Wednesday, November 9, 2022
5:30 PM
City of Hercules
111 Civic Drive
Hercules, CA 94547
City Council
Mayor Dion Bailey
Vice Mayor Alexander Walker-Griffin
Council Member Dan Romero
Council Member Chris Kelley
Council Member Tiffany Grimsley
Dante Hall, City Manager
Patrick Tang, City Attorney
Lauren Berges, City Clerk
Meeting Agenda
SPECIAL MEETING In-person in Council Chambers or
Zoom ID:881 6006 4242
Zoom Phone Number: 1-669-444-9171
Zoom Passcode: 461565
1 November 9, 2022City Council Meeting Agenda
See last pages of agenda for information regarding meeting procedures To view webcast of meetings, live or on demand, go to the City's website at www.ci.hercules.ca.us I. SPECIAL MEETING - 5:30 P.M. CALL TO ORDER - ROLL CALL II. PUBLIC COMMUNICATION - SPECIAL MEETING ITEMS
III. COMMISSION INTERVIEWS
1. 22-348 Commission Interviews
Recommendation: Conduct interviews for eligible candidates which have applied for Hercules Commissions and Committees.
IV. REGULAR MEETING – 7:00 P.M. CALL TO ORDER - ROLL CALL V. REPORT ON ACTION TAKEN IN CLOSED SESSION - NONE
VI. PLEDGE OF ALLEGIANCE
VII. MOMENT OF SILENCE
VIII. INTRODUCTIONS/PRESENTATIONS/COMMISSION REPORTS
1. 22-340
Vietnam Memorial Anniversary Proclamation
Vietnam Memorial Proclamation Nov 2022Attachments:
IX. AGENDA ADDITIONS/DELETIONS
X. PUBLIC COMMUNICATIONS
This time is reserved for members of the public to address issues not included in the agenda. In accordance with the Brown Act, Council will refer to staff any matters brought before them at this time, and those matters may be placed on a future agenda.
If attending in-person, please fill out a speaker card and provide to the City Clerk. The public may log into the Zoom meeting (refer to agenda cover for Zoom login information) and provide their public comment. When the public comment period is open for the item you wish to speak on, use the "raise hand" feature in Zoom (or press *9 if connecting via phone audio only) at the time the Mayor calls for public comment.
Please wait your turn and once you are brought into the meeting, state your name and city of residence for the record. For additional alternatives to providing public comments please refer to the Notice of Important Instructions on how to Participate and Watch the Hercules City Council Meeting on the back pages of the agenda.
All public comments are allowed up to 3 minutes to relay their message or concern. A limit of 30 minutes will be devoted to taking public comment at this point in the agenda. If any speakers remain at the conclusion of the initial 30 minute period, time will be reserved at the conclusion of the meeting to take the remaining comments.
XI. PUBLIC HEARINGS
2 November 9, 2022City Council Meeting Agenda
XII. CONSENT CALENDAR
1. 22-344 Meeting Minutes of October 25, 2022
Meeting Minutes October 25, 2022Attachments:
2. 22-338 Accept the Investment Report for the Quarter Ending September 30, 2022
Recommendation: Accept the investment report for the quarter ending September 30, 2022
Staff Report - Investment Quaterly Report Ending 9-30-2022 Attach 1 - Quarterly Investment Report
Attachments:
3. 22-341 Emergency Declaration
Recommendation: Adopt a resolution authorizing virtual city council, commission and committee meetings during a declared state of emergency pursuant to government code 54953 (AB 361).
Staff Report AB 361
Attach 1 - AB 361 Resolution
Attach 2 - Contra Costa Meeting Recommendations
Attachments:
XIII. DISCUSSION AND/OR ACTION ITEMS
1. 22-347 Commission and Committee Appointments
Recommendation: Review all eligible candidates which have applied for Hercules Boards and Commissions. City Council will make their selection and appointments directly following the special meeting interview process.
Staff Report - Commission Appointments 110922Attachments:
2. 22-337 Memorandum Of Understanding with Participating Contra Costa Agencies to Complete a Feasibility Study for Expanded Ferry Service including the Hercules Hub at a Participating Cost of $40,000 in Measure J Funding
Recommendation: Approve a Memorandum Of Understanding (MOU) with the Cities of Antioch, Martinez, and Pittsburg, Contra Costa County, Eastern Contra Costa Transit Authority, and the Contra Costa Transportation Authority to advance planning and studies to evaluate the feasibility of expanded ferry service in Contra Costa County including the Hercules Hub at a participating cost of $40,000 in Measure J Funding.
Staff Report - Contra Cost Ferry Expansion MOU
Attach 1 - Contra Costa Ferry Expansion MOU Reso
Attach 2 - Ferry Expansion MOU
Presentation - Ferry Study MOU PC 2022-11-9_Hercules
Attachments:
3 November 9, 2022City Council Meeting Agenda
3. 22-339 Agreement with the John Muir Land Trust for the Evaluation of the Refugio Creek Conservation Easement and Appropriation of $50K in Public Benefit Fees to fund Related Activities
Recommendation: The City Council approve an agreement for the John Muir Land Trust (JMLT) to undertake evaluation activities prior to accepting the transfer of the Refugio Creek Conservation Easement and associated Mitigation Obligation for the Hercules Hub; and, appropriate $50K in Public Benefit Fees to fund said activities.
Staff Report - Conservation Easement Agreement
Resolution - Conservation Easement Agreement
Attach 1A - Refugio Conservation Easement Description
Attach 1B - Refugio Conservation Easement Map
Attach 2 - FINAL JMLT Services Agreement_10-26-2022
Attachments:
4. 22-345 Solid Waste Collection Franchise Agreement - Preliminary Recommendation to Adjust Republic Services Rate +3.52% for 2023 Recommendation: Receive the Public Works Director’s report and recommended order following his November 8, 2022 Public Hearing regarding Republic Services’ preliminary recommended base year rate adjustment of +3.52% effective January 1, 2023.
Staff Report - Solid Waste Rate Adjustment 10-26-2022Attachments:
5. 22-343 Pipeline Agreement with Union Pacific including a $174,600 License Fee for the Sycamore Avenue Sewer Trunk Replacement Project Recommendation: Approve a Crossing and Longitudinal Pipeline Agreement with Union Pacific (UP) including a $174,600 license fee for the Sycamore Avenue Sewer Replacement Project and authorize the City Manager to sign the Agreement on behalf of the City Council.
Staff Report - UP Pipeline Agreement
Resolution - UP Pipeline Agreement
Attach 1 - Location Map - Sewer Trunk Main Crossing_
Attach 2 - UP Pipeline Agreement
Attachments:
XIV. PUBLIC COMMUNICATIONS
This time is reserved for members of the public who were unavailable to attend the Public Communications period during Section X of the meeting, or were unable to speak due to lack of time. The public speaker requirements specified in Section X of this Agenda apply to this Section.
4 November 9, 2022City Council Meeting Agenda
XV. CITY COUNCIL/CITY MANAGER/CITY ATTORNEY ANNOUNCEMENTS,
COMMITTEE, SUB-COMMITTEE AND INTERGOVERNMENTAL COMMITTEE REPORTS
AND FUTURE AGENDA ITEMS
This is the time for brief announcements on issues of interest to the community. In accordance with the provisions of the Brown Act, matters which do not appear on this agenda but require City Council discussion may be either (a) referred to staff or other resources for factual information or (b) placed on a future meeting agenda.
XVI. ADJOURNMENT
The next Regular Meeting of the City Council will be held on Tuesday, December 13, 2022 at 7:00p.m. in the Council Chambers.
Agendas are posted in accordance with Government Code Section 54954.2(a) or Section 54956.
Members of the public can view electronic agendas and staff reports by accessing the City website at www.ci.hercules.ca.us and can receive e-mail notification of agenda and staff report postings by signing up to receive an enotice from the City’s homepage. Agendas and staff reports may also be obtained by contacting the Administrative Services Department at (510) 799-8215 (Posted: November 3, 2022)
5 November 9, 2022City Council Meeting Agenda
INSTRUCTIONS ON HOW TO PARTICIPATE AND WATCH THE HERCULES CITY COUNCIL AND PLANNING
COMMISSION HYBRID MEETINGS
Attend in Person: Hercules City Council Chambers – 111 Civic Drive, Hercules, CA 94547 Attend via Zoom Teleconference: Details provided below and zoom webinar login, passcode and phone numbers provided on the agenda cover.
Please note: Updated COVID-19 safety protocols will be posted outside the City Council Chambers. Please review this information before entering the Council Chambers.
How to Submit Public Comments
In Person: Attend meeting at the Hercules City Council Chambers, fill out a public speaker card located on the side table and submit it to the City Clerk.
Via Zoom: Members of the public may submit a live remote public comment via Zoom video conferencing.
Download the Zoom mobile app from the Apple Appstore or Google Play. If you are using a desktop computer, you can test your connection to Zoom by clicking here or go to: https://www.zoom.us/join. Zoom also allows you to join by phone at +1-669-900-6833 or +1-929-205-6099 or +1-253-215-8782. • Speakers will be asked to provide their name and city of residence, although providing this information is not required for participation.
• Each speaker will be allowed up to 3 minutes to speak and provide comment. A limit of 30 minutes will be devoted to taking public comment during the first public comment period on the agenda. If any speaker comments have not been accommodated prior to the initial 30 minute period, time will be reserved at the conclusion of the meeting for the remaining public comments. • Speakers will be muted until their opportunity to provide public comment.
When the Mayor opens the comment period for the item you wish to speak on, please use the “raise hand” feature (or press *9 if connecting via telephone) which will alert staff that you have a comment to provide and press *6 to unmute.
Written Comments Submitted Electronically: All comments received before 3:00 p.m. the day of the meeting will be provided to the City Council prior to the meeting and posted to the City’s agenda website and located by clicking on the “meeting details” tab. Written comments received after 3:00 p.m. will be provided to City Council and posted to the agenda website the following day. Written comments will not be read aloud during the meeting. Email comments to [email protected]. Please indicate which item on the agenda you are commenting on in the subject line of your email.
Written comments submitted in person or via mail: Additional ways to provide your public comment is to either drop off your comment in person to the front desk receptionist located in the City Hall lobby or to mail your comment to City of Hercules, ATTN: City Clerk – Public Comment (Meeting Date), 111 Civic Drive, Hercules, CA 94547 in time to reach the City Clerk no later than 3:00 p.m. on the day of the meeting or you can submit your comment by telephone by calling (510) 799-8215 no later than 3:00 p.m. on the meeting date.
If you need assistance with public comment, please contact: Lauren Berges, City Clerk at [email protected] or by calling (510) 799-8215.
All public comments will become part of the official meeting record. The City cannot guarantee that its network and/or the website will not be uninterrupted. To ensure that the City Council receives your written comments, you are strongly encouraged to submit your comments in writing in advance of the meeting by 3:00 p.m. on the day of the Council or Commission meeting.
6 November 9, 2022City Council Meeting Agenda
OTHER WAYS TO WATCH THE MEETING
Live on Channel 28: City Council meetings will replay the following Thursday at 7:00 p.m. and Saturday at 1:00 p.m.
Planning Commission meetings will replay the following Wednesday at 7:00 p.m. and Saturday at 9:00 a.m.
Video Streamed Live on the City’s Website:
To view City Council and Planning Commission meeting videos online go to: Hercules Meeting Videos.
Instructions to view Live or On-Demand Videos from the City’s website:
1. Go to: Hercules Meeting Videos or https://hercules.legistar.com/calendar.aspx.
2. Locate the desired meeting and date.
3. Click the associated “Video” link (Video status is as follows):
Video = Video is available for on demand viewing.
In Progress = Video is available for viewing during live recording.
Not Available = Video is either unavailable or has not been recorded.
7 November 9, 2022City Council Meeting Agenda
THE HERCULES CITY COUNCIL ADHERES TO THE FOLLOWING POLICIES,
PROCEDURES AND REGULATIONS REGARDING CITY COUNCIL MEETINGS
1. SPECIAL ACCOMODATIONS: In compliance with the Americans with Disabilities Act, if you require special accommodations to participate at a City Council meeting, please contact the City Clerk at 510-799-8215 at least 48 hours prior to the meeting.
2. AGENDA ITEMS: Persons wishing to add an item to an agenda must submit the final written documentation 12 calendar days prior to the meeting. The City retains the discretion whether to add items to the agenda. Persons wishing to address the City Council otherwise may make comments during the Public Communication period of the meeting.
3. AGENDA POSTING: Agendas of regular City Council meetings are posted at least 72 hours prior to the meeting at City Hall, the Hercules Swim Center, Ohlone Child Care Center, Hercules Post Office, and on the City’s website (www.ci.hercules.ca.us),
4. PUBLIC COMMUNICATION: Persons who wish to address the City Council should complete the speaker form prior to the Council's consideration of the item on the agenda.
Anyone who wishes to address the Council on a topic that is not on the agenda and is relevant to the Council should complete the speaker form prior to the start of the meeting. Speakers will be called upon during the Public Communication portion of the meeting. In accordance with the Brown Act, the City Council may not take action on items not listed on the agenda. The Council may refer to staff any matters brought before them at this time and those matters may be placed on a future agenda.
In the interests of conducting an orderly and efficient meeting, speakers will be limited to three (3) minutes.
Anyone may also submit written comments at any time before or during the meeting.
5. CONSENT CALENDAR: All matters listed under Consent Calendar are considered to be routine and will be enacted by one motion. There will be no separate discussion of these items unless requested by a member of the Council or a member of the public prior to the time the City Council votes on the motion to adopt.
6. LEGAL CHALLENGES: If you challenge a decision of the City Council in court, you may be limited to raising only those issues you or someone else raised at the meeting or in written correspondence delivered at, or prior to, the meeting. Actions challenging City Council decisions shall be subject to the time limitations contained in Code of Civil Procedure Section 1094.6.
8 Vietnam Veterans Memorial Proclamation
WHEREAS, the Vietnam Veterans Memorial was dedicated on November 13, 1982, fulfilling one veteran’s promise to never forget those who served and sacrificed during the Vietnam War; and
WHEREAS, the key element of architect Maya Lin’s design is the shiny black granite wall in a wide “V” shape that continues to be a symbol of enduring legacy healing and education; and
WHEREAS, the two 200-foot-long sections that make up the wall contain more than 58,000 names; and
WHEREAS, one section of the wall is directed toward the Lincoln Memorial, and the other section is toward the Washington Memorial; and
WHEREAS, seventy separate panels make up each section of the “V” shape; and
WHEREAS, the Veterans Names are listed in chronological order by the date of their death and begin and end at the center of the memorial where the two sections meet; and
WHEREAS, the Vietnam Veterans Memorial soon became one of the most visited memorials in the nation's capital; and
WHEREAS, the faces of visitors are reflected in the wall, connecting with the those who died in combat or are listed as missing in action; and
WHEREAS, about 2.7 million US service members served in Vietnam; and
WHEREAS, the United States military involvement in the Vietnam war officially began on August 5, 1964; and
WHEREAS, during the war more than 58,000 US military members lost their lives and 153,000 were wounded; and
WHEREAS, there were 776 Prisoners of War, 114 of whom died in captivity.
NOW THEREFORE, BE IT PROCLAIMED, that I Mayor Dion Bailey, on behalf of the City Council of the City of Hercules, do hereby proclaim November 13, 2022, as the Fortieth Anniversary of the Vietnam Veterans’ Memorial on the Washington Mall.
BE IT FURTHER PROCLAIMED, this memorial that has been called “a community of feelings, almost a sacred precinct,” and declared by a Veteran that “it’s the parade we never got.” The Memorial wall draws together both those who fought and those who marched against the war and served to promote national healing a decade after the divisive conflict’s end.
9 ___________________________
Dion Bailey, Mayor
10 111 Civic Drive
Hercules, CA 94547City of Hercules
Meeting Minutes
City Council
Mayor Dion Bailey
Vice Mayor Alexander Walker-Griffin
Council Member Dan Romero
Council Member Chris Kelley
Council Member Tiffany Grimsley
Dante Hall, City Manager
Patrick Tang, City Attorney
Lauren Berges, City Clerk
7:00 PMTuesday, October 25, 2022
In-Person in Council Chambers or
Zoom ID: 826 8753 2164
Zoom Phone Number: 1-669-444-9171
Zoom Passcode: 626188
To view webcast of meetings, live or on demand, go to the City's website at www.ci.hercules.ca.us I. SPECIAL MEETING - CLOSED SESSION – 6:00 P.M. CALL TO ORDER - ROLL CALL - NONE.
None.
II. PUBLIC COMMUNICATION - CLOSED SESSION ITEMS
III. CONVENE INTO CLOSED SESSION
The Hercules City Council will meet in Closed Session regarding the following:
IV. REGULAR MEETING – 7:00 P.M. CALL TO ORDER - ROLL CALL Council Member T. Grimsley, Council Member D. Romero, Vice Mayor A.
Walker-Griffin, Mayor D. Bailey, and Council Member C. Kelley
Present: 5 -
V. REPORT ON ACTION TAKEN IN CLOSED SESSION
None.
VI. PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Councilmember Chris Kelley.
VII. MOMENT OF SILENCE
None.
11 October 25, 2022City Council Meeting Minutes
VIII. INTRODUCTIONS/PRESENTATIONS/COMMISSION REPORTS
1. 22-336 Introduction of New Police Chief Joseph Vasquez City Manager Dante Hall introduced new Police Chief, Joseph Vasquez.
Councilmembers provided comment. Chief Vasquez provided comment.
Mayor Bailey called for a short recess.
IX. AGENDA ADDITIONS/DELETIONS
City Manager Dante Hall had no agenda additions or deletions.
X. PUBLIC COMMUNICATIONS
Public Speakers: Kelly Ferguson of Engie
XI. PUBLIC HEARINGS
1. 22-330
Conditional Use Permit (CUP 22-01) for Recycling Center; Design Review Permit (DRP 22-02); Parking Exception
Recommendation: That the City Council: 1. Request planning staff present the staff report; 2. Open the public hearing; 3. Invite the applicant to make a presentation or statement; 4. Receive comments from the public; 5.
Offer the applicant or their consultant team the opportunity to answer questions; 6. Close the public hearing; 7. Request clarification from staff or the applicant on any issues related to the project; 8. Adopt Resolution affirming, modifying with determinations and conclusions, or reversing the Planning Commission decision.
Presentation by Larissa Alchin, M-Group Contract Planner and Community Development Director Tim Rood. Councilmembers provided comment.
Applicant Joel Lopez provided comment. Staff provided comment. Public Speakers: Unk male audience member; William Baron of Brandenburg Properties
Councilmembers discussed continuing this item for further clarification on issues related to the project. Mayor Bailey called for a motion to continue the public hearing to January 10, 2023.
MOTION: A motion was made by Council Member Grimsley, seconded by Vice Mayor Walker-Griffin, to continue the public hearing to the regular meeting of January 10, 2023: The motion carried by the following vote:
Aye: Council Member T. Grimsley, Council Member D. Romero, Vice Mayor A.
Walker-Griffin, Mayor D. Bailey, and Council Member C. Kelley 5 -
12 October 25, 2022City Council Meeting Minutes
XII. CONSENT CALENDAR
MOTION: A motion was made by Council Member Kelley, seconded by Vice Mayor Walker-Griffin, to adopt the Consent Calendar. The motion carried by the following vote:
Aye: Council Member T. Grimsley, Council Member D. Romero, Vice Mayor A.
Walker-Griffin, Mayor D. Bailey, and Council Member C. Kelley 5 -
1. 22-335
Meeting Minutes of October 11, 2022
Approved.
2. 22-334 Resolution authorizing the City Manager to enter into a Legal Services Agreement with Sher Edling LLP to recover PCB cleanup costs
Recomendation: Adopt a Resolution authorizing the City Manager to enter into a Legal Services Agreement with Sher Edling LLP to recover PCB cleanup costs.
Approved.
XIII. DISCUSSION AND/OR ACTION ITEMS
1. 22-331
Update on Regional Intermodal Transportation Center Project Recommendation: Receive presentation, discuss, and provide feedback and direction, if any.
Presentation by Director of Public Works Mike Roberts and Leo Scott of Gray Bowen Scott. Councilmembers provided comment. Eric Zell provided comment. Public Speakers: Cordell Hindler
2. 22-333
City Manager's Employment Agreement Amendment
Recommendation: Adopt a Resolution Approving an Amendment to City Manager Dante Hall's employment Agreement to Increase the Cost of Living Adjustment ("COLA") from 3% to 4.5% for Fiscal Years 2022-3 and 2023-4.
Presentation by City Attorney Patrick Tang. Councilmembers provided comment. Public Speakers: Cordell Hindler
MOTION: A motion was made by Vice Mayor Walker-Griffin, seconded by Council Member Kelley, to adopt Resolution 2022-092. The motion carried by the following vote:
Aye: Council Member T. Grimsley, Council Member D. Romero, Vice Mayor A.
Walker-Griffin, Mayor D. Bailey, and Council Member C. Kelley 5 -
XIV. PUBLIC COMMUNICATIONS
Public Speakers: Cordell Hindler
13 October 25, 2022City Council Meeting Minutes
XV. CITY COUNCIL/CITY MANAGER/CITY ATTORNEY ANNOUNCEMENTS,
COMMITTEE, SUB-COMMITTEE AND INTERGOVERNMENTAL COMMITTEE REPORTS
AND FUTURE AGENDA ITEMS
Parks and Recreation Director Christopher Roke provided an update on activities and events.
Councilmembers reported out on local and regional meetings and events.
Mayor Bailey briefly discussed the "City Leaders for a Better Solar" letter brought to the Council's attention during public comment. The Council unanimously agreed to have Mayor Bailey sign the letter on the Council's behalf.
XVI. ADJOURNMENT
Mayor Bailey adjourns the meeting in honor of Luanne Danielson, a long-time Hercules resident who recently passed away. Meeting adjourned at 9:09 p.m.
_________________________________
Dion Bailey, Mayor
Attest:
_______________________________
Lauren Berges, CMC
City Clerk
14 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Edwin Gato, Director of Finance
SUBJECT: Accept the Investment Report for the Quarter Ending September 30, 2022
RECOMMENDED ACTION
Accept the Investment Report for the Quarter Ending September 30, 2022.
FISCAL IMPACT OF RECOMMENDATION
This is an informational report with no fiscal impact.
EXECUTIVE SUMMARY
Pursuant to California Government Code section 53646 and the City’s Investment Policy, a quarterly report and certification shall be provided to the City Council, City Manager, and City Auditor. The Quarterly Investment Report shall include a complete description of the portfolio, the type of investments, the issuers, maturity dates, par value and dollar amounts invested in all securities. The certification must provide assurances that investments were m ade consistent with the City’s Investment Policy and that the City will meet its expenditure obligations for the next six months. The Quarterly Investment Report for the quarter ending September 30, 2022, is provided as Attachment
1. BACKGROUND
To comply with state law and city policy, the City is required to present quarterly investment reports detailing the City's investment portfolio to the City Council, City Manager, and City Auditor. The Council's authority to invest or reinvest funds or sell or exchange securities is delegated to the City's Finance Director, who also serves as City Treasurer. Pursuant to the Investment Policy, the City Treasurer may delegate some of their fiduciary responsibility to an outside investment management firm. An investment manager's fiduciary responsibility is a legal requirement related to registration with the Securities and Exchange Commission under the Investment Advisor Act of 1940. Due to the specialized services and expertise required to assist the City in the varied investment options available, the City has used the Local Investment Agency Fund (LAIF) and PARS experienced investment managers.
DISCUSSION
15 This report presents the City’s investment portfolio for the quarter ending September 30, 2022. It has been prepared to comply with regulations contained in California Government Code Section 53646 and City’s Investment Policy. The report includes all cash and investments managed by the City. It also includes City-related investments held by bond trustees for debt service obligations as well as money held in the irrevocable trust with PARS for pension and other post -employment benefits (OPEB). The report provides information on the investment type, issuer, maturity date, cost, and current market value for each security.
The City utilizes the Local Agency Investment Fund (LAIF) as a money market fund administered by the State Treasurer. LAIF has many governmental agency participants and holds securities through its administrator. LAIF provides local agencies a way to invest cash held in treasury pool that may be withdrawn as needed on a same -day basis to meet the agency’s cash flow needs while realizing interest generated by the Pooled Money Investment Account (PMIA). Moreover, the Investments held by Bond Trustees are administered in accordance with individual bond indentures.
As of September 30, 2022, the overall pooled investment portfolio average yield (before adjustments for changes in market value) was -0.29%, which is lower than the rate for two-year U.S. Treasury Note at 4.22% and LAIF average monthly rate of 1.513%. The market value of the pooled portfolio was $865,790 or 1.3% lower than the book value. As the City does not intend to sell its pooled investment portfolio securities prior to maturity, this will have no effect on yield.
67.52% of the total Investment Portfolio was deposited with LAIF as of September 30, 2022. LAIF has 66.59% of its investments in U.S. Treasuries and agency notes, 6.44% in CDs and bank notes, and 26.97% in other types of investments. Additional economic summaries and specific information related to each of the investment advisors and LAIF are included in the Investment Portfolio Summary Report included in attachment 1.
The City invests its idle cash from all operating funds on a pooled basis to maximize returns. Earnings are allocated to each fund based on the average cash balance. The timing of revenue collections, such as property tax, business licenses, and franchise tax, affects the quarterly investment income during the year. There is adequate cash to meet expected obligations over the next six months.
Governmental Accounting Standards Board (GASB) Statement 40 requires the City to recognize the fair market value of its investments at the end of each fiscal year. The market values of investments Amount
Market Over/(Under) Average
Investment Type Value Cost Yield
Petty Cash $2,005 - 0.00%
Cash in Bank 5,531,375 - 0.05% Local Agency Investment Fund (LAIF) 44,082,531 ($864,742) 1.51% Irrevocable Trust (Pension) 1,965,355 - -4.18% Irrevocable Trust (OPEB) 2,448,470 - -4.18% Investments with Bond Trustees 11,672,577 (1,048) 1.13% Total Portfolio $65,702,313 ($865,790) -0.30%
16 included in this report are obtained from the State Controller’s office for LAIF and from the City’s registered investment managers and bond trustees for all other investments. These market valuations are subject to daily changes. The difference between market value and historical costs, known as Unrealized Investment Gains and Losses, are temporary in nature and are not cash related transactions. Since it is the City’s general intention to hold its investments until maturity, when they would be redeemed at par value, any unrealized gain or loss is only reported at the end of the fiscal year in the City’s Comprehensive Annual Financial Report.
Of the total cash and investments reported above, only the portions held in the City’s General Fund (approximately $15.7 million, or 24%) and Internal Service Funds (approximately $1.6 million, or 2%) are unrestricted, although a portion of these amounts may be committed for existing obligations or designated for specific purposes. The remaining $49.2 million, or 74%, of the City’s cash and investments are restricted for specific uses, in accordance with federal, state, or local agency rules and regulations.
ATTACHMENTS:
1. Quarterly Investment Report
17 1
Investment Report
For Quarter Ended September 30, 2022
City of Hercules, California
18 19
City of Hercules, California
Investment Portfolio Summary Report
For the Quarter Ended September 30, 2022
Book % of Average Market
Value Total Yield Value
Cash on Hand $2,005 $2,005
Cash on Deposit 5,531,375 5,531,375
Total Cash on Hand 5,533,380 8.31% 0.05% 5,533,380 Local Agency Investment Fund (LAIF) 44,947,273 67.52% 1.51% 44,082,531 Irrevocable Trust (Pension) 1,965,355 2.95% -4.15% 1,965,355 Irrevocable Trust (OPEB) 2,448,470 3.68% -4.15% 2,448,470 Investments with Bond Trustees 11,673,625 17.54% 1.13% 11,672,577 Total Portfolio $66,568,103 100.00% -0.29% $65,702,313
Amount over (under) Market Value vs. Book Value ($865,790) % of Portfolio -1.3006%
Investments by Type
Cash on Hand
LAIF
Irrevocable Trust
(Pension)
Irrevocable Trust
(OPEB)
Investments with
Trustees
20 City of Hercules
Detail for Investment Portfolio Summary Report
For the Quarter Ended September 30, 2022
(DAYS)
BOOK PURCHASE MATURITY LIFE TO REMAINING PAR MARKET
DESCRIPTION VALUE RATE YIELD DATE DATE MATURITY LIFE VALUE VALUE
CASH ON HAND
PETTY CASH 2,005.00 0.00% 0.00% 2,005.00 $2,005.00
CASH IN BANK
MECHANICS BANK - GENERAL CHECKING 4,952,458.97 0.00% 0.00% 4,952,458.97 4,952,458.97 MECHANICS BANK - HERCULES RDA 395,980.02 0.00% 0.00% 395,980.02 395,980.02 MECHANICS BANK - PD ASSET SEIZURE 162,896.91 0.00% 0.00% 162,896.91 162,896.91 CalTRUST 20,039.28 0.19% 0.19% 7/1/2022 9/30/2022 91 - 20,039.28 20,039.28 TOTAL AND AVERAGES 5,531,375.18 0.05% 0.05% 91 - 5,531,375.18 5,531,375.18
LOCAL AGENCY INVESTMENT FUND (LAIF)
LAIF 44,947,273.34 1.51% 1.51% 7/1/2022 9/30/2022 91 - 44,947,273.34 44,082,531.04
IRREVOCABLE TRUST (PENSION/OPEB)
US BANK MUTUAL (PARS-OPEB) 2,448,469.58 -4.15% -4.15% 7/1/2022 9/30/2022 91 - 2,448,469.58 2,448,469.58 US BANK MUTUAL (PARS-PENSION) 1,965,355.20 -4.15% -4.15% 7/1/2022 9/30/2022 91 - 1,965,355.20 1,965,355.20 TOTAL AND AVERAGES 4,413,824.78 -4.15% -4.15% 91 - 4,413,824.78 4,413,824.78
INVESTMENTS WITH BOND TRUSTEES
GE CAPITAL CORPORATION 4,455.50 3.03% 3.03% 7/1/2022 9/30/2022 91 - 4,455.50 4,455.50
WEBSTER BANK (STERLING NATIONAL BANK
ESCROW) 117,474.09 0.24% 0.24% 7/1/2022 9/30/2022 91 - 117,474.09 117,474.09 THE BANK OF NEW YORK (BNY) JM 05 1 RESERVE
FUND 55,797.47 0.00% 0.00% 7/1/2022 9/30/2022 91 - 55,797.47 55,797.47
THE BANK OF NEW YORK (BNY) MELLON TRUST
HERCULES PFA WW INTEREST ACCT 21 A 2,887.50 0.00% 0.00% 7/1/2022 9/30/2022 91 - 2,887.50 2,887.50
THE BANK OF NEW YORK (BNY) MELLON TRUST
HERCULES PFA WW ACQUISITION FD 21 A 8,325,000.00 0.00% 0.00% 7/1/2022 9/30/2022 91 - 8,325,000.00 8,325,000.00
THE BANK OF NEW YORK (BNY) MELLON TRUST
(HERCULES PFA 09 REVENUE FUND) 455,138.28 2.54% 2.54% 7/1/2022 9/30/2022 91 - 455,138.28 454,090.74
THE BANK OF NEW YORK (BNY) MELLON TRUST
(HERCULES PFA 09 DEBT SERV PRIN ACCT) 75,499.70 2.57% 2.57% 7/1/2022 9/30/2022 91 - 75,499.70 75,499.70
THE BANK OF NEW YORK (BNY) MELLON TRUST
(HERCULES PFA 09 DEBT SERV INT ACCT) 208,852.73 2.57% 2.57% 7/1/2022 9/30/2022 91 - 208,852.73 208,852.73
THE BANK OF NEW YORK (BNY) MELLON TRUST
(HERCULES PFA 09 RESERVE FD) 920,215.00 2.57% 2.57% 7/1/2022 9/30/2022 91 - 920,215.00 920,215.00
THE BANK OF NEW YORK (BNY) MELLON TRUST
(HERCULES 2020 INT FD) 4,567.80 0.00% 0.00% 7/1/2022 9/30/2022 91 - 4,567.80 4,567.80
THE BANK OF NEW YORK (BNY) MELLON TRUST (SA
HERCULES 2022 A B DEBT SERVICE) 1,470,238.27 0.00% 0.00% 7/1/2022 9/30/2022 91 - 1,470,238.27 1,470,238.27 THE BANK OF NEW YORK (BNY) MELLON TRUST (sa
HERCULES 2022 A B INTEREST ACCT) 33,498.59 0.00% 0.00% 7/1/2022 9/30/2022 91 - 33,498.59 33,498.59 TOTAL AND AVERAGES 11,673,624.93 1.13% 1.13% 91 - 11,673,624.93 11,672,577.39 TOTAL INVESTMENT REPORT $66,568,103.23 -0.29% -0.29% 91 - $66,568,103.23 $65,702,313.39 21 City of Hercules, California
Investment Portfolio Summary Report
For the Quarter Ended September 30, 2022
% of
Cash Description Book Value Total
Bond Trustee $11,673,625 18%
Irrevocable Trust 4,413,825 7%
Restricted 33,130,713 50%
General Fund 15,707,950 24%
Internal Service Funds 1,641,990 2%
Total, Book Value $66,568,103 100%
Restricted:
Wastewater 21,014,397
Successor Agency 4,867,443
Development Impact Fees 1,966,977
Capital Projects 1,376,232
Solid Waste 908,649
Gas Tax & Measure J "Street" 752,798
Landscape & Lighting 736,381
Agency Fund 581,697
Grants 473,625
BART (Park & Ride) 289,617
Asset Seizure 162,897
33,130,713
Bond Trustee
17%
Irrevocable Trust
7%
Restricted
50%
General Fund
24%
Internal Service Funds
2%
Cash by Fund
22 September 1.513
August 1.276
July 1.090
0.00003699565555327
0.980760962
LAIF Earnings Ratio(2):
LAIF Fair Value Factor(1):
PMIA Daily(1): 1.63%
1.35LAIF Apportionment Rate(2):
PMIA Quarter to Date(1): 1.29%
304PMIA Average Life(1):
Treasuries
66.59%
Agencies
19.79%
Certificates of
Deposit/Bank Notes
6.44%
Time
Deposits
2.20%
Commercial
Paper
4.59%
Corporate
Bonds
0.22%
Loans
0.17%
Notes: The apportionment rate includes interest earned on the CalPERS Supplemental Pension Payment pursuant to Government Code 20825 (c)(1) and interest earned on the Wildfire Fund loan pursuant to Public Utility Code 3288 (a).
Source:
(1) State of California, Office of the Treasurer
(2) State of Calfiornia, Office of the Controller
PMIA Average Monthly
Effective Yields(1)
PMIA/LAIF Performance Report
as of 10/14/22
Daily rates are now available here. View PMIA Daily Rates Quarterly Performance
Quarter Ended 09/30/22
Chart does not include $3,917,000.00 in mortgages, which equates to 0.002%. Percentages may not total 100% due to rounding.
Pooled Money Investment Account
Monthly Portfolio Composition (1)
09/30/22
$222.9 billion
23 City of Hercules
As of September 30, 2022
Presented By
Andrew Brown, CFA
24 PARS: City of Hercules
Performance Inception: 6/1/2010
The OPEB plan was invested in account 6746019207, PARS Balanced HighMark Plu s, from June 1, 2010 to December 31, 2017. The Plan was then subsequently in vested in account 6746050104, PARS Moderately Conservative H ighMark Plus, from January 1, 2018 and onwards. R eturns are gross of account level investment adv isory fees and net of any fees, including fees to manage mutual fund or exchange traded fund holdi ngs. Returns for periods over one year are annualized. The information p resented has been obtained from sources believed to be accurate and reliable. Past performance i s not indicative of future returns. Securities are not FDIC insured, ha ve no bank guarantee, and may lose value.
2 Quarter
to Date
(3 Months)
Year
to Date
(9 Months) 1 Year 3 Years 5 Years 10 Years
Inception
to Date
06/01/2010
Cash Equivalents .47 .62 .62 .47 1.00 .59 .48
Lipper Money Market Funds Index .49 .63 .63 .47 .97 .54 .44
Total Fixed Income -3.91 -13.73 -13.98 -2.76 -.14 1.10 2.09 Bloomberg US Aggregate Bd Index -4.75 -14.61 -14.60 -3.26 -.27 .89 1.88
Total Equities -5.72 -24.57 -19.83 4.79 5.46 8.84 9.50
Large Cap Funds -4.85 -24.84 -18.51 7.74 8.24 11.19 11.41 S&P 500 Composite Index -4.88 -23.87 -15.47 8.16 9.24 11.70 12.34
Mid Cap Funds -3.42 -24.13 -19.11 5.15 6.35 8.89 9.85
Russell Midcap Index -3.44 -24.27 -19.39 5.19 6.48 10.30 10.93
Small Cap Funds -3.25 -21.49 -18.85 5.04 5.66 10.58 11.34 Russell 2000 Index -2.19 -25.10 -23.50 4.29 3.55 8.55 9.22
International Equities -10.54 -26.29 -25.12 -1.11 -.71 2.81 3.71 MSCI EAFE Index -9.36 -27.09 -25.13 -1.83 -.84 3.67 4.42 MSCI EM Free Index -11.57 -27.16 -28.11 -2.07 -1.81 1.05 1.99
REIT Funds -11.07 -29.25 -18.46 -1.98 2.76
Wilshire REIT Index -10.23 -29.66 -17.60 -2.17 2.88 6.15 8.17
Total Managed Portfolio -4.15 -16.31 -14.76 .03 2.18 5.15 6.12 Selected Period Performance
Hercules OPEB
Period Ending: 9/30/2022
25 Asset Allocation – OPEB Plan
As of September 30, 2022
PARS: City of Hercules
3 Current Asset Allocation Investment Vehicle
Equity Range: 20%-40% 27.39%
Large Cap Core COFYX Columbia Contrarian Core Inst3 2.76% VGIAX Vanguard Growth & Income Adm 5.20%
Large Cap Value DODGX Dodge & Cox Stock Fund 2.53%
IVE iShares S&P 500 Value ETF 1.17%
Large Cap Growth HNACX Harbor Capital Appreciation Retirement 1.61% PRUFX T. Rowe Price Growth Stock Fund I 1.61%
Mid Cap Core IWR iShares Russell Mid-Cap ETF 2.69%
Small Cap Value UBVFX Undiscovered Managers Behavioral Val R6 2.08% Small Cap Growth VBK Vanguard Small-Cap Growth ETF 2.12% International Core DFALX DFA Large Cap International I 1.76% International Value DODFX Dodge & Cox International Stock Fund 0.55% International Growth MGRDX MFS® International Growth R6 0.56% Emerging Markets HHHFX Hartford Schroders Emerging Mkts Eq F 1.72% Real Estate VNQ Vanguard Real Estate ETF 1.02%
Fixed Income Range: 50%-80% 66.55%
Short-Term VFSUX Vanguard Short-Term Investment-Grade Adm 13.64% Intermediate-Term DBLFX DoubleLine Core Fixed Income I 17.28% PTTRX PIMCO Total Return Instl Fund 17.33%
PTRQX Prudential Total Return Bond Q 17.27%
High Yield PHIYX PIMCO High Yield Instl 1.03%
Cash Range: 0%-20% 6.06%
FGZXX First American Government Oblig Z 6.06%
TOTAL 100.00%
26 PARS: City of Hercules
Performance Inception: 12/01/2017 Initial contribution was made on November 2017.
Returns are gross of account level investment advisory fees and net of any fees , including fees to manage mutual fund or exchange traded fund holdings. Returns for periods over one year are annualized. The information presented has been obtained from sources believed to be accurate and reliable. Past performance is not i ndicative of future returns. Securities are not FDIC insured, have no bank guarantee, and may lose value. 4 Quarter
to Date
(3 Months)
Year
to Date
(9 Months) 1 Year 3 Years
Inception
to Date
(58 Months)
Cash Equivalents .47 .62 .62 .47 1.01
Lipper Money Market Funds Index .49 .63 .63 .47 .97
Total Fixed Income -3.91 -13.73 -13.98 -2.76 -.12
Bloomberg US Aggregate Bd Index -4.75 -14.61 -14.60 -3.26 -.26
Total Equities -5.72 -24.57 -19.83 4.79 4.80
Large Cap Funds -4.85 -24.84 -18.51 7.74 7.48
S&P 500 Composite Index -4.88 -23.87 -15.47 8.16 8.37
Mid Cap Funds -3.42 -24.13 -19.11 5.15 5.49
Russell Midcap Index -3.44 -24.27 -19.39 5.19 5.62
Small Cap Funds -3.25 -21.49 -18.85 5.04 4.93
Russell 2000 Index -2.19 -25.10 -23.50 4.29 2.89
International Equities -10.54 -26.29 -25.12 -1.11 -1.16 MSCI EAFE Index -9.36 -27.09 -25.13 -1.83 -1.39
MSCI EM Free Index -11.57 -27.16 -28.11 -2.07 -2.61
REIT Funds -11.07 -29.25 -18.46 -1.98 2.52
Wilshire REIT Index -10.23 -29.66 -17.60 -2.17 2.60
Total Managed Portfolio -4.15 -16.31 -14.76 .03 1.70
Selected Period Performance
PARS/PRSP MODERATELY CONSERVATIVE HM
Account 6746050104
Period Ending: 9/30/2022
27 Asset Allocation – Pension
As of September 30, 2022
PARS: City of Hercules
5 Current Asset Allocation Investment Vehicle
Equity Range: 20%-40% 27.39%
Large Cap Core COFYX Columbia Contrarian Core Inst3 2.76% VGIAX Vanguard Growth & Income Adm 5.20%
Large Cap Value DODGX Dodge & Cox Stock Fund 2.53%
IVE iShares S&P 500 Value ETF 1.17%
Large Cap Growth HNACX Harbor Capital Appreciation Retirement 1.61% PRUFX T. Rowe Price Growth Stock Fund I 1.61%
Mid Cap Core IWR iShares Russell Mid-Cap ETF 2.69%
Small Cap Value UBVFX Undiscovered Managers Behavioral Val R6 2.08% Small Cap Growth VBK Vanguard Small-Cap Growth ETF 2.12% International Core DFALX DFA Large Cap International I 1.76% International Value DODFX Dodge & Cox International Stock Fund 0.55% International Growth MGRDX MFS® International Growth R6 0.56% Emerging Markets HHHFX Hartford Schroders Emerging Mkts Eq F 1.72% Real Estate VNQ Vanguard Real Estate ETF 1.02%
Fixed Income Range: 50%-80% 66.55%
Short-Term VFSUX Vanguard Short-Term Investment-Grade Adm 13.64% Intermediate-Term DBLFX DoubleLine Core Fixed Income I 17.28% PTTRX PIMCO Total Return Instl Fund 17.33%
PTRQX Prudential Total Return Bond Q 17.27%
High Yield PHIYX PIMCO High Yield Instl 1.03%
Cash Range: 0%-20% 6.06%
FGZXX First American Government Oblig Z 6.06%
TOTAL 100.00%
28 PARS: City of Hercules
6 1-Month 3-Month Year-to- 1-Year 3-Year 5-Year 10-Year Fund Name Return Return Date Return Return Return Return Columbia Contrarian Core Inst3 -9.50 -5.67 -23.36 -16.97 8.44 8.36 11.61 Vanguard Growth & Income Adm -8.98 -4.48 -22.69 -13.85 8.64 9.26 11.80 Dodge & Cox Stock I -9.52 -7.19 -17.89 -13.09 8.46 7.29 11.39 iShares S&P 500 Value ETF -8.48 -5.86 -16.69 -9.80 4.93 6.00 9.45 Harbor Capital Appreciation Retirement -9.15 -1.80 -36.75 -33.57 8.36 9.90 12.86 T. Rowe Price Growth Stock I -9.49 -3.29 -38.69 -35.76 3.60 6.83 11.48 S&P 500 TR USD -9.21 -4.88 -23.87 -15.47 8.16 9.24 11.70 iShares Russell Mid-Cap ETF -9.28 -3.47 -24.35 -19.51 5.03 6.33 10.13 Russell Mid Cap TR USD -9.27 -3.44 -24.27 -19.39 5.19 6.48 10.30 Undiscovered Managers Behavioral Val R6 -9.95 -5.61 -13.07 -6.72 9.14 5.99 10.79 Russell 2000 Value TR USD -10.19 -4.61 -21.12 -17.69 4.72 2.87 7.94 Vanguard Small-Cap Growth ETF -8.99 -0.79 -30.50 -30.09 2.82 5.65 9.15 Russell 2000 Growth TR USD -9.00 0.24 -29.28 -29.27 2.94 3.60 8.81 Dodge & Cox International Stock I -9.05 -10.69 -19.64 -17.71 0.25 -1.48 4.17 DFA Large Cap International I -9.44 -10.05 -25.80 -23.33 -0.75 -0.26 3.83 MFS International Growth R6 -7.89 -7.73 -25.61 -21.94 0.99 3.04 5.56 MSCI EAFE NR USD -9.35 -9.36 -27.09 -25.13 -1.83 -0.84 3.67 Hartford Schroders Emerging Mkts Eq F -10.82 -12.16 -29.54 -31.60 -2.63 -1.70 1.53 MSCI EM NR USD -11.72 -11.57 -27.16 -28.11 -2.07 -1.81 1.05 Source: SEI Investments, Morningstar Investments
INTERNATIONAL EQUITY FUNDS
Returns less than one year are not annualized. Past performance is no indication of future results. The information presented has been obtained from sources believed to be accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value.
CITY OF HERCULES
For Period Ending September 30, 2022
LARGE CAP EQUITY FUNDS
MID CAP EQUITY FUNDS
SMALL CAP EQUITY FUNDS
29 PARS: City of Hercules
7 1-Month 3-Month Year-to- 1-Year 3-Year 5-Year 10-Year Fund Name Return Return Date Return Return Return Return Vanguard Real Estate ETF -12.83 -10.98 -29.25 -18.71 -1.62 3.07 6.23 PIMCO Total Return Instl -4.31 -4.82 -15.59 -15.65 -3.14 -0.30 1.05 PGIM Total Return Bond R6 -4.82 -4.57 -16.77 -16.51 -3.72 -0.14 1.74 Vanguard Short-Term Investment-Grade Adm -2.01 -1.87 -7.35 -7.98 -0.74 0.75 1.34 DoubleLine Core Fixed Income I -4.13 -4.08 -13.77 -13.96 -3.08 -0.31 1.36 Bloomberg US Agg Bond TR USD -4.32 -4.75 -14.61 -14.60 -3.26 -0.27 0.89 PIMCO High Yield Instl -3.77 -0.50 -14.37 -13.79 -1.28 1.05 3.45 ICE BofA US High Yield Mstr II Index -4.02 -0.68 -14.62 -14.06 -0.67 1.41 3.90 Source: SEI Investments, Morningstar Investments
REAL ESTATE FUNDS
BOND FUNDS
Returns less than one year are not annualized. Past performance is no indication of future results. The information presented has been obtained from sources believed to be accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value.
CITY OF HERCULES
For Period Ending September 30, 2022
30 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Lauren Berges, City Clerk
SUBJECT: Emergency Declaration Extension
RECOMMENDED ACTION: Adopt a resolution authorizing virtual city council, commission and committee meetings during a declared state of emergency pursuant to Government Code Section 54953 (AB 361)
FISCAL IMPACT OF RECOMMENDATION: There are no direct financial impacts from enactment of the proposed resolution.
EXECUTIVE SUMMARY:
When the COVID-19 pandemic started, local agencies struggled to conduct their public meetings in compliance with the Brown Act’s public accessibility requirements while still abiding by stay-at- home orders. As a result, Governor Newsom signed Orders N-25-20, N-29-20, and N-35-20 to grant local agencies the flexibility to meet remotely during the COVID-19 pandemic. These orders expired on September 30, 2021.
On September 16, 2021, Governor Newsom signed into law AB 361 – Brown Act: Remote Meetings During Emergencies. AB 361 went into effect immediately upon signature by the governor. It amends the Brown Act to allow local legislative bodies to continue having purely virtual meetings using teleconferencing and virtual meeting technology as long as there is a gubernatorial "proclaimed state of emergency," and either (1) state or local officials imposing or recommending measures that promote social distancing or (2) the legislative body finding that meeting in person would present an imminent safety risk to attendees.
There are key differences between the Executive Orders, which expired September 30, 2021, and AB 361. AB 361 imposes requirements with respect to public comment, however, the City of Hercules currently satisfies legal requirements with respect to live public comment via Zoom in alignment with AB 361. Additionally, public agencies must either make findings by majority vote that the state of emergency still exists and continues to directly impact the ability of the members to meet safely in person, or that health officials continue to impose or recommend measures to promote social distancing. These conditions continue to exist. Determinations by 31 the local agency that the emergency impacts the ability to meet safely in person must be re- visited every 30 days.
Governor Newsom’s March 4, 2020 Proclamation of Emergency related to the COVID-19 pandemic is still in effect. In addition, the Contra Costa County Public Health Officer continues to recommend teleconferencing or social distancing to protect the public’s health and safety during local government meetings.
Continuing the remote meetings would provide for a consistent meeting format until the pandemic emergency is lifted.
DISCUSSION:
AB 361 amends Government Code Section 54953 to provide an alternative to having the public access the teleconferencing locations of City Councilmembers, Commissioner, or Committee Members. To teleconference public meetings without providing access to City Councilmember’s private residences, the City Council must pass a resolution stating that they have reconsidered the circumstances of the COVID-19 state of emergency and that any of the following circumstances exist:
1. The state of emergency as a result of COVID-19 continues to directly impact the ability of the members of City Council and the members of the City’s Commissions, and Committees to meet safely in person; and
2. The State of California and the City of Hercules continue to impose or recommend measures to promote social distancing.
This Resolution makes the findings to confirm the current conditions to allow teleconference meetings pursuant to AB 361 for the City Council and on behalf of the commissions and committees created by the City Council pursuant to Government Code section 54952(b). The Resolution authorizes teleconference meetings including hybrid meetings held both via teleconference and in-person. This Resolution will allow members of the public to safely observe and participate in local government teleconference meetings during the continued pandemic.
AB 361 requires City Council to make these findings every 30 days to continue teleconference hearings. If adopted, staff will agendize this item once a month until the state of emergency is over, or City Council determines teleconference meetings are no longer necessary.
If the Resolution is not adopted, the City will be required to hold public meetings in-person or conduct teleconference meetings pursuant to subsection 54953(b)(3) of the California Government Code which will require posting of the agenda at each teleconference location and for the public to be admitted to each teleconference location.
ATTACHMENTS:
1. Resolution
2. Contra Costa Health Services Recommendation
32 HERCULES CITY COUNCIL
RESOLUTION NO. 22-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES
AUTHORIZING VIRTUAL CITY COUNCIL, COMMISSION, AND COMMITTEE
MEETINGS DURING A DECLARED STATE OF EMERGENCY PURSUANT TO GOVERNMENT CODE 54953 (AB 361)
WHEREAS, the City Council of the City of Hercules is committed to ensuring public access to observe and participate in local government meetings; and
WHEREAS, all meetings of the City Council and its other legislative bodies created pursuant to Government Code section 54952(b) are open and public, as required by the Ralph M. Brown Act, so that any member of the public may participate in local government meetings; and
WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, the Governor signed Executive Order N-29-20 suspending certain provisions of the Brown Act in order to allow local legislative bodies to conduct meetings by teleconference or by other means; and
WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08-21 which ended the provisions of Executive Order N-29-20 on September 30, 2021; and
WHEREAS, on September 16, 2021, the Governor signed AB 361 (2021) into law allowing legislative bodies to continue to conduct meetings via teleconferencing under specified conditions, including the requirement that the legislative body make specified findings. AB 361 (2021) took effect on October 1, 2021; and
WHEREAS, AB 361 authorizes local legislative bodies to continue using teleconferencing and virtual meeting technology as long as there is a gubernatorial "proclaimed state of emergency," and either (1) State or local officials imposing or recommending measures that promote social distancing or (2) the legislative body finding that meeting in person would present an imminent safety risk to attendees; and
WHEREAS, the state of emergency proclaimed by the Governor on March 4, 2020, related to the pandemic of coronavirus commonly as COVID-19 has not been rescinded and remains in effect; and
WHEREAS, new variants of COVID-19 have developed, and risks of illness or death due to such variants remains significant to the general public; and
WHEREAS, State and local health officials have imposed and recommended social distancing measures for the protection of public health and safety in response to COVID-19; and
WHEREAS, the Contra Costa Health Services Officer continues to recommend teleconferencing or social distancing during public meetings of all legislative bodies to protect the community’s health against the spread of COVID-19; and
WHEREAS, teleconference meetings may include hybrid meetings, in which all or some members of the legislative body meet in person while others attend by teleconference, and members of the public are either allowed to participate only by teleconference or both in person 33 and by teleconference (“hybrid meetings”). The purpose of hybrid meetings is to allow for multiple modes of attending meetings while reducing the risks of COVID-19, including its variants; and
WHEREAS, the City Council, acting as a legislative body pursuant to Government Code section 54952(a) and for the benefit of the commissions, committees, and other bodies that were created by the City Council pursuant to Government Code section 54952(b) (collectively referred to as “Legislative Bodies”), finds that the current conditions meet the circumstances set forth in Government Code section 54953(e)(3) to allow Legislative Bodies to continue to use teleconferencing to hold open and public meetings if the Legislative Bodies comply with the requirements set forth in Government Code section 54953(e)(2) to ensure the public can safely participate in and observe local government meetings.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules that:
Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Section 2. Current Conditions Authorize Teleconference Public Meetings of Legislative Bodies.
Based on the California Governor’s continued declaration of a State of Emergency and the Contra Costa County Health Services Officer’s recommendation to continue teleconferencing or social distancing during public meetings, the City Council finds that the conditions continue to exist pursuant to Government Code sections 54952(e)(1) and 54953(e)(3) to allow Legislative Bodies to use teleconferencing to hold public meetings in accordance with Government Code section 54953(e)(2) to ensure members of the public have continued access to safely observe and participate in local government meetings.
Section 3. Authorize Legislative Bodies to Conduct Teleconference Meetings. The Legislative Bodies are hereby authorized to take all actions necessary to carry out the intent and purpose of this Resolution including, conducting open and public meetings in accordance with Government Code section 54953(e)(2) and other applicable provisions of the Brown Act.
Section 4. Effective Date. This Resolution shall take effect immediately and shall be in effect for a period of 30 days from the date of adoption. The City Council may reconsider the circumstances necessitating this resolution within 30 days of the adoption of this resolution.
NOW, THEREFORE, BE IT FURTHER RESOLVED the foregoing Resolution was duly and regularly adopted at a special meeting of the City Council of the City of Hercules held on the 9th day of November, 2022 by the following vote of the Council:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________
Dion Bailey, Mayor
ATTEST:
Lauren Berges, City Clerk
34 3
35 Recommendations for safely holding public meetings
Each local government agency is authorized to determine whether to hold public meetings in person, on-line (teleconferencing only), or via a combination of methods. The following are recommendations from the Contra Costa County Health Officer to minimize the risk of COVID 19 transmission during a public meeting.
1. Online meetings (i.e. teleconferencing meetings) are encouraged, where practical, as these meetings present the lowest risk of transmission of SARS CoV-2, the virus that causes COVID 19. This is particularly important when community prevalence rates are high. Our current trends as of September 1, 2022 in Covid-19 case rate, test positivity, Covid-19 hospitalizations, and Covid-19 wastewater surveillance are decreasing or stable, but still remain high at this time. In addition to this, the predominant variant of Covid-19 being identified continues to be the Omicron variant and it’s subvariants the impact of which on the spread of Covid-19 has shown to dramatically increase COVID-19 transmission.
2. If a local agency determines to hold in-person meetings, offering the public the opportunity to attend via a call-in option or an internet-based service option is recommended, when possible, to give those at higher risk of and/or higher concern about COVID-19 an alternative to participating in person.
3. A written safety protocol should be developed and followed. It is recommended that the protocol require social distancing, where feasible – i.e. six feet of separation between attendees; and consider requiring or strongly encouraging face masking of all attendees and encouraging attendees to be up-to-date on their COVID-19 vaccine.
4. Seating arrangements should allow for staff and members of the public to easily maintain at least six-foot distance from one another at all practicable times.
5. Consider holding public meetings outdoors. Increasing scientific consensus is that outdoor airflow reduces the risk of COVID-19 transmission compared to indoor spaces. Hosting events outdoors also may make it easier to space staff and members of the public at least 6 feet apart. If unable to host outdoors, consider ways to increase ventilation and flow of the indoor space to reduce the risk of COVID-19 while indoors.
6. Current evidence is unclear as to the added benefit of temperature checks in addition to symptom checks. We encourage focus on symptom checks as they may screen out individuals with other Covid-19 symptoms besides fever and help reinforce the message to not go out in public if you are not feeling well.
7. Consider a voluntary attendance sheet with names and contact information to assist in contact tracing of any cases linked to a public meeting.
Revised 9-1-2022
Sefanit Mekuria, MD, MPH
Deputy Health Officer, Contra Costa County
36 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Lauren Berges, City Clerk
SUBJECT: Commission and Committee Appointments
RECOMMENDED ACTION:
Consider making appointments to Hercules Commissions for the start of new two (2) year terms, to fill unexpired terms, and make appointments to the new Parks and Recreation Steering Committee (time-limited).
FISCAL IMPACT OF RECOMMENDATION:
There is no fiscal impact associated with this item.
DISCUSSION:
The City’s Commissions (listed below) have seats with term expirations of December 31, 20 22.
The City maintains an open recruitment for applicants to fill the seats. The application deadline for Planning Commission, Finance Commission, Community Library Services Commission, and the Contra Costa County Advisory Council on Aging are open until f illed. The Parks and Recreation Steering Committee is a newly formed Committee and was advertised on the City’s website and pushed through our social media platforms through October 31 , 2022 . The City Council held a Special Meeting to conduct interviews earlier this evening. (November 9, 2022).
Local Commissions
Planning Commission – Three (3) terms ending December 2022 The Planning Commission meets the first and third Mondays of every month at 7 p.m. The Commission is advisory to the Council and has statutory duties imposed by State law. Six (6) applications were received. The t wo current Commissioners with expiring terms are: Nicole Sacramento; Ken Morrison; the third vacancy is due to the removal of Irina Galieva whose term expires on December 31, 2022.
Applicants for the Planning Commission are: Ken Morrison, Jagjit Bhambra, Dilli Bhattarai, Hakeem Rashid, Carol Most-Walker, Pamela Vargas
Finance Commission – Two (2) terms ending December 2022 The Finance Commission meets bi-monthly on the third Wednesday at 7 p.m. The Commission is advisory to the Council. Two (2) applications were received. The 2 current Commissioners with expiring terms are: Andrew Gabriel and Ed Ulle
37 Applicants for Finance Commission are: Ed Ulle, Barinder Flanagan
Community & Library Services Commission – Three (3) terms ending December 2022 The Community and Library Services Commission meets on the second Monday of every month at 7:00 p.m. The Commission is advisory to the Council. Three (3) applications were received for the Commission. The Commissioners with expiring terms are Han Chen; D. Yamamoto; Brian Campbell-Miller. All three are seeking reappointment and running unopposed. Staff recommends that Mr. Chen, Dr. Yamamoto, and Mr. Campbell-Miller be reappointed to their incumbency and forgo an interview process for the sake of meeting time.
Steering Committee
Parks and Recreation Steering Committee
The City of Hercules has established a model for using a “steering” committee to maximize public outreach and achieve desired outcomes as we develop our Parks Master Plan. In an advisory role to the City Council, the Steering Committee will be instrumental in guiding staff and the consultants (the project team) by engaging the community and reviewing content throughout the process. The project team will meet 5-7 times throughout the process. Each meeting will focus on presenting the project team’s research, exploring the City’s history of parks/recreation, and strategizing on how to effectively engage the community during workshops.
The Steering Committee will be comprised of:
Two (2) Community and Library Services Commissioners
Two (2) Planning Commissioners
Three (3) At-large Community Members to represent stakeholder groups that frequently use park facilities, such as seniors, youth, adult sports advocates, and individuals with disabilities.
The Planning Commission appointed Commissioners Hector Rubio and Ken Morrison to be Committee representatives at their October 3, 2022 meeting. The Community Library Services Commission appointed Commissioners Evangelina (Angel) Ward -Jackson and Han Chen to be Committee representatives at their October 10, 2022 meeting. At-large members will be selected by the City Council through the existing Committee/Commission application and interview process at the November 9, 2022 Special City Council meeting. Two (2) applications were received.
Applications received by: Ricky Delos Reyes, Bob Redlo.
Regional Boards
Contra Costa County Advisory Council on Aging – One term ending December 2022 The steps required for appointing a member to the Advisory Council of Aging include the City Council nominating a person to serve as Hercules’ representative on the Council. The nomination information is provided to the Contra Costa County Board of Supervisors, who will make the official appointment. Jennifer Doran is the current appointed representative and her term is ending December 2022. She has submitted an application for reappointment and is running unopposed. Staff recommends Ms. Doran be reappointed to her incumbency and forgo the interview process for the sake of meeting time.
38 The Contra Costa County Library Commission Seat
Recently, the Contra Costa County Library Commission seat for the City of Hercules became vacant.
Current incumbent, Brian Campbell-Miller resigned from the post due to an unforeseen conflict. The current term is set to expire on June 30, 2023. Hercules Municipal Code Section 2-2.502 Terms of Office, states in part: “(e) one member of this Commission shall serve as the City’s Representative to the Contra Costa County Library Commission. That representative shall be nominated by the Commission and such nomination shall be forwarded to the City Council for consideration, such appointment shall be for a period of (2) years.”
On September 12, 2022 the Community and Library Services Commission discussed the City’s Representative to the Contra Costa County Library Commission vacancy and t he Commission recommends to City Council that Jo Ellen Marcotte be the City’s Representative to finish the unexpired term. Youth Commissioner Haley Solis is also recommended by the CLSC to be the alternate.
ATTACHMENTS: None.
39 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: The Mayor and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Michael Roberts, Public Works Director/City Engineer
SUBJECT: Memorandum of Understanding with Participating Contra Costa Agencies to Complete a Feasibility Study for Expanded Ferry Service including the Hercules Hub at a Participating Cost of $40,000 in Measure J Funding
RECOMMENDED ACTION:
Approve a Memorandum Of Understanding (MOU) with the Cities of Antioch, Martinez, and Pittsburg, Contra Costa County, Eastern Contra Costa Transit Authority , and the Contra Costa Transportation Authority to advance planning and studies to evaluate the feasibility of expanded ferry service in Contra Costa County including the Hercules Hub at a participating cost of $40,000 in Measure J Funding.
FISCAL IMPACT OF RECOMMENDATION:
There is sufficient Measure J Funding for this stud y due to the savings on the Sycamore Avenue Rehabilitation Project. Future street maintenance and repair funding levels will be discussed as part of next year’s budget process and will be informed by the pavement management study currently underway.
EXECUTIVE SUMMARY:
The Hercules Hub is a regional, state-of-the-art housing and transportation development located on the waterfront overlooking the San Pablo Bay. It will connect thousands of housing units with a new train stop along the Capitol Corridor, bicycle and pedestrian pathways, bus routes, carpool options, and ferry service. To date $46M in capital improvements have been constructed for this new facility and the City is fully engaged in securing the funding needed to design and construct the remaining infrastructure that will allow the Capitol Corridor train to serve the Hub.
At this time staff is recommending the City enter into an MOU with other Contra Costa County public agencies to complete a feasibility assessment to provide ferry service to their respective jurisdictions.
The scope of work would include assessing existing infrastructure, capital improvement costs, operational and maintenance costs including the use of small vessels, permitting requirements, estimate ridership, evaluate faire structure, evaluate possible management structures of the service, and identify funding options including grant opportunities. As the lead agency, the Contra Costa 40 Transportation Authority (CCTA) would complete the majority of the work under the MOU while each agency would participate through a designated representative.
Participating in the MOU will lay the groundwork for future service to the Hub by leveraging service expansion through the joint effort of 7 public agencies, providing the studies needed to better understand and plan for service, and the completion of a written plan by the regional transportation planning agency (i.e. CCTA) needed for the City to be competitive on future grant funding opportunities.
DISCUSSION:
Over the past year, the Cities of Antioch, Hercules, Martinez, and Pittsburg (“Cities”), Contra Costa County(“County”), Eastern Contra Costa Transit Authority (“ECCTA”), and the Contra Costa Transportation Authority (“CCTA”), collectively referred to as the “Parties,” have been discussing options for expansion of ferry service in Contra Costa County. The Parties have determined that increasing transit options in Contra Costa County will promote economic development, create jobs, provide additional emergency response alternatives, and support congestion relief by converting vehicle trips to transit trips. Providing ferry operations to service within Antioch, Martinez, Pittsburg, Hercules and the unincorporated areas of east County will provide a viable transit alternative to these communities for both commute and recreational trips.
The Parties have conceptual ideas of the goals of an Expanded Ferry Service and c ompletion of additional studies will be required for the development of conceptual initial operating parameters of the service, including but not limited to projections for ferry demand, service frequency, fare structure, operating costs, and purchase/lease agreement(s) for vessels (if needed), and other matters connected with an initial demonstration period and ongoing ferry service. Ferry service planning, and development of an implementation strategy , will require coordination with key stakeholders, policymakers, and permitting agencies that may provide input and/or have project approval authority over some or all of the Expanded Ferry Service.
The Parties have developed a Memorandum of Understanding (MOU) that defines the roles and responsibilities of each of the Parties to plan and complete studies and reports to better understand how or whether Expanded Ferry Service can be established. CCTA will develop the procurement documents needed to retain the Consultant to complete the Feasibility Study and will be responsible for managing the Consu ltant contract. Each Party will designate representative that will be responsible for actively representing that Party in meetings, planning activities, consultant selection, and Feasibility Study review.
The estimated cost to complete the planning work for the Expanded Ferry Service is $200,000 and will be equally shared between the Cities and the County. The Cities and the County may make payments directly to CCTA for the planning work using local funds or may choose to have CCTA withhold $40,000 of their Measure J Program 11 (Return to Source Funds) funds for Local Streets Maintenance & Improvements.
41 The planning work for the Expanded Ferry Service is anticipated to be initiated in early 2023 and to be completed by the end of 2023.
ATTACHMENTS:
1. Resolutions
Financial Impact
Description: Expenditure amount $50,000.
Funding Source: Measure J Fund No. 263-5432-611.90
Budget Recap:
Total Estimated cost: $40,000 New Revenue: $
Amount Budgeted: $40,000 Lost Revenue: $
New funding required: $ New Personnel: $
Council Policy Change: Yes No
42 RESOLUTION NO. 22-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING
A MEMORANDUM OF UNDERSTANDING (MOU) WITH THE CITIES OF ANTIOCH,
MARTINEZ, AND PITTSBURG, CONTR A COSTA COUNTY, EAST ERN C ONTRA
COSTA TRANSIT AUTHOR ITY, AND THE CONTRA COST A TRANSPORTATION
AUTHORITY TO ADVANCE PLANNING AND STUDIE S TO EVALUATE THE
FEASIBILITY OF EXPAN DED FERRY SERVICE IN CONTRA COSTA COUNTY INCLUDING THE HERCUL ES HUB AT A PARTICIPATING COST OF $40,000 IN
MEASURE J FUNDING
WHEREAS, the MOU will complete advanc e planning and studies to evaluate ferry service expansion in Contra Costa County including the Hercules Hub; and
WHEREAS, the feasibility studies will allow for the City to better understand and plan for future ferry service to the Hercules Hub; and
WHEREAS, participating in an MOU with 6 other public agencies that desire ferry service to their respective jurisdictions will leverage support for ferry service expansion; and
WHEREAS, completion of the study with the Contra Costa Transportation Authority as lead will c omplete planning documents needed to be competitive for future grant funding opportunities and the study will identify potential grant funding sources; and
WHEREAS, there is sufficient Measure J funding to fully fund the MOU.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules that the City Council hereby approves a Memorandum Of Understanding (MOU) with the Cities of Antioch, Martinez, and Pittsburg, Contra Costa County, Eastern C ontra Costa Transit Authority, and th e Contra Costa Transportation Authority to advance planning and studies to evaluate the feasibility of expanded ferry service in Contra Costa County including the Hercules Hub at a participating cost of $40,000 in Measure J Funding
The foregoing Resolution was duly and regularly adopted by the City Council of the City of Hercules on the 9th day of November, 2022 by the following vote of the Council:
AYES:
NOES:
ABSENT:
____________________________
Dion Bailey, Mayor
ATTEST:
Lauren Berges, City Clerk
43 1
28245120.1/060323.0001
MEMORANDUM OF UNDERSTANDING
REGARDING EXPANDED FERRY SERVICE IN CONTRA COSTA COUNTY
This Memorandum of Understanding (“MOU”) entered into as of __________ 2022, (“Effective Date”) by and among the Cities of Antioch (“Antioch”), Hercules (“Hercules”), Martinez (“Martinez”), and Pittsburg (“Pittsburg”), Contra Costa County (“County”), Eastern Contra Costa Transit Authority (“ECCTA”), and the Contra Costa Transportation Authority (“CCTA”). Antioch, Hercules, Martinez, and Pittsburg are sometimes collectively referred to herein as the “Cities,” and each individually as a “City.” Each City, the County, ECCTA, and CCTA are sometimes collectively referred to herein as the “Parties,” and each individually as a “Party.”
Recitals
A. The Parties have determined that increasing transit options in Contra Costa County will promote economic development, create jobs, provide additional emergency response alternatives, and support congestion relief by converting vehicle trips to transit trips.
Providing ferry operations to service within Antioch, Martinez, Pittsburg, Hercules and the unincorporated areas of east County will provide a viable transit alternative to these communities for both commute and recreational trips. To that end, the Parties desire to evaluate and assess whether expanded ferry service in the County (referred to as “Expanded Ferry Service”) could be established as a viable service. Expanded Ferry Service would provide connections between the Cities and other employment centers, services, and recreational facilities in the East Bay and other parts of the Bay Area.
B. The Parties have conceptual ideas of the goals of an Expanded Ferry Service.
Completion of additional studies will be required for the development of conceptual initial operating parameters of the service, including but not limited to projections for ferry demand, service frequency, fare structure, operating costs, and purchase/lease agreement(s) for vessels (if needed), and other matters connected with an initial demonstration period and ongoing ferry service. The Parties anticipate that these studies will build upon and refine the results of the “Financial Feasibility of Contra Costa Ferry Service, 2015-2024” study that was completed in 2015.
C. Ferry service planning, and development of an implementation strategy, will require coordination with key stakeholders, policymakers, and permitting agencies that may 44 2
28245120.1/060323.0001
provide input and/or have project approval authority over some or all of the Expanded Ferry Service. The Parties anticipate that a full financial model and management plan will need to be developed to understand whether the service would be viable. This will require identifying capital and operating costs, a potential fare structure, a conceptual management structure, and matters connected with establishing a viable ferry service.
Advancement of these planning efforts beyond these initial studies will require additional agreements, prioritization of funding by the Parties and/or within the Sub-Region and procurement of services, and completion of all environmental review before any of the Parties can commit to pursuing or partnering to pursue Expanded Ferry Service.
D. The Parties desire to enter into this MOU to plan and complete studies and reports to better understand how or whether Expanded Ferry Service can be established. The Parties anticipate future amendments and restatements of this MOU will be required as project milestones are completed, and when there is greater definition around next steps in the planning process.
Agreement
1. Term; Termination; Withdrawal. The term of this MOU begins on the Effective Date, and it terminates when all Parties then-party to the MOU mutually agree in writing to terminate this MOU. Any Party may withdraw from this MOU by providing written notice to all other Parties at least 60 days prior to the date of withdrawal.
Notwithstanding anything to the contrary, a Party shall be responsible for paying its share of costs incurred under this MOU through and including the termination date or the withdrawal date.
2. Feasibility Study Scope of Work and Solicitation. CCTA shall consult with the other Parties to prepare a consultant scope of work (“Scope of Work”) that CCTA will use to define the scope of the services a consultant will perform in connection with completing a Feasibility Study for Expanded Ferry Service (“Feasibility Study”). CCTA shall ensure that the Scope of Work and the Feasibility Study adequately address all of the following:
estimate ridership; evaluate fare structure; assesses operational and maintenance costs; assess existing infrastructure; define regulatory and permitting requirements; assess connected mobility options for first and last mile to marinas; identify and evaluate service plan options and operating parameters; evaluate possible management structures of the service; identify options for finding the service; and developing initial operating assumptions and financial constraints. CCTA shall further ensure that the Feasibility Study evaluates the use of small vessels (up to 100 passenger capacity) and investigates 45 3
28245120.1/060323.0001
opportunities to deploy zero emissions vessels. CCTA shall further ensure that the Feasibility Study evaluates procurement options, and that the Consultant develops recommendations for the ongoing management of the ferry service.
Following agreement on the Scope of Work by the Parties’ representatives, CCTA shall solicit proposals from persons and firms interested in preparing the Feasibility Study.
CCTA shall ensure that all other Parties have an opportunity to review and comment on CCTA’s selection criteria and solicitation. CCTA shall obtain the concurrence of the Cities’ and the County’s designated representatives prior to engaging the successful consultant that will prepare the Feasibility Study (the “Consultant”).
3. Parties’ Obligations. To ensure that the Feasibility Study is timely completed under this MOU, in addition to other obligations included in this MOU, the Parties shall have the following obligations.
A. CCTA Obligations. CCTA shall:
a. Develop the draft procurement documents needed to retain the Consultant to complete the Feasibility Study within two (2) months of the Effective Date of this MOU.
b. Coordinate review of the procurement documents with designated representatives of the Cities, the County, and ECCTA; and incorporate comments provided by the Cities, the County, and ECCTA, provided such comments are timely provided to CCTA by the parties.
c. Select, manage, oversee, and direct the Consultant work, including development of a schedule to ensure the timely completion of the Feasibility Study.
d. Coordinate meetings among designated representatives of the Parties and the Consultant, as needed, or as reasonably requested by any Party. e. Provide a draft Feasibility Study to the Parties for review prior to finalization, and allow the Parties a reasonable opportunity to comment on the draft Feasibility Study.
f. Perform other tasks, as may be required, to coordinate the timely completion of the Feasibility Study.
g. Obtain the written consent of each City and the County prior to incurring more than $200,000 in Consultant charges to complete the Feasibility Study, which consents may need to be given following approval of the cost increase by the Cities’ and the County’s governing bodies.
46 4
28245120.1/060323.0001
B. City and County Obligations. Each City and the County shall be responsible for that Party’s equal share of the cost of the Consultant’s charges for completing the Feasibility Study, in accordance with Section 4 (“Invoicing and Payments”) of this MOU. For purposes of the avoidance of doubt, ECCTA is not responsible for any share of the Consultant’s charges for completing the Feasibility Study.
C. All Parties’ Obligations. Each Party shall designate its representative for purposes of this MOU. The designated representative will be responsible for actively representing that Party in meetings, planning activities, consultant selection, and Feasibility Study review.
4. Invoicing and Payment. CCTA shall be solely responsible for ensuring the Consultant is timely paid for work the Consultant performs completing the Feasibility Study under its contract with CCTA. The cities of Martinez, Hercules and Antioch have each elected to allow CCTA to withhold $40,000 in Measure J funds for Local Streets Maintenance & Improvements – Program 11 (Return to Source Funds) in fiscal year 2022-2023 to reimburse CCTA for its share of the Consultant’s charges for work connected with the Feasibility Study. If any city is found to be non-compliant with the Measure J Growth Management Program in fiscal year 2022-2023, the city shall remit to CCTA $40,000 to reimburse CCTA for its share of the Consultant’s work. Each of the City of Pittsburg and the County shall remit to CCTA $40,000 by July 1, 2023 for each of its share of the cost of the Feasibility Study. CCTA shall provide each City and the County a copy of the Consultant’s charges documented on a quarterly invoice.
If the Feasibility Study experiences cost increases beyond $200,000, the cities and County agree to secure additional funds to cover the shortfall. If additional funding is determined by CCTA to be unavailable, the Feasibility Study may be re-scoped or terminated.
5. Audit and Access to Records. Each City and the County shall have the right of access to any books, documents, papers, or other records of CCTA that are pertinent to the Cities’ and the County’s reimbursement of CCTA for Consultant charges under this MOU.
During the term of this MOU and for a period of three (3) years after the termination of this MOU, CCTA shall keep and maintain accurate financial accounts, in accordance with generally acceptable accounting principles, of all payments made by the Cities and the County to reimburse CCTA for Consultant charges. CCTA shall provide the Cities and the County copies of those records within 15 days of a written request, and shall make those records available for inspection during CCTA’s normal business hours, at CCTA’s offices, or the offices of its financial consultant.
47 5
28245120.1/060323.0001
6. No Project. The activities described in the MOU do not constitute a project for purposes of the California Environmental Quality Act (“CEQA”). Nothing in this MOU commits, nor shall it be construed to commit, any Parties to approve any project without first complying with the CEQA.
7. Notices. All notices, invoices, payments, demands, and other correspondence required to be given under this MOU shall be in writing, and shall be delivered in person, by overnight delivery with delivery charges prepaid, or by U.S. Mail with postage prepaid, to the following:
Antioch
Rosanna Bayon-Moore
Forest Ebbs
Designated Representatives
420 W 3rd St.
Antioch, CA 94509
Hercules
Michael Roberts
Designated Representative
111 Civic Dr.
Hercules, CA 94547
Martinez
Michael Chandler
Designated Representative
525 Henrietta St.
Martinez, CA 94553
Pittsburg
Sara Bellafronte
Designated Representative
65 Civic Ave.
Pittsburg, CA 94565
County
John Cunningham
Federal Glover
Designated Representatives
555 Escobar St.
Martinez, CA 94553
ECCTA
Rashidi Barnes
Designated Representative
801 Wilbur Ave.
Antioch, CA 94509
CCTA
Ying Smith
Designated Representative
2999 Oak Road, Suite 100
Walnut Creek, CA 94597
or to such other addresses as the Parties may respectively designate by written notice to the other Parties. Notice shall be deemed given on the same day if it is personally delivered, on the next day if it is delivered by overnight delivery, or on the fifth (5th) day after the postmark date if it is given by U.S. Mail.
48 6
28245120.1/060323.0001
8. Entire Agreement; No Third-Party Beneficiaries. This MOU contains the entire agreement among the Parties relating to the subject matter of this MOU. No alteration or variation of this MOU is valid or binding unless made in writing and signed by all Parties then-party to the MOU. Nothing in this MOU shall, nor is it intended to, confer on any person or entity other than the Parties any rights or remedies under this MOU.
9. Construction. The section headings and captions of this MOU are, and the arrangement of this MOU is, for the sole convenience of the Parties to this MOU. The section headings, captions, and arrangement of this MOU do not in any way affect, limit, amplify, or modify the terms and provisions of this MOU. This MOU shall not be construed as if it had been prepared by one of the Parties, but rather as if all Parties have prepared it. The Parties to this MOU and their attorneys have read and reviewed this MOU and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this MOU.
10. Amendment. Except as specified in this section, this MOU may not be modified, amended, or amended and restated except in a writing signed by all Parties then-party to the MOU. A public agency may become a Party to this MOU only by a written amendment to this MOU executed by all Parties then-party to the MOU. This MOU shall be deemed amended to remove a Party when that Party’s withdrawal from this MOU is effective.
11. Severability. If a court determines that any term, covenant, or provision of this MOU is invalid, illegal, or unenforceable, the validity of the remainder of this MOU shall not be affected thereby.
12. Governing Law. This MOU shall be governed and construed in accordance with California law.
13. Counterparts and Authority to Execute. This MOU may be executed in one or more counterparts, each of which shall be deemed an original. The Parties executing this MOU represent and warrant they are authorized to execute this MOU.
14. Binding Effect. This MOU shall bind and benefit the Parties hereto and their heirs, successors, and permitted assigns.
[Remainder of page left blank. Signatures on next page(s).]
49 7
28245120.1/060323.0001
City of Pittsburg
City of Antioch
Garrett Evans
City Manager
Cornelius Johnson
City Manager
City of Martinez
City of Hercules
Michael Chandler
City Manager
Dante Hall
City Manager
Contra Costa County
Contra Costa Transportation Authority
Monica Nino
County Administrator
Timothy Haile
Executive Director
Eastern Contra Costa Transit
Authority
Rashidi Barnes
Chief Executive Officer
SMS
H:\Client Matters\Cons & Dev\Contra Costa Ferry Expansion MOU (Revised Draft) - 072522.docx
50 Feasibility Study
for Ferry Service
Expansion
Hercules City Council Meeting
November 9, 2022
1 51
History of Ferry Service and Studies
Financial Feasibility of Contra Costa County Ferry Service (2014)
Additional expansion routes identified in WETA’s
Implementation and Operations Plan:
Hercules
Martinez
Antioch
Richmond Service Started January 2019, Resumed June 2020 Ridership recovery has been the strongest by percentage 52 Background on Expanded Service Planning
CCTA Commissioners Glover, Kelley, White and Thorpe Have Led Effort to Evaluate Additional Ferry Service
Antioch, Hercules, Martinez, Pittsburg, County, CCTA Have Met Several Times Over the Last Year to Discuss Advancing Study Work
Parties Agreed to Execute MOU to Formalize Completing Study Parties Agreed to Cost Sharing For The Study
CCTA Has Take Lead in Developing MOU and Coordination Meetings With All Parties
53 Goals of the Expanded Ferry Service
Increase Transit Options in Contra Costa
Emergency Response Alternatives
Convert Vehicle Trips to Transit
Provide Connections to:
Hercules, Martinez, Pittsburg, and Antioch
Employment Centers
Services and Recreation
Transit Connections to Other Parts of Bay Area
54 Roles and Responsibilities
Cities/County
Equally Share $200k Cost of Study ($40k each)
CCTA
Develop SOW and Procurement Docs for Study
Select, Manage and Oversee Consultant
All Parties
Review and Concur with Study SOW
Participate in Consultant Selection
Guide Study Preparation
Review Study Findings and Report to Governing Body
55 Additional Planning Activities
Retain Consultant for Feasibility Study
Study SOW
Ridership Estimates
Fare Structure
Costs: Capital, Operating, Maintenance
Assess Infrastructure Needs
Regulatory and Permitting Requirements
Mobility and First/Last Mile Options
Funding and Operating Assumptions
56 Next Steps and Timeline
Execution of MOU By All Parties: Oct/Nov 2022
SOW and Procurement for Study – Early 2023
Complete Study – Late 2023
Pursue Grant Funding for Service: Ongoing
57 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Michael Roberts, Public Works Director/City Engineer SUBJECT: Agreement with the John Muir Land Trust for the Evaluation of the Refugio Creek Conservation Easement and Appropriation of $50K
RECOMMENDED ACTION:
The City Council approve an agreement for the John Muir Land Trust (JMLT) to undertake evaluation activities prior to accepting the transfer of the Refugio Creek Conservation Easement and associated Mitigation Obligation for the Hercules Hub; and, appropriate $50K in Public Benefit Fees or another specified funding source, such as General Fund Reserves, to fund said activities.
FISCAL IMPACT OF RECOMMENDATION:
The Public Benefit Fee, which is developer funded, is unique to the Bayfront Development and was imposed to ensure private development paid its fair share of the mutually beneficial public infrastructure costs associated with the completion of the Hercules Hub and buildout of the Waterfront District Master Plan. Currently, there is $996,398 available in the Public Benefit Fund to cover the cost of the agreement. As an alternative, Council could also allocate $50,000 from General Fund Reserves for this purpose.
ENVIRONMENTAL REVIEW:
The Refugio Creek and North Channel tributary restoration work that was completed as part of the Path To Transit phase and associated Conservation Easement provide the primary mitigation for the Hercules Hub and are described in the Compensatory Mitigation Plan for Aquatic Impacts to Aquatic Resources (August 2015). The Compensatory Mitigation Plan for Aquatic Impacts to Aquatic Resources is incorporated into the Path To Transit Phase permits received from each of the following agencies: U.S. Army Corps of Engineers , San Francisco Bay Conservation and Development Commission, Regional Water Quality Control Board, and California Department of Fish and Wildlife.
This requirement conforms to the Environmental Impact Report /Environmental Impact Study (EIR/EIS) that was previously completed for the Hercules Hub.
BACKGROUND:
The Hercules Hub (formerly known as the Regional Intermodal Transit Center) is situated along the beautiful Hercules Waterfront, within Bayfront, a mast er-planned, transit-oriented development.
When completed, the Hub and adjacent Bay Trail will be a regional pedestrian-friendly transportation 58 hub with bus, rail, and ferry services. To date, $46M has been used for developing the Hub, which has been built in phases. The Path To Transit Phase extended John Muir Parkway and Bayfront Boulevard, including the bridge over Refugio Creek, creating a direct connection from SR-4 and I-80 to the RITC as well as the City’s internal traffic circulation needed to support this new facility. The vast majority of the construction cost, approximately $10M in total, was funded through regional, state, and federal grants.
The restoration of 1,500 feet of Refugio Creek and the North Channel tributary was completed in 2017 as part of the Path To Transit Phase (Attachment #1). A total of 6 acres was restored at a construction cost of $2.6M and serves as the primary mitigation for the entire Hub project, including the phases that have already been completed as well as future phases. The permits issued by the regulatory agencies for this phase require the restored area (including two parcels) be protected through a Conservation Easement1, including sufficient endowment funding3 to oversee and manage the Conservation Easement in perpetuity (i.e., Mitigation Obligation2).
The specific activities anticipated to be covered under the endowment funding include periodic site visits and assessments; identification and removal of non-native species; trash removal; outreach including communications with the City and other parties; updating site information on websites and newsletters; records management; and managing the endowment funding including annual costs, endowment fund returns, and fees. Following an initial startup period of 3 years, these activities are funded on the interest earnings of the endowment. In the interim sufficient funding is provided to cover costs associated with these activities.
A Request for Qualifications (RFQ) was developed and posted to the City’s website requesting conservation easement holders submit their qualifications to complete the mitigation obligations. In addition, the RFQ was sent directly to six nonprofit organizations. The outreach was based on a list of California-based nonprofit organizations approved by the Land Trust Accreditation Commission , compared against the California Council of Land Trusts for Contra Costa County, and having a mission that aligns with that of this Conservation Easement. No responses were received.
Although the Conservation Easement is a beautiful site and an amenity to the community, it is also a difficult site to manage because of its location in an urban area and its small size with a lot of edge effects that lead to litter and trespass. Despite these drawbacks, when approached by the City the JMLT expressed a willingness to evaluate the Conservation Easement and mitigation obligations, in part because JMLT already manages the adjacent Fernandez Ranch located nearby and upstream of this Conservation Easement.
The JMLT was incorporated in 1989 and has established a strong presence in the County. Currently, JMLT stewards 3,500 preserved acres spread over 17 locations. They are a 501(c)(3) nonprofit organization, accredited by the Land Trust Accreditation Commission and the California Council of Land Trusts.
59 DISCUSSION:
It is recommended the City enter into an agreement (Att achment #2) for JMLT to conduct their evaluation activities, which culminates in a Property Analysis Record4 (PAR) used to determine the required endowment funding amount needed to steward the Conservation Easement in perpetuity in accordance with the regulatory mitigation obligations. Per the agreement, an initial $20K would be transferred from the City into a deposit account managed by the JMLT to fund these activities for which the City would receive itemized invoices on a monthly basis. If the initial $20K is exhausted at any time during the evaluation period, JMLT will request additional funds in writing, up to a total of $50K, subject to the City Manager’s approval.
FUTURE ACTIONS:
Following the evaluation period, results of the evaluation would be presented to the City Council. If the JMLT Board and the City Council agree on the terms and conditio ns, JMLT would proceed forward with accepting in perpetuity some or all mitigation obligations for the 6-acre Conservation Easement in accordance with regulatory agencies’ requirements. At that time, the City would pay the total amount of the project endowment, as determined by the PAR during the evaluation period.
Attachments
1. Conservation Area Map and Description
2. JMLT Agreement
Notes:
1 Conservation Easement – Legal agreement between a landowner and a land trust that permanently limits uses of the land in order to protect its conservation values. 2 Mitigation Obligation – Regulatory approvals require imposition of certain protection, management, stewardship, monitoring, and reporting obligations.
3 Endowment – A permanent stewardship fund established to support costs of maintaining, protecting, and monitoring the Conservation Easement in its restored condition. 4 Property Analysis Record – Used by land managers to calculate the costs of land management based on the characteristics and needs of the property and serves as the basis for long-term funding. 60 RESOLUTION NO. 22-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING
AN AGREEMENT FOR THE JOHN MUIR LAND TRUST (JMLT) TO U NDERTAKE
EVALUATION ACTIVITIES PRIOR TO ACCEPTING THE TRANSFER OF THE
REFUGIO CREEK CONSERVATION EASEMENT AND ASSOCIATED MITIGATION OBLIGATION FOR THE HERCULES HUB; AND, APPROPRIATING $50K IN PUBLIC
BENEFIT FEES OR ANOTHER SPECIFIED FU NDING SOURCE TO FUND SAID
ACTIVITIES
WHEREAS, the Refugio Creek and North Channel tributary restoration was completed as part of the Path To Transit phase of the Hercules Hub; and
WHEREAS, the permits issued by the regulatory agenci es for this phase require the 6 acre restored area be protected through a conservation easement, including sufficient endowment funding to oversee and manage the area in perpetuity; and
WHEREAS, while no responses were received for a Request for Qualifications (RFQ) to assume the conservation easement and a ssociated maintenance obligation, the John Muir Land Trust (JMLT) is agreeable to entering into a service agreement to undertake evaluation cr iteria and should the City and JMLT find the criteria acceptable, assume said mitigation obligations; and
WHEREAS, there is sufficient Public Benefit Fee funding , or other specified funding sources, to cover the cost of the agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules that the Ci ty Council hereby approves an agreement for the John Muir Land Trust (JMLT) to undertake evaluation activities prior to accepting the transfer of the Refugio Creek Conservation Easement and associated Mitigation Obligation for the Hercules Hub; and, appropriates $50K in Public Benefit Fees, or other specified funding source, to fund said activities.
The foregoing Resolution was duly and regularly adopted by the City Council of the City of Hercules on the 9th day of November, 2022 by the following vote of the Council:
AYES:
NOES:
ABSENT:
____________________________
Dion Bailey, Mayor
ATTEST:
Lauren Berges, City Clerk
61 62
63 64
65 Services Agreement
for Mitigation Obligations for the
Path To Transit Project – City of Hercules
Contract #2022-1
This SERVICES AGREEMENT (“Agreement”), is by and between JOHN MUIR LAND TRUST, a California nonprofit public benefit corporation (“JMLT”), whose mailing address for notice purposes is PO Box 31, Martinez, CA 94553, and the CITY OF HERCULES, a local municipal corporation in Contra Costa County (“ CITY ”), whose mailing address for notice purposes is 111 Civic Drive, Hercules, CA 94547. The “Effective Date” shall be the first date that both JMLT and CITY shall have executed this Agreement, as such dates are set forth beside the parties’ signatures below.
RECITALS
A. JMLT is a nonprofit organization dedicated to protecting and enhancing wildlife habitat and connecting Californians to the outdoors.
B. CITY has received the appropriate regulatory approvals for the Path To Transit Project, located adjacent to John Muir Parkway in Hercules (the “Project”), which regulatory approvals require imposition of certain protection, management, stewardship, monitoring, and reporting obligations (collectively, the “Mitigation Obligations”) with respect to the real property consisting of 5.943 acres located in Contra Costa County (“Property”). Exhibit A attached hereto and incorporated herein by reference includes the legal description of the Property (if available) and a map depicting the location and configuration of the Property. CITY has requested JMLT to consider accepting the Mitigation Obligations.
C. The specific Mitigation Obligations under consideration for the Property may include any of the following: (i) the transfer to JMLT of the Refugio Creek Conservation Easement in the Property (the “Property Interests”); (ii) JMLT’s undertaking management, monitoring, and/or reporting obligations for the Property; and (iii) JMLT’s holding, managing, and investing endowment funds to cover the costs to hold, steward, and/or manage the Property Interests and comply with other Mitigation Obligations.
D. Before JMLT can make a final decision on whether to accept the Property Interests and other Mitigation Obligations, JMLT must undertake the following evaluation activities, all of which requires a significant commitment of time, cost, and expense on the part of JMLT: (i) conduct customary due diligence investigations of the proposed Property Interests; and (ii) negotiate the terms, conditions, and required endowment costs and expenses of JMLT’s acceptance of the Mitigation Obligations.
Before undertaking such evaluation process, JMLT requires the agreement by CITY to pay all costs and expenses subject to the limitations in Section 3 infra, including attorneys’ and consultants’ fees and costs, incurred by JMLT in undertaking the evaluation activities. 66 AGREEMENTS
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, JMLT and CITY hereby agree as follows:
1. JMLT Project Evaluation Tasks.
(a) During the Evaluation Period (as defined below), JMLT will undertake the evaluation activities respecting the Property Interests and other Mitigation Obligations that are described in Exhibit B attached hereto and incorporated herein by reference (collectively, “Project Evaluation Tasks”). JMLT shall use its good faith reasonable efforts to perform and complete the Project Evaluation Tasks in a timely manner and within the budget established for the project evaluation tasks pursuant to Section 3 below.
(b) The Evaluation Period shall commence on the Effective Date and shall terminate automatically unless extended by mutual agreement on the first to occur of the following: (i) the date the Property Interests are transferred to JMLT with a written conveyance instrument recorded in the Official Records of the county where the Property is located, and endowment funding is transferred to JMLT in accordance with Section 5 below; or (ii) the five-year anniversary of the Effective Date. During the Evaluation Period, CITY will provide regular updates on the status and timing of the Project, and upon request of JMLT, will make appropriate staff and consultants available to meet with JMLT. JMLT’s obligations to undertake the Project Evaluation Tasks in accordance with this Agreement shall automatically terminate upon termination of the Evaluation Period, unless JMLT and CITY agree in writing to extend the Evaluation Period.
(c) The primary contact for JMLT and CITY for all purposes under this Agreement shall be Linus Eukel and City Manager, respectively.
2. CITY’s Obligations and Agreements.
(a) During the Evaluation Period, CITY shall use its good faith reasonable efforts to provide to JMLT in a timely manner all required and requested documents and information, including, without limitation, the documents and information included in Exhibit C. CITY acknowledges that failure to provide such documents and information in a timely manner may result in JMLT’s delay in completing the Project Evaluation Tasks. CITY shall provide JMLT with a reasonable time for JMLT to review any draft documents or materials prepared or provided by CITY in connection with or relating to the Mitigation Obligations and the Project Evaluation Tasks. (b) Within twenty (20) business days of the Effective Date, CITY shall disclose to JMLT in writing all interested individuals and organizations involved in the Project, including, without limitation, all Project investors, and shall provide JMLT with a full description of the Project. (c) During the Evaluation Period, CITY shall not submit drafts of any documents to any public agency that relate to any potential Mitigation Obligations that have not been reviewed and approved by JMLT in advance of such submittal. If and to the extent that CITY has submitted any such draft 67 documents to any public agency prior to the Effective Date, CITY shall provide copies of such drafts to JMLT within ten (20) business days of the Effective Date for JMLT’s review and approval. JMLT will use its reasonable efforts to review and provide comments on any draft document relating to the Mitigation Obligations that is provided to JMLT by CITY within sixty (60) days of receipt by JMLT in accordance with JMLT bi-monthly board of directors’ meetings --. CITY understands that any delays in public agency approval of, or any comments or revisions required by any public agency to, any documents that relate to any potential Mitigation Obligations, including without limitation to the PAR (as defined below) prepared for the Mitigation Obligations, may require additional modifications to such documents and/or PAR by JMLT.
(d) CITY understands and acknowledges that in connection with JMLT’s exercise of the Project Evaluation Tasks, JMLT may interview, research, consult, and otherwise communicate with interested parties and federal, state and local agencies, as appropriate. (e) CITY understands and acknowledges that any decision or commitment on the part of JMLT to accept any Property Interest or Mitigation Obligations will not be final until JMLT completes the Project Evaluation Tasks and the JMLT Board of Directors approves acceptance of the Property Interests and the Mitigation Obligations, which acceptance will not be unreasonably withheld. (f) CITY agrees to obtain JMLT’s written permission before posting any document prepared by JMLT on an Internet website accessible by the general public. (g) CITY will ensure that JMLT is granted appropriate approvals and/or licenses to perform such physical inspections, surveys, and studies, and review such other matters related to the Property Interests and Mitigation Obligations as JMLT deems necessary or appropriate. In connection therewith, CITY shall ensure that JMLT has the legal right and reasonable ability to enter upon the Property during normal business hours for the purpose of conducting such inspections, surveys, and studies. JMLT will not enter the Property without providing CITY with at least forty-eight (48) hours advance notice unless otherwise agreed by the parties to this Agreement.
(h) CITY hereby acknowledges and agrees that none of the transactions contemplated by this Agreement, including the potential acceptance by JMLT of the Property Interests and Mitigation Obligations, constitute a charitable contribution for which any party shall be entitled to a charitable donation.
3. Reimbursement of Evaluation Costs. CITY will reimburse JMLT for all reasonable costs and expenses incurred by JMLT in an amount not to exceed $50,000 without prior approval of the City Council in exercising the Project Evaluation Tasks (collectively, the “Reimbursable Evaluation Costs”), which costs will include without limitation the following:
(a) JMLT staff time charged at the hourly rates set forth on Exhibit D (“Staff Costs”); (b) JMLT reasonable travel costs;
(c) An overhead fee equal to 5% of Staff Costs, which will cover JMLT’s overhead, materials, and equipment;
68 (d) JMLT consultants and legal counsel, charged at actual costs to JMLT.
The not to exceed amount specified in this subsection may be increased by mutual written agreement of the parties, and the City Manager representing the City and Executive Director representing JMLT shall have full authority to approve such amendments in order that this agreement may cover every foreseeable situation. If the increase to the not to exceed amount is in excess of the City Manager’s spending authority, then the increase shall be approved by the City Council.
4. Payment of Reimbursable Evaluation Costs.
(a) Within five (5) business days of the parties’ execution of this Agreement and prior to JMLT undertaking any Project Evaluation Tasks, CITY will deliver to JMLT a deposit in the amount equal to $20,000 (“Deposit”). JMLT will bill Reimbursable Evaluation Costs incurred by JMLT against the Deposit (as may be replenished from time to time in accordance Section 4(b) below), and will provide CITY itemized invoices of the Reimbursable Project Costs billed against the Deposit on a monthly basis, for each month during which JMLT incurs Reimbursable Evaluation Costs. (b) If the Deposit is exhausted at any time during the Evaluation Period, JMLT will provide to CITY a written request for additional funds to replenish the Deposit, and CITY will deliver to JMLT such requested additional funds within ten (10) business days of giving of such notice unless such additional funds require City Council approval, in which case CITY shall schedule the matter for City Council consideration at the next available regular City Council meeting. JMLT will not be required to undertake any Project Evaluation Tasks until such additional funds are delivered to JMLT by CITY. (c) All unspent Deposit funds remaining upon termination of the Evaluation Period will be refunded to CITY within sixty days following such termination.
5. JMLT’s Property Analysis Record and Project Endowment Requirements. CITY understands and acknowledges that the following project endowment requirements are typically included in the Property Analysis Record (“PAR”) for any JMLT project, including the Property Interests and Mitigation Obligations should JMLT accept the Mitigation Obligations (“PAR Requirements”):
(a) I
nitial and Capital Tasks and Costs . The “Initial and Capital Tasks and Costs” will include the total amount necessary to cover costs associated with the transfer of the Property Interests to JMLT (including without limitation, title insurance fees and costs, recording costs, and escrow fees) and JMLT’s holding, stewardship, and management of the Property Interests and compliance with the Mitigation Obligations for the initial three-year period, including, without limitation, the following: (i) a one-time charge of $1,000 to cover JMLT’s costs to set up necessary investment accounts, accounting files, property files, and other compliance documentation; and (ii) a one-time fee of $20,000 per easement. (b) Ongoing Tasks and Costs. The “Ongoing Tasks and Costs” will include the total amount necessary to cover costs associated with JMLT’s holding, stewardship, and management of the Property 69 Interests and compliance with the Mitigation Obligations in perpetuity following the initial three-year period, including without limitation investment fees.
(c) L egal and Emergency Fund . The “Legal and Emergency Fund” will be an amount equal to at least one percent (1%), and no more than three percent (3%), of the Initial and Capital Tasks and Costs and Ongoing Tasks and Costs, with the final amount to be determined by JMLT based on JMLT’s reasonable determination of the level of risk associated with accepting the Property Interests and Mitigation Obligations.
Project Endowment Fund. If d uring the Evaluation Period, JMLT and CITY agree on the terms and conditions for JMLT to accept the Property Interests and the Mitigation Obligations, including without limitation, the total amount of a project endowment that satisfies the PAR Requirements (“Project Endowment”), CITY will deliver the full amount of the Project Endowment to JMLT at the closing of the transfer of the Property Interests to JMLT, through the escrow that is used for such closing.
6. F
orce Majeure. Neither party hereto shall be liable to the other party for its failure to perform under this Agreement when such failure is caused by strikes, accidents, acts of God, fire, war, flood, government restrictions, or any other cause beyond the control of the party charged with performance (“Force Majeure Event”); provided that the party so unable to perform shall promptly advise the other party of the extent of its inability to perform. Any suspension of performance by reason of this Section 6 shall be limited to the period during which such cause of failure exists. If any Force Majeure Event persists for a period of ninety (90) days or more, either party may terminate this Agreement by delivering written notice of termination to the other party.
7. Assignment. Neither party to this Agreement shall assign, transfer, or delegate any of its rights or obligations under this Agreement to any other party without the written approval of the other party, which approval shall be exercised in such party’s sole and absolute discretion.
8. Binding Effect. This Agreement shall become automatically effective upon execution and delivery by JMLT and CITY, and CITY’s delivery of the Deposit to JMLT. If CITY has not executed this Agreement within sixty (60) days from the date of JMLT’s execution set forth below, JMLT can rescind this Agreement by delivering written notice to CITY, upon which this Agreement shall have no force or effect. The person signing this Agreement on behalf of the CITY is authorized to legally bind CITY to the terms and conditions of this Agreement.
70 9. Termination.
(a) CITY may terminate this Agreement upon thirty (30) days’ written notice to JMLT if CITY decides not to pursue the Project; provided that JMLT shall be reimbursed for Reimbursable Project Costs incurred by JMLT or committed to by JMLT as of such termination date in accordance with this Agreement.
(b) JMLT may terminate this Agreement upon thirty (30) days’ written notice to CITY if JMLT decides for any reason not to accept the Property Interests or Mitigation Obligations; provided that JMLT shall be reimbursed for Reimbursable Project Costs incurred by JMLT or committed to by JMLT as of such termination date in accordance with this Agreement.
10. Indemnity.
Project Proponent shall indemnify, defend, and hold harmless JMLT, and its officers, directors, employees, agents, and representatives (“JMLT Indemnified Parties”), from any and all claims, costs (including reasonable attorneys’ fees and the costs of investigation, settlement and appeal), liabilities, or losses arising from or connected with JMLT’s performance of its obligations under this Agreement, including without limitation, all Project Evaluation Tasks, unless caused by the willful misconduct or gross negligence of JMLT Indemnified Parties. JMLT shall indemnify, defend, and hold harmless Project Proponent, and its officers, directors, employees, agents, and representatives (“Project Proponent Indemnified Parties”), from any and all claims, costs (including reasonable attorneys' fees and the costs of investigation, settlement and appeal), liabilities, or losses arising from or connected with JMLT willful misconduct or gross negligence, unless caused by the willful misconduct or gross negligence of Project Proponent Indemnified Parties.
11. Governing Law; Venue. This Agreement shall be governed by the laws of the state of California (without regard to any choice of law provisions thereof), and proper venue for any dispute arising out of this Agreement shall be Contra Costa County, California.
12. Ambiguities. In the event any claim is made by CITY or JMLT relating to any conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared or drafted by a particular party or the party's counsel.
13. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing to the parties’ address listed in the first paragraph of this Agreement and shall be deemed to have been duly given as follows:
(a) on the date of service if served personally on the party to whom notice is to be given; (b) on the business day immediately after mailing by overnight courier; or (c) on the second (2nd) day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and delivered.
71 14. Prevailing Party. The prevailing party in any suit, action, or counterclaim arising out of this Agreement (including, without limitation, enforcement of any award or judgment obtained with respect to this Agreement) shall be entitled to recover a reasonable allowance for attorneys’ fees and costs.
15. Remedies. No remedy or election hereunder shall be deemed exclusive, but shall, whenever possible, be cumulative with all other remedies at law or in equity.
16. Cooperation. Each party to this Agreement agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the intent of this Agreement.
17. Severability. If any provision of this Agreement is held invalid or unenforceable, the other provisions of this Agreement shall remain in full force and effect.
18. Amendment. This Agreement may be amended only in a writing that is signed by JMLT and CITY.
19. Waiver. Any provision of this Agreement may be waived at any time by the party entitled to the benefit thereof, but only by a writing signed by such party. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision nor shall any waiver constitute a continuing waiver.
20. Insurance. At all times during the Evaluation Period, JMLT shall maintain, at its sole cost and expense, the following insurance coverages covering activities performed by JMLT under, and obligations undertaken by, JMLT in accordance with, this Agreement:
(a) Commercial General Liability insurance with a limit of $1,000,000 per occurrence and $2,000,000 aggregate covering bodily injury (including death), property damage, personal injury, advertising injury, contractual liability, premises or operations liability, and products or completed operations coverage, which limit may be satisfied by a single policy or in combination with an Umbrella Liability policy;
(b) Automobile Liability insurance covering all owned, hired, and non-owned vehicles, in an amount of not less than $1,000,000 per accident, covering bodily injury (including death) and property damage; and
(c) Workers’ Compensation and similar employee benefit insurance for each of JMLT’s employees in the amounts required under the law of the state(s) where the Project Evaluation Tasks will be performed.
72 The undersigned parties hereby agree to the terms and conditions set forth in this Agreement as of the Effective Date.
CITY OF HERCULES JOHN MUIR LAND TRUST,
a California nonprofit public benefit corporation
By: By:
Dante Hall Linus Eukel
Title: City Manager Executive Director
Date Date
73 EXHIBIT A
PROPERTY DESCRIPTION AND MAP
74 EXHIBIT B
PROJECT EVALUATION TASKS
JMLT below includes JMLT attorneys and consultants engaged to undertake Project Evaluation Tasks.
Document and Information Review. To ensure full understanding of the Project, the Property Interests, and the other Mitigation Obligations, JMLT will review documents and collect information, including, without limitation, the biological opinion, bank enabling instrument, permit documentation (e.g., incidental take permit or streambed alteration permit), restoration plan, environmental due diligence report (i.e., Phase 1 environmental site assessment), title documents, management plan, grazing plan, maps, studies and other documents.
Conservation Easement. If the Property Interests include a conservation easement interest, JMLT will prepare and/or review the conservation easement to ensure that its terms and conditions achieve its conservation purposes, meet best current practices, and are legally enforceable. The conservation easement is typically based upon a template provided by the permitting agency; JMLT will work with the CITY to negotiate any refinements and modifications specific to the Property with the relevant agencies.
Property Analysis Report (PAR). JMLT will prepare the PAR for those tasks for which JMLT will have responsibility, notably for (1) conservation easement compliance and monitoring, (2) land management and restoration activities, and (3) endowment management. The PAR will include the PAR Requirements described in Section 5 above. If a party other than JMLT will assume responsibility for land management, the PAR may be prepared by another party to the project, but will require JMLT review and approval.
Endowment Agreements. JMLT will prepare and/or review the endowment agreement(s) that address the acceptance, holding, management, investment, and dispersal of funds to cover the costs of the Mitigation Obligations, including the Initial and Capital Tasks and Costs and the Ongoing Tasks and Costs.
Site Visit and Landowner Meeting. JMLT will make one or more property inspections to inform the conservation protections and to prepare the baseline document (see below). JMLT will meet with the landowner or key lessees if different than the CITY.
Baseline Preparation. JMLT will prepare the baseline report that establishes the current conditions of the Property with regard to the conservation easement purposes and terms and against which compliance monitoring occurs.
Land Management Plan. The CITY will typically prepare management and/or monitoring plan(s) for the Property.
If JMLT will be the land manager, JMLT will review and approve all management plans. If JMLT is not the land manager, JMLT will review the management plans and provide comments on any issues JMLT deems relevant the Mitigation Obligations
75 C
onsultation. JMLT will participate in meetings and conference calls, exchange emails, and travel to the P roperty or other locations to meet with the CITY, its attorneys, consultants, and other parties (including regulatory agencies) as needed to evaluate the Mitigation Obligations. 76 EXHIBIT C
DOCUMENT CHECKLIST
We strongly prefer digital files in commonly-used software, such as Adobe Acrobat, Word, Excel, ArcView
Contact information for key persons for coordination purposes
List of Project’s interested parties, including all organizations and individuals holding ownership and/or controlling interests in all organizations
Surveyed Legal Description, surveys, and maps, including specifically shape files for the property and/or easement boundaries derived from a legal survey.
Biological Opinion
All notices, agreements, permits, and approvals associated with the Project and Mitigation Obligations
Bank enabling instrument (if applicable)
Conservation easement (if draft exists)
Long Term Management Plan (if draft exists)
Endowment Agreement (if draft exists)
Current Title Report for the Property, with copies of all recorded documents referenced therein and unrecorded documents relating to the Property
All environmental reports relating to the Property, including a current Phase I Environmental Site Assessment, and any follow-up reports and assessments
Remoteness Opinion (if applicable)
Any Property Analysis Reports (PAR) drafts prepared for the site*
Any special studies associated with the site, e.g., individual species assessment
Other reports, documents, and information that relate to the Property or the Mitigation Obligations. 77 EXHIBIT D
JMLT BILLABLE HOURLY RATES
Executive Director $ 300.00/hour
Chief Financial Officer $225.00/hour
Stewardship Director $135.00/hour
Biologists $ 65.00 to $150.00/hour
Administrative Assistant $45.00/hour
All of the above-referenced hourly rates are subject to modification by JMLT at any time upon 60 days’ advance written notice to CITY.
78 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Michael Roberts, Public Works Director/City Engineer
SUBJECT: Solid Waste Collection Franchise Agreement – Preliminary Recommendation to Adjust Republic Services’ Rate +3.52% effective January 1, 2023
RECOMMENDED ACTION:
Receive the Recommendation of the City Manager regarding the Public Works Director’s report and recommended order following his November 8, 2022 Public Hearing on Republic Services’ request for a base year rate adjustment of +3.52% effective January 1, 2023.
EXECUTIVE SUMMARY:
Following the process required by the Hercules Municipal Code, Republic Services’ solid waste franchise rate adjustment request was reviewed by the City’s consultants, R3, a noticed public hearing was convened by the Public Works Director on November 8, the Public Works Director’s report was forwarded to the City Manager, and the City Manager’s recommended order will be reported out at the City Council meeting tonight. This report to the City Council tonight will trigger a 15 -day objection period, with final approval of any proposed new rates to come before the Council at the December 13, 2022 Council meeting. Any approved rate adjustments would go into effect January 1, 2023.
FISCAL IMPACT OF RECOMMENDATION:
Adjusting the rate +3.52% is in accordance with the established terms of the franchise agreement. It will change the collection fee for a residential customer using a 35-gallon garbage can, which is the service level chosen by residents approximately 85% of the time, from $29.29 to $30.32, an increase of $1.03 per month. The collection fee is just one component of the rates charged to solid waste rate payers – the complete set of fees for all service levels is shown in the Table below. The collection fee includes weekly collectio n of trash, organics and recycling as well as the provision of other community-wide programs. The proposed rate adjustment will also increase the franchise fee collected by the City by approximately $20K per year.
79 DISCUSSION:
In 1986 the City and Republic Services entered into a Franchise Agreement which provides Republic Services the exclusive right for solid waste collection and disposal services within Hercules. Since that time the Agreement has been amended multiple times. In accordance with Amendment No. 5, 2019 and 2023 are base years for rate review and adjustment. In other years the refuse collection rates are adjusted annually in accordance with the San Francisco -Oakland-San Jose Metropolitan Area Consumer Price Index (CPI).
On June 28, 2022 Republic Services submitted a base year rate adjustment request for +4.92% to be effective January 1, 2023 as provided for in Amendment No. 5. As described below, the rate increase recommended by consultants retained by the City is +3.52%.
The Rate Review Process. Under the rather complex rate adjustment procedure pursuant to Hercules Municipal Code Chapter 5-2A “Adjustment of Refuse Collection Rates”, the Public Works Director/City Engineer is required to review the rate incre ase request from Republic Services including completing any necessary studies and, after providing a 20-day notice, conduct a public hearing. The noticed public hearing is scheduled to take place on Monday, November 8. The findings and recommended action resulting from the Public Works Director/City Engineer’s public hearing are then compiled into a recommended order that is submitted to the City Manager, who will forward his final recommendation to the City Council. The final recommendation from the City Manager will be presented to the City Council at the November 9th council meeting as a supplement to the agendized item. The recommendation must be presented to Council no sooner than 25 days from the rates going into effect. Submission of the findings and recommended action to the Council on November 9th triggers a 15-day objection period to which 10 addition days are required to provide notice to the applicant (i.e. Republic Service), after which City Council at the regular meeting of December 13th can take final action on the rate setting after consideration of any comments or objections that were received during the 15-day objection period.
The submittal of the above described recommended order is coordinated with the rate increase being considered b y RecycleMore (further discussion below) which administers the post collection agreement (recycling) so that the City Council can evaluate the total cost increase to residents while considering the City collection component of the total rate increase.
Consultant’s Assistance. To be as cost effective as possible and maximize available resources, Hercules jointly hired R3 Consulting Group Inc. (R3) along with Pinole and San Pablo, who are also undergoing base year rate adjustments, to perform a high level, desktop review for all 3 Cities. R3 is a Bay Area solid waste management consulting firm and satisfactorily completed the last rate reviews for Hercules back in 2013 and 2019 and has done business in the State of California for 20 years.
R3 reviewed Republic’s rate adjustment applications for 2023 with regards to mathematical accuracy, consistency with industry standards, allocations between franchise areas, and consistency with the franchise agreements. They are recommending a base rate adjustment for Hercules of +3.52% which includes meeting Republic’s established operating ratio of 0.88 under the franchise agreement. R3 subsequently confirmed the +3.52% adjustment with Republic, who has agreed with the findings.
This adjustment of +3.52% is lower than the most recent change in CPI, which is tracking at 5.7% as of August 2022.
80 The base rate adjustment of +3.52% recommended by R3 which would be effective January 1, 2013 and which has been agreed to by Republic Services is illustrated in the table below:
Rate Tables
2022 Base Year 2023 City 2023 2023
Collection Rate Adj Collection Waste Post-
Collection Monthly
Rate 3.52% Rate Program Charge
(Estimated)
TOTAL
(Estimated)
35-gallon $29.29 $1.03 $30.32 $2.08 $12.85 $45.25
65-gallon 50.52 1.78 52.30 3.79 23.89 79.98
95-gallon 71.85 2.53 74.38 5.60 35.85 115.83
20-gallon 28.25 0.99 29.24 1.40 7.32 37.96
Sr. 35-gal 27.29 1.03 28.32 2.03 12.85 43.20
2023 Commercial Collection Service Rates
Bin Times per Week Size 1 2 3 4 5
1 Yard $267.59 $457.67 $647.93 $ 838.02 $1,028.27
2 Yard 427.77 766.60 1,105.40 1,444.22 1,782.86 3 Yard 575.43 1,051.56 1,527.26 2,002.96 2,478.67 4 Yard 716.44 1,323.90 1,931.19 2,538.48 3,145.71 5 Yard 853.90 1,590.22 2,326.35 3,062.67 3,798.81 6 Yard 989.41 1,853.48 2,717.96 3,582.22 4,446.69 7 Yard 1,123.65 2,116.06 3,108.65 4,101.07 5,093.47 *Does not include separate per yard/per month/per pick-up per week (RecycleMore IRRF Surcharge)
RecycleMore post-collection proposed Rate Changes. The rate tables also include fees for the City’s solid waste program and post -collection waste processing administered by RecycleMore.
RecycleMore is a joint powers agency in West County (and the City of Hercules is a member) and is charged with processing the waste stream once it has been collected, including recycling, composting, operating the solid waste transfer facility, and ensuring the region meets the State’s waste diversion requirements. On November 10, 2022 RecycleMore is scheduled to consider an increase to their post- collection processing rate for residential customers of 4.6%, which would increase the post-collection rate for 35-gallon residential customers by $0.57 per month. RecycleMore’s post-collection rates for commercial customers are projected to decrease by 6.3%. 81 The City’s solid waste program helps fund street maintenance and storm water activities related to solid waste, such as street repairs due to the wear and tear of garbage trucks, removal of trash from streets and storm drains, and street sweeping to remove waste debris.
ATTACHMENTS:
1. Public Works Director’s Recommended Order (To be provided at the meeting)
Financial Impact
Description:
Increase the franchise fee collected by the City approximately $20K per year
Funding Source:
Budget Recap:
Total Estimated cost: $0 New Revenue: $20,000
Amount Budgeted: $0 Lost Revenue: $
New funding required: $0 New Personnel: $
Council Policy Change: Yes No
82 STAFF REPORT TO THE CITY COUNCIL
DATE: Special Meeting of November 9, 2022
TO: The Mayor and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Michael Roberts, Public Works Director/City Engineer
SUBJECT: Pipeline Agreement with Union Pacific including a $174,600 License Fee for the Sycamore Avenue Sewer Trunk Replacement Project
RECOMMENDED ACTION:
Approve a Crossing and Longitudinal Pipeline Agreement with Union Pacific (UP) including a $174,600 license fee for the Sycamore Avenue Sewer Replacement Project and authorize the City Manager to sign the Agreement on behalf of the City Council.
FISCAL IMPACT OF RECOMMENDATION:
There are sufficient Sewer Funds in the Adopted FY 22/23 Budget to cover the cost of the license fee.
DISCUSSION:
The Sycamore Avenue Sewer Trunk Replacement Project will replace 5,500 feet of the City’s primary 24-inch trunk sewer with a new 30-inch trunk sewer beginning at Duck Pond Park and ending at the influent intake to the Wastewater Treatment Plant in Pinole. The trunk sewer was constructed in 1972 and has exceeded its useful service life, is deteriorating, and needs to be increased in size to convey the increased flows from future development. The construction cost for the project is estimated to be approximately $14M.
The alignment includes installation of the 30-inch pipeline in UP right of way parallel to and under their railroad tracks prior to entering the Wastewater Treatment Plant in Pinole (Att #1 Location Map).
UP is requiring the City enter into a Crossing and Longitudinal Pipeline Agreement to ensure the work is completed in accordance with their requirements, and they be compensated for the permanent use of their property (i.e. the new pipeline) in the amount of $174,600.
The City’s right of way consultant for the project, ARWS, has comp leted a cursory review of the license fee amount and indicated that it is qualitatively high, but is fairly typical of what they see from UP. ARWS further advises that entering into negotiations with UP in an attempt to reduce the fee amount would be complex and time consuming (up to to 18 months if condemnation is required), especially given their reduced staff; and would be costly given the professional support needed. Given 83 the need to advance the project without delay, staff is therefor recommending the Pipeline Agreement for approval.
ATTACHMENTS:
1. Location Map
2. Pipeline Agreement
Financial Impact
Description: Expenditure amount not to exceed $174,600.
Funding Source: Sewer Fund. Fund No. 420-5475-611.90-00
Budget Recap:
Total Estimated cost: $174,600 New Revenue: $
Amount Budgeted: $174,600 Lost Revenue: $
New funding required: $ New Personnel: $
Council Policy Change: Yes No
84 RESOLUTION NO. 22-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING
A CROSSING AND LONGIT UDINAL PIPELINE AGRE EMENT WITH UNION PACIFIC (UP) INCLUDING A $174,600 LICENSE FEE FOR THE SYCAMORE
AVENUE SEWER REPLACE MENT PROJECT AND AUTHORIZING THE CITY
MANAGER TO SIGN THE AGREEMENT ON BEHALF OF THE CITY COUNCIL
WHEREAS, the Sycamore Avenue Sewer Trunk Replacement Project includes the installation of a 30-inch sewer pipe in the UP right of way, i ncluding parallel to and under their tracks; and
WHEREAS, Union Pacific (UP) requires the City enter into a Crossing and Longitudinal Pipeline Agreement to ensure the work is completed in a ccordance with their requirements, and they be compensated for the permanent use of their property (i.e. the new pipeline) in the amount of $174,600; and
WHEREAS, there are sufficient Sewer Funds in the adopted FY 22/23 Budget to cover the cost of the license fee.
NOW, THEREFORE, BE IT RESOLVED that the Ci ty Council hereb y approves a Crossing and Longitudinal Pipeline Agreement with Union Pacific (UP) including a $174,600 license fee for the Sycamore Avenue Sewer Replacement Project and authorizes the City Manager to sign the Agreement on behalf of the City Council.
The foregoing Resolution was duly and regularly adop ted by the City Council of the City of Hercules on the 9th day of November, 2022 by the following vote of the Council:
AYES:
NOES:
ABSENT:
____________________________
Dion Bailey, Mayor
ATTEST:
Lauren Berges, City Clerk
85 © 2022 Digital Map Products. All rights reserved.
300 feet
UNION PACIFIC RAILROAD
86 July 19, 2022
Folder: 03259-86
CITY OF HERCULES
PUBLIC WORKS DIRECTOR
111 CIV IC D R IVE
HERCULES CA 94547
RE: Propose d Abandonment of Exi sting Sewer Pipeline and Construction of One Underground 30 Inch Encased Sewer Pipeline Crossing and Encroachment Only at Mile Posts 20.06 on the Martinez Subdivision/Branch at or near Pinole, Contra Costa County, California At
tached is an original of the agreement covering your use of the Railroad Company’s right of way. Please print two copies, execute on your behalf and return ALL DOCUMENTS in one mailed packaged with a check for any payments required, as show n below to 1400 Douglas Street, Omaha, NE 68179-1690, Attn: Daniel Peters.
An or
iginal copy of the fully- executed document will be returned to you, when approved and processed by the Railroad Company. Also, please provide a resolution or other authorization for the party executing the documents, if signature authorization is required by your Entity. • Pa
yment in the amount of One Hundred Seventy Four Thousand Six Hundred Dollars ($174,600.00) is due and payable to Union Pacific Railroad Company upon your execution of the agreement. Please include your payment, with Folder No. 03259-86 noted on that document. If you require formal billing, you may consider this letter as a formal bill and that 94- 6001323 is this Corporation’s correct Federal Taxpayer Identification Number. • Rai
lroad Protective Liability Insurance (RPLI) may be obtained from any insurance company which offers such coverage. Union Pacific has also worked with a national broker, M arsh USA, to make available RPLI to you or your contractor. You can find additional information, premium quotes, and application forms at (uprr.marsh.com).
If
you have any questions concerning this Agreement, please contact me at (402) 544-8536.
Si
ncerely,
Da
niel Peters
Senior Manager - Real Estate
Email : [email protected]
Phone : (402) 544-8536
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 87 Pipeline Encroachment 052118 Folder No. 03259-86
Last Modified: 07/02/2018
Form Approved, AVP-Law
CROSSING AND LONGITUDINAL PI PELINE AG REEMENT
Mile Posts 20.06 Martinez Subdivision/Branch
Location: Pinole, Contra Costa County, California
THIS AGREEMENT (“Agreement”) is made and entered into as of July 19, 2022, (“Effective Date”) by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (“Licensor”) and CITY OF HERCULES, to be addressed at Public Works Director, 111 Civic Drive Hercules, California 94547 (“Licensee”).
IT IS MUTU ALLY AGREED BY AND B ETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICENSOR GRANTS RIGHT.
A. In consideration of the license fee to be paid by Licensee set forth below and in further cons
ideration of the covenants and agreements to be performed by Licensee, Licensor hereby grants to L
icensee the right to abandon existing pipeline in accordance with Abandonment Guidelines, attached as Exhibit D, and construct and thereafter, during the term hereof, maintain and operate one 30 inch encased sewer pipeline crossing and encroachment only, i ncluding any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities") across Licensor’s real property, trackage, or other f
acilities located in P inole, Contra Costa County, State of California ("Railroad Property"). The specific specifications and limited purpose for Licensee's Facilities on, along, across and under Railroad Property are described in and shown on the Print and Specifications dated August 10, 2021, attached hereto as Exhibit A-1 and
A-2 and made a part hereof.
B. Licensee represents and warrants that Licensee's Facilities will (i) only be used for one 30 i
nch encased sewer pipeline, and (ii) not be used to convey any other substance, any fiber optic cable, or for any other use, whether such use is currently technologically possible, or whether such use may come i
nto existence during the life of this Agreement.
C. Licensee acknowledges that if it or its contractor provides Licensor with digital imagery depicting Licensee's Facilities ("Digital Imagery"), Licensee authorizes Licensor to use the Digital I
magery in preparing Exhibit A -1 and A-2 . Licensee represents and warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Licensor to use the Digital Imagery in s
aid manner.
Article 2. LICENSE FEE.
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one -time License Fee of One Hundred Seventy Four Thousand Six Hundred Dollars ($174,600.00). 88 Article 3. TERM.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in full force and effect until terminated as provided in the "TERMINATION; REMOVAL OF LICENSEE’S FACILITIES" Section of Exhibit B.
Article 4. LICENSEE'S COMPLIANCE WITH GENERAL TERMS.
Licensee represents and warrants that all work on Licensee's Facilities performed by Licensee or its contractors will strictly comply with all terms and conditions set forth herein, including the General Terms and Conditions, attached hereto as Exhibit B and made a part hereof.
Article 5. INSURANCE.
A. During the term of this Agreement, Licensee shall fully comply or cause its contractor(s) to fully comply with the insurance requirements described in Exhibit C, attached hereto and made a part hereof.
Upon request only, Licensee shall send copies of all insurance documentation (e.g., certificates, endorsements, etc.) to Licensor at the address listed in the "NOTICES" Section of this Agreement.
B. If Licensee is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurance in compliance with Exhibit C of this Agreement, those statutes shall apply.
Article 6. DEFINITION OF LICENSEE.
For purposes of this Agreement, all references in this Agreement to Licensee will include Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority (collectively, a "Contractor"). If a Contractor is hired by Licensee to perform any work on Licensee's Facilities (including initial construction and subsequent relocation, main tenance, and/or repair work), then Licensee shall provide a copy of this Agreement to its Contractor(s) and require its Contractor(s) to comply with all terms and conditions of this Agreement, including the indemnification requirements set forth in the "INDEMNITY" Section of Exhibit B. Licensee shall require any Contractor to release, defend, and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend, and indemnify Licensor herein.
Article 7. ATTORNEYS’ FEES, EXPENSES, AND COSTS.
If litigation or other court action or similar adjudicatory proceeding is undertaken by Licensee or Licensor to enforce its rights under this Agreement, all fees, costs, and expenses, including, without limitation, reasonable attorneys’ fees and court costs, of the prevailing Party in such action, suit, or proceeding shall be reimbursed or paid by the Party against whose interest the judgment or decision is rendered. The provisions of this Article shall survive the termination of this Agreement.
Article 8. WAIVER OF BREACH.
The waiver by Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by Licensee shall in no way impair the right of Licensor to avail itself of any remedy for any subsequent breach thereof.
89 Article 9. ASSIGNMENT.
A. Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of Licensor, which must be requested in writing by Licensee. Any assignment or attempted transfer of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without Licensor's written consent, will be absolutely void and may result in Li censor's termination of this Agreement pursuant to the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B.
B. Upon Licensor's written consent to any assignment, this Agreement will be binding upon and inure to the benefit of the parties thereto, successors, heirs, and assigns, executors, and administrators.
Article 10. SEVERABILITY.
Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this Agreement.
Article 11. NOTICES.
Except Licensee's commencement of work notice(s) required under Exhibit B , all other notices required by this Agreement must be in writing, and (i) personally served upon the business address listed below ("Notice Address"), (ii) sent overnight via express delivery by a nationally recognized overnight delivery service such as Federa l Express Corporation or United Parcel Service to the Notice Address, or (iii) by certified mail, return receipt requested to the Notice Address. Overnight express delivery notices will be deemed to be given upon receipt. Certified mail notices will be deemed to be given three (3) days after deposit with the United States Postal Service.
If to Licensor: Union Pacific Railroad Company
Attn: Analyst – Real Estate Utilities (Folder No. 03259-86) 1400 Douglas Street, MS 1690
Omaha, Nebraska 68179
If to Licensee: CITY OF HERCULES
Public Works Director
Hercules, California 94547
Article 12. SPECIAL PROVISION – CONSTRUCTION OBSERVATION.
Licensor requires Licensee to provide monitoring of tracks and construction observation through Licensor approved observer named below during all construction and installation work. Licensee is to directly coordinate services with the named inspector:
Railpros Field Services
Email: [email protected]
Phone (682)223-5271
90 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF HERCULES
By: __________________________________ By: __________________________________ James Hild
Director - Real Estate
Name Printed: __________________________
Ti
tle: _________________________________
91 92
X
89 139
56 7013
2 135
110
4 5.5
5.5 NOTES:
1) ALL DIMENSIONS MEASURED PERPENDICULAR TO THE CENTERLINE OF TRACK 2) REFER TO AREMA VOLUME 1. CHAPTER 1. PART 5. SECTION 5.1
BORED AND JACKED
AT MINIMUM SIGNS WILL BE PROVIDED AS STATED ABOVE
PLASTIC NA
SANITARY SEWAGE
0 0
11 30*
NO
STEEL PIPE NA
140
0.6 36
YES
SEALED
70 56
MAINLINE TRACK
38.01222222
-122.29555556
PINOLE CONTRA COSTA CA
0325986 8/10/2021
CITY OF HERCULES
NON-FLAMMABLE LIQUID
PIPELINE
93 Pipeline Crossing 06/05/18
Form Approved, AVP Law
EXHIBIT B
GENERAL TERMS AND CONDITIONS
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
A. The foregoing grant is subject and subordinate to the prior and continuing right and obligation of Licensor to use and maintain its entire property including the right and power of Licensor to construct, maintain, repair, renew, use, operate, change, modif y or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Licensor without liability to Licensee or to any other party for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad Property) and the right of Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. It shall be Licensee's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights.
Section 2. ENGINEERING REQUIREMENTS; PERMITS.
A. Licensee's Facilities will be designed, constructed, operated, maintained, repaired, renewed, modified, reconstructed, removed, or abandoned in place on Railroad Property by Licensee or its contractor to Licensor's satisfaction and in strict conformity with: (i) Licensor’s current engineering standards and specifications, including those for shoring and cribbing to protect Licensor's railroad operations and facilities ("UP Specifications"), except for variances approved in advance in writing by Licensor’s Assistant Vice President Engineering – Design or its authorized representative ("UP Engineering Representative"); (ii) such other additional safety standards as Licensor, in its sole discretion, elects to require, in cluding, without limitation, American Railway Engineering and Maintenance -of-Way Association ("AREMA") standards and guidelines (collectively, "UP Additional Requirements"); and (iii) all applicable laws, rules, and regulations, including any applicable Federal Railroad Administration and Federal Energy Regulatory Commission regulations and enactments (collectively, "Laws"). If there is any conflict between UP Specifications, UP Additional Requirements, and Laws, the most restrictive will apply.
B. Licensee shall keep the soil over Licensee's Facilities thoroughly compacted, and maintain the grade over and around Licensee's Facilities even with the surface of the adjacent ground.
C. If needed, Licensee shall secure, at Licensee's sole cost and expense, any and all necessary permits required to perform any work on Licensee's Facilities.
Section 3. NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES.
A. Licensee and its contractors are strictly prohibited from commencing any work associated with Licensee's Fac ilities without Licensor's written approval that the work will be in strict compliance with the "ENGINEERING REQUIREMENTS; PERMITS" Section of this Exhibit B. Upon Licensor's approval, Licensee shall contact both of Licensor's field representatives ("Licensor's Field Representatives") at least ten (10) days before commencement of any work on Licensee's Facilities. 94 B. Licensee shall not commence any work until: (1) Licensor has determined whether flagging or other special protective or safety measures ("Safety Measures") are required for performance of the work pursuant to the "FLAGGING" Section of this Exhibit B and provided Licensee written authorization to commence work; and (2) Licensee has complied with the "PROTECTION OF FIBER OPTIC CABLE SYSTEMS" Section of this Exhibit B.
C. If, at any time, an emergency arises involving Licensee's Facilities, Licensee or its contractor shall immediately contact Licensor's Response Management Communications Center at (888) 877-7267.
Section 4. FLAGGING.
A. Following Licensee's notice to Licensor's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B , Licensor shall inform Licensee if Safety Measures are required for performance of the work by Licensee or its contractor on Railroad Property. If Safety Measures are required, no work of any kind may be performed by Licensee or its contractor(s) until arrangements for the Safety Measures have been made and scheduled. If no Safety Measures are required, L icensor will give Licensee written authorization to commence work.
B. If any Safety Measures are performed or provided by Licensor, including but not limited to flagging, Licensor shall bill Licensee for such expenses incurred by Licensor, unless Licenso r and a federal, state, or local governmental entity have agreed that Licensor is to bill such expenses to the federal, state, or local governmental entity. Additional information regarding the submission of such expenses by Licensor and payment thereof by Licensee can be found in the "LICENSEE’S PAYMENT OF EXPENSES" Section of this Exhibit B . If Licensor performs any Safety Measures, Licensee agrees that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreement.
C. For flagging, the rate of pay per hour for each flagger will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and P roperty Damage, and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one - half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Licensor and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges.
D. Reimbursement to Licensor will be required covering the full eight -hour day during which any flagger is furnished, unless the flagger can be assigned to other railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagger is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flaggers following the flaggers' assignment to work on the project for which Licensor is required to pay the flaggers and which could not reasonably be avoided by Licensor by assignment of such flaggers to other work, even though Licensee may not be working during such time.
When it becomes necessary for Licensor to bulletin and assign an employee to a flagging position in 95 compliance with union collective bargaining agreements, Licensee must provide Licensor a minimum of five (5) days notice prior to the cessation of the need for a flagger. If five (5) days notice of cessation is not given, Licensee will still be required to pay flagging charges for the days the flagger was scheduled, even though flagging is no longer required for that period. An additional ten (10) days notice must then be given to Licensor if flagging services are needed again after such five day cessation notice has been given to Licensor.
Section 5. SAFETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of any work on Railroad Property performed by Licensee or its cont ractor, and takes precedence over any work on Licensee's Facilities to be performed Licensee or its contractors. Licensee shall be responsible for initiating, maintaining and supervising all safety operations and programs in connection with any work on Lic ensee's Facilities. Licensee and its contractor shall, at a minimum comply, with Licensor's then current safety standards located at the below web address ("Licensor's Safety Standards") to ensure uniformity with the safety standards followed by Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee shall notify Licensor if it determines that any of Licensor's Safety Standards are contrary to good safety practices. Licensee and its contractor shall furnish copies of Licensor's Safety Standards to each of its employees before they enter Railroad Property.
Union Pacific Current Safety Requirements
B. Licensee shall keep the job site on Railroad Property free from safety and health hazards and ensure that their employees are competent and adequately trained in all safety and health aspects of the work.
C. Licensee represents and warrants that all parts of L icensee's Facilities within and outside of the limits of Railroad Property will not interfere whatsoever with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of Licensor, and nothing shall be done or suffered to be done by Licensee at any time that would in any manner impair the safety thereof.
D. Licensor's operations and work performed by Licensor’s personnel may cause delays in Licensee's or its contractor's work on Licensee's Facilities. Licensee accepts this risk and agrees that Licensor shall have no liability to Licensee or any other person or entity for any such delays. Licensee must coordinate any work on Railroad Property by Licensee or any third party with Licensor's Field Representatives in strict complian ce with the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit
E. Licensor shall have the right, if it so elects, to provide any support it deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, repair, renewal, modification, relocation, reconstruction, or removal of Licensee's Facilities.
In the event Licensor provides such support, Licensor shall invoice Licensee, and Licensee shall pay Licensor as set forth in the "LICENSEE'S PAYMENT OF EXPENSES" Section of this Exhibit B.
F. Licensee may use unmanned aircraft systems ("UAS") to inspect Licensee's Facilities only upon the prior authorization from and under the direction of Licensor's Field Representatives.
Licensee represents and warrants that its use of UAS on Railroad Property will comply with Licensor's then-current Unmanned Aerial Systems Policy and all applicable laws, rules and regulations, including any applicable Federal Aviation Administration regulations and enactments pertaining to UAS .
96 Section 6. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
Fiber optic cable systems may be buried on Railroad Property. Protection of the fiber optic cable systems is of extreme importance since any b reak could disrupt service to users resulting in business interruption and loss of revenue and profits. In addition to the notifications required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B , Licensee shall telephone Licensor during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1 -800-336-9193 (also a 24- hour, 7- day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad Prop erty to be used by Licensee. If it is, Licensee shall telephone the telecommunications company(ies) involved, and arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee’s expense, and will not commence any work on Railroad Property until all such protection or relocation has been completed.
Section 7. LICENSEE'S PAYMENT OF EXPENSES.
A. Licensee shall bear the entire cost and expense of the design, construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities.
B . Licensee shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the construction, maintenance, modi fication, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, and shall not permit or suffer any mechanic’s or materialman’s lien of any kind or nature to be enforced against the property for any work done or materia ls furnished thereon at the instance or request or on behalf of Licensee. Licensee shall promptly pay or discharge all taxes, charges, and assessments levied upon, in respect to, or on account of Licensee's Facilities, to prevent the same from becoming a charge or lien upon any property of Licensor, and so that the taxes, charges, and assessments levied upon or in respect to such property shall not be increased because of the location, construction, or maintenance of Licensee's Facilities or any improvement, appliance, or fixture connected therewith placed upon such property, or on account of Licensee’s interest therein. Where such tax, charge, or assessment may not be separately made or assessed to Licensee but shall be included in the assessment of the property of Licensor, then Licensee shall pay to Licensor an equitable proportion of such taxes determined by the value of Licensee’s property upon property of Licensor as compared with the entire value of such property.
C. As set forth in the "FLAGGING" Section of this Exhibit B, Licensor shall have the right, if it so elects, to provide any Safety Measures Licensor deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, modificat ion, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, including, but not limited to supervision, inspection, and flagging services. In the event Licensor provides such Safety Measures, Licensor shall submit an it emized invoice to Licensee's notice recipient listed in the "NOTICES" Article of this Agreement. Licensee shall pay to Licensor the total amount listed on such invoice within thirty (30) days of Licensee's receipt of such invoice.
Section 8. MODIFICATIONS TO LICENSEE'S FACILITIES.
A. This grant is subject to Licensor's safe and efficient operation of its railroad, and continued use and improvement of Railroad Property (collectively, "Railroad's Use"). Accordingly, Licensee shall, at its sole cost and expense, modify, reconstruct, repair, renew, revise, relocate, or remove (individually, "Modification", or collectively, "Modifications") all or any portion of Licensee's Facilities as Licensor may designate or identify, in its sole discretion, in the furtherance of Railroad's Use.
97 B. Upon any Modification of all or any portion of Licensee's Facilities to another location on Railroad Property, Licensor and Licensee shall execute a Supplemental Agreement to this Pipeline Agreement to document the Modification(s ) to Licensee's Facilities on Railroad Property. If the Modifications result in Licensee's Facilities moving off of Railroad Property, this Agreement will terminate upon Licensee's completion of such Modification(s) and all requirements contained within th e "TERMINATION; REMOVAL OF LICENSEE’S FACILITIES" Section of this Exhibit B . Any such Modification(s) off of Railroad Property will not release Licensee from any liability or other obligation of Licensee arising prior to and upon completion of any such Modifications to the Licensee's Facilities.
Section 9. RESTORATION OF RAILROAD PROPERTY.
In the event Licensee, in any manner moves or disturbs any property of Licensor in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, then, Licensee shall, as soon as possible and at Licensee’s sole cost and expense, restore Licensor’s property to the same condition as the same were before such pr operty was moved or disturbed.
Section 10. INDEMNITY.
A. Definitions. As used in this Section:
1. "Licensor" includes Licensor, its affiliates, its and their officers, directors, agents and employees, and other railroad companies using Railroad Property at or near the location of Licensee’s installation and their officers, directors, agents, and employees.
2. "Licensee" includes Licensee and its agents, contra ctors, subcontractors, sub- subcontractors, employees, officers, and directors, or any other person or entity acting on its behalf or under its control.
3. "Loss" includes claims, suits, taxes, loss, damages (including punitive damages, statutory damages, and exemplary damages), costs, charges, assessments, judgments, settlements, liens, demands, actions, causes of action, fines, penalties, interest, and expenses of any nature, including court costs, reasonable attorneys’ fees and expenses, investigation costs, and appeal expenses.
B. Licensee shall release, defend, indemnify, and hold harmless Licensor from and against any and all Loss, even if groundless, fraudulent, or false, that directly or indirectly arises out of or is related to Licensee’s construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, removal, presence, use, or operation of Licensee's Facilities, including, but not limited to, any actual or alleged:
1. Bodily harm or personal injury (including any emotional injury or disease) to, or the death of, any person(s), including, but not limited to, Licen see, Licensor, any telecommunications company, or the agents , contractors, subcontractors, sub- subcontractors, or employees of the foregoing;
2. Damage to or the disturbance, loss, movement, or destruction of Railroad Property, including loss of use and diminution in value, including, but not limited to, any telecommunications system(s) or fiber optic cable(s) on or near Railroad 98 Property, any property of Licensee or Licensor, or any property in the care, custody, or control of Licensee or Licensor;
3. Removal of person(s) from Railroad Property;
4. Any delays or interference with track or Railroad’s Use caused by Licensee's activity(ies) on Railroad Pr operty, including without limitation the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities or any part thereof, any activities, labor, materials, equipment, or machinery in conjunction therewith;
5. Right(s) or interest(s) granted pursuant to this Agreement;
6. Contents escaping from Licensee's Facilities, including without limitation any actual or alleged pollution, contamination, breach, or environmental Loss;
7. Licensee’s breach of this Agreement or failure to comply with its provisions, including, but not limited to, any violation or breach by Licensee of any representations and warranties Licensee has made in this Agreement; and
8. Violation by Licensee of any law, statute, ordinance, governmental administrative order, rule, or regulation, including without limitation all applicable Federal Railroad Administration regulations.
C. THE FOREGOING OBLIGATIONS SHALL APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW FOR THE BENEFIT OF LICENSOR TO LOSSES CAUSED BY, ARISING
FROM, RELATING TO, OR RESULTING FROM, IN WHOLE OR IN PART, THE NEGLIGENCE OF
LICENSOR, AND SUCH NEGLIGENCE OF LICENSOR SHALL NOT LIMIT, DIMINISH, OR PRECLUDE LICENSEE’S OBLIGATIONS TO LICENSOR IN ANY RESPECT. NOTWITHSTANDING
THE FOREGOING, SUCH OBLIGATION TO INDEMNIFY LICENSOR SHALL NOT APPLY TO THE
EXTENT THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND DIRECT NEGLIGENCE, GROSS
NEGLIGENCE, OR WILLFUL MISCONDUCT OF LICENSOR AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION.
Section 11. TERMINATION; REMOVAL OF LICENSEE'S FACILITIES.
A. If Licensee does not use the right herein granted on Licensee's Facilities for one (1) year, or if Licensee continues in default in the performance of any provision of this Agreement for a period of thirty (30) days after written notice from Licensor to Li censee specifying such default, Licensor may, at its sole discretion, terminate this Agreement by written notice to Licensee at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below.
B. In addition to the provisions of Paragraph "A" above, this Agreement may be terminated by written notice given by either party, without cause, upon thirty (30) days written notice to the non - terminating party at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below.
C. Prior to the effective date of any termination described in this Section, Licensee shall submit an application to Licensor's online Utility Contracts System at this link for Licensee's removal, or if applicable,
abandonment in place of Licensee's Facilities locat ed on Railroad Property ("Removal/Abandonment 99 Work"). Upon the UP Engineering Representative's approval of Licensee's application for the Removal/Abandonment Work, Licensor and Licensee shall execute a separate consent document that will govern Licensee's performance of the Removal/Abandonment Work from those portions of Railroad Property not occupied by roadbed and/or trackage ("Consent Document"). Licensee shall then restore the impacted Railroad Property to the same or reasonably similar condition as it was prior to Licensee's installation of Licensee's Facilities. For purposes of this Section, Licensee's (i) performance of the Removal/Abandonment Work, and (ii) restoration work will hereinafter be collectively referred to as the "Restoration Work".
D. Following Licensee's completion of the Restoratio n Work, Licensee shall provide a written certification letter to Licensor at the address listed in the " NOTICES" Article of this Agreement which certifies that the Restoration Work has been completed in accordance with the Consent Document.
Licensee shall report to governmental authorities, as required by law, and notify Licensor immediately if any environmental contamination is discovered during Licensee's performance of the Restoration Work.
Upon discovery, the Licensee shall initiate any and all removal, remedial and restoration actions that are necessary to restore the property to its original, uncontaminated condition. Licensee shall provide written certification to Licensor at the address listed in the "NOTICES" Article of this Agreement that environmental contamination has been remediated and the property has been restored in accordance with Licensor's requirements. Upon Licensor's receipt of Licensee's restoration completion certifications, this Agreement will terminate.
E. In the event that Licensee fails to complete any of the Restoration Work, Licensor may, but is not obligated, to perform the Restoration Work. Any such work actually performed by Licensor will be at the cost and expense of Licensee. In the event that Licensor performs any of the Restoration Work, Licensee shall release Licensor from any and all Loss (defined in the "INDEMNITY" Secti on of this Exhibit B) arising out of or related to Licensor's performance of the Restoration Work.
F. Termination of this Agreement for any reason will not affect any of rights or obligations of the parties which may have accrued, or liabilities or Loss (defined in the "INDEMNITY" Section of this Exhibit B), accrued or otherwise, which may have arisen prior to such termination.
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EXHIBIT C
INSURANCE REQUIREMENTS
In accordance with Article 5 of this Agreement, Licensee shall (1) procure and maintain at its sole cost and expense, or (2) require its Contractor(s) to procure and maintain, at their sole cost and expense, the following insurance coverage:
A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000.
CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
• Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including owned, hired, and non-owned autos).
The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
• "Coverage For Certain Operations In Connection With Railroads" ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
C. Workers' Compensation and Employers' Liability Insurance . Coverage must include but not be limited to:
• Licensee’s statutory liability under the workers' compensation laws of the state(s) affected by this Agreement.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee.
If Licensee is self-insured, evidence of state approval and excess workers' compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
D. Environmental Liability Insurance . Environmental Legal Liability Insurance (ELL) applicable to bodily injury, property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims, or compliance with statute, all in connection with any loss arising from the insured’s performance under this Agreement. Except with respect to the limits of insurance, and any rights or duties specifically assigned to the first named insured, this insurance must apply as if each named insured were the only named insured; and separately to the 101
additional insured against which claim is made or suit is brought. Coverage shall be maintained i n an amount of at least $2,000,000 per loss, with an annual aggregate of at least $4,000,000.
Licensee warrants that any retroactive date applicable to ELL insurance coverage under the policy is the same as or precedes the Effective Date of this Agreemen t, and that continuous coverage will be maintained for a period of five (5) years beginning from the time the work under this Agreement is completed or if coverage is cancelled for any reason the policies extended discovery period, if any, will be exercised for the maximum time allowed.
E. Ra ilroad Protective Liability Insurance. Licensee must maintain for the duration of work "Railroad Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor only as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this Agreement. Notwithstanding the foregoing, Licensee does not need Railroad Protective Liability Insurance after its initial construction work is complete and all excess materials have been remo ved from Licensor's property; PROVIDED, however, that Licensee shall procure such coverage for any subsequent maintenance, repair, renewal, modification, reconstruction, or removal work on Licensee's Facilities.
F. Um brella or Excess Insurance. If License e utilizes umbrella or excess policies, and these policies must "follow form" and afford no less coverage than the primary policy.
Other Requirements
G. Al l policy(ies) required above (except business automobile, workers' compensation and employers' liability) must include Licensor as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute form(s) providing equivalent coverage). The coverage provided to Licensor as additional insured shall not be limited by Li censee’s liability under the indemnity provisions of this Agreement. BOTH LICENSOR AND LICENSEE EXPECT THAT LICENSOR WILL BE
PROVIDED WITH THE BROADEST POSSIBLE COVERAGE AVAILABLE BY OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORM CG 20 26.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this Agreement, or (b) all punitive damages are prohibited by all states in which this Agreement will be performed.
I. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Licensor and its agents, officers, directors and employees for damag es covered by the workers' compensation and employers' liability or commercial umbrella or excess liability obtained by Licensee required in this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance.
J. All insurance policies must be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A - and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed.
K. The fact that insurance is obtained by Licensee will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor from Licensee or any third party will not be limited by the amount of the required insurance coverage.
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Union Pacific Railroad
GUIDELINES FOR ABANDONMENT
OF SUBSURFACE UTILITY STRUCTURES
CALL BEFORE YOU DIG
1-800-336-9193
EXHIBIT D
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 1 Contents
1. Introduction ......................................................................................................................... 2 A. Purpose ....................................................................................................................... 2
2. Abandonment Procedures .................................................................................................. 2 A. Hazardous material testing & notification ..................................................................... 2 B. Removal ...................................................................................................................... 2 C. Abandon in-place ......................................................................................................... 2
3. Track and Ground Monitoring .............................................................................................. 3 A. General track and ground monitoring requirements ..................................................... 3 B. Track Monitoring .......................................................................................................... 4 C. Ground Monitoring ....................................................................................................... 4 D. Contingency Plans ....................................................................................................... 4
4. Excavation Requirements ................................................................................................... 5 A. Shoring Design ............................................................................................................ 5 B. Excavation Safety ........................................................................................................ 5
5. Glossary ............................................................................................................................. 6
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 2 1. Introduction
A. Purpose
1. The purpose of these Guidelines is to inform 3 rd party Applicants, Contractors and others, outside of the Railroad, concerned with Railroad policies of the requirements and standards for the abandonment of subsurface utility structures such as pipelines and other similar structures.
2. This document governs at all locations where the Railroad operates, regardless of track ownership or track status, either active or out of service.
2. Abandonment Procedures
A. Hazardous material testing & notification
1. Prior to either removal or abandon in-place of existing Facilities, testing for ACM, PACM, LBP and PCBs shall be completed and the results reported to the Railroad. i. ACM or PACM – Asbestos Containing Materials or Presumed Asbestos Containing Materials
ii. LBP – Lead Based Paint
iii. PCBs – PolyChlorinated Biphenyls
2. Testing results shall be emailed to [email protected] (file size limit / email is 10mb) with one of the following subject lines:
i. Reporting – Test Results
ii. Action Required – Priority Project
iii. Action Required – Request for Information/Question
3. The Railroad may require removal or consider abandon in-place of the existing Facilities upon review of the testing results.
B. Removal
1. At the time of abandonment, Facilities within Zone B shall be removed at the cost of the owner.
See Figure 3-1 for Zone identification.
2. The following additional Zone requirements apply.
i. Zone A – Designed shoring systems are required per Section 4. Track & ground monitoring is required per Section 3.
ii. Zone B – Sloped or stepped excavations are acceptable.
C. Abandon in-place
1. The Facility shall be filled with CLSM (Controlled Low-Strength Material). This process is designed to help avoid future subsidence as the line deteriorates after abandonment. The use of low strength CLSM also allows the future removal of CLSM at a later date if deemed necessary.
2. CLSM Design
i. The CLSM material shall have an unconfined compressive strength 300psi. This provides strength while allowing future removal if necessary.
ii. The mixture shall consist of water, Portland cement, fly ash, and sound fine or coarse aggregate or both.
iii. The mix design shall allow adequate flowability without segregation of aggregates. iv. Hardening time is of prime importance and CLSM should develop 50psi in about one hour. v. The maximum layer of thickness for CLSM shall be 3 feet. vi. Additional layers shall not be placed until the CLSM has lost sufficient moisture. vii. For pipelines or structures with a depth greater than 3 feet, CLSM shall be placed in lifts. viii. Contractor should verify no voids will be present after filling the structure. ix. Access to fill pipelines shall be from off the UPRR right- of-way if possible. If excavation is required for the fill procedure, excavations shall meet requirements in Section 4.
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 3 3. Track and Ground Monitoring
A. General track and ground monitoring requirements
1. General requirement s
i. Temporary lighting may also be required by the Railroad to identify tripping hazards to train crewmen and other Railroad personnel.
ii. Any excavation, holes or trenches on the Railroad property shall be covered, guarded and/or protected. Handrails, fence, or other barrier methods must meet OSHA and FRA requirements.
2. Track and ground monitoring are required as follows:
i. For crossings with pipe diameter and depth (below base of rail) as shown below in Table 3-1.
ii. For shoring within Zone A of any track, as shown below in Figure 3-1. iii. Additional monitoring may be required by the Railroad on a case by case basis.
3. Monitoring schedule
i. Monitoring shall commence once any construction activity is within Zone A. See Figure 3-1. ii. Monitoring shall continue, after installation is complete, for 7 days or as required by the Railroad.
a. For large and/or shallow pipeline installations monitoring may be required for up to 30 days.
Table 3-1
Figure 3-1
<=6 <=12 <=18 <=24 <=30 <=36 <=42 <=48 <=54 <=60 >60
<=5 X X X X X X X X X X X
<=10 X X X X X X X X X X X
<=15 X X X X X X X X X X X
<=20 X X X X X X X X X
<=25 X X X X X X X
<=30 X X X X
>30 X X
X = Monitoring is required
Depth, feet
(below base of rail)
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 4 B. Track Monitoring
1. Track Deflection Limits
i. The top of rail shall not permanently deflect more than ¼ inch vertical or horizontal.
2. Targets
i. Track monitoring shall not require track access other than to place the track monitoring targets.
ii. Monitoring targets should be placed such that monitoring is possible when a train is present. However, monitoring during the passing of a train is not required as the train will temporarily deflect the track.
iii. Adhesive backed reflective targets may be attached to the side of the rail temporarily.
Targets should be removed once monitoring phase is complete.
3. Monitoring Plan
i. If the top of rail does deflect more than 1/4 inch , either vertical or horizontal, all operations shall stop until the matter is resolved.
ii. Provide established contingency plan, See Section 3.D, in the event of ground loss and/or the rail deviates ¼ inch vertical or horizontal.
iii. Establish a bench mark in the vicinity of the construction. Establish locations for shooting elevations on the top of rail at each area of construction. a. Example locations for shooting rail elevations would be at:
At the centerline of an under track crossing.
At both outside edges of the crossing. ie. For a wide excavation. At multiple locations from the crossing/excavation edge but no less than 10, 20, 30, 40 and 50 feet from the crossing.
iv. Monitoring shall be continuous and recorded in a field log book dedicated for this purpose.
Copies of these field log entries can be made available to all concerned parties upon request at any time during construction.
C. Ground Monitoring
1. Provide means for monitoring ground settlement. Submit monitoring plan for Railroad review.
2. Ground monitoring points should be in alignment above the proposed construction activities.
D. Contingency Plans
1. The Contractor shall supply Contingency Plan(s), which anticipate reaching the Threshold and Shutdown values, for all construction activities which may result in horizontal and/or vertical track deflection.
i. Track monitoring values:
a. Threshold value = 1/8 inch permanent vertical or horizontal deflection b. Shutdown value = 1/4 inch permanent vertical or horizontal deflection
2. The Contingency Plans shall provide means and methods, with options if necessary.
3. The Contractor should anticipate the need to implement each Contingency Plan with required materials, equipment and personnel.
i. Once the Threshold value is met, the contractor shall determine the appropriate Contingency Plan(s) and immediately discuss this plan with, and receive approval confirmation from, the Railroad or authorized Railroad representative. ii. Once the Shutdown value is met all project work shall stop and the chosen Contingency Plan shall commence.
a. The Railroad may choose to allow and/or require the immediate implementation of specific approved Contingency Plans, submitted by the Contractor, once the Shutdown value is met.
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 5 4. Excavation Requirements
A. Shoring Design
1. For temporary earth retention design requirements on the Right- of-Way, see the Railroad Guidelines for Temporary Shoring. http://www.up.com/real_estate/roadxing/industry/index.htm B. Excavation Safety
1. Guardrails
i. Guardrails shall be provided to surround unattended excavations on Railroad Right- of-Way per OSHA Standard Number 1926.502 as follows:
a. The guardrail height shall be at least 42 inches above the walking surface. b. The smallest dimension for openings in the guardrail shall be no greater than 19 inches.
c. Guardrail systems shall be capable of withstanding, without failure, a force of at least 200 pounds applied within 2 inches of the top edge, in any outward or downward direction, at any point along the top edge of the guardrail.
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GUIDELINES FOR ABANDONMENT & REMOVAL OF SUBSURFACE UTILITY STRUCTURES, March 2020 6 5. Glossary
Applicant: Any party proposing to install a new, and/or abandon existing, pipelines or Wirelines on Railroad right-of-way or other Railroad operating location, regardless of track being active or out of service. This includes any contractor, employee or consultant hired by said party.
Call Before You Dig: A Union Pacific Railroad 24-hr by 7-day communication center to assist in protecting, documenting and notifying callers of other utilities installed within the Railroad right- of-way. 1-800-336-9193
Crossing: Refers to a Utility which is crossing the Railroad track(s).
Carrier Pipe: Pipe used to transport the product.
Casing Pipe: Pipe through which the carrier pipe is installed.
Cover: Distance from either the base of rail or finished grade to the top of Pipeline or Wireline.
Encroachment: Utilities on Railroad right-of-way which are generally oriented parallel with Railroad right-of-way and/or track.
Centerline of Track: An imaginary line, that runs down the center of the two rails of a track.
Construction Documents: Design plans and calculations, project and/or standard specifications, geotechnical report and drainage report.
Construction Window: A timeframe in which construction or maintenance can be performed by the Contractor with the required presence of a Flagman.
Contractor: The individual, partnership, corporation or joint venture and all principals and representatives (including Applicant’s subcontractors) with whom the contract is made by the Applicant for the construction of the Grade Separation Project.
Facility: Refers to the Applicant’s pipeline, wireline, poles, manholes, handholes, splice boxes, storage tanks and other such structures which exist as part of the Applicant’s infrastructure.
Flagman (Flagging): A qualified employee of the Railroad providing protection to and from Railroad operations per Railroad requirements.
Guidelines: Information contained in this document.
Industry Track: A secondary track designed to allow access to industries along the main track.
Main Track: A principle track, designated by Timetable or special instructions, upon which train movements are generally authorized and controlled by the train dispatcher. Main Track must not be occupied without proper authority.
Railroad Load: Cooper E-80 loading.
Railroad: Refers to Union Pacific Railroad.
Railroad Manager of Track Maintenance (MTM): Railroad representative responsible for maintenance of the track and supporting subgrade.
Right-of-Entry Agreement: An agreement between the Railroad and an Applicant or a Contractor allowing access to Railroad property.
Right-of-Way: The private property limits owned by the Railroad.
Tracks: The rails, ties and ballast and roadbed that compose the traveling surface used by trains.
Utility: Refers to a pipeline or wireline.
Wireline: Refers to electric power and communication utility systems including, but not limited to, all associated conductors, cables, support structures, and equipment.
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