Hercules City Council
June 13, 2023

1211 Newell Avenue, Suite 200,, Walnut Creek, CA 94596   Phone 925‐937‐0980 Fax 925‐947‐3177 www.graybowenscott.com
provided by the TIRCP award to elevate the project and further its position for funding opportunities.
 In addition to the railstation, GBS and Eric Zell have provided strategic advocacy to garnersupport for the City’s overall vision of the Hub, including future ferry service.   Leo Scott and Eric Zell participated in meetings and events with elected officials and funding partners to elevate the project and position for funding.  As a result of these efforts, the team supported the City in applying for a federal earmark through Congressman Garamendi’s office to fund the Environmental Review phase of the Hercules Ferry Terminal Project.  GBS has also been serving as the City’s Project Manager overseeing the design delivery of the project.  We have initiated regular coordination with CCJPA Planning and CCJPA Engineering to put forth a coordinated effort towards working with UPRR, the host railroad.  Having acknowledged the long history of the project and their previous engagement, the UPRR has recently outlined a proposed path forward for the final design of the project that includes a series of exceptions to their standard practice and is valid only for the Hub project. The letter notes that UPRR will need to prepare a network capacity analysis to identify project impacts on freight operations and confirm the layout of the track improvements.  UPRR has also recently provided comments on the revised 10% track plans.  It is critical that this momentum with UPRR on design development continue to set the track alignment and move forward with utility relocations. The network capacity analysis may be able to move forward using funding that is already committed, so we can take advantage of the time we have until remaining funding is secured for final design.

The GBS team has completed the scope of work under our current contract, apart from development of the stand‐alone project website which will be completed in July.   At yourrequest, GBS is pleased to furnish you with the attached amendment request to continue our Project Management and Funding Plan advancement services through the end of 2023 while the City awaits FSP grant award notification.  To build upon the progress thus far, we propose work continue on two tasks as summarized in the table below.  Attached is a detailed scope of work and budget for your consideration. 335

1211 Newell Avenue, Suite 200,, Walnut Creek, CA 94596   Phone 925‐937‐0980 Fax 925‐947‐3177 www.graybowenscott.com
Task Title Activities by Dec. 31, 2023 Budget
Task 1: Project
Management and
Controls
 Oversee Design Consultant.
 Manage and monitor the Construction Cost Estimate and Project Schedule.
 Cost Monitoring Reports.
 Manage the Risk Register and implement mitigation
strategies.
 Resolve project design issues.
 Coordinate with UPRR and CCJPA
 Initiate UPRR Capacity Analysis.
$106,008
Task 2: Funding Plan
Advancement
 Perform strategic coordination and advocacy with key
funding partners.
 Coordinate with CalSTA on TIRCP award conditions.
 Coordinate with FRA to support FSP application.
 Evaluate new funding opportunities.
 Manage the Funding Plan showing target fund sources
compatible with the Project delivery schedule.
$92,379
Task 2A: TIRCP Cycle 7
(Optional)
 Develop TIRCP Cycle 7 Application (if determined
appropriate within the Funding Strategy).
$113,782
Totals $312,169
* If the grant opportunity is appropriate based upon the work conducted in Task 2The City Manager would be authorized by City Council to initiate the work of Task 2A.

GBS is prepared to make a commitment of time and treat this project as a priority. We appreciate the opportunity to continue assisting the City of Hercules in the effort to secure full funding to construct the Hub and bring new intercity railservice to Hercules.  If you have any questions or would like any additional information, please do not hesitate to call me.

Very truly yours,
Leo S. Scott
President
Attachment:   Scope of Work
Proposed Budget
cc:   Sheena Patel

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1211 Newell Avenue, Suite 200,, Walnut Creek, CA 94596   Phone 925‐937‐0980 Fax 925‐947‐3177 www.graybowenscott.com

EXHIBIT A

CITY OF HERCULES

HERCULES HUB
GRAY‐BOWEN‐SCOTT
AMENDMENT #2

SCOPE OF WORK
The Gray‐Bowen‐Scott Team (Consultant) shall continue to provide the City the following services to support the delivery of the Hercules Hub Project for the remainder of the 2023 calendar year (approximately 6 months).  Services are defined in two tasks:
 Task 1 – Project Management & Controls
 Task 2 – Funding Plan Advancement
 Task 2A – TIRCP Cycle 7 Grant Application (Optional)
Task 1 ‐ Project Management and Controls
This task is focused on leadership of the project’s delivery. Consultant will serve as the City’s Deputy Project Manager providing direct management of the City’s design consultant contract scope, cost, and schedule. Consultant will serve as the City’s extension of staff for project delivery issues with the City’s partners, stakeholders, and consultants as required and will keep the City’s Project Manager apprised of, and involved in, project progress and issues on a regular basis.  The specific subtask include:

Contract Management
 Prepare monthly invoices and progress reports.
 Manage the design consultant contracts including review and approval of invoices and processing amendments as needed.

Project Meetings and Communication
 Attend bi‐weekly meetings with design consultants to provide guidance and oversight.  Prepare for and attend bi‐weekly meetings with the City to provide updates on project delivery and funding status.
 Prepare for and attend monthly meetings with CCJPA to discuss engineering and funding issues and opportunities.
 Arrange and facilitate meetings as needed to address project issues.  Lead and/or attend various project‐specific meetings, including meeting preparation.  Report regularly to City on progress, issues, and resource needs.  Provide as‐needed project status reports and funding reports.  Serve as the liaison between the project team and the City.  Serve as the primary liaison between the City and key stakeholders.  Work with the City to ensure public questions and concerns are addressed.

Project Execution and Issue Resolution
 Provide leadership to the Project Team, including project vision, delivery goals and team decision‐making protocols.
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1211 Newell Avenue, Suite 200,, Walnut Creek, CA 94596   Phone 925‐937‐0980 Fax 925‐947‐3177 www.graybowenscott.com
 Develop strategies to guide various project issues to resolution.  Work to establish regular communication with UPRR and to resolve issues as they arise.  Work with CCJPA to identify reasonable time‐loss mitigation options for the project.  Coordinate with UPRR to initiate UP Capacity Analysis including development of associated Reimbursement Agreement.

Project Controls
 Regularly update the project risk register to identify, manage, and communicate project risks and mitigation strategies; implement selected mitigation measures.  Monitor and manage the Project Cost Estimate including escalation and risk contingency.  Compile and monitor all project expenditures against approved funded project budget.  Monitor and manage the detailed project schedule. Document assumptions with respect to project schedule.

Task 1 Deliverables
 Project Cost Estimate
 Project Risk register
 Project Schedule
 Cost monitoring report
Task 2 – Funding Plan Advancement
This task is focused on management of the project’s Funding Plan to position for identified funding programs and evaluate new funding opportunities as they arise.  It includes strategic stakeholder coordination and advocacy to establish and reinforce stakeholder support for potential funding opportunities.  The specific subtask include:

Strategic Guidance and Stakeholder Coordination (with Zell & Associates)  The Consultant team will conduct ongoing coordination with key stakeholders to brief them on the findings and recommendations resulting from past and current planning, technical, and engineering studies to foster and secure support for grant funding. As appropriate, Consultant will strategize with stakeholders to pursue grant funding opportunities consistent with the Funding Plan. Stakeholders will include groups such as community, business, and advocacy organizations as well as agency partners such as MTC, CCTA, WCCTAC, WestCat, and WETA.  This subtask includes regular meetings with City management staff to continually refine and strategize our ongoing work program and coordinate the implementation of our advocacy efforts.

Eric Zell, Zell & Associates, will lead all government relations and public affairs strategies and stakeholder engagement for the team.

Monitor and Update Funding Plan
 Arrange periodic meetings with executive management of funding agencies and the City to facilitate joint decisions on policy‐level issues such as funding strategies and programming options.
 Facilitate or participate in meetings with City’s funding partners to achieve consensus on funding opportunities.
 Evaluate new funding opportunities for project eligibility, competitiveness, and timelines. 338

1211 Newell Avenue, Suite 200,, Walnut Creek, CA 94596   Phone 925‐937‐0980 Fax 925‐947‐3177 www.graybowenscott.com
 Monitor and revise the project’s Funding Plan as new opportunities become available.  Coordinate with CalSTA and Caltrans Division of Mass Transit to evaluate design phase funding strategy with respect to TIRCP and FSP.
 Coordinate with FRA to identify and pursue steps to confirm local match eligibility for potential expenditure of TIRCP funds.
 Compile TIRCP grant requirements such as procurement limitations, timely use of funds deadlines, and invoice reporting.

Task 2 Deliverables
 Funding Plan showing target grants and the Project delivery schedule Task 2A – TIRCP Cycle 7 Grant Application (Optional)
Consultant will prepare and apply for grant funding through the California State Transportation Agency’s (CalSTA) Transit and Intercity Capital Rail Program (TIRCP) Cycle 7.   The Program’s Draft Guidelines are anticipated in fall of 2023, and the Call for Projects is anticipated to be released in November 2023 with applications due in Winter 2024.  As part of this task, Consultant will:
 Research the new TIRCP guidelines, priorities, and selection criteria.   Attend webinars and structure and facilitate meetings with key stakeholders including CalSTA and CCJPA as required.  Gather background information and documents from the City and their design consultant to support the grant application.
 Prepare the grant application narrative, and required forms including statement of work, project cost, funding plan, and schedule.
 Prepare graphics and exhibits.
 Draft letters ofsupport and coordinate with various elected officials and agenciesto secure letters of support.
 Develop a quantitative Greenhouse Gas Reduction analysis for the project.  Prepare a draft and final grant application for City review.

Task 2A Deliverables
 TIRCP Cycle 7 Grant Application
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Task No. Description Hours Dollars
1 Project Management & Controls 106,008.00 360 $
2 Funding Plan Advancement 92,379.00 260 $
2A TIRCP Cycle 7 Grant Application (Optional) 113,782.00 482 $ Totals 842 $ 312,169.00
Gray‐Bowen‐Scott
CITY OF HERCULES ‐ HERCULES HUB
Amendment #2 ‐ Budget

EXHIBIT B
340
FIRM:

KEY STAFF:

Leo Scott,
Project Manager
Matt Todd,
Funding Support
Norma Ortega, Industry
Advisor
Sheena Patel, Project
Management Support
Erin Heltne,
Project Controls
Margaret Strubel,
Graphics
Grace Doi,
Grant Writer
Administrative Support
Eric Zell,
Strategic Outreach
Bobby Winston,
Strategic Outreach
John Marshall,
Principal Engineer
Ari Niemi,
Sr. Rail Engineer
Ryan Bissegger,
Funding Analyst
Principal Economist
Associate Economist
Administration
Rates ($/hr) 472.00 378.00 446.00 315.00 278.00 179.00 170.00 170.00 446.00 446.00 352.00 252.00 303.00 440.00 115.00 140.00 MILESTONES/TASKS: Hrs
Task 1 Project Management & ControlsTask 1.1 Contract Management 0.00 0.00 0.00 24.00 5.00 0.00 0.00 35.00 $ ‐ $ 14,900.00 0.00 0.00 $ ‐ 0.00 0.00 $ ‐ 0.00 $ ‐ 0.00 0.00 0.00 $ ‐ $ 14,900Task 1.2 Project Meetings & Communication 16.00 0.00 0.00 82.00 12.00 0.00 24.00 0.00 250 $ $ 41,048.00 0.00 0.00 $ ‐ 4.00 8.00 $ 3,424 0.00 $ ‐ 0.00 0.00 0.00 $ ‐ $ 44,472Task 1.3 Project Execution and Issue Resolution 10.00 0.00 0.00 67.00 0.00 0.00 0.00 0.00 $ ‐ $ 25,825.00 0.00 0.00 $ ‐ 0.00 10.00 $ 2,520 0.00 $ ‐ 0.00 0.00 0.00 $ ‐ $ 28,345Task 1.4 Project Controls 0.00 0.00 0.00 21.00 42.00 0.00 0.00 0.00 $ ‐ $ 18,291.00 0.00 0.00 $ ‐ 0.00 0.00 $ ‐ 0.00 $ ‐ 0.00 0.00 0.00 $ ‐ $ 18,291 TASK 1 TOTAL HOURS 26.00 0.00 0.00 194.00 59.00 0.00 24.00 35.00 338.00 0.00 0.00 0.00 4.00 18.00 22.00 0.00 0.00 0.00 0.00 0.00 0.00 360.00 TASK 1 COST 12,272 $       ‐ $             ‐ $ $ 61,110 $       ‐ 16,402 $ 4,080$ 5,950$ $ 250 $ 100,064 $             ‐ ‐ $ $ ‐ 1,408$ 4,536$ $ 5,944 $ ‐ $ ‐ $ ‐ $ ‐ $ ‐ $ ‐ $ 106,008 Task 2 Funding Plan Advancement
Task 2.1 Strategic Guidance and Stakeholder Coordination 12.00 0.00 0.00 6.00 0.00 0.00 0.00 0.00 250 $ $ 7,804.00 72.00 24.00 $ 42,816 0.00 0.00 $ ‐ 0.00 $ ‐ 0.00 0.00 0.00 $ ‐ $ 50,620 Task 2.2 Monitor and Update Funding Plan 16.00 10.00 0.00 57.00 14.00 0.00 49.00 0.00 250 $ $ 41,759.00 0.00 0.00 $ ‐ 0.00 0.00 $ ‐ $ ‐ $ ‐ 0.00 0.00 0.00 $ ‐ $ 41,759 TASK 2 TOTAL HOURS 28.00 10.00 0.00 63.00 14.00 0.00 49.00 0.00 164.00 72.00 24.00 96.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 260.00 TASK 2 COST 13,216 $          ‐ 3,780$ $ $ 19,845          ‐ 3,892$ $          ‐ 8,330$ $ $ 500 $ 49,563 $ 32,112 $ 10,704 $ 42,816 $             ‐ ‐ $ $                ‐ ‐ $             ‐ $ $             ‐ ‐ $             ‐ $ $ ‐ $ 92,379 Task 2A TIRCP Cycle 7 Grant Application (Optional)

12.00 0.00 8.00 74.00 0.00 40.00 220.00 0.00 $ ‐ $ 77,102.00 24.00 0.00 $ 10,704 0.00 0.00 $ ‐ 32.00 $ 9,696 24.00 40.00 8.00 $ 16,280 $ 113,782 TASK 2A TOTAL HOURS 12.00 0.00 8.00 74.00 0.00 40.00 220.00 0.00 354.00 24.00 0.00 24.00 0.00 0.00 0.00 32.00 32.00 24.00 40.00 8.00 72.00 482.00 TASK 2A COST 5,664 $         ‐ $ 3,568$ $         ‐ 23,310 $ 7,160$ $       ‐ 37,400 $             ‐ $ $ 77,102 $       ‐ 10,704 $ $ 10,704 $             ‐ ‐ $ $ ‐ $ 9,696 $ 9,696 $ 10,560 4,600$ 1,120$ $ 16,280 $ 113,782 Total Hours 66.00 10.00 8.00 331.00 73.00 40.00 293.00 35.00 856.00 96.00 24.00 120.00 4.00 18.00 22.00 32.00 32.00 24.00 40.00 8.00 72.00 1102.00Total Cost $ 31,152 $ 3,780 $ 3,568 $ 104,265 $ 20,294 $ 7,160 $ 49,810 $ 5,950 $ 750 $ 226,729 $ 42,816 $ 10,704 $ 53,520 $ 1,408 $ 4,536 $ 5,944 $ 9,696 $ 9,696 $ 10,560 $ 4,600 $ 1,120 $ 16,280 $ 312,169 Mark Thomas &
JMA Civil Hrs
Totals
Mark HrsThomas
Zell
Totals
Totals
Zell & Associates
GRAY‐BOWEN‐SCOTT
City of Hercules Hub

CONSULTANT SERVICES
DETAILED COST PROPOSAL ‐ AMENDMENT #2
Gray‐Bowen‐Scott JMA Civil

TEAM TOTAL
Hrs
Gray Bowen Scott
Other
Totals
Direct Costs
Hrs
HDR
HDR
Totals
Hercules Hub_GBS Amendment #2 Fee_2023-05-30.xlsx
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1 GRAY‐BOWEN‐SCOTT STAFF BIOS
LEO SCOTT, Gray‐Bowen‐Scott
As President, Leo provides leadership to the company’s staff working in four disciplines: project and program management; grants applications and management; encroachment permits and Federal compliance; and transit management agency operations. He is developing and adding staff in each discipline, which in turn increases the ability of Gray‐Bowen‐Scott to provide solutions for current and new clients around the San Francisco Bay Area.

Concurrently, Leo leads several project teams consisting of clients, Caltrans, and other agency members to ensure the successful delivery of projects. He employs his 30‐year history of relationships with Caltrans personnel and broad knowledge of Caltrans policy and procedures, transportation funding, and the political climate to assist the client. His strong listening ability and consensus‐building skills keep diverse groups working together toward the common goal of delivered projects.

SHEENA PATEL, Gray‐Bowen‐Scott
Sheena has 17 years of transportation design and management experience on projects in all delivery phases, ranging from design alternative analysis and feasibility studies through final PS&E and construction support. She has led projects that include components of pedestrian and bicycle facilities, state highways and local roads, freight rail, and commuter rail. While she is extremely knowledgeable of Caltrans’ methodology, she also enjoys the challenge of working on multi‐modal projects with a variety of stakeholders with differing perspectives and priorities. Sheena holds a Master of Science degree in Civil Engineering/Transportation Engineering from the University of California, Berkeley.

MATTHEW TODD, Gray‐Bowen‐Scott
With over 26 years in the industry, Matt has extensive experience and knowledge to fund and deliver projects. Prior to joining Gray‐Bowen‐Scott, Matt was the Manager of Programming at the Alameda County Transportation Commission (ACTC), where he helped program and coordinate transportation funding and assisted local agencies in delivering and managing complex projects and programs involving multiple stakeholders. Matt is well versed in today’s regulatory and political environment, which often requires navigation through a maze ofstate, regional, and local agencies. Matt holds a Bachelor of Science in Civil Engineering from the University of California, Davis.

GRACE DOI, Gray‐Bowen‐Scott
Grace has over 20 years of experience as a writer and communicator, which she now applies in her position as a grant writer at Gray‐Bowen‐Scott.  Prior to joining Gray‐Bowen‐Scott, Grace worked as a Technical Writing Consultant at San Joaquin Regional Transit District (RTD) forseven years, where she was responsible for training and coaching staff in all levels of business writing and communication, including grant writing.  Prior to the transit industry, Grace worked in marketing and as an instructional designer and adjunct faculty at post‐secondary institutions. With a high aptitude for learning, she enjoys finding creative solutions to problems and fine‐tuning writing (and processes) for optimum effectiveness and efficiency. Grace holds a Bachelor of Arts in English Literature from University of California, Los Angeles, and a Master of Arts in English Literature from University of Illinois at Chicago. 342
2 SUBCONSULTANT STAFF BIOS
ERIC ZELL, Zell and Associates
Eric is a specialist in public policy, governmental affairs, and political strategy. He has over thirty years of experience achieving successful implementation of difficult and high‐profile state and local public policy issues including the passage of state environmental, education and energy legislation; the establishment of Contra Costa County's Transportation Sales Tax and Growth Management Program; gaining approvals for state‐of‐the‐art energy facilities; and the passage of Contra Costa County's landmark Industrial Safety Ordinance. He has implemented public affairs and political campaigns on a variety of issues and for numerous candidates on the state and local levels as well as local ballot measures.

In 1991, Eric formed Zell & Associates, a highly respected government relations and public affairs consulting firm. Prior to forming his own company, Eric held the position of Vice President, Governmental Relations and Public Affairs, for William R. Gray and Company, a transportation consulting firm, for a period of four years. From 1980 through 1987, he served aslocal Chief‐of‐Staff to State Assemblyman Bob Campbell.

In addition, Eric is active in the local community, serving on the Board of Directors of the Contra Costa College Foundation and the East Bay Leadership Council. In 2010, he served as Finance Co‐Chair of the East Bay Regional Park District's successful Measure WW bond measure campaign. From 2007‐2016 he served as an elected member of the West Contra Costa Healthcare District Board of Directors.

He received his B.A. degree in political science from UCLA.

BOBBY WINSTON, Bay Crossings (subconsultant to Zell and Associates) Bobby Winston founded and ran the San Francisco Shakespeare Festival before joining a group advocating comprehensive regional ferry service that founded the Water Transit Authority (WTA), now WETA. He published ‘Bay Crossings’, the ferryrider’s newspaper, for 20 years and partners with working waterfront and community groups on initiatives including the ‘Working Waterfront Cohort’, training returning citizens for good paying jobs, and ‘Virtual Port’, a statewide collaborate aimed at digitizing port infrastructure to improve port congestion and emergency preparedness. He is also a property manager and investor who has been instrumental in bringing ferry service to Richmond.

JON MARSHALL, JMA Civil
Jon Marshall is the Founder and Principal Engineer at JMA Civil and has more than 25 years of experience in railroad facility design, consulting, and general civil engineering. Jon has completed over 200 railroad projects in his career, most with UPRR and BNSF Railway. Additionally, he has led the CPUC coordination role for several dozen rail grade separation and at‐grade crossing improvementprojects.

His extensive experience includes designing projects and consulting for transit agencies including CAHSR, BART, Caltrain, Amtrak and VTA, and leading projects involving or impacting UPRR and BNSF Railway, especially in the Central Valley, Bay Area, and Northern Nevada.

Jon has managed projects through all stages of design, from analysis and planning to early concept and final design, through to construction support, with considerable cost estimating experience at each of these phases. Jon is also a polished public speaker. In 2017 and 2019, he was a main stage technical presenter at the American Railway Engineering and Maintenance of Way Association (AREMA) national conference where he addressed the innovative strategies and lessons learned from securing Union Pacific 343
3 Railroad and BNSF shoofly approvals for the CA High‐Speed Rail Program’s Construction Package 1 and 4.

Jon holds a Bachelor of Science in Civil Engineering from the University of Waterloo. He is a qualified SWPP Developer /Practitioner (QSD/QSP).

RYAN BISSEGGER, Mark Thomas and Company
Ryan has 18 years of experience in the engineering industry. He is Mark Thomas’ funding expert supporting local and regional agencies statewide. He is very knowledgeable of federal and state funding sources including the Senate Bill (SB 1) programs, Active Transportation Program (ATP), Highway Safety Improvement Program (HSIP), federal discretionary grant programs, and regional grant programs. He tracks the programs and is knowledgeable of call for project schedules. He has provided funding recommendations to agencies to pursue grant funds in order to implement improvements. His understanding of the funding programs is leveraged in the preparation of competitive grants. Over the past five years, Ryan has secured over $335 million in competitive funding. Ryan holds a Bachelor of  Arts in International Business from Westminster College, and has completed training in Funding and Programming Transportation Projects in California, U.C. Berkeley Technology.

CHRIS WILLEGES, HDR
Chris Williges is the director of HDR’s economics and statistics practice. He has more than 30 years of experience conducting transportation planning, economics, engineering, and strategic assignments for public and private sector clients. Chris has used and overseen the development of a wide range of analysis tools, such as revenue forecasting tools, regional economic models, benefit‐cost and financial models, travel demand models, traffic simulation models, and asset management systems. For more than 20 years, Mr. Williges has overseen the development and subsequent revisions of the Cal‐B/C benefit‐cost model. He has also helped agencies prepare over than 40 grant applications. Chris holds an AB in economics from Stanford University as well as a Master of City and Regional Planning and a Master of Science in Transportation Engineering from the University of California at Berkeley. 344
Discussion and/ or Action
Agenda Item

2. 22-570
345

STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of June 13, 2023
TO: Mayor and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Michael Roberts, Public Works Director/City Engineer SUBJECT: Expiration of Solid Waste Collection Franchise Agreement in 2025 and Discussion Regarding Potential Strategies Moving Forward RECOMMENDED ACTION:

Receive a report from staff regarding the expiration of the City’s solid waste collection franchise agreement with Republic Services in 2025, discuss procurement alternatives to secure future solid waste services, provide direction to staff on next steps to take, and authorize staff to secure the services of a solid waste consultant to provide expertise and strategic guidance.

EXECUTIVE SUMMARY:

The City’s solid waste collection franchise agreement with Republic Services, which was entered into in 1986, is set to expire on June 30, 2025. Options moving forward include negotiating an extension or new franchise agreement with Republic Services or proceeding with a competitive procurement Request for Proposals (RFP) process.

Other West County cities, whose collection franchise agreements with Republic Services are also expiring at the same time, have begun similar discussions given an RFP process could take up to 2 years. Recyclemore’s solid waste post-collection franchise agreement with Republic Services is also set to expire on June 30, 2025. Hercules is a member agency of Recyclemore which serves West County cities and has direct representation on their Board of Directors.
22-570
346
As the City of Hercules considers the next steps to take, action taken by other West County cities and Recyclemore could impact any decisions made given Republic Services’ role in providing collection and post-collection services in broader West County.

In consideration of the dynamic nature and complexity of this issue, staff is recommending a discussion occur tonight regarding strategies moving forward including securing the services of a solid waste consultant to provide expertise and guidance through this process.

BACKGROUND:

Solid waste service agreements, which include garbage, recycling, and green waste, are divided into collection and post-collection activities. Collection includes the curbside (or on-property) collection of solid waste material and hauling to a processing facility, such as a transfer station, recycling facility, or composting facility. Post-collection services involve either the hauling and disposal of non-reusable solid waste material into a landfill or the processing of this material to be used on after-market products (such as compost or recycled products). In West County, individual cities administer collection franchise agreements while Recyclemore administers the post-collection agreement.

Franchise-Collection Agreement
The City of Hercules has had a Franchise Collection Agreement with Richmond Sanitary Services, a subsidiary of Republic Services, since 1986. Over the years, it has been amended 5 times. The agreement gives Richmond Sanitary Services (hereby Republic Services) the exclusive right to collect all solid waste in the City through June 30, 2025, when the agreement expires.

Other cities in West County including San Pablo, Richmond, and Pinole have similar collection agreements with Republic Services, which are also set to expire on June 30, 2025. Richmond secured the services of R3, a solid waste consulting firm, to provide expertise and guidance moving forward. R3 recommended Richmond begin the process of securing a new franchise agreement given the length of time needed to undergo an RFP process, if that option is chosen, and implement a new agreement.

The Richmond and San Pablo city councils recently directed their staff to issue requests for proposals (RFPs) to seek proposals from all interested vendors for their next solid waste and recyclables franchise agreements. San Pablo in addition directed staff to coordinate with other West County jurisdictions regarding a joint competitive process for their respective franchise agreements. At their June 6, 2023, meeting the City of Pinole directed Staff to proceed with negotiating with Republic Services and if not successful then to proceed with an RFP.

Republic Services
347
Under the current collection franchise agreement, Republic Services has provided solid waste collection services to the City of Hercules for 37 years. Republic Services has a long-standing history of successful performance in the City and West County. Republic Services has a local presence, history, knowledge, and facilities to meet the City’s needs at competitive rates and compensation.

Republic Services initially submitted a May 23, 2023 letter requesting to meet and discuss the benefits of an extension of their current franchise agreement. Staff subsequently met with Republic Services, discussed their letter, and notified them that an item would be brought to Council on June 13, 2023 for discussion. Based upon the meeting that occurred with staff, Republic Services then submitted a second letter on June 6, 2023 providing additional background on their company and more in-depth information which they believe favors a contract extension.

Post-Collection Agreement
The City of Hercules is a member of WCCIMA (Recyclemore), which is a joint powers authority comprised of Hercules, San Pablo, El Cerrito, Richmond, Pinole, and parts of unincorporated Contra Costa County. On behalf of its member agencies, Recyclemore administers a post-collection agreement with Republic Services for the post-collection processing and disposal of solid waste. This Post-Collection Agreement has been in effect since 2013 and is also set to expire on June 30, 2025. As a member agency, Hercules has direct representation on the Board of Directors.

At the May 11, 2023 RecycleMore board meeting, the Board of Directors formed an Ad Hoc Committee to assist the Executive Director determine whether to negotiate with Republic for either an extension of the current post-collection agreement or a new postcollection agreement; or put the post collection services out to bid in an RFP for a new post-collection agreement. The Executive Director will meet with the Ad Hoc Committee and return with the committee’s recommendation for the Board’s consideration in either June or July.

ANALYSIS:

The City has several options to consider for securing collection services following the expiration of the current Franchise Agreement on June 30, 2025. These include the following:

1. An extension or new Franchise Agreement with Republic;

2. An initial negotiation with Republic and if an agreement cannot be reached followed by a competitive procurement;

3. A competitive RFP procurement process for the City of Hercules exclusively; and

4. A competitive RFP procurement process for Hercules and some combination of other West County cities.
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The California Public Resources Code section 40059 authorizes the City to secure solid waste collection services through either a competitive or non-competitive selection process. The City has a sole source policy which allows for a non-competitive process with certain findings.

There are several considerations for the City when deciding which procurement process to undertake, including those listed below:
 If the City would like to negotiate an extension or new Franchise Agreement with Republic, it should do so early enough to allow time for a competitive bid process in case the negotiation results are unsatisfactory to the City.  There is no guarantee that the City will achieve a better agreement through a competitive selection process as opposed to a negotiated agreement with Republic Services. Republic Services previously constructed and has exclusive rights to solid waste processing facilities strategically situated at the closed West Contra Costa Sanitary Landfill complex, their West County Composting Facility and Golden Bear solid waste transfer station. Recyclables are processed at the Integrated Resource Recovery Facility (IRRF) in North Richmond, which is owned and operated by West County Resource Recovery, a division of Republic Services.

They also have a fleet of garbage trucks that would otherwise have to be secured.  The City has not experienced any performance issues with Republic and there has been a long-standing history of successful performance in the City. The City does not have experience with other service providers. Service transitions can be disruptive to customers. Although bidders would be required to submit detailed transition plans, transitions can nonetheless be disruptive to customers as contact information, billing addresses and accounts, collection days, and other things may change.
 An open, competitive RFP process would maximize transparency for rate payers.

New regulations coming on-line, including the electrification of the garbage truck fleet, mandate to switch to new garbage can colors, and composting and other SB 1383 requirements, will be challenging to implement without passing on rate increases to customers, who will expect accountability.  Based upon bargaining power and economy of scale, joining other cities in a joint RFP may result in the best rates to customers. The City of Richmond generates a disproportionate amount of waste by City (i.e. not by size or population) and joining their efforts with San Pablo would be more likely to result in a single service provider over a larger service area, which is conducive to lower rates. However, with Pinole proceeding with negotiations, this may be less of a concern.

Council can direct staff to begin negotiations with Republic, follow a competitive procurement process, and/or continue discussions to further explore and clarify the next steps to take. Staff is recommending securing the services of a solid waste consultant to provide expert guidance through this process.
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FISCAL IMPACT:

While there is no fiscal impact directly related to the consideration of the procurement process for the future collection franchise agreement, City Council may wish to consider new terms such increasing the franchise fee higher than the 10% currently stipulated, mitigation funding for damage to City streets caused by the garbage trucks, and additional services such as bulky item pickup.

ATTACHMENTS:

Attach 1- Republic Letter of May 11, 2023
Attach 2- Republic Letter of June 6, 2023
Attach 3- 2017 Recycling Update of March 21, 2017
Attach 4- Original Franchise Agreement dated September 10, 1986 350
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NCRA
2017 RECYCLING UPDATE
West Contra Costa Sanitary Landfill
Organics Material Processing Facility
Transitioning from
Standard Windrow Composting to
Covered Aerated Static Pile
March 21, 2017
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Don Litchfield – Area Manager Post Collection
• 25 + years of professional experience in the environmental industry
• 9 years at Republic Services
• B.S. Degree in Geological Engineering from the South
Dakota School of Mines & Technology
West Contra Costa Sanitary Landfill – Team Members
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West Contra Costa Sanitary Landfill Organics Material
Processing Facility (WCCSL OMPF) is key in providing
comprehensive recycling services in Contra Costa
County and the surrounding communities.
• Transfer Station - 21,900 square foot transfer facility • OMPF Composting Facility - Environmentally
responsible, organics recycling
• Construction and Demolition Recycling - Capable of
diverting approximately 90 percent of C&D material
• Gas to Energy – 2.4 MW gas-to-energy facility using
landfill gas as the energy source
West Contra Costa Sanitary Landfill
OMPF
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Transitioning from Windrow System to Covered Aerated
Static Pile.

The new CASP system utilized components directly
from landfill gas collection system equipment including HDPE headers and aerators, blower systems, and stateof-the-art SCADA system temperature and moisture controls.

Advantages of the CASP are 90% reduction in
emissions, 50% reduction in composting time and 25%
reduction in water use.

West Contra Costa Sanitary Landfill – Synopsis
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Covered Aerated Static Pile Bunker
System
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Aerated Static Pile Composting System
Bunker #1 of 6 bunkers to be utilized
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Odor control systems
The West County facility employs several odor
mitigation measures, including:
• Landfill gas collection and control system
• On Demand misting systems to control potential
odors
• A meteorological station to monitor weather
patterns
• Construction of a new, state-of-the-art Covered
Aerated Static Pile compost system will reduce the
potential for odors
• Water trucks to spray down any dust-producing
areas
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A meteorological station monitors
weather patterns
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Being Good Neighbors
Being a good neighbor is a top priority for the
management team and employees of the West
Contra Costa Sanitary Landfill OMPF
• Committed to improving and eliminating any
impacts
• Upgraded odor control systems
• Implemented best management practices
• Active participant in the community
• Maintains Wildcat Marsh & Landfill Loop Trail
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Best Management Practices
Best management practices for the

WCCSL OMPF
• Covered Aerated Static Pile compost system
• Air District preferred method for composting
• More efficient processing of green waste
• Fully automated for temperature and aeration flow
control
• Bunker-style system requires less movement of
material
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Future of WCCSL OMPF
• New composting facility completed January 2017
• Continue and expand best management
practices
• Ensuring our company runs the most
environmentally responsible facilities.
• Unique regional facility designed to meet State
organic processing requirements
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Discussion and/or Action
Agenda Item

3. 22-571
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STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of June 13, 2023
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Tim Rood, Community Development Director
SUBJECT: Business Attraction Grant Program
RECOMMENDED ACTION:

Staff recommends that the City Council approve a resolution approving the establishment of a pilot business attraction grant program and approving the business attraction program guidelines.

BACKGROUND:

The Council’s Economic Development Committee received a report on the proposed Business Attraction program on April 4, 2023 and recommended it be brought to the full Council for consideration.

Councilmembers have inquired the how the City could assist certain types of desired new retail businesses with move-in costs associated with occupying vacant storefront spaces in Hercules. Sit-down restaurants and other eating and drinking establishments that provide gathering space have been a particular focus.

There are currently vacant ground-floor commercial spaces at the Creekside Center, the Willow Avenue Center, Sycamore Place, The Aventine, and The Exchange. While they are being actively marketed through commercial brokers, some have remained vacant for months or years.

Commercial landlords typically provide a fixed cost per square foot allowance for tenant improvements (build-out of the interior of a commercial space to suit the needs of a particular tenant). In many cases, actual construction costs are significantly higher than the allowance, with the portion above the allowance paid by the business moving in.

Businesses offering food and beverage service also have significant costs for furnishings, fixtures and equipment, such as commercial appliances, point of sale systems, furniture and tableware. By assisting with these costs, the City could lower the 22-571
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bar for entry of desired types of new businesses, which could lead to higher sales tax revenues.

Available Spaces
As of May 2023, listing brokers indicated that Hercules has approximately 23,000 total square feet of vacant ground floor commercial space, located in shopping centers as well as newer mixed-use buildings.

At Creekside Center, one 1,770-square foot suite is available. This suite was previously leased as a deli/sandwich shop, but that business did not complete its tenant improvements or open due to the Covid-19 pandemic, and the partially built-out space became available early in 2023. At the Willow Avenue Center, two adjacent suites totaling 1,350 square feet (formerly used as a nail salon) are available. Sycamore Place has one approximately 4,000 square foot standalone building, the former Century21 realty office, available for lease.

The Aventine has three noncontiguous retail spaces available, ranging from 556 to 1,530 square feet, for a total of 3,201 square feet. The Exchange has nine commercial suites available, ranging from 502 square feet to 2,478 square feet, for a total of 10,563 square feet available. The largest suite can accommodate venting for a full-service restaurant.

This and the three adjacent spaces could be combined into a single suite of 5,918 square feet, which would be the largest available retail space currently available in Hercules.

Retail Sectors with Growth Potential
In 2022, the City’s economic development consultant, HdL ECONSolutions, prepared a Community Profile and a void analysis that identified “leakage” of Herculeans’ retail dollars to other jurisdictions for specific types of purchases. This analysis was presented to the Economic Development Subcommittee on August 16, 2022.

Many of the types of retail showing significant leakage out of Hercules are sectors that tend to occupy much larger spaces than those currently available in Hercules, such as auto dealers, grocery stores, department stores and furniture stores, which can be 50,000 to 100,000 square feet or more. New chain groceries such as the Hercules Safeway are 50,000 square feet or more, and even smaller-format specialty groceries such as Trader Joe’s are typically around 12,000 to 18,000 square feet.

Health care/personal services businesses, which also show some leakage, are typically 15,000 to 20,000 square feet. The Sycamore Crossing development is planned to include a standalone 13,111 square foot “pad” building with a drive-through lane that is suitable for a pharmacy tenant.
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ANALYSIS:

Staff recommends that the City funding be used to establish pilot Business Attraction matching grant program to incentive desired types of business to move into existing, vacant retail spaces. Given the relatively small size of the available retail spaces in Hercules, staff recommends that the Business Attraction grant program be targeted to eating/drinking establishments.

The proposed program guidelines are as follows:

Business Attraction Grant Budget
A total of $100,000 (allocated from the General Fund) with a maximum grant amount per business of $25,000 (and a minimum grant amount of $5,000). Grant amount must be matched by the applicant.

Grant Program Eligibility
 The business is a brick-and-mortar, for-profit, sales tax-generating businesses in one of the following categories:
o Restaurant/Café
o Brewpub/Micro-Distillery
o Wine Bar/Cafe
 The business must lease/rent their commercial property directly from a landlord.  The space must be vacant and available for lease as of the start date of the program.
 The business is either independently owned/operated or a locally owned franchisee (i.e., local outlets of chains or franchises that are headquartered outside of the nine-county Bay Area and/or have more than six locations are not eligible)
 The business must provide a matching move-in expenditure equal to or greater than the grant amount.

Submittal Requirements
 Signed Lease or Letter of Intent (LOI) for a vacant (as of the grant program start date) tenant space in Hercules.
 Pro-forma detailing all construction and move-in expenses required to open the business.
 Grant amount requested and verification by the pro-forma that the grant amount will not exceed 50% of all construction and move-in expenses.  Complete and signed online application which will include:
o Verification that the business is within one of the eligible categories. o Verification that the business is either independently owned/operated or a locally owned chain (as defined under eligibility requirements) 422
Use of Funds
 Tenant improvements (construction costs)
 Signage
 City, County or Utility permitting and connection fees  Mechanical, Appliance and Equipment Costs
 Furniture and Furnishings
 Computer and Software Costs
Grant payments (up to the amount requested and awarded) will be upon submittal of receipts and/or invoices to HdL every 30 days. Business shall obtain a City Business license prior to final reimbursement payment.

If approved, the grant program will begin on July 1, 2023.

FISCAL IMPACT:

There would be no fiscal impact to this proposal. The draft FY 23-24 budget includes an appropriation of $100,000 for this program in order to allow up to four grants for the maximum $25,000.

ATTCHMENTS:

Attachment 1 - Resolution
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RESOLUTION NO. 23-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING

THE ESTABLISHMENT OF A PILOT BUSINESS ATTRACTION GRANT PROGRAM AND APPROVING THE BUSINESS ATTRACTION PROGRAM GUIDELINES.

WHEREAS, the City of Hercules values its locally owned small businesses, including restaurants, and seeks to attract additional small businesses; and WHEREAS, the City of Hercules seeks to encourage restaurants, wine bars, microbreweries and micro-distilleries to locate in vacant retail spaces in Hercules to bring increased vibrancy and provide public gathering places; and WHEREAS, businesses offering food and beverage service also have significant costs for furnishings, fixtures and equipment, such as commercial appliances, point of sale systems, furniture and tableware; and
WHEREAS, by assisting with these costs, the City could lower the bar for entry of desired types of new businesses, which could lead to higher sales tax revenues; and WHEREAS, the Council’s Economic Development Committee received a report on the proposed Business Attraction program and guidelines on April 4, 2023 and recommended it be brought to the full Council for consideration.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules as follows:

1. The City Council hereby approves the establishment of a pilot Business Attraction Matching Grant Program.

2. The City Council hereby approves the program guidelines for the pilot Business Attraction Matching Grant Program.
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The foregoing Resolution was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the 13th day of June 2023 by the following vote of the Council:

AYES:

NOES:

ABSTAIN:

ABSENT:
____________________________
Alexander Walker-Griffin, Mayor
ATTEST:

Eibleis Melendez, Acting City Clerk
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Discussion and/or Action
Agenda Item

4. 22-572
426

STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of June 13, 2023
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Tim Rood, Community Development Director
SUBJECT: “Eat Local Hercules” Catering Incentive
RECOMMENDED ACTION:

Staff recommends that the City Council approve by minute order the Eat Local Hercules program guidelines and adopt a resolution approving the second amendment to an agreement with the Yiftee Digital Gift Card program in the amount of $50,000 to establish the Eat Local Hercules catering incentive program.

BACKGROUND:

The Council’s Economic Development Committee received a report on the proposed Eat Local Hercules program on April 4, 2023 and recommended it be brought to the full Council for consideration.

On April 26, 2022, the City Council authorized the City Manager to execute an agreement with Yiftee for a Shop Local/Gift Card program for $65,000. At the February 28, 2023 meeting, the City Council authorized the extension of the program and added an additional $75,000 due to the successful launch of the pilot program.

The Yiftee Community Digital Gift Card program is a cost-effective way to stimulate the local economy and assist small businesses in recovery. It also provides additional savings to residents who shop locally.

Yiftee has no set-up or monthly costs, and the additional $50,000 will pay for:
 The $1+5% eDelivery fee (purchaser fee) plus a $1 bonus gift fee per card.  A bonus gift card to incentivize the use of the program and provide a benefit to all community members.
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 Branding costs associated with the development of the “Eat Local Hercules” campaign.
 Marketing costs for advertisement and promotion of the program and related point-of-sale signage and posters for participating businesses.

ANALYSIS:

The Eat Local Hercules program is meant to be an incentive to build business-tobusiness relationships between Hercules restaurants, caterers and food trucks and local major employers in Hercules, as well as major employers located in nearby communities.

Similar to the Shop Hercules program, Eat Local Hercules will be an incentive program to use local restaurant catering services. The proposed Yiftee Gift Card Enterprise program would be a new program with a special type of Yiftee card marketed to large employers in Hercules. This card would have a higher spending limit and would be redeemable only at Hercules small businesses that provide catering services.

For example, a major employer, such as Bio-Rad, could buy a gift card valued at $250 and receive a matched $250 ‘bonus’ card paid by the City, and both gift cards could be used at local participating restaurants or catering businesses.

Staff and consultants recommend the following parameters for the Eat Local Program:

Eat Local Program Budget
Staff recommend a budget of $50,000 to be allocated from the General Fund for the Eat Local Bonus Gift Card pilot program.

Bonus Card Guidelines
 100% match for purchase cards with a maximum bonus card value of $250.  A limit of 5 cards per customer (business).
 Eligible purchasers must purchase cards with one company email address verified by the City and/or consultant in order to receive bonus cards (i.e., employees cannot use personal email addresses to purchase cards).  Bonus cards expire six months (120 days) after purchase (any expired unspent bonus gift funds would be returned to the City for redistribution after a restocking fee). The purchased Gift Card (original purchase amount) does not expire, per the Yiftee agreement.
 The City will pay all purchasing and eDelivery fees during the Pilot Program while funds remain (first come, first serve). The purchase card eDelivery fee is $1+5% of the purchase value per card, and the bonus card eDelivery fee is $1 per card. 428
Eligible Purchasers
The Eat Local Hercules Program is intended to incentivize local major (large) employers to purchase food from Hercules local restaurants and cafes. Purchasers must meet the following criteria:
 Operates from a physical location in Hercules, Pinole, Rodeo or Crockett (zip codes 94547, 94564, 94572, or 94525)
 Has 21 or more full time equivalent employees as of December 1, 2021.

A preliminary list of eligible purchasers identified by City staff and consultants is attached (Attachment 5). Other eligible businesses may also participate if they meet the criteria.

Eligible Redemption Sites
The eligibility criteria for participants will be the same as the original Shop Hercules Program, as identified below, except for the Eat Local Hercules program is limited to restaurants/cafes, catering companies and food trucks providing catering services.

Eligible redemption sites must meet the following criteria:
 Is a for-profit business, in one of the following categories:
o Restaurant/Café
o Catering company
o Food truck (with a Hercules business address)
 Operates from a physical storefront in Hercules or from a food truck (with a Hercules business address). Home-based businesses are not eligible.  Maintains a current City business license.
 Franchises are eligible if the corporation is headquartered in Contra Costa County with six or fewer locations
 Locally owned chains are eligible if they are headquartered in Contra Costa County with six or fewer locations
Eat Local Hercules Program Process
Below is a summary of the process to implement the Eat Local program:

1. Hercules will set up a Yiftee portal and card program called the Eat Local Hercules Card exclusively for qualified major employers to use at local Hercules restaurants/cafes, caterers and food trucks (with a Hercules business address). o The City specifies the purchaser and redemption site criteria (listed above). o The City will inform merchants that there is a second program exclusively for restaurants, catering businesses and food trucks (with a Hercules business address) for “large” businesses in Hercules.
o Merchants currently participating in the Shop Hercules program can be copied over to the new portal without running a new activation card.

Merchants not currently participating will sign up through Yiftee’s activation process.
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2. City Staff and consultants will market the Eat Local Bonus Gift Card Program to the large employers.

3. The businesses purchase up to 5 cards themselves from the Eat Local Card website whenever they’re ready and tells the City when that’s done. HdL will manage the website to watch for purchases, as well.

4. The City will have to approve the bonus cards based on the purchases and then Yiftee sends the bonus cards (5 max) manually (with the desired expiration date) to the approved purchasers.

5. The Eat Local gift cards can be redeemed at the select restaurants/cafes/ caterers/food trucks.

6. Unused bonus gift cards will go back into Eat Local Card Portal after the sixmonth bonus card expiration date.

FISCAL IMPACT:

A funding allocation of $50,000 for this program is included in the draft FY 23-24 budget and will be appropriated in the General Fund under expenditure account # 100-0000- 611.90-00 (Project No. ARP218) for this proposed second amendment to the existing agreement. The proposed second amendment increases the total contract amount under this agreement by $50,000, for a total amount of $190,000.

Contract Agreement No. Approval
Contract
Approval Date
Authorized
Amount
Original Contract 22-012 Council Resolution #22-032 4/26/2022 $ 65,000 1st Amendment Council Resolution #23-010 2/28/2023 $ 75,000 2nd Amendment Recommended 6/13/2023 $ 50,000
Total $ 190,000
ATTACHMENTS:

1. Resolution

2. Second Amendment to the original agreement

3. First Amendment to the original agreement

4. Original Agreement

5. Preliminary list of Eligible Purchasers
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RESOLUTION NO. 23-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING

A SECOND AMENDMENT TO AN AGREEMENT WITH YIFTEE IN THE AMOUNT OF $50,000 FOR THE “EAT LOCAL HERCULES” CATERING INCENTIVE PROGRAM, AND AMENDING THE FY 23-24 BUDGET INCREASING ITS APPROPRIATION BY $50,000
WHEREAS, the City of Hercules values its locally owned small businesses, including restaurants, caterers and food trucks, and seeks to improve the economic climate for small businesses; and
WHEREAS, the City of Hercules seeks to foster ongoing business-to-business relationships between Hercules restaurants, caterers and food trucks and the large employers in Hercules and in the vicinity of Hercules, including Crockett, Rodeo and Pinole; and
WHEREAS, the City entered into an Agreement with Yiftee for the Shop Local/Gift Card Program on April 26, 2022 for $65,000; and
WHEREAS, due to successful launch of the pilot program, the City Council approved the First Amendment to the Agreement, adding $75,000 to the program and increasing the budget by $75,000; and
WHEREAS, the Second Amendment would add $50,000 to the Yiftee Gift Card program.

Staff is proposing that the budget be increased by $50,000 for the introduction of the Eat Local Hercules pilot program.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules as follows:

1. The Second Amendment to the Agreement with Yiftee is hereby approved and the City Manager is authorized to execute the second amendment to the agreement.

2. The City Council hereby approves an amendment to the City’s FY 23-24 Budget to add $50,000 for the introduction of the Eat Local Hercules Yiftee Gift Card program.
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The foregoing Resolution was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the 13th day of June 2023 by the following vote of the Council:

AYES:

NOES:

ABSTAIN:

ABSENT:
____________________________
Alexander Walker-Griffin, Mayor
ATTEST:

Eibleis Melendez, Acting City Clerk
432
AMENDMENT NO. 1
Approving Revised Attachment B to add additional $75,000

1. Parties. The parties to this Contract Amendment are the City of Hercules, a public body corporate and the following named Contractor:

Yiftee
325 Sharon Park Drive #215, Menlo Park, CA 94025
(650) 533-0938
Attention: Donna Novitsky
[email protected]
The parties to this Contract Amendment do mutually agree and promise as follows:

2. Purpose. This Amendment No. 1 is being entered into to amend an existing contract between the City and Contractor which was approved by the City Council of the City of Hercules on April 26, 2022, by Resolution No. 22-032. Said contract shall hereinafter be referred to as the "Original Contract" and is incorporated herein by reference.

3. Original Contract Provisions. The parties hereto agree to continue to abide by those terms and conditions of the Original Contract, and any amendments thereto, which are unaffected by this Contract Amendment Agreement.

4. Amendment. This Amendment No. 1 is intended to amend the Original Contract and previously approved amendments (collectively, the "Amended Contract") thereto to provide for additional compensation in an amount not to exceed $75,000, for a total contract amount of $140,000.

5. Amendment Approval: This Amendment No. 1 is hereby approved by the City Council of the City of Hercules on this 28th day of February, 2023.

6. Signatures. These signatures attest the parties' agreement hereto:

City of Hercules
s/_______________________________
Dante Hall, City Manager
Date: ___________________________
Approved as to form:

By ______________________________
Patrick Tang, City Attorney
Contractor: Yiftee
s/_______________________________
_________________________________
Name/Title
Date: ___________________________
Attachments:

Attachment A: Scope of Service & Payment
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RESOLUTION NO. 23-010

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES APPROVING

A FIRST AMENDMENT TO AN AGREEMENT WITH YIFTEE IN THE AMOUNT OF $75,000 TO CONTINUE THE SHOP LOCAUGIFT CARD PROGRAM FUNDED BY THE AMERICAN RESCUE PLAN ACT (ARPA) FUND AND AMEND THE FY 22-23 BUDGET INCREASING ITS APPROPRIATION BY $75,000
WHEREAS, on March 11, 2021, the American Rescue Plan Act ( H.R. 1319), § 4001, ARPA") was signed into law providing federal funding relief for American workers, families, industries, and state and local governments; and WHEREAS, The United States Department of Treasury released ARPA regulations and updated local government allocations on May 10, 2021. As part of the $1.9 trillion relief package, the City's allocation is set at $6,285,778.; and WHEREAS, the City received the full $6,285,778 in allocation; and .

WHEREAS, the City entered into an Agreement with Yiftee for the Shop Local/Gift Card Program on April 26, 2022 for $65,000; and
WHEREAS, due to successful launch of the pilot program, the City Council would like to continue the program; and
WHEREAS, the proposed First Amendment would add $75,000 to the Yiftee Shop Local/Gift Card program. Staff is proposing that the budget be increased by $75,000 for the continuation of the Shop Local/Gift Card program; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules as follows:

1. The First Amendment to Agreement with Yiftee is hereby approved and the City Manager is authorized to execute the first amendment to the agreement.

2. The City Council hereby approves amendment to the City's FY 22-23 Budget to add $75,000 for the continuation of the Yiftee Shop Local/Gift Card program. 434
The foregoing Resolution was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the 28th day of February 2023 by the following vote of the Council:

AYES: COUNCIL MEMBERS: Mayor Alex Walker-Griffin, Vice Mayor Romero, D. Bailey, C. Kelley and T. Grimsley
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
Alexander Walker-Griffin, Mayor
ATTEST:
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CITY OF HERCULES

PROFESSIONAL SERVICES AGREEMENT
This Agreement (“Agreement”) for professional services is made on April 26, 2022, between the City of Hercules, a California municipality (“City”), and Yiftee, a California Community Card Program Corporation (“Consultant”) (individually, a “Party,” and collectively, the “Parties”).

1. Scope of Services. Consultant will provide to City the professional services described in the Scope of Services, attached as Attachment A and incorporated in this Agreement (the “Services”). Only the City Council or the City Manager may authorize any change or addition to the Scope of Services specified in Attachment A.

2. Term. This Agreement will become effective on April 26, 2022 (“Effective Date”), and shall continue in full force for one year from the Effective Date. At the sole discretion of the City, the Agreement may be renewed for an additional option year, up to a maximum of four option years, and with no option period allowed beyond December 31, 2026.

3. Compensation. For the full and satisfactory completion of the Services, City will pay Consultant in an amount not to exceed Sixty Five Thousand Dollars ($65,000), without prior written authorization by City, pursuant to the terms set forth in Attachment B on Payment, which is attached to and incorporated in this Agreement. Consultant’s compensation is intended to encompass all costs required for performing the Services, including overhead and indirect costs.

Except as expressly provided in Attachment B, Consultant will not be entitled to reimbursement for expenses it incurs to provide the Services.

3.1 Payment. City will pay Consultant for Services satisfactorily provided during each calendar month within 30 days following City receipt and approval of a detailed invoice. The invoice must include, at a minimum: a description of the specific Services provided; the date(s) upon which the Services were provided; the amount due for the Services; and the basis for calculating the amount due. Payment for gifts and fees must be received before the gifts can be delivered.

3.2 Additional Services. If the City requests related services beyond the Scope of Services described in Attachment A, the Consultant will provide City a written estimate for the additional services (“Additional Services”). Consultant will not provide Additional Services until Consultant has received written authorization from the City to perform the Additional Services.

Consultant will not be entitled to payment for Additional Services performed without City’s prior written authorization or for costs to correct Consultant’s errors or omissions.

4. Independent Contractor. The Parties agree that Consultant will act as an independent contractor under this Agreement and will have control of its work and the manner in which the Services are performed. Consultant is not an employee of City and is not entitled to participate in any health, retirement, or similar employee benefits from the City.

Agreement No. 22-012
Council Resolution No. 22-032
DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 436

5. Consultant’s Warranties.

5.1 Consultant warrants that all Services provided under this Agreement will be performed in accordance with generally accepted professional practices and standards for Consultant’s profession in the Bay Area.

5.2 Consultant warrants that all Services provided under this Agreement will be performed in accordance with applicable federal, state, and local laws and regulations, including, but not limited to, conflict of interest laws and City ordinances and policies.

5.3 Consultant warrants that Consultant has no present interest which would conflict in any manner with the performance of Services on the City’s behalf.

5.4 Consultant warrants that it will comply with the City’s Nepotism and Cronyism Policy.

6. Notice. Any notice, billing, or payment required by this Agreement must be made in writing, and sent to the other Party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF (or comparable) file. Notice is effective upon delivery unless otherwise specified. Notice for each Party will be given as follows:

City: Consultant:

City of Hercules Yiftee
111 Civic Drive 325 Sharon Park Drive # 215
Hercules, CA 94547 Menlo Park, CA 94025
(510) 799-8200 (650) 533-0938
Attn: City Clerk Attn: Donna Novitsky
[email protected]
Copy to: _____________________ Copy to: _____________________ Email: _______________________ Email: _______________________

7. Indemnity. Subsection 7.1 is not applicable to this Agreement if Consultant’s Services are “design professional” services as that term is used and defined in Civil Code section 2782.8.

Subsection 7.2 is applicable to this Agreement if Consultant’s Services are “design professional” services as used and defined in Civil Code section 2782.8.

7.1 To the full extent permitted by law, Consultant will indemnify, defend with counsel acceptable to City, such acceptance to not be unreasonably withheld and hold harmless City, its governing body, officers, agents, employees, and volunteers (collectively, “City Indemnitees”) from and against any and all liability, demands, loss, damage, claims, settlements, expenses, and costs (including, without limitation, attorney fees, expert witness fees, and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s negligent acts or omissions with respect to this Agreement, except such Liability caused by the active negligence, sole negligence, or willful misconduct of any of the City Indemnitees. This indemnification obligation is not limited by any limitation on the amount or type of damages or compensation payable under Workers’ Compensation or other employee benefit acts, or by insurance coverage limits, and will survive the expiration or early termination of this Agreement.

DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 437
This Subsection 7.1 does not apply if the Services to be provided under this Agreement are design professional services provided by a licensed architect, landscape architect, professional engineer, or professional land surveyor.

7.2 To the full extent permitted by law, Consultant will indemnify, defend, and hold harmless City, its City Council, officials, officers, agents, employees, and volunteers from and against any and all liability, loss, damage, claims, expenses and costs (including, without limitation, attorney fees and costs and fees of litigation) (collectively, “Liability”) of every nature which arises out of, pertains to, or relates to the negligence, recklessness, or willful misconduct of Consultant in the performance of this Agreement, except such Liability caused by the active negligence, sole negligence or willful misconduct of City. This indemnification obligation is not limited by any limitation on the amount or type of damages or compensation payable under Workers’ Compensation or other employee benefit acts, or by insurance coverage limits, and will survive the expiration or early termination of this Agreement. This Subsection 7.2 is applicable if the Services to be provided under this Agreement are design professional services provided by a licensed architect, landscape architect, professional engineer, or professional land surveyor.

8. Insurance. Before providing any Services under this Agreement, Consultant is required to procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements. Each certificate of insurance must state that the coverage afforded by the policy or policies will not be reduced, cancelled or allowed to expire without at least 30 days written notice to City, unless due to nonpayment of premiums, in which case at least 10 days written notice will be made to City. The required insurance must cover the activities of Consultant and its employees or subcontractors relating to or arising from the performance of the Services, and must remain in full force and effect at all times during the term of the Agreement. All required insurance must be issued by an insurer licensed to do business in the State of California, and each such insurer must have an A.M. Best financial strength rating of “A” or better and a financial size rating of “VIII” or better. If Consultant fails to provide any of the required coverage, City may, at its sole discretion, purchase such coverage at Consultant’s expense and deduct the cost from payments due to Consultant.

8.1 The following insurance policies and limits are required for this Agreement:

8.1.1 Commercial General Liability Insurance (“CGL”). CGL insurance issued on an occurrence basis, including coverage of liability arising from Consultant’s acts or omissions in the performance of Services under this Agreement, with limits of at least $1,000,000.00 per occurrence.

8.1.2 [Blank]

8.1.3 Workers’ Compensation Insurance and Employer’s Liability. The policy must comply with the requirements of the California Workers’ Compensation Insurance and Safety Act, with limits of at least $1,000,000.00. If Consultant is selfinsured, Consultant must provide its duly authorized Certificate of Permission to Self-Insure.

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8.1.4 Professional Liability. This insurance must insure against Consultant’s errors and omissions in the provision of Services under this Agreement, in an amount no less than $1,000,000.00 combined single limit.

8.2 Subrogation Waiver. Each required policy must include an endorsement that the insurer agrees to waive any right of subrogation it may have against City or the City’s insurers.

8.3 The CGL policy and the automotive liability policy must include the following endorsements:
(1) The City, including its Council, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the performance of the Agreement. (2) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
(3) The insurance provided is primary and no insurance held or owned by City will be called upon to contribute to a loss.
(4) Any umbrella or excess insurance must contain or be endorsed to contain a provision that such coverage will also apply on a primary or non-contributory basis for the benefit of City before the City’s own insurance or self-insurance will be called upon to protect it as a named insured.

9. Dispute Resolution. In the event that any dispute arises between the Parties in relation to this Agreement, the Parties agree to meet face to face as soon as possible to engage in a good faith effort to resolve the matter informally. In the event that any dispute arises between the Parties in relation to this Agreement, and the dispute is not resolved by informal discussions, the Parties agree to submit the dispute to mediation.

9.1 Either Party may give written notice to the other Party of a request to submit a dispute to mediation, and a mediation session must take place within 60 days after the date that such notice is given, or sooner if reasonably practicable. The Parties will jointly appoint a mutually acceptable mediator. The Parties further agree to share equally the costs of the mediation, except costs incurred by each Party for representation by legal counsel.

9.2 Good faith participation in mediation pursuant to this Section is a condition precedent to either Party commencing litigation in relation to the dispute.

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10. Early Termination.

10.1 Termination for Convenience. City may terminate this Agreement for convenience by giving 10 calendar days written notice to Consultant. In the event City elects to terminate the Agreement without cause, it will pay Consultant for Services satisfactorily provided up to that date.

10.2 Termination for Cause. If either Party breaches this Agreement by failing to timely or satisfactorily perform any of its obligations or otherwise violates the terms of this Agreement, the other Party may terminate this Agreement by giving written notice five calendar days prior to the effective date of termination, specifying the reason and the effective date of the termination.

Consultant will be entitled to payment for all Services satisfactorily provided up to the effective date of termination, except that the City may deduct from that payment the amount of costs the City incurred, if any, because of Consultant’s breach of the Agreement.

11. Records. Unless otherwise specified in Attachment A, Consultant will maintain records related to this Agreement for a period of four years from expiration or termination of this Agreement, including records of the Services performed, on a daily basis if necessary.

Consultant’s accounting systems will conform to generally accepted accounting principles, and all records will provide a breakdown of total costs charged under this Agreement, including properly executed payrolls, time records, invoices, and vouchers. Consultant will permit City to inspect and examine Consultant’s books, records, accounts, and any and all data relevant to this Agreement at any reasonable time.

12. General Provisions.

12.1 Assignment and Successors. Consultant may not assign its rights or obligations under this Agreement, in part or in whole, without City’s written consent, such consent to not be unreasonably withheld. This Agreement is binding on Consultant’s and City’s lawful heirs, successors, and permitted assigns.

12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this Agreement.

12.3 Nondiscrimination. Consultant will not discriminate in the employment of persons under this Agreement because of race, color, ancestry, national origin, religion, sex, marital status, age, medical condition, disability, or other prohibited basis. All nondiscrimination rules or regulations required by law to be included in this Agreement are incorporated by this reference.

12.3.1 Avoidance of Cronyism and Nepotism. Consultant shall comply with regulations adopted by the City of Hercules to avoid favoritism in the award of contracts. Consultant shall submit a fully executed copy of the “Contractor Acknowledgment of City of Hercules Nepotism and Cronyism Policy” as Attachment C to this Agreement.

12.3.2 Compliance with the California Equal Pay Act. Consultant shall comply with regulations adopted by the City of Hercules to allow for verification of Consultant compliance with the requirements of the California Equal Pay Act. Consultant shall submit a fully executed copy of DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 440
the “Contractor Acknowledgment of Compliance with the California Equal Pay Act” as Attachment D to this Agreement.

12.4 Choice of Law and Venue. This Agreement will be governed by California law, and venue will be in the Superior Court of Contra Costa County, and no other place.

12.5 Integration. This Agreement and the documents incorporated in this Agreement constitute the final, complete, and exclusive terms of the agreement between the City and the Consultant.

12.6 Severability. If any provision of this Agreement is determined to be illegal, invalid, or unenforceable, in part or in whole, the remaining provisions of the Agreement will remain in full force and effect.

12.7 Amendment. No amendment or modification of this Agreement will be binding unless it is in a writing duly authorized and signed by the Parties to this Agreement.

12.8 Provisions Deemed Inserted. Every provision of law required to be inserted in this Agreement will be deemed to be inserted, and this Agreement will be construed and enforced as though included. If it is discovered that through mistake or otherwise that any required provision is not inserted, or not correctly inserted, this Agreement will be amended to make the insertion or correction.

12.9 Precedence. If any provision in any document attached to or incorporated in this Agreement conflicts with or is inconsistent with the provisions set forth in the body of this Agreement, the provisions set forth in the body of this Agreement will control over any such conflicting or inconsistent provisions.

12.10 Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless the writing so specifies.

12.11 Force Majeure. If either Party is delayed or hindered in or prevented from the performance of any act required under this Agreement because of strikes, lockouts, inability to procure labor or materials, failure of power, riots, insurrection, war, fire or other casualty, or other reason beyond the reasonable control of the Party delayed, excluding financial inability (“Force Majeure Event”), performance of that act will be excused for the period during which the Force Majeure Event prevents such performance, and the period for that performance will be extended for an equivalent period. Delays or failures to perform resulting from lack of funds will not be Force Majeure Events.

12.12 Headings. The headings in this Agreement are included for convenience only and will not affect the construction or interpretation of any provision in this Agreement or any of the rights or obligations of the Parties to this Agreement.

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12.13 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument.

12.14 Authorization. Each individual signing below warrants that he or she is authorized to do so by the Party that he or she represents, and that this Agreement is legally binding on that Party. If Consultant is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code section 313.
[Signature page follows.]
DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 442
The Parties agree to this Agreement as witnessed by the signatures below:

CITY: Approved as to form:
s/_______________________________ s/__________________________________ ________________________________ ___________________________________ Dante Hall, City Manager Patrick Tang, City Attorney
Date: ___________________________ Date: ______________________________

Attest:
s/_______________________________
_________________________________
Name/Title
Date: ___________________________
CONSULTANT: Yiftee
Business Name
s/_______________________________
_________________________________
Name/Title
Date: ____________________________
s/_______________________________
_________________________________
Name/Title
Date: ____________________________
Attachments:

Attachment A: Scope of Services
Attachment B: Payment
Attachment C: Contractor Acknowledgment of City of Hercules Nepotism and Cronyism Policy Attachment D: Contractor Acknowledgment of Compliance with the California Equal Pay Ac DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 6/22/2022 6/9/2022
Ceo, Yiftee
6/9/2022
Donna Novitsky
6/22/2022
Lauren Berges City Clerk / Public Information Officer
443
Attachment A

SCOPE OF SERVICES
<Scope of Services attached in the following page(s)>
DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 444
Community Card Customer Agreement
THIS AGREEMENT (the “Agreement”) is made effective as of __________, 2022 (the “Effective Date”) by and between Yiftee Inc., a Delaware corporation, with an address at 325 Sharon Park Drive #215, Menlo Park, CA 94025 (“Yiftee”) and _____________________________________ with an address at _________________________________________(“Customer”). The parties agree a follows:

1. Definitions.

1.1 “Merchant” means a merchant, prospect or other contact that may be using or desire to use Yiftee Services to redeem eGifts.

1.2 “Participant” means a Merchant who has opted to participate in a Community Card by running an Activation Card and agreeing to the Merchant Agreement.

1.3 “Yiftee Services” means Yiftee’s gift-giving platform. It is the technology foundation for Community Cards.

1.4 “Purchaser” means a person or entity that purchases or redeems eGifts.

1.5 “eGift” means a digital virtual gift voucher used as payment for goods or services at a Participant.

1.6 “Offer” or “Offers” mean specific benefits that Participants provide to consumers who use their Community Cards in their store, as determined by the Participants and posted on their eGift Card web page.

2. Merchant Enrollment.

2.1 Merchant Enrollment Obligations
(a) Customer will collect a set of Merchants who have elected to participate in the Yiftee Services.

Merchants must all be located in the same state in the USA, due to varying gift card laws by state. Each Merchant must agree to the Yiftee Community Card Merchant Agreement located on the Yiftee.com website. Merchants who have not agreed to the Merchant Agreement will not be able to utilize the Yiftee Services to redeem eGifts. Customer will upload into the Yiftee Services or provide the names of the Merchants who intend to participate to Yiftee. Upon the agreed upon launch date, the billing for the Yiftee Services will begin (“Commencement Date”). This billing will include the agreed-upon cost for each Participant or group thereof as defined in Appendix A. (b) Yiftee will provide to Customer or directly to Merchants, upon receipt of the set of Merchant names in 2.1a, a set of unique Activation Cards to be run by each Merchant. Customer will inform Merchants of their individual Activation Card and provide instructions on its use. Additionally, Customer will inform Merchants that running the Activation Card implies consent to the Merchant Agreement located on the Yiftee.com website.
(c) As Merchants run the Activation Cards, they will be included in the set of Merchants enabled to participate in the Yiftee Services, i.e. the Participants. Participant may also post their Offers to be available for eGift Card holders who redeem gifts in their stores.

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(d) Yiftee will bill Customer or Merchants as described in Appendix A. Customer can add or remove Participants and fees will be adjusted accordingly, if applicable. There will be no retroactive adjustments allowed by Yiftee (that is, a cancelled Participant’s billing obligation will result in that Participant’s cost to Customer, as defined in Appendix A, to be eliminated beginning only on the next annual billing cycle).

A Participant may be added to the list of Participants at any time (“Enrollment Time”), with billing adjustment for said Participant to begin immediately and to be included in the current month’s billing. (e) Each party shall comply with good, ethical and moral business practices and all applicable laws and regulations in engaging in any activities here under.
(f) Fees and payment terms applicable to the subject matter here under shall be as set forth in Appendix A. Customer is not entitled to compensation other than what is described in Appendix A. (g) Customer is responsible and liable for any disputes or liability arising out of its relationships with Merchants and Participants, except with respect to any liability of Yiftee under this agreement.

2.2 Yiftee Materials.

Yiftee may provide Customer with certain materials for use in conjunction with promoting the Yiftee Services here under (“Yiftee Materials”). No rights or licenses, express or implied, are granted in those Yiftee Materials or otherwise, except as expressly and unambiguously set forth in this Agreement.

2.3 Limited Licenses.

Subject to the terms and conditions of this Agreement, Yiftee hereby grants to Customer, a nonexclusive, non-transferable, non-assignable, non-sublicensable right and license to access and use the Yiftee Services and Yiftee Materials solely for the purposes of Customer’s performance of this Agreement.

2.4 Trademark License.

Subject to the terms and conditions of this Agreement, Yiftee hereby grants Customer and Customer hereby grants Yiftee a non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty-free license to use Yiftee’s or Customer’s name, trade names, trademarks, service marks, and logos (collectively, a party’s “Marks”) solely in connection with Customer’s and Yiftee’s promotion and marketing of the Yiftee Services, subject to written usage guidelines, if any, made mutually available.

3. Ownership. As between the parties, Yiftee owns all right, title and interest in and to the Yiftee Services, Yiftee’s Marks and the Yiftee Materials. Customer owns all right, title and interest in and to Customer’s Marks.

4. Warranties Disclaimer. YIFTEE AND ITS LICENSORS MAKE NO WARRANTIES TO CUSTOMER,

EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY,

NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.

5. Liability Limitation. EXCEPT FOR LIABILITY ARISING UNDER SECTION 7, NEITHER PARTY (NOR ITS

LICENSORS) WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS

AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE

THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY

SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE AND IN NO EVENT SHALL EITHER PARTY’S DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 446
LIABILITY EXCEED THE GREATER OF $500 OR THE AMOUNTS PAID AND/OR PAYABLE BY YIFTEE TO

CUSTOMER (AND/OR BY CUSTOMER TO YIFTEE, IF PAYMENTS ARE PAYABLE BY CUSTOMER TO YIFTEE IN ACCORDANCE WITH PROPOSAL) HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.

6. Term and Termination.

6.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force on an annual period from the Effective Date, and thereafter shall automatically renew annually, unless and until either party terminates this Agreement pursuant to Section 6.2.

6.2 Termination.
(a) Either party may, at its option, terminate this Agreement upon thirty (30) days written notice to the other party for any reason or for no reason whatsoever. (b) Either party may terminate this Agreement if the other party materially breaches a term of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach from the non-breaching party.
(c) Participants are obligated to honor all outstanding eGifts issued by Yiftee for the entire duration of those eGift's validity periods. Termination does not relieve Participants from honoring conditions outlined in the Merchant Agreement.

6.3 Effect of Termination. Upon any termination: (a) Customer shall immediately cease all promotion of the Yiftee Services and shall immediately return to Yiftee, or at the option of Yiftee, destroy, all Confidential Information (as defined below) of Yiftee disclosed to Customer, Yiftee Materials, and any Yiftee Services, hardware and software provided to Customer here under, (b) Yiftee shall immediately return to Customer, or at the option of Customer, destroy, all Confidential Information of Customer disclosed to Yiftee here under, and (c) all licenses granted under this Agreement shall immediately cease. The following Sections shall survive termination and remain in effect 1, 3, 4, 5, 6.3, 7 and 8. Any termination of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.

7. Confidentiality. Because of this Agreement, the parties may have access to information that is confidential to the disclosing party (“Confidential Information”). Confidential Information shall include, without limitation, Purchaser lists and information relating to the parties’ products and pricing and all information designated as confidential by the disclosing party at the time of disclosure. A party’s Confidential Information shall not include any information which (i) becomes generally publicly available through no wrongful act or omission of the receiving party; (ii) is lawfully acquired by the receiving party from a third party without any breach of a confidentiality obligation; or (iii) is independently developed without use of or reference to the disclosing party’s Confidential Information. Each party agrees to maintain the confidentiality of the other party’s Confidential Information using the same degree of care that it uses with regard to its confidential information of like nature, but in no event less than reasonable care, and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge that money damages will not be an adequate DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 447
remedy if this Section 7 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.

8. Non-solicitation
During the term of this Agreement, neither party will (on behalf of itself or any other person or entity) solicit any Purchaser or Merchant of the other party to restrict, limit, or terminate such Purchaser’s or Merchant’s participation in the other party’s products and services.

9. Miscellaneous

9.1 Choice of Law. This contract shall be governed by and construed in accordance with the laws of the State of California, without regard to the provisions of the conflict of laws thereof. The parties will resolve any disputes in the state or federal courts located in Santa Clara County, California, to whose exclusive jurisdiction and venue they irrevocably submit. Notwithstanding anything to the contrary, either party may pursue injunctive or other equitable relief in any court of competent jurisdiction.

9.2 Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, or three (3) days after mailing if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section.

9.3 Assignment. Customer may not assign or otherwise transfer, without the prior written consent of Yiftee, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. Yiftee may freely assign or otherwise transfer this Agreement in connection with the sale of all or substantially all of its business or assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

9.4 Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable.

9.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof, and may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.

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

Customer (Print): YIFTEE, INC.

By: By:

Name, Title: Name, Title: Donna Novitsky, Yiftee CEO
DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 448
Attachment B

PAYMENT
<Payment attached in the following page(s)>
DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 449
Community Card Customer Agreement

APPENDIX A
Pricing
Customer and Participants are not required to pay Yiftee a subscription fee or a revenue share. Yiftee does not take a percentage of the cards that are redeemed in the Participants’ stores.

Charges:

Purchasers pay the face value of the card plus a $1+5% of the eGift Card value eDelivery fee at the time of purchase. Bulk purchases of one thousand dollars ($1000) or more, and enterprise accounts may qualify for a reduced eDelivery fee by depositing funds into their Yiftee eGifting accounts by check or ACH and disabling credit cards.

Participants pay Mastercard processing fees for a card-not-present (CNP) transaction upon redemption.

Yiftee does not control these fees, they are set by the Merchant Acquirer who is their credit card processor.

Subject to applicable laws, Yiftee will implement a monthly maintenance fee on eGift Cards that have been inactive (i.e. no spending on the Card) for periods of greater than 12 months. This will be made clear to cardholders on the face of the eGift Card when implemented, as is required by law.

Yiftee eGift Cards do not generally expire. Subject to applicable laws, in some cases eGift Cards given by corporations or merchants as promotions, rewards and awards may have expiration dates. In the case of eGift Cards expiring, Yiftee retains 10% of the original eGift Card value not to exceed the remaining unspent funds and refunds the balance to the purchaser’s Yiftee eGift Card account. eDelivery fees are not refunded.

Participants may choose, at their discretion, to post Offers to encourage Purchasers to use their Community Cards in their stores.

Participants may choose, at their discretion, to offer rebates as fund raisers to local groups such as schools, churches and other non-profits. Such programs are an incentive for the local groups to sell Community Cards to their members, and for the Purchasers to use them in specific stores who are offering rebates. Yiftee will work with the Participants and Purchasers to execute such programs.

No tipping is allowed on Yiftee eGift Cards.

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ORDINANCE NO. 486

AN ORDINANCE OF THE CITY OF HERCULES ESTABLISHING POLICIES TO

ADDRESS AND PREVENT NEPOTISM AND CRONYISM IN CITY EMPLOYMENT

AND CONTRACTING
WHEREAS, to promote and maintain confidence in City government, it is imperative that City employment and contracting are free from nepotism, cronyism, patronage, and favoritism; and
WHEREAS, it is imperative that City employment and City contracts be based on merit, so that citizens are assured that City employees will be providing the highest quality service to those deserving citizens; and
WHEREAS, nepotism, cronyism, patronage, and favoritism are demoralizing and dispiriting to the dedicated, hard-working employees of the City; and WHEREAS, the hiring of city officials, contractors and consultants who have a family, business, or consensual romantic and/or sexual relationship with a City official creates the appearance of impropriety and should be discouraged.

NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Hercules as follows:

1. The Hercules Municipal Code is hereby amended to include Title 2, Chapter 3, Article 4, to read as follows:
“Article 4. PREVENTION OF NEPOTISM AND CRONYISM IN

EMPLOYMENT AND CONTRACTING
Sec. 2-3.401 Purpose
In adopting this Article, it is the intent of the City Council to prohibit the contracting with, and employment of, relatives and friends of City Officials, to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, contracting and/or transfer practices of the City.

The regulations established by this Article shall apply to all City officials, as defined herein, and to all individuals or firms who provide services to the City as independent contractors or paid consultants.

Sec. 2-3.402 Definitions
“City” as used herein shall mean the City of Hercules, California.

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“City Officials” for the purposes of this Article means City Elected Officials, City Appointed Officials, appointees to City ad hoc or standing committees, appointees to City Commissions, and City Employees, including all individuals who are employed by the City Manager, City Attorney, and City Clerk, as well as all employees of City Agencies and Departments.
“Contractor” means any individual or firm providing material, equipment, or services to the City pursuant to a written or oral agreement with the City as an independent contractor or consultant, and not as an employee.
"Family Relationship" means a relationship by blood, adoption, marriage, domestic partnership, foster care, and cohabitation, and includes parents, grandparents, greatgrandparents, grandchildren, great-grandchildren, children, foster children, uncles, aunts, nephews, nieces, first cousins, second cousins, siblings, and the spouses or domestic partners of each of these relatives and cohabitants. This definition includes any relationship that exists by virtue of marriage or domestic partnership, such as in-law and step relationships, which are covered to the same extent as blood relationships. "Consensual Romantic and/or Sexual Relationship" means any consensual romantic and/or sexual relationship between a City official or Contractor and any City official who may supervise him or her directly or indirectly, or who may influence the terms and conditions of his or her employment or contract with the City.
“Cronyism” means making an employment or contracting decision based upon personal, political, financial, or commercial relationships instead of merit when the person or entity benefitting from the employment, promotion, supervision or contract does not have the qualifications for the position or contract, or is being compensated at a rate that is more than the rate that would be paid other employees or contractors performing the same or similar functions.
“Nepotism” means employing, promoting, supervising or contracting with a person or persons who have a family relationship or a consensual romantic and/or sexual relationship with a City official.

Sec. 2-3.403 Restricting Nepotism and Cronyism in Public Employment. (a). Statement of Policy.

It is the policy of the City of Hercules to hire, promote, and transfer employees on the basis of individual merit and to avoid favoritism or discrimination in making such decisions.

The employment of relatives of City officials, in positions where one might have influence over the other’s status or job security, is regarded as a violation of this Section. Nepotism and cronyism, as defined in Section 2-3.402, are prohibited from City employment decisions to the full extent permitted by law.

It is therefore the City’s policy to prohibit nepotism and cronyism in public employment according to the guidelines below:

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(1) An individual will not be hired, promoted, transferred, or otherwise placed into a position when a person with whom the individual has a family relationship or consensual romantic and/or sexual relationship occupies a position in his or her direct supervisory chain of command.
(2) Individuals will not be hired, promoted, transferred, or otherwise placed into a position when to do so would constitute cronyism. (3) Department Heads are prohibited from employing or supervising any person with whom the Department Head has a family relationship or consensual romantic and/or sexual relationship within his/her department in any capacity in which that person may receive compensation.
(4) Department Heads are prohibited from employing or supervising any individual, when to do so would constitute cronyism.
(5) City positions should be advertised to the public and filled pursuant to an objective selection process based upon qualification.
(b) Resolving a Violation.

In the event nepotism or cronyism arises due to circumstances such as through promotion, transfer, the development of a consensual romantic and/or sexual relationship or marriage, the involved individuals have six (6) months in which to settle the issue voluntarily (i.e. by having one of them change assignment or leave City employment.) If the affected parties are unable to resolve the situation within the time provided, their immediate supervisors will review the case at the end of the six-month period. The supervisor’s decision concerning which employee must change assignment, made after consultation with the Director of Human Resources, will be binding. (c) Responsibility to Report.

It is the responsibility of a City Official to report a violation of this Section. A City employee must notify his/her supervisor, and it is the responsibility of an elected or appointed official to notify the City Manager, or the City Attorney in the case of a violation by the City Manager, when any of the following situations occur:
(1) When a person who is hired or appointed, or is being considered to be hired or appointed, has a family relationship or consensual romantic and/or sexual relationship with a City Official, and/or
(2) When a City Official has or develops a family relationship or consensual romantic and/or sexual relationship with another City Official who occupies a position in his or her direct supervisory chain of command, and/or (3) When hiring, promotion, appointment or supervision of a City Official constitutes cronyism as defined in Section II.

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The intent of this Section is to ensure that no conflict of interest, favoritism, preferential treatment, or discrimination enters into the hiring, promotion, and/or transfer practices of the City.
(d) Penalty for Failure to Report.

A City Official, other than an elected official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the City, or who knows or should know of any employment decision that constitutes nepotism or cronyism and fails to report the violation, is subject to discipline, including but not limited to suspension or termination.

An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is employed by the City, or who knows or should know of an employment decision that constitutes nepotism or cronyism and fails to report the violation, is subject to censure.

Sec. 2-3.404 Restricting Nepotism and Cronyism in Public Contracting. (a) Statement of Policy.

It is the policy of the City of Hercules to avoid favoritism or discrimination in making decisions to award contracts for supplies, construction, maintenance, professional or other services. The awarding of a contract or the approval of payments or expenses under a contract by a City Official, to a person with whom she or he has a family relationship or a consensual romantic and/or sexual relationship, is regarded as a violation of this Section.

Nepotism and cronyism as defined in Section 2-3.402 are hereby prohibited from City contracting decisions to the full extent permitted by law.

It is therefore the City’s policy to prohibit nepotism and cronyism in City contracts, according to the guidelines below:
(1) An individual Contractor shall not be awarded a contract with the City when the Contractor has a family relationship or consensual romantic and/or sexual relationship with a City Official who may have some influence over the award or management of the contract, or when the award of a contract to that individual Contractor would constitute nepotism or cronyism.
(2) Firms shall not be awarded contracts with the City when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and/or sexual relationship with a City Official who may have some influence over the award or management of the contract, or when the award of a contract to a firm would constitute nepotism or cronyism.

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(3) A City Official is prohibited from awarding contracts to any individual with whom he or she has a family relationship or consensual romantic and/or sexual relationship, or to any firm when an owner, manager, senior member, principal, officer, or partner of the firm has a family relationship or consensual romantic and/or sexual relationship with the employee or official, or when to do so would constitute nepotism or cronyism.

The intent of this Section is to ensure that no conflict of interest, favoritism, or discrimination enters into the contracting practices of the City. (b) Responsibility to Report a Violation of Regulations Against Contracting with Relatives or Contracts that Constitute Cronyism.

It is the responsibility of a City Official to report a violation of this Section. A City employee must notify his or her supervisor, and an elected or appointed official must notify the City Manager, or the City Attorney in the case of a violation by the City Manager, when he or she is aware of any of the following situations:
(1) When a person who has a family relationship or consensual romantic and/or sexual relationship with a City Official is being considered for the award of a contract to provide services to the City, and/or
(2) When a City Official has or develops a family relationship or a romantic and/or consensual sexual relationship with a person who has an existing contract to provide services to the City, and/or
(3) When the award of a contract would constitute nepotism or cronyism as defined in Section 2-3.402.
(c) Penalty for Failure to Report.

A City Official, other than an elected city official, who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section, and fails to report the violation, is subject to discipline, including, but not limited to, suspension or termination.

An elected official who knows or should know that a person with whom he or she has a family relationship or consensual romantic and/or sexual relationship is being considered for or has been awarded a contract with the City in violation of this Section and fails to report the violation, is subject to censure.

A Contractor who has a contract with the City or who seeks a contract with the City and fails to report that a person with whom she or he has a family relationship or consensual romantic and/or sexual relationship is employed by the City or is a City Official, or that the award of the contract constitutes cronyism in violation of this Section, may have his or her contract terminated and may be precluded from being awarded any future contracts with the City.

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CONTRACTOR ACKNOWLEDGMENT OF CITY OF HERCULES NEPOTISM AND CRONYISM POLICY SECTION A:

To be completed by City Representative Prior to Distribution to Contractor:

City Representative Phone Project Spec No.

Department Contract/Proposal Name
SECTION B:

This is an Original Revised form (check one). If Original, complete all that applies. If revised, complete Contractor Name and include any changed data.

Contractor/Consultant Name Phone
Street Address City State Zip
Type of Submission (Check One) Bid Proposal Qualification Contract/Agreement/Amendment SECTION C:

The undersigned Contractor’s Representative acknowledges by his or her signature the following:

It is the policy of the City of Hercules to avoid favoritism or discrimination in making decisions to award contracts for supplies, construction, maintenance, professional or other services. The awarding of a contract or the approval of payments or expenses under a contract by a City Official, to a person with whom she or he has a family relationship or a consensual romantic and/or sexual relationship, is regarded as a violation of this Section. Nepotism and cronyism as defined in Section 2-3.402 are hereby prohibited from City contracting decisions to the full extent permitted by law.

I have read Hercules Ordinance Number 486 and certify that I/we have not knowingly, nor will I/we in the future, enter into a contract with the City of Hercules or accept payment from the City of Hercules when to do so is in violation of Ordinance Number 486.

If circumstances require changing the information on this form while I/we have a bid, proposal, or qualifications under review, or while we are under contract with the City, we will amend this form within five business days.

Signature Date
Print Name of Signer Position
SECTION D:

To Be Completed by Administrative Services Department with the City of Hercules after Submission of the Completed Form by Contractor
Date Received by City By
Edwin Gato 510-799-8200
22-012
Council Reso 22-032
Community Card ARPA
Program
Finance
X
Yiftee 650-533-0938
325 Sharon Park Dr #215 Menlo Park CA 94025
X

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Donna Novitsky Ceo, Yiftee
457
ORDINANCE NO. 534

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HERCULES AMENDING HERCULES MUNICIPAL CODE TITLE 2, BY ADDING A NEW ARTICLE 5 (CHAPTER 2-3.5) ENTITLED, “CITY CONTRACTOR EQUAL PAY ACT COMPLIANCE”, TO PROVIDE A

LOCAL MEANS OF DETERMINING WHETHER ENTITIES CONTRACTING WITH

THE CITY OF HERCULES ARE IN COMPLIANCE WITH THE REQUIREMENTS OF

THE CALIFORNIA EQUAL PAY ACT
WHEREAS, the California Equal Pay Act was originally enacted to prohibit an employer from paying its employees less than employees of the opposite sex for equal work; and WHEREAS, in 2015, Governor Jerry Brown signed the California Fair Pay Act, which strengthened the California Equal Pay Act and signaled California’s commitment to achieving real gender pay equity; and
WHEREAS, since 2015 there have been additional amendments to the California Equal Pay Act; effective January 1, 2017, Governor Brown signed a bill that added race and ethnicity as protected categories so that the Act now prohibits paying employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially similar work; and WHEREAS, the protections, procedures, and remedies relating to race- or ethnicity-based claims are now identical to the ones relating to gender; and
WHEREAS, in addition, employers are prohibited from using prior salary to justify any sex-, race-, or ethnicity-based pay difference; and
WHEREAS, while the State of California has amended the Equal Pay Act to eliminate loopholes and expand its protections, there is no mechanism for a local agency to determine whether contractors or firms who seek to contract with the local agency are in compliance with the requirements of the Equal Pay Act; and
WHEREAS, recent salary studies have shown that women continue to be paid less than men for the same line of employment; and
WHEREAS, recent salary studies have verified that similarly qualified Black, Asian, and Latinx women continue to earn less on average than their white counterparts; and WHEREAS, anecdotal evidence suggests that the COVID-19 pandemic has disproportionately impacted women, especially women of color.

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

SECTION 1. Recitals. The City Council hereby incorporates the above recitals into this Ordinance by this reference.

SECTION 2. Amendment. That the City Council of the City of Hercules does hereby AMEND the Hercules Municipal Code to ADD Title 2, Chapter 3, Article 5, to read as follows:
“Article 5. City Contractor EQUAL PAY ACT Compliance
Sec. 2-3.501 Purpose.

In adopting this Article, it is the intent of the City Council to provide a local means of determining whether entities contracting with the City are in compliance with the California Equal Pay Act.

The regulations established by this Article shall apply to all individuals or firms who provide services to the City as independent contractors or paid consultants.

Sec. 2-3.502 Definitions.
“City” as used herein shall mean the City of Hercules, California. “City Officials,” for the purposes of this Article, means City elected officials, City appointed officials, and City employees, including all individuals who are employed by the City Manager, City Attorney, and City Clerk, as well as all employees of City agencies and departments.
“Contractor” means any individual or firm providing or proposing to provide material, equipment, or services to the City as an independent contractor or consultant.

Sec. 2-3.503 Requiring Equal Pay Act Compliance in Public Contracting. (a) Statement of Policy. It is the policy of the City of Hercules to avoid awarding contracts for supplies, construction, maintenance, and professional or other services to contractors that are not in compliance with the requirements of the California Equal Pay Act. The awarding of a contract or the approval of payments or expenses under a contract DocuSign Envelope ID: 6377961B-C5E9-4CBB-B346-030C1DD7589C DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 459
by a City Official, to a person or entity that has not complied with the reporting requirements of this Article, is regarded as a violation of this Section.

It is therefore the City’s policy to prohibit awarding City contracts, according to the guidelines below:
(1) A contractor shall not be awarded a contract with the City when the contractor has been determined to have violated the Equal Pay Act at any time within the preceding five (5) years.
(2) A firm shall not be awarded a contract with the City when an owner, manager, senior member, principal, officer, or partner of the firm has been determined to have violated the Equal Pay Act at any time within the preceding five (5) years. (3) A City Official The City Manager is prohibited from approving the awarding of a contract to a contractor who refuses to comply with the requirement to provide an acknowledgment of Equal Pay Act compliance pursuant to Section 2-3.506.

The intent of this Section is to ensure that no discrimination against individuals or groups protected under the California Equal Pay Act enters into the contracting practices of the City.
(b) Responsibility to Report a Violation of Contractor Equal Pay Act compliance requirements. It is the responsibility of City Officials to report a violation of this Section.

A City employee must notify his or her supervisor, and an elected or appointed official must notify the City Manager, when he or she is aware of any of the following situations:
(1) When a contractor has been found to be in violation of the Equal Pay Act and is being considered for the award of a contract to provide services to the City; and/or (2) When a City Official becomes aware of a contractor with an existing contract to provide material, equipment or services to the City is found to be in violation of the Equal Pay Act.
(c) Penalty for Failure to Report. A City Official who knows or should know that a contractor is being considered for or has been awarded a contract with the City in violation of this Article, and fails to report the violation, is subject to discipline, including, but not limited to, suspension or termination.

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(d) A contractor with a contract with the City or who seeks a contract with the City and fails to report a violation of the Equal Pay Act or is otherwise not in compliance with requirements of this Article may have his or her contract terminated and may be precluded from being awarded any future contracts with the City.

Sec. 2-3.505 Penalties Not Exclusive.

The penalties provided under this Article are not exclusive, and do not preclude punishment under any other applicable provision of law.

Sec. 2-3.506 Notice and Acknowledgment.
(a) The requirements of this Article shall be acknowledged by all contractors, on a form developed by the City Attorney and provided to contractors by the City Clerk. No contract shall be entered into without submission of the required acknowledgment form. (b) All contractors, and all prospective contractors, shall be notified in writing of the requirements of this Article at the time the City issues a request for proposals or qualifications, and prior to entering into an agreement.” SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decisions shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be deleted.

SECTION 4. Effective Date and Publication. The City Clerk shall certify to the adoption of this Ordinance and shall publish or post the Ordinance as required by law. This Ordinance shall be effective thirty (30) days from date of final adoption.

THE FOREGOING ORDINANCE was first read at a regular meeting of the Hercules City Council on the 13th day of July, 2021, and was passed and adopted at a regular meeting of the Hercules City Council on the 27th day of July, 2021, by the following vote:

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AYES:

NOES:

ABSENT:

ABSTAIN:

Chris Kelley, Mayor
__________________________________________
Lori Martin, MMC
Administrative Services Director / City Clerk
COUNCIL MEMBERS: T. Grimsley, D. Romero, A.Walker-Griffin, Vice Mayor D. Bailey, Mayor C. Kelley.

None.

None.

None.

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CONTRACTOR ACKNOWLEDGMENT OF COMPLIANCE WITH CALIFORNIA EQUAL PAY ACT SECTION A:

To be completed by City Representative Prior to Distribution to Contractor:

City Representative Phone Project Spec No.

Department Contract/Proposal Name __
SECTION B:

This is an Original Revised form (check one). If Original, complete all that applies. If revised, complete Contractor Name and include any changed data.

Contractor/Consultant Name____________________ Phone
Street Address City State Zip
Type of Submission (Check One) Bid Proposal Qualification Contract/Agreement/Amendment SECTION C:

The undersigned Contractor’s Representative acknowledges by his or her signature the following:

It is the policy of the City of Hercules to avoid awarding contracts for supplies, construction, maintenance, professional or other services to contractors who are not in compliance with the equal pay requirements of the California Equal Pay Act.. The awarding of a contract or the approval of payments or expenses under a contract by a City Official, to a person or contractor not in compliance with the California Equal Pay Act, is regarded as a violation of this Section.

I have read Hercules Ordinance Number 534 and certify that I/we have not in the past 5 years been found to be in violation of the California Equal pay Act, and I/we have not knowingly, nor will I/we in the future, enter into a contract with the City of Hercules or accept payment from the City of Hercules when to do so is in violation of Ordinance Number 534 .

If circumstances require changing the information on this form while I/we have a bid, proposal, or qualifications under review, or while we are under contract with the City, we will amend this form within five business days.

Signature Date
Print Name of Signer Position
SECTION D:

To Be Completed by Administrative Services Department with the City of Hercules after Submission of the Completed Form by Contractor
Date Received by City By
Edwin Gato 510-799-8200
22-012
Council Reso 22-032
Community Card
ARPA Program
Finance
X
Yftee 650-533-0938
325 Sharon Park Drive #215 Menlo Park CA 94025
X

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DocuSign Envelope ID: 3441B701-0A49-49D8-8785-032CEA154E54 Donna Novitsky
6/9/2022
Ceo, Yiftee
463
Certificate Of Completion
Envelope Id: 3441B7010A4949D88785032CEA154E54 Status: Completed Subject: Contract - 22-012- Yiftee - Community Card ARPA Program Agreement Source Envelope:

Document Pages: 28 Signatures: 6 Envelope Originator:

Certificate Pages: 5 Initials: 0 A. Clarisse Saechao
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
[email protected]
IP Address: 66.7.246.210
Record Tracking
Status: Original
6/6/2022 1:52:59 PM
Holder: A. Clarisse Saechao
[email protected]
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: City of Hercules Location: DocuSign Signer Events Signature Timestamp
Patrick Tang
[email protected]
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Signed by link sent to [email protected]
Using IP Address: 66.7.246.210
Sent: 6/6/2022 2:07:21 PM
Resent: 6/9/2022 12:39:32 PM
Viewed: 6/9/2022 5:32:12 PM
Signed: 6/9/2022 5:32:41 PM
Electronic Record and Signature Disclosure:

Accepted: 6/9/2022 5:32:12 PM
ID: 6aef8e23-d23b-4d77-9729-7777bd69a125
Dante Hall
[email protected]
City Manager
Security Level: Email, Account Authentication
(None) Signature Adoption: Pre-selected Style
Signed by link sent to [email protected]
Using IP Address: 66.7.246.210
Sent: 6/9/2022 5:32:43 PM
Resent: 6/13/2022 10:28:05 AM
Resent: 6/14/2022 9:15:54 AM
Resent: 6/15/2022 1:46:35 PM
Resent: 6/21/2022 11:04:03 AM
Resent: 6/22/2022 7:50:49 AM
Viewed: 6/22/2022 8:51:43 AM
Signed: 6/22/2022 8:54:06 AM
Electronic Record and Signature Disclosure:

Accepted: 6/22/2022 8:51:43 AM
ID: f6fb84b6-e518-4dab-ae87-759e9a264144
Donna Novitsky
[email protected]
Ceo, Yiftee
North Lake Tahoe Resort Association
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Signed by link sent to [email protected]
Using IP Address: 76.21.115.113
Sent: 6/9/2022 5:32:44 PM
Viewed: 6/9/2022 10:34:35 PM
Signed: 6/9/2022 10:41:14 PM
Electronic Record and Signature Disclosure:

Accepted: 6/9/2022 10:34:35 PM
ID: 29eb49f3-d01e-48cd-9c8d-c565cc997507
464
Signer Events Signature Timestamp
Lauren Berges
[email protected]
City Clerk / Public Information Officer
City of Hercules
Security Level: Email, Account Authentication
(None)
Signature Adoption: Uploaded Signature Image
Signed by link sent to [email protected]
Using IP Address: 66.7.246.210
Sent: 6/22/2022 8:54:08 AM
Viewed: 6/22/2022 9:36:33 AM
Signed: 6/22/2022 9:36:39 AM
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Edwin Gato
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: 6/22/2022 8:54:08 AM
Viewed: 6/22/2022 10:06:01 AM
Electronic Record and Signature Disclosure:

Accepted: 6/16/2022 6:20:52 PM
ID: 302f0287-edf5-47ea-9fba-4676cf5a901a
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 6/6/2022 2:07:21 PM
Certified Delivered Security Checked 6/22/2022 9:36:33 AM Signing Complete Security Checked 6/22/2022 9:36:39 AM
Completed Security Checked 6/22/2022 9:36:39 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
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ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, City of Hercules (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system.

Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.

Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below.

Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below.

Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us.

All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 7/30/2020 6:36:10 PM Parties agreed to: Patrick Tang, Dante Hall, Donna Novitsky, Edwin Gato 466
Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us.

How to contact City of Hercules:

You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows:

To contact us by email send messages to: [email protected] To advise City of Hercules of your new email address
To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at [email protected] and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address.

If you created a DocuSign account, you may update it with your new email address through your account preferences.

To request paper copies from City of Hercules
To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to [email protected] and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any.

To withdraw your consent with City of Hercules
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:
467
i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to [email protected] and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process..

Required hardware and software
The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guidesigning-system-requirements.

Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.

By selecting the check-box next to ‘I agree to use electronic records and signatures’, you confirm that:
 You can access and read this Electronic Record and Signature Disclosure; and  You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and
 Until or unless you notify City of Hercules as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by City of Hercules during the course of your relationship with City of Hercules.
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Hercules/Pinole/Crockett/Rodeo Area Major Large Employers Company Address City Zip Employees
Bio-Rad 1000 Alfred Nobel Drive Hercules 94547 1052
Safeway 4080 San Pablo Ave Hercules 94591 162
West Contra Costa USD (Hercules) 1108 Bissell Ave, Richmond CA
Hercules 94801 230
Home Depot 1625 Sycamore Ave Hercules 94547 190
Pacific Bio Labs 551 Linus Pauling Dr Hercules 94547 124 Lucky Supermarkets (Save Mart) 1590 Sycamore Ave, Hercules 94547 65 City of Hercules 1111 Civic Drive Hercules 94547 56
Kinder's Meats & Deli 3600 San Pablo Ave # 1 Hercules 94547 48 Benda Tool & Model Works 900 Alfred Nobel Dr Hercules 94547 43 A&B Die Casting 900 Alfred Nobel Dr Hercules 94547 24
Target 1400 Fitzgerlad Dr Pinole 94564 237
West Contra Costa USD (Pinole) 1108 Bissell Ave, Richmond CA
Pinole 94564 185
Kaiser Health Center 1301 Pinole Valley Rd Pinole 94564 144 City of Pinole 2131 Pear St Pinole 94564 117
In-N-Out Burger 1417 Fitzgerald Dr, Pinole 94564 110
Sprouts Farmers Market 1300 Pinole Valley Rd Pinole 94564 100 Trader Joe's 2742 Pinole Valley Rd Pinole 94564 98
MV Public Transportation, Inc. 601 Walter Ave Pinole 94564 97 Burlington Coat Factory 1350 Fitzgerald Dr Pinole 94564 82 Philips 66 Refinery 2101 Franklin Canyon Rd. Rodeo 94572 650 C&H Sugar Corp. HQ and refinery 830 Loring Ave. Crockett 94525 450 Nu Star Energy Terminal 90 San Pablo Ave Crockett 94525 1167 Crockett Cogeneration 550 Loring Ave Crockett 94525 25
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Discussion and/or Action
Agenda Item

5. 22-568
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STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of June 13, 2023
TO: Members of the City Council
SUBMITTED BY: Dante Hall, City Manager
Patrick Tang, City Attorney
Edwin Gato, Director of Finance
SUBJECT: Adopt a Resolution authorizing Council Members not currently enrolled in the ICMA deferred compensation plan to participate in the plan to provide parity among Council Members.

RECOMMENDED ACTION:

Staff recommends the following:

1. Adopt a Resolution authorizing Council Members not currently enrolled in the ICMA deferred compensation plan to participate in the plan to provide parity among Council Members.

2. Discuss and provide directions to staff for a possible salary increase.

BACKGROUND:

The City Council consists of five members, elected at-large on a non-partisan basis, who serve staggered four-year terms. They are paid a monthly stipend of $831.60. In addition to such compensation, members of the City Council shall receive their actual and necessary expenses incurred in the discharge of their official duties. Such salary and expense reimbursement shall be paid with the first payroll distribution of each month and shall include salary and expense reimbursement payable for the immediately preceding month. (Municipal Code, section 2-103 Salary of Council Members) On September 27, 2011, the City Council, under Resolution No. 11-119 authorizes Council members not currently enrolled in the CalPERS program to participate in ICMA deferred compensation plan as a stop-gap measure to provide parity among Council members who were enrolled in the CalPERS program until such time that the CalPERS enrollees are no longer on the City Council and this benefit can be eliminated. Three Council members received this benefit before its elimination.
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On July 11, 2017, the City Council adopted a resolution (17-054) reinstating the limited healthcare benefits for the members of the City Council to provide healthcare coverage at the Kaiser single level, and with an option for a Councilmember to waive health benefits and waive the opt-out provision of 50%. Currently, there is one Councilmember enrolled in this program.

DISCUSSION:

At the regular meeting on March 14, 2023, the Council directed staff to return with information on compensation equity among Council Members, including City contributions towards the deferred compensation plan and possible salary increase. Also, the Council requested that Staff research how other Council Members in the surrounding cities are compensated. Attachment 2 summarizes the compensation received by Council Members in Pinole, San Pablo, El Cerrito, and Richmond compared to Hercules.

Salary Increase
The California Government Code Section 36516 states that salaries of council members have to be approved by ordinance and section (a) (4) states that the salary of council members may be increased beyond the amount provided in this subdivision by an ordinance or by an amendment to an ordinance, but the amount of the increase shall not exceed an amount equal to 5 percent for each calendar year from the operative date of the last adjustment of the salary in effect when the ordinance or amendment is enacted.

No ordinance shall be enacted or amended to provide automatic future increases in salary.

Other Compensation
The California Government Code Section 36516 (d) states that, Any amounts paid by a city for retirement, health and welfare, and federal social security benefits shall not be included for purposes of determining salary under this section, provided that the same benefits are available and paid by the city for its employees.

According to Resolution 17-054, healthcare benefits are still available if Council Members want to opt-in. The City’s contribution towards the Council’s health premium is equal to the Kaiser single level of coverage. If there’s a premium increase from the prior year, the Council shall contribute a maximum of up to 3% of the rate increase, and the City will be responsible for rate increases above 6%. Currently, the City’s contribution towards the premium is $891.02.

To provide parity among Council Members, it is recommended that Council Members not currently enrolled in the plan be allowed to participate. The current City paid contributions are $154.79 per Council Member a month.

FISCAL IMPACT:
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The fiscal impact associated with enrolling two Council Members into the deferred compensation plan is an additional cost to the General Fund of $3,715 annually. There is a sufficient available fund balance in the General Fund to absorb the additional cost.

ATTACHMENTS:

1. Resolution

2. City Council compensation comparison with surrounding cities

3. Mayor and City Council Monthly Compensation Report

4. Resolution No.11-119, Amending Resolution 11-094, Rescinding all health and welfare benefits for Members of the City Council, clarifying the termination of State of California Public Employees Retirement System (“CalPERS”) for members of the City Council.

5. Resolution No.17-054, A resolution of the City Council of the City of Hercules reinstating limited health care benefits for City Council Members, resulting in a not to initially exceed approximately $45,000 in annual costs on forward going basis. 473
RESOLUTION NO. 23-_______

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES AUTHORIZING

COUNCIL MEMBERS NOT CURRENTLY ENROLLED IN THE DEFERRED

COMPENSATION PLAN TO PARTICIPATE IN THE PLAN TO PROVIDE PARITY AMONG COUNCIL MEMBERS.

WHEREAS, the City Council on September 27, 2011, adopted Resolution No. 11-119, rescinding all health and welfare benefits for members of the City Council, and authorizing Council Members not enrolled in the CalPERS program to participate in an ICMA deferred compensation plan; and WHEREAS, three of the five current City Council Members participate in the ICMA employerpaid contribution deferred compensation plan, and one of the five City Council Members is receiving health care coverage at the Kaiser single level consistent with Resolution 17-054, which reinstated limited health care benefits as an option for City Council Members; and WHEREAS, the City Council has determined it appropriate that Council Members not currently enrolled in the employer-paid contribution deferred compensation plan be allowed to enroll to provide parity among Council Members receiving such benefits.

NOW, THEREFORE, BE IT RESOLVED, the City of Hercules City Council authorizes the City Manager to enroll all Council Members in an employer-paid contribution deferred compensation plan in order to provide parity among Council Members receiving such benefits.

The foregoing Resolution was duly and regularly adopted at the City Council meeting of the City of Hercules held on the 13th of June 2023, by the following vote of the Council:

AYES:

NOES:

ABSENT:
____________________________
Alexander Walker-Griffin, Mayor
ATTEST:
___________________________________
Eibleis Melendez, City Clerk
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Hercules Pinole San Pablo El Cerrito Richmond
Population 26,091 18,482 31,226 25,591 116,465
Annual Salary $9,979 $6,750 $23,280 $5,292
Mayor $46,500
Council Members $16,830
Additional Stipend No No No No $30/meeting
Car Allowance No No No No
Mayor $4,200
Council Members $3,600
Travel Cost Reimbursement Cost Reimbursement Cost Reimbursement Cost Reimbursement Cost Reimbursement Medical Coverage - City Paid Yes - Kaiser Single Plan Only Yes - Kaiser Plans Yes - Kaiser Plans Not disclosed CalPERS Medical Ins Plan In Lieu Medical Contribution No Yes Yes Not disclosed No Retiree Medical Benefits No No No No Yes
Dental and Vision - City Paid No Yes Yes Not disclosed Yes Flexible Spending Plan No No Yes Not disclosed No
Deferred Plan Yes - Employer Contribution Yes - Employee Contribution No Not disclosed No CalPERS Pension No No Yes Not disclosed Yes
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City Paid
Pay Type: Health Contribution Total
Name Stipend Benefit 457K Compensation
Bailey, Anjulant 831.60$ $ - $ 154.79 $ 986.39
Grimsley, Tiffany 831.60$ $ - $ - $ 831.60
Kelley, Christine 831.60$ $ - $ 154.79 $ 986.39
Romero, Daniel 831.60$ $ 891.02 $ 154.79 $ 1,877.41
Walker-Griffin, Alex 831.60$ $ - $ - $ 831.60
City Council Monthly Pay & Benefits
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477
478
479
480