license if needed.

B.7.4 Privacy. Esri will process personal data according to the terms of the Data Processing Addendum available at https://www.esri.com/en-us/privacy/overview .

ARTICLE B.8—CLOUD SERVICES

B.8.1 Prohibited Uses. Customer shall not provide Customer Content or otherwise access or use Cloud Services in a manner that

a. Creates or transmits spam, spoofings, or phishing email or offensive or defamatory material; or stalks or makes threats of physical harm;
b. Stores or transmits any Malicious Code;
c. Violates any law or regulation;
d. Infringes or misappropriates the rights of any third party; e. Probes, scans, or tests the vulnerability of Cloud Services or breach any security or authentication measures used by Cloud Services without written approval from Esri's Product Security Officer; or f. Benchmarks the availability, performance, or functionality of Cloud Services.

B.8.2 Service Interruption. System failures or other events beyond Esri's reasonable control may interrupt Customer's access to Cloud Services. Esri may not be able to provide advance notice of such interruptions.

B.8.3 Customer Content.

a. Customer grants Esri and its subcontractors a nonexclusive, nontransferable, worldwide right to host, run, modify, and reproduce Customer Content as needed to provide Cloud Services to Customer. Esri will not access, use, or disclose Customer Content without Customer's written permission except as reasonably necessary to support Customer's use of Cloud Services. Except for the limited rights granted to Esri under this Agreement, Customer retains all its rights, title, and interest in the Customer Content. b. If Customer accesses Cloud Services with an application provided by a third party, Esri may disclose Customer Content to such third party as necessary to enable interoperation between the application, Cloud Services, and Customer Content.
c. Esri may disclose Customer Content if required to do so by law or regulation or by order of a court or other government body, in which case Esri will reasonably attempt to limit the scope of disclosure. d. When Customer's use of Cloud Services ends, Esri will either

1. Make Customer Content available to Customer for download for a period of 30 days unless Customer requests a shorter window of availability or Esri is legally prohibited from doing so; or

2. Download all Customer Content in Esri's possession to a medium of Customer's choosing and deliver such Customer Content to Customer.

Esri will have no further obligations to store or return Customer Content at the conclusion of the Cloud Services.

B.8.4 Removal of Customer Content. Esri may remove or delete Customer Content if there is reason to believe that uploading Customer Content to or using it with Cloud Services materially violates this Agreement. If reasonable under these circumstances, Esri will notify Customer before removing Customer Content. Esri will respond to any Digital Millennium Copyright Act takedown notices in accordance with Esri's copyright policy, available at www.esri.com/legal/dmca_policy .

B.8.5 Service Suspension. Esri may suspend access to Cloud Services (i) if Customer materially breaches this Agreement and fails to timely cure the breach; (ii) if Esri reasonably believes that Customer's use of Cloud Services will subject Esri to immediate liability or adversely affect the integrity, functionality, or usability of the Cloud Services; (iii) for scheduled maintenance; (iv) to enjoin a threat or attack on Cloud Services; or (v) if Cloud Services become prohibited by law or regulated to a degree that continuing to provide them would impose a Packet Page 129 of 316Attachment 4 Page 20 of 39

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commercial hardship. When feasible, Esri will notify Customer of any Cloud Services suspension beforehand and give Customer reasonable opportunity to take remedial action.

Esri is not responsible for any damages, liabilities, or losses that may result from any interruption or suspension of Cloud Services or removal of Customer Content as described above.

B.8.6 Notice to Esri. Customer will promptly notify Esri if Customer becomes aware of any unauthorized use of Customer's subscription or any other breach of security regarding Cloud Services.

ARTICLE B.9—GENERAL PROVISIONS

B.9.1 Payment. Customer will pay each correct invoice no later than 30 days after receipt and will remit payment to the address stated on the invoice. Customers outside the United States will pay the distributor's invoices in accordance with the distributor's payment terms.

B.9.2 Feedback. Esri may freely use any feedback, suggestions, or requests for Product improvement that Customer provides to Esri.

B.9.3 Patents. Customer may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates any Products. This express prohibition on patenting will not apply to Customer's software and technology except to the extent that Products, or any portion thereof, are part of any claim or preferred embodiment in a patent application or a similar application.

B.9.4 Restrictions on Solicitation. Neither party will solicit for hire any employee of the other party who is associated with the performance of Services during the performance of the Services and for a period of 1 year thereafter. This does not restrict either party from publicly advertising positions for hire in newspapers, professional magazines, or Internet postings.

B.9.5 Taxes and Fees; Shipping Charges. Pricing of Esri Offerings and Services that Esri quotes to Customer is exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, or value-added tax (VAT); customs, duties, or tariffs; shipping and handling charges; and vendor enrollment fees. Esri will add any fees that it is required to pay to the total amount of its invoice to Customer. Esri may include estimated taxes and shipping and handling charges in its quotations but may adjust these fees on invoicing. For Customers outside the United States, the distributor may quote taxes or fees in accordance with its own policies.

B.9.6 Compliance Review. Customer will keep accurate and complete records and accounts pertaining to its compliance with its obligations under this Agreement. Esri or its authorized distributor may conduct a compliance review of these records and accounts with no less than 14 business days' written notice or may appoint an independent third party to conduct such a compliance review on its behalf. Customer will promptly correct any noncompliance identified during the compliance review. Neither Esri nor Esri's distributor may conduct a compliance review of Customer within 12 months after the conclusion of any prior compliance review that does not reveal any material Customer noncompliance.

B.9.7 No Implied Waivers. The failure of either party to enforce any provision of this Agreement is not a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

B.9.8 Severability. If any provision of this Agreement is held to be unenforceable for any reason, (i) such provision will be reformed only to the extent necessary to make the intent of the language enforceable, and (ii) all other provisions of this Agreement will remain in effect.

B.9.9 Successor and Assigns. Customer will not assign, sublicense, or transfer Customer's rights or delegate Customer's obligations under this Agreement without Esri's and its authorized distributor's prior written consent, and any attempt to do so without consent will be void. This Agreement will be binding on the respective successors and assigns of the parties to this Agreement. Notwithstanding, a contractor under contract to the government to deliver Products may assign this Agreement and Products acquired for delivery to its government customer upon written notice to Esri, provided the government customer assents to the terms of this Agreement.

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Upon mutual agreement, Esri's Affiliates may provide Services under the terms of this Agreement; in such cases, the Ordering Documents will identify the Affiliate as the party that provides the Services. Esri's distributors are not Affiliates of Esri.

B.9.10 Survival of Terms. The Glossary of Terms and provisions of the following Articles of these General Terms and Conditions will survive the expiration or termination of this Agreement: "Limited Warranties and Disclaimers," "Limitation of Liability," "Indemnifications," and "General Provisions."

B.9.11 US Government Customer. The Products are commercial items, developed at private expense, provided to Customer under this Agreement. If Customer is a US government entity or US government contractor, Esri licenses or provides subscriptions to Customer in accordance with this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. Esri Data and Online Services are licensed or subscribed under the same DFARS Subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS. Products are subject to restrictions, and this Agreement strictly governs Customer's use, modification, performance, reproduction, release, display, or disclosure of Products. Agreement provisions that are inconsistent with federal law regulation will not apply. A US government Customer may transfer Software to any of its facilities to which it transfers the computer(s) on which it has installed such Software. If any court, arbitrator, or board holds that a US government Customer has greater rights to any portion of Products under applicable public procurement law, such rights will extend only to the portions affected. ArcGIS Online has been granted FedRAMP tailored low authorization but does not meet higher security requirements including those found in DFARS 252.239-7010.

B.9.12 Governing Law. This Agreement is not subject to the United Nations Convention on Contracts for the International Sale of Goods.

a. Government Entities. If Customer is a government entity, the applicable laws of Customer's jurisdiction govern this Agreement.
b. Nongovernment Entities. US federal law and the law of the State of California exclusively govern this Agreement, excluding their respective choice of law principles.

B.9.13 Dispute Resolution. The parties will use the following dispute resolution processes:

a. Equitable Relief. Either party will have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief.
b. US Government Agencies. This Agreement is subject to the Contract Disputes Act of 1978, as amended (41 USC 601–613).
c. Other Government Entities. Esri will comply with mandatory dispute resolutions under applicable law. d. Arbitration. Except as noted above, the parties will submit to binding arbitration to resolve any dispute arising out of or relating to this Agreement that cannot be settled through negotiation. If Customer is in the United States or one of its territories or outlying areas, the Commercial Arbitration Rules of the American Arbitration Association will govern the arbitration proceedings. If Customer is outside the United States, the Rules of Arbitration of the International Chamber of Commerce will govern the proceedings. The parties will select a single arbitrator in accordance with the applicable arbitration rules. The language of the arbitration will be English. Arbitration will be at an agreed-upon location. Either party will, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.

B.9.14 Force Majeure. A party will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond the party's reasonable control. Such causes may include, but are not limited to, acts of God, war, strikes, labor disputes, cyber attacks, laws, regulations, government orders, or any other force majeure event.

B.9.15 Independent Contractor. Esri is and at all times will be an independent contractor. Nothing in this Agreement creates an employer/employee, principal/agent, or joint venture relationship between Esri or its authorized distributor and Customer. No party has any authority to enter into contracts on behalf of another party or otherwise act on behalf of another party.

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B.9.16 Notice. Customer may send notices required under this Agreement to Esri at the following address:

Environmental Systems Research Institute, Inc.

Attn.: Contracts and Legal Department
380 New York Street
Redlands, CA 92373-8100
USA
Tel.: 909-793-2853
Email: [email protected]

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ATTACHMENT C

SAMPLE TASK ORDER
Esri Agreement No. ________
Task Order No. __________

In accordance with the terms and conditions of the above-referenced Agreement between Environmental Systems Research Institute, Inc. ("Esri"), and ______________________ ("Customer"), ___________________ ("Customer Address"), this Task Order authorizes preparation and provision of the Deliverables described and in accordance with the terms, schedule, and start/end date(s) specified below.

1. Scope of Work: [As applicable, specifically identify and describe Deliverables including custom code, map data, technical data (including technical assistance), and the resources to be provided by Customer (including Customer-supplied personnel, software, hardware, and digital or hard-copy data) and place of delivery and location where technical assistance will be provided.]

In addition to the foregoing, Customer agrees that its employees, representatives, and subcontractors will cooperate and communicate with Esri during performance of this Task Order. Without cost to Esri, Customer shall provide, allow access to, or assist Esri in obtaining all data Esri requests for performance of this Task Order, including, but not limited to, (1) copies of previously prepared reports, maps, plans, surveys, records, and other documents in the control or possession of Customer and (2) copies of ordinances, codes, regulations, or other governmental documents.

2. Contract Type: [Firm Fixed Price (FFP) or Time and Materials (T&M)]:

3. Total Task Order Value (if FFP) or Not-to-Exceed Value (if T&M):

4. Customer Address for the Receipt of Esri Invoices:

5. Delivery Schedule or Start/End Date(s) for Each Deliverable:

6. Special Considerations:

7. Esri Project Manager: [insert name, telephone, fax, and email address] Esri Senior Contract Administrator: [insert name, telephone, fax, and email address] Customer Project Manager: [insert name, telephone, fax, and email address] Customer Senior Contract Administrator: [insert name, telephone, fax, and email address] Customer Accounts Payable Contact: [insert name, telephone, fax, and email address]

ACCEPTED AND AGREED:

ENVIRONMENTAL SYSTEMS
[sample only—do not sign] RESEARCH INSTITUTE, INC.
(Customer) (Esri)

Signature: [sample only—do not sign] Signature: [sample only—do not sign]

Printed Name: Printed Name:

Title: Title:

Date: Date:

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ATTACHMENT D

TIME AND MATERIALS RATE SCHEDULE

See Quotation for Pricing.

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Product-Specific Terms of Use

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The following list identifies additional terms of use that apply to specific Products. Each Product listing identifies one or more footnotes that apply to that Product. These footnotes supplement the terms of this Agreement. The definitions for each footnote follow the list. Unless otherwise noted in the applicable Ordering Document, extensions to a Product follow the same scope of use as that granted for the corresponding Product. In addition to the definitions within the Master Agreement, the following definitions will apply to the Product-Specific Terms of Use:

 "Authentication" means using any Esri provided mechanism that enables access to ArcGIS Platform location services. See Security and Authentication documentation ( https://developers.arcgis.com/documentation/mapping- apis-and-services/security/) for current list of Authentication mechanisms).

Desktop Products
 ArcGIS Desktop (Advanced, Standard, or Basic) (26)
 ArcGIS Earth (20; 65)
 ArcGIS Explorer Desktop (20)
 ArcGIS for AutoCAD (20)
 ArcPad (13)
 ArcReader (20)
 ArcGIS for Personal Use (3; 26)
 ArcGIS CityEngine (78)

Server Products
 ArcGIS Enterprise
▪ Standard or Advanced (17; 21; 23; 31; 87)
▪ Workgroup Standard or Advanced (21; 23; 26; 28; 29; 30; 87) ▪ ArcGIS GIS Server (Standard or Advanced) (31)
▪ ArcGIS GIS Server Basic (31; 39)
▪ ArcGIS GIS Server Workgroup (Standard or Advanced) (26; 28; 29; 30) ▪ ArcGIS GIS Server Workgroup Basic (26; 39)
▪ ArcGIS Maritime (2)
 ArcGIS Enterprise Optional Capability Servers:
▪ ArcGIS Image Server, ArcGIS GeoEvent Server, ArcGIS GeoAnalytics Server, and ArcGIS Notebook Server Standard (31)
 ArcGIS Enterprise Workgroup Optional Capability Servers:
▪ ArcGIS Image Server, ArcGIS GeoEvent Server, ArcGIS GeoAnalytics Server, and ArcGIS Notebook Server Standard (4)
 ArcGIS Business Analyst Enterprise (17; 21; 23; 31; 87)  ArcGIS World Geocoder Basic (67)

Developer Products
 ArcGIS Developer Subscription
▪ All Plans (24; 26; 66; 68; 89; 91; 94; 95; 97)
– Active subscriptions with an effective start date prior to January 27, 2021 (79) – Active subscriptions with an effective start date after January 26, 2021 (88) ▪ Builder, Professional, Premium, or Enterprise Plans (77, 92) ▪ Essentials Plan (90)
▪ ArcGIS AppStudio Developer Edition (11; 16; 19)
▪ ArcGIS Runtime SDK for Android, iOS, Java, macOS, .NET, Qt, or WPF (16; 19) ▪ ArcGIS Engine Developer Kit and Extensions (16; 19; 22; 26) ▪ ArcGIS Web API for JavaScript (16; 64)
▪ ArcGIS CityEngine SDK and Procedural Runtime (19)
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 ArcGIS Runtime Deployment License for Android, iOS, Java, Mac OS X, .NET, Qt, or WPF ▪ Lite (15)
▪ Basic or Standard (1; 14; 15; 18)
▪ Advanced (14; 15; 18)
 ArcGIS Engine Deployment License for Windows/Linux and Extensions (15; 22; 26)  Esri File Geodatabase API (47)

Mobile
 ArcGIS Navigator (14)

Other
 ArcGIS Hub (85)
 ArcGIS Indoors (86)
 ArcGIS Maps for Adobe Creative Cloud Complimentary user (74)  ArcGIS Insights (17)
 Site Scan for ArcGIS Operator license (32; 33)

Online Services
 ArcGIS Online subscriptions are available through multiple Selling Programs:
▪ Commercial Retail, EAs; and Government Programs (23; 66; 68; 69; 70; 82; 93; 96) ▪ Education Programs (23; 66; 68; 69; 70; 71; 82; 93; 96) ▪ Non-profit Programs (23; 66; 68; 69; 70; 71; 82; 93; 96)  Public Plan (66; 68; 74; 75; 76; 80)
Customers under the following categories have these additional rights:
▪ Commercial Retail (72)
▪ enterprise agreements (72)
▪ Government (72)
▪ NGO/NPO (72)
▪ Press/Media Programs (72)
▪ Education Programs (71)
 ArcGIS AEC Project Delivery Subscription (83)
 ArcGIS Velocity (25)

Footnotes:

1. May not be used to edit an enterprise geodatabase via Direct Connect.

2. Not for use in navigation.

3. Licensed for personal, noncommercial use only.

4. – Limited to 1 four-core server.
– Can be installed on a separate machine.
5–10. Reserved.

11. Applications built with ArcGIS AppStudio Developer Edition are subject to the terms of use for ArcGIS Runtime Deployment License.

12. Reserved.

13. Licensed as a Dual Use License.

14. May be used for navigational purposes.

15. Licensed as a Deployment License.

16. Customer may use the SDKs or APIs to create Value-Added Applications and distribute and license those Value-Added Applications to its end users to use anywhere not prohibited under export regulation.

17. Customer shall not redistribute Oracle Instant Client libraries or their documentation that is included with this Product. Oracle is a third-party beneficiary of this Agreement solely with respect to Customer's use of the Oracle Instant Client libraries. The Uniform Computer Information Transaction Act (UCITA) shall not apply to Customer's use of the Oracle Instant Client libraries.

18. The Deployment License is per Value-Added Application per computer for stand-alone applications.

19. License may not be used to develop Internet or server-based Value-Added Applications.

20. Licensed as a Redistribution License.

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21. See Master Agreement https://www.esri.com/legal/software-license for additional terms of use for Named User Licenses.

22. a. An end user must acquire a license in either ArcGIS Engine for Windows/Linux Software or other ArcGIS Desktop Software (Basic, Standard, or Advanced) to obtain the right to run an ArcGIS Engine application on 1 computer; and
b. The ArcGIS Engine for Windows/Linux extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine Value-Added Applications. A single user can have multiple ArcGIS Engine Value-Added Applications installed on 1 computer for use only by that end user.

23. System to System Communication
a. Customer may use a basic service login to enable one-way, read-only, system-to-system communications from ArcGIS Enterprise or ArcGIS Online to other third-party, enterprise business system(s) in the customer's organization. Customer may use a Viewer Named User Credential or Level 1 Named User Credential as a basic service login until Esri implements an actual service login credential. A specific Viewer Named User Credential or Level 1 Named User Credential used as a basic service login credential may only be used for system-to-system integration purposes and may not also be used by a Named User to access the system.
b. Customer may use a standard service login to enable two-way, read-write, system-to-system communications between ArcGIS Enterprise or ArcGIS Online and other third-party, enterprise business system(s) in the customer's organization. Customer may use an Editor (or higher) Named User Credential or Level 2 Named User Credential as a standard service login until Esri implements an actual service login credential. A specific Editor (or higher) Named User Credential or Level 2 Named User Credential used as a standard service login credential may only be used for system-to- system integration purposes and may not also be used by a Named User to access the system.

24. Software may be used only for the purposes of development, testing, and demonstration of a prototype Value-Added Application and creating map caches. Customer may use Value-Added Applications and map caches with ArcGIS Enterprise Staging Server Licenses and Deployment Server Licenses. Software and Data may be installed on multiple computers for use by any ArcGIS Developer Subscribers with Builder or higher plan subscriptions; all other Software is licensed as a Single Use License.

25. An ArcGIS Velocity subscription includes a given storage and compute or item capacity as described in the Ordering Document. As Customer creates ArcGIS Velocity services, compute and storage capacity is utilized, up to the total capacity available. Customers of the Advanced license level may purchase a limited number of ArcGIS Velocity Item Units and ArcGIS Velocity Storage Units to augment their capacity. Customers of the Dedicated license level may purchase additional ArcGIS Velocity Storage Units and ArcGIS Velocity Compute Units as needed. Esri will notify Customer's subscription account administrator when Customer's compute consumption reaches approximately 75 percent or when storage consumption reaches approximately 50 percent of the capacity allocated to Customer through Customer's subscription. Esri reserves the right to suspend Customer's creation of additional ArcGIS Velocity services or suspend existing ArcGIS Velocity services if Customer has utilized all its compute or storage capacity. Esri will promptly restore Customer's access to its ArcGIS Velocity services once Customer has purchased additional ArcGIS Velocity Compute, Item, or Storage Units.

26. The geodatabase is restricted to 10 gigabytes of Customer's data.

27. Reserved.

28. Use is limited to 10 concurrent end users of applications other than ArcGIS Enterprise Workgroup or ArcGIS GIS Server Workgroup applications. This restriction includes use of ArcGIS Desktop Software, ArcGIS Engine Software, and third-party applications that connect directly to any ArcGIS Enterprise Workgroup or ArcGIS GIS Server Workgroup geodatabase. There are no limitations on the number of connections from web applications.

29. Software requires a supported version of SQL Server Express. Supported versions are listed with the system requirements for the product on the Esri website.

30. Use is restricted to a maximum of 10 gigabytes of Customer's data. All components must be installed on a single server.

31. Includes a Failover License.

32. The use of this Software does not include a pilot's license (e.g., FAA, EASA, etc.) to operate a drone.

33. Customer may only use online storage provided with this Software to store Customer Content collected or processed through this Software.
34–38. Reserved.

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39. Any editing functionality included with ArcGIS GIS Server is not permitted for use with ArcGIS GIS Server Basic and ArcGIS GIS Server Workgroup Basic.
40–46. Reserved.

47. Customer may develop and distribute Value-Added Applications that use Esri File Geodatabase API to Customer's end users.
48–63. Reserved.

64. Value-Added Applications for web deployment must be used in conjunction with other Esri Products.

Third-party technologies may also be used in conjunction with Value-Added Applications as long as the Value-Added Applications are always used in conjunction with other Esri Product(s).

65. May only be used in conjunction with other Esri Product(s). Third-party technologies may also be used in conjunction with ArcGIS Earth as long as ArcGIS Earth is always used in conjunction with other Esri Products.

66. Only Customers with an active Online Services subscription may store geocoded results generated by World Geocoding Service.

67. Limited to 250,000,000 geocodes per annual subscription.

68. Customer may use the data accessible through Infographics Service for display purposes only and may not save any data accessible through this service.

69. May be used for any business purpose of Customer's organization.

70. May be used for development and test purposes for Customer's organization.

71. May be used for teaching purposes in educational organizations.

72. May be used for the internal business purposes of Customer's organization.

73. Reserved.

74. May be used for personal use.

75. Customer may enable third-party use of Value-Added Applications only by publicly sharing the Value- Added Application(s) using Sharing Tools. Customer may not use this subscription to power a Value- Added Application for its own internal business use unless Customer is an educational institution using the Value-Added Application for teaching purposes only, a qualified NGO/NPO organization, or a media or press organization.

76. Customer is not permitted to create private groups or participate in any private groups.

77. Includes a Commercial App Deployment license.
▪ A Commercial App Deployment license is required when:
– Customer deploys revenue-generating Value-Added Applications that are not for use solely with an ArcGIS Online or ArcGIS Enterprise license and have not yet migrated to use ArcGIS Platform location services Authentication.
▪ A Commercial App Deployment license is not required when:
– Customer deploys revenue-generating Value-Added Applications solely for use with an ArcGIS Online and/or ArcGIS Enterprise license. Such Value-Added Applications are not required to use ArcGIS Platform location services Authentication.

78. Includes a Commercial App Deployment license.

79. Each subscription is limited to 1,000,000 geosearch transactions per month in conjunction with Customer's subscription. Transactions include both basemap data and geocode search transactions. One basemap data transaction is equivalent to eight 256x256 tile requests. One geocode search transaction is equivalent to one address or place. If the results are stored in any manner such as after batch geocoding, the stored results are not counted toward the transaction limit. However, storage does consume Service Credits. For transactions greater the 1,000,000 per month, call Esri Sales or your local distributor for details.

80. May permit registered students of an education institution to directly access the Online Services and share a single subscription between more than 1 registered student for teaching purposes only.

81. Reserved.

82. A Named User may embed its Named User Credential in an ArcGIS API for Python script solely for the purpose of automating a workflow to be used exclusively by the Named User whose Named User Credential is embedded in the script.

83. Customer must use a separate AEC Project Delivery Subscription for each Customer client ("Client").

Customer may (i) use the AEC Project Delivery Subscription solely to collaborate on project work with its Client; and (ii) provide Client with Named User access to the AEC Project Delivery Subscription to enable Client to access the AEC Project Delivery Subscription to collaborate on project work that Customer Packet Page 138 of 316Attachment 4 Page 29 of 39

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performs for Client. Client may not use the Named User License for any other purpose. Customer is solely responsible for Client's compliance with these terms of use and will ensure that Client stops using the AEC Project Delivery Subscription when the project ends.

84. Reserved.

85. Software licenses and subscriptions included with ArcGIS Hub may only be used to support the community initiatives enabled by ArcGIS Hub. Customer may allow 3rd parties to be Named Users of ArcGIS Hub for the sole purpose of engaging in community activities. Customers may allow employees, agents, consultants, or contractors to be Named Users of ArcGIS Hub for the sole purpose of administering, configuring, maintaining, and supporting community initiatives through ArcGIS Hub. No other use of software licenses and subscriptions included with ArcGIS Hub is permitted.

86. Customer may use the software licenses and subscriptions included with ArcGIS Indoors solely to enable the capabilities of ArcGIS Indoors as defined in the ArcGIS Indoors Documentation. No other use of software licenses and subscriptions included with ArcGIS Indoors is permitted.

87. Accessing Parcel Fabric services provided by ArcGIS Enterprise is prohibited except through ArcGIS Pro Standard and ArcGIS Pro Advanced.

88. Subscription limits are determined as defined by the available Service Request Plans.

89. Customer may distribute revenue-generating Value-Added Applications, that access Online Services through Online Services Authentication, to third parties. All revenue-generating Value-Added Applications are required to use Authentication when accessing Online Services. Except as set forth in footnote 77 above, Customers who are in the process of migrating their revenue-generating Value-Added Applications to use ArcGIS Platform location services must have a Commercial App Deployment license until the migration to ArcGIS Platform location services is complete.

90. Customer may have multiple subscriptions within their organization for development and test purposes.

Customer may only use one subscription within their organization for use with deployed Value-Added Applications.

91. Application migration—a developer who has Value-Added Applications built with:
a. The client APIs (including JavaScript 4.x and Runtime SDKs (any version), REST, Esri's open source mapping libraries, supported 3rd party open source mapping libraries) is required to use the ArcGIS Platform location services in their applications by April 30, 2022. b. The JavaScript 3.x API are required to use the ArcGIS Platform location services in their applications by December 31, 2022

92. Customer is only permitted to create private groups or participate in private groups within the development and test ArcGIS Online Organization Subscription included with the ArcGIS Developer Subscription.

93. Includes Service Credits as described in the applicable Ordering Document. Each Service Credit entitles Customer to consume a set amount of Online Services, the amount varying depending on the Online Services that Customer is using. As Customer consumes Online Services, Service Credits are automatically debited from Customer's subscription, up to the maximum number of Service Credits available. Customer may purchase additional Service Credits as needed. Esri will notify Customer's subscription account administrator when Customer's Service Credit consumption reaches approximately 75 percent of the Service Credits allocated to Customer through Customer's subscription. Esri reserves the right to suspend Customer's access to Online Services that consume Service Credits when Customer has consumed all its Service Credits. Esri will promptly restore Customer's access to its Online Services once Customer has purchased additional Service Credits.

94. Customer may purchase Pre-Paid Service Request Plans. Pre-Paid Service Request Plans enable the Customer to consume Online Services. As Customer consumes Online Services, Service Request Fees are automatically debited from Customer's subscription, the amount varying depending on the Online Services that Customer is using, up to the maximum Pre-Paid amount available. Esri will notify Customer's subscription account administrator when Customer's consumption reaches approximately 75 percent of the available Pre-Paid Service Request Plan purchased. Customer may choose to allow continued access to ArcGIS Platform location services after consuming 100 percent of the Pre-Paid Service Request Plan by enabling overages. If overages are enabled, Customer is responsible for paying the associated costs of using the location services at the applicable rates. Esri will automatically invoice monthly in arrears at applicable payment terms for the amount above Pre-Paid Service Request Plan purchased. Esri reserves the right to suspend Customer's access to ArcGIS Platform if Customers has a past due amount. If overages are not enabled by Customer Esri reserves the right to suspend Customer's Packet Page 139 of 316Attachment 4 Page 30 of 39

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access to Online Services requiring Service Requests when Customer has consumed the full amount paid for the Pre-Paid Service Request Plan. Esri will promptly restore Customer's access to its Online Services once Customer funds access to the Online Services.

95. Customer may purchase a Pay-As-You-Go Service Request Plan. There is no limit on the Service Requests that Customer may consume if they have purchased a Pay-As-You-Go Service Request Plan.

96. Customer may use ArcGIS Image services for interactive, non-programmatic access by Named Users only. Programmatic use of the ArcGIS Image services (e.g., batch classification, deep learning, etc., or exporting volumes of data larger than 10MB at a time) are not permitted.

97. Customer's end users who are prompted for an API key for use with a third party's Value-Added Application must generate such API keys through an ArcGIS Developer Subscription. API keys generated through an ArcGIS Online account are not permitted in this scenario.

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Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953

07/19/2021

ADDENDUM TO

STATE OF CALIFORNIA PURCHASES

This Addendum applies to all purchase orders received by Esri from State of California departments, divisions or agencies. This addendum serves as the purchase order Statement of Work (SOW) unless the State provides Esri with a SOW. A SOW received from the State is annotated with the provisions in this Addendum.

1) NOTICE REGARDING SOFTWARE AS A SERVICE (SaaS) PRODUCTS Software as a Service products may be included your order. For example, all purchases of Desktop software licenses include an entitlement to access and use ArcGIS Online (a SaaS product). For more information regarding SaaS products and your order, please contact your Esri Account Manager or Esri’s Customer Service representative.

2) STATE OF CALIFORNIA GENERAL PROVISIONS – INFORMATION TECHNOLOGY (herein "GP-IT") Version s: Revised and Effective 9/5/14 and Revised and Effective 9/8/14

If the purchase order or the SOW includes the GP-IT , then the parties agree that sections 18, 38, and 41 of the GP-IT shall be replaced with the sections found below, shall be deemed permitted changes to the GP-IT, and shall follow the order of precedence established in section 11a of the GP-IT . “Master Agreement” means Esri’s Master Agreement Products and Services (E204) found at http://www.esri.com/legal/software-license

GP-IT #18 (WARRANTY)
Except as disclaimed in Esri’s standard Master Agreement, Esri warrants to Customer that (i) Products and Training will substantially comply with the applicable Specifications and (ii) Services will substantially conform to the professional and technical standards of the industry. The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period. The warranty period for Esri Offerings offered under a subscription or Term License basis runs for the lesser of (i) the duration of the subscription or term or (ii) 90 days from delivery or acceptance if this Agreement provides an acceptance period. The exclusive remedies for Esri's breach of its warranties are set forth in the Master Agreement.

GP-IT #38 (SOFTWARE LICENSE)
Contractor hereby grants to the State and the State accepts from Esri a perpetual (except for Term Licenses and subscriptions), non-exclusive, license to use the Software Products in this Contract (hereinafter referred to as "Software Products") subject to the Master Agreement.

GP-IT #41 (FUTURE RELEASES)
If patches, bug fixes, updates or releases of any Software Product are developed by Esri and are made available to other Software Product licensees who purchase and are curr ent on the manufacturer's technical support, they will be made available to the State in the same manner in which they are made avai labl e to such other licensees, provided that the State purchases and is current on the applicable technical support from the manufacturer.

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3) STATE OF CALIFORNIA GENERAL PROVISIONS FOR ELECTRONIC VENDOR APPLICATION OF QUALIFICATIONS #19-001 (herein “GP-eVAQ”) Revised 09/19/2019

If the purchase order or the SOW includes the GP-eVAQ, then the parties agree that the sections listed below shall be deleted or changed as stated below, shall be deemed permitted changes to the GP-eVAQ, and shall follow the order of precedence established in section 14 of the GP-eVAQ. “Master Agreement” means Esri’s Master Agreement Products and Services (E204) found at http://www.esri.com/legal/software-license:

21. INSPECTION, ACCEPTANCE AND REJECTION
This section 21 does not apply to Esri’s commercially available off-the -shelf products.

22. WARRANTY
Section 22 Warranty is deleted and replaced with the following:

Except as disclaimed in Esri’s Master Agreement, Esri warrants to Customer that (i) Prod ucts and Training will substantially comply with the applicable Specifications and (ii) Services will substantially conform to the professional and technical standards of the industry. The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period. The warranty period for Esri Offerings offered under a subscription or Term License basis runs for the lesser of (i) the duration of the subscription or term or (ii) 90 days from delivery or acceptance if this Agreement provides an acceptance period. The exclusive remedies for Esri's breach of its warranties are set forth in the Master Agreement.

27. TERMINATION FOR DEFAULT
Section 27 Termination for Default is deleted and replaced with the Term and Termination section found in the Master Agreement.

30. LIMITATION OF LIABILITY
Section 30 Limitation of Liability is deleted and replaced with the Limitation of Liability section found in the Master Agreement.

31. DE MINIMIS DELIVERABLE OR SERVICE REQUESTS (specific to CALNET contracts In lieu of the remedy set forth in Section 31, Customer’s remedy for Esri’s breach of said warranty shall be to (i) repair, correct, or provide a workaround for the applicable Esri Offering or Services or (ii) at Esri's election, terminate Customer's right to use and refund the fees paid for Esri Offerings or Services that do not meet Esri's limited warranties.

34. USE AND ADVERTISING USE OF DATA
Esri publishes its Privacy Statement at https://www.esri.com/en-us/privacy/overview .

35. STATE COST RECOVERY
Section 35 State Cost Recovery is deleted.

39. INVOICES & PAYMENTS
Subsections c) Recoup Cost Cause and d) Acceptance Payments are deleted from section 39 Invoices and Payment.

44. CONFIDENTIALITY OF DATA
Section 44 Confidentiality of Data is deleted.

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46. SOFTWARE LICENSE
Section 46 Software License is deleted and replaced with the following: Contractor hereby grants to the State and th e State accepts from Esri a perpetual (except for Term Licenses and subscriptions), non-exclusive, license to use the Software Products in this Contract (hereinafter referred to as "Software Products") subject to the Master Agreement.

48. FUTURE RELEASES
Section 48 Future Releases is deleted and replaced with the following: If patches, bug fixes, updates or releases of any Software Product are developed by Esri and are made available to othe r Software Product licensees who purchase and are current on the manufacturer's technical support, they will be made available to the State in the same manner in which they are made avai labl e to such other licensees, provided that the State purchases and is current on the applicable technical support from the manufacturer.

51. EXAMINATION AND AUDIT
Section 51 Examination and Audit is deleted.

52. CONTINUING STANDARDS OF PERFORMANCE FOR CONTRACTOR SERVICES Section 52 Continuation Standards … is deleted.

63. LIQUIDATED DAMAGES
Section 63 Liquidated Damages is deleted.

67. UNANTICIPATED TASKS
Section 67 Unanticipated Tasks is deleted.

69. NON-EXCLUSIVE AGREEMENT
The following text is removed from section 69 Non-Exclusive Agreement.

To the extent the CDT, consistent with CDT policy, obtains from third parties, or provides to itself, replacement Services for any of the Services hereunder, the amount to be paid to Contractor by the CDT for the remaining Services will be equitably adjusted downward, to the extent necessary, to reflect the portion of the Services that Contractor will not be providing or performing, regardless of whether such Services were priced individually or as a bundle with any of the remaining Services.

71. ADMINISTRATIVE FEE
Section 71 Administrative Fee is deleted

72. CONTRACTOR COMMITMENTS AND REPRESENTATIONS
Notwithstanding Section 72, this provision shall not give rise to a unilateral right of Contractor to modify the terms of the Agreement and any written commitment by Contractor must be mutually executed by the parties.

73. SERVICE TO PUBLIC ENTITIES AND LOCAL GOVERNMENT AGENCIES Section 73 Service to Public Entities and Local Government Agencies is deleted.

74. AVAILABILITY OF REFRESHED TECHNOLOGY AND ADDITIONAL SERVICE ITEMS Notwithstanding Section 74, unless otherwise agreed under an applicable SOW, any enhancements to Esri technology provided under this Agreement shall be provided to the State when generally available in the normal course of business.

75. PRICING AND SERVICE REVIEW
Section 75 Pricing and Service Review is deleted.

76. SERVICE COSTS
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Section 76 Service Costs is deleted.

78. “MOST FAVORED NATION” STATUS OF STATE (specific to CALNET) Section 78 Most Favored Nation Status of State is deleted.

82. MIGRATION
Section 82 Migration is deleted.

83. DISENTANGLEMENT (MIGRATION-OUT)
Section 83 Disentanglement (Migration out) is deleted.

84. REPORTS, DATA AND INVENTORY
Section 84 Reports, Data and Inventory is deleted

85. SUBCONTRACTORS
Section 85 Subcontractors is deleted.

86. GOVERNANCE
Section 86 Governance is deleted.

87. SECURITY AND POLICIES
Section 87 Security and Policies is deleted.

88. DOCUMENTATION
Section 88 Documentation is deleted.

92. UNITED STATES (U.S.) BASED SERVICES
Section 92 is deleted and replaced with the following: Esri’s standard Technical Support/Software Maintenance offering includes potential support and access provided from outside the United States to facilitate load balancing. Customers who require specialized support restricted to US facilities and US Citizen personnel, may purchase North American Regulated Industry Support, or “NORUS” at additional cost.

4) State of California Cloud Computing – Software As A Service (SaaS) General Provisions (herein “SaaS-GP”) (June 7, 2019)

If the purchase order or the SOW includes the SaaS-GP, then the parties agree that the sections listed below shall be deleted or changed as stated below, shall be deemed permitted changes to the SaaS-GP, and shall follow the order of precedence established in section 11 of the SaaS-GP. “Master Agreement” means Esri’s Master Agreement Products and Services (E204) found at http://www.esri.com/legal/software-license .

12. INSPECTION, ACCEPTANCE AND REJECTION
Section 12 Inspection, Acceptance and Rejection is deleted.

13. WARRANTY
Section 22 Warranty is deleted and replaced with the following:

Except as disclaimed in Esri’s Master Agreement, Esri warrants to Customer that (i) Products and Training will substantially comply with the applicable Specifications and (ii) Services will substantially conform to the professional and technical standards of the industry. The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period. The warranty period for Esri Offerings offered under a subscription or Term License basis runs for the lesser of (i) the duration of the subscription or term or (ii) 90 days from delivery or acceptance if this Agreement provides an acceptance period. The exclusive remedies for Esri's breach of its warranties are set forth in the Master Agreement.

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20. LIMITATION OF LIABILITY
Section 20 Limitation of Liability is deleted and replaced with the Limitation of Liability section found in the Master Agreement.

30. SOFTWARE LICENSE
Section 30 Software License is deleted and replaced with the following: Contractor hereby grants to the State and the State accepts from Esri a perpetual (except for Term Licenses and subscriptions), non-exclusive, license to use the Software Products in this Contract (hereinafter referred to as "Software Products") subject to the Master Agreement.

5) STATE MODEL CLOUD COMPUTING SERVICES SPECIAL PROVISIONS (Software as a Service)

5.1 Access and use of ArcGIS Online is subject to the following Esri variances to State Model Cloud Computing Services Special Provisions:

State Model
Cloud Computing Services Special
Provisions (SaaS)
Esri’s Variances to
State Model
Cloud Computing Services Special Provisions (SaaS)
Section 2. SaaS Availability

SaaS is subject to Esri’s standard Service Level Agreement (herein after “SLA”), a copy of which is attached hereto and incorporated by reference. The SLA and Esri’s Online Services terms and conditions do not provide or explain Recovery Point Objective (“RPO”) or Recovery Time Objective (“RTO”). Licensees may back-up their own Data and therefore create their own internal RTOs and RPOs. Each reference to “excluding agreed-upon maintenance downtime” shall mean “Excluded Downtime” which is defined in the SLA. SaaS availability averages described in section 2. b) and 2. c) are quarterly based, not monthly.

Damages described in 2. b) or resulting in termination described and 2. c) are limited to the application of service credits described in the SLA, Section 2 Services Availability. The notice requirement is 2. d) will be provided via Esri’s standard online notification. The SLA is limited to five components of ArcGIS Online Services. Each component is listed in the SLA.

Section 3. Data Availability:

The SLA and Esri’s Online Services terms and conditions do not currently provide for data/metadata availability. The SLA and Esri’s Online Services terms and conditions do not provide or explain Recovery Point Objective (“RPO”) or Recovery Time Objective (“RTO”). Licensees may back-up their own Data and therefore create their own internal RTOs and RPOs. For this reason Section 3 Data Availability does not apply to this acquisition.

Section 4. SaaS and Data Security

ArcGIS Online is FISMA low NIST 800-53 R3 authorized. The SLA and Esri’s Online Services terms and conditions do not currently comply with the following subsections to Section 4. SaaS and Data Security:

4.a) 2) i:

The California Information Practices Act (Civil Code Sections 1798 et seq.).

4.a) 2) ii:

The California Statewide Information Management Manual (Sections 58D, 66B.

4.a) 2) iii:

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07/19/2021

Esri does not provide a SSAE audit report. However, Esri does a FISMA low audit every three years. A summary of the audit is available to the State subject to a signed non-disclosure agreement.

Esri’s information service provides are FedRAMP moderate compliant and provide SSAE 16 summary audit reports subject to a signed non- disclosure agreement between the State and the information service provider.

4.a) 2) iv:

Privacy provisions of the Federal Privacy Act of 1974.

4.a) 3):

Payment Card Industry (PCI) Data Security Standard (PCIDSS) including the PCIDSS Cloud Computing Guidelines.

4.c):

Esri’s security logs are comingled with Esri licensees. Security logs and latency statistics are not available to licensees for review without a signed non-disclosure.

4.d):

Esri agrees to this subsection 4. d) except to the extent that the State disables security and confidentiality controls (e.g. by turning off TLS).

In that event Esri is not responsible for security or confidentiality.

4.f):

Esri uses an automated call routing system for support services and depending on analyst availability and skill set, a caller may be routed to one of Esri’s international support services locations. To ensure domestic US service a caller will need to press "0" to opt out of the automated system. The caller will then speak to a support services representative, identify themselves as an employee of the State of California and request to speak with a U.S. domestically located analyst.

Section 9. Data Breach ArcGIS Online is FISMA low NIST 800-53 R3 authorized. Esri’s Service Level Agreement (“SLA”) and Esri’s Online Services terms and conditions do not provide for the type of reports, daily updates, and investigation requirements that are found in Section 9 Security Breach unless the reports, daily updates, and investigation standards are found in FISMA low. Esri agrees to provide the State access to its web and vulnerability scanning results, operational documentation, and records and database that relate to the purchased SaaS subject to a mutually agreed upon time and date to provide the access and a signed non-disclosure agreement. Additionally, Esri’s cloud infrastructure providers do not permit Esri or Esri’s licensees the reports, daily updates, and investigation rights described in Section 9 Security Breach. For these reasons Section 9 Security Breach does not apply to this acquisition.

Section 10. Disaster Recovery/Business
Continuity
ArcGIS Online is FISMA low NIST 800-53 R3 authorized. Esri’s Service Level Agreement (“SLA”) and Esri’s Online Services terms and conditions do not provide for the notification, report, restoration, and investigation requirements that are found in Section 10. Disaster Recovery/Business Continuity unless the notification, report, restoration, and investigation standards are found in FISMA low. Additionally, Esri’s cloud infrastructure providers do not permit Esri or Esri’s licensees the notification, report, restoration, and investigation rights described in Section 10. Disaster Recovery/Business Continuity. For these reasons Packet Page 146 of 316Attachment 4 Page 37 of 39

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Section 10. Disaster Recovery/Business Continuity does not apply to this acquisition.

Section 11. Examination and Audit ArcGIS Online is FISMA low NIST 800-53 R3 authorized. Esri’s Service Level Agreement (“SLA”) and Esri’s Online Services terms and conditions do not provide for the level of access, online inspection, and audit requirements that are found in Section 11 Examination and Audit unless the access, online inspection, and audit standards are found in FISMA low. Esri agrees to provide the State access to its web and vulnerability scanning results, operational documentation, and records and database that relate to the purchased SaaS subject to a mutually agreed upon time and date to provide the access and a signed non-disclosure agreement. Additionally, Esri’s cloud infrastructure providers do not permit Esri or Esri’s licensees access, online inspection, and audit rights described in Section 11 Examination and Audit. For these reasons Section 11 Examination and Audit does not apply to this acquisition.

5.2 Additional Esri SaaS product information:

5.2.1 ArcGIS Online is FISMA low NIST 800-53 R3 authorized and utilizes FedRAMP moderate cloud infrastructure providers.

State agencies requiring higher security standards such as FIPS 199 moderate categorized datasets can utilize ArcGIS Online for storage of low categorized service information in a hybrid deployment with a moderate categorized implementation.

Esri provides a FedRAMP moderate compliant offering (Esri Managed Cloud Services) that is used together with ArcGIS Online for this purpose. Esri will provide reasonable evidence of FISMA low compliance at:
http://doc.arcgis.com/en/trust/compliance/overview.htm . The ArcGIS Online FISMA SSP can be reviewed subject to the State signing Contractor's nondisclosure agreement. Cloud infrastructure provider compliance with FedRAMP moderate may be viewed by the State at https://www.fedramp.gov/marketplace/compliant-systems/ and reference the following package ID:

For AWS: AGENCYAMAZONEW
For Microsoft Azure: F1209051525
For Esri Managed Cloud Services: F1311252651

5.2.2 The State can access and review Cloud Service Alliance's publicly accessible STAR Registry Entries which documents the security controls provided by Esri, Microsoft, and Amazon. The registry is located at CSA Security, Trust & Assurance Registry (STAR).

5.2.3 Transition of the State’s data upon termination of an applicable order will be pursuant to Esri’s License Agreement.

The State can choose to enforce encryption of information in transport for ArcGIS Online, however information is not encrypted at rest. State agencies bear responsibility to (i) confirm that Esri’s published security controls for ArcGIS Online at http://doc.arcgis.com/en/trust/security/arcgis-online-security.htm meet all applicable legal requirements for protection of the agency's' data; and (ii) upload or share controlled data through ArcGIS Online only when it is legal to do so. The State Model Cloud Computing Services Special Provisions do not apply to Esri’s other SaaS products.

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Service Level Agreement
ArcGIS Online, ArcGIS Velocity and Site Scan for
ArcGIS

G632

June 2, 2021

This Service Level Agreement ("SLA") governs the availability of the Products identified below as made available to Customer under the terms of the Master Agreement. Unless given a new definition in this SLA, all terms previously defined in the Master Agreement shall have the same meaning in this SLA.

1. DEFINITIONS

a. "Covered Downtime" means all Downtime other than Excluded Downtime. b. "Covered Services" means a Product's services identified in Section 4 below. c. "Downtime" means periods during which one or more of a Product's Covered Services are not available. d. "Excluded Downtime" includes Planned Downtime and any Downtime resulting from (i) events beyond Esri's reasonable control; (ii) any action taken under Customer's account; (iii) any termination or suspension of Customer's account in accordance with the terms of the Agreement; (iv) any third-party software or hardware used to access the Products; (v) use of the Products that is inconsistent with the Master Agreement or Esri's reasonable instructions; and (vi) use of Beta, evaluation, and free services. e. "Master Agreement" means as applicable (i) the Master Agreement, Products and Services that is found at https://www.esri.com/en-us/legal/terms/full-master-agreement or (ii) a signed Agreement between the customer and Esri governing the customer's use of the Products. f. "Planned Downtime" means Downtime for scheduled maintenance. Esri will use commercially reasonable efforts to announce Planned Downtime as early as possible but no less than eight (8) hours beforehand.
g. "Product(s)" means ArcGIS Online, ArcGIS Velocity, or Site Scan for ArcGIS. h. "Quarterly Uptime Percentage" equals one hundred percent (100%) less the percentage of one (1)- minute intervals during the Service Quarter that constitute Covered Downtime. A Product will be considered to have been 100% available for any portion of a Service Quarter in which Customer did not maintain an active subscription.
i. "Service Commitment" means a Quarterly Uptime Percentage of 99.9%. j. "Service Quarter" means a standard three (3)-month calendar quarter. Service Quarters are defined as the following four (4) specific time periods: January through March, April through June, July through September, and October through December.
k. "SLA Credit" means a monetary credit applied to Customer's annual subscription at time of renewal.

2. SERVICES AVAILABILITY. Esri will use commercially reasonable efforts to achieve the Service Commitment for each Product. For any Service Quarter that the Quarterly Uptime Percentage for a Product is less than the Service Commitment and subject to Esri's minimum threshold for credit, Customer will receive an SLA Credit equivalent to the prorated Product subscription fee for the net Covered Downtime during the relevant Service Quarter in excess of the maximum Downtime permitted under the Service Commitment.

3. PROCEDURE. Once Esri has verified that the Quarterly Uptime Percentage for a Product fell below the Service Commitment and exceeds Esri's minimum criteria for providing an SLA Credit, the appropriate SLA Credit will be applied to Customer's paid renewal of its subscription for the Product at the time of renewal. An SLA Credit is non-transferable and is the Customer's sole and exclusive recourse for any nonattainment of the Service Commitment. If Customer does not renew the subscription, Customer forfeits the SLA credit.

4. COVERED SERVICES. The Covered Services are:

ArcGIS Online

 ArcGIS.com Website
 ArcGIS.com REST API
 Esri Basemaps Service
 Hosted Feature Service
 Hosted Tile Service
ArcGIS Velocity

 Hosted Feature / Map Image Layer
 Hosted Stream Layer
 ArcGIS Velocity REST API
 ArcGIS Velocity website
Site Scan for ArcGIS

 All Services

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Agenda Item No: 14.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gassaway, Interim City Manager
SUBJECT:Resolution 2022­09 of the City Council of the City of Fairfield to Transfer Nine 2018 Motor Coach Industries Commuter Coaches to Solano County Transit for the Operation of SolanoExpress Service
RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
The Public Works Transportation Division is seeking to transfer nine (9) 2018 Motor Coach Industries (MCI) commuter coaches to Solano County Transit (SolTrans). SolTrans is the Solano Transportation Authority’s (STA) selected single SolanoExpress regional commuter service operator. Federal Transit Administration (FTA) funding was used to purchase seven of the nine vehicles.

DISCUSSION
The Solano Transportation Authority has agreements with the City of Fairfield (City) and SolTrans to operate the SolanoExpress commuter service, which is comprised of four routes: Green Express, Blue Line, Red Line, and Yellow Line. The City currently operates the Green Express and Blue Lines, while SolTrans operates the Red and Yellow Lines. In September 2021, the STA Board moved to a single operator model for SolanoExpress service and selected SolTrans as the sole service operator. As a result of this decision, the City of Fairfield, SolTrans, and STA are collaborating on transitioning services and vehicles from the City to SolTrans. The parties have identified nine (9) 2018 MCI commuter coaches needed by SolTrans for the continued operation of SolanoExpress revenue service.

As a Federal Transit Administration grantee, the City of Fairfield must meet FTA requirements for the transfer of assets. FTA Circular 5010.1E, Chapter IV, Subsection 4.o.4.e requires a specific resolution with detailed language setting forth the requirements for transferring rolling stock (vehicles) from grantee to grantee. Specifically, a written request for approval to transfer all FTA assets, including the transfer of vehicles and a Board resolution from the transferring and receiving agencies agreeing to the transfer must be submitted to FTA. A Rolling Stock Status Report including a list of vehicles being transferred, the vehicle identification numbers (VIN), the remaining federal interest being transferred, mileage, and reason for transfer is required as a part of the request. As the agency transferring vehicles, the City of Fairfield must adopt a resolution stating that the vehicles are no longer required and Packet Page 149 of 316

Agenda Item No: 14.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gassaway, Interim City ManagerSUBJECT:Resolution 2022­09 of the City Council of the City of Fairfield to Transfer Nine 2018Motor Coach Industries Commuter Coaches to Solano County Transit for the Operationof SolanoExpress ServiceRECOMMENDED ACTIONAdopt resolution.STATEMENT OF ISSUEThe Public Works Transportation Division is seeking to transfer nine (9) 2018 Motor Coach Industries(MCI) commuter coaches to Solano County Transit (SolTrans). SolTrans is the Solano TransportationAuthority’s (STA) selected single SolanoExpress regional commuter service operator. Federal TransitAdministration (FTA) funding was used to purchase seven of the nine vehicles.DISCUSSIONThe Solano Transportation Authority has agreements with the City of Fairfield (City) and SolTrans tooperate the SolanoExpress commuter service, which is comprised of four routes: Green Express, BlueLine, Red Line, and Yellow Line. The City currently operates the Green Express and Blue Lines, whileSolTrans operates the Red and Yellow Lines. In September 2021, the STA Board moved to a singleoperator model for SolanoExpress service and selected SolTrans as the sole service operator. As aresult of this decision, the City of Fairfield, SolTrans, and STA are collaborating on transitioning servicesand vehicles from the City to SolTrans. The parties have identified nine (9) 2018 MCI commutercoaches needed by SolTrans for the continued operation of SolanoExpress revenue service.As a Federal Transit Administration grantee, the City of Fairfield must meet FTA requirements for thetransfer of assets. FTA Circular 5010.1E, Chapter IV, Subsection 4.o.4.e requires a specific resolutionwith detailed language setting forth the requirements for transferring rolling stock (vehicles) fromgrantee to grantee. Specifically, a written request for approval to transfer all FTA assets, including thetransfer of vehicles and a Board resolution from the transferring and receiving agencies agreeing to thetransfer must be submitted to FTA. A Rolling Stock Status Report including a list of vehicles beingtransferred, the vehicle identification numbers (VIN), the remaining federal interest being transferred, mileage, and reason for transfer is required as a part of the request. As the agency transferring vehicles, the City of Fairfield must adopt a resolution stating that the vehicles are no longer required and that SolTrans need the vehicles for the ongoing operation of revenue service.

Staff recommends adopting the attached resolution to transfer the nine (9) 2018 MCI commuter coaches from the City of Fairfield to SolTrans.

FINANCIAL IMPACT
Funding to purchase the nine (9) 2018 MCI vehicles came from various federal, state, and local funding for intercity bus replacement plans. The STA coordinated the intercity bus replacement plan in collaboration with other intercity funding partners.

Local Transportation Development Act (TDA) funding was provided by SolTrans, the County of Solano, and the cities of Dixon, Fairfield, and Vacaville. Seven of the nine 2018 vehicles were purchased utilizing some federal funding. The remaining depreciable federal interest for these seven vehicles partially paid with Federal Transit Administration dollars is $740,523, originally paid out of Fund 451, Division 99, Responsibility Code 101.

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
N/A
ALTERNATIVE ACTION
The council could reject this transfer; however, this is not recommended as it would prevent staff’s ability to request approval of the transfer from the FTA and impede the transition of SolanoExpress service from the City of Fairfield to SolTrans.

STAFF CONTACT
Diane Feinstein, Transportation Manager
(707) 434­3808
[email protected]
COORDINATED WITH
Finance DepartmentSolano County Transit Solano Transportation Authority ATTACHMENTS:

Description
Proposed Resolution
Exhibit 1
REVIEWERS:

Reviewer Action Date
Kaushal, Paul Approved 1/4/2022 ­ 7:54 PM
Panganiban, Ryan Approved 1/4/2022 ­ 8:52 PM
Alexander, Amber Approved 1/11/2022 ­ 12:25 PM
Alexander, Amber Approved 1/11/2022 ­ 12:25 PM
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CITY OF FAIRFIELD

RESOLUTION NO. 2022-09

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD TO TRANSFER NINE 2018

MOTOR COACH INDUSTRIES COMMUTER COACHES TO SOLANO COUNTY TRANSIT FOR THE

OPERATION OF SOLANOEXPRESS SERVICE

WHEREAS, the Solano Transportation Authority has selected Solano County Transit (SolTrans) as its single operator for SolanoExpress revenue service; and

WHEREAS, the City of Fairfield and SolTrans have ‘grantee’ status with the Federal Transit Administration (FTA); and

WHEREAS, the vehicles listed in Exhibit 1 to this resolution are required by SolTrans for the continued operation of SolanoExpress revenue service; and

WHEREAS, the City of Fairfield agrees that the vehicles listed in Exhibit 1 are no longer required; and

WHEREAS, the City for Fairfield will submit a formal written request to the FTA for an approval to transfer the nine (9) 2018 Motor Coach Industries (MCI) commuter coach vehicles from the City of Fairfield to SolTrans; and

WHEREAS, FTA Circular 5010.1E identifies the requirements for transferring rolling stock (vehicles) from grantee to grantee.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:

Section 1. The vehicles listed in Exhibit 1, will be transferred to SolTrans for the continued operation of SolanoExpress commuter revenue service upon the approval to transfer by the Federal Transit Administration.

Section 2. The director of public works and transportation manager are hereby authorized to do all things necessary to facilitate the transfer of the nine (9) 2018 MCI commuter coach vehicles from the City of Fairfield to SolTrans.

Packet Page 151 of 316Attachment 1 Page 1 of 2

RES. NO. 2022-09

PASSED AND ADOPTED this 18th day of January, 2022, by the following vote:

AYES: COUNCILMEMBERS: PRICE / BERTANI / MOY / PANDURO / TIMM / TONNESEN / VACCARO

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

MAYOR

ATTEST:

CITY CLERK

Packet Page 152 of 316Attachment 1 Page 2 of 2

Fairfield & Suisun Transit Commuter Bus Purchase Information

Description

Mfg.

I.D.#

3rd Party
Operated

Acquisition
Date

Total Cost
% Federal
Amount vs.
of % Local
Source of Funds Funds Share
45 ft. Coach MCI 18679 Yes 6/11/2018 $ 603,004 TDA $ 435,068 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,870 26%
45 ft. Coach MCI 18680 Yes 6/11/2018 $ 603,004 TDA $ 435,068 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,870 26%
45 ft. Coach MCI 18681 Yes 6/15/2018 $ 603,004 TDA $ 435,069 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,869 26%
45 ft. Coach MCI 18682 Yes 6/11/2018 $ 603,004 TDA $ 435,069 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,869 26%
45 ft. Coach MCI 18683 Yes 6/15/2018 $ 603,004 TDA $ 435,069 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,869 26%
45 ft. Coach MCI 18685 Yes 6/15/2018 $ 603,004 TDA $ 435,069 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,869 26%
45 ft. Coach MCI 18686 Yes 6/28/2018 $ 603,004 TDA $ 435,069 72% PTMISEA $ 9,066 2%
FTA-CA-2016-093-01 $ 158,869 26%
45 ft. Coach MCI 18687 Yes 6/11/2018 $ 603,004 TDA $ 593,939 98% PTMISEA $ 9,066 2%
45 ft. Coach MCI 18688 Yes 6/25/2018 $ 603,004 STAF $ 581,467 96% PTMISEA $ 9,066 2%
TDA $ 12,472 2%
Note: $ 5,427,038
SolTrans (ST) TDA used totaling $2,242,891. $144,552 of this ST allocation rescinded and returned to ST.

TDA-ST $ 2,242,891 TDA Allocation: 18428433 $ 3,651,896 TDA-FAST: $ 366,872 STAF Allocation: 18002076 $ 581,467 TDA-VV: $ 746,071 FTA Grant: CA-2016-093-01 $ 1,112,085 TDA-Dixon: $ 296,062 PTMISEA: $ 81,590
PTMISEA-FAST: $
STAF-STA: $
81,590
581,467
$ 5,427,038
FTA 5339-FAST: $ 1,112,085
$ 5,427,038
Packet Page 153 of 316Attachment 2 Page 1 of 1

Agenda Item No: 15.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gasssaway, Interim City Manager
SUBJECT:Resolution 2022­10 of the City Council of the City of Fairfield Approving the Disposition and Development Agreement Between the City of Fairfield and Lionext Inc.

RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
The City of Fairfield and Lionext Inc. (Lionext) would like to enter into the proposed Disposition and Development Agreement (DDA) for the sale of the City’s parcel located at 501 Lopes Road, more commonly known as APNs 0180­130­010 (Property).

DISCUSSION
The City is the owner of the Property. On June 10, 2021, the City accepted a letter of intent from Lionext to enter into negotiations to sell the Property to Lionext to develop a showroom and administration office.

The City declared the Property surplus on October 20, 2020, and has complied with all State Department of Housing and Community Development requirements to proceed with a sale of the Property.

The City would like to sell the Property to Lionext for the proposed purchase price of $500,000, which equals the appraised value. The DDA states the terms mentioned above and others by which the City is willing to sell the Property to Lionext.

The proposed resolution approves the DDA and authorizes the city manager to execute all documents necessary for the sale of the Property.

FINANCIAL IMPACT
The City will receive the purchase price of $500,000. These funds will be deposited into the Intergovernmental Loan Fund (Fund 551, Division and Responsibility Code 99­203­7301).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
Packet Page 154 of 316

Agenda Item No: 15.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gasssaway, Interim City ManagerSUBJECT:Resolution 2022­10 of the City Council of the City of Fairfield Approving the Dispositionand Development Agreement Between the City of Fairfield and Lionext Inc.RECOMMENDED ACTIONAdopt resolution.STATEMENT OF ISSUEThe City of Fairfield and Lionext Inc. (Lionext) would like to enter into the proposed Disposition andDevelopment Agreement (DDA) for the sale of the City’s parcel located at 501 Lopes Road, morecommonly known as APNs 0180­130­010 (Property).DISCUSSIONThe City is the owner of the Property. On June 10, 2021, the City accepted a letter of intent from Lionextto enter into negotiations to sell the Property to Lionext to develop a showroom and administrationoffice.The City declared the Property surplus on October 20, 2020, and has complied with all StateDepartment of Housing and Community Development requirements to proceed with a sale of theProperty.The City would like to sell the Property to Lionext for the proposed purchase price of $500,000, whichequals the appraised value. The DDA states the terms mentioned above and others by which the City iswilling to sell the Property to Lionext.The proposed resolution approves the DDA and authorizes the city manager to execute all documentsnecessary for the sale of the Property. FINANCIAL IMPACTThe City will receive the purchase price of $500,000. These funds will be deposited into theIntergovernmental Loan Fund (Fund 551, Division and Responsibility Code 99­203­7301).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
None.

ALTERNATIVE ACTION
The City Council could decide not to approve the DDA, but the Property would then go back out onto the open market for other potential buyers.

STAFF CONTACT
Dwayne Dalman, Economic Development Division Manager
(707) 428­7649
[email protected]
COORDINATED WITH
City Attorney's Office
ATTACHMENTS:

Description
Proposed Resolution
Proposed Agreement
REVIEWERS:

Reviewer Action Date
Dalman, Dwayne Approved 1/4/2022 ­ 7:59 PM
Gassaway, David Approved 1/11/2022 ­ 10:29 AM
Alexander, Amber Approved 1/11/2022 ­ 10:58 AM
Alexander, Amber Approved 1/11/2022 ­ 10:58 AM
Packet Page 155 of 316

CITY OF FAIRFIELD

RESOLUTION NO. 2022-10

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD APPROVING THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FAIRFIELD AND LIONEXT INC.

WHEREAS, the City of Fairfield is the owner of the property located at 501 Lopes Road more commonly known as APNs 0180-130-010 (Property); and
WHEREAS, The City declared the Property surplus on October 20, 2020, and has complied with all State Department of Housing and Community Development requirements to proceed with a sale of the Property; and

WHEREAS, Lionext, Inc. (Lionext) wishes to purchase the Property to use as a showroom and administration office; and
WHEREAS, the City wishes to sell the Property to Lionext; and WHEREAS, Lionext wishes to pay the appraised value of $500,000 for the Property which will be deposited into the City’s Intergovernmental Loan Fund account.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:

Section 1. The City Council hereby approves the Disposition and Development Agreement (DDA), a copy of which is attached hereto, with such non -substantive changes as may be approved by the city manager.

Section 2. The city manager is hereby authorized to execute the DDA and all documents required or contemplated by the DDA on behalf of the City, and to give all consents and approvals contemplated thereby on behalf of the City.

Section 3. The city manager is further authorized to do all things necessary and proper to implement this resolution.

Packet Page 156 of 316Attachment 1 Page 1 of 2

RES. NO. 2022-10

PASSED AND ADOPTED this 18th day of January, 2022, by the following vote:

AYES: COUNCILMEMBERS: PRICE / BERTANI / MOY / PANDURO / TIMM / TONNESEN / VACCARO

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

MAYOR

ATTEST:

____________________________

CITY CLERK
Packet Page 157 of 316Attachment 1 Page 2 of 2

11245-0001\2539357v2.doc

DISPOSITION AND DEVELOPMENT AGREEMENT

by and between the

CITY OF FAIRFIELD (“City”)
and
LIONEXT INC. (“Lionext”)
(“Developer”)

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TABLE OF CONTENTS
Page
-i-
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1. DEFINITIONS .................................................................................................................. 1

1.1 Definitions............................................................................................................. 1

2. PURCHASE AND SALE OF THE PROPERTY ............................................................. 4

2.1 Purchase and Sale, Purchase Price; Deposit ......................................................... 4

2.2 Opening and Closing of Escrow ........................................................................... 5

2.3 Condition of Title; Title Insurance ....................................................................... 5

2.4 City Conditions to Close of Escrow...................................................................... 6

2.5 Developer Conditions to Close of Escrow ............................................................ 7

2.6 Costs; Escrow Holder Settlement Statement ........................................................ 7

2.7 Condition of the Property...................................................................................... 8

2.8 Deposits into Escrow by the City........................................................................ 11

2.9 Deposits into Escrow by the Developer .............................................................. 12

2.10 Authorization to Record Documents and Disburse Funds .................................. 12

2.11 Escrow’s Closing Actions ................................................................................... 12

3. DEVELOPMENT COVENANTS .................................................................................. 13

3.1 Development of the Project ................................................................................ 13

3.2 City’s Right to Review Plans and Specifications ............................................... 13

3.3 Construction Contract ......................................................................................... 13

3.4 Costs of Entitlement, Development and Construction ........................................ 14

3.5 Rights of Access and Inspection ......................................................................... 14

3.6 Local, State and Federal Laws ............................................................................ 14

3.7 City and Other Governmental City Permits and Approvals ............................... 14

3.8 No Discrimination During Construction ............................................................. 14

3.9 Taxes, Assessments, Encumbrances and Liens .................................................. 14 DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 159 of 316Attachment 2 Page 2 of 42

TABLE OF CONTENTS (cont.)
Page
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3.10 No Agency Created ............................................................................................. 14

3.11 Certificate of Completion ................................................................................... 14

4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS ............................ 15

4.1 Restriction on Transfer of the Developer’s Rights and Obligations ................... 15

4.2 Holders of Deeds of Trust ................................................................................... 15

4.3 Rights of Holders ................................................................................................ 15

4.4 Noninterference with Holders ............................................................................. 16

4.5 Right of City to Cure........................................................................................... 16

4.6 Right of City to Satisfy Other Liens ................................................................... 16

5. DEFAULT, REMEDIES AND TERMINATION .......................................................... 16

5.1 Defaults ............................................................................................................... 16

5.2 Remedies ............................................................................................................. 17

5.3 No Speculation .................................................................................................... 19

5.4 No Personal Liability .......................................................................................... 19

5.5 Rights and Remedies are Cumulative ................................................................. 19

5.6 Inaction Not a Waiver of Default........................................................................ 19

5.7 Force Majeure ..................................................................................................... 19

6. INSURANCE; INDEMNITY ......................................................................................... 20

6.1 Insurance ............................................................................................................. 20

6.2 Indemnity ............................................................................................................ 21

7. REPRESENTATIONS AND WARRANTIES............................................................... 21

7.1 Developer Representations ................................................................................. 21

7.2 City Representation ............................................................................................. 22

8. GENERAL PROVISIONS ............................................................................................. 22 DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 160 of 316Attachment 2 Page 3 of 42

TABLE OF CONTENTS (cont.)
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8.1 Notices ................................................................................................................ 22

8.2 Construction ........................................................................................................ 22

8.3 Interpretation ....................................................................................................... 23

8.4 Time of the Essence ............................................................................................ 23

8.5 Warranty Against Payment of Consideration for Agreement ............................. 23

8.6 Attorneys’ Fees ................................................................................................... 23

8.7 Entire Agreement ................................................................................................ 23

8.8 Severability ......................................................................................................... 23

8.9 No Third Party Beneficiaries .............................................................................. 23

8.10 Governing Law; Jurisdiction; Service of Process ............................................... 23

8.11 Survival ............................................................................................................... 24

8.12 City Actions ........................................................................................................ 24

8.13 Counterparts ........................................................................................................ 24

8.14 Electronic Delivery ............................................................................................. 24

TABLE OF EXHIBITS
EXHIBIT “A” LEGAL DESCRIPTION OF PROPERTY
EXHIBIT “B” FORM OF GRANT DEED
EXHIBIT “C” SCHEDULE OF PERFORMANCE
EXHIBIT “D” SCOPE OF DEVELOPMENT
EXHIBIT “E” FORM OF CERTIFICATE OF COMPLETION

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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the “Agreement”) is dated as of , 2022 and is entered into by and between the CITY OF FAIRFIELD, a municipal corporation (the “City”), and LIONEXT, INC., a California corporation, (the “Developer”).

RECITALS
A. The City owns the land described on Exhibit “A” and the improvements, thereon located at 501 Lopes Road, more commonly known as APNs 0180-130-010 herein (the “Property”).

B. The Developer desires to purchase the Property from the City and the City desires to sell the Property to the Developer for the purpose of developing a warehouse/office development on the Property (the “Project”).

AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants contained in this Agreement, the parties hereto agree as follows:

1. DEFINITIONS.

1.1 Definitions. The following capitalized terms used in this Agreement shall have the meanings set forth below:

1.1.1 “Agreement” means this Disposition and Development Agreement.

1.1.2 “Approved Title Exceptions” is defined in Section 2.3.1.

1.1.3 “Building Permit” means, collectively, any and all permits necessary to grade the Property and construct the Project that would be issued by the City.

1.1.4 “Certificate of Completion” means the certificate described in Section 3.11.

1.1.5 “Close of Escrow” is defined in Section 2.2.

1.1.6 “Construction Contract” is defined in Section 3.3.

1.1.7 “Covenant” means that certain Covenants and Restrictions for Real Property, dated May 4, 2021, and recorded May 12, 2021, as Instrument No. 202100052863 in the Official Records of the County of Solano, California.

1.1.8 “Default” is defined in Section 5.1.

1.1.9 “Deposit” is defined in Section 2.1.3.

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1.1.10 “Disapproved Title Exceptions” is defined in Section 2.3.1.

1.1.11 “Escrow” is defined in Section 2.2.

1.1.12 “Escrow Holder” means Placer Title Company at 1300 Oliver Road, Suite 180, Fairfield, CA 94534, Attn: Laura Vierra.

1.1.13 “FIRPTA Affidavit” is defined in Section 2.8.1.3.

1.1.14 “Force Majeure Delay” is defined in Section 5.7.

1.1.15 “General Contractor” is defined in Section 3.3.

1.1.16 “Grant Deed” is defined in Section 2.3.2.

1.1.17 “Hazardous Materials” means any chemical, material or substance now or hereafter defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous waste, restricted hazardous waste, toxic substances, pollutant or contaminant, imminently hazardous chemical substance or mixture, hazardous air pollutant, toxic pollutant, or words of similar import under any local, state or federal law or under the regulations adopted or publications promulgated pursuan t thereto applicable to the Property, including, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 1801, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et seq. (“RCRA”) The term Hazardous Materials shall also include any of the following: any and all toxic or hazardous substances, materials or wastes listed in the United States Department of Transportation Table (49 CFR 172.101) or by the Environmental Protection City as hazardous substances (40 CFR. Part 302) and in any and all amendments thereto in effect as of the Close of Escrow Date; oil, petroleum, petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive (including any source, special nuclear or by product material as defined at 42 U.S.C. 2011, et seq.), carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment which contain dielectric fluid containing levels of polychlorinated byphenyls; radon gas; or any other chemical, material or substance (i) which poses a hazard to the Property, to adjacent properties, or to persons on or about the Property, (ii) which causes the Property to be in violation of any of the aforementioned laws or regulations, or (iii) the presence of which on or in the Property requires investigation, reporting or remediation under any such laws or regulations.

1.1.18 “Holder” is defined in Section 4.2.

1.1.19 “Improvements” means all buildings, landscaping, infrastructure, utilities, and other improvements to be built on the Property, as described in the Scope of Development.

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1.1.20 “Institutional Lender” means one or more of Cathay Bank, or if reasonably acceptable to the City, any other reputable and established bank (State or Federal), savings bank (State or Federal), trust company, insurance company, credit union, pension, welfare or retirement fund or system, real estate investment trust (or an umbrella partnership or other entity of which a real estate investment trust is the majority owner), Federal or State agency regularly making or guaranteeing mortgage loans, investment bank or Fortune 500 company, or any combination of, any one or more of the entities described above.

1.1.21 “Property” means the land described on Exhibit “A” attached hereto.

1.1.22 “Lender” means the holder of any Security Instrument and such holder’s successors and assigns.

1.1.23 “Party” means any party to this Agreement, and “Parties” means all parties to this Agreement.

1.1.24 “Permitted Exceptions” is defined in Section 2.3.2.

1.1.25 “Permitted Security Instrument” means any Security Instrument (a) that encumbers only the Project; (b) a copy of which, together with the related loan documents, is promptly after execution delivered to the City, (c) that is held by a Lender that is an Institutional Lender, and (d) only secures the repayment of money used to pay or reimburse the Total Development Costs.

1.1.26 “Plans and Specifications” means all drawings, landscaping and grading plans, engineering drawings, final construction drawings, and any other plans or specifications for construction of the Project.

1.1.27 “Project” means the Property and Improvements.

1.1.28 “Project Budget” is defined in Section 2.4.1.

1.1.29 “Purchase Price” is defined in Section 2.1.2.

1.1.30 “Released Parties” is defined in Section 2.7.3.

1.1.31 “Schedule of Performance” means the schedule attached hereto as Exhibit “C”.

1.1.32 “Scope of Development” means the description attached hereto as Exhibit “D”.

1.1.33 “Senior Project Loan” means the loan or loans that the Developer obtains from an Institutional Lender in an amount that is sufficient to pay and the proceeds of which are to be used and applied solely to pay (a) the reasonable costs of obtaining such loan, and (b) the Total Project Costs. Such loan may also provide for a portion of the loan to convert to a permanent loan status following completion of the Project.

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1.1.34 “Title Company” shall mean the Escrow Holder (i.e., the Title Company and the Escrow Holder are the same).

1.1.35 “Total Project Costs” means all hard and soft costs of the construction of the Project, as set forth in the Project Budget.

1.1.36 “Transfer” is defined in Section 4.1.

1.1.37 “Withholding Affidavit” is defined in Section 2.8.1.2.

2. PURCHASE AND SALE OF THE PROPERTY; PURCHASE PRICE; DEPOSIT.

2.1 Purchase and Sale; Purchase Price; Deposit.

2.1.1 Purchase and Sale. In accordance with and subject to the terms and conditions hereinafter set forth, the City agrees to sell the Property and the Developer agrees to cause the Property to be purchased from the City.

2.1.2 Purchase Price. The purchase price for the Property to be paid by the Developer (the “Purchase Price”) shall be FIVE HUNDRED THOUSAND DOLLARS -/100 ($500,000.00) determined to be the fair market value of the Property based on an appraisal report dated July 12, 2021. If Close of Escrow occurs, the City and the Developer shall each pay fifty percent (50%) of all costs associated with such appraisal. Notwithstanding anything to the contrary contained herein, the Close of Escrow shall not occur until such time as the Closing Conditions, described in Sections 2.4 and 2.5 hereof, have been satisfied (or waived in writing by the applicable party benefitted thereby). At the Close of Escrow, the City shall convey title to the Property to the Developer by grant deed in the form attached hereto as Exhibit “B” (the “Grant Deed”).

2.1.3 Deposit. Within five (5) business days after Escrow is opened pursuant to Section 2.2 herein, the Developer shall deposit the sum of TEN PERCENT (10%) of the Purchase Price (the “Deposit”) into Escrow. The Deposit shall be held by the City in a non- interest bearing account. Upon the Close of Escrow, the Deposit shall be credited against and applied to the Purchase Price. If Close of Escrow does not occur due to a default by the Developer, the Deposit shall be retained by the City as liquidated damages for such default. If this Agreement is terminated by the Developer pursuant to its terms prior to the Close of Escrow, then the Deposit shall be promptly returned to the Developer. THE DEVELOPER AND THE CITY AGREE

THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND

UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH THE CITY’S DAMAGES BY REASON OF A DEFAULT BY THE DEVELOPER PRIOR TO THE CLOSE OF ESCROW. ACCORDINGLY, THE DEVELOPER AND THE

CITY AGREE THAT IN THE EVENT OF A DEFAULT BY THE DEVELOPER PRIOR TO

THE CLOSE OF ESCROW, THE CITY SHALL BE ENTITLED TO THE DEPOSIT AS LIQUIDATED DAMAGES.

Developer Initials: City Initials:

2.2 Opening and Closing of Escrow. Within five (5) business days after the Date this Agreement is executed by the City and delivered to the Developer, the City and the DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 165 of 316Attachment 2 Page 8 of 42

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Developer shall cause an escrow (the “Escrow”) to be opened with Escrow Holder for the sale of the Property by the City to the Developer and for the closing of Senior Project Loan. The Parties shall deposit with Escrow Holder a fully executed duplicate original of this Agreement as the escrow instructions for the Escrow. The City and the Developer shall provide such additional instructions as shall be necessary and consistent with this Agreement. Provided that each of the conditions to closing described in Sections 2.4 and 2.5 have been satisfied, Escrow shall close (the “Close of Escrow”) within thirty (30) days after the expiration of the Due Diligence Period or completion of entitlements. Provided, however, in no event shall the Close of Escrow occur later than six (6) months after the date of the execution of this Agreement. If the Close of Escrow does not occur by such date, and the Parties have not agreed to extend the date by which Close of Escrow is to occur, any party not then in default may terminate this Agreement by written notice to the other and all the funds and documents deposited with Escrow Holder shall be promptly refunded or returned, as the case may be, by Escrow Holder to the depositing party, except that all escrow and title cancellation fees shall be split between the Developer and the City.

2.3 Condition of Title; Title Insurance.

2.3.1 Title Exceptions; Survey. Upon the City’s delivery to the Developer of a copy of this Agreement executed by the City, the City shall obtain a preliminary title report for the Property (the “PTR”) from the Title Company and shall deliver it (or cause it to be delivered to) the Developer at [email protected] and [email protected] which shall include hyperlinks to copies of the title exception documents. The Developer shall have one-hundred and twenty (120) days after delivery of the PTR to the Developer to review and approve or disapprove any title exceptions in the PTR and notify the City in writing of any such title exceptions to which the Developer objects. Upon the execution of this Agreement, the Developer shall have the option to cause an ALTA survey (“Survey”) to be performed within one-hundred and twenty (120) days and shall promptly deliver a copy of the Survey, if completed, to the City together with any objections (if any) to any title exceptions shown on the Survey. The City shall have ten (10) business days after delivery by the Developer to the City of a written objection to a title exception to notify the Developer in writing that the City will: (a) remove one or more of the applicable exception(s) or cause them to be removed by the end of the Due Diligence Period (as defined in Section 2.7.2 below) or reasonably insured over by the Title Company; (b) decline to remove exceptions (or to cause them to be reasonably insured). Failure by the City to so notify the Developer shall be deemed to be the City’s election not to remove or otherwise address the applicable title exception(s). If the City notifies the Developer that the City will remove (or cause to be removed) one or more of such title exceptions, then the City shall do so on or before the Close of Escrow (unless this Agreement is terminated by the Developer under this Section or Section 2.7.2 below).

If the City fails to so notify the Developer as to any exception, or declines to remove or insure over title exceptions, then the Developer may terminate this Agreement by written notice to the City.

If Developer fails to so terminate this Agreement, the Developer shall be deemed to have approved and accepted the applicable title exceptions (which, together with any title exceptions approved or created by the Developer, the City has agreed to remove, cause to be removed or cause to be “insured over” are hereinafter referred to as the “Approved Title Exceptions”). As used herein, the term “Disapproved Title Exceptions” shall mean any title exceptions that the Developer objects to, the City has not agreed to remove, not cause to be removed or not cause to be “insured over”.

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2.3.2 At the Close of Escrow, the City shall convey title to the Property by grant deed in the form attached hereto as Exhibit “B” (the “Grant Deed”). Title to the Property shall be conveyed subject to: (i) non-delinquent current real property taxes and assessments not yet due for the tax year during which the conveyance occurs, (ii) all Approved Title Exceptions, (iii) the Covenant, and (iv) the terms of this Disposition and Development Agreement and any other covenants included in the Grant Deed (collectively, the “Permitted Exceptions”).

2.4 City Conditions to Close of Escrow. The obligation of the City to close Escrow shall be subject to the satisfaction (or express written waiver by the City Manager) of each of the following conditions (collectively, the “City Conditions”):

2.4.1 The Developer shall have submitted to the City Manager, and the City Manager shall have approved, which approval shall not be unreasonably withheld or delayed, a project budget, showing estimated expenditures and the applicable sources of funds (the “Project Budget”), together with a schedule of sources and uses of funds demonstrating that the Developer has sufficient capital funds (i.e., “equity”) available and is committing such funds to cover the difference, if any, between the Total Project Costs that will not be paid using loan funds and the capital funds available to the Developer.

2.4.2 The Developer shall have delivered to the City a copy of the draft construction loan documents and construction loan budget, and such construction loan budget must be consistent with the Project Budget.

2.4.3 The Senior Project Loan shall close prior to or concurrently with the Close of Escrow.

2.4.4 The City Manager shall have approved the executed Construction Contract for the Project, as provided in Section 3.3 hereof.

2.4.5 The representations of the Developer contained in Section 7.1 of this Agreement, being true and correct.

2.4.6 The delivery by the Developer of all documents and funds required to be delivered pursuant to Section 2.9 of this Agreement.

2.4.7 The City shall have received evidence reasonably acceptable to the City Manager that the construction-related insurance required by Section 6.1 of this Agreement shall be in effect.

2.4.8 All conditions to the issuance of the building permit(s) for the Project, and any and all other governmental permits, consents or authorizations required for the development, construction, operation or use of the Project (excluding certificates of occupancy and the like that cannot be issued until completion) shall have been approved/issued.

2.4.9 The Developer shall have provided evidence to the City that the obligations of the Developer’s general contractor to construct and complete the Project (pursuant to the Construction Contract) have been bonded, for the express benefit of the Developer, the Developer’s construction lender and the City. To that end, the Developer shall secure and deposit DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 167 of 316Attachment 2 Page 10 of 42

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with the City a Performance Bond and a Labor and Material Payment Bond (in the form of AlA form A311 or A312), issued by a surety admitted to issue insurance in the State of California and otherwise reasonably acceptable to the City Manager, securing the faithful performance by the General Contractor of the completion of construction of the Improvements free of all liens and claims, within the time provided in the Schedule of Performance attached hereto. Such bond shall be in an amount equal to one hundred percent (100%) of the stipulated sum or guaranteed maximum price, as applicable. Such construction bond shall name the City as a co-obligee and may also name the Developer and the Developer’s construction lender as co obligees. Such construction bond shall be issued by a company listed in the current United States Treasury Department circular 570 and otherwise within the underwriting limits specified for that company in such circular. All of the foregoing shall be reasonably satisfactory in form and substance to the City Manager.

2.5 Developer Conditions to Close of Escrow. The obligations of the Developer to close escrow shall be subject to the satisfaction (or waiver by the Developer) of the following conditions (the “Developer Conditions”):

2.5.1 There shall have been no change to the physical condition of the Property and no new title exceptions after the date of the PTR that, in either case, would materially and adversely affect the development, use or operation of the Project.

2.5.2 The City’s removal (or Title Company’s reasonably insuring over) of all Disapproved Title Exceptions.

2.5.3 The representations of the City contained in Section 7.2 of this Agreement being true and correct.

2.5.4 The delivery by the City of all documents and funds required to be delivered pursuant to Section 2.8 of this Agreement.

2.5.5 The Title Company shall have committed to issue at the Close of Escrow an owner’s title insurance policy, with any extended coverage and endorsements requested by the Developer, showing fee simple title to the Property vested in the Developer, subject only to the Permitted Exceptions.

2.5.6 The City shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow.

2.5.7 The Developer’s approval of the condition of the Property pursuant to Section 2.7.2 of this Agreement.

2.6 Costs; Escrow Holder Settlement Statement.

2.6.1 The Developer shall be solely responsible for all costs and expenses related to the Survey, the costs of extended title insurance coverage and any title insurance endorsements (other than those obtained by the City to “insure-over” a title exception), and fifty percent (50%) of the escrow fees and the cost of the appraisal as described in Section 2.1.2. The DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 168 of 316Attachment 2 Page 11 of 42

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City shall be solely responsible for the costs of the standard Owner’s policy of title insurance, documentary transfer taxes, and any endorsements obtained by the City to “insure-over” title exceptions, and fifty percent (50%) of the escrow fees and the cost of the appraisal.

2.6.2 Escrow Holder is authorized on the Close of Escrow to pay and charge the Developer for any fees, charges and costs payable under Section 2.6.1 as set forth on the settlement statements approved by the Parties. Before such payments are made, Escrow Holder shall notify the City and the Developer of the fees, charges, and costs necessary to close under the Escrow, by delivering draft settlement statements to the Parties for their mutual approval.

2.6.3 The parties agree to cooperate with each other if the Developer elects to consummate the transaction contemplated by this Agreement as a like-kind exchange of property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (the “Exchange”), which cooperation shall include executing documents for that Exchange, and provided that the Developer is not in default of its obligations under this Agreement and the following terms and conditions are satisfied: (a) the Developer provides prior written notice to the City not less than ten (10) business days prior to the Close of Escrow, (b) the Developer provides the City with copies of all exchange documents that must be executed by the City not less than five (5) business day prior to the Close of Escrow; (c) the City shall in no way be obligated to pay any facilitator charges, escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to the Exchange; (d) in no way shall the Closing be contingent or otherwise subject to the consummation of the Exchange, and the Escrow shall timely close in accordance with the terms of this Agreement despite any failure, for any reason, to consummate the Exchange; (e) the City shall have no responsibility or liability to any third party involved in the Exchange; (f) the City shall not be required to make any representations or warranties nor assume any obligations, including but not limited to, incurring any debt, taking title to any other property, expending any sum, or incurring any liability whatsoever in connection with the Exchange; (g) the parties’ rights against each other under this Agreement, and the parties’ obligations under this Agreement, shall not be released, reduced or excused in any manner as the result of the Exchange; and (h) the Developer shall indemnify and hold the City harmless from and against any and all causes, claims, demands, liabilities, costs and expenses, including reasonable attorneys’ fees, as a result of or in connection with the Exchange. The indemnification obligations of the Developer contained in this Section 2.6.3 shall survive the Close of Escrow or the termination of this Agreement.

2.7 Condition of the Property.

2.7.1 “As-Is” Sale. The Developer acknowledges and agrees that, except as expressly set forth herein, the Developer is acquiring the Property in its “AS IS” condition,

WITH ALL FAULTS, IF ANY, AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED and neither the City nor any agents, representatives, officers, or employees of the City have made any representations or warranties, direct or indirect, oral or written, express or implied, to the Developer or any agents, representatives, or employees of the Developer with respect to the condition of the Property, its fitness for any particular purpose, or its compliance with any laws, and the Developer is not aware of and does not rely upon any such representation to any other party. Except as expressly set forth herein, neither the City nor any of its representatives is making or shall be deemed to have made any express or implied representation or warranty, of any kind or nature, as to (a) the physical, DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 169 of 316Attachment 2 Page 12 of 42

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legal or financial status of the Property, (b) the Property’s compliance with applicable laws, (c) the accuracy or completeness of any information or data provided or to be provided by the City, or (d) any other matter relating to the Property.

2.7.2 Delivery of Document by the City; Inspections by the Developer; Due Diligence Period; Tenants. Within five (5) business days after the date of this Agreement, the City shall deliver to the Developer copies of all material, non-privileged documents in the possession of the City that pertain to the Property (the “Documents”). Upon the execution of this Agreement until the date that is one-hundred and twenty (120) days thereafter (the “Due Diligence Period”), the Developer and its contractors and consultants who are designated in writing to the City (the “Developer Designee’s”) shall have the right to enter onto the Property (without disturbing any legal occupants thereof) for the purpose of performing the Survey, hazardous materials inspections, soils inspections and other physical inspections and investigations as deemed necessary at Buyer’s sole discretion; provided, however, that: (a) the Developer shall deliver copies of all inspection reports to the City; (b) no inspections or investigations shall damage the Property or any improvements thereon or shall be “invasive” unless the City has received a plan describing the scope of the inspection or investigation and has approved such plan in writing, which approval shall not be unreasonably delayed or withheld; (c) the Developer shall immediately repair all damage caused by or related to its inspections; and (d) neither the Developer nor any of the Developer’s Designees shall enter the Property unless the Developer has provided the City reasonable written evidence (such as insurance certificates and/or copies of policies) that the activities of the Developer and the Developer Designees are covered by reasonable liability insurance naming the City as an additional insured. The Developer shall defend, indemnify and hold the City harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and cost) resulting from the entry onto the Property for such purposes or for purposes of performing the Survey. If the Developer disapproves to any condition of the Property or any Document, the Developer determines that the Property is not suitable for Developer’s intended use (as determined by Developer in its sole discretion), or if the Developer determines for any reason or no reason at all, that it does not desire to purchase the Property, then the Developer may terminate this Agreement by written notice to the City given on or prior to the end of the Due Diligence Period that describes the basis for the disapproval, at which time this Agreement shall be deemed null and void and of no further force or effect.

2.7.3 Releases and Waivers. The Developer acknowledges and agrees that in the event the Developer does not approve of the condition of the Property under Section

2.7.2, the Developer’s sole right and remedy shall be to terminate this Agreement under and in accordance with Section 2.7.2. Consequently, the Developer hereby waives any and all objections to or complaints regarding the Property and its condition, including, but not limited to, federal, state or common law based actions and any private right of action under state and federal law to which the Property is or may be subject, including, but not limited to, CERCLA (as defined in Section 1.1.16), RCRA (as defined in Section 1.1.16), physical characteristics and existing conditions, including, without limitation, structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property. The Developer further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 170 of 316Attachment 2 Page 13 of 42

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limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigations.

The Developer and anyone claiming by, through or under the Developer also hereby waives its right to recover from and fully and irrevocably releases the City and its council members, board members, employees, officers, directors, representatives, agents, servants, attorneys, successors and assigns (the “Released Parties”) from any and all claims, responsibility and/or liability that it may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to (i) the condition (including any defects, errors, omissions or other conditions, latent or otherwise, and the presence in the soil, air, structures and surface and subsurface waters of materials or substances that have been or may in the future be determined to be Hazardous Materials or otherwise toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws regulations or guidelines), valuation, salability or utility of the Property, or its suitability for any purpose whatsoever, and (ii) any information furnished by the Released Parties under or in connection with this Agreement. This release includes claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer’s release to the City. The Developer specifically waives the provision of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
In this connection and to the extent permitted by law, the Developer hereby agrees, represents and warrants that the Developer realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Developer nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included as a material portion of the consideration given to the City by the Developer in exchange for the City’s performance hereunder.

The Developer hereby agrees that, if at any time after the Close of Escrow any third party or any governmental agency seeks to hold the Developer responsible for the presence of, or any loss, cost or damage associated with, Hazardous Materials in, on, above or beneath the Property or emanating therefrom, then the Developer waives any rights it may have against the City in connection therewith, including, without limitation, under CERCLA, and the Developer agrees that it shall not (i) implead the City, (ii) bring a contribution action or similar action against DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 171 of 316Attachment 2 Page 14 of 42

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the City, or (iii) attempt in any way to hold the City responsible with respect to any such matter.

The provisions of this Section 2.7.3 shall survive the Close of Escrow. _____________________ ________________________
CITY’S INITIALS DEVELOPER’S INITIALS

2.7.4 Environmental Indemnity. From or after the Close of Escrow, the Developer shall indemnify, protect, defend and hold harmless the City, and the City’s officials, officers, attorneys, employees, consultants, agents and representatives, from and against any and all claims, liabilities, suits, losses, costs, expenses and damages, including but not limited to attorneys’ fees and costs, arising directly or indirectly out of any claim for loss or damage to any property, including the Property, injuries to or death of persons, or for the cost of cleaning up the Property and removing Hazardous Materials or toxic substances, materials and waste therefrom, by reason of contamination or adverse effects on the environment, or by reason of any statutes, ordinances, orders, rules or regulations of any governmental entity or agency requiring the clean- up of any Hazardous Materials caused by or resulting from any Hazardous Material, or toxic substances or waste existing on or under, any portion of the Property acquired by the Developer.

2.8 Deposits into Escrow by the City.

2.8.1 The City hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following items, the delivery of each of which shall be a condition of the Close of Escrow:

2.8.1.1 A Grant Deed duly executed and acknowledged by the City, in the form attached hereto as Exhibit “B”.

2.8.1.2 If required by Escrow Holder, the affidavit as
contemplated by California Revenue and Taxation Code 590 (“Withholding Affidavit”);

2.8.1.3 If required by Escrow Holder, a Certification of Non Foreign Status in accordance with I.R.C. Section 1445 (the “FIRPTA Certificate’); and

2.8.1.4 Such proof of the City’s authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue the Developer’s policy of title insurance.

2.8.1.5 All fees and costs payable by the City as described in Section 2.6.

2.9 Deposits into Escrow by the Developer.

2.9.1 The Developer hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following items, the delivery of each of which shall be a condition of the Close of Escrow:

2.9.1.1 The Purchase Price less the Deposit; and
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2.9.1.2 All fees and costs payable by the Developer as described in Section 2.6.

2.10 Authorization to Record Documents and Disburse Funds. Escrow Holder is hereby authorized to record the documents and disburse the funds and documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled:
(i) The Title Company can issue in favor of the Developer an owner’s Policy of Title Insurance, with liability equal to the Purchase Price (or such lesser amount as shall have been requested by the Developer), showing the Property vested in the Developer subject only to the Permitted Title Exceptions. (ii) The City and the Developer shall have each deposited in Escrow the documents and funds required pursuant to Sections 2.8 and 2.9. (iii) The City and the Developer have confirmed to Escrow Holder that all City Conditions and Developer Conditions have been satisfied or expressly waived in writing by the Party benefited thereby.

Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for issuance of the Developer’s title insurance policy.

2.11 Escrow’s Closing Actions. On the Close of Escrow, Escrow Holder shall:

2.11.1 Record the Grant Deed, then the Regulatory Agreement, then the deed of trust securing the Senior Project Loan, in the Official Records of Solano County;

2.11.2 Issue the Title Policy (or cause the Title Company to issue the Title Policy);

2.11.3 Prorate assessments and other charges (but not property taxes) as of the Close of Escrow in accordance with the settlement statements approved by the Parties and pay the costs shown thereon;

2.11.4 From funds deposited by the Developer, pay costs payable by the Developer as shown on the approved preliminary settlement statement approved by the City and the Developer settlement statement, and return any excess to the Developer;

2.11.5 Prepare and deliver to both the Developer and the City one signed copy of Escrow Holder’s final settlement statement showing all receipts and disbursements of the Escrow; and

2.11.6 If applicable, deliver the FIRPTA Certificate and the Withholding Affidavit to the Developer.

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3. DEVELOPMENT COVENANTS.

3.1 Development of the Project. The Developer shall develop the Project in accordance with the Scope of Development, the Schedule of Performance, all requirements of any and all applicable federal, state and local laws, rules and regulations (including any conditions of approval required by the City in its governmental capacity). The Developer shall comply with the Schedule of Performance in a timely manner, which City Manager may extend any Date/Deadline contained in the Schedule of Performance per Section 8.12 below, and provided that the obligations of the Developer set forth therein which are to be performed after the Close of Escrow shall be delayed by Force Majeure Delays, if applicable. Until a Certificate of Completion is issued, the Developer shall promptly provide the City with written, detailed progress reports, as reasonably requested by the City, regarding the status of the construction of the Improvements.

3.2 City’s Right to Review Plans and Specifications. In connection with construction of the Project, the Developer shall comply in all respects with Plans and Specifications approved by the City.

3.3 Construction Contract. The Developer shall retain one or more licensed and insured general contractors (each, a “General Contractor”) to undertake the construction of the Project. On or before the date set forth in the Schedule of Performance, the Developer shall enter into a written contract, in form and substance reasonably acceptable to the City Manager (the “Construction Contract”), with the General Contractor(s) for performing the work constituting the construction of all of the Project. The Construction Contract shall obligate the General Contractor to commence and complete such construction in accordance with this Agreement and all applicable federal, state and local laws, rules and regulations.

3.4 Costs of Entitlement, Development and Construction. The Developer agrees that all costs, expenses and fees associated with the development and construction of the Project including the costs for developing and constructing the Improvements thereon (including, but not limited to, the land acquisition costs and governmental permits and approvals) shall be borne by the Developer.

3.5 Rights of Access and Inspection. The City shall have a reasonable right of access to the Property, without charge or fee, at any reasonable time, upon reasonable notice to the Developer (which may be telephonic notice to Tony Lin at (916) 544-2986), provided the City’s access shall not delay any work being performed at the Property, to inspect the work being performed at the Property in connection with the initial development of the Project but shall not be obligated to do so and the City shall not be liable for any failure to disclose any information discovered by the City (or that could or should have been discovered by any City inspection).

3.6 Local, State and Federal Laws. The Developer shall carry out the construction of the Improvements on the Property in conformity with all applicable federal, state and local laws, including all applicable federal and state occupation, safety and health standards , and all applicable permits.

3.7 City and Other Governmental City Permits and Approvals. Before commencement of construction or development of any work of improvement on the Property, the Developer shall (at the Developer’s expense) secure, or cause to be secured, any and all permits DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 174 of 316Attachment 2 Page 17 of 42

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which may be required by the City or any other governmental agency having jurisdiction over such construction or development.

3.8 No Discrimination During Construction. The Developer, for itself and its successors and assigns, agrees that it shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin in the construction of the Improvements.

3.9 Taxes, Assessments, Encumbrances and Liens. The Developer shall pay when due all real property taxes and assessments assessed or levied on portions of the Property from time to time owned by the Developer, commencing immediately after closing of the land acquisition.

3.10 No Agency Created. In performing this Agreement, the Developer is an independent contractor and not the agent of the City. The City is not an agent of the Developer.

The City shall not have any responsibility whatsoever for payment to any contractor or supplier of the Developer or its contractors. The Developer shall not have any responsibility whatsoever for payment to any contractor or supplier of the City.

3.11 Certificate of Completion. Upon the Developer’s completion of the construction of the Project, the Developer will apply to the City for a Certificate of Completion (which shall be substantially in the form attached hereto as Exhibit “E”). The City’s issuance of the Certificate of Completion shall constitute the acknowledgement of the City that the Developer has complied in all respects with its development obligations (and only the development obligations) set forth in this Article 3. Promptly following the City’s issuance of a ce rtificate of occupancy for the entire project, and provided that the Developer is then in full compliance with all of its obligations under Article 3 of this Agreement, the City Manager shall execute, acknowledge and deliver the Certificate of Completion, which shall be recorded in the Official Records of Solano County and shall include, in form reasonably acceptable to the Developer, an express termination or reconveyance of the City’s rights under Section 5.2.2(ii) of this Agreement and the Grant Deed. If the City Manager believes that the Developer is not in compliance with its obligations under this Article 3, the City Manager shall promptly specify the nature of such non- compliance by written notice to the Developer and Developer shall have the right to promptly correct any verifiable non-compliance within calendar 30 days.

4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS.

4.1 Restriction on Transfer of the Developer’s Rights and Obligations. Prior to issuance of a Certificate of Completion for the Project, the Developer shall not, and shall not permit the Developer to, sell, assign, transfer, mortgage, lease (except for leases/rental agreements that comply with the Regulatory Agreement, and that are conditioned upon Project completion), hypothecate, or convey (collectively, a “Transfer”) the Project or any part thereof or any of the Developer’s rights or obligations hereunder, in a single transaction or series of transactions, without the City’s prior written consent, which consent may be granted or withheld in the City’s sole and absolute discretion, except for the execution of one or more deeds of trust and related instruments securing the Developer’s construction loan, a conveyance of the Project resulting from the foreclosure thereof (or a deed in lieu of such a foreclosure). The Developer acknowledges that the identity of the Developer is of particular concern to the City, and it is because of the DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 175 of 316Attachment 2 Page 18 of 42

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Developer’s identity that the City has entered into this Agreement with Developer. Except for the Developer approved by the City, and except for any Holder (defined in Section 4.2), no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement or the Project prior to the issuance of a Certificate of Completion. No transfer or assignment of the Developer’s interest hereunder without the City’s prior written approval shall be deemed to release the Developer from the obligations of the Developer hereunder. There shall be no restriction(s) on any Transfer following the issuance of the Certificate of Completion.

4.2 Holders of Deeds of Trust. Notwithstanding any provisions of Section 4.2 to the contrary, the Developer shall have the right to hypothecate its interest in the Property and the Project pursuant to one or more deeds of trust from an institutional lender, for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Project (including land development costs, reasonable and customary developer fees, loan fees and costs, and other normal and customary project costs), or for refinancing the construction financing with permanent financing. Any institutional lender of record holding any such deed of trust, whose name and address shall have been provided by the Developer to the City referred to herein as a “Holder.”

4.3 Rights of Holders. The City shall deliver a copy of any notice or demand to the Developer concerning any breach or default by the Developer under this Agreement to each Holder who has previously made a written request to the City for special notice hereunder. Any notice of breach or default by the Developer shall not be effective against any such Holder unless given to such Holder. Such Holder shall have the right at its option to cure or remedy any such default and to add the cost thereof to the secured debt and the lien of its security interest. If such breach or default can only be remedied or cured by such Holder upon obtaining possession, such Holder may remedy or cure such breach or default within a reasonable period of time after obtaining possession, provided such Holder seeks possession with diligence through a receiver or foreclosure. Such Holder shall not undertake or continue the construction or completion of the Improvements beyond the extent necessary to conserve or complete the Improvements. Any Holder completing the Improvements must assume all rights and obligations of the Developer under this Agreement and shall then be entitled, upon written request made to the City, to a Certificate of Completion from the City.

4.4 Noninterference with Holders. The provisions of this Agreement do not limit the right of Holders (a) to foreclose or otherwise enforce any mortgage, deed of trust, or other security instrument encumbering all or any portion of the Project, (b) to pursue any remedies for the enforcement of any pledge or lien encumbering such portions of the Project, or (c) to accept, or cause its nominee to accept, a deed or other conveyance in lieu of foreclosure or other realization. In the event of (i) a foreclosure sale under any such mortgage, deed of trust or other lien or encumbrance, (ii) a sale pursuant to any power of sale contained in any such mortgage or deed of trust, or (iii) a deed or other conveyance in lieu of any such sale, the purchaser or purchasers and their successors and assigns, and such portions of the Project shall be, and shall continue to be, subject to all of the conditions, restrictions and covenants of all documents and instruments recorded pursuant to this Agreement, including, without limitation, the restrictions set forth in the grant deed on such property from the City to the Developer. The City agrees to execute such further documentation regarding the rights of any Holder as is customary with respect to DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 176 of 316Attachment 2 Page 19 of 42

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construction or permanent financing, as the case may be, to the extent that such documentation is reasonably requested by any Holder and is reasonably approved by the City Manager.

4.5 Right of City to Cure. In the event of a default or breach by the Developer of a loan by a Holder prior to the completion of the Improvements, the City may, upon prior written notice to the Developer, cure the default, prior to the completion of any foreclosure. In such event the City shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the City in curing the default. The City shall also be entitled to a lien upon the Project or any portion thereof to the extent of such costs and disbursements. The City agrees that such lien shall be subordinate to any lien in favor of a Holder, and the City shall execute from time to time any and all documentation reasonably requested by the Developer to affect such subordination.

4.6 Right of City to Satisfy Other Liens. After the Close of Escrow and after the Developer has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Project or any portion thereof, and has failed to do so, in whole or in part, the City shall, upon prior written notice to the Developer, have the right to satisfy any such lien or encumbrances; however, nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount therein and so long as such delay in payment shall not subject the Property or any portion thereof to forfeiture or sale.

5. DEFAULT, REMEDIES AND TERMINATION.

5.1 Defaults. The occurrence of any or all of the following shall constitute a default (“Default”) under this Agreement:

5.1.1 The Developer’s failure to perform its obligations on a timely basis as contained in the Schedule of Performance (as extended pursuant to Section 5.7), or any breach of this Agreement by any Party involving the payment of money, and the continuance of such breach for a period of ten (10) days after the non-defaulting Party has given written notice to the defaulting Party.

5.1.2 Except as otherwise provided in Section 5.1.1 hereof, a breach of any other term of this Agreement by any Party not involving the payment of money and failure of such Party to cure such breach within thirty (30) days after the non-defaulting Party has given written notice to the defaulting Party; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then such Party shall be deemed in Default only if such Party does not commence to cure such breach within such thirty (30) day period and thereafter fails to diligently prosecute such breach to completion;

5.1.3 The Developer’s violation of Section 4.1;

5.1.4 The Developer’s failure or refusal to keep in force and effect any permit with respect to construction of the Project, and the Developer’s failure to cure such breach within thirty (30) calendar days after notice from the City of the Developer’s breach; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then the Developer shall be deemed in Default only if the Developer does not commence to cure such DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 177 of 316Attachment 2 Page 20 of 42

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breach within such thirty (30) day period and thereafter fails to diligently prosecute such breach to completion; or

5.1.5 Filing of a petition in bankruptcy by or against any Party or appointment of a receiver or trustee of any property of any Party, or an assignment by any Party for the benefit of creditors, or adjudication that such Party is insolvent by a court, and the failure of such Party to cause such petition, appointment, or assignment to be removed or discharged within ninety (90) days.

5.1.6 The failure to comply with any of the requirements of Section 6 below.

5.1.7 The failure to maintain, or the cancellation of, any of the bonds described in Section 2.4.9 prior to the issuance of a Certificate of Completion.

5.2 Remedies.

5.2.1 Remedies Prior to the Close of Escrow. In the event of a Default by any Party prior to the Close of Escrow, the non-defaulting Party shall have the right to terminate this Agreement (provided it is not in Default of its obligation under this Agreement), by delivering written notice thereof to the defaulting Party. Such Party may seek against the defaulting Party any available remedies at law or equity, including but not limited to, the right to receive damages (excluding damages for lost profits) or to pursue an action for specific performance.

5.2.2 Remedies for Default After the Close of Escrow. In the event of a Default by any Party after the Close of Escrow, a non defaulting party shall be entitled to the following remedies, as applicable:
(i) A defaulting Party shall be liable to the non-defaulting Party for all damages, costs and losses incurred by the non-defaulting Party, and the non-defaulting Party may seek against the defaulting Party any available remedies at law or equity, including but not limited to the right to receive damages or to pursue an action for specific performance; and
(ii) Prior to the issuance of the Certificate of Completion, the City shall have the following right of reversion in the event that that the Developer fails to timely complete grading, timely commence vertical construction, or timely complete the Improvements as required by the Schedule of Performance (as extended by Force Majeure Delays):

If the Developer fails to timely complete the Improvements by the deadline in the Schedule of Performance (as extended by Force Majeure Delays), the City may terminate this Agreement and reenter and take possession of the Property and all Improvements thereon, and revest in the City title to the Property theretofore conveyed to the Developer (or its successors in interest) and the Improvements, take any and all actions necessary to commence and complete the enforcement of its reversionary interest, and in such event the Developer agrees to promptly take all actions and to execute all documents necessary to revert title to the Property and Improvements DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 178 of 316Attachment 2 Page 21 of 42

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to the City free and clear of all liens and encumbrances created by or with the consent of the Developer.

Upon re-vesting in the City of title to the Property and Improvements as provided in this Section, the City shall, use good faith efforts to resell the same pursuant to a disposition and development agreement, and upon such resale, the proceeds thereof shall be applied as follows:

1. First, to reimburse the City for any payment made by the City to any holder of a lien on the Project or any parties thereof or interest therein to cause such lien to be released or reconveyed;

2. Second, to reimburse the City for all costs and
expenses incurred by the City, including but not limited to salaries of personnel and legal fees incurred in connection with the recapture, management, and resale of the Property and Improvements and (but less any income derived by the City from any part of the Property in connection with such management); all taxes, installments of assessments payable prior to resale, and applicable water and sewer charges with respect to the Property and Improvements or any portion thereof; and expenditures made or obligations incurred with respect to the making or completion of the Project; and any amounts otherwise owed to the City by the Developer.

3. Third, to reimburse the City for other damages by
reason of the Developer’s default.

4. Fourth, to reimburse the Developer for:
(a) The lesser of the reasonable cost or the fair
market value of the improvements the
Developer has placed on the Property or
applicable portion thereof at the Developer’s
cost (i.e., using equity and not loan funds);
less
(b) The gains or income withdrawn or made by
the Developer from the Property and
Improvements.

5. Fifth, any balance remaining after such
reimbursements shall be retained by the City as its property.

5.3 No Speculation. The rights established in this Article are to be interpreted in light of the fact that the City will convey the Property to the Developer for development and operation of the Project thereon and not for speculation in undeveloped land or for construction of different improvements.

5.4 No Personal Liability.

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5.4.1 No representative, agent, attorney, consultant, or employee of the City shall personally be liable to the Developer or any successor in interest of the Developer, in the event of any Default or breach by the City, or for any amount which may become due to the Developer or any successor in interest, on any obligation under the terms of this Agreement.

5.4.2 Developer, its officers, directors, members, managers, partners, agents, representatives, employees, contractors, or vendors shall not have any personal liability under this Agreement, and the City’s sole remedies for any such breach or default under any provision of this Agreement shall be limited to (i) the Deposit (only in the event that a Developer breach or default should occur prior to Close of Escrow), or (ii) the applicable remedies set forth in Section 5.2 above.

5.5 Rights and Remedies are Cumulative. The rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the non-defaulting Party; provided, however, that liquidated damages specified herein shall constitute the sole damages recoverable for the default giving rise to such liquidated damages.

5.6 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive either such Party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. The acceptance by a Party of less than the full amount due from the other party shall not constitute a waiver of such Party’s right to demand and receive the full amount due, unless such Party executes a specific accord and satisfaction.

5.7 Force Majeure. Following the Close of Escrow, and notwithstanding anything to the contrary in this Agreement, nonperformance shall be excused when performance is prevented or delayed by reason of any of the following forces reasonably beyond the control of such party (a “Force Majeure Delay”): (i) failure to perform by the Developer attributable to any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party hereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body, moratorium on the issuance by any applicable governing authority of any licenses, permits, or other governmental approvals, public health crises including, pandemics (including COVID-19) and epidemics; and (ii) delay attributable to severe weather, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion, or any other similar cause beyond the reasonable control of the party from whom performance is required. Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the performance of the party affected for a period of time equal to any such prevention, delay or stoppage (except the obligations of either party to pay money to the other party or to close escrow) provided that the Party claiming the Force Majeure Delay notifies the other Party of the Force Majeure Delay within a reasonable time (not to exceed ten (10) business days) after the commencement of the Force Majeure Delay.

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6. INSURANCE; INDEMNITY.

6.1 Insurance.

6.1.1 From and after the Close of Escrow, during construction of the Project, and until the issuance of the Certificate of Completion, the Developer shall obtain and maintain at no cost or expense to the City, with a reputable and financially responsible insurance company reasonably acceptable to the City, (i) commercial broad form general liability insurance, insuring against claims and liability for bodily injury, death, or property damage arising from the construction, use, occupancy, condition, or operation of the Property, which liability insurance shall provide combined single limit protection of at least $1,000,000 and shall include contractual liability coverage and products and completed operations coverage.. Such liability insurance policies shall name the City and their council members, board members, officers, agents and employees as additional insureds.

6.1.2 Before commencement of any construction work by the Developer on any portion of the Property owned by the Developer, the Developer shall obtain and maintain in force until completion of such work (i) “all risk” builder’s risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to the City, and (ii) workers’ compensation insurance covering all persons employed by the Developer in connection with work on the Project, or any portion thereof. During the construction of Improvements on any portion of the Property by the Developer, such builder’s risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors’, subcontractors’, and construction managers’ tools and equipment and property owned by contractors’ and subcontractors’ employees.

6.1.3 Each architect and each engineer engaged by the Developer shall provide professional liability insurance with a limit of liability of at least One Million Dollars ($1,000,000.00).

6.1.4 The Developer shall also furnish or cause to be furnished to the City evidence satisfactory to the City that any contractor with whom it has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers’ compensation insurance as required by law.

6.1.5 With respect to each policy of insurance required above, the Developer and each of the Developer’s general contractors, engineers and architects shall furnish to the City a certificate on the insurance carrier’s form setting forth the general provisions of the insurance coverage promptly after written request by the City showing the additional insureds.

The certificate shall also be furnished by the Developer prior to commencement of construction of any Improvements.

6.1.6 All such policies required by this Section shall contain (i) language to the effect that the policies cannot be cancelled or materially changed except after thirty (30) days’ written notice by the insurer to the City, and (ii) a waiver of the insurer of all rights of subrogation against the City and the other additional insureds. All such insurance shall have deductibility limits which shall be commercially reasonable.

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6.2 Indemnity. From and after the execution of this Agreement, the Developer hereby agrees to indemnify, defend, protect, and hold harmless the City (as a third party beneficiary) and any and all agents, employees, representatives, council members, board members, consultants, and officers of the City, from and against all losses, liabilities, claims, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out of pocket litigation costs and reasonable attorneys’ fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with:
(i) the validity of this Agreement;
(ii) the development and construction by the Developer of the Improvements on the Property or the use, ownership, management, occupancy, or possession of the Property during the Developer’s period of ownership of the Property, including, without limitation, any and all claims for prevailing wages under or noncompliance with California Labor Code Sections 1720 et seq.; (iii) any breach or Default by the Developer hereunder (subject to any liquidated damages provisions otherwise contained in this Agreement); (iv) any of the Developer’s activities on the Property (or the activities of the Developer’s agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on the Property), regardless of whether such losses and liabilities shall accrue or are discovered before or after termination or expiration of this Agreement, except to the extent such losses or liabilities are caused by the negligence or willful misconduct of the City. The City may in its discretion, and at their own cost, participate in the defense of any legal action naming the City; or (v) any claims for commissions or other compensation by the Developer’s Broker (described in Section 7.1(iv) below).

The provisions of this Section shall survive the Close of Escrow or the termination of this Agreement.

7. REPRESENTATIONS AND WARRANTIES.

7.1 Developer Representations. The Developer represents and warrants to the City as of the date of this Agreement and as of the Close of Escrow that:
(i) the Developer is a corporation validly existing and in good standing under the laws of the State of California.
(ii) the Developer has duly authorized the execution and performance of this Agreement and the execution and performance of all of the closing documents set forth herein.

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(iii) the Developer’s execution and performance of this Agreement and the closing documents will not violate any deed of trust, lease, contract, agreement, instrument, order, judgment or decree by which the Developer is bound. (iv) the Developer has engaged Eric Dakin DBA Dakin & Dakin Commercial Real Estate Services (the “Broker”) with respect to the purchase of the Property.

7.2 City Representation. The City hereby represents and warrants to the Developer that the City has not engaged a broker with respect to the purchase of the Property as contemplated herein. The City shall be solely responsible for the payment of commissions due the Broker in an amount equal to three percent (3%) of the Purchase Price, due in full upon Close of Escrow.

8. GENERAL PROVISIONS.

8.1 Notices. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by reputable overnight messenger. Notices shall be considered given upon the earlier of (a) one business day following deposit or delivery with a nationally recognized overnight courier delivery charges prepaid, or (b) upon delivery or attempted delivery as shown on the return receipt if sent by certified mail. Notices shall be addressed as provided below for the respective Party; provided that if any Party gives notice in writing of a change of name or address, notices to such Party shall thereafter be given as demanded in that notice:

City: City of Fairfield
1000 Webster Street, 2nd Floor
Fairfield, CA 94533
Attn: City Manager
Developer: Lionext Inc.

Attn: Tony Lin
13021 Leffingwell Road
Santa Fe Spring, CA 90670

8.2 Construction. The Parties agree that each Party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties.

8.3 Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words “person” and “party” include corporation, partnership, firm, trust, or association wherever the context so requires.

Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed by excluding the first day and including the last day. If the date for performance falls on a Saturday, Sunday, or legal holiday, the date for performance shall be extended to the next business day. All references in this Agreement to a number of days in which either party shall DocuSign Envelope ID: 5937FD59-76BA-4D83-A1A7-4D1D57218F12 Packet Page 183 of 316Attachment 2 Page 26 of 42

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have to consent approve or perform shall mean calendar days unless specifically stated to be business days.

8.4 Time of the Essence. Time is of the essence of this Agreement.

8.5 Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys.

8.6 Attorneys’ Fees. If any Party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing Party in any such action shall be entitled to its reasonable attorneys’ fees to be paid by the losing Party as fixed by the court. If the City is made a party to any litigation instituted by or against the Developer or to any litigation attacking the validity of this Agreement, then the Developer shall indemnify and defend the City against, and save them harmless from, all costs, expenses (including reasonable attorneys’ fees), claims, liabilities, damages and losses incurred by the City in connection with such litigation provided, however, that in no event shall the Developer be obligated to pay any damages awarded to any person or entity that result from the negligence or willful misconduct of the City.

8.7 Entire Agreement. This Agreement, together with all attachments and exhibits hereto, and all agreements executed pursuant hereto, constitutes the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter hereof.

8.8 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.

8.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties, and there are no third party beneficiaries of this Agreement. No other person shall have any right of action based upon any provision of this Agreement.

8.10 Governing Law; Jurisdiction; Service of Process. This Agreement and the rights of the Parties shall be governed by California law. The Parties consent to the exclusive jurisdiction of the California Superior Court for the County of Solano. If any legal action is commenced by Developer against the City, or by the City against the Developer, service of process on the City shall be made by personal service upon the executive director or secretary of the City, or in such other manner as may be provided by law. If any legal action is commenced by the City against the Developer, service of process on the Developer shall be made by personal service on Tony Lin, or in such other manner as may be provided by law.

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8.11 Survival. The provisions hereof shall not merge into, but rather shall survive, any conveyance hereunder (including, without limitation, the delivery and recordation of the Grant Deed) and the delivery of all consideration.

8.12 City Actions. In addition to any provisions of this Agreement that gives the City Manager the authority to make decisions and grant approvals, the City hereby authorizes the City Manager to deliver such approvals, consents as are contemplated by this Agreement, waive requirements under this Agreement, and modify this Agreement, on behalf of the City provided that the applicable approval, consent, waiver or modification is not substantial (i.e., does not change the fundamental business transaction between the Developer and the City, as determined by the City Manager in his reasonable discretion).

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

8.14 Electronic Delivery. This executed Agreement may be delivered electronically by email/PDF to [email protected] for the City and to [email protected] and [email protected] for the Developer.

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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the day and year first above written.

DEVELOPER:

LIONEXT INC.,
a California corporation

By: ____________________________
Print Name: _____________________
Title: __________________________

CITY:

CITY OF FAIRFIELD,
a municipal corporation
By:

Print Name:

Title:

ATTEST:

, City Clerk
APPROVED AS TO FORM:

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Tony Lin
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EXHIBIT “A”

LEGAL DESCRIPTION OF PROPERTY

The land referred to is situated in the State of California, County of Solano, City of Fairfield, and is describes as follows:

PARCEL 1, AS SHOWN ON THE MAP ENTITLED: “PARCEL MAP FAIRFIELD-CORDELIA INDUSTRIAL PARK, BEING A PORTION OF SECTION 12, TOWNSHIP 4 NORTH, RANGE 3 WEST, MOUNT DIABLO BASE & MERIDIAN, CITY OF FAIRFIELD, CALIFORNIA”, FILED FOR RECORD IN THE OFFICE OF THE SOLANO COUNTY RECORDER ON APRIL 7, 1978, IN BOOK 15 OF PARCEL MAPS, PAGE 1.

APN:0180-130-010
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EXHIBIT “B”

FORM OF GRANT DEED

RECORDING REQUESTED BY

AND WHEN RECORDED RETURN TO,
AND MAIL TAX STATEMENTS TO:

Lionext Inc.
13021 Leffingwell Road
Santa Fe Spring, CA 90670
APN: 0180-130-010
(Space above for Recorder’s Use)
Exempt From Recording Fee Per Government Code Section 27383 Documentary transfer tax is $ , based on the full value of the property conveyed. Property is in the City of Fairfield, County of Solano.

GRANT DEED
The undersigned grantor(s) declare(s):

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF FAIRFIELD (the “Grantor”) hereby GRANTS to LIONEXT INC., a California Corporation (the “Grantee”) the land (the “Property”) located in the City of Fairfield, County of Solano, State of California described on Exhibit “A”.

SUBJECT TO, all matters of record and all matters visible upon inspection.

1. This grant of the Property is subject to the terms of a Disposition and Development Agreement entered into by and between the Grantor and the Grantee dated as of ________, 2021 (the “DDA”) the terms of which are incorporated herein by reference (and which include the matters described in Section 2 and 3 below). A copy of the Agreement is available for public inspection at the offices of the Grantor at 1000 Webster Street, 2nd Floor, Fairfield, CA 94533.

2. As provided in, and subject to the provisions contained in, Section 5.2.2 of the DDA, the Grantor shall have the right, at its option, to reenter and take possession of the Property hereby conveyed, with all improvements thereon and to terminate and revest in the Grantor the Property hereby conveyed to the Grantee (or its successors in interest).

3. The Grantee covenants, for itself and its successors in interest, that there shall be no sale, transfer, assignment, conveyance, lease, pledge or encumbrance of the DDA, or the Property and the Improvements thereon or any part thereof, or of ownership interests in the Grantee in violation of the DDA, which contains restrictions on the assignment of the DDA and the transfer of interests in the Property.

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4. All covenants contained in this Grant Deed shall be covenants running with the land.

IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of the date set forth below.

Dated: ________________, 2022

CITY OF FAIRFIELD
By:

Print Name:

Title:

ATTEST:
__________________________________________
, City Clerk

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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT

State of California )
County of _____________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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

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EXHIBIT A TO GRANT DEED
The land referred to is situated in the State of California, County of Solano, City of Fairfield, and is describes as follows:

PARCEL 1, AS SHOWN ON THE MAP ENTITLED: “PARCEL MAP FAIRFIELD-CORDELIA INDUSTRIAL PARK, BEING A PORTION OF SECTION 12, TOWNSHIP 4 NORTH, RANGE 3 WEST, MOUNT DIABLO BASE & MERIDIAN, CITY OF FAIRFIELD, CALIFORNIA”, FILED FOR RECORD IN THE OFFICE OF THE SOLANO COUNTY RECORDER ON APRIL 7, 1978, IN BOOK 15 OF PARCEL MAPS, PAGE 1.

APN:0180-130-010
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EXHIBIT “C”

SCHEDULE OF PERFORMANCE
This Schedule of Performance requires the submission of plans or other documents at specific times. Some of the submissions are not described in the text of the Agreement. Such plans or other documents, as submitted, must be complete and adequate for review by the City or other applicable governmental entity when submitted. Prior to the time set forth for each particular submission, the Developer shall consult with City staff informally as necessary concerning such submission in order to assure that such submission will be complete and in a proper form within the time for submission set forth herein.

Action Date / Deadline

Items 1 – 10 Relate to Developer Actions and Requirements Prior to or through/at the Close of Escrow

1. Opening of Escrow. The Parties shall
deliver a copy of this executed
Agreement to, and open escrow with,
the Escrow Holder.

Within five (5) business days after the execution
of this Agreement

2. Preliminary Project Budget. The
Developer shall submit a preliminary
Project Budget for the Improvements.

Prior to expiration of the Due Diligence Period

3. Preliminary Plans. Developer shall
submit preliminary Plans and
Specifications to the City.

Prior to expiration of the Due Diligence Period.

4. Design Development Plans. Developer
shall submit interim “design
development” Plans and Specifications
to the City.

Not later than sixty (60) days following the City’s
execution and delivery of the DDA.

5. Final Plans and Specifications. The
Developer shall submit the Final Plans
and Specifications for City approval.

Within one hundred eighty (180) days after the
City’s execution and delivery of the DDA.

6. Building Permits. The Developer shall
obtain the Building Permit for the
construction of the Improvements.

Prior and as a condition to the Close of Escrow.

7. Construction Contract. The Developer
shall submit the construction contract
for the construction of the
Improvements to the City for approval.

Prior and as a condition to the Close of Escrow.

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Action Date / Deadline

8. Performance and Payment Bonds. The
Developer shall deliver to the City
copies of the required performance and
payment bonds per Section 2.4.9.

Prior and as a condition to the Close of Escrow.

9. Insurance. The Developer shall submit
evidence of insurance to the City.

Prior and as a condition to the Close of Escrow.

10. Project Budget. The Developer shall
submit the Project Budget to City
together with reasonable evidence that
all equity required will be available at
the Closing.

Prior and as a condition to the Close of Escrow.

Items 11 – 16 Relate to the Conveyance of the Property and Developer Actions and Requirements After the Close of Escrow

11. Close of Escrow. The Developer shall
purchase the Property from the City and
shall concurrently close the
Construction Loan.

No later than one hundred eighty (180) days
from the date of this Agreement.

12. Commencement of Construction.

Developer shall substantially
commence the Improvements.

Within one hundred eighty (180) days of
Developer receipt of Building Permits.

13. Completion of Grading. Developer
shall substantially complete the grading
for the Project.

Within one hundred eighty (180) days following
Commencement of Construction.

14. Commencement of Vertical
Construction. Developer shall
commence vertical construction.

Within thirty (30) days following Completion of
Grading.

15. Qualification for Certificate of
Completion. The Project shall qualify
for a Certificate of Completion.

Within twenty-four (24) months following
Commencement of Vertical Construction.

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EXHIBIT “D”

SCOPE OF DEVELOPMENT

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EXHIBIT “E”

FORM OF CERTIFICATE OF COMPLETION

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

Lionext Inc.
13021 Leffingwell Road
Santa Fe Spring, CA 90670
APN: 0180-130-010

(Space Above for Recorder’s Use Only)
This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383.

CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the “Certificate”) is made by the CITY OF FAIRFIELD (the “City”), in favor of LIONEXT INC.

R E C I T A L S
A. The City and Lionext Inc. have entered into that certain unrecorded Disposition and Development Agreement (the “DDA”) dated as of , 2021 concerning the development of certain real property situated in the City of Fairfield, California, described in Exhibit “A” attached hereto (the “Site”).

B. As described in Section 3.11 of the DDA, the City is required to furnish a Certificate of Completion upon completion of construction of the “Project” (as defined in the DDA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder’s Office of Solano County. This Certificate is conclusive determination of satisfactory completion of the construction and development required by the DDA.

C. The City has conclusively determined that the construction and development of the Project has been satisfactorily completed.

NOW, THEREFORE, the City hereby certifies as follows:

1. The City does hereby certify that the Project to be constructed under the DDA has been fully and satisfactorily completed in full conformance with the DDA.

2. This Certificate shall not constitute evidence of compliance with or satisfaction of any obligation to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Site, or any part thereof.

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3. This Certificate shall not constitute evidence of compliance with those covenants in the DDA that survive the issuance of this Certificate.

4. This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093.

5. Nothing contained in this instrument shall modify in any other way any other provisions of the DDA (including without limitation the attachments thereto).

IN WITNESS WHEREOF, the City has executed this Certificate of Completion this ___ day of ________________, 2022.

CITY OF FAIRFIELD
By:

ATTEST:

, City Clerk

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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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

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EXHIBIT “A”

LEGAL DESCRIPTION

PARCEL 1, AS SHOWN ON THE MAP ENTITLED: “PARCEL MAP FAIRFIELD-CORDELIA INDUSTRIAL PARK, BEING A PORTION OF SECTION 12, TOWNSHIP 4 NORTH, RANGE 3 WEST, MOUNT DIABLO BASE & MERIDIAN, CITY OF FAIRFIELD, CALIFORNIA”, FILED FOR RECORD IN THE OFFICE OF THE SOLANO COUNTY RECORDER ON APRIL 7, 1978, IN BOOK 15 OF PARCEL MAPS, PAGE 1.

APN:0180-130-010
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Agenda Item No: 16.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gassaway, Interim City Manager
SUBJECT:Resolution 2022­11 of the City Council of the City of Fairfield Authorizing the City Manager to Execute Updated Professional Services Agreements Between the City of Fairfield and the Following Plan Review and Inspection Consulting Firms: Bureau Veritas North America, CSG Consultants, Interwest, Shums Coda, and TRB + Associates
RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
Challenges in finding qualified staff necessitate increased use of consultant services to maintain consistent plan review turn­around times. There is a need to be flexible with increases in work demand and staffing fluctuations.

DISCUSSION
The Building Safety Division has a heavy workload and has difficulties hiring qualified plan review and inspection staff. This lack of staffing has forced many plan reviews and some inspections to be performed by consultants.

Early last year, the division anticipated potential workload and staffing shortages. As a result, a Request for Qualifications (RFQ) was put forth to find plan review and inspection consulting firms to fill as needed plan review and inspection services. At the beginning of this fiscal year (FY 2021­2022), the Building Safety Division executed six contracts with different firms for as­needed services. Each contract was set not to exceed $100,000.

Currently, the division has six vacant funded positions and is recruiting for two plan review positions, two inspector positions, and one permit technician position. The current climate and job market have made finding qualified staff challenging. Consequently, the division has had to utilize some consulting firms more than anticipated to maintain services.

The prolonged need for consultant services has resulted in the division approaching contract maximums for several firms. In a proactive effort to ensure the division maintains the flexibility to cover Packet Page 200 of 316

Agenda Item No: 16.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gassaway, Interim City ManagerSUBJECT:Resolution 2022­11 of the City Council of the City of Fairfield Authorizing the CityManager to Execute Updated Professional Services Agreements Between the City ofFairfield and the Following Plan Review and Inspection Consulting Firms: BureauVeritas North America, CSG Consultants, Interwest, Shums Coda, and TRB +Associates RECOMMENDED ACTIONAdopt resolution. STATEMENT OF ISSUEChallenges in finding qualified staff necessitate increased use of consultant services to maintainconsistent plan review turn­around times. There is a need to be flexible with increases in work demandand staffing fluctuations.DISCUSSIONThe Building Safety Division has a heavy workload and has difficulties hiring qualified plan review andinspection staff. This lack of staffing has forced many plan reviews and some inspections to beperformed by consultants. Early last year, the division anticipated potential workload and staffing shortages. As a result, a Requestfor Qualifications (RFQ) was put forth to find plan review and inspection consulting firms to fill asneeded plan review and inspection services. At the beginning of this fiscal year (FY 2021­2022), theBuilding Safety Division executed six contracts with different firms for as­needed services. Eachcontract was set not to exceed $100,000. Currently, the division has six vacant funded positions and is recruiting for two plan review positions, twoinspector positions, and one permit technician position. The current climate and job market have madefinding qualified staff challenging. Consequently, the division has had to utilize some consulting firmsmore than anticipated to maintain services.

The prolonged need for consultant services has resulted in the division approaching contract maximums for several firms. In a proactive effort to ensure the division maintains the flexibility to cover staffing gaps, new contracts with some firms are being proposed. The new contract amounts are proposed at $250,000 maximum.

FINANCIAL IMPACT
There are five proposed contracts. Each contract shall be for five years and shall not exceed $250,000 without an amendment and council approval. The total combined expenditures or services from all consultants shall not result in an amount that would exceed the division’s annual budget without prior authorization for necessary budget adjustments. Currently, the division has six funded vacancies, one engineering plans examiner/associate civil engineer ($158,091), one building plans examiner ($131,850), one senior building inspector ($144,072), two building inspectors ($126,798 each), and a permit technician ($110,528). These position funds will be used to fund as­needed services until filled, as increased workload requires and revenues allow. As these are as­needed services, it is challenging to determine expenditure amounts per account. However, over the five­year contract period, it is estimated plan review expenditures could reach $750,000 (Account Code 011­45­004­7005), and inspection services could get $500,000 (Account Code 011­45­003­8911).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
N/A
ALTERNATIVE ACTION
Council may choose not to adopt the resolution, limiting contract expenditures to $100,000 and drastically reducing services.

STAFF CONTACT
Jeff Thomas, Chief Building Official
(707) 428­7442
[email protected]
COORDINATED WITH
City Attorney's Office
ATTACHMENTS:

Description
Attachment 1: Proposed Resolution
Attachment 2: Exhibit A Proposed Agreement Bureau Veritas Attachment 3: Exhibit B Proposed Agreement CSG
Attachment 4: Exhibit C Proposed Agreement Interwest
Attachment 5: Exhibit D Proposed Agreement Shums Coda
Attachment 6: Exhibit E Proposed Agreement TRB
REVIEWERS:

Reviewer Action Date
Thomas, Jeff Approved 1/4/2022 ­ 7:53 PM
Gassaway, David Approved 1/11/2022 ­ 10:38 AM
Alexander, Amber Approved 1/11/2022 ­ 11:41 AM
Alexander, Amber Approved 1/11/2022 ­ 11:42 AM
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CITY OF FAIRFIELD

RESOLUTION NO. 2022-11

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD AUTHORIZING THE CITY

MANAGER TO EXECUTE UPDATED PROFESSIONAL SERVICES AGREEMENTS BETWEEN THE CITY OF FAIRFIELD AND THE FOLLOWING PLAN REVIEW AND INSPECTION CONSULTING FIRMS:

BUREAU VERITAS NORTH AMERICA, CSG CONSULTANTS, INTERWEST, SHUMS CODA, AND TRB + ASSOCIATES

WHEREAS, in February 2021, the Building Safety Division put forth a Request for Qualifications (RFQ) to procure firms for as needed plan review and or inspection services; and

WHEREAS, during the months of July and August 2021 six firms were awarded five-year as needed service contracts for up to $100,000; and

WHEREAS, staffing shortages have caused the need to utilize consultant services at a much higher rate than anticipated; and

WHEREAS, some consultant service expenditures are approaching the $100,000 existing contract amounts; and

WHEREAS, to ensure there is no interruption in services during the process of hiring permanent staffing, the division is seeking to execute new contracts with the Bureau Veritas North America, CSG Consultants, Interwest, Shums Coda, and TRB + Associates, in the amount not to exceed $250,000 per contract for as needed services through June 30, 2026; and

WHEREAS, these as-needed services are cost recovered through permit fees for plan review and inspection services.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:

Section 1. The city manager is hereby authorized and directed to execute, on behalf of the City of Fairfield, the Consultant Service Agreements with the above-named firms, in substantially the form as attached hereto as Exhibits A, B, C, D, and E, as approved by the city attorney.

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RES. NO. 2022-11

Section 2. The city manager or designee is hereby authorized to do all things necessary to implement the above-mentioned contracts.

PASSED AND ADOPTED this 18th day of January, 2022, by the following vote:

AYES: COUNCILMEMBERS: PRICE / BERTANI / MOY / PANDURO/ TIMM / TONNESEN / VACCARO

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

MAYOR

ATTEST:

____________________________

CITY CLERK
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Consultant Services Agreement
Building Safety Division Plan Check and Inspection Services

CONSULTANT SERVICES AGREEMENT

AGREEMENT FOR PLAN REVIEW AND INSPECTION SERVICES
THIS AGREEMENT is made at Fairfield, California, as of ________________, 2022, by and between the City of Fairfield, a municipal corporation (the “CITY") and CSG Consultants ("CONSULTANT"), WHEREAS the CITY desires to retain plan review and field inspection services on an as needed basis, and

WHEREAS CONSULTANT is willing to provide such services and represents that it is knowledgeable and duly qualified to do so,

NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, the parties hereby agree as follows:

1) SCOPE OF WORK. Subject to the terms and conditions set forth in this Agreement, CONSULTANT shall provide to the CITY the services described in Exhibit “A.” CONSULTANT shall provide said services at the time, place, and in the manner specified in Exhibit “A.” 2) PAYMENT. CITY shall pay CONSULTANT for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit “B.” The payments specified in Exhibit “B” shall be the only payments to be made to CONSULTANT for services rendered pursuant to this Agreement. CONSULTANT shall submit all billings for said services to the CITY in the manner specified in Exhibit “B”. Hourly rate services shall be paid per the hourly rate schedule in Exhibit “E.”
3) FACILITIES AND EQUIPMENT. CONSULTANT shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement. 4) GENERAL PROVISIONS. The general provisions set forth in Exhibit “C” are part of this Agreement.

In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the provisions set forth in Exhibit “C” shall control. 5) INSURANCE REQUIREMENTS. The insurance requirements set forth in Exhibit “D” are part of this Agreement. In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the requirements set forth in Exhibit “D” shall control. 6) EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.
7) TERM. This agreement shall be in effect on the date of signing, through June 30, 2026. 8) GOVERNING LAW AND VENUE. Should either Party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Contract shall be controlled by and construed under the laws of California, excluding California’s choice of law rules. Venue for any such action relating to this Agreement shall be in the Solano County Superior Court. 9) ENTIRE AGREEMENT. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CITY and CONSULTANT. This Packet Page 216 of 316Attachment 3 Page 1 of 12

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Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties which expressly refers to this Agreement.
10) COUNTERPARTS. This Agreement may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes. 11) NOTICES. This Agreement is managed and administered on the CITY’s behalf by the individual named below. All invoices must be submitted and approved by this individual and all notices shall be given to the CITY using the following contact information:

CITY Contact: Jeff Thomas
E-mail: [email protected]
Address: 1000 Webster Street, Second Floor, Fairfield, CA, 94533 Telephone: (707) 428-7442
Notices must be given to CONSULTANT at the following:

CONSULTANT Contact: Michael Loomis
E-mail: [email protected]
Address: 550 Pilgrim Drive, Foster City, CA 94404
Telephone: (650) 522-2518
Attachments
Exhibit “A” – Scope of Work
Exhibit “B” - Payment
Exhibit “C” – General Provisions
Exhibit “D” – Insurance Requirements
Exhibit “E” – Consultant Hourly Rate Schedule

EXECUTED as of the day first above-stated.

City of Fairfield, a municipal corporation

By: _________________________________ _
David Gassaway, Acting City Manager Date

CONSULTANT

By: ________________________________ ___
Cyrus Kianpour, President Date

12-21-21
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EXHIBIT “A”

SCOPE OF SERVICE

A. SCOPE OF WORK – GENERAL

1. Services shall be performed under the direction of the Building Safety Division of the City of Fairfield on an as-needed basis for verification and/or correction to plans and specifications submitted by various applicants. These services will generally include but may not be limited to, review of civil site improvement plans and associated engineering data, and/or Building Standards Code compliance review of building architectural/structural drawings and associated supporting data, consultation services, and/or field inspection. These services may be performed based on a specific request from the project applicant for a specific project or may be performed at the request of the City for either specific or general plan check functions, consultation, or field inspection.

2. Funding of consultant plan check services requested by the City shall be the responsibility of the City.

The fees for all plan checking services shall be paid as outlined in Exhibit “B” of the contract.

3. Turnaround times for plan checks shall be as established by the City and shall be as follows:
a. Residential Plan Review – All initial plan reviews for residential projects shall be completed within 14 calendar days of notice for services. All rechecks shall be completed within 7 calendar days of notice of resubmittal.
b. Commercial plan review – All initial plan reviews for new buildings and other large commercial projects shall be completed within 21 calendar days of notice for services. All rechecks of large commercial projects shall be completed within 10 calendar days of notice of resubmittal. All initial plan reviews for small commercial projects and tenant improvements shall be completed within 14 calendar days of notice for services. All rechecks shall be completed within 7 calendar days of notice of resubmittal.
c. The city will indicate the project type and expected turn-around time on the transmittal sheet.

Where available, the City will provide access to digital drawing via email or other digital means, accompanying the transmittal sheet. If the applicant submitted paper copies, the consultant will be responsible for picking up the plan sets in person or via carrier, within 24 hours of request for service.
d. The consultant shall immediately notify the City if they are unable to meet the deadlines noted on the transmittal sheet and why. Alternative timelines (quicker or longer) may be reviewed and mutually agreed upon, in writing, on a case-by-case basis.

4. Plan checking services shall be performed in accordance with but not limited to, any or all the following, as may be relevant to the task or project:
• California Building Standards Code, City Ordinances, Design Standards, Policies, General Specifications of the City of Fairfield, and any conditions of approval relevant to the structure.
• Standard Civil Engineering and Land Surveying principles and practices.

5. Plan check methods and format shall be consistent with those methods established and used by City staff. Upon the completion of each plan check, the consultant shall provide, at minimum:
• One set of marked up prints/plans.
• Written list of comments, both hard copy and electronic file in MS Word format (electronic only ok when the submittal is only digital). Written comments shall be numbered to coordinate to the specific plan sheet and/or supporting documents in question. • A minimum of two (2) final approves sets shall be delivered to the City. The plans shall be stamped reviewed for code compliance, approved for construction, and initialed by the responsible reviewer (initial on front page only ok). All pages of the plan set shall be Packet Page 218 of 316Attachment 3 Page 3 of 12

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stamped and include the City’s permit number. Associated documents shall only need the stamp and permit number on the cover pages. For digital plan reviews, only one (1) stamped set is needed.

6. It is anticipated that projects for the Building Safety Division will typically require two to three plan reviews. If additional plan checks are required beyond 4, due to circumstances outside the control of the Consultant, the additional services shall be documented and may billed at the Consultant’s pre- approved hourly billing rate as listed in Exhibit “E.” These additional services shall only be performed upon prior approval by the City. If additional plan checks are required because of Consultant’s lack of clear correction requirements or unthorough plan reviews, no additional plan reviews will be paid.

7. The Consultant shall pick up plans for review at the City office within 24 hours of notification by the City, or the consultant may arrange for courier services at the consultant’s expense. Digital transmission of plans and documents from the applicant to the Consultant would be acceptable subject to prior approval of the City such that City incurs no additional cost or time obligation.

8. Upon completion of the plan check assignment, the Consultant shall provide a written recommendation for approval of the plans, which shall be addressed to the Chief Building Official, or their designated representatives. Approved plans for Building Permit plan review shall be delivered to the Building Safety Counter for permit processing.

9. The maximum turnaround time for plan checks shall be as noted above and will be specified at the time the work is assigned to the consultant. The consultant shall complete the work within the specified time, unless prior written approval is obtained from the Chief Building Official, or their designee(s).

Requests for extensions of the turnaround time shall be submitted in writing no later than within five (5) working days of receipt of plans and is subject to approval by the Chief Building Official.

10. Plan checks for projects within the City shall only be conducted upon pre-approval by the City.

11. The Consultant’s Lead Representative (the California Registered Civil Engineer in responsible charge and/or the California Licensed Architect in responsible charge) shall be available in person for consultation and scheduled appointments regarding assigned projects, as needed. Appointments shall be held during normal City working hours in the City office unless an alternative location is approved by the City. Any costs associated with the Lead Engineer and/or subordinates to attend meetings shall be entirely borne by the Consultant; no additional billings for meeting attendance shall be allowed or paid.

B. RECORDS
The Consultant shall maintain the following records for each project:

1. A written copy of all plan check corrections required, name of owner, name of plan preparer, City project number, project name, date the plan check was requested, and date the plan check was completed. These records shall include both hard copy and an electronic file (MS Word format).

2. Letter of recommendation of plan approval, signed, stamped, and dated by the Lead Representative at the completion of the full plan review service.

3. A written record of payment requests submitted to the City and a record of payments received.

4. A record of the hours expended in the checking process for each plan. This record shall provide hourly details by discipline (i.e., journey engineer, lead engineer, etc.).

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EXHIBIT “B”

PAYMENT

PAYMENT FOR SERVICES.

(a) PLAN REVIEW. The CITY agrees to pay, and CONSULTANT agrees to accept as payment for services rendered under this Agreement a sum amounting to EIGHTY PERCENT (80%) of the plan review fee paid by the APPLICANT to the CITY for processing of the Project PLAN REVIEWS for projects that are complete prior to requiring a third review and meeting the turn-around times as noted in the scope of work.

The CITY agrees to pay, and CONSULTANT agrees to accept as payment for services rendered under this Agreement a sum amounting to SEVENTY PERCENT (70%) of the fee paid by the APPLICANT to the CITY for processing of the Project for plan reviews that are required to have three or more reviews and meeting the turn-around times as noted in the scope of work. The CITY agrees to pay, and CONSULTANT agrees to accept as payment for services rendered under this Agreement a sum amounting to FIFTY PERCENT (50%) of the plan review fee paid by the APPLICANT to the CITY for processing of the Project PLAN REVIEWS for projects that are NOT completed within the turn-around times as noted in the scope of work.

Said amounts shall constitute the sole and full compensation for the services under this AGREEMENT; provided, however, in the event the Project requires five or more plan reviews or the APPLICANT requests that the Project be reviewed on an expedited basis or requests that the CITY provide additional services with regard to the Project, CONSULTANT shall be entitled to additional payment either on an hourly or lump sum basis as approved by the Chief Building Official to compensate CONSULTANT for overtime and other verifiable additional expenses incurred specifically to accommodate any such request by the APPLICANT. Any approved deferred submittals would be billed hourly and are subject to the timelines noted in the scope of work. Any plan reviews assigned or approved on an hourly basis shall include a note on each plan review transmittal sheet the number of hours worked for each plan review cycle. The final approval letter shall note the total number of hours worked for the hourly review. Failure to include hours worked will result in forfeiture of payment.

(b) BUILDING CODE CONSULTATION. Building Code consultation will be provided on an hourly rate referenced in Fee Schedule (Exhibit “E”) of this document.

(c) FIELD INSPECTIONS. (1) The CITY agrees to pay, and CONSULTANT agrees to accept as payment for services rendered under this AGREEMENT a sum amounting to SEVENTY PERCENT (70%) of the fee paid by the APPLICANT to the CITY for building inspection of a designated project. Said amount shall constitute the sole and full compensation for the building inspection services for said designated project under this AGREEMENT, except where the applicant requests additional services, phased inspections, and or numerous re-inspections for the same inspection type.
(2) On field inspections performed for the CITY on an as needed basis or under the provisions as extra help at times of high activity, where the CITY needs inspections performed on an intermittent or temporary continuous basis, the fee paid the CONSULTANT shall be hourly as noted on the CONSULTANT’S hourly rate schedule.

(d) CONSULTATION FEE FORFEITURE. CONSULTANT shall forfeit the increment of Plan Review Fee or Field Inspection Fee, payable by the CITY as described above for any failure to complete or provide Plan Review or Field Inspection Services within the time schedule and requirements described in Exhibit “A”, Scope of Work.

(e) LIMITATION OF FUNDS. CONSULTANT agrees and understands that payment to CONSULTANT under subsection (a) and (c)(1), above, shall be made by CITY solely from monies received by the CITY from the APPLICANT, and that payment by the APPLICANT to CITY of the required fees, including any fees Packet Page 220 of 316Attachment 3 Page 5 of 12

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required for reviewing the Project on an expedited basis, is a condition precedent to payment by the CITY to CONSULTANT hereunder. Failure of the APPLICANT to pay the CITY the monies necessary for the CITY to pay CONSUTANT shall entitle CONSULTANT, at CONSULTANT’S discretion, to suspend work on the Project.

PAYMENT SCHEDULE.

Consultant shall bill the CITY monthly for services rendered. Payments shall be made to CONSULTANT monthly in arrears. Payments shall be made on or before the 25th day of the month following the acceptance of work but no sooner than after the second plan review, subject to the restrictions set forth in Section (d), above.

CONTRACT AMOUNT.

This contract shall not exceed $250,000 without City Councill approval. In the event the City needs the Consultant’s services in excess of $250,000, an addendum will be necessary and must be approved by City Council prior to such additional services.

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EXHIBIT “C”

GENERAL PROVISIONS
1) INDEPENDENT CONSULTANT. At all times during the term of this Agreement, CONSULTANT shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONSULTANT only insofar as the results of CONSULTANT's services rendered pursuant to this Agreement; however, CITY shall not have the right to control the means by which CONSULTANT accomplishes services rendered pursuant to this Agreement.
2) LICENSES; PERMITS; ETC. CONSULTANT represents and warrants to CITY that CONSULTANT has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required for CONSULTANT to practice CONSULTANT's profession. CONSULTANT represents and warrants to CITY that CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any licenses, permits, and approvals which are legally required for CONSULTANT to practice his profession. 3) TIME. CONSULTANT shall devote such services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of CONSULTANT's obligations pursuant to this Agreement.

CONSULTANT shall adhere to the Schedule of Activities as described in their Executive Summary. 4) CONSULTANT NOT AN AGENT. Except as CITY may specify in writing, CONSULTANT shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONSULTANT shall have no authority, express or implied, pursuant to this Agreement, to bind CITY to any obligation whatsoever.
5) ASSIGNMENT PROHIBITED. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect.
6) PERSONNEL. CONSULTANT shall assign only competent personnel to perform services pursuant to this Agreement. In the event that CITY, in its sole discretion, at any time during the term of this Agreement, desires the removal of any person or persons assigned by CONSULTANT to perform services pursuant to this Agreement, CONSULTANT shall remove any such person immediately upon receiving notice from CITY of the desire of CITY for the removal of such person or persons. 7) STANDARD OF PERFORMANCE. CONSULTANT shall perform all services required pursuant to this Agreement. Services shall be performed in the manner and according to the standards observed by a competent practitioner of the profession in which CONSULTANT is engaged in the geographical area in which CONSULTANT practices his profession. All products which CONSULTANT delivers to CITY pursuant to this Agreement shall be prepared in a workmanlike manner and conform to the standards of quality normally observed by a person practicing in CONSULTANT's profession. CITY shall be the sole judge as to whether the product of the CONSULTANT is satisfactory.
8) CANCELLATION OF AGREEMENT. This Agreement may be canceled at any time by the CITY at its discretion upon written notification to CONSULTANT. CONSULTANT is entitled to receive full payment for all services performed and all costs incurred up to and including the date of receipt of written notice to cease work on the project. CONSULTANT shall be entitled to no further compensation for work performed after the date of receipt of written notice to cease work. All completed and incomplete products up to the date of receipt of written notice to cease work shall become the property of CITY. 9) PRODUCTS OF CONSULTING. All products of the CONSULTANT provided under this Agreement Packet Page 222 of 316Attachment 3 Page 7 of 12

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shall be the property of the CITY.
10) INDEMNIFY AND HOLD HARMLESS.
a) If AGREEMENT is an agreement for design professional services subject to California Civil Code § 2782.8(a) and CONSULTANT is a design professional, as defined in California Civil Code § 2782.8(c)(2), to the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY and its elected officials, officers, agents, employees and designated volunteers (collectively “CITY Indemnitees”) from and against any and all claims, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. CONSULTANT’s duty to defend shall consist of reimbursement of defense costs incurred by CITY in direct proportion to the CONSULTANT’s proportionate percentage of fault. CONSULTANT’s percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’s percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT’s proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to the CITY. b) If AGREEMENT is not an agreement for design professional services subject to California Civil Code § 2782.8(a) or CONSULTANT is not a design professional as defined in California Civil Code § 2782.8(c)(2), to the fullest extent allowed by law, CONSULTANT shall indemnify, defend, and hold harmless the CITY Indemnitees from all claims, suits, or actions of every name, kind and description, brought forth on account of injuries to or death of any person or damage to property arising from or connected with the willful misconduct, negligent acts, errors or omissions, ultra-hazardous activities, activities giving rise to strict liability, or defects in design by CONSULTANT or any person directly or indirectly employed by or acting as agent for CONSULTANT in the performance of this Agreement, including the concurrent or successive passive negligence of the CITY Indemnitees.

It is understood that the duty of CONSULTANT to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code.

Acceptance of insurance certificates and endorsements required under this Agreement does not relieve CONSULTANT from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies are determined to be applicable to any such damages or claims for damages.

CONSULTANT’S responsibility for such defense and indemnity shall survive termination or completion of this agreement for the full period of time allowed by law. 11) PROHIBITED INTERESTS. No employee of the CITY shall have any direct financial interest in this agreement. This agreement shall be voidable at the option of the CITY if this provision is violated. 12) LOCAL EMPLOYMENT POLICY. The CITY desires wherever possible, to hire qualified local residents to work on city projects. Local resident is defined as a person who resides in Solano County. The CITY encourages an active affirmative action program on the part of its contractors, consultants, and developers.

When local projects require, subcontractors, contractors, consultants and developers will solicit proposals from qualified local firms where possible.

As a way of responding to the provisions of the Davis-Bacon Act and this program, contractor, consultants, and developers will be asked, to provide no more frequently than monthly, a report which lists the employee's name, job class, hours worked, salary paid, city of residence, and ethnic origin.

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13) CONSULTANT NOT A PUBLIC OFFICIAL. CONSULTANT is not a "public official" for purposes of Government Code §§ 87200 et seq. CONSULTANT conducts research and arrives at his or her conclusions, advice, recommendation, or counsel independent of the control and direction of the CITY or any CITY official, other than normal contract monitoring. In addition, CONSULTANT possesses no authority with respect to any CITY decision beyond these conclusions, advice, recommendation, or counsel. 14) EMPLOYMENT DEVELOPMENT DEPARTMENT REPORTING REQUIREMENTS. When the CITY executes an agreement for or makes payment to CONSULTANT in the amount of $600 (six hundred dollars) or more in any one calendar year, CONSULTANT shall provide the following information to CITY to comply with Employment Development Department (EDD) reporting requirements:
a) Whether CONSULTANT is doing business as a sole proprietorship, partnership, limited liability partnership, corporation, limited liability corporation, non-profit corporation or other form of organization. b) If CONSULTANT is doing business as a sole proprietorship, CONSULTANT shall provide the full name, address, and social security number of the sole proprietor. c) If CONSULTANT is doing business as other than a sole proprietorship, CONSULTANT shall provide CONSULTANT’S federal tax identification number.

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EXHIBIT “D”

INSURANCE REQUIREMENTS
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONSULTANT, its agents, representatives, or employees. 1) MINIMUM SCOPE AND LIMITS OF INSURANCE
a) Commercial General Liability coverage (occurrence Form CG 00 01) with minimum limits of $1,000,000 per occurrence for bodily injury, personal injury, products and completed operations, and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
b) Automobile Liability coverage (Form CA 00 01 with Code 1 – any auto) with minimum limits of $1,000,000 per accident for bodily injury and property damage. c) Workers’ Compensation insurance as required by the State of California and Employers’ Liability insurance, each in the amount of $1,000,000 per accident for bodily injury or disease. 2) INDUSTRY SPECIFIC COVERAGES
If checked below, the following insurance is also required.

Professional Liability Insurance / Errors and Omissions Liability in the minimum amount of $1,000,000 per occurrence.

Pollution Liability Insurance in the minimum amount of $1,000,000 per occurrence Garage Keepers Insurance in the minimum amount of $1,000,000 per occurrence Fidelity / Crime / Dishonesty Bond in the minimum amount of $____________ MCS-90 Endorsement to Business Automobile insurance for transportation of hazardous materials and pollutants
Builder’s Risk / Course of Construction Insurance in the minimum amount of $__________.

3) INSURANCE PROVISIONS
a) DEDUCTIBLES AND SELF-INSURED RETENTIONS. Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials, employees, and volunteers; or the CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. b) The general and automobile liability policies (and if applicable, pollution liability, garage keepers liability and builder’s risk policies) are to contain, or be endorsed to contain, the following provisions:

X

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i) The CITY, its officers, officials, employees, and volunteers are to be covered as insureds as respects:
liability arising out of work or operations performed by or on behalf of the CONSULTANT; products and completed operations of the CONSULTANT; premises owned, occupied or used by the CONSULTANT; and automobiles owned, leased, hired or borrowed by the CONSULTANT. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees or volunteers.
ii) For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or self-insured maintained by the CITY, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it. iii) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. iv) The CONSULTANT’S insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. v) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the CITY. vi) The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated above shall not serve to reduce the CONSULTANT’S policy limits of coverage.

Therefore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater. c) ACCEPTABILITY OF INSURER. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the CITY.

VERIFICATION OF COVERAGE. CONSULTANT shall furnish the CITY with original endorsements effecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf; on forms equivalent to CG 20 10 11 85, subject to CITY approval; and submitted electronically through the Exigis insurance system to: [email protected]. All insurance certificates and endorsements are to be received and approved by the CITY before work commences.

At the request of the CITY, CONSULTANT shall provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. d) SUB-CONTRACTORS. CONSULTANT shall require all subcontractors to procure and maintain insurance policies subject to the requirements of Exhibit D. Failure of CONSULTANT to verify existence of sub- contractor’s insurance shall not relieve CONSULTANT from any claim arising from sub-contractors work on behalf of CONSULTANT.

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EXHIBIT “E”

CONSULTANT HOURLY RATE SCHEDULE

REVIEW TYPE / ROLE ALL INCLUSIVE FEE / HOURLY RATE
Building Plan Review $125
CASp Consultation / Inspection $135
Combination Building Inspector (for work unrelated to an inspection project)
$115
Certified Permit Technician $85
Overtime 1.5 x Hourly Rate
Holidays & Weekends 2x Hourly Rate
All hourly rates reflect costs including salaries, benefits, workers’ compensation insurance, local travel, and miscellaneous office expenses. Should the scope of work change, or circumstances develop which necessitate special handling, CSG will notify the City prior to proceeding. On each anniversary of the contract start date, CSG will increase hourly rates based on change in CPI for the applicable region. CSG will mail an invoice every month for services rendered during the previous month. Unless otherwise agreed, payment terms are 30-days from receipt of invoice.

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Agenda Item No: 17.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gassaway, Interim City Manager
SUBJECT:Resolution 2022­12 of the City Council of the City of Fairfield Approving the First Amendment to Lease Agreement Between the City of Fairfield and the Solano Economic Development Corporation
RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
The City of Fairfield and Solano Economic Development Corporation (Solano EDC) would like to enter into the proposed First Amendment to Lease Agreement between the City of Fairfield and the Solano Economic Development Corporation (First Amendment) for the 1,891 square­foot office space (Office Space) located at 5050 Business Center Drive (Building) for an additional twelve months to January 31, 2022.

DISCUSSION
The City is the owner of the Building. On February 8, 2019, the City and Solano EDC entered into a lease agreement for the Office Space, which expires on January 31, 2022 (Lease Agreement).

Solano EDC has requested an extension of twelve months to the original lease term, thus extending the expiration date to January 31, 2023.

The City would like to extend the Lease Agreement through January 31, 2023. The monthly rent for the twelve months will remain $3,973.46 per month. All other terms of the Lease Agreement will remain in effect.

The proposed resolution approves the First Amendment and authorizes the city manager to execute all documents necessary to amend the Lease Agreement.

FINANCIAL IMPACT
The City will receive a monthly rent of $3,973.46. These funds will be deposited into the Cordelia Library Fund (Fund 011, Division and Responsibility Code 99­251­6512).

Packet Page 264 of 316

Agenda Item No: 17.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gassaway, Interim City ManagerSUBJECT:Resolution 2022­12 of the City Council of the City of Fairfield Approving the FirstAmendment to Lease Agreement Between the City of Fairfield and the SolanoEconomic Development CorporationRECOMMENDED ACTIONAdopt resolution.STATEMENT OF ISSUEThe City of Fairfield and Solano Economic Development Corporation (Solano EDC) would like to enterinto the proposed First Amendment to Lease Agreement between the City of Fairfield and the SolanoEconomic Development Corporation (First Amendment) for the 1,891 square­foot office space (OfficeSpace) located at 5050 Business Center Drive (Building) for an additional twelve months to January 31,2022.DISCUSSIONThe City is the owner of the Building. On February 8, 2019, the City and Solano EDC entered into alease agreement for the Office Space, which expires on January 31, 2022 (Lease Agreement). Solano EDC has requested an extension of twelve months to the original lease term, thus extending theexpiration date to January 31, 2023.The City would like to extend the Lease Agreement through January 31, 2023. The monthly rent for thetwelve months will remain $3,973.46 per month. All other terms of the Lease Agreement will remain ineffect.The proposed resolution approves the First Amendment and authorizes the city manager to execute alldocuments necessary to amend the Lease Agreement. FINANCIAL IMPACTThe City will receive a monthly rent of $3,973.46. These funds will be deposited into the Cordelia Library Fund (Fund 011, Division and Responsibility Code 99­251­6512).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
None.

ALTERNATIVE ACTION
The City Council could decide not to approve the First Amendment, but the lease would expire, and Solano EDC would vacate the Office Space.

STAFF CONTACT
Dwayne Dalman, Economic Development Division Manager
(707) 428­7649
[email protected]
COORDINATED WITH
City Attorney's Office
ATTACHMENTS:

Description
Proposed Resolution
Proposed Agreement
REVIEWERS:

Reviewer Action Date
Dalman, Dwayne Approved 1/4/2022 ­ 8:24 PM
Gassaway, David Approved 1/11/2022 ­ 10:30 AM
Alexander, Amber Approved 1/11/2022 ­ 11:04 AM
Alexander, Amber Approved 1/11/2022 ­ 11:04 AM
Packet Page 265 of 316

CITY OF FAIRFIELD

RESOLUTION NO. 2022-12

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD APPROVING THE FIRST

AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF FAIRFIELD AND THE SOLANO

ECONOMIC DEVELOPMENT CORPORATION

WHEREAS, the City of Fairfield (City) is the owner and landlord of the building located at 5050 Business Center Drive more commonly known as the Cordelia Library (Building); and WHEREAS, Solano Economic Development Corporation (Solano EDC) entered into a lease agreement (Agreement) with the City on February 8, 2019, to lease an 1,891 square-foot office space in the Building; and

WHEREAS, the Agreement is set to expire on January 31, 2022; and WHEREAS, Solano EDC wishes to extend the Agreement for a period of twelve months until January 31, 2023; and
WHEREAS, the City wishes to extend the lease with Solano EDC.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:

Section 1. The City Council hereby approves the first amendment to the Agreement between the City and Solano EDC (First Amendment), a copy of which is attached hereto, with such non - substantive changes as may be approved by the city manager.

Section 2. The city manager is hereby authorized to execute the First Amendment and all documents required or contemplated by the First Amendment on behalf of the City, and to give all consents and approvals contemplated thereby on behalf of the City.

Section 3. The city manager is further authorized to do all things necessary and proper to implement this resolution.

Packet Page 266 of 316Attachment 1 Page 1 of 2

RES. NO. 2022-12

PASSED AND ADOPTED this 18th day of January, 2022, by the following vote:

AYES: COUNCILMEMBERS: PRICE / BERTANI / MOY / PANDURO / TIMM / TONNESEN / VACCARO

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

MAYOR

ATTEST:

____________________________

CITY CLERK
Packet Page 267 of 316Attachment 1 Page 2 of 2

-1-

FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF FAIRFIELD

AND THE SOLANO ECONOMIC DEVELOPMENT CORPORATION
This FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE

CITY OF FAIRFIELD AND THE SOLANO ECONOMIC DEVELOPMENT
CORPORATION (“Amendment”) is made and entered into as of the day of _____________, 202__, (“Effective Date”) by and between the CITY OF FAIRFIELD, a municipal corporation (“City”) and the SOLANO ECONOMIC DEVELOPMENT CORPORATION, a California corporation (hereinafter “Tenant”).

RECITALS
A. City owns that certain improved real property located at 5050 Business Center Drive, Fairfield, CA, hereinafter referred to as the “Building.” B. City and Tenant entered into a Lease Agreement dated February 8, 2019 (“Lease Agreement”), the Initial Term for which continues for a period of thirty-six (36) months, expiring January 31, 2022.

C. At the expiration of the Initial Term, if Tenant is not then in default, Tenant has the option to extend the Lease for an additional period of thirty -six (36) months.

D. Tenant leases approximately 1,891 square feet of office space on the second floor of the Building for use as its general office and administrative functions (“Office Space”).

E. Tenant wishes to extend the Initial Term of the Lease Agreement for an additional twelve (12) months, from January 31, 2022 to January 31, 2023.

F. The parties desire to enter into this Amendment to extend the Lease Agreement for an additional twelve (12) months at the current rental rate of $3,973.46.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, City and Tenant agree as follows:

1. Section 3.1 of the Lease Agreement is amended, in part, to extend the expiration date of the Initial Term to January 31, 2023.

2. Except for the changes specifically set forth herein, all other terms and conditions of the Office Lease shall remain in full fo rce and effect.

3. The individuals executing this Amendment on behalf of City and Tenant represent and warrant that they are duly authorized to execute and deliver this Amendment on behalf of City and Tenant, respectively.

Packet Page 268 of 316Attachment 2 Page 1 of 2

-2-

4.This Amendment may be executed in multiple counterparts each of which said executed counterparts shall be deemed an original for all purposes.

IN WITNESS WHEREOF, and intending to be legally bound hereby, City has caused this Amendment to be executed on its behalf by a duly authorized officer, and Tenant has caused this Amendment to be executed on its behalf by a duly authorized officer, all as of the day and year first written above.

City:

CITY OF FAIRFIELD, a municipal corporation
By: ______________________________
Name: ____________________________
Title: _____________________________
Tenant:

SOLANO ECONOMIC DEVELOPMENT CORPORATION, a
California corporation
By: ______________________________
Name: ____________________________
Title: _____________________________
Sean Quinn
Interim President/CEO
Packet Page 269 of 316Attachment 2 Page 2 of 2

Agenda Item No: 18.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gassaway, Inerim City Manager
SUBJECT:Resolution 2022­13 of the City Council of the City of Fairfield Approving the Purchase and Sale Agreement Between the City of Fairfield and Northern California Retired Officers Community dba Paradise Valley Estates
RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
The City of Fairfield and Northern California Retired Officers Community dba Paradise Valley Estates (PVE) would like to enter into the proposed Purchase and Sale Agreement (PSA) for the sale of the City parcel located off Estates Drive, more commonly known as APN 0167­090­120 (Property).

DISCUSSION
The City is the owner of the Property. On May 13, 2021, the City received a letter of intent from PVE to enter into negotiations to sell the Property to PVE to maintain and improve the open space located on the Property.

The City declared the Property surplus on August 17, 2021, and has complied with all State Department of Housing and Community Development requirements to proceed with a sale of the Property.

The City would like to sell the Property to PVE for the proposed purchase price of $2,500, which equals the appraised value. The PSA states the terms mentioned above and others by which the City is willing to sell the Property to PVE.

The proposed resolution approves the PSA and authorizes the city manager to execute all documents necessary for the sale of the Property.

FINANCIAL IMPACT
The City will receive the purchase price of $2,500. These funds will be deposited into the FF Local Drainage Maintenance Fund (Fund 083, Division and Responsibility Code 65­007­8441).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
Packet Page 270 of 316

Agenda Item No: 18.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gassaway, Inerim City ManagerSUBJECT:Resolution 2022­13 of the City Council of the City of Fairfield Approving the Purchaseand Sale Agreement Between the City of Fairfield and Northern California RetiredOfficers Community dba Paradise Valley EstatesRECOMMENDED ACTIONAdopt resolution.STATEMENT OF ISSUEThe City of Fairfield and Northern California Retired Officers Community dba Paradise Valley Estates(PVE) would like to enter into the proposed Purchase and Sale Agreement (PSA) for the sale of theCity parcel located off Estates Drive, more commonly known as APN 0167­090­120 (Property).DISCUSSIONThe City is the owner of the Property. On May 13, 2021, the City received a letter of intent from PVE toenter into negotiations to sell the Property to PVE to maintain and improve the open space located onthe Property. The City declared the Property surplus on August 17, 2021, and has complied with all State Departmentof Housing and Community Development requirements to proceed with a sale of the Property.The City would like to sell the Property to PVE for the proposed purchase price of $2,500, which equalsthe appraised value. The PSA states the terms mentioned above and others by which the City is willingto sell the Property to PVE.The proposed resolution approves the PSA and authorizes the city manager to execute all documentsnecessary for the sale of the Property. FINANCIAL IMPACTThe City will receive the purchase price of $2,500. These funds will be deposited into the FF LocalDrainage Maintenance Fund (Fund 083, Division and Responsibility Code 65­007­8441).

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
None.

ALTERNATIVE ACTION
The City Council may decide not to approve the PSA, but the Property would then go back out onto the open market for other potential buyers.

STAFF CONTACT
Dwayne Dalman, Economic Development Division Manager
(707) 428­7649
[email protected]
COORDINATED WITH
City Attorney's Office
ATTACHMENTS:

Description
Proposed Resolution
Proposed Agreement
REVIEWERS:

Reviewer Action Date
Dalman, Dwayne Approved 1/4/2022 ­ 8:27 PM
Gassaway, David Approved 1/11/2022 ­ 10:31 AM
Alexander, Amber Approved 1/11/2022 ­ 11:15 AM
Alexander, Amber Approved 1/11/2022 ­ 11:16 AM
Packet Page 271 of 316

CITY OF FAIRFIELD

RESOLUTION NO. 2022-13

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD APPROVING THE PURCHASE

AND SALE AGREEMENT BETWEEN THE CITY OF FAIRFIELD AND NORTHERN CALIFORNIA

RETIRED OFFICERS COMMUNITY DBA PARADISE VALLEY ESTATES

WHEREAS, the City of Fairfield (City) is the owner of properties located off of Estates Drive more commonly known as APN 0167-090-120 (Property); and
WHEREAS, The City declared the Property surplus on August 17, 2021, and has complied with all State Department of Housing and Community Development requirements to proceed with a sale of the Property; and

WHEREAS, Northern California Retired Officers Community dba Paradise Valley Estates (PVE) wishes to purchase the Property to maintain and improve the open space located on the Property; and
WHEREAS, the City wishes to sell the Property to PVE; and WHEREAS, PVE wishes to pay the appraised value of $2,500 for the Property which will be deposited into the City’s FF Local Drainage Maintenance Fund account.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:

Section 1. The City Council hereby approves the Purchase and Sale Agreement (PSA), a copy of which is attached hereto, with such non -substantive changes as may be approved by the city manager.

Section 2. The city manager is hereby authorized to execute the PSA and all documents required or contemplated by the PSA on behalf of the City, and to give all consents and approvals contemplated thereby on behalf of the City.

Section 3. The city manager is further authorized to do all things necessary and proper to implement this resolution.

Packet Page 272 of 316Attachment 1 Page 1 of 2

RES. NO. 2022-13

PASSED AND ADOPTED this 18th day of January, 2022, by the following vote:

AYES: COUNCILMEMBERS: PRICE / BERTANI / MOY / PANDURO / TIMM / TONNESEN / VACCARO

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

MAYOR

ATTEST:

____________________________

CITY CLERK
Packet Page 273 of 316Attachment 1 Page 2 of 2

SALE AGRETHIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROWINSTRUCTIONS (the "Agreement"), is dated as of2022 ("Effective Date"),and is entered into by and between the CITY OF FAIRFIELD ("Seller") and NORTHERNCALIFORNIA RETIRED OFFICERS COMMI.INITY dba PARADISE VALLEY ESTATES(ooBuyer").A.RECITALSSeller is the owner of the land described on Exhibit "A" attached hereto (theo'Properfy").B. Buyer wishes to acquire the Property, and Seller is willing to sell theProperty to Buyer, upon and subject to the terms and conditions hereinafter set forth.JOARTICLE iNOW, THEREFORE, the parties hereto agree as follows:DEFINITIONSThe following capitalized terms as used in this Agreement shall have the respectivemeanings set forth below:Section 1.1 Approval Notice means the written notice provided by the Buyer to EscrowHolder stating that Buyer approves any documents provided by Seller to Buyer pertaining to theproperty, and the Property's physical condition, zoningand suitability for development.Section 1.2 Escrow Holder shall mean Placer Title Company located at 1300 OliverRoad, Suite 120, Fairfield, CA94534 Attention Kelly Guglielmo.Section 1.3 Grant Deed shall mean a grarÍ. deed in the form attached hereto as Exhibit,,Brr.Section 1.4 Due Diligence Period means a period of sixty (60) days after the EffectiveDate for the Buyer to conduct an investigation of the Property's physical condition and suitabilityfor development as provided in Section 2.8.Section 1.5 Title Company shall mean Placer Title Company located at 1300 OliverRoad, Suite 120, Fairfield, CA94534 Attention Kelly Guglielmo.ARTICLE 2. PURCHASE AND SALE OF PROPERTY; PURCHASE PzuCE.Section 2.1 Purchase Price. The Seller hereby agrees to sell the Property to Buyer, andBuyer hereby agrees to buy the Property, for the sum of TWO THOUSAND FIVE HLINDREDDOLLARS and No/100 cents ($2,500.00) (the "Purchase Price"), it being understood that suchprice represents the agreed upon price between Buyer and Seller, and the fair market value of theProperty. Buyer also agrees to reimburse Seller and and ail expenses incurred as a result of thePacket Page 274 of 316Attachment 2 Page 1 of 15

transfer including but not limited to legal review, preparation, and advice in the amount of TWOTHOUSAND DOLLARS and No/l00 cents ($2,000.00).Sec,tion2.2 Escrow.Section 2.2.1 Opening of Escrow. Within five (5) business days after theEffective Date, the Buyer and the Seller shall deliver a copy of this executed Agreement toEscrow Holder and will open an escro\M (the "Escrow") with the Escrow Holder for the transferof the Property to the Buyer.SectionZ.2.2 Deposit. Buyer will deposit $1,000.00 into Escrow upon fulIexecution of the Agreement (the "Deposit"), which shall be fully refundable to the Buyer untilthe end of the Dur Diligence Period. At the end of the Due Diligence Period, the Deposit will benon-refundable and applied to the Purchase Price.Section 2.2.3 Close of Escrow. 'oClose of Escrow" or'oClosing" means thedate Escrow Holder causes the Grant Deed to be recorded in the Official Records of the Countyof Solano. Close of Escrow shall occur on or before the date that is thirty (30) after the DueDiligence Period (the "Outside Date"). If for any reason other than a default by the Seller orBuyer the Closing does not occur on or before the Outside Date, this Agreement shallautomatically terminate, unless extended in writing by both parties (the "Parties"), and alldocuments and monies previously deposited into the Escrow shall be promptly retumed to theappropriate Party and each Party shall pay one-half (ll2) of any Escrow charges and fees inconnection with such termination. If the Closing does not occur due to a default by aParty,thatParty shall pay all escrow and title cancellation changes.Section 2.3 Conditions of Buyer's Obligations. The following are conditions precedent(collectively, ooBuyer's Contingencies") to the Close of Escrow and Buyer's obligation topurchase the Property, which contingencies may be waived in writing in whole or in part by Buyer,at or prior to the time prescribed herein for approval or disapproval, as the case may be:(Ð At the closing, the issuance of the Title Policy (defined in SectionSection 2.4) to Buyer, which will insure Buyer's fee simple interest in the Property in the amountof the Purchase Price and in form and substance and with endorsements reasonably required andsatisfactory to the Buyer;(iÐ As of the closing, the absence of a default by Seller hereunderSection 2.4 Title. Within ten (10) days after the Effective Date, Seller shall obtain anddeliver to Buyer a current preliminary title report for the Property from the Title Company withhyperlinks to (or copies of) all documents listed as title exceptions therein. Buyer shall then havethirty (30) days to review the same. If Buyer objects to any title matters , Buyer may terminate thisAgreement by written notice to Seller given within thirty (30) days after receipt of said title report,in which event all rights, obligations and liabilities of Seller and Buyer under and pursuant to thisAgreement shall terminate (except for obligations or liabilities under this Agreement that expresslysurvive the termination of this Agreement).-2-Packet Page 275 of 316Attachment 2 Page 2 of 15

Escrow Holder shall provide Buyer with a Standard Coverage Policy of Title Insurance(or, at the election and cost of Buyer, extended coverage) in the amount of the Purchase Price,issued by the Title Company, showing the title to the Property vested in Buyer, subject only to theapplicable title exceptions approved by Buyer in accordance with this Section and the Deed ofTrust (the "Title Policy"). Notwithstanding the above, title to the Property shall be free of liensat the Close of Escrow except for the lien of ad valorem real property taxes and general and specialassessments not yet due and payable, any lien created by Buyer, and the release of the MaintenanceEasement on the adjoining property (APN 0167-090-110) owned by the Buyer.Section 2.5 Deposit of Documents and Funds In Escrow. Seller and Buyer, asapplicable, hereby covenant and agree to deliver at least one (1) day prior to the Close of Escrowthe following instruments, documents, and funds, the delivery of each of which shall be a conditionof the applicable Close of Escrow.Section 2.5.1 Seller shall deliver to Escrow(Ð an original of the Grant Deed, duly executed by Seller andacknowledged;(iÐ such funds as are required to pay for costs and expenses payable bySeller hereunder;(iiÐ such proof of Seller's authority and authorization to enter into thistransaction as the Title Company may reasonably require in order to issue the Title Policy,including Title Company's standard owner's affidavit.Section 2.5.2 Buyer shall deliver to Escrow:(Ð any additional funds that are required to pay for costs and expensespayable by Buyer hereunder;(iÐ Purcahse Price;(iiÐ such proof of Buyer's authority and authorization to enter into thistransaction as the Title Company may reasonably require to issue the Title Policy.Section 2.6 Authorization to Record Documents and Disburse Funds. Escrow Holdershall record the Grant Deed and disburse the funds and distribute the documents called forhereunder upon the Close of Escrow provided each of the following conditions has theri beentulfilled:Section 2.6.1 The Title Company is irrevocably committed to issue in favor ofBuyer the Title Policy, with a liability amount equal to the Purchase Price, showing fee simple titleto the Property vested in Buyer, subject only to the applicable title exceptions approved by Buyerin accordance with Section 2.4;a-J-Packet Page 276 of 316Attachment 2 Page 3 of 15

Section2.6.2 Escrow Holder shall have received Seller's and Buyer'sauthorization to close upon the terms and conditions herein, which aulhorization shall not beunreasonably withheld, conditioned or delayed; andSection 2.6.3 Seller and Buyer shall have deposited in Escrow the documentsand funds required to be deposited in Escrow pursuant to Section Section 2.6.7 and Section 2.6.2.Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close ofEscrow any instrument delivered to Escrow Holder if necessary or proper for the issuance of theTitle Policy.Section 2.7 Escrow Charses and Prorations.Section 2.7.1 Each party shall pay for fifty percent (50%) of the escrow fees,recording fees, transfer taxes and title policy costs.Section2.7.2 Assessments shall be apportioned with respect to the Property asof 12:01 a.m., on the day on which the Close of Escrow occurs, as if Buyer were vested with titleduring the entire day upon which the Close of Escrow occurs. The parties acknowledge that Buyerand Seller are exempt from property taxes and no property taxes shall be allocated between them.Section 2.8 Documents and Physical Condition. The Seller shall promptly provide toBuyer copies of all material documents, reports, and correspondence in the Seller's possession orcontrol that relate to the Property. From the Effective Date until the date that is sixty (60) daysthereafter, Buyer may inspect such documents and access the Property to inspect the physicalcondition of the Property. Buyer shall have the right to terminate this Agreement at arry time priorto the end of said sixty (60) day period by delivering to Seller written notice of Buyer's electionto terminate this Agreement based on the condition ofthe Property. Buyer shall indemnify, defendand hold Seller harmless from and against any claims, liabilities, costs and expenses resulting fromBuyer's entry upon or conducting of any tests of the Property. If this Agreement is terminated orif escrow fails to close for any reason other than a default by Seller, Buyer shall promptly restorethe Property to substantially the same condition as existed prior to Buyer's undertaking of anytesting thereon. All studies and reports prepared in connection with Buyer's inspection of theProperty are to be done at the expense of Buyer, but if the closing fails to occur through no faultof Seller, Buyer shall provide Seller with a copy of all of the reports without cost (and withoutrepresentation or warranty). Buyer's obligations and duties hereunder shall survive and remainupon the completion of the closing or upon the termination of this Agreement for any reason.Section 2.9 .'AS-IS" Condition of the PropertyBuyer agrees that it will purchase theProperty in its "AS-IS" condition as of the date of the Close of Escrow, with all faults, and withoutrepresentation or warranty, express or implied. Seller shall provide a disclosure statement whichidentifies any matters known to Seller regarding the Property within ten (10) days of the EffectiveDate of this Agreement.Section 2.10 Brokers' Commissions. Buyer represents and warrants to Seller that exceptfor Terra Realty Advisors, Inc. ("Buyer's Consultàfr"), Buyer has used no broker, agent, finder orother person in connection with the transaction contemplated hereby to whom a brokerage or othercommission or fee may be payable. Seller represents and warrants to Buyer that Seller has used-4-Packet Page 277 of 316Attachment 2 Page 4 of 15

no broker, agent, finder or other person in connection with the transaction contemplated hereby towhom a brokerage or other commission or fee may be payable. Buyer shall pay all fees andcommission that are payable to Buyer's Consultant, if any. Each party indemnifies and agrees todefend and hold the other harmless from any claims, liabilities, costs, expenses and damagesresulting from any breach by the indemnifying party of the warranties, representations andcovenants in this Section.ARTICLE 3. GENERAL PROVISIONSSection 3.1 Construction. Theparties agree that each party and its counsel havereviewed and revised this Agreement and that any rule of construction to the effect that ambiguitiesare to be resolved against the drafting party shall not apply in the interpretation of this Agreementor any amendments or exhibits hereto.Section 3.2 Interpretation. In this Agreement the neuter gender includes the feminineand masculine, and singular number includes the plural, and the words "person" and "party"include corporation, partnership, firm, trust, or association where the context so requires.Section 3.3 Time of the Essence. Time is of the essence of this Agreement and allParties' obligations hereunder.Section 3.4 Notices. Notices, demands and communications between the Seller and theBuyer shall be deemed sufficiently given if addresses as set forth below and (i) sent by certifiedmail, postage prepaid, return receipt requested, or (ii) sent by nationally-recognized reputableovernight delivery service. Such written notices, demands and communications may be sent in thesame manner to such other addresses or to such other address as any Party may from time to timedesignate by mail as provided in this Section, and shall be deemed received upon delivery orrefusal of delivery, as shown on the retum receipt, if mailed, or one (1) business day after depositof same with a nationally recognized reputable overnight delivery service for overnight delivery ifsent by such a delivery service.To Buyer:Paradise Valley Estates2600 Estates DriveFairfield, CA94533Attn: Kevin BurkeTo Seller:City of Fairfield1000 Webster St., 2nd FloorFairfi eld, California 94533Attn: Real Estate SpecialistSection 3.5 Attomeys' Fees. If any Party brings an action to enforce the terms hereofor declare its rights hereunder, the prevailing Party in any such action shall be entitled to itsreasonable attorneys' fees to be paid by the losing Party as fixed by the court.Section 3.6 Authority of Cit)¡ Manager. The City Manager of Seller is authorized togive all consents and approvals and sign all documents contemplated hereunder on behalf of Sellerprovided they are in writing, and may extend deadlines such as but not limited to the Outside Date,-5-Packet Page 278 of 316Attachment 2 Page 5 of 15

for up to sixty (60) days, and may enter into other non-substantive amendment provided theextensions and amendments are express and in writing.Section 3.7 Venue. In the event of any litigation hereunder, all such actions shall beinstituted in the Superior Court of the County of Solano, State of California, or in an appropriatemunicipal court in the County of Solano, State of California or an appropriate District Court in theNorthern District of California.Section 3.8 Applicable Law. The laws of the State of California shall govern theinterpretation and enforcement of this Agreement.Section 3.9 No Right to Assign. Neither party may assign this Agreement without theprior written consent of the other.Section 3.10 Successors and Assigns. Subject to the restrictions on transfers set forth inthis Agreement, the provisions hereof shall be binding upon, and shall inure to the benefit of, theSeller and the Buyer and their successors and assigns.Section3.1l No Joint Venture. Nothing contained herein shall be construed to renderthe Seller in any way or for any pu{pose apartner,joint venture, or associated in any relationshipwith the Buyer, nor shall this Agreement be construed to authorize either party to act as agent forthe other.Section 3.12 Waiver. The waiver by the Seller or the Buyer of any breach by the otherparty of any term, covenant, or condition herein contained shall not be deemed to be a waiver ofsuch term, covenant, or condition or any subsequent breach of the same or any other term,covenant, or condition herein contained. Either party's acceptance of any performance by theother party after the due date of such performance shall not be deemed to be a waiver by eitherparty of any preceding breach by the other party of any term, covenant, or condition of thisAgreement, regardless of such party's knowledge of such preceding breach at the time ofacceptance of such performance.Section 3.13 Entire Asreement. Waivers and Amendments. This Agreement, togetherwith all attachments and exhibits hereto and all documents to be executed and delivered pursuantto this Agreement, constitutes the entire understanding and agreement of the Parties hereto. ThisAgreement integrates all of the terms and conditions mentioned herein or incidental hereto, andsupersedes all negotiations or previous agreements between the parties with respect to all or anypart of the subject matter hereof. Any waiver, amendment, or modification of any provision ofthis Agreement must be in writing and signed by both parties.Section 3.14 Execution in Counterparts. This Agreement may be executed in two ormore counterparts, each of which shall be an original, but all of which shall constitute one and thesame instrument.Section 3.15 Severability. Each and every provision of this Agreement is, and shall beconstrued to be, a separate and independent covenant and agreement. If any term or provision ofthis Agreement or the application thereof shall to any extent be held to be invalid or unenforceable,the remainder of this Agreement, or the application of such term or provision to circumstances-6-Packet Page 279 of 316Attachment 2 Page 6 of 15

other than those to which it is invalid or unenforceable, shall not be affected hereby, and each termand provision of this Agreement shall be valid and shall be enforced to the extent permitted byiaw.IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of theday and year first above written.SELLER:CITY OF FAIRFIELDBUYER:NORTHERN CALIFORNIA RETIREDOFFICERS COMMUNITY dba PARADISEVALLEY ESTATESBy:,L.¿aa\4Tæ-By:By:Stefan ChatwinCity ManagerKevin BurkeChief Executive OfficerATTEST:Karen Rees,City Clerk-7-Packet Page 280 of 316Attachment 2 Page 7 of 15

List of ExhibitsExhibit "A"Exhibit "B"Legal Description of LandForm of Grant DeedPacket Page 281 of 316Attachment 2 Page 8 of 15

EXHIBIT fA''LEGAL DESCRIPTION OF'THE LANDTHE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FAIRFIELD, COUNTY OFSOLANO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:Parcel 3 as shown on the parcel map entitled: "Parcel Map of the Lands Winncrest Homes, lnc.", filed forrecord on June 26, 1996 in Book 40 of Parcel Maps, Page 3, Solano County Records.APN: 0167-090-120Packet Page 282 of 316Attachment 2 Page 9 of 15

t^ rl-3t51')20.p*Ø,r.íoiç.r¡rFê41ütctvdIIrcR. LaT J6, RA¡ilCH0 r0¿Et{Á5PaR. S.E.tft SEC.', L5t''., R.zW., tt.Ð.B.& H. Ðff.@@Tax Arca Codct67-093151Jt65s',t66t*'.-la&'60017\Pdodhr VolGï llüütlrltr lhlt th. 1 , Ry. *.æ PgnctII-t/1l¡c f¡a.ildÌÊ û¡rirlùffitir ¡ot ¡¡t¿ndrd toqff AF FÅRNELD & VICINTIYÁsscssor's llap 8k,167 Pg.09County of Solono, Colìf.IËI¡{Irq¡€'to$Þ@[email protected]^wvrtt2'ìrt.ÉÈ@@o9oôrll€r6\OO* c.l9€rclNclc.l c.¡ooÕoOO++c\ì cll¡toþlJbtihIs&! 4.cr tÈrrÈf-¡ 5åo5 ã Strq ¡a$'r Pe.l X'aÞd Stqrù h Ctçr.tritld¡llr r ierpl¡iliÌùim hÉPacket Page 283 of 316Attachment 2 Page 10 of 15

EXHIBIT ú68"FORM OF GRANT DEEDrWITH F'ORM OF' CERTIFICATE OF ACCEPTANCE ATTACHED)(Attached.)Packet Page 284 of 316Attachment 2 Page 11 of 15

RECORDING REQUESTED BY, AND WHENRECORDED MAIL TO AND MAIL ASSESSMENTSTATEMENTS TO:Ameri-Properties Land CorporationAttn: Kevin ByrkeAPN: 0167-090-120ACE ABOVE FOR RECORDER,S USE oNLThis document is exempt from the payment of a recording fee pursuant to Government Code $6103Documentary Transfer Tax: Exempt; conveyance to a public entity. Property is in the City ofFairfield, County of Solano.GRANT DEEDFOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, theCITY OF FAIRFIELD ("the Grantor"), hereby GRANTS to NORTHERN CALIFORNIARETIRED OFFICERS COMMLINITY dba PARADISE VALLEY ESTATES ("Grantee"), thatcertain real property located in the City of Fairfield, County of Solano, State of California, moreparticularly described on Exhibit "4" attached hereto and incorporated herein by this referenceincluding all improvements thereon (the "Property").IN V/ITNESS WHEREOF, the undersigned has executed this Grant Deed as of the date setforth below.GRANTOR:Stefan ChatwinCity ManagerPacket Page 285 of 316Attachment 2 Page 12 of 15

A notary public or other officercompleting this certificate verifies onlythe identity of the individual who signedthe document to which this certificate isattached, and not the truthfulness,accuracy, or validity of that document.State of CaliforniaCounty of SolanoOnbefore me,(insert name and title ofthe officer)Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/aresubscribed to the within instrument and acknowledged to me that he/she/they executed the samein his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrumentthe person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.I certify under PENALTY OF PERJURY under the laws of the State of Califomiathatthe foregoiîgparagraph is true and correct.WITNESS my hand and official seal.Signature(Seal)))Packet Page 286 of 316Attachment 2 Page 13 of 15

Exhibit A To Grant DeedLeeal DescriptionTHE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FAIRFIELD, COUNTY OFSOLANO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:Parcel 3 as shown on the parcel map entitled: "Parcel Map of the Lands Winncrest Homes, lnc.", filed forrecord on June 26, 1996 in Book 40 of Parcel Maps, Page 3, Solano County Records.APN: 01 67-090-1 20jJ.lI¡I{Packet Page 287 of 316Attachment 2 Page 14 of 15

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Agenda Item No: 19.

AGENDA REPORT
DATE:January 18, 2022
TO:Mayor and City Council
FROM:David Gassaway, Interim City Manager
SUBJECT:Resolution 2022­14 of the City Council of the City of Fairfield Modifying Procedures Set Forth in the Application Procedures and Guidelines for a Commercial Cannabis Business Permit and the Conditions of Approval Adopted in Resolutions 2021­139, 2021­140, 2021­142, and 2021­143
RECOMMENDED ACTION
Adopt resolution.

STATEMENT OF ISSUE
The City must modify procedures for conducting background investigations of cannabis business owners to ensure faster issuance of Cannabis permits. The proposed modifications authorize the State to conduct background investigations rather than the Police Department.

DISCUSSION
Chapter 10E of the Fairfield Municipal Code establishes regulations for commercial cannabis activity in the City. Section 10E.9 establishes certain prohibitions for receiving a cannabis permit for business owners or employees based on criminal background. Section 10E.8.2 requires that prospective owners undergo a background investigation before issuing a permit to determine if an owner is ineligible for a permit. Background investigations are conducted via a “Live Scan” in coordination with the United States Department of Justice (DOJ).

As initially established, the City’s procedures call for the City’s Police Department (PD) to manage the Live Scan process. PD must submit the Live Scan to DOJ to review criminal record information. These procedures are outlined in the “Application Procedures and Guidelines” approved by the City in 2020 (City Council Resolution 2020­136). In addition, Conditions of Approval for the five businesses conditionally awarded a Cannabis permit include the requirement that owners undergo Live Scan conducted by the Police Department in conjunction with DOJ.

To use Live Scan for cannabis background checks, the City must receive DOJ and the FBI approval.

The Police Department applied for approval of Live Scan to DOJ in November. Subsequently, DOJ informed the City that the complete approval process could take up to a year. DOJ’s timeframe does not align with the schedule desired by certain approved cannabis retailers. Moreover, it will delay the Packet Page 289 of 316

Agenda Item No: 19.AGENDA REPORTDATE:January 18, 2022 TO:Mayor and City CouncilFROM:David Gassaway, Interim City ManagerSUBJECT:Resolution 2022­14 of the City Council of the City of Fairfield Modifying Procedures SetForth in the Application Procedures and Guidelines for a Commercial CannabisBusiness Permit and the Conditions of Approval Adopted in Resolutions 2021­139,2021­140, 2021­142, and 2021­143RECOMMENDED ACTIONAdopt resolution.STATEMENT OF ISSUEThe City must modify procedures for conducting background investigations of cannabis businessowners to ensure faster issuance of Cannabis permits. The proposed modifications authorize the Stateto conduct background investigations rather than the Police Department.DISCUSSIONChapter 10E of the Fairfield Municipal Code establishes regulations for commercial cannabis activity inthe City. Section 10E.9 establishes certain prohibitions for receiving a cannabis permit for businessowners or employees based on criminal background. Section 10E.8.2 requires that prospective ownersundergo a background investigation before issuing a permit to determine if an owner is ineligible for apermit. Background investigations are conducted via a “Live Scan” in coordination with the UnitedStates Department of Justice (DOJ).   As initially established, the City’s procedures call for the City’s Police Department (PD) to manage theLive Scan process. PD must submit the Live Scan to DOJ to review criminal record information. Theseprocedures are outlined in the “Application Procedures and Guidelines” approved by the City in 2020(City Council Resolution 2020­136). In addition, Conditions of Approval for the five businessesconditionally awarded a Cannabis permit include the requirement that owners undergo Live Scanconducted by the Police Department in conjunction with DOJ.To use Live Scan for cannabis background checks, the City must receive DOJ and the FBI approval.The Police Department applied for approval of Live Scan to DOJ in November. Subsequently, DOJ informed the City that the complete approval process could take up to a year. DOJ’s timeframe does not align with the schedule desired by certain approved cannabis retailers. Moreover, it will delay the City’s receipt of tax revenue from the sale of cannabis products by up to a year.

The Police Department reviewed the matter and determined an alternative. To receive a State cannabis license, operators must submit to a Live Scan through the State. The Police Chief concluded that the City could accept the State’s Live Scan as a sufficient background check.

The proposed resolution modifies the City’s Approval Procedures, and Guidelines for Commercial Cannabis permits to allow the State to conduct the Live Scan rather than the Police Department. It also modifies Condition 5.3 of the Conditions of Approval for all five approved Cannabis operators to allow the State to conduct the Live Scan rather than the Police Department.

FINANCIAL IMPACT
None.

PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
None.

ALTERNATIVE ACTION
The council could decide not to approve the proposed modifications.  Doing so would delay the City’s ability to issue Cannabis permits by up to a year.

STAFF CONTACT
David Feinstein, Planning Division Manager
(707) 428­7448
[email protected]
COORDINATED WITH
City Attorney's Office, Police Department
ATTACHMENTS:

Description
Proposed Resolution
REVIEWERS:

Reviewer Action Date
Alexander, Amber Approved 1/11/2022 ­ 2:58 PM
Alexander, Amber Approved 1/11/2022 ­ 2:58 PM
Alexander, Amber Approved 1/11/2022 ­ 2:58 PM
Packet Page 290 of 316

CITY OF FAIRFIELD

RESOLUTION NO. 2022-14

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FAIRFIELD MODIFYING

THE PROCEDURES AND GUIDELINES FOR A COMMERCIAL CANNABIS BUSINESS PERMIT AND THE CONDITIONS OF APPROVAL ADOPTED IN RESOLUTIONS 2021- 139, 2021-140, 2021-141, 2021-142, AND 2021-143

WHEREAS, on June 16, 2020, the City Council of the City of Fairfield (City) adopted Ordinance No. 2020-07, adding Chapter 10E (Commercial Cannabis Business) to the Fairfield Municipal Code (FMC) to permit commercial cannabis businesses within the City and establish a regulatory program requiring all commercial cannabis uses to obtain a commercial cannabis business permit issued by the City prior to commencing operation; and

WHEREAS, as required by FMC Sections 10E.8 and 10E.9, on July 7, 2020, the City Council of the City of Fairfield approved Resolution No. 2020-136, establishing the procedures to govern the process by which decisions shall be made regarding the issuance of commercial cannabis business permits in a document known as “Application Procedures & Guidelines for a Commercial Cannabis Business Permit” (Application Procedures); and

WHEREAS, on July 7, 2020, the City Council adopted Resolution No. 2020 -137 approving an application for authorization to access State and Federal level summary criminal history information for cannabis employment, contractors, licensing, or certification purposes; and

WHEREAS, pursuant to FMC Section 10E.8(c), prior to permit issuance the City may initiate, modify, postpone, or cancel any request for applications or the entire program under FMC Chapter 10 at its sole discretion; and

WHEREAS, on April 6, 2021, the City Council adopted Resolution No. 2021-68 to modify Phase III and Phase V of the Application Procedures with respect to the fourteen retail applications and one manufacturing application received during the September 8, 2020, to October 23, 2020, application period, due to scoring errors made by the consultant during Phase II of the application review process; and

WHEREAS, on June 15, 2021, and June 22, 2021, the City Council adopted Resolutions No. 2021- 139, No. 2021-140, No. 2021-141, No. 2021-142, and No. 2021-143, conditionally approving the applications of J.J.V.I. Enterprises, Inc., Responsible and Compliant Retail Fairfield LLC, 3Bros Fairfield, The Showcase LLC, and Authentic Fairfield LLC; and

Packet Page 291 of 316Attachment 1 Page 1 of 3

RES. NO. 2022-14