Agenda packet — Livermore City Council, July 24, 2023 (part 2 of 3)

Minimum Scope and Limits of Insurance
Owner/Borrower shall maintain limits no less than:

1. Commerci
al General Liability:
$1,000,000/$2,000,000 aggregate per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Propert
y Insurance:

Borrower is required to obtain and maintain property insurance coverage to cover full replacement value, to include improvements, and shall be written on an All Risk basis with a maximum deductible of $1,000 per property. The Property Insurance Policy shall also include a provision that protects the location and the City’s interest if the Property is vacant and/or unoccupied for more than thirty (30) days. Borrower’s policy must also include a business interruption provision to cover loan payments for twelve (12) to twenty-four (24) months if the property is damaged and cannot be sold or occupied. Additionally, the City must also be named as a Loss Payee by endorsement such as 438 BFU NS or similar.

Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Livermore. The City of Livermore reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:

VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.

Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:

1. The City of Livermore, its officers, officials, employees, and designated volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Owner/Borrower.

The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.

Exhibit B

INSURANCE

REQUIREMENTS

REGULATORY / LOAN AGREEMENTS

EXHIBIT D

EXHIBIT A
86 122
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Page 2 ends

2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. The additional insured coverage under the Owner/Borrower policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 10 04

13. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City of Livermore before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

3. Any failure to comply with reporting or other provisions of the policy, including breaches of warranties, shall not affect coverage provided to the City of Livermore, its officers, officials, employees, or volunteers.

4. The Owner/Borrower insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party before expiration of the policy unless notice is delivered in accordance with policy provisions.

6. It shall be a requirement under this agreement that any available insurance proceeds broader than, or in excess of, the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named Insured; whichever is greater.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550 Verification of Coverage
Owner/Borrower shall furnish certificates of insurance and endorsement(s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before the agreement is executed. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.

EXHIBIT D

EXHIBIT A
87 123

MULTI-FAMILY RENTAL P

ROJECT ANNUAL REPORT

PROJECT CONTACT INFORMATION
Property Information
Property Name
Address
Community Manager
Phone
Email
Website (if applicable)
Owner Information
Owner Name
Company Name
Owner Address
City, State, Zip
Phone
Email
Primary Contact
Secondary Contact
Management Agent Information
Company Name
Address
City, State, Zip
Phone
Email
Primary Contact Name
Secondary Contact
Name
Name of first point of contact for and on-site monitoring of the property:
1 of 4
Exhibit C

EXHIBIT D

EXHIBIT A
88 124

MULTI-FAMILY RE

NTAL PROJECT ANNUAL REPORT
Property Name & Address
Person Completing Report
Date
Report Period
Compliance with Required Number of Low Income Units
Total number of income restricted units which are currently occupied (or reserved and available for occupancy):

Number of vacant income restricted units at the time of this report:

I hereby certify that these units in the quantity listed above have been continuously designated as units for occupancy by low-income households during the reporting period:

Name of Project Owner or Authorized Agent Title
Compliance with Rent Limits
List below the current monthly rents of the units restricted for occupancy by low-income households as well as the prior rents (if increases were made during the report period):

Plan Number of
Bedrooms
Current
Rent
Prior
Rent
% Increase Additional
Fees
Charged
Utility Allowance
(if applicable) or Amount of
Tenant Paid Utilities
I hereby certify that the rents in all units designated for low-income households did not exceed the levels authorized under the regulatory agreement/restrictive covenants with the City of Livermore during the reporting period:

Name of Project Owner or Authorized Agent Title
2 of 4

EXHIBIT D

EXHIBIT A
89 125
Restricted Unit Occupant Information
Unit
#
Bdrms Unit
Income
Level
Tenant
Last
Name
Move-
In
Date
# in
Household
Reported
Annual
Income
Effective
Date of
Current
Rent
Tenant
Paid Rent
Section 8?
(Y/N)
3 of 4

EXHIBIT D

EXHIBIT A
90 126

MULTI-FAMILY RENTAL PROJECT ANNUAL REPORT

PROPERTY COND

ITION REPORT
Property Name
Address
Name of Person
Completing Report
Reporting Period
List any physical defects or major repair work undertaken within the reporting period:

Comments on any general management/performance issues within the reporting period:
4 of 4

EXHIBIT D

EXHIBIT A
91 127
Tri Valley REACH
Proforma for 772 Camden Commons, Livermore CA 94551
Sources - Acquisition Amount
City of Livermore Acquisition Loan $300,000
Tri-Valley REACH/Borrower Equity $24,131
Total $324,131
Uses Amount
Purchase Price $321,131
Broker, Escrow/Title, Taxes and Other Closing Costs $3,000 Total $324,131
Operating Budget & Cash Flow 772 Camden Common
Rental Income $16,200
Expenses
Homeowners Dues $3,600
Property Taxes $1,000
Water $850
Garbage $450
Janitorial $700
Repairs $1,200
Insurance $250
Management $7,500
total expenses $15,550
Net Cash Flow available for Reserve $650
Rent Assumption - 3 Tenants at $ 450 per month x 12 Months Note: If a fourth bedroom can be created as was done at Gillette the additional rent of $ 450 per month would be added to the income.

EXHIBIT E

EXHIBIT A
92 128
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INSURANCE REQUIREMENTS

REGULATORY / LOAN AGREEMENTS
Minimum Scope and Limits of Insurance
Owner/Borrower shall maintain limits no less than:

1. Comme
rcial General Liability:
$1,000,000/$2,000,000 aggregate per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Prope
rty Insurance:

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:

VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.

Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:

The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.

EXHIBIT F

EXHIBIT A
93 129
Revised 10/01/2015 B17 – R&L

Page 2 ends

4. The Owner/Borrower insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

EXHIBIT F

EXHIBIT A
94 130

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 South Livermore Ave.

Livermore, CA 94550
Attention: City Clerk

EXEMPT F

ROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.

APN: 99-1388-42

AFFORDABLE

HOUSING REGULATORY AGREEMENT
AND

DECLARATION

OF RESTRICTIVE COVENANTS
by and betwee
n

THE CITY OF

LIVERMORE
and

TRI-VALLEY REACH,
Inc.
_______________, 2023

EXHIBIT B
131
This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _______________, 2023 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri-Valley REACH, Inc., a California nonprofit public benefit corporation (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

R E C I T A
L S
A. Owner is the owner of or has the right to acquire the real property located in the City of Livermore, Alameda County, California, consisting of one (1) townhouse condominium unit, located within a multifamily residential building located at 772 Camden Common, Livermore CA, known as Alameda County Assessor Parcel No. APN: 99-1388-42, and more particularly described in Exhibit A attached hereto (the “Property”).

B. City and Owner have entered into an Affordable Housing Loan Agreement (HOME Funds), dated as of ________________, 2023 (the “Loan Agreement”). The Loan Agreement provides that the Property will be required to be rented to Eligible Households at Affordable Rents in accordance with this Agreement for a period of not less than fifty-five (55) years.

C. Subject to the terms and conditions set forth in the Loan Agreement, City has agreed to provide a loan to Owner in the original principal amount of Three Hundred Thousand Dollars ($300,000.00) (the “Loan”) in HOME funds to assist Owner in acquiring the Property.

As a condition precedent to the funding of the Loan, City requires the Property to be subject to the terms, conditions and restrictions set forth herein.

D. Pursuant to the Loan Agreement, Owner shall execute and deliver to City a Secured Promissory Note (the “Note”) to evidence Owner’s obligation to repay the Loan. The Note shall be secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing that shall be executed by Owner for the benefit of City (the “Deed of Trust”) and recorded against the Property substantially concurrently herewith.

E. The purpose of this Agreement is to s atisfy the affordability requirements of the HOME program and to regulate and restrict the occupancy and rents of the Property for the benefit of the Property’s occupants. The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement.

NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits.
"Affordable Rent" means th at the maximum rent for each tenant occupying an individual bedroom in the Property shall not exceed 75% of the HOME fair market rent (FMR) allowable for Extremely Low-Income households in a zero-bedroom studio unit as specified

EXHIBIT B
132
further in the qualifications for rental housing for the HOME Program described under Title 24, Subtitle A, Part 92 Subpart F (CFR 92.252). In absence of HUD’s published fair market rents, then Affordable Rent shall mean a monthly rent that does not exceed one-twelfth of thirty percent (30%) of Area Median Income, adjusted for a household of one (1) person, less a utility allowance and other fees and charges required to be paid by tenants of the Property on a non- optional basis. The affordable rent charged to each tenant shall be inclusive of basic utilities including electricity, gas, water, sewer and garbage, but not inclusive of telephone, cable or internet services. In any event, the total Affordable Rent received by the Owner for all tenants in the Property shall not exceed the Low HOME rent for a three-bedroom unit as applicable. “Area Median Income ” or “AMI” means the median income for Alameda County, California, as determined by HUD pursuant to Section 8 of the United States Housing Act of 1937 and as published from tim e to time by the State of California De partment of Housing and Community Development (“HCD”) in Section 6932 of Title 25 of the California Code of Regulations or successor provision published pursuant to California Health and Safety Code Section 50093(c).
“City’s Authorized Representative ” means the City Manager of the City of Livermore or her designee .
“City Documents ” means the Loan Agreement, the Note, the Deed of Trust , and this Agreement.
“Claims ” means collectively, liabilities , losses, cost s, expen ses (including w ithout limitation attor neys’ fees and costs of li tigation), claims , demands , action s, suits, judicial or administrative proceedings , penalt ies, deficienc ies, fines, order s, and damage s. “Deed of Trust” is defined in Recital D.
“Developmental Disability” shall have the meaning set forth in section 4512(a) of the California Welfare and Institutions Code.
“Eligible Household” means an individual that has a Developmental Disability and whose Gross Income upon initial occupancy does not exceed Extremely Low-Income. “Extremely Low-Income” means thirty percent (30%) of Area Median Income, Adjusted for a household of one (1) person.
“Gross Income” shall have the meaning set forth for the HOME Program in (subsection)

5.611 of Title 24 of the Code of Federal Regulations as such Section may be revised from time to time.
“HOME” means the City’s HOME program as a Participating Jurisdiction in the Alameda County HOME Consortium and a recipient of its funds under Title II of the Cranston- Gonzalez National Affordable Housing Act of 1990 (42 U.S.C. § 12721-12840) as amended, Catalog of Federal Domestic Assistance Number 14.239.

EXHIBIT B
133
“HUD” means the U.S. Department of Housing and Urban Development. “Indemnitees” means collectively, the City and its elected and appointed officers, officials, employees, agents, consultants, contractors, and designated volunteers. “Loan” is defined in Recital C.
“Loan Agreement” is defined in Recital B.
“Marketing and Management Plan” is defined in Section 6.5. “Note” is defined in Recital D.
“Official Records” means the Official Records of the Alameda County Recorder. “Very Low -Income” means fifty percent (50%) of Area Median Income , Adjusted for a household of one (1) person.

2. Use and Affordability R estrictions. O wner hereby covenants and agrees, for itself and its successors and assigns, that throughout the term of this Agreement (as defined in Section 4.1 below), the Property shall be used solely for residential occupancy by Eligible Households in compliance with the Loan Agreement and the requirements set forth in this Agreement. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.

2.1 S pecial Needs Housing; S
upportive Services. Owner has elected to operate the
Property as special needs housing that will serve individuals with Developmental Disabilities, and as such will require the Property to be occupied or held available for occupancy by Eligible Households. To the extent applicable, the Property will be operated at all times in accordance with (a) the Unruh Act, including without limitation California Civil Code Sections 51.2, 51.3, and 51.4; (b) the federal Fair Housing Act, 42 U.S.C. Section 3607(b) and 24 CFR 100.304; (c) the California Fair Employment and Housing Act, G overnment Code Section 12900 et seq., and (d) all other applicable laws and regulations. Owner will indemnify, defend, and hold the Indemnitees harmless from all Claims arising out of Owner’s failure to comply with applicable legal requirements related to housing for persons with Developmental Disabilities. The indemnity provisions of this paragraph shall survive the expiration o r other termination of this Agreement.

Owner shall make supportive services available to re sidents of the Property and Owner
shall provide or arrange for the provision of supportive services to residents of the Property in accordance with the Plan described in Section 6.5 below.

2.2 Affordability and Occupancy Requirements. Throughout the term of this Agreement (as defined in Section 4.1 below), the individual bedrooms in the Property shall be rented at Affordable Rents to Eligible Households.

EXHIBIT B
134

2.3 Increased
Income of Tenants. No tenan t that qualifies as an Eligible Household shall be denied continued occupancy of the Property because, after admission, the Gross Income of such tenant increases to exceed the qualifying limit for Eligible Households. A tenant th at at initial occupancy qualifies as an Eligible Household shall be treated as continuing to be an Eligible Household so long as the tenant’s Gross Income does not exceed Very Low-Income.

2.4 Rental A
greements; Evictions. Owner shall use a lease or rental agreem ent in form approved by City. Tenants of the Property may only be evicted for good cause as described in 24 CFR Section 880.607.

2.5 Maximu
m Occupancy. Occupancy of each bedroom in the Property shall be limited to a maximum of one (1) person, and total occupancy of the Property shall be limited to a maximum of three (3) persons.

2.6 Non-Discrimination; Compliance with Fair Housing Laws.

2.6.1 Fair Housing; Section 8 Vouchers. Owner shall comply with state and federal fair housing laws in the marketing and rental of the Property. Owner shall accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto.

2.6.2 Non-Discrimina tion. Owner covenants for itself, its successors and assigns, and all persons claiming under or through Owner, that there shall be no discrimination in the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin, age, or gender identity of any person. Owner covenants for itself, its successors and assigns, and all persons claiming under or through Owner, that this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Owner, its successors and assigns, or any person claiming under or through Owner, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. Nothing in this Section 2.6.2 is intended to prevent the reservation of the Property for occupancy by individuals that have a Developmental Disability.

2.6.3 No Exclusion. Without limiting the generality of Section s 2.6.1 and 2.6.2, Owner will not exclude or discriminate against any person in the United States, on the grounds of race, color, religion, national origin, sex, sexual orientation, familial status, physical or mental

EXHIBIT B
135
disability, age, or gender identity from participating in, or benefiting from, any program or activity related to the Property. Specifically, Owner will not, on the basis of any of the foregoing:
(i) Deny any ser
vice or other benefit provided under any program activity; (ii) Provide
any service or other benefit which is different, or is provided in a different form from that provided to others under any program or activity; (iii) S ubject
to segregated or separate treatment in any facility in, or in any manner or process related to receipt of any service or benefit under any program or activity; (iv) Restr
ict in any way the enjoyment of any advantage or privilege enjoyed by others receiving any service or benefit under any program or activity; (v) Treat
an individual differently from others in determining whether that individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any service or other benefit provided under any program or activity; or (vi) Deny an oppor
tunity to participate in any program or activity as an employee.

2.6.4 Mandatory L
anguage in Subsequent Deeds, Leases, and Contracts. All deeds, leases, and contracts pertaining to management of the Project, made or entered into by Owner, its successors or assigns, as to any portion of the Property shall contain the following language:

In Deeds, the
following language shall appear:
(1) Grantee h
erein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.” (2) Subdivis
ion (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

EXHIBIT B
136
In Leases, the following language shall appear:
(1) The lessee h
erein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Subdivisi
on (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

In Contra
cts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There s
hall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Subdivis
ion (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

3. Reporti
ng Requirements; Access to Information; Inspections.

3.1 Tenan
t Ce rtification. Owner or Owner’s authorized agent shall obtain from each prospective tenant prior to initial occupancy of the Property, and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as City may reasonably require:
(i) The identity of each household member;
(ii) The tota
l household Gross Income calculated in accordance with HOME Program

EXHIBIT B
137
regulations; and
(iii) The basis upon which the tenant or prospective tenant qualifies as an Eligible Household.

Owner shall retain such certificates for not less than five (5) years, and upon City’s request, shall provide copies of such certificates to City and make the originals available for City inspection.

3.2 Annual Reports ; Inspecti ons. By not later than 180 days following the Effective Date, and thereafter by not later than May 31 of each year, Owner shall submit an annual report (“Annual Report”) to the City in form attached hereto as Exhibit C, together with the additional information specified in this Section 3.2 and a certification that the Property is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information for each occupant of the Property: (i) current rent, utility, and other charges; (ii) move-in date; (iii) documentation of source of household income; and (iv) the information required by Section 3.1. In addition, the Annual Report shall include the dates of any vacancies during the previous year.

Owner shall include wit h the Annual Report, an income recertification for each tenant, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to demonstrate compliance with this Agreement.

The Annual Report shall conform to the format requested by City.

In addition to the information described above, the Annual Report shall include the following:
(i) A Property income and expense statement for the reporting period; (ii) Propos
ed annual budget for the next fiscal year which sets forth Owner’s estimate of operating income, operating expenses and debt service for the year, amounts payable to reserves and proposed rent adjustments;
(iii) A repo
rt on maintenance and other issues anticipated to affect the current budget needs of the Property as well as the amount in the Property’s reserve accounts and the amount expected to be needed for major repairs or other needs during the new fiscal year; (iv) Financi
al statements for the Property prepared in accordance with generally accepted accounting standards, and if requested by City, an audit by an independent certified public accountant.
(v) City may, i
n its reasonable discretion, from time to time request additional or different information, and Owner shall promptly supply such information in the reports required hereunder.

3.3. Maintenance o f Records.

3.3.1 O wner s
hall maintain tenant leases, income certifications and other matters related to the leasing of the Property for a period of five (5) years after the final date of

EXHIBIT B
138
occupancy by the tenant.

3.3.2 Recor
ds must be kept accurate and up-to-date. City shall notify Owner of any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice to correct any specified deficiency in the records, or, if more than fifteen (15) days shall be reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably possible.

3.4 Access to
Rec ords; Inspections.

3.4.1 With at lea
st 48-hours’ notice, during normal business hours, Owner shall provide City and its authorized agents and representatives access to the books, documents, and records of the Property for the purpose of making audits, examinations, excerpts and transcriptions.

3.4.2 With at l
east 48-hours’ notice, during normal business hours and as often as may be deemed necessary, City and its authorized agents and representatives shall be permitted access to and the right to examine the Property and to interview tenants for the purpose of verifying compliance with applicable regulations and compliance with the conditions of this Agreement and the other City Documents.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect until the fifty-fifth (55th) anniversary of the Effective Date of this Agreement, unless the parties agree to extend the term pursuant to a recorded amendment to this Agreement.

4.2 Effectiven ess Succeeds Conveyance of Property and Repayment of Loan. This Agreement shall remain effective and fully binding for the full term hereof regardless of (i) any sale, assignment, transfer, or conveyance of the Property or any part thereof or interest therein, (ii) any payment, prepayment or extinguishment of the Loan or the Note, or (iii) any reconveyance of the Deed of Trust.

4.3 Reconveyance . Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement upon the expiration of the term.

5. Binding Upon Succes
sors; Covenants to Run with the Land. Owner hereby subjects its interest in the Property to the covenants and restrictions set forth in this Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation

EXHIBIT B
139
any purchaser, transferee or lessee of the Property (other than the tenants of the Property) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement.

Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property in favor of City.

6. Property Managemen
t; Repair and Maintenance; Marketing; Reserves; Supportive Services.

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respe ct to the Property, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, repl acement of capital items, and security. City shall have no responsibility for management or maintenance of the Property.

6.2 Management Entity ; Social Se r vices Provider; Referral Agency . City shall have the right to review and approve the qualifications of (i) the management entity, (ii) the social services provider, and (iii) any agency that will verify Developmental Disability status of prospective tenants of the Property, and shall have the right to review and approve any property management agreement, social services agreement, or similar agreement executed between Owner and such entities, which approval shall not be unreasonably withheld. The contracting of management services to a management enti ty shall not relieve Owner of its primary responsibility for proper performance of management duties. City hereby approves Housing Consortium of the East Bay, a California nonprofit public benefit corporation, as the initial management entity for the Property. Any subsequent management entity or social services provider shall be subject to City review and approval, which shall not be unreasonably withheld or delayed. Upon City determination and delivery of written notice to Owner that Owner has failed to operate the Property in accordance with this Agreement, City may require Owner to contract with a qualified management agent selected by City, to operate the Property, or to make such other arrangements as City deems necessary to ensure performance of the required functions.

6.3 Repair, Maintenance and Security. Throughout the te rm of this Agreement,
Owner shall at its own expense, maintain the Property in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Property (including without limitation, the common

EXHIBIT B
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areas) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property. Owner shall prevent and/or rectif y any physical deterioration of the Property and sha ll make all repairs, renewals and replacements necessary to keep the Proper ty in good condition and repair. Owner shall provide adequate security measures for the Property, including without limitation, the installation of adequate lighting and deadbolt locks. All construction/rehabilitation work and professional services for the Property shall be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California and shall have a current City of Livermore business license if required under local law. Owner shall comply in all respects with the homeowners’ association rules and regulations and all other rules and regulations applicable to the Property. Owner shall diligently work to resolve complaints related to noise, parking, litter or other neighborhood concerns.
6 .4 City’s Ri ght to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per annum or the highest rate permitted by applicable law.

6.5 Marketing and Management Plan . Owner s
hall submit for review and approval by
the City, a plan for marketing and managing the Property ("Marketing and Management Plan" or “Plan”). The Marketing and Management Plan shall address in detail how Owner plans to market the Property to prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s tenant selection criteria, and how Owner plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Owner and the management entity plan to manage and maintain the Property. The Plan shall include the proposed management agreement and the form of rental agreement that Owner proposes to enter into with tenants of the Property. In addition, the Plan shall include: (i) information regarding the qualifications of the proposed social services provider that will provide services to residents of the Property, and a copy of the social services agreement, (ii) information regarding any organizations or agencies that will provide referrals of Eligible Households for prospective occupancy of the Property, and (iii) the supportive social services that will be provided to tenants of the Property. Owner shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property, and throughout the term of this Agreement, shall submit proposed modifications to City for review and approval.

In addition to the foregoing, the Marketing and Management Pla n shall a ddress the following:

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(a) The actions t o be taken by Owner to affirmatively market the Property in compliance with fair housing laws and in compliance with City’s policies and procedures, including the policies described in Section 2.6 above; (b) Criteria for determining tenant eligibility, including certification of household income and size, Developmental Disability status or other qualifying criteria, and establishing reasonable occupancy standards (which shall not exceed the standards specified in Section 2.5, or if more restrictive, the standards established by state and federal fair housing laws and state housing and building codes), and procedures for screening prospective tenants, including obtaining credit reports, unlawful detainer reports, landlord references and criminal background investigations; (c) A requir
ement that eligible tenants be selected based on order of application, lottery or other reasonable method approved by City; (d) A require
ment that eligible applicants be notified of eligibility and be provided an estimate regarding when a bedroom in the Property may be available for rent;
(e) A requir
ement that ineligible applicants be notified of the reason for their ineligibility;
(f) Specif
ic procedures through which applicants deemed to be ineligible may appeal this determination;
(g) Maintena
nce of a waiting list of eligible applicants;
(h) Specif
ic procedures for obtaining documentation regarding prospective tenants’ incomes, as necessary, to certify that such income does not exceed income limits;
(i) Specif
ic procedures for certification and recertification of household incomes and procedures for handling over-income tenants; (j) A requi
rement that a written rental agreement (subject to City approval) be executed with each Eligible Household selected to occupy the Property; (k) A detai
led listing of reasonable rules of conduct and occupancy which shall be in writing, shall be consistent with federal and state law, and shall be provided to each tenant upon occupancy;
(l) Intentio
nally omitted.
(m) Intentiona
lly omitted.
(n) Procedu
res for maintenance and management of the Property;

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(o) Procedur
es for dealing with tenant or neighborhood issues or concerns; (p) Procedur
es for maintaining a reserve account, budgeting for maintenance and repair needs as well as long-term rehabilitation needs, and handling net cash flow; (q) Such other
requirements and criteria/procedures as City may reasonably determine appropriate; and
(r) Owner’
s plan for educating tenants regarding, and ensuring compliance with, the homeowners’ association rules and regulations and other regulations applicable to the Property, including without limitation, rules regarding parking, storage, and use of balconies.

6.6 Approv
al of Amendments. If City has not r esponded to any submission of the Management and Marketing Plan, the proposed management entity, the proposed management agreement, or a proposed amendment or change to any of the foregoing within sixty (60) days following City’s receipt of such plan, proposal, agreement or amendment, the plan, proposal, agreement, or amendment shall be deemed approved by City.

6.7 Fees, Taxes , and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Property, including without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall pay such charges prior to delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. The foregoing is not intended to impair Owner’s ability to apply for any applicable exemption from property taxes or other assessments and fees.

6.8 Insurance Coverage. Throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in Exhibit B, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit B.

6.9 Propert
y Damage or Destruction. If any part of the Property is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work sha ll be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible.

6.10 Requi
red Reserves . Owner shall be obligated to establish and maintain an operating and replacement reserve account for the Property (“ Reserve”). The Reserve may be

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for the non-exclusive use of the Property and may include other properties in Livermore operated by the Borrower. Owner shall ensure that upon Close of Escrow, the Reserve is funded at Fifteen Thousand Dollars ($15,000). Reserve funds may be used solely for maintenance and operating expenses of the Property. Of the initial Fifteen Thousand Dollars ($15,000), Five Thousand Dollars ($5,000) must be maintained for maintenance and repair expenses as the minimum amount in the Reserve . The City’s advance written consent, which shall not be unreasonably withheld, shall be required for withdrawals from the Reserve for non- routine operating and maintenance expenses exceeding the sum of Three Thousand Dollars ($3,000). The Reserve shall be replenished from Property net operating income so t hat beginning in the fifth (5th) year, at least Five Thousand Dollars ($5,000) is maintained annually in the Reserve. Any deficit that may occur in an operating year is to be made -up in subsequent operating years until the Five Thousand Dollar ($5,000) Re serve is achieved and maintained throughout the remaining term of the City’s Loan. The maximum amount tha t can be held in the Reserve for the Property is two percent (2%) of the fair market value o f the Property as determined by the City or such other amount approved by City. City may approve a pooled reserve for Livermore properties.

6.11 No Cr
iminal Activity. Owner agrees that neither Owner nor any person resid ing on the Property, their guests or persons under their control, shall permit, engage in, or facilitate criminal activity within the Property, within the development in which the Property is located, or on the streets bordering such development. This inc ludes, without limiting the forego ing: (i) the illegal manufacture, sale, distribution, use, or possession with the intent to manufacture, sell, distribute, or use a controlled substance as defined in Section 102 of the Controlled Substa nces Act (21 U.S.C. Section 802); (ii) the unlawful discharge of firearms; and (iii) all acts or threats of violence, harming, or intending to harm a person or property.

7. Recordation; Subordination. This Agreement shall be recorded in the Official Records.

The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.

8. Transfer an d Encumbrance.

8.1 Restri ctions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to the Loan Agreement or this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement or the Loan Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis.

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144

8.2 Permitt ed Transfers. Notwithstanding any contrary provision of the City Documents, the prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the lease of bedrooms within the Property to tenants for occupancy as their principal residence in accordance with this Agreement; (ii) assignments creating security interests for the purpose of financing the acquisition or improvement of the Property in accordance with the Financing Plan approved in accordance with the Loan Agreement as such may be updated with City Approval, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (iii) a Transfer to a tax-exempt entity under the direct control of, or under common control with, Owner.

8.3 Requirements for Proposed Transfers. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property, or part thereof if all of the following requirements are met (provided however, the requirements of this Section 8.3 shall not apply to Transfers described in clauses (i) and (ii) of Section 8.2. (i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently manage the Property and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the Property or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement and the other City Documents arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations), and shall agree to be subject to and assume all of Owner’s obligations under the City Documents. (iv) The final form of the organizational documents of the proposed transferee, and any subsequent amendments that affect the City's economic interests under this Agreement or the City Documents shall be subject to the City’s review and approval. (v) T he Transfer and the assumption of Owner’s obligations shall be effectuated pursuant to an assignment and assumption agreement in form approved by City and recorded in the Official Records.

Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within thirty (30) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.

8.4 Effect of Tra
nsfer without City Consent. In the absence of specific written

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agreement by the City, no Transfer of the Property shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. It shall be an Event of Default hereunder entitling City to pursue remedies including without limitation, acceleration of the Loan and/or foreclosure under the Deed of Trust if without the prior written approval of the City, Owner assigns or Transfers this Agreement or the Property in violation of Section 8. This Section 8.4 shall not apply to Transfers described in clauses (i) and (ii) of Section 8.2.

8.5 Recovery of City Costs. Within ten (10) days following City’s delivery to Owner of an invoice detailing such costs, Owner shall reimburse City for all City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer of this Agreement, Owner’s interest in the Property or part thereof, and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee.

8.6 Encumbrances . Owner ag
rees to cooperate with City in good faith to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property or part thereof for the benefit of a lender other than City (“Third- Party Lender”) shall contain each of the following provisions: (i) Third-Party Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner; (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure extended by an additional ninety (90) days; (iii) provided that City has cured any default under Third-Party Lender’s deed of trust and other loan documents, City shall have the right to foreclose the Deed of Trust, and take title to the Property without acceleration of Third- Party Lender’s debt; and (iv) City shall have the right to transfer the Property without acceleration of Third-Party Lender’s debt to a nonprofit corporation or other entity which shall own and operate the Property as affordable rental housing, subject to the prior written consent of the Third-Party Lender. Owner agrees to provide to City a copy of any notice of default Owner receives from any Third-Party Lender within three (3) business days following Owner’s receipt thereof.

8.7 Mo
rtgagee Protection. No violat ion of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Unless this Agreement is subordinated in accordance with Section 7, such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Property that such violation has occurred.

9. Default and Remedies.

9.1 Eve nts of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"):
(i) The occurrence of a Transfer in vio lation of Section 8 hereof;

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(ii) Owner’s failure to maintain insurance on t he Property as required hereunder, and the failure of Owner to cure such default within five (5) days; (iii) Subject to Owner’s right to contest the following charges, Owner’s failure to pay taxes or assessments due on the Property or failure to pay any other charge that may result in a lien on the Property, and Owner’s failure to cure such default within twenty (20) days of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to foreclose thereon;
(iv) A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan;
(v) A default arises under the Loan Agreement, the Note, or the Deed of Trust and remains uncured beyond the expiration of any applicable cure period; (vi) Owner’s de
fault in the performance of any term, provision or covenant under this Agreement (other than an obligation enumerated in this Section 9.1), and unless such provision specifies a shorter cure period for such default, the continuation of such default for thirty (30) days in the event of a monetary default or sixty (60) days in the event of a non- monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within sixty (60) days, Owner’s failure to commence to cure the default within sixty (60) days and thereafter prosecute the curing of such default with due diligence and in good faith to completion.

9.2 Rem
edies. Upon the occur rence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:
(i) B
ring an a
ction for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; (ii) Accelerate and declare the balance of the Note and interest accrued thereon immediately due and payable and proceed with foreclosure under the Deed of Trust;
(iii) For violations of obligations with respect to rents for the Property, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Affordable Rent; or
(iv) Pursue any other remedy allowed under the City Documents or at law or in equity.

Eac
h of the remedies provided herein is cumulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in

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equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.

10. Indemnity. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold the Indemnitees harmless from and against all Claims arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s (or Owner’s employees’, agents’, or contractors’) management, or operation of the Property or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section 10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 10 shall survive the expiration or earlier termination of this Agreement.

10.1 Terms Applicable to Indemnity Provisions. The terms set forth in this Section

10.1 shall apply to all provisions of this Agreement that pertain to Owner’s obligations to indemnify City and the other Indemnitees, including without limitation, Sections 2.1 and 10. In connection with each such provision, all of the following shall apply:
(a) City does
not and shall not waive any rights against Owner that it may have by reason of any indemnity and hold harmless provision set forth in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any of the insurance policies described in this Agreement.
(b) Owner’
s obligation to indemnify the Indemnitees shall not be limited or impaired by any of the following: (i) any amendment or modification of any City Document; (ii) any extensions of time for performance required by any City Document; (iii) any provision in any of the City Documents limiting City’s recourse to property securing the Secured Obligations (as defined in the Deed of Trust), or limiting the personal liability of Owner, or any other party for payment of all or any part of the indebtedness evidenced by the Note; (iv) the accuracy or inaccuracy of any representation and warranty made by Owner under this Agreement or by Owner or any other party under any City Document, (v) the release of Owner or any other person, by City or by operation of law, from performance of any obligation under any City Document; (vi) the release or substitution in whole or in part of any security for repayment of the indebtedness evidenced by the Note; and (vii) City’s failure to properly perfect any lien or security interest given as security for repayment of the indebtedness evidenced by the Note. (c) The obliga
tions of Owner to indemnify the Indemnitees shall survive any repayment or discharge of the indebtedness evidenced by the Note, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of the Deed of Trust.

11. Miscellaneous.

11.1 Amendme
nts. This Agreement may be amended or modified only by a written instrument signed by both Parties and recorded in the Official Records. City’s Authorized Representative shall have the authority to approve amendments to this Agreement related to implementation of the HOME requirements, including but not limited to term, repayment,

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monitoring requirements, affordability, occupancy, and rent restrictions.

11.2 No Waiver. Any w aiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to requi re strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.

11.3 Notices. Except a s otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service.

City: City of
Livermore
Administration Building
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: Housing and Human Services Manager
With a c
opy to:

City of L
ivermore
Administration Building
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: City Manager
Owner: T
ri-Valley REACH, Inc.

P.O. Box 5564
Pleasanton, CA 94566
Attention: Board President

11.4 Furth
er A ssurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.

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149

11.5 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.

Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Owner and City shall not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Owner (except as expressly provided in this Agreement) or to any third party with respect to the Property. Owner and its employees are not employees of City but rather are, and shall always be considered independent contractors.

Furthermore, Owner and its employees shall at no time pretend to be or hold themselves out as employees or agents of City. Except as City may specify in writing, Owner shall not have any authority to act as an agent of City or to bind City to any obligation.

11.6 Action by the City. Except as may be otherwise speci fically pr ovided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City’s Authorized Representative or by any person who shall have been designated by the City’s Authorized Representative, without further approval by the City Council.

11.7 Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Owner or its successor or for any obligation of City under this Agreement.

11.8 Headings; Construction; Statu tory Refer ences. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. All references in this Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Livermore shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.

11.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.10 Governing L
aw; Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California.

11.11 A ttorne
ys' Fees and Costs . If any lega l or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.

11.12 Severability. If any provi sion of this Agreemen t is held invalid, illegal, or unenforceable by a court of competent juri sdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

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150

11.13 Entire Agreement; Exhibits. This Agree ment, together with the Loan Agreement, the Note, and the Deed of Trust contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. Exhibits A through D, attached hereto are incorporated herein by this reference.

11.14 Survival. Owner’s obligations pursuant to Sections 2.1, and 10, and all other provisions that expressly so state, shall survive the expiration or termination of this Agreement.

11.15 No Third Party Beneficiaries. Except as expressly set forth herein, nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.

11.16 Counterpar
ts. This Agreement may be executed in multiple counterparts, eac h of which shall be an original and all of which together shall constitute one agreement.

SIGNATURE
S ON FOLLOWING PAGE(S).

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151
IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants as of the date first written above.

CITY:

City of Li
vermore, a municipal corporation
By: _______________________________
City
Manager
ATTEST: _____________________________
City C
lerk

APPROVED AS T
O FORM:
______________________________
City Attor
ney
OWNER:

Tri-Vall
ey REACH, Inc., a California nonprofit public benefit corporation By:_______________________________
Print Name: _Patrick O’Brien__________
Title: _Tre
asurer, Board of Directors_____

SIGNATU
RES MUST BE N OTARIZED.

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152

ACKNOWLEDG
MENT
State of Ca
lifornia )
) ss
County of ___________ )
On , before m
e,___________________________________________,
(Name of Notary)
notary public
, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my ha
nd and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

EXHIBIT B
153

ACKNOWLEDGM
ENT
State of Cal
ifornia )
) ss
County of ___________ )
On , before me
,___________________________________________,
(Name of N otary)
notary public, pe
rsonally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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154

INSURANCE REQUIREMENTS

REGULATORY / LOAN AGREEMENTS
Minimum Scope and Limits of Insurance
Owner/Borrower shall maintain limits no less than:

1. Commercial
General Liability:
$1,000,000/$2,000,000 aggregate per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Property I
nsurance:

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:

VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.

Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:

The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.
25 EXHIBIT B
155

4. The Owner/Borrower insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

MULTI-FAMILY RENTAL PROJECT

ANNUAL REPORT

EXHIBIT B
157

MULTI-FAMILY RENTAL P

ROJECT ANNUAL REPORT
Property Name & Address
Person Completing Report
Date
Report Period
Compliance with Required Number of Low Income Units
Total number of income restricted units which are currently occupied (or reserved and available for occupancy):

Number of vacant income restricted units at the time of this report:

I hereby certify that these units in the quantity listed above have been continuously designated as units for occupancy by low-income households during the reporting period:

Name of Project Owner or Authorized Agent Title
2 of 4

EXHIBIT B
158
Restricted Unit Occupant Information
Unit
#
Bdrms Unit
Income
Level
Tenant
Last
Name
Move-
In
Date
# in
Household
Reported
Annual
Income
Effective
Date of
Current
Rent
Tenant
Paid Rent
Section 8?
(Y/N)
3 of 4

EXHIBIT B
159

MULTI-FAMILY RENTAL PROJECT ANNUAL REPORT

PROPERTY CONDITION
REPORT
Property Name
Address
Name of Person
Completing Report
Reporting Period
List any physical defects or major repair work undertaken within the reporting period:

Comments on any general management/performance issues within the reporting period:
4 of 4

EXHIBIT B
160

CITY COUNCIL STAFF REPORT
ITEM NO. 5.3

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Brandon Cardwell, Innovation and Economic Development Director SUBJECT:

Resolution authorizing appropriations of $307,697 from Business License Tax settlement funds and execution of an 18-month agreement with Rincon Consultants, Inc. to prepare an Environmental Impact Report for the East of Greenville Study Area in an in an amount not-to-exceed $307,697.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution:

1 .
appropriating $307,697 from Business License Tax settlement funds to cover the contract cost 2 .
authorizing the City Manager to execute an agreement with Rincon Consultants, Inc. (Rincon) to prepare an Environmental Impact Report for the East of Greenville Study Area, over an 18-month term, in an in an amount not-to-exceed $307,697 in substantially similar form to the draft contract in Exhibit A of the Resolution subject to the City Attorney approval to form of the final construction contract and acceptance of insurance by the Risk Manager.

SUMMARY
On April 10, 2023, Council directed staff to add the East of Greenville focus area to the General Plan Update evaluation process. On June 14, 2023, the General Plan Advisory Committee reviewed draft land use alternatives for the East of Greenville focus area and requested additional, detailed, information associated with this unique focus area beyond what is currently scoped in the General Plan Update. Staff recommends the City Council authorize an agreement with Rincon Consultants, Inc. to prepare an Environmental Impact Report for the East of Greenville focus area, which will help inform future decisions.

DISCUSSION

BACKGROUND

The General Plan is the City’s long-range policy document for growth, land use, sustainability, and resource and open space conservation. On March 1, 2021, the City Council identified the 161
Comprehensive General Plan Update as a priority. On June 28, 2021, City Council authorized a contract with PlaceWorks as the consultant team for the General Plan Update Project and directed staff to proceed with the formation of a General Plan Advisory Committee (Committee) comprised of representatives of the Livermore Community.

On September 12, 2022, City Council reviewed a series of draft land use alternatives that represent a range and mix of land use types and directed staff to evaluate the alternatives for the General Plan Update. On April 10, 2023, the City Council directed staff to add and study the East of Greenville focus area and limited the land uses for consideration to non-residential uses such as industrial, commercial, parks, open space, and agriculture.

On June 14, 2023, the Committee reviewed draft land use alternatives for the East of Greenville focus area. The Committee recommended requesting additional, detailed, information to better understand the tradeoffs associated with this unique focus area.

DISCUSSION

The purpose of the East of Greenville focus area is to facilitate non-residential land use types. Currently, the East of Greenville focus area is outside of Livermore City limits and the City's Urban Growth Boundary (UGB), which limits services to the area. Future development under any land use scenario would require annexation of the focus area into the City of Livermore. Additionally, development would require adjusting the UGB to allow the City to provide municipal services such as police, fire, water, and sewer. Adjustments to the UGB can only be accomplished through a vote of Livermore residents.

At their June 14th meeting, the Committee acknowledged the importance of comprehensively studying various land use alternatives as part of the General Plan Update. However, the Committee also recommended the project team conduct a detailed and thorough analysis of the focus area to better inform the community of tradeoffs, costs, and benefits, associated with development of the area and possible municipal and UGB changes.

Therefore, staff recommends preparing an Environmental Impact Report of the focus area in parallel with the General Plan land use alternatives evaluation. The report would supplement the General Plan Update, which evaluates land use at the citywide scale, with additional detailed information about the East of Greenville focus area, specifically. Further, the Environmental Impact Report could help inform future decisions regarding changes to the UGB and city limits. Due to the similarities and overlaps between the studies, staff will coordinate with both consultant teams to ensure consistency.

With staff’s input, Rincon Consultant. Inc. developed a scope of work, budget, schedule for preparing a detailed study of the East of Greenville focus area. Generally, the scope of work includes:

Public Noticing and Hearings.

Rincon will prepare notices informing the public of key milestones in the preparation of the documents and present materials at public meetings.

Research and Analysis.

Rincon will conduct research and analysis for various issue areas, describe existing conditions relevant to each topic, and identify impacts based on accepted criteria for determining significance. Research sources will include local and regional documents and studies, other recent and relevant environmental documents, and data provided by the General Plan team.

162
Preparation of an Administrative and Public Draft Environmental Impact Report.

Rincon will prepare draft
documents that describe the purpose of the study, characteristics relevant to the analysis (i.e., buildout projections, objectives, and discretionary approvals), and rational conclusions. The Environmental Impact Report will a contain sufficient degree of analysis to provide decision-makers with information regarding environmental consequences. The document will be a program-level Environmental Impact Report that considers the broad policy implications of the area and will focus on the macro-level impacts associated with total buildout.

ENVIRONMENTAL DETERMINATION

Authorization to execute a professional services contract is an administrative action, which does not qualify as a project under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378. Therefore, no environmental review is required to authorize execution of the Agreement.

FISCAL AND ADMINISTRATIVE IMPACTS

Council directing staff to prepare a focused environmental study would require staff and consultant resources. Evaluating the technical, financial, and environmental aspects of land use changes in the area and extending infrastructure services requires consultant services of $307,697. This amount would cover the preparation of an Environmental Impact Report and includes a 10 percent contingency. These expenditures were not contemplated in the City's 2-Year Financial Plan for 2023-2025. Staff is requesting an appropriation of $263,000 from the General Fund (Fund 001) to 8152-43130 Planning Contract Services Private for fiscal year 2023-24 and $44,697 from the same funding source for fiscal year 2024-

25. The $307,697 will be funded through a portion of the $9.1 million one-time payment for past due business license taxes from Lawrence Livermore National Laboratory (LLNL) and Sandia National Laboratories. The balance of the one-time business license tax payment not required to cover administrative and discovery expenses related to the one-time payment will be used to prepay the City’s unfunded Other Post Employment Benefits (OPEB) as directed by City Council as part of the FY 2022-23 budget update.

COMMUNITY PILLAR
4: Inclusive and Inviting Spaces and Places

GOAL
4: Continue to complete the General Plan Update

ATTACHMENTS

1. Resolution

2. Exhibit A - Draft Professional Services Agreement

Prepared by: Andy Ross
Economic Development Manager

163
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
164
RESOLUTION NO.__________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH RINCON CONSULTANTS, INC. IN AN AMOUNT NOT-TO-EXCEED $307,697 TO

PREPARE AN ENVIRONMENTAL IMPACT REPORT FOR THE EAST OF

GREENVILLE FOCUS AREA
On March 1, 2021, the City Council identified the Livermore General Plan and Housing Element Update as a goal and priority.

On September 12, 2022, the City Council authorized a range of land use alternatives in four focus areas and directed staff to evaluate the land use alternatives as part of the General Plan Update.

On April 10, 2023, the City Council directed staff to add the East of Greenville focus area to the land use alternatives evaluation study as part of the General Plan Update.

On June 14, 2023, the General Plan Advisory Committee reviewed different land use alternatives for the East of Greenville focus area and recommended city staff conduct additional detailed analysis of the impacts and tradeoffs beyond what was scoped in the General Plan Update.

City staff requires a consultant to analyze the impacts and tradeoffs of possible future land use changes within the East of Greenville focus area.

City staff recommends the City Council adopt a resolution appropriating $307,697 from Business License Tax settlement funds to cover the consultant cost and authorizing the City Manager to execute an agreement with Rincon Consultants, Inc. to prepare an Environmental Impact Report for the East of Greenville Study Area, over an 18-month term, in an amount not-to-exceed $307,697 in substantially similar form to the draft contract attached hereto as Exhibit A, subject to the City Attorney approval as to form of the final contract and acceptance of insurance by the Risk Manager.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby:

1. Appropriates from the Business License Tax settlement funds the amount of $307,697.

2. Authorizes the City Manager to execute a professional services agreement with Rincon Consultants, Inc., to prepare an Environmental Impact Report for the East of Greenville study area in an amount not-to-exceed $307,697, in substantially similar form to the draft contract attached hereto as Exhibit A, subject to the City Attorney approval as to form of the final contract and acceptance of insurance by the Risk Manager.
165
RESOLUTION NO.__________
On motion of Council Member , seconded by Council
Member , the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Kimberly Cilley
Marie Weber Kimberly Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Draft Professional Services Agreement
166
Professional Services Agreement Page 1
Rev. 09.2021

PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of , 20 , by and between the City of Livermore (“City”), a municipal corporation, and Rincon Consultants, Inc. (“Consultant”),a California corporation.

RE
CITALS
C
ity requires professional services to prepare an Environmental Impact Report for the East of Greenville General Plan focus area.

C
onsultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement. Consultant acknowledges City has relied upon these warranties to retain Consultant.

REEMENT
NO
W, THEREFORE, City and Consultant hereby agree that the aforementioned recitals are true and correct and further agree as follows:

1. Retention as Consultant. City hereby retains Consultant, and Consultant hereby accepts such engagement, to perform the services described in Section 3 below subject to the terms and conditions in this Agreement.

2. Relationship of Parties – Independent Contractors . The relationship of the parties shall be that of independent contractors. Consultant and its employees are not City office rs or employees. Consultant is responsible for the supervision and management of its employees, including any workers compensation i nsurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the delivery of the services contemplated by this Agreement.

3. Description of Services. Consultant shall provide the following professional services as more particularly set forth in Exhibit "A" (collectively “the Services”):

T
o prepare an Environmental Impact Report for the the East of Greenville General Plan focus area and evalutate the impacts associated with possible land use changes

EXHIBIT A
167
Professional Services Agreement Page 2
Rev. 09.2021
(d) Obtain and keep in effect all necessary licenses , permits, qualifications, insurance, and approvals legally and professionally required for Consultant to practice its profession and to provide the Services;

(e) Comply with all laws in effect that are related to Consultant and the Services;

(f) Coordinate the Services with Andy Ross, Economic Development Manager (“Project Manager”), or such other person designated as the Project Manager by City;

(g) Be available to the Project Manager, and other parties referred to Consultant by the Project Manager, to answer questions or inquiries related to the Services;

(h) Only invoice City for the Services rendered. Consultant’s invoice shall be in writing and describe the Services performed for the payment requested. Consultant shall not submit an invoice to City more frequently than once a calendar month;

(i) Keep and maintain invoices and records related to the Services in an organized manner. At a minimum, the records must be kept for at least 3 years from the date of final payment to Consultant and must include time sheets, work progress reports, and other documentation to adequately explain all the Services invoiced for payment.

(j) P repare and submit a written report to the Project Manager, within 3 business-days of the Project Manager’s written request, that identifies the Services completed and in progress, the charges incurred to date, and the anticipated cost to complete the remaining Services;

(k) Consultant shall correct, at its own expense, all errors in the S ervices.

Should Consultant fail to make such correction in a timely manner, City may make the correction and charge the cost thereof to Consultant;

(l) If applicable, Consultant shall ensure that all work for compensation is provided in compliance with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, worker’s compensation and prevailing wages. If applicable, Consultant shall comply with all prevailing wage laws, such as sections 1773, 1773.8, 1775, 1776, 1777.5, 1777.6, and 1813 of the California Labor Code and any other applicable wage and hour law. If any violation of prevailing wage law associated with this Agreement is deemed to have occurred by any court or administrative authority, Consultant shall forfeit to the City, as a penalty, the sum of fifty dollars ($50.00) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the applicable prevailing rates for any work done to accomplish the purposes of this Agreement; and,

EXHIBIT A
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Professional Services Agreement Page 3
Rev. 09.2021

(m) Consultant’s services provided pursuant to this Agreement shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA.

5. Compensation and Payment.

(a) The total compensation payable by City to Consultant for the Services SHALL NOT EXCEED the sum of $ 307,696.62 ( "not-to-exceed amount"). City shall compensate Consultant for the Services rendered at the hourly rates, task amounts or travel expenses set forth in Exhibit “A” up to the not -to-exceed amount. Except as provided in the body of this Agreement, the hourly rates, task amounts or travel expenses are intended to be Consultant’s only compensation for the Services and is inclusive of all costs of labor, licensing, permitting, overhead and administrative costs , and any-and-all other costs, expenses, and charges incurred by Consultant, its agents, and employees to provide the Services.

(b) City shall pay Consultant no later than 30 days after City receives a written invoice from Consultant and verifies the Services were performed for the payment requested.

6. Term. The term of this Agreement commences on July 24, 2023, and terminates upon the completion of the Services or January 31, 2025, whichever occurs first.

7. Termination by City . City may terminate any portion or all of the Services by giving Consultant at least 30 calendar-days written notice. Upon receipt of a termination notice, Consultant shall immediately stop all work in progress on the S ervices except where necessary to preserve the benefit of the work, and then assemble the work on the Services for delivery to City on the termination date. All compensation for Services performed prior to the termination date shall be payable to Consultant in accordance with Section 5.

8. Ownership of Documents. All drawings, designs, data, photographs, reports and other items prepared or obtained by Consultant in the performance of the Services are City’s property and Consultant shall deliver them to City upon demand.

9. Copyright and Right of Use. All items created by Consultant for City under this Agreement are works made for hire, and Consultant shall give City the copyright and all intellectual property rights to all items developed, prepared, and delivered as part of the Services. Consultant agrees that all aspects of the Services and items created thereby will be original works of creation and will not use, in whole or in part, any work created by any other party, except when expressly disc losed by Consultant to City and Consultant obtains a license to such items for the benefit of City. All licenses must be perpetual, world-wide, non-exclusive, and royalty free sufficient in scope to permit City’s full use and enjoyment of its ownership rights in the items created by the Services.

EXHIBIT A
169
Professional Services Agreement Page 4
Rev. 09.2021
termination and remain in full force and effect until the information, and any copies thereof, are destroyed or returned to City.

11. Defense, Indemnity, and Hold Harmless. To the fullest extent permitted by law, Consultant shall hold harmless, indemnify, and defend with counsel selected by the City or otherwise acceptable to the City, the City and its elected and appointed officials, officers, directors, employees, agents and designated volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services contemplated by this Agreement, or in connection with Consultant’s failure to comply with any of its obligations contained in this Agreement, except for such Liability caused by the sole active negligence or willful misconduct of City. Consultant’s obligations to hold harmless, indemnify, and defend shall not be excused because of Consultant’s inability to evaluate Liability or because Consultant evaluates Liability and determines that Consultant is not liable to the claimant. These obligations are independent of, and shall not in any way be limited by, the minimum insurance obligations contained in this Agreement. These obligations shall survive the completion or termination of this Agreement. Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City.

(a) Modification for Construction Contracts. To the extent this Agreement is a “construction contract” covered by California Civil Code section 2782, then Consultant’s duty to indemnify shall not apply in a manner prohibited by California Civil Code section 2782.

(b) Modification for Design Professional Services. To the extent this Agreement is for “design professional services” defined in California Civil Code section 2782.8, then Consultant’s duties to defend and indemnify shall only apply to the extent provided for in California Civil Code s ection 2782.8(a), unless section 2782.8(a) is not applicable for one of the reasons set forth in 2782.8(e).

12. Insurance. Consultant shall procure and maintain insurance during the term of this Agreement in the amounts and under the terms set forth in Exhibit “B” against claims that may arise from or in connection with this Agreement and performance of the Services.

Upon reasonable written notice, Consultant shall comply with any changes in the amounts and terms of insurance as may be required from time-to-time by City’s Risk Manager.

13. Acceptance of Final Payment. Consultant’s acceptance of final pay ment will release City from any and all claims and liabilities for compensation under this Agreement.

14. Acceptance of Work. City’s acceptance of, or payment to Consultant for, the Services does not release Consultant from its responsibility for the accuracy , completeness, or competency of the Services, nor do the actions constitute an assumption of Consultant’s responsibility or liability by City for any defect or error in the Services.

EXHIBIT A
170
Professional Services Agreement Page 5
Rev. 09.2021

15. Conflict of Interest. Consultant represents that no City employee or official has a financial interest in Consultant. Consultant shall not offer, encourage, or accept any financial interest in any part of Consultant's business by or from a City employee or official during the term of this Agreement or as a result of being awarded this Agreement. If any of the Services are paid by reimbursement from an agreement between City and a private party, Consultant represents that it has not performed any work for that private party during the 12-month period prior to the execution of this Agreement , and that it shall not negotiate, offer or accept any contract for services from that party during the term of this Agreement.

16. Economic Disclosure. Consultant shall comply with City’s local conflict of interest code and the Political Reform Act, and prepare and file an economic disclosure statement if the S ervices involve making, or participation in making, decisions which may have a material effect on the Consultants’ financial interest. While it is Consultant’s sole responsibility to evaluate its conflicts of interest, the Consultant nevertheless agrees to prepare and file an economic disclosure statement if requested by City.

17. Non-Exclusive Agreement. This is a non- exclusive agreement. City reserves the right to provide, and to retain other consultants to provide, services that are the same or similar to the Services described in this Agreement.

18. No Assignment. Consultant shall not assign or subcontract any of the Services without City’s prior written consent. For the purposes of this section, a change of fifty - percent or more in the ownership or control of Consultant constitutes an assignment.

19. Remedies. All remedies permitted or available under this Agreement, or at law or in equity, are cumulative and alternative, and the invocation of a right or remedy will not be construed to waive or elect a remedy with respect to any other available right or remedy. As a condition precedent to commencing legal action involving a claim or dispute against City arising from this Agreement, the Consultant must present a written claim to City in accordance with Chapter 3.42 of the Livermore Municipal Code.

20. Construction of Language . T he terms and conditions in this Agreement have been arrived at through negotiation and each party had a full and fair opportunity to review and revise this Agreement with legal counsel. Any ambiguity in this Agreement will not be resolved against either party as the drafting party. In the event of an inconsistency or conflict between the language in the body of the Agreement and an attachment hereto, the language in the body of the Agreement controls.

21. Entire Agreement; Modification . T his Agreement supersedes all other agreements, whether oral or written, between the parties with respect to the Services.

Any modification to this Agreement must be in writing and signed by both parties. In the event the original of this Agreement is lost or destroyed, an archi val copy maintained by City can be used in place of the original for all purposes with the same effect as if it was the original.

22. Notice. Notices under this Agreement must be delivered to the addresses below by deposit in the United States mail or by overnight delivery service, with postage prepaid and delivery confirmation:

EXHIBIT A
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Professional Services Agreement Page 6
Rev. 09.2021

TO CITY: Attention: Andy Ross
Economic Development Manager
1052 S Livermore Avenue
Livermore, California 94550

TO CONSULTANT: Attention: Abe Leider, AICP CEP
Rincon Consultants, Inc.
449 15th Street, Suite 303
Oakland, CA 94612

23. Waiver. Failure to insist upon the strict performance of any term or conditions in this Agreement, no matter how long the failure continues, is not a waiver of the term or condition and does not bar the right to subsequently demand strict performance. To be effective, a waiver must be in writing and signed by the non-breaching party.

24. Severability. If a court of co mpetent jurisdiction determines a provision in this Agreement is invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired in any way.

25. Survival. The terms, conditions, and obligations in Sections 8, 9, 10, and 11 shall survive the completion or termination of this Agreement.

26. Electronic Signatures. By signing this document, you are agreeing that you have reviewed this disclosure information and consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.

27. Counterparts. This Agreement may be executed and delivered in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email, or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals and shall be valid and effective for all purposes.

*********************************************************************************************

Signatures and Attachment List on the Next Page

EXHIBIT A
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Professional Services Agreement Page 7
Rev. 09.2021
In c
oncurrence and witness whereof, and in recognition of the mutual consideration provided therefore, the parties have executed this Agreement, effective on the date first written above.

Dat
ed:
______
_____________________
Dat
ed:
______
______________________
CONSULTANT:
____________________________
By: Abe Leider
Title: Principal
CITY OF LIVERMORE:
_______________________
_____
Marianna Marysheva
City
Manager
APPROVED AS TO FORM:
___________________________
Assistant/City
Attorney
APPROVED AS TO INSURANCE:
_______________________ Risk
M
anager/Analyst
Attachments:

Ex
hibit A – Scope of Work
Exhibit B – Insurance Requirements

EXHIBIT A
173
Rincon Consultants, Inc.
449 15th Street, Suite 303
Oakland, California 94612
510-834-4455
w w w. r in co n co nsu ltan ts. co m
July 7, 2023
Rincon Project No. 23-14603
Andy Ross, Economic Development Manager
City of Livermore
1052 South Livermore Avenue
Livermore, California 94550
Via email: [email protected]
Subject: Revised Proposal to Prepare an Environmental Impact Report for the East of Greenville Study Area
The City of Livermore is seeking assistance with California Environmental Quality Act (CEQA) compliance for the East of Greenville Project. Based on our project understanding and discussions with City staff, Rincon Consultants, Inc. has prepared this proposal to prepare an Environmental Impact Report (EIR) for the project. We are enthusiastic about the opportunity to continue working with the City and have assembled a team of highly skilled environmental science and pla nning professionals who combine extensive technical qualifications and knowledge of CEQA with many years of experience.

Rincon Consultants is a full-service environmental consulting firm, with industry-leading certified land use and environmental planners, environmental scientists and engineers, sustainability and climate planning professionals, noise and air quality experts, geologists, biologists, and cultural and historical resource specialists. At Rincon, we are proud of our team’s ability to work effec tively with City staff, decision-makers and community groups to develop and implement innovative approaches and solutions to planning and environmental issues. We believe that our experience with CEQA statewide, our experience on land use projects specifically in Northern California, and our existing relationship with City of Livermore staff are critical and give us a unique understanding of and sensitivity to the range of issues that will be important to the success of this project. In 2022, we successfully completed the Supplemental EIR for the City’s Urban Growth Boundary Initiative to allow for sewer expansion south of City limits , and we have worked on many complex programmatic CEQA documents for numerous agencies around the Bay Area and throughout California.

Leading the team will be Abe Leider, AICP, Principal, who manages Rincon’s Oakland office and oversees Rincon’s planning and environmental services in Livermore, and Aileen Mahoney, Senior Environmental Planner, who managed the South Livermore Sew er Expansion Project EIR, which was certified in 2022. Ms. Mahoney will serve as Project Manager in charge of day-to-day oversight and will be the City’s primary contact.

This proposal includes: (1) our project understanding; (2) our proposed work scope; (3) our proposed schedule; and (4) our cost estimate.

Project Understanding
During preparation of the City’s General Plan Update, the area east of Greenville Road outside of the city limits is being explored as an alternative location for displaced industrial land uses, to assist the City in meeting its Regional Housing Needs Assessment within the existing City boundaries and in achieving the City’s long term economic goals. The project area consists of approximately 1,140 acres of land, mostly located east of Greenville Road, west of the aqueduct, and south of I-580. The project Exhibit A

EXHIBIT A
174
City of Livermore
East of Greenville Project
2 area is currently primarily undeveloped or agricultural land with scattered industrial, public utilities, and rural residential uses.

A range of alternatives are being explored for the area. The project would modify the land use designations of the area for non-residential uses, including industrial, commercial, parks, open space, and agriculture.

We understand that the City Council must authorize annexation of the project area and approve placing a Council-sponsored initiative on the City’s ballot to expand the Urban Growth Boundary to include the project area before these land uses could be realized. The Environmental Study would help inform this decision.

Scope of Work
The CEQA document will be a Program EIR pursuant to State CEQA Guidelines Section 15168. Although the legally required contents of a Program EIR are technically the same as those of a Project EIR, Program EIRs contain a broader discussion of impacts, alter natives, and mitigation measures than a Project EIR. Use of a Program EIR is intended to provide an opportunity to consider broad policy alternatives and program-wide mitigation measures with greater flexibility to address environmental issues and/or cumulative impacts on a comprehensive basis. Once a Program EIR has been certified, subsequent activities under the program (in this case the proposed land use designations ) may be evaluated to determine what, if any, additional CEQA documentation needs to be p repared. If the Program EIR addresses the program’s effects specifically and comprehensively, many subsequent activities may be found to be consistent with the Program EIR mitigation parameters and additional environmental documentation may not be required (CEQA Guidelines Section 15168). In this case, the Program EIR serves a valuable purpose as the first -tier environmental analysis that will assist in streamlining and possibly exempting future projects from CEQA.

It is anticipated that implementation of this scope of work will be completed in tandem with the General Plan Update team, with regular coordination meetings to ensure that consistent methodology is used in the General Plan Update EIR and the proposed EIR for the East of Greenville Project . It is intended that the EIR completed under this scope of work will be incorporated by reference in the General Plan Update EIR. However, as the General Plan Update process is currently under way and preliminary documentation is available, this proposal assumes that Rincon will have access to existing public documents associated with the to the General Plan Update to use as a starting point for the analysis in the East of Greenville EIR.

The Program EIR will address all components of the proposed land use changes (including a possible Urban Growth Boundary expansion), with a focus on streamlining future projects within the project area by including a broad discussion of impacts, alternatives, and mitigation measures. The Program EIR will consider broa d policy alternatives and program -wide mitigation measures. Rincon also proposes to forgo preparation of an Initial Study in order to streamline the project timeline, as the City has already determined that an EIR will be required. The EIR will address the potential impacts of project buildout in the approximately 1,140-acre project area.

Task 0: Project Management
Rincon will provide project management services under this scope of work. Management efforts will consist of regular communications with City personnel on an as-needed basis via email and phone to provide updates on the progress of the reports and discuss any issues that arise over the course of the project. This task includes attendance at monthly pro ject status meetings for the duration of the contract, as well as up to four (4) hours of meetings with the General Plan Update team to discuss the

EXHIBIT A
175
City of Livermore
East of Greenville Project
3 East of Greenville EIR as it relates to the General Plan Update process. As part of this task, Rincon will provide project management and coordination with City staff to meet project requirements in an efficient and cost-effective manner. Rincon will provide regular updates to City staff regarding project needs, changes, schedule, budget, and deliverables. This task includes activities required to manage the various tasks that follow such as regular e -mail and telephone communications and other tasks associated with client coordination. This task includes internal coordination with the project team and ongoing project management responsibilities throughout the duration of the of the project, such as cost and schedule tracking, progress reporting, invoicing, and clerical work.

Task 1: Kickoff Meeting
Rincon will facilitate a virtual CEQA kickoff meeting with City staff. This meeting will serve as a forum to review and confirm study objectives and establish an operational protocol. The goals of the meeting will be to finalize the CEQA scope and discuss the overall schedule.

The kickoff meeting will also allow the City/consultant team an opportunity to discuss the approach to the environmental evaluation and potential EIR alternatives. Community concerns relevant to the CEQA analysis that have surfaced to date will be discussed. We will also have an opportunity to confirm the cumulative impact analysis approach. Rincon’s principal in charge and project manager will attend the meeting virtually, which is anticipated to last up to one hour.

Task 2: Notice of Preparation
Rincon will prepare a draft Notice of Preparation (NOP) for City staff to review. The NOP will include all required details including project description, location, dates of public review and dates/location of the public scoping meeting. Rincon will submit a draft NOP in M icrosoft Word format for City review.

Upon receipt of one round of consolidated comments on the draft NOP, Rincon will prepare a final PDF copy of the NOP for City staff to post on its website and for distribution to public agencies. Rincon will prepare an NOP distribution list for the City to review. It is assumed that the City will be responsible for any direct mailing of printed copies of the NOP. Rincon will review and make suggestions regarding the list. Rincon will be responsible for filing the NOP wi th the State Clearinghouse/Office of Planning and Research and Alameda County Clerk.

The NOP and relevant correspondence received in response to the NOP will be attached as an Appendix to the Draft EIR. The scope of the EIR will be adjusted, if necessary, based on the comments received. Because we anticipate that the EIR will address all issues on the environmental checklist, we do not propose to prepare an initial study.

Task 3: Project Description
Rincon will prepare the EIR project description. Organization of this information is critical since it forms the basis for environmental evaluation under CEQA. The project description will focus on the overall boundary of the project area . This section will include a description of the project, focusing on characteristics relevant to the analysis (i.e., buildout projections provided by the City, proposed land use changes), project objectives, and required permits and discretionary approvals. The project description will include textual, tabular, and up to six gra phics as needed to describe the project and form a basis for the environmental analysis. The project description will be submitted to the City in Microsoft Word format, and we will address one round of consolidated comments from the City. The scope of work , estimated schedule , and cost estimate in this proposal , assume that the buildout projections and land use pattern will not change following City acceptance of the project description.

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4 Task 4: Scoping Meeting
Rincon will facilitate one public and agency scoping meeting associated with the release of the NOP.

The Scoping Meeting will be held during the 30-day NOP review period to introduce the community and responsible agencies to the EIR process and obtain input on the EIR scope of work. Applicable agencies and interested parties would be invited to attend the scoping meeting. The meeting will include a brief presentation, followed by public comment and input from meeting attendees. Rincon will prepare a summary of relevant input gathered, which will be included in the Draft EIR along with relevant written public comments received during NOP comment period. Rincon assumes the Scoping Meeting will be held at a Planning Commission meeting, which the City will organize. For the purposes of this scope, we have assumed the scoping meeting will be held in person. Notice of the scoping meeting would be provided in the NOP.

Task 5: AB 52 and SB 18 Consultation Assistance
Under Assembly Bill (AB) 52 (California Government Code Section 21080.3.1[a]) and Senate Bill (SB) 18 (California Government Code Section 65352.3 and 65352.4), the City, as the CEQA lead agency, is required to begin consultation with California Native American Tribes that are traditionally and culturally affiliated with the project site, prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report. Rincon will request an AB 52 and SB 18 consultation list from the NAHC and will assist the City with consultation under AB 52 and SB 18 by providing the City with letter templates, checklists, and detailed instructions to help ensure meaningful consultation with interested Native American groups. Typically, NAH C list requests are fulfilled within four (4) weeks. After receipt of letters, Native American Tribes have 30 days to reply to a request for consultation under AB 52 and 90 days under SB 18; the 30-day wait period for AB 52 is subsumed in the wait period for SB 18. This task does not include meetings, outreach, consultation or mailing letters to Tribal governments, although consultation support may be added for an additional cost if needed .

Rincon assumes that the City will officially contact all applicable Tribes. Additionally, Rincon will include the consultation efforts in an assessment of impacts to Tribal Cultural Resources for the CEQA document.

Task 6: Administrative Draft EIR
Rincon will prepare an Administrative Draft EIR (ADEIR) in compliance with CEQA requirements and based on the project description approved by City staff ( see Task 3). Consistent with CEQA requirements, the EIR will be prepared with a sufficient degree of analysis to provide decision-makers with information which enables them to m ake a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of the project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in light of what is reasonably feasible. The document will be a program EIR that considers the broad policy implications of the proposed project.

To that end, it will focus on the macro -level impacts associated with total buildout. Where possible, Rincon will incorporate information from existing environmental and planning documents that apply to the project area.

The ADEIR will comprise the following sections:

Executive Summary
The EIR will contain a summary of the General Plan and associated environmental consequences. This section will include the following:
• A discussion of project objectives;

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5 • A brief description of the project;
• A summary of the environmental setting for the project area; • A summary of impacts;
• A summary of mitigation measures;
• A discussion of alternatives considered, and identification of the environmentally superior alternative among those studied; and
• Areas of controversy, and issues remaining to be resolved.

Introduction and Environmental Setting
These required introductory sections will lay the groundwork for and summ arize the substantive analysis to follow. The introduction will describe the purpose and legal authority of the EIR, the scope and content of the EIR, a discussion of lead, responsible, and trustee agencies, and a synopsis of the CEQA process. The environmental setting will provide a general description of the existing geographic character of the project area. The environmental setting will also contain a discussion of the approach to the cumulative impact analysis.

Project Description
The Project Description section will consist of the project description prepared in Task 3.

Analysis, Impacts, and Mitigation Measures
Each environmental discussion will include the following:
• Setting
• Impact analysis
• Mitigation measures
• Level of significance after mitigation
The discussion for each issue area will begin with the setting, which will describe existing conditions relevant to the topic and provide the groundwork for impact analysis. Sources will include documents and studies prepared in support of the project, other relevant environmental documents prepared during the last five years, and data provided by the City.

The impact analysis will include a discussion of the methodology used to quantify or determine impacts and the criteria for judging significance. Where practicable, impacts will be quantified. If existing data does not allow definitive quantification, reasonable assumptions will be used to qualitatively forecast potential impacts.

Rincon typically orients analyses around clear impact statements that are separately highlighted in the text. This allows a more precise statement of the specific issue at hand and sets the stage for the technical discussion that follows. If the impact warrants mitigation measures, they are indexed to and immediately follow the numbered impact in question.

Rincon’s technical approach to analyzing each environmental issue is described below under Proposed Approach to Technical Issues.

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6 Alternatives Analysis
A range of alternatives will be considered in the ADEIR. CEQA Guidelines require consideration of the “No Project” Alternative. For purposes of this EIR, the No Project Alternative would be a continuation of the existing County land use designations of the project area without annexation into the City of Livermore. In addition to the No Project Alternative, Rincon will consider up to three (3) other alternatives (such as alternative land use scenarios), including at least one alternative crafted in coordination with City staff to reduce identified significant and unavoidable impacts. It is assumed that buildout assumptions for each alternative will either be provided or approved by the City. Evaluation of alternatives will be in less detail than for the proposed project, though the analysis will provide decision-makers and the public adequate information to decide between alternatives. This section will also identify the “environmentally superior alternative.” If the No Project Alternative is determined to be environmentally superior, the ADEIR will identify the envi ronmentally superior alternative among the remaining scenarios.

Cumulative Impacts
Consistent with Section 15130 of the CEQA Guidelines, cumulative impacts will be disclosed. These impacts would result from the program’s impacts associated with full build out of project area under the proposed project, combined with impacts of other projects and programs in the area, including surrounding jurisdictions’ land use pl ans. Cumulative projections in the area will be derived in consultation with the City.

Other CEQA Sections
This portion of the EIR will discuss the growth -inducing effects of the project as well as significant irreversible changes associated with the proposed project. Drawing on the information provided in the environmental setting and preceding issue discussion, the growth -inducing impacts will address the potential for the project to directly induce economic growth and remove obstacles to growth in the area. The sig nificant irreversible changes discussion will summarize the significant effects of the project, particularly the unavoidably significant effects.

References
This portion of the EIR will provide full citations for all in -text citations provided within the EIR. This section will identify all supporting documents that were used during preparation of the EIR which are not included as appendices to the EIR itself.

The ADEIR will be submitted to the City in Microsoft Word format, for ease of review.

Proposed Approach to Technical Issues
The technical approach to analyzing each potential environmental issue is described herein.

Approaches to the impact analysis for the Program EIR will be discussed with City staff and will be consistent with the assumptions and methodologies used in recent CEQA documents in the City of Livermore to the extent possible. In general, the impact analysis will focus on the issues present in the project area and likely to be affected or impacted by the project. It is anticipated that the components of the project that would most likely result in environmental impacts include the proposed land use changes that would result in increased buildout, increased development intensity, increased building height/scale, or physical ground dist urbance. All issue areas contained on the CEQA Guidelines Appendix G Checklist will be addressed in the EIR . Specific analysis details for each section are described below.

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7 Aesthetics. Physical changes that could occur under the proposed land use changes would alter the aesthetic character of the project area . The aesthetic analysis will consider the alteration of public views, changes in visual character, and increased light and glare that could result from modifications to the land use scenario. Changes t o allowable maximum building densities will also be considered.

These modifications under the proposed project will be compared to the existing County General Plan design standards, building densities, and land use scenario. The analysis will be supported by photo documentation from public viewpoints of up to five key areas where future development from proposed land use changes would be facilitated by the project. The analysis will also consider consistency with relevant City documents addressing design and development standards. Policy -based mitigation measures will be developed as necessary.

Agriculture and Forestry Resources. Prime Farmland and Unique Farmland is located in the southern portion of the project area. The majority of the project area is designated as Large Parcel Agriculture by Alameda County. Similarly, the majority of the project area is zoned Agriculture (A) by the County.

This section will describe agriculture resources and any Williamson Act and forestland within the project area . The analysis will evaluate the conversion of any State -designated prime, unique, or otherwise important farmland within the County resulting from the project.

Air Quality and Greenhouse Gas Emissions . The air quality and greenhouse gas (GHG) emissions analyses in the EIR will consider temporary construction and long -term operational emissions from buildout of the project area . The analysis will summarize the existing air quality conditions in the air basin using data from nearby air monitoring stations available from the California Air Resources Board and the Bay Area Air Quality Management District (BAAQMD). The state of the climate and relevant federal, state, and local climate change regulations will be described, with GHGs identified as an area of primary concern. This section will summarize federal, state, and local standards and regulatory review requirements pertinent to air quality and GHG emissions, calculate project buildout emissions of criteria pollutants and GHGs using the California Emissions Estimator Model (CalEEMod), and evaluate the significance of air quality and GHG impacts per the BAAQMD’s 2022 CEQA Guidelines methodology for programmatic (p lan-level) analyses . Construction emissions will be addressed qualitatively. This section will also evaluate potential odor impacts through buildout of the project area, which is typically associated with wastewater treatment, manufacturing, and industrial-type land uses; evaluate localized air quality impacts from toxic air contaminant (TAC) to sensitive receptors (no detailed air dispersion modeling is proposed as part of this scope); evaluate the project’s compliance with applicable Air Quality Management Plans; evaluate the project’s compliance with applicable State and local GHG reduction plans, policies, and regulations; and develop mitigation measures for identified potentially significant air quality and GHG impacts.

Biological Resources . The project area supports a mixture of low -density industrial development, agriculture, grasslands, and water infrastructure, and provides wildlife movement corridors between natural areas to the north and south. The project area likely supports several sp ecial-status species such as burrowing owl, California red-legged frog, vernal pool fairy shrimp, and rare plants, as well as large seasonal wetland complexes in the northern portion of the project area and Arroyo Seco in the southern portion. As part of the biological resources analysis, Rincon will collect regional background information on biological resources that could be affected by the project. The collected information will include database queries (e.g., California Natural Diversity Database [CNDDB ], California Native Plant Society, U.S. Fish and Wildlife Service, National Wetland Inventory), reviews of regional planning documents (including the Alameda County Conservation Strategy) , and information provided by City staff. The scope of work does not include a reconnaissance site visit.

The biological setting subsection will describe the regulatory framework, vegetation communities per the California Wildlife Habitat Relationships classifications, waters and wetlands, and special -status species occurrences and habitats. Rincon will compile results from database queries in an appendix

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8 to the EIR and summarize the results and findings within the EIR section. The impact analysis will include a description of methodology and significance thresholds, a summary of land use changes that may result in impacts to biological resources, and avoidance and mitigation measures, as appropriate.

Cultural Resources. The cultural resources analysis will review the potential for historical resources and archaeologic al resources to occur within the project area and the potential impacts to those resources as a result of the project. To compile a listing of recognized significant historic and prehistoric resources, information will be obtained from the National Registe r of Historic Places (NRHP), the Built Environment Resources Directory (BERD), and local inventories, as appropriate.

Archival research will be limited to a review of historical aerial images and maps to characterize the historical development of the plan area and the existing conditions. No fieldwork or a search of the California Historical Resources Information Center (CHRIS) will be conducted. If significant impacts are identified, programmatic mitigation measures will be provided.

Energy. This section will discuss current and projected energy supplies and demand, and qualitatively analyze energy demand associated with future construction and long-term project area buildout. This section will also compare consistency of the project with adopted state, reg ional, and local energy policies. Policy-based mitigation measures will be developed as necessary.

Geology and Soils. A portion of the project area is located within a designated Alquist-Priolo fault zone.

This section will discuss the potential for geologic hazards present within the project area to adversely affect potential future development facilitated by the project. Hazards to be considered include fault rupture, ground shaking, landslides, liquefaction/slope stability, erosion, and subsidence. The analysis will rely on sources such as the California Geological Survey, United States Geological Survey, the California Division of Mines and Geology, and other CEQA documents that contain geology and soil information for the area. It is anticipated that th e geology/soils work scope will entail a mapping exercise to identify areas where potential future development could be affected by known geologic hazards.

Rincon will present a paleontological resources assessment in the Geology and Soils section of the EIR that will summarize the project’s potential to impact paleontological resources. The assessment will provide the results of the literature review and record search, discuss the regional geology and the geologic unit(s) located within the project site, characterize the paleontological sensitivity of the geologic unit(s) using the Society of Vertebrate Paleontology paleontological sensitivity classification system, assess the potential for significant impacts to scientifically important paleontological resources under state and federal guidelines, and provide management recommendations for avoiding or reducing impacts to paleontological resources from project development as necessary.

Hazards and Hazardous Materials. A number of listed hazardous materials sites are present within the project area , including open cleanup program sites, an open land disposal site, and permitted underground storage tanks. This section will discuss the potential for impacts relating to h azardous materials transport, storage, and use, as well as such hazards as wildland fires. The analysis will rely on readily available information sources, including online hazardous material databases, the Tri-Valley Hazard Mitigation Plan, and other envi ronmental documents prepared for the City . The hazardous material analysis will involve qualitative discussions of the potential for new development to either create the potential for hazardous conditions or be adversely affected by existing hazards.

Hydrology and Water Quality . The project area includes areas that are within the 100 - and 500-year FEMA-designated floodplains, and also includes the Patterson Dam and reservoir along the aqueduct.

The hydrology and water quality analysis will evaluate p otential impacts relating to hydrological conditions and flooding as well as potential impacts to surface and groundwater quality. The existing hydrologic setting of the project area will be described generally and potential impacts relating to new development will be discussed conceptually. The analysis will be qualitative in nature, relying on

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9 existing regulations (in particular, the National Pollutant Discharge Elimination System [NPDES] and related City requirements) to address potential impacts.

Land Use and Planning. This section of the EIR will examine land use policy issues. Rincon will prepare an objective discussion of whether and how the proposed land use changes are consistent with both existing City and County policy documents and regional planning policies, including those of the local air quality plan, Plan Bay Area 2050, and the Alameda County Local Agency Formation Commission.

Mineral Resources. The project area contains active oil and gas wells and associated infrastructure.

This section of the EIR will identify if areas designated for mineral resources occur in the project area and if they would be affected by the project.

Noise. The noise section of the EIR will be conducted in accordance with City of Livermore guidelines, standards, and ordinances. The existing setting will describe existing ambient and traffic noise levels, and a discussion of existing airport noise levels based on available data. No ambient noise measurements are proposed. The noise analysis will examine both temporary construction noise and long-term operational noise. Noise model calculations will be included as an appendix to the EIR, and the technical analysis will be sum marized in the EIR section. Construction noise will be estimated based on information from the Federal Transit Administration and Federal Highway Administration.

Traffic noise will be estimated based on traffic volume data used in the traffic analysis.

Noise impacts from non-transportation sources will be evaluated on a programmatic level, qualitatively based on local noise standards. Rincon will analyze noise impacts from non -transportation sources such as major commercial and industrial uses in terms of potential impacts to nearby noise-sensitive receptors and the noise limitations identified within the City’s Municipal Code.

Rincon will provide a qualitative analysis for potential construction impacts associated with buildout of the project area. Future noise and vibration effects from construction activities will be discussed in terms of accepted standards from the U.S. Federal Transit Administration (FTA). Feasible mitigation measures will be identified to minimize noise and vibration impacts associate d with buildout of the Plan.

Population and Housing. Single-family residences are present throughout the project area. This section will focus on the potential for the project to displace existing housing, necessitating the construction of housing elsewhere. Policy-based mitigation measures will be developed as necessary.

Public Services and Recreation. The public services section of the EIR will focus on potential impacts relating to police protection and fire protection services. The analysis of polic e and fire service will involve contact with the City of Livermore Police and Fire departments to determine service levels and existing and projected gaps in service. It is assumed that the City can facilitate coordination with these departments. This section will also analyze potential impacts associated with the future construction of new parks within the project area, consistent with the proposed land use scenario. It is not anticipated that existing parks would be directly affected by potential new development; therefore, the analysis will focus on the direct effects of proposed new parks and open space areas.

Transportation. This section of the EIR will rely on the VMT analysis provided by the City and prepared by a transportation engineering firm . The existing setting, project and cumulative impacts, and any suggested mitigation measures in the VMT study will be described and listed in the EIR section as appropriate. The analysis will identify key transportation system components and consider whether buildout of the project area would conflict with a program, plan, ordinance, or policy addressing the circulation system. Policy-based mitigation measures will be developed as necessary.

Tribal Cultural Resources. To inform the Tribal Cultural Resources section, Rincon will collect regional background information on tribal cultural resources that could be affected by the project. The collected

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10 information will include Native American Heritage Commission (NAHC) Sacred Lands File Search, reviews of regional ethnographic information, information from relevant past projects, and information provided to the lead agency through government-to-government tribal consultation in accordance with AB 52 and SB 18.

Utilities and Service Systems. This section will discuss potential impacts to water supply and service systems, wastewater conveyance and treatment systems, wastewater/solid waste generation, and solid waste collection and disposal systems. Water, wastewater, and solid waste services are provided by Zone 7 Water Agency , individual septic systems , and the Alameda County Waste Program , respectively. The analysis of water supply developed for the EIR will rely upon information from Zone 7 Water Agency’s latest (2020) UWMP, as well as other publicly available, published data. The EIR will consider the potential impacts of proposed land use changes on the demand for water supply and wastewater treatment services . Impacts to the City storm drain system will be addres sed in the hydrology/water quality section. Impacts relating to solid waste generation will also be discussed.

Wildfire. The project area is primarily designated within a Moderate Fire Hazard Severity Zone in a State Responsibility Area, with some parcels designated as High Fire Hazard Severity Zone in the southern portion of the project area near Tesla Road . The High Fire Hazard Severity Zone is also partially designated as within the Wildland -Urban Interface. This section will describe the location of Fire Hazard Severity Zones within or near the project area. Wildfire risk will be assessed, consistent with OPR’s lates guidelines related to wildfire hazards. As necessary, mitigation measures will be developed to address identified significant impacts.

Task 7: Screen Check Draft EIR
Rincon will address one round of City comments on the ADEIR and prepare a Screen Check Draft EIR.

We assume that a ll comments from the City will be provided as a consolidated set of c omments in editable electronic format (i.e., as tracked changes in Microsoft Word). If there are multiple reviewers, the City will be responsible for reconciling conflicting comments prior to sending to Rincon. To maintain momentum in the project schedule and provide cost efficiency, we assume City comments will focus on any new content in the previous version of the ADEIR, and new comments on previously submitted content will be minimal. The Screen Check Draft EIR will be submitted to the City in Microsoft Word with track changes retained.

Task 8: Public Draft EIR
Once the City approves the Screen Check Draft EIR, Rincon will prepare the Draft EIR for public circulation. Rincon will prepare required noticing forms, including the Notice of Completion (NOC), Notice of Availability (NOA), and OPR’s Summary Form for Electronic Document Submittal, for City review. Rincon will address one round of comments on the forms. Rincon will be responsible for submitting documents through the digital CEQA Submit platform and filing the NOA with the Alameda County Clerk’s office. It is assumed that the City will be responsible for newspaper ads and /or other public noticing of the document’s availability required by CEQA, such as radius label mailing or on-site posting. As required by State law, the Public Draft EIR will require at least a 45-day public review period.

Rincon will provide two printed copies of the Public Draft EIR for posting at the City offices and at one branch of the Livermore Public Library and will provide a digital version in Adobe PDF for posting to the City’s website. Accessibility remediation of the Draft EIR is included as Task 15.

Task 9: Response to Comments and Administrative Final EIR Upon receipt of public comments on the Draft EIR, Rincon will prepare draft response to comments and an Administrative Final EIR for review by the City. This scope of work assumes up to 20 comment

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11 letters containing comments on the content of the CEQA document will be received. This includes five lengthy (over five pages) and/or substantive letters, that can be adequately responded to in a maximum of 100 professional staff hours. Comment letters that solely express support or opposition to the project would not count against the 20 -letter estimate. The actual level of effort required to respond will depend on the length, detail, and sophistication of the comments, in addition to the number of letters received. We reserve the right to reevaluate the effort le vel and request a scope amendment upon close of the public comment period. If the number of comment letters and the effort to prepare responses is greater than anticipated, Rincon will notify City staff immediately and discuss options to amend our scope of work and budget as necessary.

Rincon will address one round of consolidated City comments, to be provided in editable format, on the draft Responses to Comments and prepare a Screen Check Responses to Comments, in Microsoft Word with edits shown in track changes. Upon City review and approval of the Screen Check, Rincon will submit the Final EIR for hearing.

Task 10: Mitigation Monitoring and Reporting Program
Concurrent with Task 9, Rincon will prepare a Mitigation Monitoring and Reporting Plan (MMRP), which will be bound separately from the Final EIR. The MMRP will be provided in a format designed for use by planners, environmental monitors, or code enforcement officers. Essentially, this plan will take the form of a detailed table that describes:
• Persons/agencies responsible for monitoring compliance with each condition • Timing when monitoring must occur
• Frequency of monitoring
• Criteria to be used to determine compliance with conditions Task 11: Final EIR
After receipt of City comments on the Administrative Final EIR (Task 9) and MMRP (Task 10), Rincon will prepare a Screen Check Final EIR for City staff review and confirmation followed by a Final Program EIR after incorporating comments from City staff. Rincon will prepare a draft Notice of De termination (NOD) for City approval. Rincon staff will file with the County Clerk and State Clearinghouse within five working days of project approval. It is assumed that the City will pay all applicable fees associated with filing the NOD at the County Clerk. Rincon will provide one printed copy of the Final EIR for City records.

Accessibility remediation of the Final EIR is included as Task 15.

Task 12: CEQA Findings, Statement of Overriding Considerations, and Resolution Rincon will prepare the CEQA Findings and Statement of Overriding Considerations (if a significant and unavoidable impact is identified) for the project based on the impact conclusions of the EIR, based on a template provided by the City. The Draft CEQA Findings will be submitted alongsid e the Final EIR, and will contain a discussion of alternatives, including the rationale for rejecting any of the analyzed alternatives, using in part the project objectives. This scope of work assumes if alternatives are determined to be infeasible due to financial considerations, or that the Statement of Overriding Considerations relies on specific economic or financial factors, corresponding financial data to support these conclusions will be provided by the City. This task will comply with CEQA Guideline s Sections 15091 and 15093 and will be submitted in a City-approved electronic format. Rincon will prepare an administrative draft version of the CEQA Findings for City review, will address one round of consolidated City comments, and submit a final document version digitally.

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12 Rincon will also prepare the draft CEQA Resolution for City review and comment. The CEQA Resolution will be prepared in accordance with the City’s required format. The CEQA Resolution will incorporate the CEQA Findings and, if applica ble, the Statement of Overriding Considerations as attachments.

Rincon will address one round of consolidated City comments and submit a final document version digitally.

Task 13: Administrative Record
Rincon will maintain the Administrative Record for thi s project. Maintenance of an accurate and comprehensive administrative record is important for the defensibility of the EIR, should it be challenged. Rincon will develop a work plan at the outset that instructs internal staff on the way in which the Administrative Record will be developed and maintained. As sources are referenced in each section of the report, they are logged in an index containing a hyper -linked cross-reference to the individual source files, copies of which are maintained on company serve rs. These include, for example, guidance documents, websites, correspondence, and technical memoranda. The index and source files will be supplied digitally alongside the Draft EIR.

Task 14: Planning Commission and City Council Meetings (3) This task provides a budgeted allowance for the Rincon team , including Rincon’s Principal-in-Charge and Project Manager, to attend up to three in-person public meetings with the Planning Commission and City Council.

Task 15: Accessibility Services
Rincon offers digital accessibility services to help make electronic and information technology accessible to people with disabilities. Rincon will make the Public Draft EIR (Task 8) and Final EIR (Task 11), including attached appendices, compatible with built-in Accessibility Checkers. To this end, Rincon will analyze and update the documents to pass the built -in accessibility checkers; review, assess, and report on text color contrast issues; remediate illogical reading order issues; remediate any styling issues for identification and navigation; check or apply usable bookmarks; and apply or remediate the alt text on images. Please note that this does not guarantee Section 508/WCAG compliance but does meet the requirement to attempt accessibility to the ma ximum extent possible given the undue financial and administrative burden accessibility may impose onto a public entity.

Rincon’s Digital Accessibility Manager will require approximately two minutes per page for remediation.

Deliverables
Administrative/working drafts will be provided in Microsoft Word and/or Adobe PDF format. Revised documents will be provided in Microsoft Word with edits shown in track changes. Adobe PDF documents will be provided for public draft and final documents and shared via email and through the SharePoint site as part of the final administrative record. • Draft and Final Notice of Preparation (Microsoft Word and Adobe PDF) • Scoping Meeting materials (e.g., presentation)
• Attendance (two Rincon staff members) at an in -person Scoping Meeting held by the Planning Commission
• ADEIR (Microsoft Word)
• Screen Check Draft EIR (Microsoft Word with track changes retained) • Public Draft EIR (two hard copies, Adobe PDF copy with user-friendly cross-reference hyperlinks)

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13 • Draft and Final CEQA Notices, including the NOC for the NOP submittal and the NOC, NOA, and OPR’s Summary Form for the Public Draft Program EIR submittal • Draft and Final Response to Comments (Microsoft Word) • Draft and Final MMRP (Microsoft Word and Adobe PDF)
• Screen Check Final EIR (Microsoft Word with track changes retained) • Final Program EIR (two hard copies, Adobe PDF copy with user-friendly cross-reference hyperlinks) • Draft and Final CEQA Findings and Statement of Overriding Considerations ( Microsoft Word and Adobe PDF)
• Attendance (two Rincon staff members) at up to three in-person Planning Commission and/or City Council Hearings
• Notice of Determination (Adobe PDF)
Assumptions
The above scope of work includes the following assumptions:
• A map depicting the limits of the project area will be provided at notice to proceed. • The City will finalize the preferred land use scenario prior to publication of the Notice of Preparation and preparation of the EIR Project Description.
• No changes to the Project Description will occur once preparation of the CEQA document has commenced.
• A California Historical Resources Information System records search will not be conducted. • Cultural resources and paleontological resources field surveys will not be conducted. • The project is not subject to federal oversight and compliance with Section 106 of the National Historic Preservation Act is not required.
• No project-level analysis will be included, and the analysis will be tailored to the programmatic level.
• Rincon will address two round(s) of consolidated comments from the City on each deliverable, to be provided as tracked changes in Word. Any additional revisions will be completed on a time and materials basis in accordance with our standard fee schedule (attached). • All comments from the City will be provided as a consolidated set of comments in editable electronic format (i. e., as tracked changes in MS Word). All comments will clearly indicate the requested changes. If there are multiple reviewers, the City will be responsible for reconciling conflicting comments prior to sending to Rincon.
• Addressing City comments on each deliverable will not require substantial additional, new analysis or field investigation.
• To maintain momentum in the project schedule and provide cost efficiency, we assume City comments will focus on any new content in the previous version of each deliverable, and new comments on previously submitted content will be minimal. • Rincon’s project manager will attend monthly project status meetings for the duration of the contract, assumed to be 14 months. Status meetings will be virtual and will not exceed one hour in length with no more than one hour of time for meeting preparation and writing/circulating notes from the status meeting.

EXHIBIT A
186
City of Livermore
East of Greenville Project
14 • This scope of work assumes that up to 20 comment letters containing comments on the content of the CEQA document will be received and that these letters can be responded to in a maximum of 100 professional staff hours. These assumptions are based on our prior experience with CEQA reviews for other similar types of projects. The actual level of effort required to respond will depend on the length, detail, and sophistication of the comments, in a ddition to the number of letters received. We reserve the right to reevaluate the effort level and request a scope amendment upon close of the public comment period.
• The City will be responsible for payment of the CDFW filing fee. • The City will be responsible for circulating the Draft EIR to commenting agencies and interested groups or individuals, for giving notice to all organizations and individuals who have expressed interest in receiving such notice, and for publishing CEQA notices in a local newspaper. • Costs have been allocated to tasks based upon Rincon’s proposed approach. Rincon may re - allocate costs among tasks and/or direct costs as circumstances warrant so long as the adjustments maintain the total price within its authorized amount. • Standard rates are subject to a 3.5 percent annual escalation.

Schedule
Rincon Consultants has an excellent reputation for adhering to schedules and meeting milestones.

Based on our project understanding and t he analysis required, Rincon proposes to adhere to a schedule that allows for completion of the environmental review process in approximately 10 months depending on timing of our receipt of a complete and stable project description, City review times, and number and complexity of public comments.

Key Task/Milestone Duration Total Time Elapsed
Contract Executed 1 day 1 day
Task 1: Kickoff Meeting 1 day 1 week
Task 2: NOP and Task 3: Project Description1 3 weeks 4 weeks City Review 2 weeks 6 weeks
Task 2: Final NOP and Task 3: Final Project Description 1 week 7 weeks Task 5: AB 52 and SB 18 Consultation Assistance 6 weeks from Kickoff 8 weeks NOP Scoping Period 30 days 11 weeks
Task 4: Scoping Meeting 1 day 11 weeks
Task 6: Administrative Draft EIR 12 weeks2 from NOP
publication
19 weeks
City Review 3 weeks 22 weeks
Task 7: Screen Check Draft EIR 3 weeks 25 weeks
City Review 2 weeks 27 weeks
Task 8: Public Draft EIR and Task 13: Administrative Record 2 weeks 28 weeks Task 15: Accessibility Remediation 1 week 29 weeks
Public Comment Period 45 days 35 weeks
Task 9: Responses to Comments and Administrative Final EIR, Task 10: MMRP, and Task 12: CEQA Findings, Statement of Overriding Considerations, and Resolution
4 weeks3 39 weeks
City Review 2 weeks 41 weeks

EXHIBIT A
187
City of Livermore
East of Greenville Project
15 Key Task/Milestone Duration Total Time Elapsed
Task 11: Screen Check Final EIR 2 weeks 43 weeks
City Review 1 week 44 weeks
Task 11: Public Final EIR and Task 12: Revised CEQA Findings, Statement of Overriding Considerations, and Resolution
1 week 45 weeks
Task 15: Accessibility Remediation 1 week 46 weeks
Public Hearings (3) 3 days To be determined
1 Assumes all necessary project information and buildout assumptions are provided at or before the Kickoff Meeting. 2 Assumes the VMT and Traffic Analysis is completed and provided to Rincon at least four weeks prior to Administrative Draft EIR submittal.

This also assumes that preliminary data (ADT segment volumes, vehicle mix, etc.) is provided at least 6 weeks prior to Administrative Draft EIR submittal.
3 If more than 20 letters are received, or comment letters are of a complex, technical nature that requires substantial effort to address, additional time may be required.

Please also note that this schedule is contingent on the City’s early determination of the preferred alternative, and the assumption that project details do not change following approval of the EIR Project Description.

Cost
Rincon can complete the proposed work program for a cost not to exceed $279,724.20,. We recommend including a 10 percent contingency fee only to be released upon City approval, for a total contract value of $307,696.62. A breakdown of our cost by task is summarized below. All services would be provided on a time and expense reimbursement basis and will be billed in accordance with our standard fee schedule for professional services.

Task Staff Hours Budget
Task 0: Project Management 118 $26,719.00
Task 1: Kickoff Meeting 5 $1,090.00
Task 2: NOP 9 $1,751.00
Task 3: Project Description 24 $4,483.00
Task 4: Scoping Meeting 18 $4,840.85
Task 5: AB 52 and SB 18 Consultation Assistance 11 $2,192.00 Task 6: Administrative Draft EIR 854 $158,501.00
Task 7: Screen Check Draft EIR 66 $13,075.00
Task 8: Public Draft EIR 41 $7,642.80
Task 9: Responses to Comments and Administrative Final EIR 100 $19,659.00 Task 10: Mitigation Monitoring and Reporting Program 16 $3,306.00 Task 11: Final EIR 26 $4,752.55
Task 12: CEQA Findings, Statement of Overriding Considerations, and Resolution
26 $5,045.00
Task 13: Administrative Record 23 $4,629.00
Task 14: Planning Commission and City Council Meetings (3) 54 $16,198.00 Task 15: Accessibility Services 20 $5,840.00
Subtotal 1,401 $279,724.20
Total with Contingency 10% $307,696.62

EXHIBIT A
188
City of Livermore
East of Greenville Project
16 Thank you for your consideration and for this opportunity to support your project. If you have any questions regarding this proposal, please do not hesitate to reach out.

Sincerely,
Rincon Consultants, Inc.

Aileen Mahoney
Project Manager

Abe Leider, AICP CEP
Principal
Attachments
Attachment 1 2023 Fee Schedule (Effective July 1, 2023)

EXHIBIT A
189
Rincon Consultants, Inc.

Effective July 1, 2023
Standard Fee Schedule for Environmental Sciences and Planning Services 2023 2024 2025 2026
Professional, Technical,
and Support Personnel*
July 1 –
December 31
January 1 –
December 31
January 1 –
December 31
January 1 –
December 31
Senior Principal $308 $319 $330 $342
Principal $297 $307 $318 $329
Director $297 $307 $318 $329
Senior Supervisor II $282 $292 $302 $313
Supervisor I $263 $272 $282 $291
Senior Professional II $246 $255 $264 $273
Senior Professional I $230 $238 $246 $255
Professional IV $204 $211 $218 $226
Professional III $189 $196 $203 $210
Professional II $168 $174 $180 $186
Professional I $150 $155 $160 $166
Associate III $126 $130 $135 $139
Associate II $113 $117 $121 $125
Associate I $105 $109 $113 $117
Field Technician $91 $94 $97 $101
Data Solutions Architect $189 $196 $203 $210
Senior GIS Specialist $181 $187 $194 $200
GIS/CADD Specialist II $161 $167 $173 $179
GIS/CADD Specialist I $145 $150 $155 $161
Technical Editor $142 $147 $152 $157
Project Accountant $121 $125 $129 $134
Billing Specialist $103 $107 $111 $115
Publishing Specialist $116 $120 $124 $129
Clerical $103 $107 $111 $115
* Professional classifications include environmental scientists, urban planners, biologists, geologists, marine scientists, GHG verifiers, sustainability experts, cultural resources experts, and other professionals. Expert witness services consisting of deposition s or in-court testimony are charged at the hourly rate of $400.

Reimbursable Expenses
Direct Cost Rates
Photocopies – B/W $0.25 (single-sided), $0.45 (double-sided) Photocopies – Color $1.55 (single-sided), $3.10 (double-sided) Photocopies – 11” by 17” $0.55 (B/W), $3.40 (color)
Oversized Maps $8.50/square foot
Digital Production $15/CD, $20/flash drive
Light-Duty and Passenger Vehicles* $90/day
4WD and Off-Road Vehicles* $150/day
*Current IRS mileage rate for mileage over 50 and for all miles incurred in employee-owned vehicles.

Other direct costs associated with the execution of a project, that are not included in the hourly rates above, are billed at cost plus 16%. These may include, but are not limited to, laboratory and drilling services, subcontractor services, authorized travel expenses, permit charges and filing fees, mailings and postage, performance bonds, sample handling and shipment, rental equipment, and vehicles other than covered by the above charges.

Annual Escalation. Standard rates subject to 3.5% annual escalation, on Jan 1.

Payment Terms. All fees will be billed to Client monthly and shall be due and payable upon receipt or as indicated in the contract provisions for the assignment. Invoices are delinquent if not paid within 10 days from receipt or per the contractually required payment terms.

EXHIBIT A
190
Rincon Consultants, Inc.

Effective July 1, 2023
Equipment Rate
Environmental Site Assessment
Soil Vapor Extraction Monitoring Equipment $160
Four Gas Monitor $137
Flame Ionization Detector $110
Photo Ionization Detector $82
Hand Auger Sampler $62
Water Level Indicator, DC Purge Pump $46
CAPDash $7,500
Natural Resources Field Equipment
UAS Drone $276
Spotting or Fiberoptic Scope $170
Pettersson Bat Ultrasound Detector/Recording Equipment $170 Sound Level Metering Field Package (Anemometer, Tripod and Digital Camera) $113 GPS (Submeter Accuracy) $67
Infrared Sensor Digital Camera or Computer Field Equipment $57 Scent Station $23
Laser Rangefinder/Altitude $11
Pitfall Traps, Spotlights, Anemometer, GPS Units, Sterilized Sample Jar $9 Mammal Trap, Large/Small $1.55/$0.55
Water and Marine Resources Equipment
Boat (20-foot Boston Whaler or Similar) $800
Multiparameter Sonde (Temperature, Conductivity, Turbidity, DO, pH) with GPS $170 Water Quality Equipment (DO, pH, Turbidity, Refractometer, Temperature) $62 Refractometer (Salinity) or Turbidity Meter $38
Large Block Nets $114
Minnow Trap $98
Net, Hand/Large Seine $57
Field Equipment Packages
Standard Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet, Safety Equipment, and Botanic Collecting Equipment)
$114
Remote Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet and Mifi, Delorme Satellite Beacon, 24‐Hour Safety Phone)
$144
Amphibian/Vernal Pool Field Package (Digital Camera, GPS, Thermometer, Decon Chlorine, Waders, Float Tube, Hand Net, Field Microscope)
$170
Fisheries Equipment Package (Waders, Wetsuits, Dip Nets, Seine Nets, Bubblers, Buckets) $57 Underwater and Marine Sampling Gear (Photo/Video Camera, Scuba Equipment [Tanks, BCD, Regulators, Wetsuits, etc.])
$57/diver
Marine Field Package (Personal Flotation Devices, 100-foot Reel Tapes with Stainless Carabiners, Pelican Floats, Underwater Slates, Thermometer, Refractometer, Anemometer, Various Field Guides)
$100
Insurance, Hazard, and Fees
Historic Research Fees $55
L&H Dive Insurance $57/diver
Level C Health and Safety $70/person

EXHIBIT A
191
Revised 5/1/2018 B5 – 1M E&O

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EXHIBIT B

INSURANCE REQUIREMENTS

Minimum Scope and Limits of Insurance
Consultant/Contractor shall maintain limits no less than:

1. Commercial General Liability, including operations, products, and completed operations, as applicable:
$1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury, and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability:
$1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation and Employer's Liability:

Statutory limits as required by the State of California including $1,000,000 Employers’ Liability per accident, per employee for bodily injury or disease. A waiver of subrogation is required for Workers’ Compensation insurance. If Consultant/Contractor is a sole proprietor, then they must sign “Contractor Release of Liability”.

4. Professional Liability/Errors and Omissions:
$1,000,000 per claim. Consultant/Contractor warrants that any retroactive date under this policy shall precede the effective date of this contract and, either continuous coverage will be maintained, or an extended discovery period will be exercised for a period of two years beginning at the time work under this contract is completed.

Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Livermore. The City of Livermore reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:

VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.

Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City of Livermore, its officers, officials, employees, and designated

EXHIBIT A
192
Revised 5/1/2018 B5 – 1M E&O

Page 2 ends

volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Consultant/Contractor; or automobiles owned, leased, hired or borrowed by the Consultant/Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.

2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. The additional insured coverage under the Consultant’s/Contractor’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 10 04 13. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City of Livermore before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

4. The Consultant’s/Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550

Verification of Coverage
Consultant/Contractor shall furnish certificates of insurance and endorsement(s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before work commences. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.

EXHIBIT A
193

CITY COUNCIL STAFF REPORT
ITEM NO. 5.4

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution awarding and authorizing execution of an agreement for a duration not to exceed 180 working days with Terocons Inc. in an amount not-to-exceed $760,407, for the construction of the Crosswalk Improvement Project, No. 2022-06/2021-35.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a construction contract with Terocons Inc. in an amount not-to-exceed $760,407, for a contract duration not to exceed 180 working days, for construction of the Crosswalk Improvement Project, No. 2022- 06/2021-35 in substantially similar form to the draft contract in Exhibit A of the Resolution subject to the City Attorney approval to form of the final construction contract and acceptance of insurance by the Risk Manager.

SUMMARY
The Crosswalk Improvement Project will construct safety improvements, access ramps, bulb-out extensions along with sidewalks, rectangular rapid flashing beacons, pavement striping for crosswalks, traffic signs, and all appurtenant work.

On June 20, 2023, eight bids were received for this project. Staff is preparing the construction contract package for the City Attorney’s review. The process to finalize the contract package for the City Manager’s signature and the final issuance of the executed contract by City Clerk’s office may take approximately 4 weeks.

The crosswalk improvements for Portola Ave. at Enos Way are located at Lawrence Elementary School.

To minimize any inconvenience to students, parents, and faculty it is ideal for the construction to begin in August 2023. Authorizing the City Manager to execute the final construction contract will allow this work to begin in August 2023. Otherwise, construction will start in October 2023 when school is in full session.

DISCUSSION
The Crosswalk Improvement Project will construct safety improvements at the following locations:
194
A. Crosswalk Safety Improvements 2022, Project Number 2022-06 - Portola Ave. at Enos Way. The work at this location includes construction of ADA-compliant curb ramps, sidewalk, rectangular rapid flashing beacons, yield markings, realignment of crosswalk, curb extensions, median island, thermoplastic pavement striping for crosswalks, and all appurtenant work. The rectangular rapid flashing beacons will increase driver awareness of pedestrians and increase driver compliance in yielding to pedestrians. The realignment of the crosswalk, curb extension, and median island will shorten the distance and time a pedestrian is in the roadway.

B. Crosswalk Safety Improvements 2022, Project Number 2022-06 - College Ave. at Fifth St. and College Ave. at Kingsbury Dr. The work at this location includes construction of ADA-compliant access curb ramps, installation of new rectangular rapid flashing beacons, thermoplastic pavement striping for crosswalks, and all appurtenant work. Improvements on College Ave. will improve crossing leading to two access points to the trails south of College Ave., one from Fifth St. and the other from Kingsbury Dr.

C. Concannon Blvd. at Robertson Park Rd. Crossing Enhancements, Project Number 2021-35 - Concannon Blvd. at Epson St. and Concannon Blvd. at Robertson Park Rd. The work at this location includes construction of ADA-compliant curb ramps, sidewalk, rectangular rapid flashing beacons, regular flashing beacons, curb extension, thermoplastic pavement striping for crosswalks, and all appurtenant work. Improvements on Concannon Blvd. at Robertson Park Rd. will provide better connectivity from the trail on the east side of Concannon Blvd. to Robertson Park Rd. and improvements on Concannon Blvd. at Epson St. will provide pedestrians a safer route from the residential neighborhood on the south side of Concannon Blvd. to Karl Wente Park and Sunset Elementary School on the north.

On June 20, 2023, bids for this project were received and opened with eight contractors submitting bids.

The lowest responsible, responsive bidder was Terocons Inc. The following is a list of the bids received and the Engineer’s Estimate for the project:

Contractor
Location
Bid Amount
Terocons Inc.

San Francisco, CA
$ 760,407
Sposito
Livermore, CA
$ 899,965
Redgwick Construction Co.

Oakland, CA
$ 920,544
FBD Vanguard Construction Inc.

Livermore, CA
$ 962,138
Gradetech, Inc.

San Ramon, CA
$1,046,030
Golden Bay Construction, Inc.

Hayward, CA
$1,071,995
Kerex Engineering, Inc.

Martinez, CA
$1,082,942
Ray's Electric
Oakland, CA
$1,193,391
Engineer’s Estimate

$ 842,000

In accordance with Livermore Municipal Code Section 2.68.520 Modification of Public Works Contract, the City Manager is allowed to authorize a Change Order of $50,000 or 10% of the contract price, whichever is greater.

Staff has checked the references of Terocons Inc., and found they have performed similar work for other cities in a satisfactory manner.
195

FISCAL AND ADMINISTRATIVE IMPACTS

In FY 2022-24, $1,360,000 was budgeted for the project. Approximately a 20% project contingency was included in this budget to account for design variance and fluctuating bid climate. The bid climate was favorable and there were no design phase issues. The projected project budget is approximately $1.1M:
$25K for city staff project management, $160K for design consultant services, $20K for consultant construction support service, $40K for city staff construction management, inspection and material testing, $840K for construction contract plus 10% contingency, and $15k for grant administration.

Funding for the Crosswalk Safety Improvements 2022, Project Number 2022-06 is included in the 2021- 2023 Capital Improvement Plan and the 2023-2028 Capital Improvement Plan and no additional appropriation is required. Portola Ave. at Enos Way is funded by Alameda County Transportation Commission’s Safe Routes to School Mini Grant (Fund 624) and Vehicle Registration Fee (Fund 681).

College Ave. at 5th St. and College Ave. at Kingsbury Dr. is funded by Vehicle Registration Fee (Fund 681).

Crosswalk Safety Improvements, Project 2022-06 - Budget Fund No.

Fund Name
FY 2022-2023
FY 2023-2024
Total
624
Local & Other Grant
$17,000
$84,000
$101,000
681
Vehicle Registration
Fee
$133,000
$576,000
$709,000
Total

$150,000
$660,000
$810,000

Funding for the Concannon Blvd. at Robertson Park Rd. Crossing Enhancements, Project Number 2021- 35 is included in the 2021-2023 Capital Improvement Plan and the 2023-2028 Capital Improvement Plan and no additional appropriation is required. Concannon Blvd. at Epson St. and Concannon Blvd. at Robertson Park Rd. is funded by the Alameda County Transportation Commission's 2022 Comprehensive Investment Plan Grant (Fund 624), Gas Tax – SB1 (Fund 651) and Measure BB – Local Streets and Roads (Fund 688).

Concannon Blvd. at Robertson Park Rd. Crossing Enhancements, Project 2021-35 - Budget Fund No.

Fund Name
FY 2022-2023
FY 2023-2024
Total
624
Local & Other Grant

$242,000
$242,000
651
Gas Tax-SB1

$158,000
$158,000
688
Measure BB - Local
St & Road
$150,000

$150,000
Total

$150,000
$400,000
$550,000

COMMUNITY PILLAR
1: A Safe Community that Thrives

GOAL CATEGORY
10: Work to make a safe and efficient local transportation network and address safety concerns

ATTACHMENTS

1. Location Map
196

2. Resolution

3. Exhibit A - Agreement

Prepared by: Mallika Ramachandran
Assistant City Engineer

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSTRUCTION CONTRACT WITH TEROCONS INC., FOR A CONTRACT DURATION NOT TO EXCEED 180

WORKING DAYS, FOR THE CONSTRUCTION OF THE CROSSWALK IMPROVEMENT PROJECT, NO. 2022-06/2021-35 IN AN AMOUNT NOT-TO-EXCEED $760,407 (Crosswalk Improvement Project, No. 2022-06/2021-35)
The Crosswalk Improvement Project will conduct safety improvement projects and includes the construction of Americans with Disabilities Act (ADA) access ramps, bulb- out extensions along with sidewalks, rectangular rapid flashing beacons (RRFB) system, thermoplastic pavement striping for crosswalks, traffic signs, and all appurtenant work.

Eight bids for the Crosswalk Improvement Project were received on June 20, 2023.

After a thorough review of all bid submittals by the eight bidders, Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a construction contract in substantially similar form to the draft contract in Exhibit A, subject to the City Attorney approval as to form of the final construction contract and approval as to insurance by the Risk Manager, with Terocons Inc., in an amount not-to-exceed $760,407, which has been determined to be the lowest responsible and responsive bid for the construction of the Crosswalk Improvement, Project No. 2022-06/2021-35.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby:

1. Authorizes the City Manager to execute a construction contract similar to the draft contract, attached hereto as Exhibit A, on behalf of the City of Livermore with Terocons Inc., in the amount of $760,407, here in above in accordance with the terms, specifications, and general provisions of the bid package for the project specified herein;

2. Rejects all other bids or proposals; and

3. Authorizes the City Manager to take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution, including approving minor changes to the proposed agreement.

On motion of Council Member _________________________, seconded by Council Member ________________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:
199
RESOLUTION NO. ________
ATTEST: APPROVED AS TO FORM:
_________________________ /s/ Kimberly Cilley
Marie Weber Kimberly Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Draft Construction Contract with Terocons Inc. 200
CO
NTRACT
This public works contract (“Contract”) is entered into by and between the City of Livermore, a California Municipal Corporation (“City”) and Terocons, Inc., a California corporation (“Contractor”) for work on the Crosswalk Improvement Project (“Project”).

The Parties Agree as Follows:

1. Award of Contract.

In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform work on the Project, and on _______________, 2023, as part of Resolution No. __________________, City authorized award of this Contract to Contractor for the amount of Contractor’s bid.

Contract Documents.

This Contract consists of all of the written representations and submissions made by Contractor as part of the Bid process and the following numbered and un- numbered component documents, as detailed on the table of contents of this Agreement:
a. Bidding requirements (consisting of the Notice Inviting Bids; Instructions to Bidders; Bid Proposal; Bid Schedule, Subcontractor List, N oncollusion Declaration, Bid Bond, Bidder’s Questionnaire, Payment Bond, Performance Bond, Warranty Bond);
b. General Conditions;
c. Special Conditions;
d. Division One Technical Specifications;
e. Appendix;
f. Index of Defined Terms;
g. Project Drawings and Specifications;
h. Bid Addenda, if any;
i. Change Orders, if any;
j. ALB Notice;
k. Notice to Proceed;
l. City Standard Specifications and Details;

EXHIBIT A
201
m. And the following:

Contractor’s Obligations.

Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, equipment, transportation, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

Payment.

As full and complete compensation for Contractor’s timely performance and completion of
the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor Seven Hundred Sixty Thousand Four Hundred Seven and Four Tenths Dollars ($760,407.40) (the “Contract Price”), in accordance with the payment provisions in the General Conditions.

Time for Completion.

S
ubstantial Completion
Contractor must achieve Substantial Completion, as that term is defined in the General Conditions, of the Project Work within 90 Working Days from the commencement date stated in the Notice to Proceed. It is critically important to this Project that Portola Ave. and Enos Way Crosswalk Improvement to be completed prior to August 11, 2023. (“Substantial Completion Deadline.”). For this project, the Contractor shall also incorporate 10 number of average anticipated inclement Weather Days into their bid estimate. Contractor shall be solely responsible for the extended overhead and profit for these weather days and shall not be compensated by the City in any way, reference Section 10.3 of the General Conditions and Section 013200-4.3 Contract Schedules for additional weather day information.

Final Completion
Contractor must achieve Final Completion, as that term is defined in the General Conditions, of the Project Work within 20 Working Days after the date of substantial completion. (“Final Completion Deadline.”)
Early Completion.

By signing below, Contractor expressly waives any claim for delayed early completion.

Liquidated Damages.

If Contractor fails to meet either the Substantial Completion Deadline or the Final Completion Deadline, City may assess liquidated damages according the provisions in

EXHIBIT A
202
the General Conditions of the Contract Documents in the following amounts for each day of Unexcused Delay, and the Contract Price shall be reduced accordingly.

Substantial Completion Deadline: $500 per day.

Final Completion Deadline: $500 per day.

Labor Code Compliance.

This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the California Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance.

Prevailing Wages.

This Project is su bject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. The general prevailing wage rates for each craft, classification or type of covered work are available online at http://www.dir.ca.gov/DLSR.

DIR Registration.

City will not accept a Bid Proposal from or enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work under Labor Code, Section 1725.5, subject to limited legal exceptions allowed by the Labor Code.

Workers’ Compensation Certification.

Under Labor Code, Section 1861, by signing this Contract, Contractor certifies as follows:
“I am aware of the provisions of Labor Code, Section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.” The successful bidder previous to the entering of the contract to do the said work shall take out and maintain in full force and effect worker's compensation insurance with an insurance carrier authorized to transact business in the State of California, covering the bidder's full liability for compensation to any persons employed who may be injured in the carrying out of said contract or the dependents thereof. Evidence of such worker's compensation insurance shall be furnished to the City of Livermore by certificate and waiver of subrogation in the City’s electronic insurance certificate tracking system (PINS) prior to the commencement of the work and said certificate shall contain a provision that the coverage thereunder will not be canceled until at least thirty (30) days prior written notice has been given to the City.

Notice.

EXHIBIT A
203
Any notice, billing, or payment required by the Contract Documents must be made in writing, and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, facsimile, or by email as a PDF (or comparable) file. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows:

City Contractor
Name Juan Tenorio
Address 1052 South Livermore Avenue
City/state/zip Livermore, CA 94550
Phone 925-960-4554
Fax 925-960-4505
Attention City Engineer
Email [email protected]
Copy to [email protected]

General Provisions.

The following items are repeated here as stated as part of Part 2, General Conditions, for emphasis:

Assignment and Successors.

Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s successors and permitted assigns. A consolidation or merger of Contractor or a change in ownership of 25% or more of Contractor’s capital stock constitutes an assignment by Contractor requiring the City’s written consent.

Third Party Beneficiaries.

There are no intended third party beneficiaries to this Contract except as expressly provided in the General Conditions or Special Conditions.

Governing Law and Venue.

This Contract will be governed by California law and venue will be in the Superior Court of the County in which the Project is located, and no other place.

Amendment.

No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

Integration; Severability.

This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor. If any provision of the Contract

EXHIBIT A
204
Documents, or portion of a provision, is determined to be illegal, invalid, or unenforceable, the remaining provisions of the Contract Documents will remain in full force and effect.

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 Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required under California Corporation Code, Section 313.

The parties agree to this Contract as witnessed by the signatures below:

CITY
City of Livermore, a California
Municipal Corporation

s/_____________________________

Marianna Marysheva, City Manager

Date: _________________________

Approved as to form:

______________________________
City of Livermore City Attorney

CONTRACTOR

______________________________

s/_____________________________

Name/Title [print]

Date: _________________________

s/_____________________________

Name/Title [print]

Date: _________________________

_______________________________
Contractor’s Calif. License Number(s)

Seal:

__________________________
Expiration Date(s)

EXHIBIT A
205

CITY COUNCIL STAFF REPORT
ITEM NO. 5.5

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution awarding and authorizing execution of an agreement for a duration not-to- exceed 70 working days, in an amount not-to-exceed $365,670, with Gradetech Inc. for repairing 0.8 centerline miles of three trails and constructing a new bypass segment at Robertson Park, Project 2018-20

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution:

1 .

Awarding a construction contract to Gradetech Inc., in an amount not-to-exceed $365,670, for construction of the Multi-Use Trail Repairs - 2020 Project 2018-20, and authorizing the City Manager to sign the agreement as Exhibit A to the resolution; and 2 .

Rejecting all other bids or proposals; and
3 .

Authorizing the City Manager to take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution including approving minor changes to the proposed agreement.

SUMMARY
The 2020 Multi-Use Trail Repair, Project 2018-20, will repair and rehabilitate 0.80 centerline miles of three damaged trail sections and make minor alterations to improve safety. This project will also construct a new trail segment at Robertson Park to bypass a portion of trail that was damaged by the 2022-23 winter storms. Five bids were received for the project on June 13, 2023. Gradetech Inc. submitted a bid of $365,670 and is the lowest responsible and responsive bidder.

DISCUSSION
The 2020 Multi-Use Trail Repair Project will restore the pavement on three trail segments (see Location Map, Attachment 1). These trail segments were selected based on their deteriorating condition and potential risks they posed to pedestrians and cyclists due to tree roots. The initial assessment of these trail segments was recorded in a study conducted by AMS Consulting in April 2022. The rehabilitation process will involve root pruning, base repairs, and application of a 1.5 to 2-inch layer of asphalt 206
concrete.

Additionally, this project will include the construction a new trail segment at Robertson Park. Severe damage and debris accumulation occurred during the winter storms of 2022-23. This was the third major damage incident within the past five years at this location. The existing trail configuration is next to the creek, thus prone to storm damage. To reduce the burden of repairs, this project includes the creation of a new bypass trail, connecting the Arroyo Mocho Trail through this area away from the creek.

The City will receive reimbursement for this work with a grant from the Transportation Development Act (TDA).

Staff advertised the project on May 23, 2023, and opened bids June 13, 2023. The City received five bids for the project. The lowest responsible and responsive bid was received from Gradetech Inc. for $365,670. Gradetech Inc. is based in Castro Valley and has previously worked for the City on the Decorative Wall Replacement Project. Gradetech's workmanship and performance was satisfactory.

The following is a list of bids received and the Engineer's Estimate for the project:

2020 Multi-Use Trail Repair Project, Project 2018-20 Bid Results Contractor
Location
Bid Amount
Gradetech Inc.

Castro Valley
$365,670
Terocons
San Francisco
$374,400
Marshall Brothers
Livermore
$496,391
Granite Rock
San Jose
$559,127
O’Grady Paving
Mountain View
$594,986
Engineer's Estimate

$436,879

In accordance with Livermore Municipal Code, Section 2.68.560B the City Manager can authorize change orders up to a cumulative amount of $50,000.

FISCAL AND ADMINISTRATIVE IMPACTS

The construction contract award amount is $365,670. Funding for this agreement, change orders, inspections, construction management, material testing and other project costs are included in the project budget for the Multi-Use Trail Repairs -2020 Project 2018-20 in the Fiscal Year 2023-2028 Capital Improvement Plan and no additional funding is needed. The project is funded with TDA Grant (Fund 674) and Measure BB (Fund 688).

COMMUNITY PILLAR
1: A Safe Community That Thrives

GOAL
10: Work to maintain a safe and efficient local transportation network and address safety concerns

GUIDING DOCUMENT
Active Transportation Plan

ATTACHMENTS
207

1. Location Map

2. Resolution

3. Exhibit A - Agreement

Prepared by: Saurabh Nijhawan
Associate Engineer

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AWARDING A CONSTRUCTION CONTRACT WITH
GRADETECH INC., FOR A CONTRACT DURATION NOT TO EXCEED 70

WORKING DAYS, FOR CONSTRUCTION OF THE MULI-USE TRAIL REPAIRS - 2020, PROJECT NO. 2018-20, IN AN AMOUNT NOT-TO-EXCEED $365,670 (Multi-Use Trail Repairs - 2020, Project 2018-20)
The City of Livermore (City) advertised on May 23, 2023, and opened five bids on June 13, 2023, for the construction of the Multi-Use Trail Repairs – 2020 Project 2018-20 ("Project").

The Project involves repairing 0.80 centerline miles of three trail segments and constructing a new bypass segment at Robertson Park.

City staff recommends awarding the Project to Gradetech Inc., the lowest responsible and responsive bidder for the Project.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby:

1. Awards a construction contract to Gradetech Inc., in an amount not-to-exceed $365,670, for construction of the Multi-Use Trail Repairs - 2020 Project 2018-20, and authorizes the City Manager to execute the agreement, attached hereto as Exhibit A and incorporated by this reference;

2. Rejects all other bids or proposals; and

On motion of Council Member ______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_________________________ /s/ Molly O’Toole
Marie Weber Molly O’Toole
City Clerk Deputy City Attorney
Exhibit A- Construction Contract with Gradetech Inc.
210

Page 1 of 6 ends

211

Page 2 of 6 ends

212

Page 3 of 6 ends

213

Page 4 of 6 ends

214

Page 5 of 6 ends

215

Page 6 of 6 ends

216

CITY COUNCIL STAFF REPORT
ITEM NO. 5.6

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing execution of a two-year agreement with Interwest Consulting Group to provide planning technical services in an amount not-to-exceed $326,400.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute an agreement with Interwest Consulting Group to provide planning technical services for the period of July 24, 2023, through July 24, 2025, in an amount not-to-exceed $326,400.

SUMMARY
The Planning Division continues to manage several large scale, multi-year programs including the General Plan Update and Development Code Update. The City has also seen an increase in private development applications and expects that trend to continue for the next several years, particularly in the Isabel Neighborhood Specific Plan area. The frequency and volume of in-person inquiries for land use and zoning information at the Permit Center's public counter remains high. Electronic inquiries via e-mail, phone, and through the city's website are increasing as these channels are more convenient for the general public.

This agreement will enable Interwest Consulting Group (Consultant) to provide full-time technical planning services in-person at the public counter and respond to electronic inquiries. Staff anticipates the Consultant will also process minor entitlement applications for signs, accessory structures and residential construction projects, and non-residential additions.

Supplementing staffing resources in the Planning Division for a one-year period with an option to extend for an additional year will facilitate progress on the City's high-profile programs and complex projects and enable the Division to continue providing high-quality customer service and meet required timelines for processing of private development applications.

DISCUSSION
217
City staff continues to implement significant programs to update the City's General Plan and Development Code. The Development Code Update will respond to State housing legislation and include objective development standards. Other projects include funding and design coordination for extending sewer service into the South Livermore Valley, managing the short-term rental program, and processing an annexation and development project for land within the City's Urban Growth Boundary near the Oaks Business Park. In addition, downtown project implementation, responding to Alameda County referrals, and participation in regional planning efforts with the Association of Bay Area Governments/Metropolitan Transportation Commission continue to be priorities.

At the same time, the Planning Division continues to experience significant development interest from property owners in the Isabel Neighborhood Specific Plan (INSP) area. The City Council has already approved three applications for property in the INSP and have three more applications currently in review. Staff anticipates additional applications for property in the INSP area in the coming one to two years. Applications to redevelop the mixed-use sites at Rincon Avenue and Pine Street and Pacific Avenue (former Nob Hill site) have also been submitted and require staff time to process.

The proposed Consultant will provide permit technician services for the Planning Division to supplement ongoing staffing at the public counter and via electronic channels until funding for additional staffing is available in Fiscal Year 2025-26. The planning services proposed under the Agreement will enable the Planning Division staff to focus internal efforts on priority projects and maintain appropriate levels of customer service in response to the high volume of private project applications the City has been receiving and expects to continue to receive over the next 24 months. This Agreement covers up to $326,400 through July 24, 2025.

FISCAL AND ADMINISTRATIVE IMPACTS

The term of the agreement is from July 24, 2023 to July 24, 2025, in an amount not-to-exceed $326,400.

The Planning Division’s budget includes sufficient funds to cover consultant contract costs for the next two fiscal years (2023-24 and 2024-25); therefore, no additional appropriation is necessary. Utilization of city staff time will be necessary to administer the consultant agreement and provide supervisory oversight of the Consultant's day-to-day performance.

COMMUNITY PILLAR
1: A Safe Community that Thrives

GOAL
6: Provide efficient and effective permit processing services

GUIDING DOCUMENTS
General Plan and Development Code

ATTACHMENTS

1. Resolution

2. Exhibit A - Interwest Consulting Group Professional Services Agreement

218
Prepared by: Steve Stewart
Acting Assistant Community
Development Director

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH INTERWEST CONSULTING GROUP IN AN AMOUNT NOT-TO-EXCEED $326,400 TO PROVIDE

TECHNICAL PLANNING SERVICES
The Planning Division in the Community Development Department requires a consultant to provide permit technician services at the public counter and via electronic channels, in addition to processing minor entitlement applications. The planning services proposed under the Agreement will enable the Planning Division staff to focus internal efforts on priority projects and maintain appropriate levels of customer service.

The proposed agreement with Interwest Consulting Group allows for services to commence on July 24, 2023, and terminate upon completion of services, or on July 24, 2025, whichever occurs first.

Authorization to execute a professional services agreement is an administrative action, which does not qualify as a project under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378. Therefore, no environmental review is required.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby authorizes the City Manager to execute the Agreement with Interwest Consulting Group in an amount not-to-exceed $326,400, for technical planning services.

On motion of Council Member __________________________, seconded by Council Member __________________, the foregoing Resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Kimberly Cilley
Marie Weber Kimberly Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Interwest Consulting Group Professional Services Agreement 220
Professional Services Agreement Page 1
Rev. 09.2021

PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of , 20 , by and between the City of Livermore (“City”), a municipal corporation, and Interwest Consulting Group (“Consultant”), A California Corporation.

RECITALS
Ci
ty requires professional services to provide planning technical services at the public counter and via telephone and e- mail, and assist with routine entitlement applications.

REEMENT
NO
W, THEREFORE, City and Consultant hereby agree that the aforementione d recitals are true and correct and further agree as follows:

1. Retention as Consultant. C ity hereby retains Consultant, and Consultant hereby accepts such engagement, to perform the services described in Section 3 below subject to the terms and conditions in this Agreement.

2. Relationship of Parties – Independent Contractors . The relationship of the parties shall be that of independent contractors. Consultant and its employees are not City office rs or employees. Consultant is responsible for the supervision and management of its employees, including any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the delivery of the services contemplated by this Agreement.

3. Description of Services. C onsultant shall provide the following professional services as more particularly set forth in Exhibit "A" (collectively “the Services”):

Pl
anning technical services at the public counter and via telephone and e-mail, and assist with routine entitlement applications. Drafting conditions of approval, agreements, and staff reports to City Council which shall be finalized by City staff. May attend meetings between staff, developers, planners and others.

T
hese services shall be ordered as needed pursuant to individual written project orders issued by the City and approved by the Planning Manager. Project assignments will include a scope of work and budget to provide standards to determine when City will deem that project complete. City reserves the right not to order any services or expend any moneys pursuant to this Agreement.

DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
221
Professional Services Agreement Page 2
Rev. 09.2021

4. Consultant’s Responsibilities. Consultant shall:
(
a) Diligently perform the Services in a manner commensurate with industry, professional, and community standards;
(b) P
rovide the resources necessary to complete the Services in a timely manner;
(
c) Obtain a business license from the City of Livermore, and keep it in effect for the term of this Agreement;
(d
) Obtain and keep in effect all necessary licenses , permits, qualifications, insurance, and approvals legally and professionally required for Consultant to practice its profession and to provide the Services;
(e) Co
mply with all laws in effect that are related to Consultant and the Services;
(f
) Coordinate the Services with Steve Stewart, Planning Manager (“Project Manager”), or such other person designated as the Project Manager by City; (
g) Be available to the Project Manager, and other parties referred to Consultant by the Project Manager, to answer questions or inquiries related to the Services;
(
h) Only invoice City for the Services rendered. Consultant’s invoice shall be in writing and describe the Services performed for the payment requested. Consultant shall not submit an invoice to City more frequently than once a calendar month; (i) Keep
and maintain invoices and records related to the Services in an organized manner. At a minimum, the records must be kept for at least 3 years from the date of final payment to Consultant and must include time sheets, work progress reports, and other documentation to adequately explain all the Services invoiced for payment.

Consultant shall make the i nvoices and records immediately available to City upon delivery of a written request to examine, audit, or copy them at City’s place of business during normal business hours. Consultant shall give City 30 calendar-days’ written notice prior to destroying the invoices and records and allow City an opportunity to take possession. If City wants them, Consultant and City shall coordinate their delivery to City in the most efficient manner possible;
(j)
Prepare and submit a written report to the Project Manager, within 3 business-days of the Project Manager’s written request, that identifies the Services completed and in progress, the charges incurred to date, and the anticipated cost to complete the remaining Services;
(
k) Consultant shall correct, at its own expense, all errors in the S ervices.

Should Consultant fail to make such correction in a timely manner, City may make the correction and charge the cost thereof to Consultant;
DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
222
Professional Services Agreement Page 3
Rev. 09.2021
(l) If applicable, Consultant shall ensure that all work for compensation is provided in compliance with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, worker’s compensation and prevailing wages. If applicable, Consultant shall comply with all prevailing wage laws, such as sections 1773, 1773.8, 1775, 1776, 1777.5, 1777.6, and 1813 of the California Labor Code and any other applicable wage and hour law. If any violation of prevailing wage law associated with this Agreement is deemed to have occurred by any court or administrative authority, Consultant shall forfeit to the City, as a penalty, the sum of fifty dollars ($50.00) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the applicable prevailing rates for any work done to accomplish the purposes of this Agreement; and,

(m) Consultant’s services provided pursuant to this Agreement shall comply with the Americans with Disabilities Act (A DA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA.

5. C
ompensation and Payment .

(a) The total compensation payable by City to Consultant for the Services SHALL NOT EXCEED the sum of $326,400 ( "not-to-exceed amount"). City shall compensate Consultant for the Services rendered at the hourly rates, task amounts or travel expenses set forth in Exhibit “A” up to the not -to-exceed amount. Except as provided in the body of this Agreement, the hourly rates, task amounts or travel expenses are intended to be Consultant’s only compensation for the Services and is inclusive of all costs of labor, licensing, permitting, overhead and administrative costs , and any-and-all other costs, expenses, and charges incurred by Consultant, its agents, and employees to provide the Services.

(b) City shall pay Consultant no later than 30 days after City receives a written invoice from Consultant and verifies the Services were performed for the payment requested.

6. T
erm . The term of this Agreement commences on July 10, 2023, and terminates upon the completion of the Services or July 10, 2025, whichever occurs first.

7. T
ermination by City . City may terminate any portion or all of the Services by giving Consultant at least 30 calendar-days written notice. Upon receipt of a termination notice, Consultant shall immediately stop all work in progress on the S ervices except where necessary to preserve the benefit of the work, and then assemble the work on the Services for delivery to City on the termination date. All compensation for Services performed prior to the termination date shall be payable to Consultant in accordance with Section 5.

8. O wnership of Documents . All drawings, designs, data, photographs, reports and other items prepared or obtained by Consultant in the performance of the Services are City’s property and Consultant shall deliver them to City upon demand.

9. C opyright and Right of Use . All items created by Consultant for City under this Agreement are works made for hire, and Consultant shall give City the copyright and all DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
223
Professional Services Agreement Page 4
Rev. 09.2021
intellectual property rights to all items developed, prepared, and delivered as part of the Services. Consultant agrees that all aspects of the Services and items created thereby will be original works of creation and will not use, in whole or in part, any work created by any other party, except when expressly disc losed by Consultant to City and Consultant obtains a license to such items for the benefit of City. All licenses must be perpetual, world-wide, non-exclusive, and royalty free sufficient in scope to permit City’s full use and enjoyment of its ownership rights in the items created by the Services. For the avoidance of doubt, nothing in this Agreement shall be understood to grant City rights to pre-existing intellectual property of Consultant, including Consultant software and licensed software, or to any improvements thereto. Consultant shall have no liability arising from the use of any items for any purposes or on any project other than that for which it was produced

10. C
onfidentiality . Consultant shall not disclose any confidential or proprietary information received from City to anyone except Consultant’s employees who require access to the information to perform the S ervices. This obligation shall survive termination and remain in full force and effect until the information, and any copies thereof, are destroyed or returned to City.

11. D
efense, Indemnity, and Hold Harmless. To the fullest extent permitted by law, Consultant shall hold harmless, indemnify, and defend with counsel selected by the City and from Consultant's insurance carrier’s panel counsel or otherwise acceptable to the City, the City and its elected and appointed officials, officers, directors, employees, agents and designated volunteers from and against any and all third party liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature to the extent arising out of or in connection with Consultant’s performance of the services contemplated by this Agreement, or in connection with Consultant’s failure to comply with any of its obligations contained in this Agreement, except for such Liability caused by the sole or active negligence or willful misconduct of City . Consultant’s obligations to hold harmless, indemnify, and defend shall not be excused because of Consultant’s inability to evaluate Liability or because Consultant evaluates Liability and determines that Consultant is not liable to the claimant. These obligations are independent of, and shall not in any way be limited by, the minimum insurance obligations contained in this Agreement. These obligations shall survive the completion or termination of this Agreement. Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. Except for cumis counsel provided to the City and except for the City's own defense counsel, Consultant shall control the defense and settlement of any action for which indemnification is sought, provided that it shall not enter into any settlement that requires an admission of wrongdoing by any indemnitee without that indemnitee's approval.

Consultant's obligations under this Agreement are contingent upon timely receipt of notice of the claim for which indemnification is sought , such that defense of the claim is not prejudiced, and the reasonable assistance of the indemnitee in connection with the defense of the claim.

(a
) Modification for Construction Contracts. To the extent this Agreement is a “construction contract” covered by California Civil Code section 2782, then Consultant’s duty to indemnify shall not apply in a manner prohibited by California Civil Code section 2782.

DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
224
Professional Services Agreement Page 5
Rev. 09.2021
(b) Modification for Design Professional Services. To the extent this Agreement is for “design professional services” defined in California Civil Code section 2782.8, then Consultant’s duties to defend and indemnify shall only apply to the extent provided for in California Civil Code s ection 2782.8(a), unless section 2782.8(a) is not applicable for one of the reasons set forth in 2782.8(e).

12. I nsurance . Consultant shall procure and maintain insurance during the term of this Agreement in the amounts and under the terms set forth in Exhibit “B” against claims that may arise from or in connection with this Agreement and performance of the Services.

Upon reasonable written notice, Consultant shall comply with any changes in the amounts and terms of insurance as may be required from time-to-time by City’s Risk Manager.

13. A
cceptance of Final Payment. Consultant’s acceptance of final pay ment will release City from any and all claims and liabilities for compensation under this Agreement.

14. A
cceptance of Work. City’s acceptance of, or payment to Consultant for, the Services does not release Consultant from its responsibility for the accuracy , completeness, or competency of the Services, nor do the actions constitute an assumption of Consultant’s responsibility or liability by City for any defect or error in the Services.

15. C
onflict of Interest. Consultant represents that no City employee or official has a financial interest in Consultant. Consultant shall not offer, encourage, or accept any financial interest in any part of Consultant's business by or from a City employee or official during the term of this Agreement or as a result of being awarded this Agreement. If any of the Services are paid by reimbursement from an agreement between City and a private party, Consultant represents that it has not performed any work for that private party during the 12-month period prior to the execution of this Agreement , and that it shall not negotiate, offer or accept any contract for services from that party during the term of this Agreement.

16. E
conomic Disclosure . Consultant shall comply with City’s local conflict of interest code and the Political Reform Act, and prepare and file an economic disclosure statement if the S ervices involve making, or participation in making, decisions which may have a material effect on the Consultants’ financial interest. While it is Consultant’s sole responsibility to evaluate its conflicts of interest, the Consultant nevertheless agrees to prepare and file an economic disclosure statement if requested by City.

17. No
n -Exclusive Agreement. This is a non- exclusive agreement. City reserves the right to provide, and to retain other consultants to provide, services that are the same or similar to the Services described in this Agreement.

18. N
o Assignment . Consultant shall not assign or subcontract any of the Services without City’s prior written consent which shall not be unreasonably delayed or withheld.

For the purposes of this section, a change of fifty -percent or more in the ownership or control of Consultant constitutes an assignment.

DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
225
Professional Services Agreement Page 6
Rev. 09.2021

20. C
onstruction of Language . T he terms and conditions in this Agreement have been arrived at through negotiation and each party had a full and fair opportunity to review and revise this Agreement with legal counsel. Any ambiguity in this Agreement will not be resolved against either party as the drafting party. In the event of an inconsistency or conflict between the language in the body of the Agreement and an attachment hereto, the language in the body of the Agreement controls.

21. E
ntire Agreement; Modification . T his Agreement supersedes all other agreements, whether oral or written, between the parties with respect to the Services.

22. N
otice . Notices under this Agreement must be delivered to the addresses below by deposit in the United States mail or by overnight delivery service, with postage prepaid and delivery confirmation:

TO
CITY: Attention: Steve Stewart
City of Livermore
1052 S Livermore Avenue
Livermore, California 94550

TO CONSULTANT: Attention: Richard Smeaton, AICP
Interwest Consulting Group
39355 California Street, Suite 200
Fremont, CA 94538

23. W
aiver . Failure to insist upon the strict perf ormance of any term or conditions in this Agreement, no matter how long the failure continues, is not a waiver of the term or condition and does not bar the right to subsequently demand strict performance. To be effective, a waiver must be in writing and signed by the non-breaching party.

24. S
everability . If a court of competent jurisdiction determines a provision in this Agreement is invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired in any way.

25. S
urvival . The terms, conditions, and obligations in Sections 8, 9, 10, and 11 shall survive the completion or termination of this Agreement.

26. E lectronic Signatures . By signing this document, you are agreeing that you have reviewed this disclosure information and consent to transact business using electronic DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
226
Professional Services Agreement Page 7
Rev. 09.2021
communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.

27. C
ounterparts . This Agreement may be executed and delivered in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email, or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals and shall be valid and effective for all purposes.

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Signatures and Attachment List on the Next Page
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EXHIBIT A
227
Professional Services Agreement Page 7
Rev. 09.2021
In concurrence and witness whereof, and in recognition of the mutual consideration prov
ided therefore, the parties have executed this Agreement, effective on the date first written above.

Dated
:
_________
__________________
Dated
:
_________
___________________
CONSULTANT:
___________________________
By: Paul Meschino
Title: President of Operations
CITY OF LIVERMORE:
___________________________
Marianna Marysheva
City Manager
APPROVED AS TO FORM:
___________________________
Assistant/City Attorney
APPROVED AS TO INSURANCE:
_______________________ Risk
M
anager/Analyst
Attachments:

Exh
ibit A – Scope of Work
Exhibit B – Insurance Requirements
DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C 7/13/2023 | 3:17 PM PDT

EXHIBIT A
228

EXHIBIT A

June 2, 2023

Mr. Steve Stewart
Planning Manager
City of Livermore, Community Development Department
1052 S. Livermore Avenue
Livermore, CA. 94550

Subject: Scope of Work for Planning Assistance

Dear Mr. Stewart,
Interwest Consulting Group (Interwest) appreciates the opportunity to submit this scope of work to assist the City of Livermore with On-Call Planning Assistance.

Interwest Consulting Group (Interwest) appreciates the opportunity to submit this scope of work to the City of Livermore. Our understanding of the work that the City currently interested in contracting for a planning tech that would be assisting at the planning counter and assisting with other planning projects. This would be full-time for 40 hours a week for one-year and a possible one-year extension.

Our Project Manager Richard Smeaton, AICP, has provided professional planning services for more than 25 years and brings a wealth of experience in all aspects of project management, entitlement, urban planning, zoning, architecture, and community development. Contact information for Richard is provided below:

Richard Smeaton, AICP
Project Manager | Primary Contact
408.430.2203 | [email protected]
Interwest is proposing to have Emily LaDue to fill the role of Planning Tech for the City.

A copy of Rick’s and Emily’s resumes are attached to this scope of work.

As President of Operations of Interwest Consulting Group, I am authorized to sign any agreements that may result from this proposal. Acceptance of the terms and conditions is subject to review by Interwest’s legal team.

Should any questions arise during the proposal review process, please do not hesitate to reach out to Richard Smeaton whose contact information is provided above. We appreciate the opportunity to present this proposal to the City of Livermore and look forward to serving the City.

Respectfully Submitted,

Paul Meschino
President of Operations
DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
229
City of Livermore
Interwest Consulting Group

Scope of Services

 Assist the public and project applicants at the planning counter.  Process various types of land use entitlement applications as needed through the City’s review process.
 Prepare recommendations for action by City staff, Planning Commission and / or City Council.  Coordinate interdepartmental discretionary review of entitlement applications.  Review applications and proposed projects and prepare documents as needed for compliance with the California Environmental Quality Act (CEQA).
 Assist the City in conducting planning related research and studies.  Process General Plan Amendments and Zoning Code Amendments as needed.  Attend meetings of the City Council, Planning Commission, City staff, public officials, community leaders, developers, contractors and the general public as directed.  Complete Planning reviews of building permits and tract maps.  Conduct inspections for approved planning projects and monitor and evaluate implementation of conditions of approval as needed.
 Update planning regulations to meet current State law Requirements.  Other planning-related duties as assigned by the Planning Director or their designee.

The majority of the work in this scope will be performed on -site. There is the potential, at the City’s discretion, for work to be conducted remotely.

The City of Livermore will be responsible for the costs of any printing , public notice expenses , or other physical materials that need to be produced that are required for the processing of public notices, applications, or public meetings.

Personnel
Richard Smeaton will serve as the Project Manager, primary point of contract for questions about the contract. Emily LaDue will be the main staff responsible for ensuring the completion of the work on-site. If needed, additional staff may be requested by the city on an as-needed basis.

Compensation / Payment Schedule
The fee for the services as outlined in this Scope of Work would be $160,000 for the first year and $166,400 for the optional second year. This anticipates 14-days of holidays and PTO.

The rates displayed in the fee schedule below reflect Interwest’s current fees. Beginning on the 1st anniversary of the Effective Date of the Agreement and annually thereafter on January 1st, the hourly rates listed below shall be automatically increased based upon the annual increase in the Department of Labor, Bureau of Labor Statistics or successor thereof, Consumer Price Index (United States City Average, All Items (CPI-U), Not Seasonally adjusted, All Urban Consumers, referred to herein as the “CPI”). Such increase shall DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
230
not exceed 4% per annum. The increase will become effective upon publication of the applicable CPI data.

If the index decreases, the rates listed shall remain unchanged.

Classification Hourly Billing Rate
Planning Services
Community Development Director .......................................................................................................... $ 200 Planning Manager ........................................................................................................................................... 185 Principal Planner ............................................................................................................................................. 170 Senior Planner ................................................................................................................................................ 155 Associate Planner ............................................................................................................................................ 125 Assistant Planner ............................................................................................................................................. 100 Planning Tech .................................................................................................................................................... 80

Our invoices shall reference the project title, entitlement project or tracking number, and list charges by task, worker classification hours, billing rate, and totals.

DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
231
Revised 5/1/2018 B16 – 2M E&O

Page 1 ends

EXHIBIT B

INSURANCE REQUIREMENTS
Minimum Scope and Limits of Insurance
Consultant/Contractor shall maintain limits no less than:

1. Commercial General Liability, including operations, products, and completed operations, as applicable:
$2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal injury, and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability:
$1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation and Employer's Liability:

Statutory limits as required by the State of California including $1,000,000 Employers’ Liability per accident, per employee for bodily injury or disease.

A waiver of subrogation is required for Workers’ Compensation insurance.

If Consultant/Contractor is a sole proprietor, then they must sign “Contractor Release of Liability.”

4. Professional Liability/ Cyber Liability/Errors and Omissions:
$2,000,000 per claim. Consultant/Contractor warrants that any retroactive date under this policy shall precede the effective date of this contract and, either continuous coverage will be maintained, or an extended discovery period will be exercised for a period of two years beginning at the time work under this contract is completed.

Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Livermore. The City of Livermore reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:

VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.

Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City of Livermore, its officers, officials, employees, and designated DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
232
Revised 5/1/2018 B16 – 2M E&O

Page 2 ends

2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Except with respect to Worker's Comensation coverage The additional insured coverage under the Consultant’s/Contractor’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 10 04 13.

Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of the City of Livermore before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

4. The Consultant’s/Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550 Verification of Coverage
Consultant/Contractor shall furnish certificates of insurance and endorsement(s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before work commences. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.

DocuSign Envelope ID: A7CE9F0E-2591-4D4E-8BAE-C3FE26A2CE0C

EXHIBIT A
233

CITY COUNCIL STAFF REPORT
ITEM NO. 5.7

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing execution of a five-year license agreement with Trilateral LLC to allow the public to park in the parking lot of the former Bank of the West building at 2287 Second Street.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a license agreement with Trilateral LLC to allow the public to park in the parking lot of the former Bank of the West building located at 2287 Second Street.

SUMMARY
Trilateral LLC is the new owner of the property at 2287 Second Street which contains the former Bank of the West building and a parking lot with 27 spaces. This license agreement will allow the public to use this parking lot. The City will pay Trilateral LLC $100 per month for each parking space for a total of $2,700 per month. This agreement begins on August 1, 2023, and will terminate after five years on July 31, 2028, unless extended by both parties. Both parties can terminate at any time with 60 days written notice.

DISCUSSION
On January 30, 2018, the City Council approved the downtown core development plan and directed staff to maintain the existing parking supply during all phases of downtown development. This lease agreement with Trilateral LLC will provide additional public parking during major downtown development activities such as the construction of the L Street Garage, the expansion of Blacksmith Square, and construction of Eden Housing. These development activities will temporarily displace parking. The lease agreement with Trilateral LLC will provide 27 public parking spaces. Attachment 1 shows the location of the Trilateral LLC property. These parking spaces are south of First Street in an area that currently has limited public parking. The I Street Garage is now open north of the movie theater; however, this location is further from the businesses south of First Street.

On March 13, 2023, the City Council considered an earlier version of the license agreement that included 234
the City paying to expand the parking lot from 27 to 50 spaces. The City Council did not approve that agreement and provided direction to remove terms requiring the City to expand the parking lot. These terms have been removed from the agreement. The parking lot will be used by the public in its current condition with only a couple of Public Parking signs to be installed by the City's Maintenance Division.

The City will pay $100 per month per space for a total of $2,700 per month for the 27 spaces. Payments will begin in August 2023 and extend for five years through July 2028. If agreed by both parties, the agreement can be extended. With 60 days written notice, the agreement can also be terminated by either party. The City will maintain the parking lot and Trilateral LLC will be responsible for the maintenance of the landscaping and lighting.

ENVIRONMENTAL DETERMINATION

Entering into the license agreement is not a “project” as defined in CEQA Guidelines Section 15378 since it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. However, even if it were considered a "project" it would be exempt from CEQA under Guidelines Section 15301 (Existing Facilities) in that any improvements permitted under the license agreement would constitute a minor alteration of an existing facility involving negligible or no expansion of existing or former use.

FISCAL AND ADMINISTRATIVE IMPACTS
Monthly payments for this lease agreement will be $2,700 per month. Costs associated with the parking lease agreement are included in the budget for Downtown Surface Parking Project 2021-20 in the 2023- 2028 Capital Improvement Plan. The project is funded with General Funds (Fund 001) and Parking in Lieu Fees (Fund 335). The City will maintain the parking lot during the term of the lease, with costs funded
from the operating budget with Facilities Rehabilitation Program Fees (Fund 740).

COMMUNITY PILLAR
4: Inclusive & Inviting Spaces & Places

GOAL
3: Continue to implement the Downtown Specific Plan

GUIDING DOCUMENT
Downtown Specific Plan

ATTACHMENTS

1. Location Map

2. Resolution

3. Exhibit A - License Agreement

Prepared by: Joel Waxdeck
Acting City Engineer

235
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
236
This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. The City of Livermore is not responsible for misuse or errors or omissions on this map. All information should be confirmed. 2287 Second Street Site Map
823
Information Technologies, GIS Division, City of Livermore 137.2
Legend
1:

NAD_1983_2011_StatePlane_California_III_FIPS_0403_Ft_US Feet0 137.268.60 Notes
2/10/2023Date Printed:

City Limits
AddressPt (0-1250)
No
Yes
Street Names (0-2500)
Golf Labels
Creeks
Public Facilities 0-4500)
Park Names (0-4500)
School Names (0-4500)
Parcels
ATTACHMENT 1
237
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A LICENSE

AGREEMENT WITH TRILATERAL LLC TO ALLOW THE PUBLIC TO PARK IN THE

PARKING LOT OF THE FORMER BANK OF THE WEST BUILDING LOCATED AT 2287 SECOND STREET
Trilateral LLC is the property owner of real property, located at 2287 Second Street, which contains the former Bank of the West building and a parking lot with 27 spaces. Pursuant to the terms of a license agreement between Trilateral LLC and the City of Livermore (“City”), attached hereto as Exhibit A, Trilateral LLC will allow the public to use this parking lot. The City will pay Trilateral LLC $100 per month for each space in the parking lot for a total of $2,700 per month. The license agreement commences on August 1, 2023, and will terminate after five years, on July 31, 2028, unless extended in writing by both parties.

Entering into the license agreement is not a “project” under CEQA Guidelines Section 15378 since it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Even if it were considered a “project” under CEQA, it would be exempt under Guidelines Section 15301 (Existing Facilities) in that any improvements permitted under the license agreement would constitute a minor alteration of an existing facility involving negligible or no expansion of existing or former use.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that entering into the license agreement is not a “project” as defined in CEQA Guidelines Section 15378. Alternatively, if it were considered a “project” under CEQA, it would be exempt under Guidelines Section 15301 (Existing Facilities).

NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Livermore hereby adopts a resolution authorizing the City Manager to execute a license agreement with Trilateral LLC, attached hereto as Exhibit A, to allow the public to park in the parking lot of the former Bank of the West building located at 2287 Second Street.

On motion of Council Member _______________________, seconded by Council Member _______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:
238
RESOLUTION NO. ________
ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Kimberly Cilley
Marie Weber Kimberly Cilley
City Clerk Senior Assistant City Attorney
Exhibit A – Trilateral LLC License Agreement
239
MLT(2287 Second St_City of Livermore_AG_041921)lc Page 1

LICENSE AGREEMENT
(Parking)
T his License Agreement (" Agreement") is dated, 2023, for reference purposes only, and is made by and between Trilateral LLC (“Licensor”) and the City of Livermore ("Licensee").

RE
CITALS
A. L
icensor is the owner of certain rea l property in the City o f Livermore, California (“Trilateral Property”) commonly known as 2287 Second Street, Livermore, California.

The Trilateral Property is improved with an approximate 7,676 square foot bank building, a
drive t hrough structure, and parking areas. The Trilateral Property is i mproved with twenty-seven (27) paved parking spaces.

B
. Licensee desires to obtain an exclusive license from Licensor for the use of the twenty - seven (27) paved parking spaces on the Trilateral Property, and Licensor is willing to grant a license to Licensee, subject to the terms and conditions of this Agreement.

C
. These Recitals shall be incorporated into and made a part of this Agreement.

REEMENT
N
OW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other good and valuable consideration, the receipt of which and sufficiency of which is hereby acknowledged, Licensor and Licensee hereby agree as follows:

1. Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a license to use the twenty-seven (27) paved parking spaces for public parking on the Trilateral Property (“Trilateral Parking Area”) as shown on the diagram attached hereto and incorporated by reference as Exhibit A.

2. T
erm of License Agreement. Except as otherwise provided herein, the term of the License ("Term") shall commence on August 1, 2023, and shall terminate on July 31, 2028. Either Licensee or Licensor can terminate this agreement with a 60-day written notice to the other party at the addresses set forth in Section 16 of this Agreement. If Licensor and Licensee agree to extend the Term of this Agreement (without any obligation to do so), any such extension shall be in writing and signed by Licensor and Licensee in order to be effective.

3. M
onthly Payments. In consideration of the grant of the License, Licensee agrees to pay Licensor the sum of Two Thousand Seven Hundred and No/100 Dollars ($2700), per month, beginning the first month after the agreement is signed by both parties (“Monthly Payment”) payable by the first (1st) business day of each month and prorated for any partial month. Monthly Payments shall be made payable to Licensor and shall be payable at the Licensor address set forth in Section 16 of this Agreement. If the Monthly Payment is not received by the fifth (5th) day of the month, then a late fee of Two Hundred and No/100 Dollars ($200.00) shall be due and payable. If Licensor provides the appropriate banking information to Licensee, Licensee may, but sha ll not be required to, make the Monthly Payment by electronic transfer directly into Licensor’s bank account.

DocuSign Envelope ID: E381A845-AAE0-4B05-8D67-0ABEF359412E

EXHIBIT A
240
MLT(2287 Second St_City of Livermore_AG_041921)lc Page 2 4 . Operation of Trilateral Parking Area. During the Term of this Agreement, Licensee, at Licensee’s expense, shall be responsible : 1) for the operation, maintenance and repair of the Trilateral Parking Area in compliance with this Agreement and all applicable laws; 2) to pay for all operating, maintenance and repair expenses relating to the Trilateral Parking Area; and 3) for any damages caused by the use of the 27 parking spaces in the Trilateral Parking Area by Licensee or Licensee’s agents, employees, representatives or invitees.

L
icensor shall be responsible for any damages caused by the use of the 27 parking spaces in the Trilateral Parking Area by Licensor or Licensor’s agents, employees, representatives, or invitees. Licensor shall also be solely responsible for the maintenance of all landscaping and lighting i n the Trilateral Parking Area, including but not limited to landscape water usage and lighting and electricity usage. 5 . Condition of Property; Improvements; Legal Compliance. (
a) Licensee acknowledges and agrees that for purposes of the public parking uses to be conducted on the Trilateral Parking Area under this Agreement: (i) the Licensee and the general public are entering on the Trilateral Parking Area at their own risk; (ii) the Licensee and the general public are accepting and entering upon the Trilateral Parking Area in its presently existing condition, “AS IS,” with all faults; (iii) Licensor has made no representations regarding the safety or suitability of the Trilateral Parking Area for the proposed use and has no obligation to improve, alter, secure or make safe the Trilateral Parking Area for purposes of the proposed use or to correct any unsafe or other conditions existing on any portion of the Trilateral Parking Area; and (iv) Licensor shall have no liability or obligation to Licensee or to the public for any injury to persons (including death or disease) or damage to property arising in the course of the public’s use of the Trilateral Parking Area as a result of any physical co nditions existing on the Trilateral Parking Area, except for injuries or damage to property arising in the course of use of the Trilateral Parking area by the tenants of the 2287 Second Street building.. Licensee shall not be required to restore the premises to its original condition but at the end of the term shall abide by all the terms in this Agreement.
(b ) Throughout the term of this Agreement, Licensee shall maintain the Trilateral Parking Area in a clean condition, free of debris. Licensee shall maintain the adjoining public street areas, free of any dirt or construction debris attributable to the Trilateral Parking Area or to the vehicles and equipment using the Trilateral Parking Area. Licensee shall be permitted to install adequate signage or markings designating 27 parking spaces for public use. Licensee shall also have the right to construct, at Licensee’s sole cost any minor restriping, patch- work , or recoating required for ADA compliance. Any such required ADA improvements shall be constructed by Lice nsee in a workmanlike and professional manner, in accordance with all applicable laws and requirements. No later than 72 hours prior to commencement of any construction of ADA improvements, Licensee shall notify Licensor at the Licensor address in Section 16 of this Agreement that construction will be commenced. Licensee shall not be required to maintain any landscape, walkways, medians, lighting, or similar improvements near or adjacent to the Trilateral Parking Area.
(c) I
f any permits, licenses, or other approvals are required under applicable law to be obtained from any governmental authority in connection with the construction of improvements and/or use of the Trilateral Parking Area by Licensee, Licensee shall be solely responsible for obtaining such permits, licenses, or other approvals at its sole cost.
(d
) Licensee shall keep the Trilateral Parking Area free and clear from any and all liens arising out of or in connection with the construction of any temporary improvements or any other work performed by Licensee or Licensee’s contractors on or about the Trilateral Parking Area. If any lien DocuSign Envelope ID: E381A845-AAE0-4B05-8D67-0ABEF359412E

EXHIBIT A
241
MLT(2287 Second St_City of Livermore_AG_041921)lc Page 3 is filed or asserted against the Property based on Licensee’s use of the Trilateral Parking Area, Licensee shall promptly (and in all events within 20 days after receiving notice that such lien has been filed) take all actions necessary to discharge such lien. If Licensee fails to discharge any such lien in a timely manner, Licensor shall have the right, but not the obligation, to expend all sums reasonably necessary to discharge the lien and Licensee shall reimburse Licensor , within 10 days after written demand by Licensor , for all sums expended by Licensor in discharging the lien, including, without limitation, attorneys’ fees, plus interest on such sums from the date expended by Licensor until reimbursed by Licensee at the maximum interest rate permitted under California law.
6 . Licensee Insurance. The City of Livermore is self-insured for General and Auto Liability up to a self-insured retention (SIR) of $750,000 and for Workers’ Compensation up to a SIR of $500,000.

The City is a member of California Joint Powers Risk Management Authority (CJPRMA), an excess insurance pool for General and Auto Liability, and of Local Agency Workers’ Compensation Excess (LAWCX), an excess insurance pool for Workers’ Compensation for claims that exceed the SIR.

C
opies of Memoranda of Coverage with the insurance pools or certificates of insurance are available upon request.
7 . Effective Waiver. No waiver by a party of any provision in this Agreement shall be considered a waiver of any other provision or any subsequent breach of the same or any other provision including the time for performance of any such provision. The exercise by a party of any remedy provided in this Agreement or at law shall not prevent the exercise by that party of any other remedy provided in this Agreement or at law.
8 . Amendments. This Agreement may be amended at any time and from time to time, but any amendment shall be in writing and signed by both Licensee and Licensor. 9 . Governing Law. This Agreement is executed and intended to be performed in the State of California, and the laws of that state shall govern its interpretation and effect. In the event of any litigation or legal proceedings concerning this Agreement, venue shall be in Alameda County. 10 . Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenfor ceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 11 . Entire Agreement. This instrument contains the entire agreement of the parties relating to the rights granted and obligations assumed in this instrument. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the party to be charged. There are no third-party beneficiaries of this Agreement. 12 . Duty to Implement This Agreement. Each party hereto will execute and deliver any and all additional instruments and documents, and perform such further acts, as may be reasonably necessary to make effective the terms and conditions of this Agreement. 13 . Legal Expenses. In the event of any action at law or in equity, including an action for declaratory relief, between the parties arising from or in connection with this Agreement, then the prevailing party ("Prevailing Party") in such action shall be entitled to recover from the other party a reasonable sum as attorneys' fees and costs plus interest at the maximum rate allowed by the law from the date any payment should have been paid until the time at which it is paid. The Prevailing Party shall be determined in accordance with Civil Code Section 1717(b)(1) or any successor statute.

DocuSign Envelope ID: E381A845-AAE0-4B05-8D67-0ABEF359412E

EXHIBIT A
242
MLT(2287 Second St_City of Livermore_AG_041921)lc Page 4

14. Tim
e of Essence. Time is of the essence of each and every provision of this Agreement.

15. Autho
rity. Each person signing this Agreement on behalf of either Licensor or Licensee warrants and represents to Licensor and Licensee, as applicable, that such person is duly and fully authorized to enter into this Agreement on behalf of such entity, that this Agreement will be binding upon such entity and that the execution of this Agreement has been approved and ratified as required by the organizational documents of such entity.

16. Not
ice. All notices, requests and demands to be made hereunder to the parties hereto shall be made in writing to the addresses set forth below and shall be given by any of the following means: (a) personal service, (b) Federal Express or other nationally recognized courier or delivery service with guaranteed overnight delivery, or (c) by FAX or electronic transmission. Such addresses may be changed by notice to the other parties given in the same manner as provided above. Any notice, demand or request sent in the manner described herein shall be deemed received upon the actual delivery thereof. Refusal to accept delivery of any notice, request or demand shall be deemed to be delivery thereof.

To Licensor: Trilateral LLC
c/o Charles Hahn
58 Live Oak Drive
Danvi
lle, California 94506
Phone: (510) 695-0674
E-Mail: [email protected]
To Licensee: City of Livermore
c/o Bob Vinn, City Engineer
1052 South Livermore Avenue
Livermore, CA 94550
Phone : (925) 960-4500
E-Mail: [email protected]
IN W
ITNESS WHEREOF, Licensor and Licensee have executed this License Agreement per below:

LICENSOR: LICENSEE:

Trilateral LLC City of Livermore
By: By:

Name Printed: Name Printed:

Title: Title:

Date: Date:

Approved As to Form:
______________________________________
Maryanna Marysheva
City Manager
Charles Hahn
Owner and Principal
Senior / Assistant / City Attorney
DocuSign Envelope ID: E381A845-AAE0-4B05-8D67-0ABEF359412E 6/22/2023 | 2:17 PM PDT

EXHIBIT A
243
This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. The City of Livermore is not responsible for misuse or errors or omissions on this map. All information should be confirmed.

City of Livermore
530
Information Technologies, GIS Division, City of Livermore

88.3 Legend
1:

NAD_1983_2011_StatePlane_California_III_FIPS_0403_Ft_US Feet0 88.344.17 Notes
4/18/2023Date Printed:

City Limits
AddressPt (0-1250)
No
Yes
Street Names (0-2500)
Golf Labels
Creeks
Public Facilities 0-4500)
Park Names (0-4500)
School Names (0-4500)
Parcels

EXHIBIT A

PARKING LICENSE AGREEMENT LOCATION
Trilateral Parking
Area
Locations of 27
Spaces Shown
Trilateral Property
2287 Second Street
DocuSign Envelope ID: E381A845-AAE0-4B05-8D67-0ABEF359412E

EXHIBIT A
244

CITY COUNCIL STAFF REPORT
ITEM NO. 5.8

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Jeramy Young, Police Chief
SUBJECT:

Resolution authorizing the City Manager to execute the second amendment to the standard services agreement with the County of Alameda accepting grant funding for Horizons Family Counseling, for the term of July 1, 2023 to December 31, 2023, in the total amount not-to-exceed $310,000.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute the Second Amendment to the Standard Services Agreement with the County of Alameda accepting grant funding for Horizons Family Counseling for the term of July 1, 2023 to December 31, 2023, in the total amount not-to-exceed $310,000.

SUMMARY
Over the past three years, the City of Livermore received an annual funding of $620,000 from County of Alameda, Probation Department for services to partially fund Horizons Family Counseling. Horizons Family Counseling was awarded as a recipient of a new contract that was supposed to begin as of July 1st, but that was postponed due to an external agency submitting a Bid Protest. Therefore, Horizons Family Counseling was awarded an extension of the current Master Contract 901499 with the County of Alameda for the term of July 1, 2023 through December 31, 2023.

Horizons Family Counseling has collaborated with County of Alameda for over 15 years to provide therapeutic counseling, diversion, case management, community outreach, and crisis intervention for the target population-which consists of at-promise and system involved youth in Alameda County ages 8-18 and youth at risk of becoming wards of the court.

DISCUSSION
Since 1973, Horizons Family Counseling has been dedicated to addressing the mental health needs and strengthening the relationship skills of youth and families in the Tri-Valley by providing effective, high quality, and strength-based counseling programs and services. These services include individual/family counseling, case management, crisis intervention, and diversion services. 245

FISCAL AND ADMINISTRATIVE IMPACTS

The grant shall not exceed $310,000 which funds a portion of Horizons Family Counseling personnel cost and supplies and is included in the FYs 2023-24 and 2024-25 budget. This funding decreases the General Fund contribution to Horizons Family Counseling Division.

COMMUNITY PILLAR
1: A Safe Community That Thrives

GOAL
4: Partner with the community to enhance collaborative problem solving and to improve the quality of life in Livermore

ATTACHMENTS

1. Resolution

2. Exhibit A - Notice of Intent

3. Exhibit B - Agreement

Prepared by: Asceneth
Paez-Arroyo
Youth and Family Services Manager -
Clinical

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF A SECOND AMENDMENT

TO STANDARD SERVICES AGREEMENT BETWEEN THE CITY OF
LIVERMORE AND THE COUNTY OF ALAMEDA FOR THE TERM OF JULY 1, 2023 TO DECEMBER 31, 2023 IN AN AMOUNT NOT-TO-EXCEED $310,000 The City of Livermore has been awarded $310,000 from the County of Alameda for the period of July 1, 2023 to December 31, 2023. Previous to this award, the City was awarded a 2- year grant of $620,000 for a total of $1,860,000 from July 2021 to June 2023 in grant funds from the County of Alameda to further its commitment to addressing the mental health needs of youth and families in the Tri-Valley by providing effecting counseling programs and services.

This amendment is an extension of the current Master Contract with the County of Alameda that expires on June 30, 2023. Due to a vendor requesting a protest to the RFP bid, it has delayed the implementation of the new contract that was originally scheduled to be effective July 1, 2023, as per the Notice of Intent, attached hereto as Exhibit A. Therefore, the Second Amendment to Standard Services Agreement was created.

Our relationship with Alameda County has been very successful over the years. Meeting our goals of serving 342 youth and families per year over the past 2 years has influenced this 6 month extension from July 1, 2023 to December 31, 2023 with a total additional contract amount not-to-exceed $310,000.

NOW, THEREFORE, BE IT RESOLVEDby the City Council of the City of Livermore, that it hereby authorizes the City Manager to execute in substantially the same form as the one attached to this resolution as Exhibit B, subject to the City Attorney’s review and approval as to form and subject to the Risk Manager’s review and approval as to insurance, a Second Amendment to Standard Services Agreement between the City of Livermore and the County of Alameda for the extended term of July 1, 2023 through December 31, 2023, in an additional amount not-to-exceed $310,000.

On motion of Council Member ______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023 by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_____________________________ /s/ Katherine Mirassou
Marie Weber Katherine Mirassou
City Clerk Deputy City Attorney
Exhibit A - Notice of Intent
Exhibit B – Draft Agreement
247

EXHIBIT A
248

EXHIBIT A
249

EXHIBIT A
250
Master Contract No. 901499
Procurement Contract No. 16465

Page 1 of 3 ends

STANDARD SERVICES AGREEMENT (SECOND/SUBSEQUENT AMENDMENT) SUPERVISOR REMOVAL ONLY DURING QC: DOC REV. DATE 8/22/22

SECOND AMENDMENT TO STANDARD SERVICES AGREEMENT
This Second Amendment to Agreement (“Second Amendment”) is made by the County of Alameda (“County”) and City of Livermore, (“Contractor”) with respect to that certain agreement entered by them on June 25, 2018 and that certain First (June 29, 2021) Amendment to Contract, (collectively referred to herein as the “Contract”) pursuant to which Contractor provides delinquency prevention network services to County.

County and Contractor, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:

1. Except as otherwise stated in this Second Amendment, the terms and provisions of this Amendment will be effective as of the date this Second Amendment is executed by the County (“Effective Date”).

2. The term of the Agreement is currently scheduled to expire on June 30, 2023. As of the Effective Date, the term of the Agreement is extended through December 31, 2023.

3. In consideration for Contractor’s additional services, the County shall pay Contractor in an additional amount not to exceed Three Hundred Ten Thousand dollars ($310,000). As a result of these additional services the not to exceed amount has increased from Three Million One Hundred Thousand dollars ($3,100,000) to Three Million Four Hundred Ten Thousand dollars ($3,410,000) over the term of the Agreement and any amendments.

4. Paragraph 20 of the Standard Services Agreement has been amended by changing the shall not exceed amount in the last sentence to $3,410,000.

5. Item 5 of Exhibit B-1 is deleted and replaced with the following:

Total payment under the terms of this Agreement will not exceed the total amount of $3,410,000. This cost includes all taxes and all other charges.

6. Attached hereto is Exhibit D-2, a current Debarment and Suspension Certificate executed by Contractor.

EXHIBIT B
251
Master Contract No. 901499
Procurement Contract No. 16465

Page 2 of 3 ends

7. Attached hereto is Exhibit F-2, THE IRAN CONTRACTING ACT (ICA) OF 2010 For Procurements of $1,000,000 statement executed by Contractor.

8. Except as expressly modified by this Second Amendment, all of the terms and conditions of the Contract are and remain in full force and effect.

EXHIBIT B
252
Master Contract No. 901499
Procurement Contract No. 16465

Page 3 of 3 ends

IN WITNESS WHEREOF, the parties hereto have executed this Amendment.

COUNTY OF ALAMEDA CITY OF LIVERMORE
By: ___________________________ By: _______________________________ Signature
Name: Detra Dillon
Signature
Name: Marianna Marysheva

Title: Procurement Administrator

Title: __City Manager________________

Date:

EXHIBIT B
253
Master Contract No. 901499
Procurement Contract No. 16465
Exhibit D-2

Page 1 of 1 ends

EXHIBIT D-2

COUNTY OF ALAMEDA

DEBARMENT AND SUSPENSION CERTIFICATION
(Applicable to all agreements funded in part or whole with federal funds and contracts over $25,000).

The Contractor, under penalty of perjury, certifies that, except as noted below, contractor, its principals, and any named or unnamed subcontractor:

Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
Has not been suspended, debarred, voluntarily excluded or determined ineligible by any federal agency within the past three years;
Does not have a proposed debarment pending; and
Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three years.

If there are any exceptions to this certification, insert the exceptions in the following space. For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action.

Check if continued on the attached page.

Notes: Providing false information may result in criminal prosecution or administrative sanctions.

The above certification is part of the Amendment to the Standard Services Agreement.

Signing the Amendment to Standard Services Agreement on the signature portion thereof shall also constitute the signature of this Certification.

CONTRACTOR:

PRINCIPAL: TITLE:

SIGNATURE: DATE:

EXHIBIT B
254
Master Contract No. 901499
Procurement Contract No. 16465
Exhibit F-2

Page 1 of 1 ends

EXHIBIT F-2

COUNTY OF ALAMEDA
THE IRAN CONTRACTING ACT (ICA) OF 2010
For Procurements of $1,000,000 or more
The California Legislature adopted the Iran Contracting Act (ICA) to respond to policies of Iran in a uniform fashion (PCC § 2201(q)). The ICA prohibits persons engaged in investment activities in Iran from bidding on, submitting proposals for, or entering into or renewing contracts with public entities for goods and services of one million dollars ($1,000,000) or more (PCC § 2203(a)). A person who “engages in investment activities in Iran” is defined in either of two ways:

1. The person provides goods or services of twenty million dollars ($20,000,000) or more in the energy sector of Iran, including a person that provides oil or liquefied natural gas tankers, or products used to construct or maintain pipelines used to transport oil or liquefied natural gas, for the energy sector of Iran; or

2. The person is a financial institution (as that term is defined in 50 U.S.C. § 1701) that extends twenty million dollars ($20,000,000) or more in credit to another person, for 45 days or more, if that person will use the credit to provide goods or services in the energy sector in Iran and is identified on a list created by the California Department of General Services (DGS) pursuant to PCC § 2201(b) as a person engaging in the investment activities described in paragraph 1 above.

By signing below, I hereby certify that as of the time of bidding or proposing for a new contract or renewal of an existing contract, neither I nor the company I own or work for are identified on the DGS list of ineligible persons and neither I nor the company I own or work for are engaged in investment activities in Iran in violation of the Iran Contracting Act of 2010.

If either I or the company I own or work for are ineligible to bid or submit a proposal or to renew a contract, but I believe I or it qualifies for an exception listed in PCC § 2202(c), I have described in detail the nature of the exception:

CONTRACTOR:

PRINCIPAL: TITLE:

SIGNATURE: DATE:

EXHIBIT B
255

CITY COUNCIL STAFF REPORT
ITEM NO. 5.9

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Jeramy Young, Police Chief
SUBJECT:

Resolution authorizing an agreement with the Livermore Valley Joint Unified School District (LVJUSD) for Horizons Family Counseling to provide mental health related services to LVJUSD students, for the term of November 15, 2022 through June 30, 2024, with a total amount not-to-exceed $240,000.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute an agreement with the Livermore Valley Joint Unified School District (LVJUSD) for Horizons Family Counseling to provide mental health related services to LVJUSD students, for the term of November 15, 2022 through June 30, 2024, with a total amount not-to-exceed $240,000.

SUMMARY
The City of Livermore has been awarded annual funding of $120,000 for two years from Livermore Valley Joint Unified School District to provide school-based services such as individual/group counseling, classroom presentations, and continued collaboration amongst Livermore schools. This funding allows Horizons Family Counseling to provide direct services for children at designated K-5 schools that are not funded with other sources. This younger population receives fewer school-based mental health services and resources due to the lack of school counselors at the elementary level.

DISCUSSION
For over 20 years, Horizons Family Counseling and the Livermore Valley Joint Unified School District (LVJUSD) have had a strong, collaborative relationship contributing to the mental well-being of Livermore families. LVJUSD has awarded annual funding of $120,000 to Horizons Family Counseling to further enhance this relationship by allowing Horizons to provide direct services for children at designated K-5 schools such as individual/group counseling and classroom presentations.

Additionally, the funding would allow children to receive services that can provide assessment, prevention, and intervention at an earlier age, which can help the individual receive the additional support that may be needed.
256

FISCAL AND ADMINISTRATIVE IMPACTS

This funding shall not exceed $120,000 annually and not exceed a total amount of $240,000 for the term from November 15, 2022 through June 30, 2024. This funding would fund a portion of Horizons Family Counseling personnel cost and supplies allowing us to increase services with minimal impact to General Funds. Other services provided are offset by our grant with County of Alameda therefore decreasing General Fund contribution. The $240,000 is included in the FYs 2023-24 and 2024-25 budget.

COMMUNITY PILLAR
1: A Safe Community that Thrives

GOAL
4: Partner with the community to enhance collaborative problem solving and to improve the quality of life in Livermore

ATTACHMENTS

1. Resolution

2. Exhibit A - Agreement

Prepared by: Asceneth
Paez-Arroyo
Youth and Family Services Manager -
Clinical

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF A STANDARD

SERVICES AGREEMENT BETWEEN THE CITY OF LIVERMORE AND

LIVERMORE VALLEY JOINT UNIFIED SCHOOL DISTRICT FOR THE
TERM OF NOVEMBER 15, 2022 TO JUNE 30, 2024 IN AN AMOUNT NOT- TO-EXCEED $240,000
The City of Livermore (“City”) has been awarded $240,000 from Livermore Valley Joint Unified School District for the period of November 15, 2022 to June 30, 2024, to provide school-based services such as individual/group counseling, classroom presentations, and continued collaboration amongst Livermore schools.

Due to the increased level of need amongst Livermore students over the past few years, LVJUSD would like to increase collaboration with the City of Livermore and offer equitable and accessible mental health services for Livermore families. Approval of this funding would allow the City, through Horizons Family Counseling, to expand services to those individuals that would not or may not be able to receive mental health related services outside of school.

Approval of these funds would not increase the general fund contribution to the budget.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby authorizes the City Manager to execute in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney’s review and approval as to form and subject to the Risk Manager’s review and approval as to insurance, the Standard Services Agreement between the City of Livermore and Livermore Valley Joint Unified School District for the term of November 15, 2022 through June 30, 2024, in an amount not-to-exceed $240,000.

On motion of Council Member ______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_____________________________ /s/ Katherine Mirassou
Marie Weber Katherine Mirassou
City Clerk Deputy City Attorney
Exhibit A- Agreement
258
Horizons Family Counseling Agreement Page 1 of 4
Rev. 09/2017

HORIZONS FAMILY COUNSELING SERVICES AGREEMENT

BETWEEN THE LIVERMORE VALLEY JOINT UNIFIED SCHOOL DISTRICT AND

CITY OF LIVERMORE
THIS AGREEMENT is made and entered into this _____ day of ______________, 2023, between the Livermore Valley Joint Unified School District (“LVJUSD”) and the City of Livermore, a municipal corporation (“City” hereinafter referred to as “Horizons Family Counseling”).

RECITALS
Horizons Family Counseling, a division of the Livermore Police Department, provides counseling, advocacy, and educational services to youth and families of the Tri- Valley.

LVJUSD desires to utilize the services of Horizons Family Counseling to provide mental health related services for LVJUSD students.

AGREEMENT
NOW, THEREFORE, LVJUSD and Horizons Family Counseling hereby agree as follows:

1. Description of Services. Horizons Family Counseling shall provide to designated LVJUSD schools individual and group counseling services, described in the attached Exhibit A (collectively, the “Services”).

2. Term. The term of this Agreement commences on November 15, 2022 and terminates on June 30, 2024.

3. Payment.
(a) The total compensation payable by LVJUSD to Horizons Family Counseling for the Services shall not exceed $240,000 (“not to exceed amount”). (b) LVJUSD shall pay Horizons Family Counseling no later than 30 days after LVJUSD receives a written invoice from Horizons Family Counseling and verifies the Services performed for the payment requested. Payment shall be paid in two equal installments by LVJUSD on January 15 and June 15, after delivery of an invoice from Horizons Family Counseling to LVJUSD for services rendered.

EXHIBIT A
259
Horizons Family Counseling Agreement Page 2 of 4
Rev. 09/2017

4. Records. Horizons Family Counseling will create and maintain a separate confidential file for students who receive counseling services. Information regarding counseling services may only be released to school personnel with proper authorization from the student’s parent or legal guardian. These records are retained by Horizons Family Counseling until the student turns 25 years old.

5. Authorization. This Agreement is authorized solely for the 2022/2023-2023/2024 academic school year.

6. Recipients of Services. Services under this Agreement shall be provided to LVJUSD students from designated school sites referred for services by LVJUSD Administration staff, COST Teams, and other school personnel.

7. Termination. Either party may terminate any portion or all of the Services provided by Horizons Family Counseling by providing the other party at least 30 calendar- days written notice. Upon receipt of a termination notice, Horizons Family Counseling shall immediately stop all work in progress on the Services, except where disruption of the client-counselor relationship may require additional time to transition to another service provider, and provide an invoice to LVJUSD for Services performed prior to the termination date, which shall be payable within 30 days of receipt.

8. Confidentiality. Horizons Family Counseling shall not disclose any confidential or proprietary information received from LVJUSD or from recipients of Services under this Agreement to anyone except Horizons Family Counseling’s employees who require access to the information to perform the Services. This obligation shall survive termination and remain in full force and effect until the information, and any copies thereof, are destroyed or returned to LVJUSD. Horizons Family Counseling may disclose general information (without identifying personal information of the student) to school personnel for administrative purposes such as statistics.

9. Entire Agreement; Modification. This Agreement supersedes all other agreements, whether oral or written, between the parties with respect to the Services.

Any modification to this Agreement must be in writing and signed by both parties. In the event the original of this Agreement is lost or destroyed, an archival copy maintained by Horizons Family Counseling can be used in place of the original for all purposes with the same effect as if it was the original.

EXHIBIT A
260
Horizons Family Counseling Agreement Page 3 of 4
Rev. 09/2017

10. Notice. Notices under this Agreement must be delivered to the addresses below by deposit in the United States mail or by overnight delivery service, with postage prepaid and delivery confirmation:

TO HORIZONS
FAMILY COUNSELING: Attention: Asceneth Paez-Arroyo
City of Livermore
1110 S. Livermore Ave.

Livermore, California 94550
TO LVJUSD: Attention: Kelly Manke
Livermore Valley Joint Unified School District
680 East Jack London Blvd.

Livermore, CA 94551

11. Waiver. Failure to insist upon the strict performance of any term or conditions in this Agreement, no matter how long the failure continues, is not a waiver of the term or condition and does not bar the right to subsequently demand strict performance. To be effective, a waiver must be in writing and signed by the non-breaching party.

12. Severability. If a court of competent jurisdiction determines a provision in this Agreement is invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired in any way.

13. Counterparts. This Agreement may be executed in counterpart by delivering a facsimile or secure electronic copy of the signed agreement to the other party, followed by delivery of the original documents bearing the original signatures. However, failure to deliver the original documents does not affect the enforceability of this Agreement. *************************************************************************************************** Signatures and Attachment List on the Next Page

EXHIBIT A
261
Horizons Family Counseling Agreement Page 4 of 4
Rev. 09/2017
In concurrence and witness whereof, and in recognition of the mutual consideration provided therefore, the parties have executed this Agreement, effective on the date first written above.

LIVERMORE VALLEY JOINT
UNIFIED SCHOOL DISTRICT: Dated:
____________________________ ___________________________ By: Kelly Manke
Title: Superintendent

HORIZONS FAMILY COUNSELING
CITY OF LIVERMORE: Dated:
____________________________ ____________________________ Marianna Marysheva
City Manager
APPROVED AS TO FORM:
___________________________
Assistant/City Attorney
Attachment:

Exhibit A – Scope of Services

EXHIBIT A
262

EXHIBIT A

SCHOOL BASED COUNSELING, EDUCATIONAL SERVICES
revised:6/19/23
Horizons Family Counseling will be partnering with Livermore Valley Joint Unified School District.

A. Mental Health Related Services
Providing individual and/or group counseling up to 10 sessions Providing at least 3 Mental Health Related classroom
trainings/presentations for LVJUSD students during each academic year
Participate in COST meeting at designated schools within LVJUSD if requested
Collaboration with LHS Wellness Center
B. Horizons Family Counseling Responsibilities:

The Clinical Manager will act as the liaison between Horizons Family Counseling and Liisa Hanninen-Danner, lead school psychologist Provide up to 20 hours of counseling support a week during each school year
i. Provide counseling services at designated schools assigned by LVJUSD
As mandated reporters, submit reports to Children and Family Services as necessary. Horizons Family Counseling must maintain copies of these reports. As a courtesy to the school, Horizons Family Counseling will follow the school’s protocol of when a CPS report has been made
All records are confidential and
record. We work collaboratively with school personnel, but will not release details about the specific content of the youth’s counseling without written consent from a legal guardian
Maintain a standard of professionalism and behavior consistent with the expectations of LVJUSD
Provide a summary of stats/generic data at the end of the year Notify the school site staff if Horizons Family Counseling will be late or absent on assigned day; or of any staff changes
To the extent possible and in collaboration with the school site staff, provide services that do not interfere with classroom work or disrupt the normal activities of the school site
C. LVJUSD School Site Responsibilities:

School personnel such as the COST Teams, school administrators, school counselors to provide appropriate referrals and collaborate with Horizons Family Counseling to determine student referral process and criteria for student referral

EXHIBIT A
263

EXHIBIT A

SCHOOL BASED COUNSELING, EDUCATIONAL SERVICES
revised:6/19/23
Provide a designated staff person at each school site responsible for implementing and maintaining communication with Horizons Family Counseling in a timely and regular manner
Provide school policies and procedures, including but not limited to consent and confidentiality policies.

Provide reasonable space, as agreed upon by school and Horizons Family Counseling, to facilitate services to students
Provide the use of reasonable resources (i.e.: telephone, voicemail, copiers…)
Provide ongoing support as needed to facilitate the provision of services
Collaborate with Horizons Family Counseling to determine student referral process and criteria for student referral.

Submit documentation of all students receiving services, except as limited by confidentiality
D. Criminal Background Checks
Horizons Family Counseling staff who will provide counseling services on any school site have had a criminal background check and fingerprinting, performed, and approved
E. Payment of Services
LVJUSD may be charged for up to 10 sessions of a LVJUSD student receiving services provided by Horizons Family Counseling within 1 academic year. These sessions will be funded from LVJUSD through The Federal American Rescue Plan Act/ Mental Health Student Services Act and/or the Student Behavioral Health Incentive Program These services are funded by Alameda County Probation Department (Contract No. 16465)
Any additional school-based sessions up to 10 sessions will be charged to either the County of Alameda, Master Contract No. 901499 or directly to the guardian/family of the individual.

EXHIBIT A
264

CITY COUNCIL STAFF REPORT
ITEM NO. 5.10

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution approving a new master property agreement with the Livermore Area Recreation and Park District for joint use properties and facilities.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution approving a new master property agreement with the Livermore Area Recreation and Park District for joint use properties and facilities and authorizing the City Manager to sign the agreement.

SUMMARY
The City and the Livermore Area Recreation and Park District have worked cooperatively to develop parks, plazas, open space, trails, and recreational facilities throughout Livermore. In 2010, the City of Livermore and LARPD entered into a Master Property Agreement (MPA) to set out an operational structure for the acquisition, responsibility, and maintenance of shared properties (owned by one and operated/maintained by the other). The parties wish to continue with the working relationship but seek to change the agreement to update provisions, remove terms, and amend/clarify rights and responsibilities.

The primary change sought by the parties is to make the MPA a perpetual agreement which allows the parties to continue working together and to seek amendments and/or changes to the document as the need for those changes arise. The changes also allow for addition/removal of properties without termination or additional review. Another change from the prior MPA is a focus on reciprocity and providing for the possibility of properties LARPD owns to be operated by the City should the need ever arise. Terms were included to add clarity that reflects current the understanding and practice between the parties.

DISCUSSION
The Livermore Area Recreation and Park District is an independent special district organized under the provision of Chapter 4, Division 5, Public Resources Code, State of California (5700 series). As such, it is a political subdivision of the State – a completely independent governmental agency. The District was originally organized as the Livermore Area Park, Recreation and Parkway District. In a special election on Tuesday, June 10, 1947, Livermore voters ratified a resolution of the Alameda County Board of 265
Supervisors to form the Livermore Area Park, Recreation and Parkway District. In 1959, the Board of Directors changed the name of the District to the Livermore Area Recreation and Park District (LARPD).

LARPD's mission includes: 1) Organizing, promoting and conducting community recreation programs 2) Establishing an operational system of recreation and facilities 3) Acquiring land and facilities for recreation usage.

The City and LARPD have worked cooperatively to develop parks, plazas, open space, trails, and recreational facilities throughout Livermore. In 2010, the City of Livermore and LARPD entered into a Master Property Agreement (MPA) to set out an operational structure for the acquisition, responsibility, and maintenance of shared properties (owned by one and operated/maintained by the other). This agreement expired in 2020. Because the parties wish to continue with the working relationship but seek to change the agreement to update provisions, remove terms, and amend/clarify rights and responsibilities, staff negotiated terms for a new MPA, attached as Exhibit A to the Resolution.

The LARPD Board of Directors approved the new MPA at their regular meeting on May 31, 2023.

Highlights of the Proposed Agreement:

The proposed MPA is a perpetual agreement which allows the parties to continue working together and to seek amendments and/or changes to the document as the need for those changes arises. The proposed MPA allows for the addition or removal of properties without termination or additional review.

The proposed MPA has a focus on reciprocity and providing for the possibility of properties LARPD owns to be operated by the City should the need ever arise. In addition, the proposed MPA includes provisions that reflect current understanding and practice between the parties.

Term - The Term of the agreement has been changed to be perpetual in nature, with periodic reviews (every 10 years) to ensure that the needs of the parties and the community are being met.

Termination - If the parties determine this agreement should be discontinued, the parties agree to meet and confer to mutually create processes to affect the termination of the agreement (winddown period).

Exhibits - The need for exhibits has been eliminated. The new MPA allows the maps and tables regarding the shared properties to be held electronically by the parties and requires updates after additions or modifications to shared property or facilities have been accepted by both the City Council and the LARPD Board. The duty of each entity is outlined in the MPA, including alerting the other of changes and designating the party responsibility for updates and modifications.

Special provisions have also been updated for properties with separate lease agreements, such as the Robert Livermore Community Center, Ravenswood, Carnegie, etc. In the proposed MPA, it is recognized that the separate lease agreements are not perpetual but are to be recorded in the property data matrix, which assists in agreement management. The MPA also allows special properties to be folded into and governed by the MPA in the future, if agreed to by both parties. This provides more flexibility without need to amend the MPA itself.

Insurance Requirements - The property owner of each property is required to maintain property damage insurance and liability insurance. Given the perpetual nature of the proposed agreement, no specific coverage amounts are identified. This section reflects the intent of both parties to work together to resolve claims made against either party.

266
Amendments - The proposed MPA clarifies that changes to the agreement that “alter the intent and terms” of the agreement will require formal authorization by the LARPD Board and City Council.

Hold Harmless and Indemnification: This section includes the City’s standard hold harmless and indemnification requirements with the addition that the other party’s comparative negligence is not indemnified. In addition, if both parties are negligent with respect to a specific claim, one party is not liable for the other party’s negligence.

Given the perpetual nature of the proposed MPA, the definition of Capital Rehabilitation Projects includes examples of project types rather than monetary thresholds. The Capital Project type will determine who is responsible for financing the work; the property owner is accountable for Capital Rehabilitation Projects, while the operator of the property is accountable for routine maintenance, utilities, etc.

The proposed MPA requires compliance with LARPD's Right of Entry process and maintains City requirements for those renting properties from LARPD.

Maintenance - The scope of responsibility for trail maintenance is clarified in the proposed MPA. Ten feet on either side of a trail or up to the bank of the arroyo is within the area of responsibility. Outside of that portion, the property owner is responsible. References to specific codes, manuals, and standards have been eliminated to allow for flexibility in the agreement so that material changes and new negotiations are unnecessary when sources/standards evolve. Instead of relying upon negotiation or reference to specific sources, the parties are required to adhere to current maintenance codes and standards applicable to the type of property involved.

Minimum Park Size - Language from the 2010 agreement that outlined the right of LARPD to “reject any park offered for dedication and acceptance which is less than six acres in size for purposes of maintenance” has been eliminated. There is no longer a minimum size requirement.

Alternate Dispute Resolution - The provisions outlined have been updated to include a good faith negotiation requirement, procedures for selecting a mediator, and a provision for court determination as to which, if either, party is entitled to attorney's fees and other costs.

FISCAL AND ADMINISTRATIVE IMPACTS

This agreement clarifies fiscal and administrative responsibilities for the acquisition, responsibility, and maintenance of shared properties to be consistent with current practice. No added fiscal or administrative impacts are expected.

COMMUNITY PILLAR
5: A City That Works

GOAL
14: Develop, operate, and maintain the City's infrastructure

ATTACHMENTS

1. Location Map - Parks

2. Location Map - Trails
267

3. Resolution

4. Exhibit A - Agreement

Prepared by: Joel Waxdeck
Acting City Engineer

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF A MASTER PROPERTY AGREEMENT

BETWEEN THE CITY OF LIVERMORE AND THE LIVERMORE AREA RECREATION

AND PARK DISTRICT
The City of Livermore (“City”) and the Livermore Area Recreation and Park District (LARPD) are separate governmental entities that have worked cooperatively to develop parks, plazas, open space, trails, and recreational facilities throughout Livermore.

In 2010, the City of Livermore and LARPD entered into a Master Property Agreement (original MPA) to establish an operational structure for the acquisition, responsibility, and maintenance of shared properties (owned by one and operated/maintained by the other).

That agreement expired in 2020.

Even though the original MPA expired, the City and LARPD want to continue their working relationship and adopt a new MPA to update provisions, remove terms, and amend/clarify the rights and responsibilities that staff negotiated terms for in the original MPA.

The primary change sought by the parties is for the new MPA to include a perpetual clause that avoids unexpected terminations and allows them to continue working together and to seek amendments and/or changes to the document as the need for those changes arise. The changes to the original MPA will also allow for addition/removal of properties without termination or additional review. Unlike the original MPA, the new MPA also focuses on reciprocity and providing for the possibility of properties owned by LARPD to be operated by the City should the need ever arise.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that the City Manager is authorized to execute the Master Property Agreement with the Livermore Area Recreation and Parks District, attached hereto as Exhibit A, to establish an operational structure for the acquisition, responsibility, and maintenance of shared properties.

On motion of Council Member _________________________, seconded by Council Member ________________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS
ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Jason R. Alcala
Marie Weber Jason R. Alcala
City Clerk City Attorney
Exhibit A – Master Property Agreement
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CITY COUNCIL STAFF REPORT
ITEM NO. 5.11

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing the execution of a subordination agreement with Housing Trust Silicon Valley (HTSV) that will allow the City’s Deed of Trust recorded on property to take a lower lien position than new first mortgage financing to be provided by HTSV, for the Owl’s Landing Apartments property located at 842 Herman Way.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a Subordination Agreement with Housing Trust Silicon Valley, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney's review and approval as to form and subject to the Risk Manager's review and approval as to insurance, to subordinate the City’s Deed of Trust recorded on the Owl’s Landing Apartments property located at 842 Herman Avenue.

SUMMARY
In 1998, the former Redevelopment Agency of the City of Livermore (“former RDA”) provided a $4,240,000 loan to assist Eden Housing (via Livermore Associates, L.P.) with the development of Owl’s Landing, a 72-unit affordable, family apartment community in Livermore. The former RDA recorded a Deed of Trust and Regulatory Agreement on the property to evidence the loan and restrict the units for rent to lower income households. The City assumed this loan following the State’s dissolution of Redevelopment Agencies in 2011. Now, Eden has requested that the City subordinate its Deed of Trust to a new first mortgage of $5,700,000 from Housing Trust Silicon Valley which will be used to refinance the existing mortgage, fund rehabilitation of the buildings, and replenish a property operating reserve for future repairs and replacement.

DISCUSSION
In 1998, the former Redevelopment Agency of the City of Livermore provided a $4,240,000 loan of RDA housing set-aside funds to Eden Housing (through their limited partnership, Livermore Associates, L.P.) for the property acquisition, design and construction of Owl’s Landing, a 72-unit affordable family housing development located at 842 Herman Avenue, Livermore. The loan accrues three percent (3%) interest annually and is due 55 years from issuance or upon default. Annual payments of principal and interest 287
on the City’s loan are required based on the availability of excess cash flow after all monthly operating expenses and private mortgage debts are satisfied.

A deed of trust to secure the City’s loan, and a regulatory agreement were recorded on the property. The regulatory agreement restricts all units to lower income households (defined as earning less than 50%, 60% and 90% of Area Median Income). The City’s regulatory agreement also established a term of 55 years from recording.

Eden wishes to secure a $5,700,000 loan from Housing Trust Silicon Valley to refinance their first mortgage and make critical building repairs and upgrades that were identified in a comprehensive property needs assessment. Approximately $472,000 of the funds will replenish the property’s replacement and operating reserves. The new first mortgage offers a 30-year amortization, with a 7-year repayment term at a 4.30% fixed interest rate. A balloon payment is due at the end of the 7-year term however Eden anticipates undergoing a re-syndication to secure new tax credit funding for the project that will allow for a refinancing and more substantial property renovation. These terms are reasonable and affordable for Eden. Housing Trust Silicon Valley requests that the City subordinate its Deed of Trust to the new first mortgage which is a typical and customary condition among private lenders. The City's existing Regulatory Agreement controlling the affordability restrictions would not be subordinated to the new financing.

Staff recommends City Council authorize the City Manager to execute a subordination agreement with Housing Trust Silicon Valley in substantially the same form as the one attached to this resolution as Exhibit A, with the final forms of those documents subject to City Attorney approval. If approved, Eden wishes to close on the new financing immediately thereafter.

FISCAL AND ADMINISTRATIVE IMPACTS

There will be no additional fiscal impact created by approval of the subordination of the existing Deed of Trust for the project. The City will remain in second position to receive annual loan payments from residual cash flow, following amortized monthly payments which would be prioritized to the new first lender.

The City has received six annual payments that have been applied to accrued interest owed since loan issuance in 1998. The City has not received any payments since 2020, due to pandemic-related cash flow reductions coupled with expensive property repairs. The new first mortgage financing will address the immediate financial needs of the property. A future re-syndication for additional tax credits will provide an opportunity to explore more refinancing options for the project, including the possible repayment of the City's loan.

COMMUNITY PILLAR
1: A Safe Community that Thrives

GOAL
7: Expand and preserve the supply of affordable housing opportunities.

ATTACHMENTS

1. Resolution
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2. Exhibit A - Draft Form of Subordination Agreement with Housing Trust Silicon Valley

Prepared by: Fran Reisner
Acting Housing and Human Services
Manager

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING A SUBORDINATION AGREEMENT WITH

HOUSING TRUST SILICON VALLEY REGARDING CITY DEED OF TRUST ON 842 HERMAN WAY
In 1998, the former Redevelopment Agency of the City of Livermore (“former RDA”) provided a $4,240,000 loan to assist Eden Housing (through the Livermore Associates, L.P.) with the development of Owl’s Landing, a 72-unit affordable family apartment community in Livermore. The former RDA recorded a Deed of Trust and Regulatory Agreement on the property to evidence the former RDA’s loan and restrict the units for rent to lower income households. The City of Livermore (“City”) assumed this loan following the State’s dissolution of Redevelopment Agencies in 2011.

Now, Eden has requested that the City subordinate its Deed of Trust to a new first mortgage of $5,700,000 from Housing Trust Silicon Valley which will be used to refinance the existing mortgage, fund rehabilitation of the buildings and help establish a property operating reserve for future repairs and replacement.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby authorizes he City Manager to execute a Subordination Agreement with Housing Trust Silicon Valley, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney’s review and approval as to form and subject to the Risk Manager’s review and approval as to insurance, for the City’s Deed of Trust on 842 Herman Way.

On motion of Council Member , seconded by
Council Member , the foregoing resolution was passed
and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
/s/ Katherine Mirassou
Marie Weber Katherine Mirassou
City Clerk Deputy City Attorney
Exhibit A – Draft Form of Subordination Agreement with Housing Trust Silicon Valley 290

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

HOUS

ING TRUST SILICON VALLEY
75 E. Santa Clara Street, Suite 1350
San Jose, CA 95113
Attn: Multifamily Housing Dept.

Re
f: Owl’s Landing
Livermore, California
S

UBORDINATION AGREEMENT

NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST

IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN

OF SOME OTHER OR LATER SECURITY INSTRUMENT
THI
S SUBORDINATION AGREEMENT (this “Agreement”) is dated as of ______________, by and among HOUSING TRUST SILICON VALLEY, a California nonprofit public benefit corporation (“Lender”), the CITY OF LIVERMORE, a public body corporate and politic (“Subordinate Lender”), and LIVERMORE HOUSING ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP (“Borrower”).

R
ECITALS:

A. Cont emporaneously herewith, Lender has made a loan in the amount of $[5,700,000] (the “Se
nior Loan”) to the Borrower, as evidenced by that certain Promissory Note Secured by Deed of Trust dated of even date herewith (the “Senior Note”), executed by Borrower and payable to the order of Lender, and secured by, among other things, that certain Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing of even date herewith (the “Senior Deed of Trust”), covering the property described in Exhibit A attached hereto and incorporated herein by this reference, together with all improvements thereon and personal property used relative thereto, all as more particularly described in the Senior Deed of Trust (the “Collateral”) (the Senior Note, the Senior Deed of Trust and any and all other documents evidencing or securing the Senior Loan as the same may be from time to time amended, extended, restated, replaced, supplemented, increased, consolidated, decreased, renewed or otherwise modified are hereinafter collectively referred to as the “Senior Loan Documents”).

B. Subordinate Lender has made a loan in the aggregate amount of $4,240,000 ( the “Subordinate Loan”) to Borrower, as evidenced by that certain Loan Agreement dated January 12, 1998, and that certain Promissory Note (the “Subordinate Note”) dated January 12, 1998, executed by Borrower and payable to the order of Subordinate Lender, and secured by, among other things, that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filling dated January 12, 1998 and recorded on January 29, 1998 in the Official Records of Alameda County as Instrument Number 9832966 (the “Subordinate Deed of Trust ”), covering the property described in Exhibit A attached hereto and incorporated herein by this reference, together with the Collateral. In addition to the Subordinate Deed of Trust, Subordinate Lender has recorded a Declaration of Restrictive Covenants on January 12, 1998 in the Official Records of Alameda County as Instrument Number 9832967 (the “Restrictive Covenants”) . The Subordinate Deed of Trust and t he Subordinate Note, together with the unrecorded loan documents executed by Owner in connection with the Subordinate Loan, shall be collectively referred to herein as the “Subordinate Loan Documents.”

EXHIBIT A
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C. It is a condition precedent to making the Senior Loan, that the Senior Loan Documents and Senior Lender’s' rights to payments under the Senior Loan Documents shall unconditionally be and remain at all times a lien or charge upon the Collateral, prior and superior to the Subordinate Loan Documents and any and all rights, restrictions, agreements, liens and charges in favor of Subordinate Lender and the Subordinate Lender’s right to payments under the Subordinate Loan Documents.

D. Senior Lender is willing to make its Senior Loan, provided the condition precedent described above is satisfied and that Subordinate Lender will specifically and unconditionally subordinate the Subordinate Loan Documents (for the avoidance of doubt, the Restrictive Covenants shall remain senior in priority to the Senior Deed of Trust), the Subordinate Lender’s right to payments under the Subordinate Loan Documents (except payments of regular interest and/or principal prior to a default under the Subordinate Loan Documents are permitted, as set forth in Section 3(e) below), and any and all other rights, agreements, liens and charges in favor of Subordinate Lender to the liens and charges of the Senior Loan Documents and Senior Lender's right to payments under the Senior Loan Documents.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lender and Subordinate Lender do herein and hereby agree as follows:

1. Certification by Subordinate Lender. Subordinate Lender hereby certifies and warrants to
Lender that the following information is true and complete as of the date hereof:

(a) The Subordinate Deed of Trust (and the UCC-1 financing statements recorded and filed in connection therewith) are the only documents securing the Subordinate Loan and the Subordinate Regulatory Agreement is the only document restricting the use of the Collateral;

(b) Subordinate Lender has never assigned any interest (whether collateral or otherwise) in or to the Subordinate Deed of Trust and/or the Subordinate Regulatory Agreement;

( c) No default or event of default has been declared by Subordinate Lender under the Subordinate Deed of Trust;

(d) The term of the Subordinate Loan does not end before the stated term of the Senior Loan; and

(e) The Subordinate Loan Documents have not been amended, modified, assigned or superseded.

2. R
eliance. Lender would not make the Senior Loan to the Borrower without this Agreement. Accordingly, Subordinate Lender intentionally and unconditionally enters into the covenants and agreements as set forth herein, and understands that, in reliance upon and in consideration of such covenants and agreements, the Senior Loan shall be made and, as part and parcel thereof, specific monetary and other obligations have been, are being and shall be entered into which would not be made or entered into but for such reliance.

3. P riority of Senior Note and Senior Deed of Trust . Notwithstanding the time of the recording of the Senior Deed of Trust, and notwithstanding anything to the contrary whatsoever contained

EXHIBIT A
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in the Subordinate Deed of Trust, all of Subordinate Lender’s rights and remedies under the Subordinate Deed of Trust are hereby expressly made subject and subordinate in all respects including, without limitation, subordinate in lien, operation, and distribution, and subordinate in payment to the Senior Note and the Senior Deed of Trust (including, without limitation, any future advances by Lender to protect the Collateral or Lender’s lien thereon or rights thereto), and to all of Lender’ s rights and remedies under the Senior Loan Documents and to the Collateral. In addition, in furtherance of and without limiting the foregoing, Subordinate Lender agrees that:
(
a) All rights of Subordinate Lender under the Subordinate Deed of Trust and under any of the other Subordinate Loan Documents in and to the Collateral and the proceeds thereof (including, without limitation, any rights with respect to leases, rents, insurance proceeds and condemnation awards) shall be expressly subject and subordinate to the rights of Senior Lender in and to t he Collateral and the proceeds thereof (including, without limitation, any rights with respect to leases, rents, insurance proceeds and condemnation), and to any other expenses incurred under and as permitted in the Senior Loan Documents.
(b) Subordinate Lender declares, agrees and acknowledges that Subordinate Lender consents to and approves all provisions of the Senior Note, the Senior Deed of Trust and each of the other Senior Loan Documents.
(
c) Subordinate Lender hereby expressly consents to and authorizes, at the option of Lender and without any further consent of or notice to Subordinate Lender, the amendment, extension, restatement, refinance, or other modification, in whole or in part, of all or any of the Senior Loan Documents, including without limitation, decreasing the stated principal amount of the Senior Note, decreasing the interest rate payable under the Senior Note or altering any other payment terms under the Senior Note. Notwithstanding the foregoing or any contrary provision of this Agreement, Lender agrees that it will not execute any written amendment to the Senior Loan Documents without Subordinate Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) with respect to any amendment that would (a) change the “Maturity Date” to a date earlier than the “Maturity Date” set forth in the Senior Note, (b) increase the principal amount of the Senior Loan (other than for increases made pursuant to protective advances or similar advances by Lender), or (c) increase the interest rate payable under the Senior Note. Notwithstanding any provision of this Agreement to the contrary, any reference herein to the “Senior Deed of Trust,” “Senior Loan Documents” or “Senior Note” is deemed to include and refer to any renewal, replacement, amendment, modification, refinancing, extension, substitution or consolidation thereof whether by Lender, any successor or assign of Lender, or any other person or entity.
(d) Subordinate Lender hereby agrees that Subordinate Lender shall not agree to, and the Subordinate Deed of Trust shall not be deemed to be evidence of approval by Lender of, any encumbrance on the Collateral or any increases in the amount evidenced by the Subordinate Deed of Trust.

No further advances shall be provided by Subordinate Lender to the Borrower whether pursuant to the Subordinate Deed of Trust or otherwise.
(e) If, notwithstanding the provisions of this Agreement, any payment, distribution or security of any character (whether in cash, securities or other property) shall be received by the Subordinate Lender out of or in connection with the Subordinate Deed of Trust before all of the Senior Loan shall have been paid in full, such payment, distribution or security, as applicable, shall not be commingled with any asset of Subordinate Lender, shall be held in trust for the benefit of, and shall be delivered over or delivered and transferred to, Lender or its representative, for application to the payment of the Senior Loan remaining

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unpaid, until all of the Senior Loan shall have been paid in full. Subordinate Lender is not and shall not be permitted to receive or apply payments against the Subordinate Deed of Trust until such time as all obligations under the Senior Loan Documents have been fully satisfied and the Senior Loan has been paid in full (the “Release Event”). Anything hereinabove to the contrary notwithstanding, Subordinate Lender shall be entitled to any regular installments of principal and interest under the Subordinate Note in accordance with the terms of the Subordinate Note. Subordinate Lender agrees that from and after such time as it has received from either Lender or Borrower written notice that a default or Event of Default (as defined under the Senior Loan Documents) then exists (which has not been expressly waived in writing by Lender) or otherwise has actual knowledge of such a default or Event of Default, Subordinate Lender shall not receive or accept any payments under the Subordinate Loan.

(f) Subordinate Lender shall be bound by any consents or waivers made by Lender , and Subordinate Lender, hereby waives any and all rights of consent or approval with regard to any matters covered by or under the terms of the Senior Loan Documents.

(g) In the event of an extension of the term of the Senior Loan, Subordinate Lender hereby agrees to extend the term of the Subordinate Loan for a corresponding or greater period of time.

(h) Subordinate Lender hereby agrees to deliver to Lender copies of any and all notices received by it or its agents in connection with the Subordinate Deed of Trust. Subordinate Lender hereby grants to Lender the right, but not the obligation, to cure any default under the Subordinate Deed of Trust within thirty (30) days of the Subordinate Lender’s delivery of the default notice to the Lender , and the Subordinate Lender also accepts all such performance by Lender.

4. C
ertain Actions Regarding Subordinate Deed of Trust and Restrictive Covenants. Until the Release Event has occurred, Subordinate Lender shall not take any of the following actions with respect to the Subordinate Deed of Trust and the Restrictive Covenants, as applicable , without the prior written consent of Lender:

(a) Declare a default under the Subordinate Deed of Trust or the other Subordinate Loan Documents, accelerate all or any portion of any monies due pursuant to the Subordinate Deed of Trust or the other Subordinate Loan Documents, or exercise any of its remedies under the Subordinate Deed of Trust;

(b) Commence any legal proceedings against the Borrower; (c) Exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to, accelerating the Subordinate Loan (and enforcing any “due on sale” provision included in the Subordinate Loan Documents), collecting rents, appointing (or seeking the appointment of) a receiver, or exercising any other rights or remedies thereunder for a period of ninety (90) days from the date of delivery to Lender of a written notice of a default under the Subordinate Loan Documents; provided, however, that such limitation on the remedies of Subordinate Lender shall not limit Subordinate Lender’s rights to (i) send all pre-notice of default letters, default notices (other than a recorded statutory notice of default under Civil Code Section 2924c) and/or other notices to Borrower or other persons, including without limitation any such notices or letters determined by Subordinate Lender as being necessary or desirable to get any and all pre -cure, cure, or other periods running and/or taking any and all other actions necessary to satisfy any and all other preconditions to an Event of Default under the Subordinate Loan Documents, or (ii) compute interest on all amounts due and payable under the

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Subordinate Loan Documents at the default rate described in the Subordinate Loan Documents and computing prepayment premiums, if any, and late charges thereunder. (c) Consent to any amendment, extension, restatement, replacement, supplement, increase, consolidation, re newal or modification of the Subordinate Deed of Trust or the Restrictive Covenants;

(d) Assign, convey, sell, hypothecate or transfer any interest whatsoever in the Subordinate Deed of Trust or the Restrictive Covenants directly or indirectly (including, without limitation, by means of a transfer of ownership interests in Subordinate Lender), whether such interest be collateral in nature (e.g., pledges or grants of security interests) or absolute;

(e) Commence or consent to any bankruptcy, insolvency, reorganization or similar proceeding by or against the Borrower; or

(f) E
xcept as set forth in Section 3(e) above, accept any payments under the Subordinate Deed of Trust.

A
ny consent required of Lender in this Agreement may be given or withheld in the sole and absolute discretion of Lender. The Subordinate Lender shall have no rights to any proceeds of a refinancing of the Senior Loan in which rights under the Senior Loan Documents are sold or transferred or the Senior Loan is replaced, until such time as the entire indebtedness evidenced or secured by the Senior Loan Documents and all other sums evidenced or secured by the Senior Loan Documents have been paid in full. The Subordinate Lender acknowledges and agrees that any assignment or assignments of the Senior Loan and/or the Senior Loan Documents in connection with a sale by Lender of the Senior Loan (by itself or with other loans) shall not be deemed to be a repayment of the Senior Loan for purposes of this Agreement.

5. Bankruptcy Issues.

(a) This Agreement shall be applicable both before and after commencement, whether voluntary or involuntary, of any case by or against the Borrower under the United States Bankruptcy Code (as amended from time to time, the “Bankruptcy Code”) and all references herein to the Borrower shall be deemed to apply to the Borrower as a debtor-in-possession and to any trustee in bankruptcy for the estate of the Borrower.

(b) In the event Lender is required under any bankruptcy or other law to return to the Borrower, Borrower’s bankrupt estate, any third party or any trustee, receiver or other similar representative of the Borrower any payment or distribution of assets, whether in cash, property or securities, including, without limitation any Collateral or any proceeds of the Collateral previously received by Lender on account of the Senior Loan Documents (a “Reinstatement Distribution”), then to the maximum extent permitted by law, this Agreement and the subordination of the Subordinate Note shall be reinstated with respect to any such Reinstatement Distribution. Lender shall not be required to contest its obligation to return such Reinstatement Distribution.

(c) The Subordinate Lender hereby agrees that the Subordinate Lender shall not make any election, give any consent, commence any action or file any motion or take any other action in any case by or against Borrower under the Bankruptcy Code without the prior written consent of Lender.

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6. Subordinate Lender Notice and Cure. Lender hereby agrees to deliver to the Subordinate Lender copies of any default notice given by it or its agents in connection with the Senior Deed of Trust.

Lender hereby grants to the Subordinate Lender the right, but not the obligation, to cure any default under the Senior Deed of Trust within thirty (30) days of Senior Lender’s delivery of a default notice to the Subordinate Lender, and the Senior Lender also accepts all such performance by the Subordinate Lender.

7. Lender Notice and Cure. Subordinate Lender hereby agrees to deliver to Lender cop ies of any default notice given by it or its agents in connection with the Subordinate Deed of Trust. Subordinate Lender hereby grants to Lender the right, but not the obligation, to cure any default under the Subordinate Deed of Trust within thirty (30) days of Subordinate Lender’s delivery of a default notice to Lender , and the Subordinate Lender also accepts all such performance by Lender.

8. Miscellaneous Provisions:
(a) E ntire Agreement; Amendment; Severability. This Agreement contains the entire agreement between the parties respecting the matters herein set forth and supersedes all prior agreements, whether written or oral, between the parties respecting such matters. Any amendments or modifications hereto, in order to be effective, shall be in writing and executed by the parties hereto. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances. (b) Gove rning Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, except to the extent that the applicability of any of such laws may now or hereafter be preempted by federal law, in which case such federal law shall so govern and be controlling. Subordinate Lender, to the full extent permitted by law, hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel, (i) submits to personal jurisdiction in the State of California over any suit, action or proceeding by any person arising from or relating to this Agreement, (ii) agrees that any such action, suit or proceeding may be brought in any state or federal court of competent jurisdiction sitting in Alameda County, California, (iii) submits to the jurisdiction of such courts, and (iv) to the fullest extent permitted by law, agrees that it will not bring any action, suit or proceeding in any other forum (but nothing herein shall affect the right of lender to bring any action, suit or proceeding in any other forum). Subordinate Lender hereby further irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this agreement sitting in Alameda County, California, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. (c) A ssigns. The terms, provisions and conditions of this Agreement shall be binding upon Subordinate Lender, Lender and the successors and assigns of either; provided, however, nothing in this Section 6(c) sh all be deemed to limit or diminish in any respect Subordinate Lender’ s obligations pursuant to Section 4(d) above.
(d) Fu rther Assurances. Subordinate Lender agrees, within ten (10) days after request by Lender, to execute such other documents (whether in recordable form or otherwise) as may be requested by Lender to further evidence the subordination and other agreements effectuated hereby. (e) N o Third Party Beneficiaries; Securitization. It is expressly agreed and understood that each and every certificate and agreement of Subordinate Lender in this Agreement are for the benefit

EXHIBIT A
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of Lender and subsequent owners or holder of the Senior Loan Documents. No third party shall be entitled to rely on any agreements or certifications provided herein to any extent whatsoever. (f) C ounterparts. This Agreement may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and m ay be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages.
(g) WAI VER OF JURY TRIAL . SUBORDINATE LENDER , TO THE FULL

EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND

VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES AND

RELINQUISHES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED

UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY

CONDUCT, ACT OR OMISSION OF LENDER OR SUBORDINATE LENDER OR ANY OF THEIR

DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, O F

ANY OTHER PERSONS AFFILIATED WITH LENDER OR SUBORDINATE LENDER IN EACH OR THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. (h) Es toppel Certificates. Subordinate Lender agrees that it shall, from time to time, upon the demand of Lender , furnish Lender with estoppel certificates pursuant to which the Subordinate Lender shall certify to Lender the matters set for th in Section 1 above and such other matters as Lender may reasonably require.
(i) [ Intentionally Omitted].
(j) N o Partnership. This Agreement shall not in any respect be interpreted, deemed or construed as making Subordinate Lender a partner or joint venturer with any other person or entity, including, without limitation, Lender or Borrower, nor shall it be construed as making Subordinate Lender the agent or representative of Lender or Borrower nor Lender or Borrower the agent or representative of Subordinate Lender.
(k) Sev erability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable, under any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such st atute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held, invalid or unenforceable, shall not be affected thereby nor shall same affect the validity of enforceability of any other provision of this Agreement.
(l) Conflict. In the event of any conflict between the provisions of this Agreement on the one hand, and the Subordinate Deed of Trust on the other hand, the provisions of this Agreement shall control.
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EMAINDER OF PAGE LEFT INTENTIONALLY BLANK –
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date hereinabove written.

S
UBORDINATE LENDER:

TY OF LIVERMORE,
a public body corporate and politic
By
:

Name: Marianna Marysheva
Its: City Manager
A
TTEST:
_________
____________________
City Clerk
AP
PROVED AS TO FORM:
_________
_____________________
City Attorney

S
tate of ________________
County of _______________________
O
n ____________________, 20__ before me,_______________________________ , Notary Public, personally appeared_______________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WI
TNESS my hand and official seal.

S
ignature:______________________________
Name:_________________________________
(typed or printed) (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of the document.

EXHIBIT A
298
9 HTSV sub ag form

[signatures continue on following pages.]

EXHIBIT A
299
10 HTSV sub ag form
LENDER:

OUSING TRUST SILICON VALLEY,
a California nonprofit public benefit corporation
By
: _______________________
Name: _______________________
Its: _______________________

S
tate of California
County of _______________________
O
n ____________________, 20__ before me,_______________________________ , Notary Public, personally appeared_______________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WI
TNESS my hand and official seal.

S
ignature:______________________________
Name:_________________________________
(typed or printed) (Seal)
[
signatures continue on following pages.]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of the document.

EXHIBIT A
300
11 HTSV sub ag form
BORROWER:

IVERMORE HOUSING ASSOCIATES,

A CALIFORNIA LIMITED PARTNERSHIP
By
:

Name:

Title:

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

WI
TNESS my hand and official seal.

EXHIBIT A
301
12 HTSV sub ag form

EXHIBIT A
(
Legal Description)
T
he land referred to herein is situated in the State: of California, County of ALAMEDA, City of LIVERMORE. and is described as follows:

P
ORTION OF THE NORTH 1 /2 OF THE SOUTHEAST 1 /4 OF SECTION 35, IN TOWNSHIP 2 SOUTH, RANGE 2 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS-FOLLOWS:

B
EGINNING AT A POINT IN THE CENTER LINE OF ROAD 40 FEET WIDE KNOWN AS HERMAN AVENUE, DISTANT THEREON 660 FEET SOUTHERLY FROM THE CENTER LINE OF ROAD 40 FEET WIDE KNOWN AS SCENIC AVENUE; AND RUNNING THENCE ALONG SAID LINE OF HERMAN AVENUE SOUTHERLY 220 FEET; THENCE AT RIGHT ANGLES WESTERLY 990 FEET; THENCE AT RIGHT ANGLES NORTHERLY 220 FEET; AND THENCE AT RIGHT ANGLES EASTERLY 990 FEET POINT OF BEGINNING.

EX
CEPTING THEREFROM, THE EASTERN 20 FEET THEREOF. BEING THAT PORTION THEREOF LYING WITHIN THE LINES OF SAID HERMAN AVENUE.

A
.P. NO.: 998-5351-14

EXHIBIT A
302

CITY COUNCIL STAFF REPORT
ITEM NO. 5.12

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Christine Martin, Assistant City Manager
SUBJECT:

Resolution authorizing execution of a one-year agreement with Tri-Valley Community Television for local cable programming services for Fiscal Year 2023-24 in an amount not-to-exceed $184,705.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the execution of an agreement with Tri- Valley Community Television, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney's review and approval as to form and subject to the Risk Manager's review and approval as to insurance, for local cable programming services for Fiscal Year 2023-24 in an amount not-to-exceed $184,705.

SUMMARY
Community television stations provide transparency and access for residents and business owners by broadcasting local government meetings and programming. Tri-Valley Community Television (TVCTV) cannot use public, educational, governmental (PEG) fees paid by cable subscribers for operational uses due to federal and state law. Therefore, the cities of Dublin, Livermore, and Pleasanton provide operational funding. The City of Livermore's share for Fiscal Year 2023-24 is $184,705, and this funding for local programming services was included in the City's Fiscal Year 2023-24 Budget approved by the City Council on
June
12, 2023.

DISCUSSION
Tri-Valley Community Television (TVCTV) serves the educational and government access needs for the cities of Dublin, Livermore, and Pleasanton via Channels 28, 29, and 30. It televises local City Council and School Board meetings, high school sports games, and other local events like holiday parades.

TVCTV also produces local programming like "Slice of Life" and provides outreach opportunities for the cities, local law enforcement, businesses, and non-profits.

The City has provided annual subsidy funding to TVCTV since 1999. As part of the 2023 biennial budget process, the City recently reviewed funding requirements for various organizations receiving City money 303
and identified areas where enhancements are needed in order to conform more closely with industry best practices. Formal contractual agreements with organizations receiving annual subsidies were one of the areas identified. In line with financial best practices, it is essential to formalize the scope of services and contractual agreement between the City and TVCTV. This will help ensure transparency, accountability, and alignment of expectations between the City of Livermore and TVCTV, as well as be in compliance with the City’s Purchasing Policy.

In addition to the operational funding, $30,000 is budgeted for City Council and special meeting video services. Historically, public, educational, governmental (PEG) funds were also able to be reimbursed to TVCTV for capital expenses. PEG funds are received from the cable television franchise for use on public, education, and government access. They can only be used for capital expenses, not operations.

Staff has begun an internal analysis of how PEG funding has been utilized by TVCTV over the past five years and will make a recommendation regarding PEG funding once that analysis is complete.

The cities of Dublin, Livermore, and Pleasanton continue to support federal legislation that would eliminate the restriction on PEG fee uses. If such legislation modified language in current law, then operational expenses could be shifted from Livermore's General Fund to its PEG Special Revenue Fund.

However, all federal legislative efforts supported by local governments and other organizations have failed for the last several years.

FISCAL AND ADMINISTRATIVE IMPACTS

The TVCTV funding was included as part of the General Fund appropriation in the FY 2023-24 Budget approved by the City Council on June 12, 2023. The City's Municipal Code Chapter 2.68, Contracts and Purchasing, requires approval for commitments in excess of $100,000. No additional appropriation is necessary.

COMMUNITY PILLAR

5. A City That Works

GOAL

6. Provide effective communication to and coordinate engagement with the community

ATTACHMENTS

1. Resolution

2. Exhibit A - Agreement with Tri-Valley Community Television Corporation

Prepared by: Marie Weber
Deputy City Manager/City Clerk

304
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
305
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING THE EXECUTION OF A ONE YEAR

AGREEMENT WITH TRI-VALLEY COMMUNITY TELEVISION FOR LOCAL CABLE PROGRAMMING SERVICES FOR FISCAL YEAR 2023-24, IN AN AMOUNT NOT-TO-EXCEED $184,705
The City of Livermore (“City”) collects public, educational, governmental (“PEG”) fees from cable tv providers for local programming, but state and federal law restrict those funds to capital expenses. On July 26, 1982, the City Council adopted Resolution No. 170-82 whereby it designated the successor to Tri-Valley Community Television (“TVCTV”) as the recipient for the City’s PEG fees.

The City has directed its PEG fees to TVCTV, but TVCTV cannot use PEG fees for operational expenses. The Cities of Dublin and Pleasanton also direct their PEG fees to TVCTV, and all three cities provide operational funding from their general fund budgets for TVCTV’s operating expenses. The City of Livermore’s share of the annual operating funds for TVCTV is $184,705, which pays for local programming services.

The City has provided annual subsidy funding to TVCTV since 1999 for operating expenses. As part of the 2023 biennial budget process, the City recently reviewed funding requirements for various organizations receiving City money and identified areas where enhancements are needed to conform more closely with industry best practices.

Consistent with financial best practices, it is essential to define the scope of services through a contractual agreement between the City and TVCTV. This will help ensure transparency, accountability, and alignment of expectations between the City and TVCTV, as well as ensure compliance with the City’s Purchasing Policy.

Operating funds for TVCTV were included as part of the General Fund appropriation in the FY 2023-24 Financial Plan approved by the City Council on June 12, 2023. The City’s Municipal Code Chapter 2.68, Contracts and Purchasing, requires City Council approval for expenditures exceeding $100,000. Staff recommended the City Council authorize the City Manager to execute an agreement with TVCTV to expend the $184,705 budgeted for cable programming services. No additional appropriation is necessary for Fiscal Year 2023-24.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby authorizes the City Manager, on behalf of the City of Livermore, to execute a professional production and broadcasting services agreement with TVCTV, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney’s review and approval as to form and subject to the Risk Manager’s review and approval as to insurance, in an amount not-to-exceed $184,705 as part of the General Fund for local cable programming by Tri-Valley Community Television for Fiscal Year 2023-24.
306
RESOLUTION NO. ________
On motion of Council Member ______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_____________________________ /s/ Jason R. Alcala
Marie Weber Jason R. Alcala
City Clerk City Attorney
Exhibit A - Agreement with Tri-Valley Community Television Corporation 307
Tri-Valley Community Television Subsidy Agreement Page 1

AGREEMENT BETWEEN CITY OF LIVERMORE
AND

TRI-VALLEY COMMUNITY TELEVISION
FY 2023-2024
T
HIS AGREEMENT , is entered into this ______ day of ____________, 2023 between the City of Livermore, a municipal corporation ("City") and Tri-Valley Community Television Corporation ("Recipient").

RE
CITALS
A. T
he City along with the Cities of Dublin and Pleasanton participates in Tri- Valley Community Television, which provides shared services for Government, Community and Educational programming to Livermore and surrounding cities. Content may include public meetings, events and key City and community programs
B.

Recipient is a non- profit corporation organized and incorporated in 1982 and designated, as provided for in the Telecommunications Act of 1934, to administer government and community television services in the Tri-Valley area.

C. T
he City has partnered with Recipient since 1972 to technically operate and produce content for local community television to the City of Livermore which is televised exclusively on Comcast channels 28, 29 and 30 and AT& T U-Verse.

D. T
he City, along with the cities of Dublin and Pleasanton provide a portion of the operating funds for the Recipient . At the May 8, 2023 Tri -Valley Community Television Board of Directors meeting, the Board of Directors approved the 2023- 2024 Operating Budget for the Recipient. The City of Livermore's proportionate share of the Budget is $184,705 for operational and administration services of the broadcast facilities.

REEMENT
N
OW, THEREFORE, City and Recipient hereby agree that the aforementioned recitals are true and correct and further agree as follows:

I. S

COPE OF WORK
A. Services
R
ecipient shall provide professional production and broadcasting services to the City as more particularly set forth in Exhibit “A” (“the Services”).

EXHIBIT A
308
Tri-Valley Community Television Subsidy Agreement Page 2

B. B udget

The City will issue, and Recipient will use, funds in the amount of $184,705 (the “Funds”) to perform the Services consistent with the terms and conditions of this Agreement. The City has not committed any funds to Recipient beyond Fiscal Year 2023-

24. II. TIME OF PERFORMANCE

Recipient shall provide the Services during the fiscal year period beginning July 1, 2023 and terminating June 30, 2024.

III. PAYMENT

Upon written request by Recipient, the City shall disburse $184,705 of the subsidy amount within 10 working days of the request.

IV. NOTICES

Notices under this Agreement must be delivered to the addresses below by deposit in the United States mail or by overnight delivery service, with postage prepaid and delivery confirmation:

To City: Attn: Marie Weber, Deputy City Manager/City Clerk City of Livermore
1052 S. Livermore Avenue
Livermore, California 94550

To Recipient: Attn: Melissa Tench-Stevens
Tri-Valley Community Television (TV30)
4663 Bernal Avenue, Suite B
Pleasanton, CA 94566

V. ADMINISTRATIVE REQUIREMENTS

A. D
ocumentation, Recordkeeping, Reporting and Monitoring

1. Documentation: Recipient shall document and maintain the following records including, but not limited to:

a. Records providing a full description of the Services provided and the date(s) on which each of the Services occurred; and

b. Records demonstrating that each of the Services undertaken meets of the objectives of this agreement.

2. Retention Period: Recipient shall retain all records pertinent to

EXHIBIT A
309
Tri-Valley Community Television Subsidy Agreement Page 3 expenditures incurred in the performance of the Services under this Agreement for a period of two (2) years after the termination of all services funded under this Agreement.

3. Annual Reporting: Recipient shall provide:

a. Annual Report – an Annual Report will be provided upon request summarizing the work completed and describing the accomplishments of Tri-Valley Community Television during the 2023-2024 program year.

4. Monitoring: T he City will generally monitor the Recipient ’s performance during the year. Monitoring may include a formal semi-annual review of the services/accomplishments and of the financial records of Recipient.

VI. GENERAL CONDITIONS

A. R
elationship of Parties – Independent Contractors

The relationship of the parties shall be that of independent contractors. Recipient and its employees are not City officers or employees. Recipient is responsible for the supervision and management of its employees, including any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the delivery of the Services contemplated by this Agreement.

B. H
old Harmless and Indemnity

Recipient shall defen d, indemnify and hold City, its elected officials, officers, directors, employees, agents, and designated volunteers harmless from and against any and all loss, liability, damage, including but not limited to reasonable attorney, consultant and expert fees and court costs arising out of or in connection with this Agreement, except for the gross negligence and willful misconduct of City, its elected officials, officers, directors, employees, agents, and designated volunteers.

C. A
mendments

City or Recipient may amend this Agreement at any time provided that such amendments make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of Recipient, and approved by the City. Such amendments shall not invalidate this Agreement, nor relieve or release Recipient or City from its obligations under this Agreement.

D. Li
censes and Permits

Recipient shall be responsible for obtaining all required City permits, licenses, etc., and for complying with all City Codes and Ordinances, as needed.

***Signatures on Next Page***

EXHIBIT A
310
Tri-Valley Community Television Subsidy Agreement Page 4 IN WITNESS THEREOF, the Parties have executed this Agreement as of the date first written above.

Tri-Valley Community Television Corp. .

A 501(c)3 Non Profit Corporation
“Recipient”

DATED: _______________ BY:___________________________
Melissa Tench-Stevens
Executive Director

Federal Identification Number:
94-2932324

CITY OF LIVERMORE
A Municipal Corporation
“City”

DATED: _______________ BY: __________________________
Marianna Marysheva
City Manager

APPROVED AS TO FORM:

_________________________________

ASSISTANT/CITY ATTORNEY

Exhibit A - Scope of Work

EXHIBIT A
311
Tri-Valley Community Television Subsidy Agreement Page 5

EXHIBIT A - SCOPE OF WORK
Tri-Valley Community Television Corporation (TVCTV) will provide the following production and broadcasting services to the city:

Broadcasting:
1) Provide the technical infrastructure to receive and send programming to the head end for televised broadcast to Comcast and AT&T U-Verse all three channels to cover government and community events.
2) Ensure the technical signal, content, and all other obligations meet regulatory compliance. This includes but is not limited to video and audio specifications and emergency broadcast ability as determined by the government, Federal Communications Commission and telecommunications industry. 3) Broadcast 24/7 on TV28, TV29 and TV30. Should technical difficulties arise, TVCTV will troubleshoot and provide a solution or an estimated time of repair. If the outage will impede the ability to broadcast or impact the budget, TVCTV will inform the City as soon as possible that a problem exists and provide an estimated timeframe for repair. If an outage occurs that impacts the ability to broadcast a City Council meeting live, notification will be provided as soon as possible prior to the meeting start time.

Production:
1) P roduce, edit and broadcast regular bi-weekly or monthly programming to include:
a. The Mayors Report (half hour program interviewing the Mayor of the City on current topics),
b. Slice of Life (magazine program that covers people and events in Livermore each month),
c. Conversations with Mel McKay (Public affairs talk half hour currently hosted by KKIQ Radio personality. Guests and information may support the City and/or non-profits in the Livermore area),
d. Tri-Valley Sports Final (weekly High School sports highlight program designed for community engagement and support).
e. Slipstream (studio produced local government and community news program highlighting past and upcoming events including. Segments include: Government, Community, Education, Food/Recreation and Entertainment)
f. Capture various City events researched by TVCTV or requested by the City and determined by TVCTV to be included into regular programming g. * Record, edit and broadcast
i. Livermore Sights and Sounds Parade
ii. State of the City address.

EXHIBIT A
312
Tri-Valley Community Television Subsidy Agreement Page 6 2) P roduce regular press releases regarding programming, city events and marketing programs.
3) M aintain various social media platforms with frequent updates to help promote programming.
4) S imulcast televised broadcasts which includes meetings and all programming on web domains: tv30.org, tv30live.org, tv28live.org, tv29live.org 5) Post the viewing schedule to tv30.org, and provide to Comcast for their guide. 6) Provide closed captioning on all programming broadcasting on Comcast TV28 and 29 or simulcasting on TV28 and 29.
7) Maintain a streaming engine that can handle an infinite number of users with low latency.
8) During an emergency, provide a lower third crawl across all broadcasting on TV30. This can include but is not limited to: locations of cooling or warming centers, pandemic emergencies, flooded roads and sand bag locations.

Infrastructure/Operational:
1) The City’s proportionate share will partially cover the base operational expenses and broadcast the three channels for the fiscal year 2023-2024. These expenses include but are not limited to insurance, employee expenses, and business operating expenses.

EXHIBIT A
313

CITY COUNCIL STAFF REPORT
ITEM NO. 5.13

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing the acceptance for permanent maintenance and release of the security bonds, and execution of a Notice of Completion for the Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28 and authorize the City Manager to sign the Notice of Completion, a copy of which is attached as Exhibit A to the resolution.

SUMMARY
On February 13, 2023, the City Council awarded the contract for construction of the Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28 to Penkor Wrecking. The contract was substantially completed on June 19, 2023, and can be accepted for permanent maintenance. The process to release the contractor's bonds can begin.

DISCUSSION
The Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28 involved demolishing the old Council Chambers located at 3575 Pacific Avenue and constructing a six-foot tall decorative steel fence and two decorative rolling gates around the perimeter of the lot. The project was completed in accordance with the contract documents in a manner acceptable to the City Engineer and can now be accepted for permanent maintenance.

At time of award, the contractor provided a faithful performance bond guaranteeing completion of the project, and that bond must now be released. Six months after the date of the resolution accepting the project, the labor and materials bond guaranteeing the improvements should be reduced to an amount equal to any claims filed and of which notice has been given. The balance of the bond will be released upon the settlement of all claims and obligations for which the security was given. All claims for this project have been settled. The security for the guarantee and warranty of work shall remain in effect for 314
one year from the date of the resolution.

FISCAL AND ADMINISTRATIVE IMPACTS

The original construction contract amount was $126,000, plus a $50,000 contingency for change orders.

The final contract amount is $126,000, which is the original contract based on final bid item quantities anticipated, and no change orders.

This project involves the removal of a building and therefore does not increase operations and maintenance costs.

COMMUNITY PILLAR
5: A City that Works

GOAL
14: Develop, operate, and maintain the city's infrastructure

GUIDING DOCUMENT

2023-2028 Capital Improvement Plan

ATTACHMENTS

1. Location Map

2. Resolution

3. Exhibit A - Notice of Completion

Prepared by: Mike Stamm
Construction Inspection Manager

Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
315
This map is based on City of Livermore GIS Information and reflects the most current information at the time of this printing. The map is intended for reference purposes only and the City and its staff is not responsible for errors or omissions.
2,000
Livermore IT, GIS Services
333.3
1:NAD_1983_2011_StatePlane_California_III_FIPS_0403_Ft_US Feet333.30 Notes166.67
ATTACHMENT 1
316
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING ACCEPTANCE FOR PERMANENT MAINTENANCE,

RELEASE OF SECURITY BONDS, AND EXECUTION OF A NOTICE OF COMPLETION FOR THE POLICE FACILITY EXPANSION PHASE 1, COUNCIL CHAMBER DEMOLITION, PROJECT 2000-28
The City Engineer of the City of Livermore (“City”) has filed with the City Clerk a report in writing that all work on the Police Facility Expansion Phase 1, Council Chamber Demolition, Project 2000-28 (“Project”), has been completed to City standards. The Project is ready for acceptance by the City of Livermore for routine maintenance.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that:

1. The faithful performance bond guaranteeing the Project is hereby released;

2. The labor and materials bond guaranteeing the Project shall, six months after the date of this resolution, be reduced to an amount equal to the amount of all claims filed and of which notice has been given. The balance of the bond shall be released upon the settlement of all such claims and obligations for which the security was given;

3. The security for the guarantee and warranty of work shall remain in effect for one year from the date of this resolution. The contractor is required to reconstruct any deficiencies that occur and to repair or replace defective materials during the maintenance period;

4. The City hereby accepts the improvements; and

5. The City Manager is authorized to sign the Notice of Completion, a copy of which is attached hereto as Exhibit A and incorporated by this reference.

On motion of Council Member _______________________, seconded by Council Member _______________, the foregoing resolution was passed and adopted on July,24 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Katherine Mirassou
Marie Weber Katherine Mirassou
City Clerk Deputy City Attorney
Exhibit A – Notice of Completion
317

EXHIBIT A
318

CITY COUNCIL STAFF REPORT
ITEM NO. 5.14

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the public streetscape improvements on the south side of First Street between L Street and M Street constructed as part of First Street South Side Improvements - Downtown Streetscape Phase II Project 200827.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the public streetscape improvements on the south side of First Street between L Street and M Street constructed as part of First Street South Side Improvements - Downtown Streetscape Phase II Project 200827.

SUMMARY
Livermore Mulitfamily Owner LLC entered into Development Agreement 18-002 with the City on June 25, 2018. The provisions of the Development Agreement outlined the requirements for constructing the downtown streetscape improvements on the south side of First Street between L Street and M Street.

The site location is shown in Attachment 1. To secure the construction of the First Street south side public improvements, Livermore Mulitfamily Owner LLC entered into a Public Improvement Agreement with the City on November 25, 2019, and provided security bonds.

The Developer has completed these public improvements. The City Council can now accept the First Street south side improvements for permanent maintenance. The process to release the Developer's bonds can begin.

DISCUSSION
Development Agreement 18-002 was approved by City Council on June 25, 2018. The provisions of the Development Agreement outline the requirements for constructing the downtown streetscape improvements on the south side of First Street by Livermore Multifamily Owner, LLC. The improvements consist of downtown streetscape construction, including sidewalks, trellises, flex zone parking, lighting, and landscaping along the south side of First Street between L Street and M Street. Other improvements 319
included full reconstruction of First Street pavement, reconfiguring the traffic signal at First and L Street, and upgrades to accessible ramps at the corners.

On November 25, 2019, the City Council approved a Public Improvement Agreement with Livermore Multifamily Owner, LLC for constructing these First Street streetscape improvements with bonds to secure the installation.

The Developer has fulfilled all of the obligations as described in the Public Improvement Agreement to the satisfaction of the City Engineer. The City can now accept the First Street south side improvements for permanent maintenance. The Developer provided a faithful performance bond guaranteeing completion of the project, and that bond must now be released. Six months after the date of the resolution accepting the project, the labor and materials bond guaranteeing the improvements should be reduced to an amount equal to any claims filed and of which notice has been given. The balance of the bond will be released upon the settlement of all claims and obligations for which the security was given.

The security for the guarantee and warranty of work shall remain in effect for one year from the date of the resolution.

FISCAL AND ADMINISRATIVE IMPACTS

The final amount of the reimbursements to Livermore Multifamily Owner, LLC for the First Street south side improvements will total $2,161,000. In accordance with Development Agreement 18-002, the City agreed to reimburse the Developer for the construction of the First Street south side improvements in 3 installments that correspond to various stages of the project. Funding for these reimbursements is included in the budget for Downtown Streetscape Phase II Project 2008-27 in the 2023-2028 Capital Improvement Plan and no additional funding is needed. The project is funded with Gas Taxes (Fund 651), Measure B (Fund 678), and Measure BB (Fund 688). To date, the Developer has received 2 reimbursement installments for a total amount of $1,399,000. The remaining estimated reimbursement amount of $762,000 is contingent upon the City accepting the public improvements for permanent maintenance.

The estimated annual operations, maintenance, and replacement costs for the public infrastructure, including sidewalk, curb, gutter, pavement, streetlights, sewer, and storm drain lines is approximately $40,000. The Downtown Landscape Maintenance District will provide the funding to maintain the First Street streetscape that has been installed with this project. The water system belongs to California Water Service, and they will cover the cost of maintaining the water system.

COMMUNITY PILLAR
4: Inclusive and Inviting Spaces and Places

GOAL
3: Continue to implement the Downtown Specific Plan

GUIDING DOCUMENT
Downtown Specific Plan

ATTACHMENTS

1. Location Map
320

2. Resolution

Prepared by: Debbie Salgado
Senior Civil Engineer

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING ACCEPTANCE FOR PERMANENT MAINTENANCE,

AND RELEASE OF SECURITY BONDS FOR THE FIRST STREET SOUTH SIDE

IMPROVEMENTS
(First Street South Side Improvements - Downtown Streetscape Phase II, Project No. 2008-27)
The City Engineer of the City of Livermore (“City”) has filed with the City Clerk a report in writing that all work on the First Street South Side Improvements, Downtown Streetscape Phase II, Project No. 2008-27 (“Project”), has been completed to City standards. The Project is ready for acceptance by the City of Livermore for routine maintenance.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that:

1. The faithful performance bond guaranteeing the Project is hereby released;

4. The City hereby accepts the improvements.

On motion of Council Member _______________________, seconded by Council Member _______________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Molly O’Toole
Marie Weber Molly O’Toole
City Clerk Deputy City Attorney
323

CITY COUNCIL STAFF REPORT
ITEM NO. 5.15

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing the acceptance for permanent maintenance, release of the security bonds and execution of a Notice of Completion for the Real Time Awareness Center, Project 2019-58.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the Real Time Awareness Center Project 2019-58 and authorizing the City Manager to sign the Notice of Completion, a copy of which is attached as Exhibit A to the resolution.

SUMMARY
On December 13, 2021, the City Council awarded the contract for construction of the Real Time Awareness Center to Evra Construction, Inc. The contract was substantially completed on August 16, 2022, and can be accepted for permanent maintenance. The process to release the contractor's bonds can begin.

DISCUSSION
This project consisted of converting the bike storage room at the Police Building into a Real Time Awareness Center (RTAC) facility. Attachment 1 shows the location of the Police Building. Renovations included new interior finishes, new lighting, upgrades to HVAC mechanical system, installation of new interior partitions, new sliding doors, a swing door, new door hardware, electrical upgrades and new door access controls. The project was completed in accordance with the contract documents in a manner acceptable to the City Engineer and can now be accepted for permanent maintenance.

At time of award, the contractor provided a faithful performance bond guaranteeing completion of the project, and that bond must now be released. Six months after the date of the resolution accepting the project, the labor and materials bond guaranteeing the improvements should be reduced to an amount equal to any claims filed and of which notice has been given. The balance of the bond will be released upon the settlement of all claims and obligations for which the security was given. All claims for this 324
project have been settled. The security for the guarantee and warranty of work shall remain in effect for one year from the date of the resolution.

FISCAL AND ADMINISTRATIVE IMPACTS

The original construction contract amount was $472,000, plus a $50,000 contingency for change orders.

On October 24, 2022, City Council authorized an increase in the change order contingency to $60,000.

The final contract amount is $528,316, which is 11.2 percent above the original contract based on final bid item quantities, and 9 change orders. The total value of change orders was $56,316 which consisted primarily of unforeseen conditions due to obsolete electrical panels and HVAC controls system. The final bid quantities were as anticipated.

It is estimated that operations and maintenance costs for the Real Time Awareness Center will be $215,000 per year for software and $10,000 per year for upkeep of the tenant improvements. Software costs will be funded from the Police Department Operating Budget. The tenant improvement maintenance costs will be funded from the Public Works Operating Budget.

COMMUNITY PILLAR
1: A Safe Community That Thrives

GOAL
2: Provide proactive and effective public safety and crime prevention through direct enforcement, education, and partnerships

GUIDING DOCUMENT
2023-2028 Capital Improvement Plan

ATTACHMENTS

1. Location Map

2. Resolution

3. Exhibit A - Notice of Completion

Prepared by: Joe Kuderca
Associate Engineering Technician

Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
325
City of Livermore
This map is based on City of Livermore GIS Information and reflects the most current information at the time of this printing. The map is intended for reference purposes only and the City and its staff is not responsible for errors or omissions.
2,000
Livermore IT, GIS Services
333.3
1:NAD_1983_2011_StatePlane_California_III_FIPS_0403_Ft_US Feet333.30 Notes166.67
ATTACHMENT 1
326
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING ACCEPTANCE FOR PERMANENT MAINTENANCE,

RELEASE OF SECURITY BONDS, AND EXECUTION OF A NOTICE OF COMPLETION

FOR THE REAL TIME AWARENESS CENTER
(Real Time Awareness Center, Project No. 2019-58)
The City Engineer of the City of Livermore (“City”) has filed with the City Clerk a report in writing that all work on the Real Time Awareness Center, Project No. 2019-58 (“Project”), has been completed to City standards. The Project is ready for acceptance by the City of Livermore for routine maintenance.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that:

1. The faithful performance bond guaranteeing the Project is hereby released;

4. The City hereby accepts the improvements; and

5. The City Manager is authorized to sign the Notice of Completion, a copy of which is attached hereto as Exhibit A, and incorporated by this reference.

On motion of Council Member _______________________, seconded by Council Member _______________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Molly O’Toole
Marie Weber Molly O’Toole
City Clerk Deputy City Attorney
Exhibit A – Notice of Completion
327

EXHIBIT A
328

CITY COUNCIL STAFF REPORT
ITEM NO. 5.16

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution to summarily vacate a public right-of-way, known as Lot 6 of Parcel Map 6986, and retain the rights of the existing public utility easement within Lot 6, located at Las Positas Road and Bennett Drive.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution to summarily vacate a right-of-way known as Lot 6 of Parcel Map 6986 but retain the rights of the existing public utility easement within Lot 6 and authorize the City Manager to quitclaim Lot 6 (right-of-way) to TH Arroyo Vista LLC, a California Limited Liability Company.

SUMMARY
Staff proposes to vacate a right-of-way known as Lot 6 of Parcel Map 6986 as depicted in the vicinity map (Attachment 1) and as described in the Plat and Legal Description, Exhibit A to the resolution. This vacation fulfills the City’s obligation noted on Parcel Map 6986 that states after the realigned streets of Las Positas Road and Bennett Drive are constructed, the City shall deed Lot 6 to the owner of Lot 5, retaining the rights of the existing public utility easements within Lot 6.

The roadway improvements realigning the intersection of Las Positas Road and Bennett Drive have been completed and this right-of-way is no longer needed. Therefore, the City can summarily vacate the right-of-way known as Lot 6 of Parcel Map 6986 and authorize the execution of the quitclaim deed releasing the right-of-way to TH Arroyo Vista LLC, a California Limited Liability Company (Property Owner of Lot 5), retaining the rights of the existing public utility easements within Lot 6.

DISCUSSION
On July 24, 2017, the City Council approved Vesting Tentative Tract Map 8379 Arroyo Vista for the development of 435 residential units. The first phase of the tentative map, consisting of 86 single family homes and 109 row townhome units, is located on the west side of the Arroyo Seco Channel along Las Positas Road. The second phase of the tentative map, consisting of 132 row townhomes and 108 duet flats, is located on the east side of the Arroyo Seco Channel for the Arroyo Vista subdivision along Las 329
Positas Road and Bennett Drive.

The tentative map conditions of approval include the requirement that the City vacate Lot 6 of Parcel Map 6986 (public right-of-way) located at the intersection of Las Positas Road and Bennett Drive, retaining the rights of the existing public utility easements within Lot 6. Parcel Map 6986 states after the realignment of Las Positas Road and Bennett Drive are constructed, the City shall deed Lot 6 to the owner of Lot 5, retaining the rights of the existing public utility easements within Lot 6. This right-of-way is no longer needed due to the completion of the realignment of Las Positas Road and Bennett Drive. Lot 6 right-of-way conflicts with building footprints and walkways approved as part of the second phase of the tentative map for the Arroyo Vista project. The vacation of this right-of-way will facilitate the development of the second phase of the tentative map.

Government Code Section 65402(a) requires that if a General Plan has been adopted, no real property or easements used for public purposes shall be acquired or disposed of until the location, purpose, and extent of such acquisition or disposition has been reported upon by the planning agency (e.g. Planning Commission) as to conformity with its adopted General Plan. This includes vacation of public right-of-way needed for public purposes in whole or in part.

On June 6, 2023, the Planning Commission adopted a resolution approving Consistency Determination (CD) 23-001, finding that the right-of-way known as Lot 6 is no longer needed for public highway purposes and that the vacation of this right-of-way is consistent with the General Plan.

FISCAL AND ADMINISTRATIVE IMPACTS

The financial burden to maintain this unused public right-of-way in a safe condition is greater than its public value. By vacating the property, the City eliminates the need to maintain the property and reduces associated liability resulting in a minor financial benefit to the City.

COMMUNITY PILLAR
2: A Safe Community that Thrives

GOAL
9: Facilitate new residential development consistent with the City's General Plan

ATTACHMENTS

1. Vicinity Map

2. Resolution

3. Exhibit A - Lot 6 (right-of-way) Plat & Legal Description

4. Exhibit B - Quitclaim Deed, TH Arroyo Vista LLC

Prepared by: Hamm Inthavong
Senior Engineering Technician

330
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
331

CITY OF
COMMUNITY DEVELOPMENT DEPARTMENT. ENGINEERING DIVISION
ATTACHMENT 1
VICINITY MAP - TRACT 8379
Sheet 1
Of 2
Scale: NONE
ATTACHMENT 1

Page 1 of 2332 ends

Livermore City CouncilJuly 24, 2023

Livermore City Council
July 24, 2023