Livermore City Council
September 9, 2024

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4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.

IV. SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.

B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.

C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.

D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.

E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.

F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.

In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.

G. Prompt Payment of Withheld Funds to Subconsultants
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT.

Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning

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subconsultant within 15 days after the subconsultant’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and nonDBE subconsultants.

Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.

V. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.

B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.

C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:

1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.

2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.

VI. STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.

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B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.

C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.

D. Payroll Records

1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.

2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT.

The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.

3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a

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written request.

4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.

5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.

6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.

Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.

E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.

F. Penalty

1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.

2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.

3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.

4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the following requirements:

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a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.

5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.

6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.

G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.

H. Employment of Apprentices

1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.

2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements.

Penalties are specified in Labor Code §1777.7.

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VII. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.

For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

VIII. PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR

LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:

1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.

C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.

IX. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.

B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran

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status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.

D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.

E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.

G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.

H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.

I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

X. DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of

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ineligibility by any federal agency;

2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;

3. Does not have a proposed debarment pending; and

4. 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 (3) years.

B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.

C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.

XI. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26).

To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.

CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.

All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.  60 percent counts if the materials or supplies are purchased from a DBE regular dealer.  Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.

B. The goal for DBE participation for this AGREEMENT is 17.00 %. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the

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AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.

D. Contract Assurance
Under 49 CFR 26.13(b):

CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.

Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.

Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:

1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.

2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.

3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.

4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).

5. Listed DBE's work is unsatisfactory and not in compliance with the contract.

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6. Listed DBE is ineligible to work on the project because of suspension or debarment.

7. isted DBE becomes bankrupt or insolvent or exhibits credit unworthiness.

8. Listed DBE voluntarily withdraws with written notice from the Contract.

9. Listed DBE is ineligible to receive credit for the type of work required.

10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.

11. The LOCAL AGENCY determines other documented good cause.

CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:

1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above.

Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.

2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.

3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation. • CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice • The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.

The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.

Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement.

CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.

The following procedures shall be followed to request authorization to replace a DBE firm:

1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to

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perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment

2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self-perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached • If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.

F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.

The LOCAL AGENCY shall request CONSULTANT to:

1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation

2. Provide this notification before starting the affected work

3. Maintain records including:
• Name and business address of each 1 -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.

If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit

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the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.

Upon work completion, CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.

In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.

G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.

CONSULTANT must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.

CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.

Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.

CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.

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The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.

CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.

If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.

If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.

H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.

I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.

J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.

The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the

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corresponding dollar value of the work.

K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.

L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F:

Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.

For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.

M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.

XII. SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.

CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.

B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.

CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.

C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.

D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.

XIII. OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.

Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s

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possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.

B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.

C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.

Any reuse by City for another project or project location shall be at City’s sole risk.

D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federalaid contracts).

E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.

XIV. CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.

B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.

C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.

D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.

E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.

F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.

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XV. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.

XVI. PROMPT PAYMENT
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
The LOCAL AGENCY shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY shall pay interest to the CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY to the CONSULTANT as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.

B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.

The LOCAL AGENCY must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGENCY must email a copy of Exhibit 9-P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.

XVII. TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES

APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter

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referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives.

Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.

CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.

APPENDIX B

CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:

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NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.

Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the abovementioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)

APPENDIX C

CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE

ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):

A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:

1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.

Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be

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amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.

B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Nondiscrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)

APPENDIX D

CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE

ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):

A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.

B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.

APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:

Pertinent Non-Discrimination Authorities:

EXHIBIT D
Docusign Envelope ID: 68CA9F31-00E5-4004-B052-F6B867B068E0

EXHIBIT A
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May 2023
Caltrans Local Assistance Procedures Manual
Exhibit 10-R
A&E Boilerplate Agreement Language
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).

EXHIBIT D
Docusign Envelope ID: 68CA9F31-00E5-4004-B052-F6B867B068E0

EXHIBIT A
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7/10/2024 925-960-4517 Associate Civil Engineer Leon Taing ER15-J7(107)

EXHIBIT E
1 Docusign Envelope ID: 68CA9F31-00E5-4004-B052-F6B867B068E0

EXHIBIT A
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7/10/2024 925-960-4517 Associate Civil Engineer Leon Taing ER15-J7(107)

EXHIBIT E
Docusign Envelope ID: 68CA9F31-00E5-4004-B052-F6B867B068E0

EXHIBIT A
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CITY COUNCIL STAFF REPORT ITEM NO. 5.8
DATE: September 9, 2024
TO: Honorable Mayor and City Council
FROM: Brent Smith, Community Development Director
SUBJECT: Resolution approving Final Tract Map 8689 Arroyo Vista (Phase 2), authorizing execution of a Subdivision Improvement Agreement for the Arroyo Vista Project located on the east side of the Arroyo Seco Channel along Las Positas Road, and accepting on behalf of the public all real property offered for dedication within Final Tract Map 8689 except for certain easements which Council reserves the right to accept at a future date.

RECOMMENDED ACTION
Staff recommends the City Council adopt a resolution:

1. Finding that the requirements of the California Environmental Quality Act have been satisfied,

2. Approving Final Tract Map 8689 for recording,

3. Approving and authorizing execution of the Subdivision Improvement Agreement for Tract 8689 which includes a 12-month extension (24 months in total) to complete the required improvements, and

4. Accepting, on behalf of the public, all real property offered for dedication within Final Tract Map 8689 in conformance with the terms of the offer, except for the following: Public Utility Easement (P.U.E), Public Water Line Easement (W.L.E), and Public Sanitary Sewer Easement (S.S.E.), Parcel V (Fontana Street, Dolcetto Loop and Tarrango Street), Las Positas Road and Bennett Drive Street Dedications, and Emergency Vehicle Access Easement (E.V.A.E.) which the Council rejects at this time, reserving the right to accept the offer at a future date.

SUMMARY
In 2017 the City Council approved Vesting Tentative Tract Map 8689 (SUB16-010) Arroyo Vista for the development of 435 residential units consisting of Tract 8379 and Tract 8689. The first phase of the tentative map, Tract 8379, consists of 86 single family homes and 109 townhome units, and is located on the west side of the Arroyo Seco Channel along Las Positas Road. The second phase of the tentative map, Tract 8689, consists of 132 townhomes and 108 duet flats, and is located on the east side of the Arroyo Seco Channel along Las Positas Road and Bennett Drive. TH Arroyo Vista LLC, a California Limited Liability Company (Developer) has completed the Final Tract Map - Phase 2 and a Subdivision Improvement Agreement in substantial conformance with Vesting Tentative Tract Map 8379 and the 311
conditions of approval.

The proposed Subdivision Improvement Agreement will secure the construction of the public and private improvements. Public improvements include public sewer, water, lighting, streets and sidewalks, buffered bike lanes, and a portion of Las Positas Road and Bennett Drive. Private improvements include private streets, sidewalks, storm drain, open space, bio-retention basins, and lighting. Final Tract Map 8689 can now be approved. All real property offered for dedication on Final Tract Map 8689 can be accepted at this time, except for the following: Public Utility Easement (P.U.E), Public Water Line Easement (W.L.E), and Public Sanitary Sewer Easement (S.S.E.), Parcel V (Fontana Street, Dolcetto Loop and Tarrango Street), Las Positas Road and Bennett Drive street dedications, and Emergency Vehicle Access Easement (E.V.A.E.)., reserving the right to accept the offers at a future date.

DISCUSSION
On July 24, 2017, the City Council approved Vesting Tentative Tract Map 8379 (SUB16-010) Arroyo Vista for the development of 435 residential units. The property owner and developer, TH Arroyo Vista LLC, a California Limited Liability Company (Developer), has completed Tract Map 8689 and improvement plans, which staff has found to be in substantial conformance with the conditions of approval for Vesting Tentative Tract 8379. The improvement plans have been approved and are on file with the City Engineer. The Developer has entered into a low-income housing agreement with the City of Livermore (City), which includes 39 affordable for-sale units for Phase 2.

The Developer is responsible for funding and constructing the private and public improvements required for this development. Public improvements include public sewer, water, lighting, landscaping, buffered bike lanes along Las Positas Road, and new public streets known as Fontana Street, Dolcetto Loop and Tarrango Street (connecting Las Positas Road and Bennett Drive). Private improvements include private streets, sidewalks, storm drain, bio-retention basins, open space, and lighting. Community Facilities District 2023-2 (Arroyo Vista Maintenance and Services) was formed by City Council on January 22, 2024, to fund the public landscaping along Las Positas Road. The Developer has also submitted a Site Plan Design Review Modification (SPDRM) for an in-lieu bridge alternative which has been approved by the Planning Commission on July 16th and is scheduled for review at the September 9th City Council meeting. A condition of the SPDRM alternative includes elimination of the pedestrian bridge for an in-lieu financial contribution of two million dollars split evenly between the Community Benefit Fund and the Social Opportunity Endowment Fund.

The proposed Subdivision Improvement Agreement will secure the construction of the public and private improvements. The Developer has provided the required insurance and has provided bonds securing the construction of improvements per the provisions of the Subdivision Improvement Agreement. The bonds are on file in the City Clerk’s office. The bonds will be released once the public improvements have been completed and accepted by the City. According to Development Code section 10.05.090, the subdivider must complete the improvements within 12 months from the date of recording of the final map, unless an extension is granted by the City Council. The subdivider has requested a 12-month extension to complete the improvements. Staff recommends that a 12-month extension should be granted to the subdivider, for a total of 24 months, to provide ample time to complete the improvements as required.

The private infrastructure improvements, including storm drains, landscaping, and bio-retention basins will be privately maintained through the Homeowners Association. Staff has reviewed the Covenants, Conditions and Restrictions (CC&R's) and determined that the maintenance of this infrastructure has 312
been adequately addressed.

Final Tract Map 8689 includes an offer of dedication for public streets, public utility easement, public water and sanitary sewer and a public Emergency Vehicle Access Easement. Staff recommends the Council reject the Public Utility Easement (P.U.E), Public Water Line Easement (W.L.E), and Public Sanitary Sewer Easement (S.S.E.), Parcel V (Fontana Street, Dolcetto Loop and Tarrango Street), Las Positas Road and Bennett Drive Street Dedications, and Emergency Vehicle Access Easement (E.V.A.E.), reserving the right to accept the offers at a future date after these public improvements have been completed.

FISCAL AND ADMINISTRATIVE IMPACTS
The estimated annual cost for maintenance of public infrastructure, including curb, gutter, sidewalk, paving, streetlights, sewer and water is $52,400. $11,000 of this cost is funded by sanitary sewer user fees (Fund 620), and $28,000 of this cost is funded by water user fees (Fund 640). The remaining $7,400 is funded by the General Fund (Fund 100) and other use taxes, which is partially derived from increased property taxes generated from the new development.

Funding for other public infrastructure maintenance cost not covered by user fees is provided by the Community Facilities District No. 2023-2 (Arroyo Vista Maintenance & Services) which will be collected from the property owners. The annual maintenance costs of $27,000 include the landscape, drainage, and sidewalk along Las Positas Road.

COMMUNITY PILLAR
1: A Safe Community That Thrives
GOAL
9: Facilitate new development consistent with the City's General Plan

ATTACHMENTS

1. Vicinity Map

2. Resolution

3. Exhibit A - Final Tract Map 8689

4. Exhibit B - Subdivision Improvement Agreement
Prepared by: Farnoush Levers
Assistant City Engineer
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Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
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PROJECT SITE

CITY OF
LIVE��!W

COMMUNITY DEVELOPMENT DEPARTMENT - ENGINEERING DIVISION ATTACHMENT 1
VICINITY MAP - TRACT 8379
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8689 Project Site
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RESOLUTION NO.
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IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA A RESOLUTION APPROVING FINAL TRACT MAP 8689 ARROYO VISTA (PHASE 2), AUTHORIZING EXECUTION OF A SUBDIVISION IMPROVEMENT AGREEMENT

FOR THE ARROYO VISTA PROJECT LOCATED ON THE EAST SIDE OF THE

ARROYO SECO CHANNEL ALONG LAS POSITAS ROAD, AND ACCEPTING ON

BEHALF OF THE PUBLIC ALL REAL PROPERTY OFFERED FOR DEDICATION WITHIN FINAL TRACT MAP 8689 EXCEPT FOR CERTAIN EASEMENTS WHICH

COUNCIL RESERVES THE RIGHT TO ACCEPT AT A FUTURE DATE
(FINAL TRACT MAP 8689 – ARROYO VISTA PROJECT)
TH Arroyo Vista LLC (“Developer”) has presented Final Tract Map 8689 (SUB16- 010) situated in the City of Livermore, County of Alameda, a copy of which is attached hereto as Exhibit A, in accordance with the provisions of the California Subdivision Map Act (“Act”) and the Livermore Development Code. The Developer has presented a Subdivision Improvement Agreement, a copy of which is attached hereto as Exhibit B, providing for the improvements required as a condition of approval of the Final Tract Map.

The City Engineer reviewed the Final Tract Map and certified it as required by the Act and Development Code. Additionally, the City Engineer reviewed and approved the staff report concerning the Final Tract Map and Subdivision Improvement Agreement which recommends approval.

The City Attorney has reviewed the surety provided by TH Arroyo Vista LLC, to secure performance of the Subdivision Improvement Agreement as required by California and City law.

On July 24, 2017, the City Council adopted Resolution No. 2017-136 which, among other things, approved Vesting Tentative Tract Map 8379 Arroyo Vista Project, consisting of Tract 8379 (phase 1) and Tract 8689 (phase 2) (the “Project”) subject to the conditions of approval. The City Council also determined that the Project was exempt from the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15162, which exempts projects from subsequent environmental review when a negative declaration has been adopted for a project, so long as there are no subsequent changes that could cause significant environmental impacts. Any potential impacts to the environment that may result due to approval of the proposed Tract Map and Subdivision Improvement Agreement were within the scope of the environmental review approved by Resolution Nos. 2017-135 and 2017-136.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that, because any potential impacts to the environment that may be caused by approval of Final Tract Map 8689 and the Subdivision Improvement Agreement were within the scope of the environmental review approved as part of Resolution Nos. 2017- 135 and 2017-136, the requirements of the California Environmental Quality Act have been satisfied.
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RESOLUTION NO.
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BE IT FURTHER RESOLVED by the City Council of the City of Livermore that:

1. Final Tract Map 8689, attached hereto as Exhibit A, is approved and all those parcels of land, easements, and other legal interests in land offered for public use are accepted in conformity with the terms of the offer, except for the following which the City Council rejects at this time, reserving the right to accept the offers at a future date subject to Government Code sections 66477.2 and 7050:

Public Utility Easement, Public Water Line Easement, Public Sanitary Sewer Easement, Street Dedications including: Parcel V (Fontana Street, Dolcetto Loop and Tarrango Street), Las Positas Road and Bennett Drive Street Roadway Dedications and Emergency Vehicle Access Easement.

2. The Subdivision Improvement Agreement, attached hereto as Exhibit B, is approved and the Mayor is authorized to sign the Agreement on behalf of the City of Livermore.

3. It grants, pursuant to Section 10.05.090 of the Livermore Development Code, the Developer a 12-month extension, which is reflected in the Subdivision Improvement Agreement, attached hereto as Exhibit B, allowing the Developer a total of 24 months from the date of the recording of the Final Map to complete the required improvements.

4. The City Clerk is directed to execute the certificate attached to the Final Tract Map 8689 and affix the Seal of the City and to record the Final Tract Map 8689, and the Subdivision Improvement Agreement with the County Recorder.

On motion of Council Member _______________________, seconded by Council Member _______________________, the foregoing resolution was passed and adopted on September 9, 2024, 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
Deborah L. Elam Molly O’Toole
Acting City Clerk Deputy City Attorney
Exhibit A – Final Tract Map 8689
Exhibit B – Subdivision Improvement Agreement
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Subdivision Improvement Agreement
Rev. 07/22/2024 Page 1 of 10
No fee for recording pursuant to
Government Code Section 27383 and 27388.1

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

City Clerk
City of Livermore
1052 S. Livermore Avenue
Livermore, California 94550
____________________________________________________________________________

SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT is entered into by and between TH Arroyo Vista LLC, a California limited liability company (“Developer”) and the City of Livermore, a municipal corporation (“City”).

RECITALS
A. Developer is the owner of real property located within the corporate limits of the City of Livermore and has presented to the City Council of the City of Livermore a proposed subdivision, Tract Map No. 8689 recorded under Series No. , dated , Official Records of Alameda County, California (also known as “Subdivision” and/or “Property”). Developer proposes to do and perform certain improvements on said real property as set forth in this Agreement.

B. The City requires that the proposed improvements will be done in a good workmanlike manner and in accordance with the laws and standards now in force and effect in the City, the terms and conditions of which are incorporated herein by reference.

C. Developer acknowledges the pertinent laws, rules, and regulations contained in the Livermore Development Code Part 10 Subdivisions and in the Subdivision Map Act (Government Code sections 66410 to 66500) and agrees to comply therewith.

D. A Final Map of the subdivision, prepared in accordance with the Livermore Development Code Part 10 Subdivisions, has been filed by Developer with the City for approval by the City Council.

E. The City requires, as a condition precedent to the acceptance and approval of the map, the dedication of streets, highways, public utility easements, emergency vehicle access easements, public access easements and public ways shown on the map. In addition, the City requires improvement of the streets, highways, and public ways by the construction and installation of certain work as described below, and all appurtenances thereto.

F. Developer has asked the City to accept the dedication of the public improvements and street or streets shown on the map and approve the map. Public improvements have not yet been completed according to the requirements of the map and the City. As consideration for the acceptance of the Final Map and offer of dedication, the parties desire to establish an agreement binding Developer to complete improvements prior to occupancy of the development in accordance with the terms of this Agreement.

EXHIBIT B Page 1 of 30
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AGREEMENT
NOW, THEREFORE, the City and Developer hereby agree that the aforementioned recitals are true and correct and in consideration of the approval and acceptance of the Final Map by the City Council and the acceptance of easements offered for dedication for street, utility, and for public purposes, and the covenants herein contained, the parties mutually agree as follows:

1. Definition and Ownership of Improvements. The term “Improvements” means public and private improvements, and on-site and off-site improvements, and includes, but is not limited to, grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, streetlights, survey monuments, and all other required facilities as shown in detail upon the plans, profiles and specifications which have been prepared by Developer subject to approval by the City Engineer. No work on the Improvements shall be commenced until plans and/or profiles have been submitted, approved and permitted by the City Engineer. All required public improvements, as identified in the plans, profiles and specifications, constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefore, upon acceptance of the public improvements.

2. Approval of Map. The City approves the subdivision of Tract No. 8689, also known as Arroyo Vista Phase 2, and agrees to accept the dedication of the related public improvements for future maintenance.

3. Construction of Subdivision Improvements. Developer agrees to design, construct, and install, at its own expense, all of the Improvements for the Property as described in the Engineering Considerations at Exhibit “A”, attached and incorporated herein by this reference, in strict accordance with all specifications, plans, and applicable City standards, and to the satisfaction of the City Engineer. The work shall be performed, and all materials and labor shall be provided, at Developer’s sole cost and expense. Developer has provided detailed improvement plans for all on-site and off-site improvements required by the Engineering Considerations at Exhibit “A”. All required Improvements shall be constructed in accordance with the approved improvement plans (dated June 2024, sheets 1-888) and current City standard specifications and details all of which are on file in the office of the City Engineer. Developer’s obligation to complete the Improvements is separate and independent of any obligation of the City contained herein, and is not conditioned on the sale of any lots or Improvements within the Property.

4. Special Conditions. Developer shall be required to comply with the special conditions as follows:
(a) Enter into a Stormwater Operations and Maintenance Agreement for the purposes of maintaining the on-site stormwater devices which shall be recorded prior to the issuance of the 1st building permit for a residential dwelling unit other than a model home for this subdivision.
(b) Developer shall install a backflow preventor on the domestic water service to each residential unit to isolate the fire protection system from the user premises, or design the fire protection system piping to loop within the structure and connect to one or more routinely used fixtures (such as a water closet), in order to prevent stagnant water as required by new State Mandated regulations for fire protection/backflow requirements.

EXHIBIT B Page 2 of 30
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(c) In order to provide additional public benefits, Developer shall submit to the City $258,900.00 prior to the issuance of the 100th building permit, and $258,900.00 prior to the issuance of the 300th building permit for Tract 8379 and this subvision, Tract 8689 (together, the “Pedestrian/Bicycle Contributions”). Payment is subject to an annual cost escalator based on Bay Area Construction Cost Index starting on July 24, 2018. (d) Developer will provide 39 units, including 16 units of the Garden Court product and 23 units of the Flats product, for sale at affordable prices with plans and locations as described in Low Income For Sale Housing Agreement between City of Livermore and Trumark Homes, Inc.
(e) The Project shall comply with the public art requirements set forth in Chapter 12.51 of the Livermore Municipal Code. Pursuant to this Chapter, the developer intends to pay the in-lieu fee instead of providing the public art per the aforementioned municipal code prior to the issuance of the 1st building permit.
(f) Developer shall provide final Joint Trench Plans that include PG&E approved signature prior to issuance of the 1st building permit for the Project. (g) The Developer is required to construct a pedestrian bridge across the Arroyo Seco Channel no later than the issuance of the 240th building permit for the Project. The Developer has applied for a site plan design review modification (SPDRM) 24-002 for the elimination of the pedestrian bridge across the Arroyo Seco Channel for alternative in-lieu contributions. If the SPDRM to eliminate the pedestrian bridge for in-lieu contributions is approved by City Council, construction of the bridge is no longer required and the Developer shall then provide any in-lieu contributions as required by the City Council and pay for any costs incurred by the City required to vacate the Zone 7 aerial easement that was dedicated to the City.

5. Time for Completion. All Improvements shall be complete and ready for acceptance by the City Council, as determined by the City Engineer, prior to the occupancy of the first residential dwelling unit other than a model home but in any event no later than two years after the recording of the Final Map, except those Improvements for which another completion date is stated in Exhibit "A" or Section 4, Special Conditions, of this Agreement, if applicable.

6. Permits, Licenses, and Compliance with the Law. Developer shall, at Developer’s expense, obtain and maintain all necessary permits and licenses for the performance of the work specified in this Agreement. Developer shall also comply with all local, state, and federal laws, ordinances, rules, and regulations whether or not said laws are expressly stated in this Agreement.

7. Developer’s Obligation to Warn Public During Construction. Until recordation of the Resolution of Acceptance, Developer shall give good and adequate warning to the public of any unsafe condition of the public improvements and shall take reasonable actions to protect the public from such condition. Until recordation of the Resolution of Acceptance, Developer shall provide forty-eight (48) hours’ advance written notice to all neighboring property owners and tenants affected by Developer’s operations and/or construction of the hours, dates and duration of any planned construction activities.

8. Injury to Public Improvements, Public Property or Public Utility. Until recordation of the Resolution of Acceptance of the public improvements, Developer assumes responsibility for EXHIBIT B Page 3 of 30
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the care and maintenance of, and any damage to, the public improvements. Developer shall replace or repair all public improvements, public property, public utility facilities, and surveying or subdivision monuments and benchmarks which are destroyed or damaged for any reason, regardless of whether resulting from the acts of Developer, prior to the recordation of the Resolution of Acceptance. Developer shall bear the entire cost of such replacement or repairs regardless of what entity owns the underlying property. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer.

Neither the City, nor any officer or employee thereof, shall be liable or responsible for any accident, loss or damage, regardless of cause, occurring to the work or public improvements prior to recordation of the Resolution of Acceptance of the work or improvements.

9. Acceptance by City. The City shall accept for maintenance the on-site and off-site public improvements required by this Agreement after City has determined Developer has caused all Improvements to have been made in accordance with the requirements of Section 3, Construction of Subdivision Improvements, of this Agreement. All on-site and off-site public improvements required by this Agreement shall become the sole property of the City when the City accepts such improvements for permanent maintenance.

10. Continued Maintenance for One Year. Developer shall maintain all improvements required by this Agreement, as outlined in Section 3, Construction of Subdivision Improvements, of this Agreement, for one year following the completion by Developer and acceptance of the improvements by the City Council. All public improvements required by this Agreement shall become the sole property of the City when the City accepts such improvements for permanent maintenance.

11. Inspection by City. All work done by Developer shall be inspected by an inspector employed by the City at the cost and expense of Developer. Developer shall pay the City, on demand, the cost of the inspection in accordance with City ordinances. In order to permit the City to inspect the work, Developer shall provide to the City proper and safe access to the project site at all times, and to all portions of the work, and to all shops wherein portions of the work are in preparation.

12. Existing Utilities. Any relocation or modification of existing utilities or public improvements necessary to construct the Improvements shall be the sole responsibility and obligation of Developer. The City shall not be responsible for any relocation or modification of existing utilities or public improvements.

13. Continuous Work. After commencement of construction of the Improvements (or separate portion thereof), Developer shall cause such work to be diligently pursued to completion and shall not abandon the work for a consecutive period of more than thirty (30) calendar days, events of Force Majeure, as defined in Section 27 of this Agreement, excepted.

14. Payment of Outstanding Fees. Prior to acceptance of the on-site and off-site public improvements for permanent maintenance by the City, Developer shall pay all outstanding fees that are due in accordance with City ordinances, the Livermore Municipal Code, the Livermore Development Code, and this Agreement. In the event the fees are not paid within one year of the date of execution of this Agreement, Developer shall pay interest at seven percent (7%) per annum from that date until the fees are paid, whether or not any conditions of this Agreement are extended or modified.

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15. Reversion to Acreage. If Developer fails to perform its obligations under this Agreement, Developer consents to the reversion to acreage of the land which is the subject of this Agreement pursuant to Government Code section 66499.16, et seq. and to bear all applicable costs.

16. Property Acquisition. If Developer is unable to acquire property required for the construction of Improvements, Developer agrees to execute an agreement drafted by the City enabling the City to provide for acquisition through eminent domain.

17. Bonds Required. Developer shall provide to the City surety bonds of a form satisfactory to the City Attorney issued by a company authorized to issue surety bonds in the State of California as follows:
(a) The face amount of the bond has been established based on the City Engineer’s estimate of the total cost to perform Developer’s obligations under this Agreement, plus a reasonable contingency. The bond may be called for failure to comply with the provisions of this Agreement in whole or in part according to the terms of the bond. The bond will not be released until there has been full compliance with this Agreement and the Improvements have been inspected and accepted by the City in full compliance with the approved improvement plans. At the discretion of the City Engineer, the amount of such security may be reduced, based on the amount of work completed on the Improvements. (b) At the time of signing this Agreement, the following bonds shall be provided:
i. A faithful performance bond in the amount of 100 percent of the total estimated public and private improvement construction costs as shown on the improvement plans, or $16,532,125 to secure faithful performance of this Agreement by Developer.
ii. A labor and materials bond in the amount of fifty percent of the estimated public and private improvement construction costs as shown on the improvement plans, or $8,266,062 to secure payment by Developer of laborers and material engaged pursuant to this Agreement, and further to secure payment as required by the Unemployment Insurance Act.
(c) At the time of signing this Agreement, Developer shall also provide a warranty bond for maintenance in the amount of fifteen percent of the total estimated public and private improvement construction costs as shown on the improvement plans, or $2,479,819 to secure performance of Section 10, Continued Maintenance for One Year, of this Agreement. This bond shall remain in effect for one (1) year after the date of acceptance by the City Council of the improvements required by this Agreement.

18. Alternate Security. In lieu of the bonds required by Section 17, Bonds Required, of this Agreement, alternative security in the form outlined by City ordinance, compliant with the Government Code, and approved by the City Attorney may be provided.

19. Reporting Damages. If any damage (including personal injury, death, or property damage) occurs in connection with the performance of this Agreement, Developer shall immediately notify the City’s Risk Management Division by telephone at (925) 960-4172, and Developer shall promptly submit to the City’s Risk Manager a written report, in a form acceptable to the City, with the following information: (a) a detailed description of the damage (including the name and address of the injured or deceased person(s), and a description of the damaged EXHIBIT B Page 5 of 30
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property, if any); (b) the name(s) and address(es) of witnesses; and (c) the name(s) and address(es) of any potential insurance companies.

20. Default. Default by Developer shall include, but not be limited to:
(a) Developer’s failure to timely complete construction of the Improvements; (b) Developer’s failure to perform substantial construction work for a period of 30 consecutive calendar days after commencement of the work; (c) Developer’s insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, either voluntary or involuntary, which Developer fails to discharge within 30 calendar days;
(d) The commencement of a foreclosure action against the subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (e) Developer’s failure to perform any other obligation under this Agreement.

21. Remedies. The City reserves all remedies available to it at law or in equity for a default or breach of Developer’s obligations under this Agreement. The City shall have the right, subject to this Section, to draw upon or use the appropriate security to mitigate the City’s damages in the event of default by Developer. The City’s right to draw upon or use the security is in addition to any other remedy available to the City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the Improvements and, therefore, the City’s damages for Developer’s default shall be measured by the cost of completing the required Improvements. The City may use the sums provided by the securities for the completion of the Improvements in accordance with the plans.

In the event Developer fails to cure any default under this Agreement within 20 business days after the City mails a notice of such default to Developer and Developer’s surety, Developer authorizes the City to perform the obligation for which Developer is in default and agrees to pay the entire cost of such performance by the City. The City may take over the work and complete the Improvements, by contract or by any other method the City deems appropriate, at the expense of Developer. In such event, the City, without liability for doing so, may complete the Improvements using any of Developer’s materials, appliances, plans, and other property that are at the work site and that are necessary to complete the Improvements.

22. Indemnification. To the fullest extent permitted by law, Developer agrees to protect and shall hold harmless, indemnify and defend with counsel acceptable to the City, the City, and its elected and appointed officials, officers, directors, boards and commissions, employees, agents, and designated volunteers (hereinafter collectively “Indemnified Parties”) from and against any and all claims, demands, causes of action, liability, loss, damages, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) of any nature or sort, because of, or arising out of the acts or omissions of Developer, its agents, employees, contractors and subcontractors in the performance of this Agreement, including all claims, demands, causes of action, liability, loss, damages, expenses, and costs because of, or arising out of, in whole or in part, the design, construction, and installation of the Improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design, construction, or installation of said Subdivision and the Improvements as provided herein, and in addition, to adjacent property owners as a consequence of the EXHIBIT B Page 6 of 30
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diversion of waters from the design and construction of public drainage systems, streets, and other public improvements. Acceptance by the City of the improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this Section.

This indemnification and agreement to hold harmless shall not extend to such claims, demands, causes of action, liability, or loss arising out of the sole active negligence of the City, its officials, boards, commissions, agents, and employees. The Indemnified Parties shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Developer and its agents, employees, contractors and subcontractors in the performance of this Agreement.

23. Assignment. Developer’s obligations under this Agreement are and shall remain the personal obligations of Developer notwithstanding a transfer of all or any part of the property within the subdivision subject to this Agreement. Neither this Agreement nor any of the rights and obligations of Developer hereunder shall be assigned or transferred, in whole or in part, without the prior written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed.

24. Developer Not Agent of the City. Neither Developer nor any of Developer’s agents, contractors, or subcontractors are or shall be considered to be agents or contractors of the City in connection with the performance of Developer’s obligations under this Agreement.

25. Notice. Unless otherwise specified in this Agreement, Developer agrees to provide written notice to the City, within ten (10) calendar days of the occurrence of:
i. A change of name, corporate identity, or address of Developer or its contractor(s); ii. Intent to transfer or a transfer of title to the Property by deed, contract, or operation of law;
iii. The foreclosure of a lien against the Property or a portion of the Property; iv. The filing of a voluntary or involuntary petition of bankruptcy respecting Developer and/or its contractor(s); and
v. Any other event that may affect performance of the parties under this Agreement.

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

Notices are effective on the date of deposit in the United States mail or on the date tendered to the overnight delivery service.

TO CITY: City of Livermore
Marianna Marysheva, City Manager
1052 S Livermore Avenue
Livermore, CA 94550
TO DEVELOPER: TH Arroyo Vista LLC
Tony Bosowski, Authorized Agent
3001 Bishop Dr., Ste. 100
San Ramon, CA 94583
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26. Non-Discrimination. The City and Developer shall comply with all provisions and requirements of federal, State, and local non-discrimination laws, regulations and policies. During the performance of this Agreement, the parties shall not discriminate against any employee, client, or any other individual in any way because of that person’s age, race, creed, color, religion, sex, disability, or national origin.

27. Force Majeure. Developer’s time for completion of the Improvements shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Developer, including to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, and required changes to the scope of work required by the City; provided however, that the period of any enforced delay shall not include any period longer than five (5) business days prior to the City’s receipt of a written notice from Developer or its contractor detailing the grounds for Subdivider’s claim to a right to extend its time for performance hereunder.

The City Engineer shall evaluate all claims for Force Majeure and the City Engineer’s decision shall be final.

28. Insurance Required. Developer shall procure and maintain insurance for the duration of this Agreement in the amounts and under the terms set forth in Exhibit “B” against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Developer, its agents, representatives, employees, or subcontractors.

29. Participation in Benefit Districts. Developer shall participate in all Benefit Districts formed by the City prior to the execution of this Agreement and shall pay the pro rata fee due the City under the terms of Benefit District(s) as applied to the real property covered by this Agreement.

30. Attorney’s Fees to Prevailing Party. If any action at law or in equity, including an action for declaratory relief, is brought to challenge, enforce, or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, expert witness fees, and costs, in addition to any other relief to which it may be entitled.

31. Developer Obligations to Pay City Expenses to Defend Agreement. If the City chooses to defend any third party claim or suit challenging any action taken by the City with regard to any procedure or aspect of this Agreement, including the environmental review process for the project, the Developer agrees to reimburse the City for attorneys' fees, expert witness fees, and other costs that the City may incur in connection with its retention of outside counsel, and for any award of court costs or fees against the City. The City has the right to choose and retain such legal counsel, as the City deems appropriate. After expenses reach $100,000 and for each $100,000 thereafter, the parties will confer to review the status of the litigation and their options for proceeding or settling, and they will negotiate in good faith regarding the allocation of expenses among the parties.

32. Agreement Binds Successors. This Agreement pertains to and runs with the land benefited by the privileges it grants and binds the successors in interest of the parties to this Agreement. This Agreement shall be recorded in the Official Records of Alameda County.

33. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this EXHIBIT B Page 8 of 30
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section shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.

34. Modifications. This Agreement may not be modified unless by written instrument signed by both parties.

35. Governing Law. The interpretation, validity and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

36. 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. ************************************************************************************************************* Signatures and Attachment List on the Next Page
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EXHIBIT B

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EXHIBIT B

343
DATE: May 29,2017
Revised by Staff 7-24-17
ENGINEERING CONSIDERATIONS - EXHIBIT "A
(Subject to revision prior to final approval
by Planning Commission and City Council)
TENTATIVE TRACT: 8379 (SUB16-010)
LOCATION: Las Positas Road and Bennett Drive
APPLICANT: Summerhill Homes
Note: Special conditions are shown in standard type. Standard conditions that apply to this project are shown in italics. In addition, standard conditions of approval for this project are listed in Section II of the Development Plan Check and Procedures Manual.

1. DEFINITIONS
For the purpose of this agreement, the following words shall have the meanings respectively ascribed to them by this section:

Developer: Person(s) or Corporation(s) signing final map(s) and subdivision agreements)
Improvement Plans: Construction drawings for required public and private improvements Services: Utility lateral, or any portions of a conduit cable or duct, between a utility distribution line and the site it serves
Project: The work to be performed by Developer

2. VESTING TENTATIVE MAP
Approval or conditional approval of this vesting tentative map shall not limit the City Engineer's ability to require workable designs on future grading and improvement plans based upon these Engineering Considerations and the City's standard engineering specifications and details. The following are requirements of the final maps:

These conditions are consistent with the Agreement, dated May 26, 1992, between Joseph Pell and Eda Pell Revocable Trust dated August 18,1989, Joseph Pell and Edna Pell trustees and the City of Livermore (Pell Agreement).

Development Agreement, DAI7-002, provides additional conditions that must be met for this development.

The project shall be phased with 2 final maps as indicated on the vesting tentative map phasing plan.
a.
b.
c.
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d. The City will vacate and quitclaim Lot 6 of Parcel Map 6986 back to the property owner of this development per the requirements noted in the owners statement of Parcel Map 6986. e. The City will Quitclaim existing Public Utility Easements along project frontages of Bennett Drive, Arroyo Vista and Las Positas Road.
f. The City will coordinate with the Developer to amend the City’s license agreement with Alameda County Zone 7 for the maintenance of the proposed trail improvements along the Alameda County Zone 7 Channel Property between Arroyo Vista and Las Positas Road. The Developer shall obtain an encroachment permit from Alameda County Zone 7 for the construction of the trail improvements.
g. The developer shall dedicate a 4-foot right-of-way easement along the project frontage of Arroyo Vista for frontage improvements that are required in addition to the right-of-way. h. The Developer shall dedicate a 4.5-foot right-of-way easement along the project frontage of Bennett Drive for frontage improvements that are required to be located in the right-of-way. i. The developer shall dedicate a minimum of a 5-foot wide Public Utility Easement as required along the ultimate right-of-way of Las Positas Road, Arroyo Vista, and Bennett Drive. The actual location and length of the public utility easements shall be determined during the design and final map approval.
j. The Developer shall dedicate a 39 to 48.5-foot right-of-way easement for proposed public streets A, B, X, Y, and Z.
k. The developer shall dedicate Public Utility, Public Sewer, Public Water, and Emergency Vehicle Access Easements over proposed private parcels A-Z and AA-NN. l. The Developer shall dedicate Private Storm Drain and Private Access Easements over proposed private parcels A-Z and AA-NN.
m. The developer shall construct a pedestrian bridge across the Arroyo Seco Channel, owned by Alameda County Zone 7, between the proposed east and west developments of this project no later than the issuance of the 240th building permit. The Developer shall acquire an aerial easement and an encroachment permit for the construction, access and maintenance of the bridge on and across the Alameda County Zone 7 channel property. n. The Developer shall install ADA ramps at all new street intersections constructed with this development.
o. The maintenance of private infrastructure within public streets including but not limited to the private fire service water main and private storm drain system will require the HOA to acquire an encroachment permit from the City. The HOA will be responsible making any required repairs per City standards including patching and resurfacing of the public roadway as required by the City Engineer.

3. GENERAL
The project shall be in conformance with all City Ordinances, rules, regulations, and policies. The conditions listed below are particularly pertinent to this permit and shall not be construed to permit violation of other laws and policies not so listed.

All required improvements shall be constructed prior to occupancy of the new residential units on this site.

A. IMPROVEMENT PLANS - Exhibit A-l
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An engineered improvement plan shall be prepared by the Developer for approval by the City's Departments (including the Community Development, Public Services, Fire, and Police Department), which shall include, but not necessarily be limited to, existing site conditions, dedications, grading plans, street design and grades, curb, gutter, sidewalk and driveway grades, and type, size and location of all public works improvements as herein required. Approval of this tentative map does not constitute approval of the details shown thereon. If there is any conflict between the tentative map and these Engineering Considerations, the Engineering Considerations shall govern.

B. STANDARDS FOR IMPROVEMENT PLANS AND MAPS
All improvement plans and maps shall conform to the following City ofLivermore documents except as modified by these engineering considerations:

City of Livermore Standard Specifications and Details
Development Plan Check and Procedures Manual

1. 2.

Completedfinal map and improvement plan checklists from the manual entitled "City ofLivermore, Development Plan Check and Procedures Manual" shall be submitted with the first plan check submittal for each phase.

C. STANDARD CONDITIONS OF APPROVAL IN THE DEVELOPMENT PLAN

CHECK AND PROCEDURES MANUAL
All of the standard conditions of approval for subdivisions and major projects as listed in Part II of the City of Livermore Development Plan Check and Procedures Manual apply except for the following: A4, B-7, B-8, B-14, B-16, K-l, K-2, & K-3.

D. WORK IN OTHER JURISDICTIONS
The Developer is responsible for obtaining permits and approvals for construction work and property acquisition that are required by agencies other than the City of Livermore.

The proposed trail between Arroyo Vista and Las Positas Road is within the Alameda County Flood Control and Water Conservation District Zone 7 Property. The developer shall acquire all required easements and any agreements required to install and maintain the trail and proposed pedestrian bridge crossing that is within the Zone 7 property.

4. STREETS
A. SPECIFIC REQUIREMENTS:

The Developer shall offer easements and dedications for, and shall improve his share of the ultimate ■ street widths for the following named streets in accordance with the City's General Plan:

Las Positas Road
Las Positas Road is a major roadway in the General Plan. 3 EXHIBIT B Page 14 of 30
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Per Section 11 (a) of the Pell Agreement, the Developer is not obligated at its expense to widen Las Positas Road, unless needed to serve the development. The traffic study for this development shows that Las Positas Road does not need to be widened as a result of this development, but it shows that signing and striping changes, and traffic signals are needed to provide safe access to this development.

Therefore, the Developer will only be required to pay for modifications to Las Positas Road based on the current street width as noted below.

The existing street width of Las Positas Road at the intersection of Arroyo Vista is 96 feet from face of crab to face of curb from Lot 1 to Lot 2. It then varies and tapers down to 48 feet from face of curb to face of curb from Lot 3 to Lot 8. Las Positas Road is 48’ from face of curb to face of curb from Lot 8 to Lot 343. From Lot 343 to Bennet Drive the street widens to 84 feet from face of curb to face of curb.

The developer shall widen Las Positas Road to accommodate a buffered bike lane. See Development Agreement, DAI 7-02.

From Arroyo Vista to Lot 8, the Developer shall modify the striping to relocate the left turn lane and provide a longer transition for the southbound lane drop as approved by the City Engineer.

From Lot 8 to lot 154 the Developer shall restripe the roadway to include a two way left turn lane in the center. See DAI 7-02 for roadway cross section.

From lot 154 to Lot 343 the Developer shall stripe a median with 110’ turn left lanes and 120’ tapers at the A Street-Contractors Street intersection. See DA17-02 for roadway cross section.

The developer shall provide new striping from Lot 343 to Bennett Drive as generally shown on the Vesting Tentative Map approved by the City Engineer, including dedicated 110’ left turn lanes with 120’ tapers into X Street and the driveway entry of the Arroyo/Livermore Business Park.

The Developer shall widen Las Positas Road to install a new bus turn out with a bus shelter on the north side of Las Positas Road approximately 120 feet west of the entry into proposed Street “A”. The Developer shall provide pedestrian access from the development and homes fronting Las Positas Road to the bus turn out.

The Developer shall provide a 5-foot wide sidewalk located in the ultimate location to align with the future widening of Las Positas Road as indicated on Tentative Map sheets TM-3 & TM-4.

The developer shall slurry seal the full width of Las Positas Road from Arroyo Vista to Bennett Drive prior to restriping.

Bennett Drive
Bennett Drive is an existing industrial roadway with a proposed 64.5-foot right of way and a street width of 48 feet from face of curb to face of curb. Within this right-of-way the developer shall install a new curb and gutter, a 4.5-foot to 5-foot wide planter strip and a 5 foot wide separated sidewalk along the project frontage.

The Developer shall remove and/or modify no parking signs along the west and south side of Bennett Drive along the project frontage as approved by the City Engineer. A final parking plan will be 4 EXHIBIT B Page 15 of 30
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reviewed and approved by the City Engineer at the time of final map. Revised by Staff 7-24-17 The developer shall install a new ADA ramp at the northwest comer of Bennett Drive/Las Positas Road intersection.

The developer shall slurry seal the full width of Bennett Drive from the northern most boundary of this project to Las Positas Road.

Arroyo Vista
Arroyo Vista is an existing industrial roadway with a proposed 64-foot right of way and a street width of 48 feet from face of curb to face of curb. Within this right-of-way the developer shall install new curb and gutter, a 5 foot wide planter strip and a 5 foot wide separated sidewalk along the project frontage.

The Developer shall remove and/or modify no parking signs along the south side of Arroyo Vista along the project frontage as approved by the City Engineer. A final parking plan will be reviewed and approved by the City Engineer at the time of final map. (Revised by Staff 7-24-17) The developer shall install a new ADA ramp at the southeast comer of Arroyo Vista at Las Positas Road.

The Developer shall install a new crosswalk with a flashing beacon across Arroyo Vista where the Arroyo Seco Trail intersects the roadway. The developer shall also install new ADA ramps at both the north and south ends of the crosswalk.

The developer shall slurry seal the full width of Arroyo Vista from Las Positas Road to the Arroyo Seco Channel.

Interior Public Streets
The Developer shall dedicate a 39 to 48.5-foot right-of-way easement for proposed public streets A, B, X, Y, & Z. The street widths shall be 34 feet from face of curb to face of curb consisting of a 26 foot wide travel lane with 8 feet of parking on one side of the street. The street sections shall consist of the following:

4.5 foot wide monolithic sidewalk with 6 inch curb and gutter 8 foot wide parking area
26 foot wide travel lane
6 inch curb and gutter
4 foot planter strip
5 foot wide separated sidewalk
The proposed perpendicular parking bays along Streets A & B shall be private and not included within the public right-of-way.

The developer shall install speed tables across Street A at Lot 45 and at Lot 83 to slow potential cut through traffic from Arroyo Vista to Las Positas Road as approved by the City Engineer.

Interior Private Alievs
Private Alleys shall be separated from the public streets by a standard driveway, enhanced paving, or valley gutter.
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All private Alleys shall be signed with “No Parking Fire Lane”.

Alleys C-O, Q, S-W, DD, GG, and JJ-PP are 20 feet wide from face of curb to face of curb with 4 rolled curbs and 6’ deep driveways on each side of the alleys.

Alleys P, R, and EE- II are 26 feet wide from face of curb to face of curb with 4” rolled curbs and 6’ deep driveways on each side of the alleys.

Alleys C, AA, CC, DD, and GG are 26 feet wide at the entries and taper down to 20 feet wide at the ends. The alleys at the entries are 26 feet wide from face of curb to face of curb with 4” rolled curbs on each side of the alley and a 6’ deep driveway on one side and a landscaped open space area on the other side. The ends of the alleys are 20 feet wide from face of curb to face of curb with 4” rolled curbs on each side of the alley and a 6’ deep driveway on one side and a landscaped open space area on the other side.

5. TRAFFIC SIGNALS
Install fully actuated traffic signals per current City and Caltrans standards using equipment as specified by the City Engineer at the following intersections:

Arroyo Vista/Las Positas Road (4-way intersection)
Contractors Street/A Street/Las Positas Road (4-way intersection) A traffic signal interconnect conduit and copper interconnect cable shall be installed from the existing traffic signal controller at First Street/ Las Positas Road to the new traffic signal controllers at the intersection of Arroyo Vista/ Las Positas Road and the intersection of A Street/Contractors Street/ Las Positas Road.

At the 4-way intersection of A Street/Contractors Street/Las Positas Road, the developer shall install new crosswalks across all 4 legs of the intersections with pedestrian signals and push buttons.

At the 4-way intersection of Arroyo Vista/Las Positas Road, the developer shall install new crosswalks across all 4 legs of Las Positas Road and across Arroyo Vista with pedestrian push buttons.

The traffic signal at A Street/Contractors Street/Las Positas Road shall be operational 7 days before A Street is open to traffic but no later than the issuance of the 100* building permit. The traffic signal at Arroyo Vista/Las Positas Road shall be operational 7 days before the issuance of the 100th building permit.

6. FEE CREDITS AND REIMBURSEMENTS:

A. CREDITS
The Developer shall be eligible for credit against their traffic impact fees based upon the Pell Agreement Exhibit C originally executed May 26,1992 and revised August 11,1997.

The Developer shall receive credits against their traffic impact fees in the amount of $650,000 for the 6 EXHIBIT B Page 17 of 30
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estimated cost of 100% of the traffic signal at Las Positas/Arroyo Vista, 33% of the cost of the traffic signal at Las Positas/A Street/Contractors Street, and 100% of the cost of the signal interconnect.

The Developer shall receive credits against their traffic impact and/or park facilities fee for the widening of Las Positas Road for the buffered bike lanes based on Development Agreement, DA 17-02.

7. SANITARY SEWERS
The sewer main and lateral services located in public streets A, B, X, Y, & Z will be publicly-owned and maintained to the cleanouts to each home.

If the Developer chooses to install the City standard asphalt street section in the private alleys, the sanitary sewer lines will be publicly-owned and maintained to the cleanouts to each home.

If the Developer chooses to install enhanced specialty paving (i.e. pavers, stamped concrete, stamped asphalt, etc.) instead of City standard asphalt street section in the private alleys, the sanitary sewers in will be privately-owned by a homeowner’s association and maintained to the cleanouts to each home. In order to differentiate the ownership of public and private facilities, the Developer shall provide the additional structures (manholes and or cleanouts) to be installed at the entries of the alleys.

If the Developer chooses to install the City standard asphalt street section for the majority of the public streets with only specialty paving (i.e. pavers, stamped concrete, stamped asphalt, etc.) in a few areas to act as “accents” to the project entry or other areas as approved by the City Engineer, the sanitary sewer may be publicly maintained to the cleanouts to each home. However, in order to facilitate the maintenance and repair of the public sanitary sewer lines in the future, the Developer shall install double-walled pipe or other pipe protective measures as approved by the City Engineer, in all locations where the pipe runs under specialty paving. Additionally, no pipe joints will be allowed in specialty paving areas.

Sewer shall be extended across all frontages of each phase.

Sewer laterals with cleanouts behind the curb shall be installed to each lot or site before the streets are surfaced.

8. STORM WATER DRAINAGE AND TREATMENT REQUIREMENTS
A. General
This site is subject to the National Pollutant Discharge Elimination System (NPDES) Program. Prior to the issuance of the initial grading or building permit, the Developer shall provide evidence that the site is covered by the statewide General Permit to Discharge Storm Water associated with construction activity. This requires confirmation that a Notice of Intent (NOT) and the applicable fee was sent to the State Water Resources Control Board. In addition, the grading plans need to state: "All grading shall be in accordance with the Storm Water Pollution Prevention Plan prepared by the Developer per the Notice of Intent on file with the State Water Resources Control Board". 7 EXHIBIT B Page 18 of 30
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B. Storm Drainage Requirements
Per the City’s Facilities Planning Guidelines (dated June 2005), the flows must have the following characteristics:

For a 10-year design discharge: a hydraulic grade line (HGL) is no higher than 1.25 feet below the top of curb elevation at any manhole or inlet.

For a 100-year design discharge: a HGL does not exceed the top of curb elevation. (This is requiredfor item 3 above.)
For additional detail on these guidelines, the applicant should refer to the following resources: City of Livermore Storm Drain Master Plan & City of Livermore Facilities Planning Guidelines (both available at the Engineering counter at City Hall).

The proposed storm drain system consists of a combination of treated and non-treated storm water throughout the public streets and private alleys. Because of this, all proposed storm drain infrastructure throughout the entire development shall be privately owned and maintained by a homeowner’s association. City encroachment permits or a maintenance agreement will be required to maintain the private storm drain system within public streets. Any proposed pumps to discharge storm water into the bio-treatment devices shall be located on private property.

C. Stormwater Infrastructure Maintenance Funding
The cost to maintain all private storm water infrastructure installed with this project shall be funded by the Developer.

D. Channels
The Project site currently drains to the Arroyo Seco, owned by the Alameda County Flood Control and Water Conservation District (Zone 7). The developer shall route and connect all new treated storm water discharge piping to existing City owned infrastructure that currently outfalls into the Arroyo Seco.

E. Storm Water Treatment and Detention Requirements

1. The Developer shall treat the storm water runoff from this site prior to having the storm water enter the City’s storm water distribution system. The Developer shall provide a storm water treatment plan with calculations indicating treatment that meets the latest requirements described in Section C.3 of the City’s NPDES Permit with the Regional Water Quality Control Board. City approval of this plan and calculations is required prior to the approval of the improvement plans.

2. This project is greater than one acre, the Developer shall provide a Hydrograph Modification Plan (HMP) with calculations in accordance with the Alameda Countywide Cleanwater Program (ACCWP) Bay Area Hydrology Model (BAHM) guidelines. The software for the design of control measures to meet the Flow Duration Control is available to download from 8 EXHIBIT B Page 19 of 30
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www.bayareamodel.org. For additional information you may contact Pamela Lung in the City '.S' Engineering Department at (925-960-4538)

3. Prior to final map approval, the applicant shall enter into a maintenance agreement with the City of Livermore for all storm water treatment devices deemed necessary on this site. If the stormwater treatment devices will be maintained by the individual homeowners a cleanout will be necessary at the property lines to allow the residents to maintain their portion of the private stormdrain under drain. If the stormwater treatment device will be maintained by a Homeowners Association then the cleanouts at each of the property lines may not be needed.

The stormdrain treatment devices shall be shown on the plat plans and included in the Operations and Maintenance Agreement. The Operations and Maintenance Agreement(s) shall be recorded prior to recordation of the Final Map.

4. The proposed storm water treatment device located in Parcel S landscape area shall be designed such that the landscape area can be fully utilized as a functional open space area (including turf and public access). The proposed storm water treatment sump pump discharge system into this treatment device shall be designed such that it does not undermine the required open space use for this area and does not cause erosion damage to the engineered filtration soil required for the storm water treatment device, (revised by Staff 7-24-17)
F. Stormwater Treatment Infrastructure Maintenance Funding The cost to maintain all storm water treatment, detention and low impact development infrastructure installed with this project shall be funded by the Developer.

9. REQUIRED SOURCE CONTROL STORMWATER MEASURES
The Regional Water Quality Control Board adopted Order R2-2015-0049 issuing the Alameda Countywide NPDES municipal storm water permit for the Alameda Countywide Clean Water Program. The 17 member agencies, including Livermore, are subject to this permit and all its requirements including the following:
“The Permittees shall, as part of their continuous improvement process, submit enhanced new development and significant redevelopment Performance Standards that summarize source control requirements for such projects to limit pollutant generation, discharge, and runoff, to the maximum extent practicable... ” In accordance with this requirement, the following source control measures, included as part of these Conditions of Approval, shall be implemented as a part of this project.

A. Structural Control Measures

1. Illegal Dumping to Storm Drain Inlets and Waterways
On-site storm drain inlets, except inlets located in landscaped areas, shall be clearly marked with the words “No Dumping! Flows to Bay” on a plastic marker. The plastic markers are available for purchase from the Water Resources Division. For ordering information, please call 925-960- 9 EXHIBIT B Page 20 of 30
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8100. For projects with newly-developed, privately-maintained streets, agency staff will verify that storm drain inlets have been marked before the final sign-off on the project’s building permit or encroachment permit.

2. Interior Floor Drains
Approved interior floor drains shall be plumbed to the sanitary sewer system and shall not be connected to the storm drain system. The applicant shall contact the Water Resources Division for specific connection and discharge requirements.

3. Pesticide/Fertilizer Application and Irrigation
Landscaping shall be designed to minimize irrigation and runoff, promote surface infiltration where possible, minimize the use of fertilizers and pesticides that can contribute to storm water pollution, and incorporate appropriate Bay-Friendly Landscaping principles.
a.

If a landscaping plan is required as part of a development project application, the plan shall meet the following conditions related to reduction of pesticide use on the project site:
b.

I. Where feasible, landscaping shall be designed and operated to treat storm water runoff by incorporating elements that collect, detain, and infiltrate runoff. In areas that provide detention of water, plants that are tolerant of saturated soil conditions and prolonged exposure to water shall be specified.

II. Plant materials selected shall be appropriate to site specific characteristics such as soil type, topography, climate, amount and timing of sunlight, prevailing winds, rainfall, air movement, patterns of land use, ecological consistency and plant interactions to ensure successful establishment.

III. Existing native trees, shrubs, and ground cover shall be retained and incorporated into the landscape plan to the maximum extent practicable.

IV. Unless otherwise specified, proper maintenance of landscaping shall be the responsibility of the property owner.

V. Integrated pest management (IPM) principles and techniques shall be encouraged as part of the landscaping design. Some examples of IPM principles and techniques include the following:

Select plants that are well adapted to soil conditions at the site.

Select plants that are well adapted to sun and shade conditions at the site.

Consider future conditions when plants reach maturity. Consider seasonal changes and time of day.

Provide irrigation appropriate to the water requirements of the selected plants. l.
u.
m.

IV. Select pest and disease resistant plants.
10 EXHIBIT B Page 21 of 30
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v. Plant a diversity of species to prevent a potential pest infestation from affecting the entire landscaping plan.
vi. Use “insectary” plants in the landscaping to attract and keep beneficial insects.

VI. Landscaping shall also comply with City of Livermore’s “Water Efficient Landscape Ordinance”. However, areas of a site used for bio-swales or other landscaped areas that function as a storm water treatment measure shall be exempt from the Water Efficient Landscaping requirements.

VII. An efficient irrigation system shall be installed in areas requiring irrigation. An example of an efficient irrigation system is one that includes a weather-based (automatic, self-adjusting) irrigation controller with a moisture and/or rain sensor shutoff, and in which sprinkler and spray heads are not permitted in areas less than 8 feet wide.

4. Pool, Spa, and Fountain Discharges
a. New or rebuilt swimming pools, hot tubs, spas and fountains must have a connection to the sanitary sewer to facilitate draining. This connection could be a drain in the pool to the sanitary sewer or a cleanout located close enough to the pool so that a hose can readily direct the pool discharge into the sanitary sewer cleanout.
b.When draining is necessary, a hose or other temporary system shall be directed into a sanitary sewer cleanout, or vegetated areas that are large enough to accommodate the volume without allowing the discharged water to flow to the storm drain system or receiving water body.

5. Refuse Areas
a. New or redevelopment projects shall provide a roofed and enclosed area for dumpsters, recycling containers, compactors, and food waste containers. The area shall be designed to prevent water run-on to the area, to prevent runoff from the refuse area and to properly contain litter and trash. Dumpster leakage from covered trash and food compactor enclosures shall drain to the sanitary sewer via connection to an approved oil and grease interceptor device.
b. Runoff from trash enclosures, recycling areas, and/or food compactor enclosures or similar facilities shall not discharge to the storm drain system. Trash enclosure areas shall be designed to avoid run-on to the trash enclosure area. In most cases, drains are not permitted within trash enclosure areas. A drain, however, must be provided for compactors. If a drain is required in or beneath dumpsters, compactors, and tallow bin areas, it shall be connected to a grease removal device prior to discharging to the sanitary sewer.

6. Fire Sprinkler Test Water
Provisions shall be made in the project design and construction to allow for the discharge of fire 11 EXHIBIT B Page 22 of 30
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sprinkler test water to an onsite vegetated area. If this is not feasible, provide for discharge to the sanitary sewer in accordance with current plumbing codes.

Miscellaneous Drain or Wash Water
a. Boiler drain lines shall be connected to the sanitary sewer system and may not discharge to the storm drain system.

7. b. For small air conditioning units, air conditioning condensate shall be directed to landscaped areas as a minimum BMP. For large air conditioning units, in new developments or significant redevelopments, condensation lines shall be connected to the sanitary sewer system, wherever feasible.
c. Roof drains shall discharge and drain away from the building foundation to landscaped areas wherever feasible.
d. Washing and/or steam cleaning activities must be performed at an appropriately equipped facility that drains to the sanitary sewer as specified in Section J. Any outdoor washing or pressure washing must be in compliance with the City’s Stormwater Management Program requirements and managed in such a way that there is no discharge of soaps or other pollutants to the storm drain system. The applicant shall contact the Water Resources Division for specific discharge requirements.

8. Architectural Copper Installation
Projects with architectural copper should, if possible, purchase copper materials that have been pre-patinated at the factor. Whether patination is done offsite or onsite, applicant should consider coating the copper materials with an impervious coating that prevents further corrosion and runoff. If patination is done on-site, implement one or both of the following:
a. Collect rinse water in a tank and pump to the sanitary sewer. Contact the City of Livermore Water Resources before discharging to the sanitary sewer. b. Collect the rinse water in a tank and haul off-site for proper disposal.

B. II. OPERATIONAL BMPS
This section details Best Management Practices (BMP) that private property owners and/or the occupants of private property must implement following the construction of projects. Ultimately, the responsibility for implementation of these BMPs rests with the property owners. The City of Livermore’s Source Control Program routinely performs inspections of industrial and commercial sites to verify BMP implementation and effectiveness.

1. Paved Sidewalks and Parking Lots
Sidewalks and parking lots shall be swept regularly to minimize the accumulation of litter and debris. Wash water resulting from the pressure washing of parking lots must be captured, pretreated (if necessary) to meet local discharge limits, and discharged to the sanitary sewer. 12 EXHIBIT B Page 23 of 30
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Wash water resulting from the pressure washing of sidewalks may be allowed to drain to the storm drain system provided that (a) no soap or other cleaning agents are used, and (b) all debris are trapped and collected to prevent entry into the storm drain system. Under no circumstances shall wash water containing any soap or other cleaning agents be discharged to the storm drain system.

2. Private Streets, Utilities and Common Areas
a. The owner of private streets and storm drains shall prepare and implement a plan for street sweeping of paved private roads and cleaning of all storm drain inlets. b. For residential developments, where other maintenance mechanisms are not applicable or otherwise in place, a Property Owners Association, Landscape& Lighting District, or an equivalent mechanism shall be created and shall be responsible for maintaining all private streets and private utilities and other privately owned common areas and facilities on the site including landscaping. These maintenance responsibilities shall include implementing and maintaining storm water BMPs associated with improvements and landscaping. CC&R’s creating the association shall be reviewed and approved by the City prior to the recordation of the Final Map and recorded prior to the sale of the first residential unit. The CC&R’s or Landscape & Lighting District shall describe how the storm water BMPs associated with privately owned improvements and landscaping shall be maintained and detail contact information for the entity responsible for such maintenance activities.

3. On-site Storm Drains
All on-site storm drains must be inspected and, if necessary, cleaned at least once a year immediately prior to the rainy season.

4. Architectural Copper Cleaning, Treating or Washing
When cleaning, treating or washing architectural copper features, implement one or both of the following:
a. Collect rinse water in a tank and pump to the sanitary sewer. Contact the City of Livermore Water Resources before discharging to the sanitary sewer. b. Collect the rinse water in a tank and haul off-site for proper disposal.

10. WATER SUPPLY (CITY)
The developer shall relocate existing fire hydrants to behind the new proposed sidewalk along Las Positas Road as needed to accommodate the widening of Las Positas Road for the buffered bike lanes and the bus turnout. See Development Agreement DAI7-02.

The developer shall relocate existing fire hydrants to within the new proposed landscape strip between the new curb and gutter and the proposed new separated sidewalk on Bennett Drive as indicated on 13 EXHIBIT B Page 24 of 30
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tentative map sheet TM-5.

The developer shall relocate existing air relief valve stations along Las Positas Road to behind the new proposed sidewalk to accommodate the widening of Las Positas Road for the buffered bike lanes and the bus turnout. See Development Agreement DAI 7-02.

On the east site development the developer has proposed a separate private fire service loop through the development to serve the proposed townhome flats to minimize the amount of large fire service backflow preventers required and allow room to adequately screen them. The developer shall locate this private fire service loop on the opposite side of the street from the public water main along Y Street and Private Alleys AA, BB, and 00 and/or a location approved by the City Engineer, to eliminate confusion of what is to be publicly maintained and what is to be privately maintained in the street. The water mains shall be separated from the sewer main by 10 feet.

If the Developer chooses to install the City standard asphalt street section, the water lines in the private streets will be publicly-owned and maintained.

If the Developer chooses to install enhanced specialty paving (i.e. pavers, stamped concrete, stamped asphalt, etc.) instead of City standard asphalt street section, the water lines in the private streets will be privately owned by a homeowner’s association and maintained to the property line. In order to differentiate the ownership of public and private facilities, the Developer shall provide the additional structures (valves) to be installed at the property line.

If the Developer chooses to install the City standard asphalt street section for the majority of the streets with only specialty paving (i.e. pavers, stamped concrete, stamped asphalt, etc.) in a few areas to act as “accents” to the project entry or other areas as approved by the City Engineer, the water lines may be publicly maintained. However, in order to facilitate the maintenance and repair of the water lines in the future, the Developer shall install double-walled pipe on or other pipe protective measures as approved by the City Engineer, in all locations where the pipe runs under specialty paving. Additionally, no pipe joints will be allowed in specialty paving areas.

Water mains shall be extended across all frontages of each phase and all waterline valves must notate “EPDM” on the valve body.

The developer shall install pressure reduction valves (PRVs), backflow prevention devices and appurtenances on the potable water services as directed by the City Engineer.

The fire service backflow preventer(s) shall be effectively screened from the public right-of-way while at the same time preserving ease of maintenance access to the backflow preventer(s).

Screening shall be as specified on City Standard Detail W-10A, B and C. The fire service backflow preventer(s) shall meet the performance standards of the backflow preventer shown in City Standard Detail W-10A, B and C.

11. UNDERGROUNDING OF UTILITIES:

All new electric (with the exception of any 60 KV and higher voltage wires) and communication lines along the project frontage and within the project shall be placed underground. Electric, gas, Comcast and SBC utilities are required and shall be placed in a common trench. All electric transformers shall 14 EXHIBIT B Page 25 of 30
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be placed underground.

12. TRAILWAY/BIKEWAY REQUIREMENTS
Certain portions of this development are within the City of Livermore Bikeways and Trails Master Plan established and adopted as part of the General Plan. The Developer will be required to develop that certain land within his development for trail way purposes.

A. Livermore Trailwav System
The Developer shall design and construct a portion of the trail along the western side of Alameda County Flood Control and Water Conservation District (Zone 7) Arroyo Seco Channel. The trail shall consist of a 12-foot wide asphalt pathway sloping away from the channel into a permeable drainage vditch that discharges to a storm piping system that outfalls to the Arroyo Seco Channel as indicated on the Vesting Tentative Map sheet TM-5.

Per DAI 7-02, the Developer shall pay their fair share costs of the design, and construction of various offsite segments of the Arroyo Seco Trail to connect to the Iron Horse Trail, Southffont Road and Contractors Place.

B. Bicycle Route Plan
Per DAI7-02 the Developer shall contribute their fair costs to the City’s First Street Bike Lane Enhancement Project.

13. MEDIANS AND OTHER LANDSCAPED AREAS
The public landscaping being constructed within City right of way along Las Positas Road shall be designed and constructed in accordance with City standards and as approved by the City Engineer.

14. HORTICULTURIST'S REPORT fNot Used)

15. SPECIAL DISTRICTS
A. Landscaping and Lighting Maintenance and Operation
The Developer shall either form a new Maintenance District prior to the first final map approval or the Developer shall provide an alternate source of funding or maintenance mechanism as approved by the City Engineer. This funding source shall include costs related to maintenance, operation, repair and replacement of the Arroyo Seco Trail being constructed between Las Positas Road and Arroyo Vista and the public landscaping along Las Positas Road. The Developer shall be responsible for all costs and work which are required to form this Maintenance District. The Developer shall agree to a first year’s lot by lot assessment equivalent to the Maintenance District's first twelve months of estimated costs.

The Developer shall submit an Engineer's Report regardless of whether or not a Maintenance District is formed. The Engineer's Report shall be submitted in a hard copy format, and in computer formats on a disk. The computer formats for the Engineer's Report shall be Microsoft Word and Microsoft Excel to be compatible with the City's computer system.
15 EXHIBIT B Page 26 of 30
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B. Community Facility District (CFD1
The-Developer may be allowed to utilize this public finance mechanism to fund the design and construction cost of public offsite improvements, including cash contributions identified4h-DA-1-7-03- The-Beveloper shall pay for all of the associated costs for the establishment and administration of the district. Unless otherwise noted, the Developer shall establish-any CFD’s prior to recording a final map.

16. AIRPORT LOCATION (Not Used!

17. SUBDIVISION AGREEMENT AND SECURITY
Following tentative map approval, the Subdivision Improvement Agreement will not be submitted to the City Council until the Developer has submitted all of the documents indicated in the “Final Approval of Tract Map Checklist ” in the Development Plan Check and Procedures Manual (28) days prior to the city council meeting at which the final map will be consideredfor final approval by the City Council.

18. FEE AMOUNTS
Fees for this project shall be per the provisions allowed under a vesting tentative map and in accordance with DAI7-02.

19. VEHICLE ACCESS
Access to the development by construction equipment, material delivery and other heavy loads shall be limited by the Developer to the following route:

Interstate 580 to First Street, to Las Positas Road
Such heavy loads will not be allowed on existing residential streets in the vicinity of the development.

The wheel-loading on the above routes shall not exceed State load limits.

20. DEVELOPMENTS WITH PRIVATE ROADWAYS AND UTILITIES
(Condominiums. Row Houses. Cluster, etc.l
The private improvements of the private street system are part of the improvements required of this subdivision. For this reason, the Developer shall pay Engineering Division plan check and construction inspection fees and the City Engineering Division will provide these services. The Developer shall also provide subdivision security for the required private improvements.

BGV:PGL:MAP
S:\Development ProjectsVPlanning Eng Conditions of Approval\Tentative TractsWTTM 8379 (SUB 16-010) Arroyo VistaX SUB 16-010 Arroyo Vista VTTM 8379 Engineering Considerations Finalized 6-16-17 revised 7-5-17.docx 16 EXHIBIT B Page 27 of 30
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Revised 11/10/2015 B19 – SIA

EXHIBIT B

INSURANCE REQUIREMENTS
Minimum Scope and Limits of Insurance
Developer shall maintain limits no less than:

1. Commercial General Liability, including operations, products, and completed operations, as applicable:
$5,000,000 per occurrence/$10,000,000 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:
$2,000,000 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 Developer is a sole proprietor, then they must sign “Contractor Release of Liability”.

4. Pollution Liability:
$1,000,000 per occurrence.

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 volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Developer; or automobiles owned, leased, hired or borrowed by the Developer. 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 Page 28 of 30
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Revised 11/10/2015 B19 – SIA

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 Developer’s policy shall be primary and noncontributory and will not seek contribution from the City’s insurance or selfinsurance 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 noncontributory 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 Developer'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.

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 Completed Operations
Developer shall maintain insurance as required by this contract for a minimum of five years following the completion of this project. In the event the Developer fails to obtain or maintain completed operations coverage as required by this agreement, the City of Livermore at its sole discretion may purchase the coverage required and the cost will be paid by the Developer. Completed Operations endorsement or coverage shall be at least as broad as Insurance Services Office CG 20 38. Developer shall require and verify that all subcontractors or other parties hired for this Agreement purchase and maintain coverage for indemnity and insurance requirements at least as broad of specified in this Agreement to the extent they apply to the scope of the subcontractor’s work with the same Certificate of Insurance requirements and naming as additional insureds all parties to this agreement. Developer shall include the following language in their agreements with Subcontractors: “Subcontractor agrees to be bound to Developer and City in the same manner and to the same extent as Developer is bound to City under the Agreement. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, EXHIBIT B Page 29 of 30
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Revised 11/10/2015 B19 – SIA

with any sub-subcontractor to the extend they apply to the scope of the Subsubcontractor’s work. A copy of the City Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request.” Developer shall provide proof of such compliance and verification to the City upon request.

Verification of Coverage
Developer 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 B Page 30 of 30
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CITY COUNCIL STAFF REPORT ITEM NO. 5.9
DATE: September 9, 2024
TO: Honorable Mayor and City Council
FROM: Brent Smith, Community Development Director
SUBJECT: Resolution approving a request to the Metropolitan Transportation Commission for the allocation of $436,280 from FY 2024-25 Transportation Development Act Article 3 Pedestrian/Bicycle Project Funding to the Livermore Arroyo Road Trail Project 2019-55.

RECOMMENDED ACTION
Staff recommends the City Council adopt a resolution approving a request to the Metropolitan Transportation Commission (MTC) for the allocation of $436,280 from FY 2024-25 Transportation Development Act (TDA) Article 3 Pedestrian/Bicycle Project Funding to the Livermore Arroyo Road Trail Project 2019-55.

SUMMARY
The City of Livermore (City) is a recipient of the Transportation Development Act (TDA) Article 3 funding from the Metropolitan Transportation Commission (MTC). The TDA Article 3 funding is available for the exclusive use of pedestrian and bicycle projects and requires the local City Council approve the request for the allocation of TDA Article 3 funding.

The Arroyo Road Trail Project is identified in the first phase of priority projects in the City’s Bicycle, Pedestrian, and Trails Active Transportation Plan as well as Alameda County’s Bicycle and Pedestrian Plan. It will extend the Livermore trail network across unincorporated Alameda County jurisdiction and connect to the existing regional trail within Sycamore Grove Park and will be exclusively used by pedestrians and bicycles.

Staff recommends the City Council approve the request to the MTC for the allocation of $436,280 from FY 2024-25 TDA Article 3 Funding to the Livermore Arroyo Road Trail Project 2019-55.

DISCUSSION
The Transportation Development Act (TDA), Public Utilities Code Sections 99233.3 and 99234, makes funds available in the nine-county Metropolitan Transportation Commission (MTC) Region for the exclusive use of pedestrian and bicycle projects. The eligible projects will need to be completed in the 363
allocated time (fiscal year of allocation plus two additional fiscal years), have an appropriate CEQA document and a signed City Council Resolution. For FY 2024-2025, the City has $436,280 of TDA Article 3 funds available to claim. Staff recommends the City Council approve the request to the MTC for the allocation of all available TDA Article 3 funds to the Livermore Arroyo Road Trail Project 2019-55.

The Arroyo Road Trail Project, Project No. 2019-55, is an approximately 1.4-mile trail gap closure along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park. The project is identified in the City's South Livermore Valley Specific Plan and includes a pedestrian and bicycle bridge over Dry Creek.

The project goal is to fill a gap in the Livermore trail network, reduce stress, improve safety, and increase comfort along the Arroyo Road corridor for pedestrians and bicyclists, and provide greater connectivity between Livermore’s neighborhoods, regional trail network, and regional open space areas such as Sycamore Grove and Del Valle Regional Parks. The project location is included in Attachment 1 of Exhibit B to the Resolution. The project is currently at the 65% design phase, and construction is tentatively scheduled to begin in summer 2025.

The project scope and schedule meet the requirements of the TDA Article 3 funds. In addition, the proposed project is identified in the 2018 Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan, and the CEQA evaluation for the proposed project concludes that no further environmental review is required beyond the Addendum to the Final Initial Study/Mitigated Negative Declaration for the 2018 Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan. The Draft CEQA Addendum is included in Attachment 2 of Exhibit B to the Resolution.

FISCAL AND ADMINISTRATIVE IMPACTS
The Arroyo Road Trail Project 2019-55 is funded in the 2023-28 Capital Improvement Plan with a total of $2,050,00 in FYs 2023-24 and 2024-25. Funding is from Park Fees (Fund 512), Measure B-Local Street & Road (Fund 832), Measure BB-Local Street & Road (Fund 552), and State Grants (Fund 240). This TDA grant of $436,280 in FY 2024-25 will be in addition to this existing funding. Combined, this funding will cover all design and construction costs. The funds will be adjusted in the 2025-2030 Capital Improvement Plan to coincide with the timing of actual expenditures. Some of the funding will be moved forward to FY 2025-26 to coincide with anticipated construction in summer/fall 2025.

COMMUNITY PILLAR
1: A Safe Community That Thrives.

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

ATTACHMENTS

1. Resolution

2. Exhibit A - TDA Article 3 Project Application Findings

3. Exhibit B - TDA Article 3 Project Application Form and Attachments 364
Prepared by: Joanna Liu
Senior Transportation Engineer
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
365
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION APPROVING A REQUEST TO THE METROPOLITAN TRANSPORTATION COMMISSION FOR THE ALLOCATION OF FISCAL YEAR 2024-25 TRANSPORTATION DEVELOPMENT ACT ARTICLE 3 PEDESTRIAN/BICYCLE PROJECT FUNDING TO THE LIVERMORE ARROYO ROAD TRAIL PROJECT 2019-55
WHEREAS, Article 3 of the Transportation Development Act (TDA), Public Utilities Code (PUC) Section 99200 et seq., authorizes the submission of claims to a regional transportation planning agency for the funding of projects exclusively for the benefit and/or use of pedestrians and bicyclists; and
WHEREAS, the Metropolitan Transportation Commission (MTC), as the regional transportation planning agency for the San Francisco Bay region, has adopted MTC Resolution No. 4108, Revised, entitled “Transportation Development Act, Article 3, Pedestrian/Bicycle Projects,” which delineates procedures and criteria for submission of requests for the allocation of “TDA Article 3” funding; and WHEREAS, MTC Resolution No. 4108, Revised requires that requests for the allocation of TDA Article 3 funding be submitted as part of a single, countywide coordinated claim from each county in the San Francisco Bay region; and WHEREAS, the City of Livermore desires to submit a request to MTC for the allocation of TDA Article 3 funds to support the projects described in Exhibit B to this resolution, which are for the exclusive benefit and/or use of pedestrians and/or bicyclists.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that the City of Livermore declares it is eligible to request an allocation of TDA Article 3 funds pursuant to Section 99234 of the Public Utilities Code, and furthermore, BE IT RESOLVED by the City Council of the City of Livermore that there is no pending or threatened litigation that might adversely affect the project or projects described in Exhibit B to this resolution, or that might impair the ability of the City of Livermore to carry out the project; and furthermore,
BE IT RESOLVED by the City Council of the City of Livermore that the City of Livermore attests to the accuracy of and approves the statements in Exhibit A to this resolution; and furthermore,
BE IT RESOLVED by the City Council of the City of Livermore that a certified copy of this resolution and its exhibits, and any accompanying supporting materials shall be forwarded to the congestion management agency, countywide transportation planning agency, or county association of governments, as the case may be, of Alameda County for submission to MTC as part of the countywide coordinated TDA Article 3 claim.

On motion of Council Member _________________________, seconded by Council Member ________________________, the foregoing resolution was passed and adopted on September 9, 2024, by the following vote:
366
RESOLUTION NO. ________
AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_________________________ /s/ Tara Mazzanti
Deborah L. Elam Tara Mazzanti
Acting City Clerk Assistant City Attorney
Exhibit A – TDA Article 3 Project Application Findings
Exhibit B – TDA Article 3 Project Application Form
367
November 2022 TDA Article 3 Model Resolution Page 4
Exhibit A
Re: Request to the Metropolitan Transportation Commission for the Allocation of Fiscal Year FY2024-2025 Transportation Development Act Article 3 Pedestrian/Bicycle Project Funding Findings

1. That the City of Livermore is not legally impeded from submitting a request to the Metropolitan Transportation Commission for the allocation of Transportation Development Act (TDA) Article 3 funds, nor is the City of Livermore legally impeded from undertaking the project(s) described in “Exhibit B” of this resolution.

2. That the City of Livermore has committed adequate staffing resources to complete the project(s) described in Exhibit B.

3. A review of the project(s) described in Exhibit B has resulted in the consideration of all pertinent matters, including those related to environmental and right-of-way permits and clearances, attendant to the successful completion of the project(s).

4. Issues attendant to securing environmental and right-of-way permits and clearances for the projects described in Exhibit B have been reviewed and will be concluded in a manner and on a schedule that will not jeopardize the deadline for the use of the TDA funds being requested.

5. That the project(s) described in Exhibit B comply with the requirements of the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.).

6. That as portrayed in the budgetary description(s) of the project(s) in Exhibit B, the sources of funding other than TDA are assured and adequate for completion of the project(s).

7. That the project(s) described in Exhibit B are for capital construction and/or final design and engineering or quick build project; and/or for the maintenance of a Class I bikeway which is closed to motorized traffic and/or Class IV separated bikeway; and/or for the purposes of restriping Class II bicycle lanes; and/or for the development or support of a bicycle safety education program; and/or for the development of a comprehensive bicycle and/or pedestrian facilities plan, and an allocation of TDA Article 3 funding for such a plan has not been received by the City of Livermore within the prior five fiscal years.

8. That the project(s) described in Exhibit B which are bicycle projects have been included in a detailed bicycle circulation element included in an adopted general plan, or included in an adopted comprehensive bikeway plan (such as outlined in Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.) or responds to an immediate community need, such as a quick-build project.

9. That any project described in Exhibit B bicycle project meets the mandatory minimum safety design criteria published in the California Highway Design Manual or is in a National Association of City and Transportation Officials (NACTO) guidance or similar best practices document.

10. That the project(s) described in Exhibit B will be completed in the allocated time (fiscal year of allocation plus two additional fiscal years).

11. That the City of Livermore agrees to maintain, or provide for the maintenance of, the project(s) and facilities described in Exhibit B, for the benefit of and use by the public.

EXHIBIT A
368
November 2022 TDA Article 3 Model Resolution
Exhibit B
TDA Article 3 Project Application Form

1. Agency City of Livermore

2. Primary Contact Mallika Ramachandran

3. Mailing Address 1052 S. Livermore Ave., Livermore, CA, 94550

4. Email Address [email protected] 5. Phone Number
925-960-4511

6. Secondary Contact
(in the event
primary is not
available)
Joanna Liu

7. Mailing address (if
different) N/A
☒

8. Email Address [email protected] 9. Phone
Number
925-960-4556

10. Send allocation
instructions to (if
different from
above):

11. Project Title Arroyo Road Trail

12. Amount requested $436,280 13. Fiscal Year of
Claim
FY2024-2025

14. Description of Overall Project:

15. Project Scope Proposed for Funding: (Project level environmental, preliminary planning, and ROW are ineligible uses of TDA funds.)

16. Project Location: A map of the project location is attached or a link to a online map of the project location is provided below:

The Arroyo Road trail is identified in the first phase of priority project in the City’s Bicycle, Pedestrian, and Trails Active Transportation Plan as well as Alameda County’s Bicycle and Pedestrian Plan, because it will extend the Livermore’s trail network across unincorporated Alameda County jurisdiction and connect to the existing regional trail within Sycamore Grove Park.

Construction
See Attachment 1
EXHIBIT B Page 1 of 16
369
November 2022 TDA Article 3 Model Resolution
Project Relation to Regional Policies (for information only)

17. Is the project in an Equity Priority Community? Yes☐ No☒

18. Is this project in a Priority Development Area or a Transit-Oriented Community? Yes☐ No☒

19. Project Budget and Schedule
Project Eligibility
A. Has the project been reviewed by the Bicycle and Pedestrian Advisory Committee? Yes☒ No☐ If “YES,” identify the date and provide a copy or link to the agenda.

If "NO," provide an explanation).

Link to the agenda for the May 9, 2024 ACTC BPAC meeting - https://granicus_production_attachments.s3.amazonaws.com/alamedactc/4c87420fc5ae37397491d99d775ec5d50.pdf B. Has the project been approved by the claimant's governing body? Yes☒ No☐ If "NO," provide expected date:________________
C. Has this project previously received TDA Article 3 funding? Yes☐ No☒ (If "YES," provide an explanation on a separate page)
D. For "bikeways," does the project meet Caltrans minimum safety design criteria Yes☒ No☐ pursuant to Chapter 1000 of the California Highway Design Manual? E. 1. Is the project categorically exempt from CEQA, pursuant to CCR Section 15301(c), Yes☐ No☒ Existing Facility?

2. If “NO” above, is the project is exempt from CEQA for another reason? Yes☐ No☒ Cite the basis for the exemption. __________________________ N/A☐ If the project is not exempt, please check “NO,” and provide environmental documentation, as appropriate.

See Attachment 2 – Draft CEQA Addendum.

F. Estimated Completion Date of project (month and year): December 2026 G. Have provisions been made by the claimant to maintain the project or facility, or has Yes☒ No☐ the claimant arranged for such maintenance by another agency? (If an agency other than the Claimant is to maintain the facility, please identify below and provide the agreement.

H. Is a Complete Streets Checklist required for this project? Yes☒ No☐ If the amount requested is over $250,000 or if the total project phase or construction Project Phase TDA 3 Other Funds Total Cost Estimated Completion (month/year)
Bike/Ped Plan
ENV
PA&ED
PS&E
ROW
CON
Total Cost
$265,000 December 2025
December 2026
December 2025
May 2025

N/A N/A

N/A N/A
$631,000
$95,000
$2,500,000
$3,491,000
$436,280
$265,000
$631,000
$95,000
$2,063,720
$436,280 $3,054,720
EXHIBIT B Page 2 of 16
370
November 2022 TDA Article 3 Model Resolution
phase is over $250,000, a Complete Streets checklist is likely required. Please attach the Complete Streets checklist or record of review, as applicable. More information and the form may be found here: https://mtc.ca.gov/planning/transportation/complete-streets EXHIBIT B Page 3 of 16
371
Sources: Esri, HERE, DeLorme, Intermap, increment P Corp., GEBCO, USGS, FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, Esri Japan, METI, Esri China (Hong Kong), swisstopo, MapmyIndia, © OpenStreetMap contributors, and the GIS User Community

EAST AV

LAS POSITAS RD

TESLA RD

PORTOLA AV

N LIVERMORE AV

FIRST ST
ARD AV

STANLEY BL

S VASCO RD

CONCANNON BL

E STANLEY BL

MINES RD

GREENVILLE RD

HOLMES ST

PATTERSON PASS RD

S LIVERMORE AV

ARROYO RD

FOURTH ST

MARINA AV

E AIRWAY BL

AIRWAY BL

CROAK RD

NORTHFRONT RD

RAYMOND RD

HARTFORD AV

E VINEYARD AV N MURRIETA BL

E VALLECITOS RD

RAILROAD AV

WENTE ST

MURRIETA BL

LORRAINE RD

EL CHARRO RD

N GREENVILLE RD

TESLA RD

FIRST ST

MINES RD

N VASCO RD
Arroyo Road Trail
North Livermore/South
Livermore PCAs (08)
Livermore Arroyos, Parks,
and Trails PCAs (29)
EBRPD Regional Trails
System Gaps PCAs (M3)
Existing Trails
Proposed Trails
Urban Growth Boundary
Del Valle
Regional Park
Sycamore Grove
Regional Park
0 1
miles
2 N
FIGURE 1
Arroyo Rd Connector
EXHIBIT B Page 4 of 16
372

CARLSBAD
CLOVIS
IRVINE

LOS ANGELES

PALM SPRINGS

POINT RICHMOND

RIVERSIDE

ROSEVILLE

SAN LUIS OBISPO
Draft CEQA Addendum

MEMORANDUM
DATE: July 17, 2024
TO: Megan Cronan, Principal, Civil Engineering Manager
FROM: Shanna Guiler, Associate/Senior Planner, Project Manager SUBJECT: Draft CEQA Addendum to the Initial Study/Mitigated Negative Declaration for The Arroyo Trail Project 2019-55

INTRODUCTION
The Arroyo Road Trail Project is identified in the first phase of priority projects in the City’s Bicycle, Pedestrian, and Trails Active Transportation Plan (ATP) 1 as well as Alameda County’s Bicycle and Pedestrian Plan. The Arroyo Road trail segment is identified as Segment B of Trail No. 13 in the ATP. The recommended improvement in the ATP for this trail segment is a Class 1A Shared Use Path along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park, including a pedestrian and bicycle bridge crossing at Dry Creek (ATP Planned Project). The required cross section for Class 1A Shared Use Path is a minimum 8-foot trail width and 2-foot shoulder.

The City of Livermore’s proposed Arroyo Road Trail Project 2019-55 is an approximately 1.4-mile paved trail gap closure along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park. It includes a 115-foot pedestrian and bicycle bridge over Dry Creek (Proposed Project). The Proposed Project would provide a 10-foot-wide paved trail with a 3-foot shoulder. The proposed creek crossing would consist of a prefabricated clear span bridge approximately 115 feet long by 10 feet wide. The project would improve access and connectivity to the regional trail system and would provide new opportunities for outdoor recreation, benefiting the local community and visitors alike.

In 2018, the City adopted an Initial Study/Mitigated Negative Declaration (2018 IS/MND)2 for the ATP. The 2018 IS/MND analyzed impacts related to implementation of the ATP, including construction and operation of the ATP Planned Project. This document, prepared pursuant to the California Environmental Quality Act (CEQA) and the regulations and policies of the City, is an Addendum to the 2018 IS/MND. This draft addendum describes the proposed Arroyo Road Trail Project 2019-55 (Proposed Project), evaluates the potential environmental impacts of the Proposed Project and provides a determination that the Proposed Project is addressed within the scope of the 2018 IS/MND and no further environmental review is required. The City of Livermore is the Lead Agency for the CEQA environmental review.
1 Alta Planning + Design. 2018. Prepared for the City of Livermore. City of Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan. June 11.
2 City of Livermore. 2018. Public Review Draft Livermore Active Transportation Plan Initial Study/Mitigated Negative Declaration, Livermore, California. Prepared by LSA Associates, Inc. April.

Attachment 2 EXHIBIT B
373

CEQA FRAMEWORK FOR USE OF AN ADDENDUM
This Addendum is prepared pursuant to CEQA Guidelines Section 15164(b) which states: “An addendum to an adopted negative declaration may be prepared if only minor technical changes or additions are necessary or none of the conditions described in Section 15162 calling for preparation of a subsequent EIR or negative declaration have occurred” Section 15162 specifies that “no subsequent EIR [or MND] shall be prepared for that project unless the lead agency determines … one or more of the following:

1. Substantial changes are proposed in the project which will require major revisions of the previous EIR [or MND] due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;

2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR [or MND] due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or

3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR [or MND] was certified as complete was adopted, shows any of the following:
a. The project will have one or more significant effects not discussed in the previous EIR [or MND];
b. Significant effects previously examined will be substantially more severe than shown in the previous EIR [or MND];
c. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or d. Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR [or MND] would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.”
Pursuant to CEQA Guidelines Section 15164(e), this Addendum summarizes the changes to the proposed project evaluated in the 2018 IS/MND and the reasons for the City’s conclusion that changes to the proposed project and associated environmental effects do not meet the conditions described in CEQA Guidelines Section 15162 requiring preparation of a subsequent IS/MND.

PROJECT BACKGROUND
The 2018 IS/MND evaluated the potential environmental impacts anticipated to result from the implementation of the updated Bicycle, Pedestrian, & Trails Active Transportation Plan (ATP), which encompassed programs, policies, and network recommendations for improving pedestrian and bicycle facilities and paths. The ATP plan aimed to enhance Livermore's bicycle and pedestrian infrastructure, improve safety for cyclists and pedestrians, and promote bicycling and walking as viable transportation options throughout the city. The ATP proposed a total of 252.25 acres of network improvements and 58 total crossing improvements. Adopted on June 11, 2018, Attachment 2 EXHIBIT B
374

the ATP replaced the 2001 Bikeways and Trails Master plan, adding a pedestrian emphasis and updating the plan to meet the current physical environment and public policy conditions.

The City currently has approximately 40 miles of Class I paved shared use paths designed for bicycling, walking, and horseback riding. While equestrians are allowed on all existing trails, trails constructed in South Livermore Valley generally provide a separate unpaved path for horses. The existing trail network is partially developed throughout portions of the City.

The ATP identifies challenges and recommends implementation strategies to improve walking, biking, and trails in Livermore. The existing and proposed trail network is intended to provide separated and comfortable access to community facilities, schools, and transit. The trail network also provides recreational opportunity and connection to neighborhood and regional parks. The ATP Planned Project consists of a Class 1A Shared Use Path along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park, including a pedestrian and bicycle bridge crossing at Dry Creek. The required cross section for Class 1A Shared Use Path is a minimum 8-foot trail width and 2-foot shoulder.

PROPOSED PROJECT
The City of Livermore’s proposed Arroyo Road Trail Project 2019-55 (Proposed Project) is an approximately 1.4-mile, 10-foot-wide, paved trail with 3-foot shoulders along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park. It includes a 115-foot-long by 10-foot-wide prefabricated clear span pedestrian and bicycle bridge over Dry Creek. The project closes the gap between the existing City trail at Wetmore Road and the Arroyo Del Valle Regional Trail at the west entrance of Sycamore Grove Park. The proposed trail would extend from Olivina’s Gate, approximately 0.5-mile to Dry Creek and would be constructed on an existing vineyard maintenance road within the Wente Vineyards property. The southern segment would extend from Dry Creek to the Arroyo Del Valle Trail and would be constructed on an existing unpaved trail path within Sycamore Grove Park. The proposed trail would be designed in accordance with the City’s standard for multi-use trails.

Project construction would take approximately 10 months and would occur in a single phase.

Typical working hours would be 8:00 to 5:00 p.m. Monday through Friday.

ANALYSIS OF POTENTIAL ENVIRONMENTAL EFFECTS
The following includes an evaluation of the potential environmental effects of the Proposed Project, compared to the impacts identified for implementation of the ATP Planned Project in the 2018 IS/MND. This analysis is used to: (1) compare the environmental impacts of the Proposed Project with impacts expected to result from development of the ATP Planned Project and evaluated in the 2018 IS/MND; (2) to identify whether the Proposed Project would result in new or more severe significant environmental impacts; and (3) to identify if there have been substantial changes with respect to the circumstances under which the Proposed Project would be undertaken since the 2018 IS/MND was adopted that would result in new or more severe significant environmental effects. This analysis confirms that the Proposed Project is within the scope of the 2018 IS/MND, and the Proposed Project would cause no new or more severe significant effects and no new mitigation measures are required.

The following discussion has been undertaken pursuant to the provisions of CEQA Guidelines Sections 15162 and 15164 to provide the City with the factual basis for determining whether any changes in the project, any changes in circumstance, or any new information since the 2018 IS/MND was adopted requires additional environmental review.

Attachment 2 EXHIBIT B
375

Aesthetics
Section 4.1 of the 2018 IS/MND analyzed the visual conditions of the ATP Planned Project planning area. Less than significant impacts to aesthetics were identified in the 2018 IS/MND.

Similar to the ATP Planned Project, implementation of the Proposed Project would result in the development of improvements for the City’s bicycle and pedestrian network, generally consisting of at-grade surface-level improvements that would not obstruct scenic views, damage scenic resources, or result in significant changes to the visual character of the City.

The Proposed Project would construct an approximately 1.4-mile, 10-foot-wide paved trail with 3- foot-wide shoulders along Arroyo Road from Wetmore Road to the existing Arroyo Del Valle Regional Trail within Sycamore Grove Park, including a 115-foot-long by 10-foot-wide prefabricated clear span pedestrian and bicycle bridge over Dry Creek.

Therefore, the Proposed Project would not have a substantial effect on scenic vistas or existing visual resources nor would it degrade the existing visual character or quality of the site. No new impacts or increase in severity of impacts would occur.

Agricultural Resources
Section 4.2 of the 2018 IS/MND analyzed the impacts on agricultural resources, identifying less than significant impacts. Similar to the ATP Planned Project area, the Proposed Project encompasses areas classified as Prime Farmland, Unique Farmland, and land subject to Williamson Act contracts. However, like the ATP Planned Project, implementation of the Proposed Project would not involve the conversion of agricultural land, nor would it conflict with existing Williamson Act contracts, as the land use would remain unchanged. No new impacts or increase in severity of impacts would occur.

Air Quality
Section 4.3 of the 2018 IS/MND analyzed impacts to air quality associated with implementation of the ATP. The 2018 IS/MND identified temporary short-term, construction-related impacts to air quality, which would be less than significant with implementation of Mitigation Measure AIR-1. No long-term operational impacts were identified. Similar to the ATP Planned Project, the Proposed Project would not conflict with or obstruct the implementation of the applicable air quality plan, violate air quality standards, or result in a cumulatively considerable net increase in any criteria pollutant. Construction of the Proposed Project would utilize similar construction techniques identified in the 2018 IS/MND. Implementation of Mitigation Measure AIR-1 identified in the 2018 IS/MND, would ensure that impacts related to air quality would be reduced to less than significant levels. No new impacts or increase in severity of impacts would occur and no additional mitigation measures are required.

Biological Resources
Section 4.4 of the 2018 IS/MND analyzed impacts to biological resources associated with the implementation of the proposed project. The 2018 IS/MND determined that impacts related to special-status species, sensitive natural communities, nesting birds, riparian woodlands, and seasonal wetlands associated with Dry Creek, Arroyo Valle Creek, and wetland channels would be less than significant with mitigation incorporated. Additionally, the 2018 IS/MND concluded that the ATP planning area is located within the boundaries of the East Alameda County Attachment 2 EXHIBIT B
376

Conservation Strategy (EACCS)3 area. Although the EACCS is not considered a formal Habitat Conservation Plan (HCP), a Programmatic Biological Opinion (PBO) has been issued to the Corps for projects that impact Corps jurisdiction in the EACCS area.

The Proposed Project would be located within the same planning area as the ATP Planned Project and would be subject to similar biological conditions. In accordance with Mitigation Measure BIO1 in the 2018 IS/MND, a biological resources assessment was prepared for the Proposed Project (Attachment A), which included background research and a reconnaissance-level field survey of the Proposed Project site. As described in the Biological Resources Assessment, impacts to biological resources would be similar to those analyzed for the proposed project in the 2018 IS/MND. Implementation of Mitigation Measures BIO-2 through BIO-12, identified in the 2018 IS/MND would ensure that impacts would be reduced to less than significant levels. No new impacts or increase in severity of impacts would occur and no additional mitigation measures are required.

Cultural Resources
Section 4.5 of the 2018 IS/MND analyzed impacts to cultural resources associated with implementation of the proposed project. The IS/MND determined that impacts to previously unidentified archaeological and paleontological deposits as a result of ground disturbing activities would be less than significant with mitigation incorporated. The Proposed Project would be located within the same area as the ATP Planned Project and would construct a multi-use paved trail, and a free span bridge. The depth of excavation and fill for the trail bed would not exceed 10 feet. Similar to the ATP Planned Project, the Proposed Project has the potential to encounter cultural deposits during ground disturbing activities. Implementation of Mitigation Measures CULT-1, CULT-2, and CULT-3 identified in the 2018 IS/MND would ensure that impacts would be reduced to less than significant levels. No new impacts or increase in severity of impacts would occur and no additional mitigation measures are required.

Energy
Since adoption of the 2018 IS/MND, the CEQA Checklist has been updated to include a discussion of potential project impacts related to energy. As energy was not addressed were not evaluated in the 2018 IS/MND, the Proposed Project’s potential to result in a potentially significant environmental impact due to wasteful, inefficient or unnecessary consumption of energy resources or to conflict with or obstruct a state or local plan for renewable energy or energy efficiency is described below.

Construction of the Proposed Project would require the use of energy to fuel grading vehicles, trucks, and other construction vehicles. All or most of this energy would be derived from nonrenewable resources. In order to increase energy efficiency on the site during project construction, the project would restrict equipment idling times to 5 minutes or less and would require construction workers to shut off idle equipment, as required by the BAAQMD’s Basic Construction Mitigation Measures (Mitigation Measure AIR-1, identified in the 2018 IS/MND). In addition, construction activities are not anticipated to result in an inefficient use of energy as gasoline and diesel fuel would be supplied by construction contractors who would conserve the use of their supplies to minimize their costs on the project. Energy usage on the project site during construction would be temporary in nature and would be relatively small in comparison to the 3 ICF International, 2010, op. cit.

Attachment 2 EXHIBIT B
377

State’s available energy sources. Therefore, construction energy impacts would be less than significant.

Typically, energy consumption is associated with fuel used for vehicle trips and natural gas and energy use. However, the ATP Planned Project would implement bicycle and pedestrian facilities including network improvements. Similarly, the Proposed Project would construct a multi-use paved trail between the existing City trail at Wetmore Road and the Arroyo Del Valle Regional Trail at the west entrance of Sycamore Grove Park. Therefore, the Proposed Project would promote the use of alternative modes of transportation, which allow for a decreased dependence on nonrenewable energy resources. Operation of the Proposed Project would not require the consumption of natural gas. Energy consumed by the Proposed Project might only be associated with minimal electricity consumption associated with a potential electric access gate that may be incorporated to benefit an adjacent property. Therefore, implementation of the Proposed Project would not result in a long-term substantial demand for electricity and natural gas nor would the project require new service connections or construction of new off-site service lines or substations to serve the project. The nature of proposed improvements would not require substantial amounts of energy for either construction or maintenance purposes. Therefore, the Proposed Project would not use non-renewable resources in a wasteful or inefficient manner.

As indicated above, energy usage on the project site during construction would be temporary in nature. In addition, energy usage associated with operation of the Proposed Project would be relatively small in comparison to the State’s available energy sources and energy impacts would be negligible at the regional level. Because California’s energy conservation planning actions are conducted at a regional level, and because the project’s total impact to regional energy supplies would be minor, the Proposed Project would not conflict with California’s energy conservation plans. Further, the Proposed Project includes pedestrian and bicycle safety improvements to promote the use of alternative modes of transportation, which allow for a decreased dependence on nonrenewable energy resources. Thus, as shown above, the Proposed Project would avoid or reduce the inefficient, wasteful, and unnecessary consumption of energy and not result in any irreversible or irretrievable commitments of energy. Impacts would be less than significant. No new impacts or increase in severity of impacts would occur.

Geology and Soils
Section 4.7 of the 2018 IS/MND analyzed the geological, seismic, and soil conditions within the project area and potential impacts relating to geology and soils with implementation of the ATP.

The 2018 IS/MND determined that implementation of the ATP would not cause substantial adverse effects due to rupture of a known earthquake fault, strong seismic ground shaking, seismic relation ground failure such as liquefaction, or landslides. Further, the 2018 IS/MND determined that the project would not result in substantial soil erosion or the loss of topsoil or be located on an unstable geologic units or expansive soil. Areas susceptible to erosion would be required to comply with the City’s building code and adhere to the National Pollutant Discharge Elimination System (NPDES) stormwater permit provisions. Construction of the Proposed Project would occur in the same vicinity as the ATP Planned Project and would be subject to similar geological and soil conditions. As such, impacts related to geology and soils would be similar to the project, and less than significant. No additional impacts or increase in the severity of impacts would occur with implementation of the Proposed Project. Compliance with the NPDES stormwater permit would ensure that impacts related to soil erosion would be reduced to less than significant levels. No new impacts or increase in severity of impacts would occur.

Attachment 2 EXHIBIT B
378

Greenhouse Gas Emissions
Similar to the ATP Planned Project, the Proposed Project would not result in significant, long-term GHG emissions, as the Proposed Project consists of pedestrian and bicycle improvements and would not generate vehicle trips and/or source emissions that would contribute to an increase in GHG emissions. Like the ATP Planned Project, the Proposed Project would result in minor alterations to local pedestrian, bicycle, and vehicular circulation patterns, increasing walking and bicycling, which would contribute to a reduction in overall vehicular emissions of GHG emissions in Livermore.

As described in the 2018 IS/MND, construction activities related to the ATP Planned Project, such as site preparation, site grading, on-site heavy-duty construction vehicles and motor vehicles transporting the construction crew would produce combustion emissions from various sources.

Construction of the Proposed Project would utilize similar construction techniques identified in the 2018 IS/MND; therefore, construction emissions would be considered less than significant.

Further, implementation of Mitigation Measure AIR-1, as discussed in the Air Quality Section, would reduce construction GHG emissions by limiting construction idling emissions.

The Proposed Project would not generate significant greenhouse gas emissions, either directly or indirectly that would have a significant impact on the environment or conflict with an applicable plan, policy, or regulation adopted for the purpose of reducing the emissions of GHGs. No new impacts or increase in severity of impacts would occur and no additional mitigation measures are required.

Hazards and Hazardous Materials
Section 4.8 of the 2018 IS/MND analyzed impacts related to hazards and hazardous materials that would be associated with implementation of the ATP Planned Project. All impacts related to hazards and hazardous materials were determined to be less than significant. The 2018 IS/MND identified approximately 145 listed hazardous materials release sites listed throughout Livermore.

Similar to the ATP Planned Project, the Proposed Project would not create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials, or through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. A review of the Regional Water Quality Control Board (RWQCB) GeoTracker website4 and the California Department of Toxic Substances Control (DTSC) EnviroStor website,5 indicates that there are no listed hazardous materials sites in the vicinity of the Proposed Project. Like the ATP Planned Project, improvements contemplated as part of the Proposed Project would generally require small amounts of ground disturbance such that no large-scale release of contaminated soils or groundwater would occur. Hazardous materials, including commercially-available pesticides, fuels, and paints, would be used temporarily during construction. However, similar to the ATP Planned Project, the City would be required to comply with all State and regulatory agency requirements when using hazardous materials. No new impacts or increase in severity of impacts would occur. 4 State Water Resources Control Board. GeoTracker. (2024) Website: geotracker.waterboards.ca.gov (accessed July 2024).
5 Department of Toxic Substances Control. EnviroStor. Website: www.envirostor.dtsc.ca.gov/public (accessed July 2024).

Attachment 2 EXHIBIT B
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Hydrology and Water Quality
Section 4.9 of the 2018 IS/MND analyzed impacts to hydrology and water quality associated with implementation of ATP Planned Project. The 2018 IS/MND determined that implementation of the ATP would have a less-than-significant impact on water quality standards and waste discharge requirements. The 2018 IS/MND identified an increase in impervious surfaces at various locations within the ATP planning area; however, as each project implemented as part of the ATP, including the ATP Planned Project, would be required to comply with the City’s building code and adhere to the National Pollutant Discharge Elimination System (NPDES) stormwater permit provisions (if required), impacts related to stormwater runoff were determined to be less than significant. The 2018 determined that the majority of projects identified in the ATP are located in an area of minimal flooding; however, 100-year flood zones are located along Arroyo Del Valle in the southwest portion of the ATP planning area, in the vicinity of the ATP Planned Project. However, the 2018 IS/MND determined that compliance with General Plan objectives and policies would ensure that implementation of the ATP would have a less-than-significant impact related to 100- year flood flows.

The Proposed Project would be located in the same vicinity as the ATP Planned Project, use similar construction techniques, and be subject to the same hydrological conditions. No new hydrological resources would be impacted with implementation of the Proposed Project and no increase in impacts would occur. Similar to the ATP Planned Project, the Proposed Project would be required to comply with General Plan policies and objectives to ensure that implementation of the Proposed Project would have a less-than-significant impact on flood flows. Specifically, General Plan Objective PS-2.1, Policy 3, requires improvements that create new impervious surfaces that might alter flood flows (such as a new bridge) to prepare a drainage study to assess stormwater runoff impacts on the local and regional storm drain and flood control system, and to develop recommended detention and drainage facilities to ensure that increased risks of flooding do not result from development. Additionally, per General Plan Objective PS-2.1, Policy 7, public service facilities existing in 100-year flood zones shall be flood-proofed to a point at or above the base flood elevation. No new impacts or increase in severity of impacts would occur.

Land Use
Section 4.10 of the 2018 IS/MND analyzed impacts to land use and planning associated with implementation of the proposed. The Proposed Project would be constructed in the same vicinity as the ATP Planned Project and would be subject to the same land use plans discussed in the 2018 IS/MND, including the City of Livermore General Plan. Similar to the ATP Planned Project, the Proposed Project would not physically divide an established community or conflict with a habitat conservation plan or natural community conservation plan. The Proposed Project, similar to the ATP Planned Project, is consistent with the goals and policies contained in the City of Livermore General Plan 2022 Update, the City of Livermore Municipal Code, and other City and County planning documents. Furthermore, the Proposed Project would not change the City land use or zoning designations in the project area and is compatible with existing land uses along the alignment. No new impacts or increase in severity of impacts would occur.

Mineral Resources
Section 4.11 of the 2018 IS/MND analyzed potential impacts on mineral resources with implementation of the ATP and identified less than significant impacts. As described in the 2018 IS/MND, the City of Livermore General Plan identifies multiple areas within Livermore as having mineral resource which have Statewide or regional significance; however, improvements associated with the ATP would generally be located within existing rights-of-way, most of which are already paved and improvements implemented as part of the proposed Plan would not result Attachment 2 EXHIBIT B
380

in the loss of availability of a known mineral resource as there would be no change in land uses within the ATP Planning Area. Like the ATP Planned Project, the Proposed Project is not located in an area that would result in the loss of availability of a known mineral resource or a locally important mineral resource recovery site. No new impacts or increase in severity of impacts would occur.

Noise
Section 4.12 of the 2018 IS/MND analyzed potential noise impacts associated with implementation of the ATP. The 2018 IS/MND identified temporary, short-term, noise impacts associated with construction of the ATP Planned Project. Construction noise would result in a temporary or periodic increase in ambient noise levels in the project vicinity. To reduce any potential noise impact to off-site sensitive receptors, the 2018 IS/MND identified Mitigation Measure NOI-1 to reduce potential construction period noise impacts to less than significant levels. Impacts related to operational noise, vibration and airport—related noise were determined to be less than significant.

Similar to the ATP Planned Project, construction of the Proposed Project would result in a temporary increase in ambient noise levels and ground borne vibration in the project area. As the Proposed Project would be located on the same site as the ATP Planned Project, implementation of the Proposed Project would result in similar construction noise impacts as the ATP Planned Project and would be required to implement Mitigation Measure NOI-1. With implementation of Mitigation Measure NOI-1, impacts associated with construction noise would be similar to the ATP Planned Project and would be less than significant. In addition, similar to the ATP Planned Project, no pile driving or other construction activity that would generate excessive ground borne vibration would be required to construct the Proposed Project. In addition, project construction would be required to comply with the City’s noise standards for construction activities (Section 9.36.080 of the City’s Municipal Code, which regulates the hours of construction activities). Therefore, the Proposed Project, like the ATP Planned Project, would not expose people to or generate excessive ground borne vibration or noise, and the impacts associated with the temporary increase in noise levels during the construction period would be less than significant.

Implementation of Mitigation Measure NOI-1 as identified in the 2018 IS/MND would remain applicable to the Proposed Project and ensure that all temporary construction noise impacts would be reduced to less than significant levels. No new impacts or increase in severity of impacts would occur.

Population and Housing
Section 4.13 of the 2018 IS/MND analyzed impacts to population and housing associated with the proposed project. No impacts to population and housing were identified in the 2018 IS/MND.

Similar to the ATP Planned Project, the Proposed Project would not induce substantial growth, displace any existing housing units or people, and would not necessitate the construction of replacement housing elsewhere. No new impacts or increase in severity of impacts would occur.

Public Services
Section 4.14 of the 2018 IS/MND analyzed impacts to public services associated with the ATP Planned Project. Less than significant impacts were identified. Similar to the ATP Planned Project, the Proposed Project would not require the construction of new or physically altered governmental facilities in order to maintain acceptable service ratios, response times, or other performance standards for fire protection, police protection, schools, parks, or other public facilities. Public Attachment 2 EXHIBIT B
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services impacts would be less than significant. No new impacts or increase in severity of impacts would occur.

Recreation
Section 4.15 of the 2018 IS/MND analyzed impacts to recreation associated with the ATP Planned Project. Less than significant impacts were identified. Implementation of the ATP Planned Project would generally result in bicycle and pedestrian improvement projects within existing rights-ofway, increase connections between existing recreational facilities and parks, and would incrementally increase the use of these facilities. However, such an increase in use is not anticipated to result in a significant increase in use of recreation facilities such that substantial physical deterioration of the facility would occur or be facilitated. Similar to the ATP Planned Project, the Proposed Project would not increase the use of existing recreational facilities, nor would it create a need for additional recreation services. No new impacts or increase in severity of impacts would occur.

Transportation
Section 4.16 of the 2018 IS/MND analyzed impacts to transportation/traffic associated with the ATP Planned Project and identified less than significant impacts. Similar to the ATP Planned Project, the Proposed Project would improve the City’s bicycle and pedestrian infrastructure, enhance bicycle and pedestrian safety, and encourage bicycling and walking as a viable form of transportation throughout Livermore. The Proposed Project would not generate new vehicle trips during the operational period. Further, as the Proposed Project would construct a Class 1a, separated, multi-use, paved trail, it would not reduce vehicle capacity of intersections or result in changes to the roadway right-of-way. The Proposed Project, like the ATP Planned Project, has been identified in numerous plans and policy documents as a future bicycle and pedestrian improvement. The Proposed Project would not result in transportation impacts related to vehicle miles traveled. No new impacts or increase in severity of impacts would occur.

Tribal Cultural Resources
Section 4.17 of the 2017 IS/MND analyzed impacts to tribal cultural resources associated with the proposed project. No impacts to tribal resources were identified. The CEQA process requires consultation with Native Americans under Assembly Bill (AB) 52. As stated in the 2018 IS/MND, on February 14, 2018, the City provided formal notification to interested Native American tribes that may be culturally or traditionally affiliated with the project area and vicinity to conduct consultation. The City received no responses from the tribal representatives during the 30-day comment period.

The 2018 IS/MND determined that with implementation of Mitigation Measures CULT-1 and CULT-3, potential impacts on tribal cultural resources would be less than significant. As the Proposed Project would be located on the same site as the ATP Planned Project, potential impacts on tribal cultural resources would be similar to those discussed in the 2018 IS/MND and during tribal consultation efforts. The Proposed Project would also be required to implement Mitigation Measures CULT-1 and CULT-3, and as such, potential impacts on tribal cultural resources would be similar to the approved project and would be less than significant. No new impacts would occur and no additional mitigation measures are required.

Utilities and Service Systems
Section 4.18 of the 2018 IS/MND analyzed impacts to utilities and service systems associated with the proposed project. Less than significant impacts were identified in the 2018 IS/MND. Like Attachment 2 EXHIBIT B
382

the ATP Planned Project, the Proposed Project would not generate a new demand for wastewater treatment, require the construction of new/expansion of existing water or wastewater treatment facilities, or generate solid waste that would exceed landfill capacity. The Proposed Project would include two drainage crossings requiring culvert construction; however, these facilities would not result in the construction or expansion of storm water drainage facilities. No new impacts or increase in severity of impacts would occur.

Wildfire
Risks associated with wildfire were evaluated in Section 4.8.h, Hazards and Hazardous Materials, of the 2018 IS/MND. The Proposed Project would construct an approximately 1.4-mile-long, multiuse paved trail segment between the existing City trail at Wetmore Road and the Arroyo Del Valle Regional Trail at the east entrance of Sycamore Grove Park. Like the ATP Planned Project, the Proposed Project would not introduce inappropriate uses or materials such as housing or a large amount of fire-susceptible vegetation to the site that would increase the risk of wildland fire. No new impacts or increase in severity of impacts would occur.

COMPARISON TO THE CONDITIONS LISTED IN CEQA GUIDELINES SECTION 15162
The following discussion summarizes the reasons that a new or subsequent IS/MND or EIR, pursuant to CEQA Guidelines Sections 15162, is not required to evaluate the environmental effects of the Proposed Project. The analyses prepared for each CEQA topic in the previous sections demonstrate that the Proposed Project is addressed within the scope of the 2018 IS/MND, and no new significant impacts are identified, no significant impacts are more severe, no new mitigation measures are required, and no substantial changes to the existing environmental circumstances have occurred leading to new or more severe previously identified significant impacts.

Substantial Changes to the Project
As discussed above in the Project Description, the Proposed Project has not substantially changed from the ATP Planned Project identified and evaluated in the 2018 IS/MND. Additionally, the changes identified for the Proposed Project do not substantially change the scope of proposed improvements proposed and evaluated in the 2018 IS/MND. As such, an Addendum is the appropriate document to address these minor modifications rather than a Subsequent IS/MND or EIR.

Substantial Changes in Circumstances
As described for each CEQA topic in the previous sections, the existing environmental conditions or circumstances in and around the project site have not changed such that implementation of the Proposed Project would result in new significant environmental effects or a substantial increase in the severity of significant environmental effects identified in the 2018 IS/MND, and thus major revisions to the 2018 IS/MND are not required.

New Information
No new information of substantial importance, which was not known and could not have been known when the 2018 IS/MND was adopted, has been identified to show that the Proposed Project would be expected to result in: 1) new significant environmental effects not identified in the 2018 IS/MND; 2) substantially more severe environmental effects than shown in the 2018 IS/MND; 3) mitigation measures or alternatives previously determined to be infeasible would in Attachment 2 EXHIBIT B
383

fact be feasible and would substantially reduce one or more significant effects of the project, but the project sponsor declines to adopt the mitigation measure or alternative; or 4) mitigation measures or alternatives which are considerably different from those identified in the 2018 IS/MND would substantially reduce one or more significant effects of the project but the project sponsor declines to adopt the mitigation measure or alternative. In addition, the Proposed Project would require no new mitigation measures because no new or substantially more severe impacts are expected beyond those identified in the 2018 IS/MND.

CONCLUSION
On the basis of the evaluation presented above, the Proposed Project, if implemented, would not trigger any of the conditions listed under the CEQA Framework for Use of an Addendum section of this Addendum, requiring preparation of a subsequent or supplemental IS/MND. Thus, this Addendum satisfies the requirements of CEQA Guidelines Section 15162 and 15164.

Implementation of the Proposed Project would include the construction of an approximately 1.4- mile-long, multi-use paved trail segment between the existing City trail at Wetmore Road and the Arroyo Del Valle Regional Trail at the east entrance of Sycamore Grove Park. The Proposed Project would not introduce new significant environmental effects, substantially increase the severity of previously identified significant environmental effects or demonstrate that mitigation measures or alternatives previously found not to be feasible would in fact be feasible. The Proposed Project would not alter the findings in the 2018 IS/MND. In addition, no change has occurred with respect to the circumstances surrounding the proposed project that would cause new or substantially more severe significant environmental effects than identified in the 2018 IS/MND, and no new information has become available that shows that the project would cause significant environmental effects not already analyzed in the 2018 IS/MND. Therefore, no further environmental review is required beyond this Addendum to the 2018 IS/MND.

Attachment 2 EXHIBIT B
384
CITY COUNCIL STAFF REPORT ITEM NO. 5.10
DATE: September 9, 2024
TO: Honorable Mayor and City Council
FROM: Brandon Cardwell, Innovation and Economic Development Director SUBJECT: Resolution authorizing execution of lease agreements with New Cingular Wireless PCS, LLC for the construction and maintenance of telecommunications facilities on City property located at 2705 Ames Street and 3663 Pacific Avenue.

RECOMMENDED ACTION
Staff recommends the City Council adopt a resolution authorizing the City Manager to execute lease agreements with New Cingular Wireless PCS, LLC for the construction and maintenance of wireless telecommunications facilities on City property located at 2705 Ames Street and 3663 Pacific Avenue.

SUMMARY
New Cingular Wireless PCS, LLC (Lessee), a telecommunications operator, approached staff with a request to lease a portion of two City-owned properties to install wireless telecommunications facilities at 2705 Ames Street and 3663 Pacific Avenue. Lessee is proposing to co-locate wireless antenna facilities on an existing PG&E tower at 2705 Ames Street and an existing Verizon wireless antenna tower at 3663 Pacific Avenue, as well as installation of ground equipment to support the operation of the wireless antenna facilities at each site. Installation of telecommunication facilities on City properties requires a lease between New Cingular Wireless PCS, LLC and the City. These facilities will increase cellular coverage in these areas of the community, as well as generate revenue for the City. Staff recommends the City Council adopt a resolution authorizing the City Manager to execute the lease agreements with New Cingular Wireless PCS, LLC.

DISCUSSION
Due to the increased demand for cellular coverage throughout the City of Livermore, the Lessee desires to erect wireless antennas on an existing PG&E tower at 2705 Ames Street and on an existing Verizon wireless antenna tower at 3663 Pacific Avenue. PG&E has granted permission for the Lessee to install wireless antennas on PG&E’s tower, and Verizon has granted the Lessee permission to co-locate wireless antennas on Verizon’s existing tower. PG&E has an existing easement for their tower and overhead transmission power lines on the City property at 2705 Ames Street, and Verizon has a current lease with the City for their existing wireless telecommunication facility at 3663 Pacific Avenue. The 385
Lessee’s ground equipment, which will be installed and maintained by the Lessee within the leased areas of these proposed lease agreements, will support the operation of wireless antenna facilities at each site.

Access to the 2705 Ames Street site will be off Ames Street, as the facility is located adjacent to the street. Access to the 3663 Pacific Avenue site will be from South Livermore Avenue along the parking drive isle on the south side of the existing Civic Center Library using the access gravel road. This is the same road used by Verizon to access their existing telecommunications facility.

Each lease agreement has an initial lease term of five (5) years with the option to extend the lease agreement for three (3) additional five (5) year terms, for a potential total lease term of 20 years.

FISCAL AND ADMINISTRATIVE IMPACTS
Revenues from these leases will be deposited in the City’s General Fund. Within 30 days of the effective date of the lease agreement at 2705 Ames Street, Lessee will pay the City a $7,500 one-time payment to cover City staff time in the preparation and recording of the lease. Within 30 days of the effective date of the lease agreement at 3663 Pacific Avenue, the Lessee will pay the City a $6,500 one-time payment to cover City staff time in the preparation and recording of the lease. The annual rental revenue from the lease agreement at 2705 Ames Street is approximately $37,200. The annual rental revenue from the lease agreement at 3663 Pacific Avenue is approximately $24,000. The rental rate for each of the lease agreements will increase by 3.5% annually.

COMMUNITY PILLAR
5: A City that Works
GOAL
14: Develop, operate, and maintain City's infrastructure

ATTACHMENTS

1. Location Map 2705 Ames Street

2. Location Map 3663 Pacific Ave

3. Resolution

4. Exhibit A - Lease Agreement 2705 Ames Street

5. Exhibit B - Lease Agreement 3663 Pacific Avenue
Prepared by: Mike Pato
Management Analyst II
386
Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
387
ATTACHMENT 1
388
ATTACHMENT 2
389
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF LEASE AGREEMENTS WITH NEW

CINGULAR WIRELESS PCS, LLC FOR THE CONSTRUCTION AND MAINTENANCE OF TELECOMMUNICATIONS FACILITIES ON TWO CITY PROPERTIES LOCATED AT 2705 AMES STREET AND 3663 PACIFIC AVENUE
Due to an increased demand for cellular coverage throughout the City of Livermore (“City”), New Cingular Wireless PCS, LLC would like to install wireless telecommunications facilities on a portion of two City properties to provide cellular coverage to more customers.

Installation of telecommunications facilities on City properties requires a lease between New Cingular Wireless PCS, LLC and the City.

The two leases will allow New Cingular Wireless PCS, LLC to construct and maintain telecommunications facilities on a portion of City property located on the east side of Ames Street between Martingale and Broadmoor Streets and on a portion of City property located at the northwest corner of the City’s solar array behind the police and civic center library facilities. The City will receive land lease revenues under the leases, which have an initial term of five years with the option to extend for three additional five-year terms.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby authorizes the City Manager, or her designee, to sign on behalf of the City of Livermore, Lease Agreements with New Cingular Wireless PCS, LLC, attached hereto as Exhibits A and B, for construction of telecommunications facilities on two City properties.

On motion of Council Member _______________________, seconded by Council Member _______________________, the foregoing resolution was passed and adopted on September 9, 2024, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Katherine Mirassou
Deborah L. Elam Katherine Mirassou
Acting City Clerk Deputy City Attorney
Exhibit A - Lease Agreement - 2705 Ames Street
Exhibit B – Lease Agreement - 3663 Pacific Avenue
390

LEASE FOR INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILTY THIS LEASE FOR INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILIry ("Lease Agreement") is made as of this _ day of _,2024 ("Eftective Date"), by and among the City of Livermore ("City"), a municipal corporation, having rts principal place of business at 1052 South Livermore Avenue, Livermore, CA 94550, and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Lessee").

Recitals
City is the owner of the property located at APN 998-81 18-62, on Ames Street, north of Dalton Avenue, in the City of Livermore, County of Alameda, State of California 94551 , and more particularly described in the legal description attached as Attachment "A" ("Property").

On October 22,2018, the City adopted Ordinance no.2777 (Development Code Amendment 18-005) to regulate the permit processing, location, and design of wireless telecommunications facilities.

On December 13,2010, the City adopted a policy for leasing City-owned property for wireless telecommunication facilities ("Policy") (Resolution no.2O1O-201, Policy Proposal '10- 003) that includes the Property.

On October 6,2021, The Pacific Gas and Electric Company (PG&E) granted Lessee permission to install a wireless telecommunication facility for its telecommunications system within their existing easement area located on the Property.

The Lessee is a telecommunications operator that desires to rent a portion of the Property from the City to install a wireless telecommunication facility for its telecommunications system.

The City desires to lease a portion of the Property to the Lessee for that purpose.

The Lessee has applied for and obtained land use entitlements for a wireless telecommunications facility on the Property: Conditional Use Permit (CUP13-008) and Zoning Clearance (2C23-00h ("Entitlements").

Aqreement
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereby agree as follows:

Recitals. The aforementioned recitals are true and correct. (a) Description. For and in consideration of the mutual terms, covenants and conditions contained herein, the following areas are leased by Lessee under this Lease Agreement.
1 2
Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 1 Leased Areas.
(1) Leased Areas: The Leased Areas (as depicted in Attachment B) include areas within the Property consisting of 1,851 square feet for the Wireless Telecommunication

EXHIBIT A
391
Facility, a 3,413 square feet utility lease area, and an additional 233 square feet transformer equipment lease area located 32'-8" north of the Wireless Telecommunication Facility for the utility pad mount transformer. These areas shall be collectively referred to in this Lease Agreemenl depicted in Attachment B as the "Leased Areas."
(b)
as follows:

Appurtenant Riqhts. The appurtenant rights granted by this Lease Agreement are (1 ) For the duration of this Lease Agreement, including any extensions thereof, Lessee is hereby granted a non-exclusive access over, in, and across the Property's common areas to the Leased Areas for the limited purpose of installing, maintaining, servicing, replacing, and operating Lessee's Wireless Telecommunication Facility as defined in section 3 below.

The right of access is limited to Lessee, its employees, agents and designated representatives, and is expressly conditioned upon Lessee's compliance with all terms and conditions of this Lease Agreement. The right of access does not grant Lessee any right across, over or through any occupied areas on the Property.

3. WirelessTelecommunicationFacilitv
The Antennas, Tower and Equipment, and connections between them and to utilities, are collectively referred to as the "Wireless Telecommunication Facility" for this Lease Agreement as described below in detail and in Attachment B.
(a) Antennas and Tower. Upon approval of project entitlements and building permit, Lessee will have the right to install panel antennas ("Antennas") and related communications equipment and appurtenances ("Equipment"), on a PG&E utility tower ("Tower'') and within the Leased Areas, identified in Attachment "B" for the operation of a telecommunications system.
(b) Equioment. Upon approval of a building permit, Lessee will have the right to install the equipment within the Leased Areas identified in Attachment "C": PROPOSED

WIRELESS TELECOMMUNICATION FACILITY WITH EQUIPMENT

4. Term. The initial term of this Lease Agreement shall be for five (5) years ("lnitial Term") commencing on the Effective Date. Lessee shall have the option to extend the term of this Lease Agreement for three (3) additional five (5) year terms after the lnitial Term expires ("Extended Term"). The Extended Term shall be deemed automatically exercised by Lessee without the requirement of delivering a written notice to the City unless Lessee notifies the City in writing no later than ninety (90) calendar days before expiration of the lnitial Term that Lessee elects not to exercise the option for the Extended Term. lf Lessee is in material default beyond the applicable cure period under this Lease Agreement at the time of exercising its option to extend the Term of this Lease Agreement, the option notice shall be ineffective, and Lessee shall have no right to extend the Term beyond the lnitial Term until and unless Lessee cures the applicable material default prior to the commencement of the Extended Term. The Base Rent and any Additional Ground Space Rent for the Extended Term shall increase as set forth in Paragraph 5(c) below.

The lnitial Term and the Extended Term are hereinafter collectively referred to as the "Term".

Leqse for lnstollotion of Telecommunicotions Equipment-Finol Page 2

EXHIBIT A
392
(a) One-Time Lease Execution Charqe. Within 30 days of the Effective Date of this Lease Agreement, Lessee shall pay City the amount of Seven Thousand Flve-Hundred and No/1OO Dollars ($7,500.00) as a one-time Lease Execution Charge mailed to the City of Livermore, Attention: Finance Dept. Accounts Receivable, 1052 S. Livermore Avenue, Livermore, CA 94550. (b) Base Rent. Commencing upon the Effective Date, Lessee shall pay City, as rent, the amount of Three Thousand One-Hundred and No/100 Dollars ($3.100.00) ("Base Rent") per month. The Lessee shall pay a pro-rata share of the Base Rent in the first month of the Lease Agreement based on the Effective Date. Lessee's first Base Rent payment to the City shall be made within ninety (90) days of the Effective Date. Thereafter, Lessee shall pay the Base Rent to the City in advance on the first day of each month during the Term of this Lease Agreement. lf that date falls on a weekend or a legal holiday, the Base Rent is due on the nen business day.

The payments are to be made to the City and mailed to the City of Livermore, Attention: Finance Dept. Accounts Receivable, 1052 S. Livermore Avenue, Livermore, CA 94550. (c) Rent Adiustment. On July lsievery year during the lnitial Term and the Extended Term, the Base Rent shall be increased by a fixed rate of three and one half percent (3.5%) of the annual rent paid in the immediately preceding year. (d) Additional Ground Soace Rent. ln the event that Lessee requests and the City approves the installation of additional equipment outside of the Leased Area as described above in Section 2(a)(1) and shown in Attachment B, additional ground space rent may be required as negotiated between City and Lessee ("Additional Ground Space Rent") in addition to the Base Rent, which Additional Ground Space Rent shall commence upon the first ('l "t) day of the month following the commencement of installation of the applicable equipment. The additional ground space rent in either case shall be distributed to the City pursuant to section 5(b) above. (e) Deposits. To secure the performance of its obligations under this Lease Agreement, the Lessee is required to make the following deposits with the City within ninety (90) days of the Effective Date:
(1) General Performance Bond: The Lessee shall furnish to and maintain with the City, in a form acceptable to the City's Attorney, a non-revocable performance-andpayment bond in the amount of One Hundred Thousand Dollars ($100,000) to ensure the Lessee's faithful performance of all the terms and conditions in this Lease Agreement, including without limitation the monthly payment of the Base Rent and Additional Ground Space Rent, and the restoration of the Property to the extent required pursuant to the terms and conditions of this Lease Agreement.
(2) Certificate of Deoositi The Lessee shall furnish to and maintain with the City, in a form acceptable to the City's Attorney, a joint Certificate of Deposit in the amount of Ten Thousand Dollars ($10,000) to ensure the Lessee's faithful performance of all the terms and conditions in this Lease Agreement, and which is payable as described in this subsection. The Lessee, but not the City, may draw all the interest earned on such an account. The City, but not the Lessee, may draw the principal of such an account to cure any default that the Lessee failed to correct in accordance with the provisions in Section 28 of this Lease Agreement. lf the City draws the principal, the Lessee must replenish the draw within thirty (30) days following Lessee's receipt of written notice from City for any such amount.

Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 3

5. Rent and Deoosits.

EXHIBIT A
393

6. Utilities. The Lessee is responsible for obtaining utility connections for the Equipment and the Wireless Telecommunications Facility. The Lessee shall establish all utility accounts in its name and is responsible for all charges and fees associated with the account. The Lessee may install over, in, and across the Property such cables, wires, or pipes reasonably necessary to deliver utility services to the Leased Areas ("Service Lines"), in a manner that does not materially interfere with the City's use or operation of the Property. The Lessee must obtain the City's prior written approval, not to be unreasonably withheld, conditioned or delayed, for the design and location of the Service Lines before they are installed. lf required by the City for a legitimate governmental purpose, the City may require the Lessee to redesign or relocate the Service Lines, or to connect to existing services, provided that such redesign or relocation shall not result in a material reduction in the quantity or quality of services which Lessee enjoyed prior to the redesign or relocation.

7. Citv's Riohts. City reserves the right to use the Property for City's operations. lt is understood that construction, reconstruction, maintenance facilities or improvements for City upon said Property shall at all times be paramount to any rights under this Lease Agreement, provided that City will not materially and adversely interfere with Lessee's use of the Leased Areas. Lessee's construction, reconstruction, maintenance, and use of the Lessee's Wireless Telecommunications Facility, and all work upon or in connection therewith, shall not materially and adversely interfere with the City's operations on the Property. The construction and reconstruction of the Wireless Telecommunication Facility, and all work in connection therewith, shall be done and made under the supervision of City.

8. Use of Leased Areas.
(a) The Lessee may use the Leased Areas for the installation, maintenance, repair, replacement, upgrade and operation of the Equipment for a Wireless Telecommunications Facility in compliance with this Agreement and the conditions of approval in the Governmentai Approvals, which are incorporated into this Lease Agreement by reference as though set forth in full. Lessee will be allowed to make such alteralions to the Leased Areas consistent with the Governmental Approvals or such amendments thereto, and will ensure that Lessees' Wireless Telecommunications Facility complies with all applicable federal, state or local laws, rules or regulations. ln the event Lessee desires to modify or upgrade the Equipment, in a manner that requires an additional portion of the Property outside of the footprint of the Leased Areas, then for such modification or upgrade Lessee shall request from the City a lease modification to address the additional square footage which Lessee requests to be added to the Leased Areas. lf City is agreeable to provide the additional square footage to Lessee, it may condition ils approval of a lease modification on a commercially reasonable increase in the Base Rent. (b) Notwithstanding Subsection 8(a) above, following the initial installation of the Wireless Telecommunication Facility, Lessee shall have the right to add, upgrade or otherwise modify its Wireless Telecommunication Facility in any portion of the Leased Areas provided that Lessee musl secure all necessary Governmental Approvals from the City prior to undertaking the addition, upgrade or other modification. Additionally, Lessee shall notify City of any proposed addition, upgrade or modification of its Wireless Telecommunication Facility; however, the City's consent to such addition, upgrade or modification shall not be required pursuant to this Lease Agreement as long as Lessee shall have secured all necessary Governmental Approvals.

Lessee
(c) Chanoes in Wireless Telecommunications Facilitv. Subject to Section 8(b) above, shall have the right to perform routine maintenance and make routine Leose for lnstollotion of Telecommunicotions Equipment Finol Poge 4

EXHIBIT A
394
repairs/replacement of existing equlpment within the Wireless Telecommunication Facility identified in Attachments B and c with same or substantially similar in kind equipment without city approval. lf Lessee is in need to modify, alter, replace, upgrade or otherwise change the wireless Telecommunication Facility identifled in Attachments B and c and such modification, alteration, replacement, upgrade or change requires an increase in the size of the existing ground equipment and/or enclosure walls previously approved by the city, then Lessee shall not make said changes without the prior written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed. Lessee shall secure all applicable Governmental Approvals and permits for said changes, if any, are necessary and required by law.

Such changes may be subject to Additional Ground Space Rent per Section 5(d) above. lf City's consent is required under this Lease Agreement for any change in the Wireless Telecommunication Facility, Lessee, at its own cost and expense, shall explain the effect of the change and demonstrate to the reasonable satisfaction of City that the change will not interfere with or impair the use of the City Property for its intended use or interfere with City's then existing communication systems, including public safety, in conformance with Section 16 below. 9 ht of Access and Util Acces Access to the Leased Areas shall only be from Ames Street and Martingale Lane as shown on Attachment B. Concurrent with the Term of this Lease Agreement, the City allows the Lessee a ten (10') foot wide non-exclusive access license, which license shall not be revocable during the Term of this Lease Agreement, as further depicted on Attachment "B", over, in, and across the Property to the Leased Areas. The City may, in its discretion, relocate the Lessee's access path to the Leased Areas, provided that the access path shall provide contiguous pedestrian and vehicular access to and over the Property to the Lease Areas. The right of access is limited to the Lessee, its employees, agents, contractors and designated representatives, and is expressly conditioned upon compliance with all terms and conditions of this Lease Agreement. ln addition to the provisions of this Paragraph 9, and for the avoidance of any doubt regarding utility access rights, City grants to Lessee and utility service supplier the right to receive utility services including, but not limited to electric facilities, appurtenances and associated equipment, and the right for the utility service supplier to excavate for, construct, reconstruct, replace (of initial or any other size), remove, maintain, inspect and use said utility facilities, together with the right for the utility service supplier to ingress and egress from said utility facilities across the Property as set forth in Exhibit B. City grants the right for the utility service supplier to trim or cut down any trees or brush within five (5) feet on each side of the centerline of said utility facilities. ln addition, City shall not erect or construcl any building or other structure, or drrll or operate any well within flve (5) feet on each side of the centerline of said utility facilities. Notwithstanding anything to the contrary contained in this Lease Agreement, City agrees to the following:
(a) City grants to Lessee the right to him such trees and other foliage and to cut such limbs and roots on said Property as may be necessary for the protection of said facilities. (b) City grants to Lessee the right to cut, fill or otherwise change the grade of said Property and to place such drainage and retaining structures thereon, as Lessee may elect for the protection of such facilities.
(c) City grants to the Lessee the right to receive commercial power service from the appropriate utility company serving the area, together with the right for such utility company to place its respective service facilities upon and within said Property.

Leose for lnstollotion ol f elecommunicotions Equipment-Finol Poge 5

EXHIBIT A
395
Any access by any person(s) not cleared pursuant to the terms of this Lease Agreement is a material breach of the Agreement and, may be cause for termination of the Lease Agreement in the event that such material breach is not cured by Lessee following receipt of written notice from the City and the reasonable opportunity to cure the material breach in accordance with the default provisions set forth in Section 28 of this Lease Agreement.

10. Co-Location . The Lessee is encouraged to permit other wireless telecommunications providers to collocate on its Wireless Telecommunications Facility consistent with the Policy and Entitlements. ln relation thereto, Lessee shall have the right to sublease or sublicense space on its Equipment to other third party colocators provided that Lessee shall require each such colocator (i) to obtain a separate ground space lease from the City and (ii) any required Governmental Approvals prior to allowing such co-locator to install any equipment on Lessee's Equipment. ln such event, City shall be entitled to retain all revenue derived from its separate ground space lease with each co-locator and Lessee shall be entitled to retain all revenue derived from each sublease or sublicense of its Equipment and Tower with each co-locator. ln Addition, City will require that the additional wireless telecommunication provider acquire permission from the Pacific Gas and Electric company who owns the exiting power transmission tower and easement rights beneath it.

11. Rules. Lessee shall comply with the following rules forthe use of the Leased Areas, and such other changes or rules as may be imposed by City from time to time after reasonable written notice to Lessee thereof:
(a) Lessee shall comply with all statutes, laws, rules and regulations ("Laws") concerning Lessee's use of the Leased Areas, without limitation, the laws of the United States of America, the State of California, and/or the ordinances, regulations and requirements of the County of Alameda, the City of Livermore or other laMul authorities. (b) Lessee shall not allow or authorize, the Leased Areas, or any part thereof, to be used in violation of the statutes, laws, rules and regulations of the United States of America, the State of California, and/or the ordinances, regulations and requirements of the County of Alameda, the City of Livermore or any other lawful authorities with .iurisdiction over the use orthe Leased Areas.
(c) Lessee shall install all required safety notices related to the operation of the Wireless Telecommunications Facility, including those required for radio frequency emission safety.
(d) Lessee shall not leave or store any trash, garbage, or refuse of any kind in, on, or about the Property or Leased Areas and shall cause any refuse, trash, paper or other waste deposited on the Property or Leased Areas by any of its employees, agents, or designated representatives to be picked up and disposed of in the appropriate manner so as to keep the Property and Leased Areas in a neat and clean condition (e) Lessee shall not use, commit, or allow or permit to be used or committed, any waste upon the Facility.
(f) Lessee shall not use, commit or allow or permit to be used or committed any legal nuisance or any unauthorized use of the Property.

Leose fot lnstollotion of Telecommunicotions Equipment-Finol Poge 6

EXHIBIT A
396
(S) Lessee and its agents and employees shall not hunt on the Property (or discharge weapons of any kind while on the Property.
(h) No alcoholic beverages shall be consumed on the Property. (i) Notwithstanding the provisions of Section 9 of this Lease Agreement, Lessee shall use the access route as shown on Attachment B on the Property to the Leased Areas and shall not travel any other road on the Property or open flelds except in cases of emergency or with the prior authorization of City Staff.
(j) Lessee shall observe a reasonable speed limit on the Property. (k) Smoking, use of malches, or open fires shall not be permitted on the Property. (l) The Lessee shall remove all graffiti and repair any vandalism to the Equipment and Leased Areas within three (3) working days of the Lessee's receipt of a written notice of its existence from the City, or agency maintaining the Property for the City, to the Lessee. Emergency access is exempt from this requirement.

12. Lessee'sResponsibilities.
(a)
analysis of
wireless tel
Enqineerinq. The Lessee is responsible for conducting its own engineering and the Wireless Telecommunications Facility and the Leased Areas to ensure that the ecommunications facility is designed to meet its needs. (b) overnmental Aoorovals The Lessee shall comply with all applicable requirements, rules, regulations, including environmental and workplace safety requirements, related to installation, operation, repair, replacement, and maintenance of the Wireless Telecommunications Facility, including all requirements imposed or permits required by the City of Livermore, County of Alameda, the State of California and the United States of America. The Lessee expressly acknowledges that the City is not responsible for obtaining or maintaining any necessary governmental approvals on behalf of Lessee for the Wireless Telecommunications Facility. The Lessee will be required to obtain all necessary permit and inspection approvals through the entitlement and building permit process and pay any required permit fees. City agrees that Lessee's ability to use the Leased Areas is contingent upon the suitability of the Leased Areas and Property for Lessee's permitted use and Lessee's ability to oblain and maintain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by Lessee for its use of the Leased Areas, including without limitation applications for zoning variances, zoning ordinances, amendmenls, special use permits, and construction permits (collectively, the "Government Approvals"). City, as landowner, authorizes Lessee to prepare, execute and file all required applications to obtain Government Approvals for Lessee's permitted use under this Lease Agreement. ln addition, Lessee shall have the right to initiate the ordering and/or scheduling of necessary utilities-
(c) Pre-construction Conditions Lessee has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a surveyor of its choice. Lessee may also perform and obtain, at Lessee's sole cost and expense, soil borings, percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the Property, necessary to determine if Lessee's use of the Leased Areas will be compatible with Lessee's engineering specifications, system, design, operations or Government Approvals. Lessee agrees that prior to construction of the Wireless Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 7

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Telecommunications Facility, Lessee will give notice to city. Lessee will reimburse city for any required permit costs incurred by city in reviewing Lessee's work plan and for city, inspection oi construction activities. Lessee shall comply with all of the terms of any building or encroachment permits issued by City. Once Lessee's Wireless Telecommunication Facility is installed, Lessee may make alterations to it without obtaining the prior written approval of City, subject to Sections 8(b) and 8(c).
.
(d) Phvsical lnterference. The Lessee's installation, maintenance, and operation of the wireless Telecommunications Facility, as well as its access to the Leased Aieas, shall not interfere with the city's use or operation of the property. Notwithstanding the foregoing, city hereby confirms that the location ofthe Leased Areas, including the service Lines and acCess to the Leased Areas as depicted on Attachment "8" do not interfere with the City's use of operation of the Property as of the Effective Date. Said Service Lines may be relocated by the City in the future subject to Section 8 (d) above.
(e) Maintenance and Repairs. Lessee shall be required to provide City with prior written notice of not less than 72 hours prior to any maintenance being performed on the Wireless Telecommunications Facility. Lessee shall be obligated to pay City the actual hourly inspection fees incurred during all maintenance, if any such inspection is necessary. ln the event of an emergency, Lessee shall immediately notify City of its intent to access the Facility prior to performing any maintenance or repairs.

13. Veoetation. Lessee further agrees that no City owned vegetation, if any, will be damaged and/or removed during installation or maintenance of the Wireless Telecommunications Facility without the City's prior written approval. The Lessee shall restore/replace any vegetation damaged and/or removed by Lessee during installation or maintenance of the Wireless Telecommunications Facility to the reasonable satisfaction of the City.

14. Possessorv lnterest Tax. Lessee shall pay all possessory interest taxes, assessments and other governmental charges of any kind applicable to this Lease Agreement and Lessee's occupancy of the Leased Areas assessed during the Term of this Lease Agreement. This obligation continues until such time as this Lease Agreement expires or is terminated and Lessee no longer has possession of the Leased Areas and has satisfied its obligation to remove the Wireless Telecommunications Facility and restore the Property to its original condition.

15. HazardousMaterials (a) ln addition to the rules and restrictions set forth in this Lease Agreement, Lessee shall not cause or permit any Hazardous Materials to be permanently stored, used or disposed of, on or in the Leased Areas without first having obtained City's prior, written approval. lf Hazardous Materials are stored, generated, used or disposed of on or in the Leased Areas without the City's approval, or if the Leased Areas become contaminated in any manner for which Lessee is responsible, Lessee shall indemnify and hold City harmless from any and all claims, damages, fines, judgments, penalties, clean-up costs, liabilities or losses (including without limitation, a decrease in value of the Leased Areas, Property, and adjacent real property or damages due to adverse impact on marketing of the Leased Areas), and any and all sums paid for settlement of claims, attorney's fees, consultant and experts'fees arising during or after the Term and arising as a result of such Hazardous Discharge or Contamination by Lessee or its employees, agents, or designated representatives. Any contamination of the City's Property caused by Lessee shall be completely removed, and the Property restored to rts pre contamination condition at the sole expense of the Lessee. For purposes of this Lease Agreement, the following terms shall have the meanings set forth below:

Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 8

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(i) "Hazardous Materials" shall mean any toxic or hazardous wastes, pollutants, materials or substances, including, without limitation, asbestos, pcB's, petroleum products, radioactive substances or their by-products, other substances deflned or listed as "hazardous substances,', "hazardous materials", "hazardous wastes" or ,,toxic substances in or pursuant to the comprehensive Environmental Response, compensation and Liability Act of 1990,42 u.s.c.

Sections 9601, ef seg., ("CERCLA"); the Hazardous Materials Transportation Act, 49 USC Sections 5102, et seg.; the Resource Conservation and Recovery Act, 42 U.S.C. gg6901 et seq.; the Toxic Substances Control Act of 1976, 15 U.S.C. 552601 et seg.; any ,'toxic pollutant" under the Clean Water Act, 33 U.S.C. ggl251 elseg.; any hazardous air pollutant underthe Clean Air Act, 42 U.S.C. SS7401 et seg.; the California Hazardous Substance Account Act, California Heatth & Safety Code ("CH&SC") 925300 etseg., the Hazardous Waste Control Law, CM&SC SS2S10O ef seg.; in or pursuant to or identifled as causing cancer or reproductive toxicity in the California Safe Drinking Water & Toxic Enforcement Act of 1986, CM&SC 5525249.5 e, seg.; and CM&SC SS 25249.8, 25117 ,25316: all as such laws may be amended; any hazardous or toxic substance, material, chemical, waste or pollutant now or hereafter regulated under any other applicable federal, state or local environmental laws, without limitation; and any other matter in the nature thereof arising pursuant to the jurisdiction of any public agency. (ii) "Hazardous Discharge" and "Contamination" shall mean the happening of any event involving an emission, spill, release or discharge ("Release") into or upon (a) the air, (b) soils or any improvements located thereon, (c) surface or ground water, (d) the sewer, septic system or waste treatment, storage or disposal system servicing the Leased Areas, of any Hazardous Material, or (e) any other matter in the nature thereof arising pursuant to the jurisdiction of any public agency-
(iii) "Environmental Laws" shall mean all applicable federal, state and local laws, ordinances, regulations, orders, procedures, policies and directives of every kind and nature whatsoever pertaining to Hazardous Materials in, at, on, under or from the Leased Areas or any portion thereof, and any other matter in the nature thereof arising pursuant to the jurisdiction of any public agency.
(b) City represents and warrants (i) to the best of the City's knowledge, the Property, as of the date of this Lease Agreement, is free of hazardous substances, including asbestoscontaining materials and lead paint, and (ii) to the best of the City's knowledge, the Property has never been subject to any contamination or hazardous conditions resulting in any environmental investigation, inquiry or remediation. City and Lessee agree that each will be responsible for compliance with any and all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law regulating or imposing standards of liability or standards of conduct with regard to protection of the environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such apply to that party's activity conducted in or on the Property.
(c) Lessee agrees to hold harmless and indemnify the City, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanclions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding ("Claims"), to the extent arising from Lessee's breach of its obligations or representations under this Seclion

15. City hereby agrees that Lessee shall have no duties, responsibilities and liabilities at for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any Claims, to the extent arising from subsurface or other contamination of the Property with Ledse fot lnstollotion of Telecommunicotions Equipment-Finql Poge 9

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hazardous substances prior to the Effective Date of this Lease Agreement or from such contamination caused by the acts or omissions of the City during the Term except to the extent that Lessee's operations on the Property directly exacerbate such contamination . (d) The indemnification of the City by Lessee in this Section 15 specifically includes reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up, remediation, removal or restoration work required by any governmental authority. The provisions of this Section 1 5 will survive the expiration or termination of this Lease Agreement.
(e) ln the event Lessee becomes aware of any hazardous materials on the Property, or any environmental, health or safety condition or matter relating to the Property, that, in Lessee's sole determination, renders the condition of the Leased Areas or Property unsuitable for Lessee's use, or if Lessee believes that the leasing or continued leasing of the Leased Areas would expose Lessee to undue risks of liability to a government agency orthird party, Lessee will have the right, in addition to any other rights it may have at law or in equity, to terminate this Lease Agreement upon written notice to City.
'16. Frequencv Compatibilitv and lnterference. Lessee's operation of the Wireless Telecommunications Facility shall not interfere with any existing City, or City lessee's, communication systems for public safety or City operation purposes on the Property or nearby properties provided that such operation is installed and operating in compliance with applicable Laws. In addition, Lessee shall not interfere with any existing City commercial lessee's communication systems, provided that such operation is installed and operating in compliance with applicable Laws
Lessee shall provide for complete frequency compatibility with all other radio transmitting equipment currently existing on the property and any future equipment owned and installed by City for public safety or City operational purposes. ln the event an interference problem arises which creates a bona fide emergency with the essential communications for public safety communication and data retrieval functions for the City, which interference problem cannot be eliminated by Lessee no more than twentyJour (24) hours after Lessee's receipt of notification to do so by City, then the Lessee must take the suspected portion of the Wireless Telecommunications Facility out of service until the problem is corrected to the affected city's satisfaction, at Lessee's sole expense.
lf interference from Lessee's Wireless Telecommunications Facility is suspected in violation of this section, then the City will contract with a technical consultant who will provide determinations evaluating the interference, at Lessee's sole expense. lf the technical consultant finds, after thorough conclusive diagnostics that Lessee's Wireless Telecommunications Facility is interfering with the City's equipment or antennas which have been installed and are operating in compliance with Laws, Lessee shall implement a solution in coordination with City. City shall have the right to terminate this Lease Agreement upon written notice in the event Lessee's Facility incurably interferes with the reception or transmission of City's communication system. Lessee shall also reimburse City for time and cosls of City's staff expended to correct any interference.

17. Non-lnterference bv Subseouent Lessees. Any future lease of space on the Property which permits the installation of communications equipment shall be conditioned upon noninterference with Lessee's Wireless Telecommunication Facility, except for those temporary emergency communications systems installations by City or other public agency. The City agrees to coordinate efficient collocation of any new equipment and antennas and to promptly resolve Leose for lnstollotion of Telecommunicotions Equipment-Final Poge 10

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any interference issues that may arise due to the presence of multiple lessees. ln recognition of Lessee's critical need for a reliable communication system telecommunication services, the City agrees to take all necessary steps to ensure that existing and fulure lessees will not cause interference with Lessee's Antenna or Equipment. ln the event of any interference to Lessee's Antenna or Equipment, Lessee shall notify the City, and within 72 hours after receipt of notiflcation, the City will notify the party causing said interference to the Lessee's Antenna or Equipment to cease or require the cessation of all operations within 48 hours which are suspected of causing interference (except for intermittent testing to determine the cause of such interference) until the interference has been corrected. lf interference to Lessee's Equipment cannot be resolved, Lessee will have the option, in addition to Lessee's right to exercise any and all rights available to it under this Lease Agreement and under law and equity, including without lim;tation Lessee's right to bring an action to enjoin such interference, to relocate to a new location on City Property, if available and not currenlly occupied or needed by City, and to recover from the interfering party any costs associated with such relocation or, to terminate this Lease Agreement.

18. Reoair. lf the Lessee damages asphalt, pavement, sidewalks, driveways, landscaping, irrigation, utility facilities, structures, or other improvements on the Property or the Leased Areas, the Lessee shall replace, repair, or restore such improvements to as close to their original condition as is reasonably possible, reasonable wear and tear, and damage from the elements excepted. The restoration work must comply will all applicable ordinances and regulations. ln the event the Lessee's damage necessitates an immediate repair by the City, or any agency operating or maintaining the Property for the City, to either protect the Property or the public's health, safety, or welfare, the City will give the Lessee written notice of the damage and Lessee shall repair the damage within 24 hours after receiving the written notice. lf the Lessee cannot repair said damage, City shall give the Lessee the circumstances requiring immediate repair, and the work be completed for the repair, and the Lessee shall then reimburse the City, or the agency operating or maintaining the Property for the City, for the reasonable repair costs within thirty (30) days following receipt of a written invoice by Lessee from City, accompanied by reasonable substantiation of any such costs. The Lessee shall maintain all such restoration for a period of one (1) year following the date the City acknowledges satisfactory completion of the work.

19. Condemnation. lf all or part of the Leased Areas are taken by condemnation such that the Leased Areas are no longer usable for the purposes stated in this Lease Agreement, this Lease shall terminate unless Lessee's Wireless Telecommunications Facility can be relocated to another location on City property acceptable to Lessee if such space is available and does not interfere with the public use of the Property. Lessee shall be entitled only to that portion of the proceeds of condemnation which is directly attributable to the value of Lessee's interest in this Lease Agreement

20. Assionment
(a) nm nt and Encumbran Except for a Permitted
Transfer (as defined below), this Lease Agreement and any rights or obligations of Lessee hereunder shall not be sold, assigned, transferred, leased, assigned, sublet, conveyed, hypothecated, nor shall there be any grant of licenses, franchises or concessions, nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any person, either in whole or in part, or in any manner, without the prior written consent of the City. Lessee shall not allow any other person or entity to occupy or use all or any part of the Leased Areas, without first obtaining the City's written consent.

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ln order to obtain City' written consent for any such assignment other than a Permitted Transfer, the proposed assignee or transferee must demonstrate to the satisfaction of City that it possesses the legal, flnancial and technical qualifications necessary to perform all the terms, conditions and obligations under this Lease Agreement for the remaining term thereof, and such reasonable additional obligations required by the assignee or transferee by the City for the specific and limited purpose of assuring the performance of all the terms, conditions and obligations of this Lease Agreement.

Notwithstanding the foregoing, Lessee shall have the right upon notice to the city, but without the necessity of the City' consent (each a "Permitted Transfer") to assign, sell or other transfer this Lease Agreement (i) to any Affiliate of Lessee; or (ii) in connection with the sale, merger, or exchange of substantially all of Lessee's assets in the FCC market area where the Property is Iocated. An "Affiliate" means with respect any person or entity that (directly or indirectly) controls, is controlled by, or under common control with, that pafty. "Control" of a person or entity means the power (directly or indirectly) to direct the management or policies of that person or entity, whether through the ownership of voting securities, by contract, by agency or otherwise. All successors to this Lease Agreement will be subject to all terms and conditions of this Lease Agreement.
(b) lnvoluntarv Assionment. No interest of Lessee in this Lease Agreement shall be assignable by operation of law, including, without limitation, the transfer of this Lease Agreement by testacy or intestacy. Each of the following acts shall be considered an involuntary assignment:
(1) lf Lessee is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or institutes a proceeding under the Bankruptcy Act in which Lessee is the bankrupt; or, if Lessee is a partnership or consists of more than one person or entity, if any partner of the partnership or other person or entity is or becomes bankrupt or insolvent, or makes an assignment for the benefit of creditors;
(2) lf a writ of attachment or execution is levied on this Lease Agreement; An involuntary assignment shall constitute a default by Lessee and City shall have the right to elect to terminate this Lease Agreement, in which case this Lease Agreement shall not be treated as an asset of Lessee.
lf a writ of attachment or execution is levied on this Lease Agreement, Lessee shall have sixty (60) days in which to cause the attachment or execution to be removed. lf any involuntary proceeding in bankruptcy is brought against Lessee, or if a receiver is appointed, Lessee shall have one hundred twenty (120) days in which to have the involuntary proceeding dismissed or the receiver removed.

21. lndemnitv. Lessee agrees to defend, indemnify, and hold City and its respective elected officials, officers, directors, employees, agents, and designated volunteers (collectively "lndemnities") harmless from and against any and all loss, liability, damage, including reasonable attorney's fees and court costs including expert witness fees, arising out of or related to, and to the extent caused by, the acts or omissions of Lessee, rts employees, contractors, agents, representatives or designated volunteers in connection with this Lease Agreement, Lessee's use Lease for lnstollotion of Telecommunicotions Equipment-Finol Poge 12 (3) lf, in any proceeding or action to which Lessee is a pafty, a receiver is appointed with authority to take possession of the Leased Areas.

EXHIBIT A
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of the Leased Areas including the installation and operation of the Wireless Telecommunications Facility, and the activities and/or operations permitted by this Lease Agreement. Such obligations to defend, hold harmless and indemnify any of the lndemnities shall not apply to the extent that such Liabilities are caused by the negligence or acts or omissions of the lndemnities or any of them.

24. Entrv bv Citv and other lessees. Except in the event of a bona fide emergency forwhich no prior notice to Lessee shall be required, Lessee shall permit City, its officials, officers, employees, impacted lessee's, agents and designated volunteers to enter into and upon Lessee's equipment shelter upon reasonable prior written notice to Lessee (which in no event shall be less than two (2) business days prior written notice) for the purpose of inspecting the Leased Areas, enforcing the rules and regulations under this Lease Agreement, and the posting of such legal notices as City may deem necessary or convenient.

25. Notices. Wherever in this Lease Agreement it shall be required or permitted that notice or demand be given or served by either party to this Lease to or on the other, all notices, requests and demands hereunder will be given by first class certifled or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered- Notices will be addressed to the parties as follows:

City Brandon Cardwell
lnnovation & Economic Development Director/Property Manager City of Livermore
1052 South Livermore Avenue
Livermore, California 94550
Lessee
Leose for lnstollotion of Telecommunicotions Equipment-Finol Page 1j

22. Encumbrance. The Lessee shall pay, or cause to be paid, all costs and expenses for work done by it, or caused to be done by it, on the Leased Areas of a character which will or may result in any lien on the Property. Likewise, the Lessee shall keep the Property free and clear of any mechanic's lien or other lien on account of work done for it or at its request. Should any claims of lien be filed and/or recorded against the Property, or any action affecting the title thereto commenced, Lessee shall give the City written notice promptly following Lessee's knowledge thereof.

23. lnsurance. Lessee shall carry and maintain insurance or self-insurance during the Term of this Lease Agreement in the amounts and under the terms set forth in Attachment "D" against claims that may arise from or in connection with this Lease Agreement and the installation, maintenance, and operation of the Equipment, Antenna, and Wireless Telecommunications Facility on the Leased Areas. Upon at least sixty (60) days prior written notice to Lessee, Lessee shall comply with changes in the amounts and terms of insurance as may be required from timeto-time by City's Risk Manager in respect to comparable locations of the City but not more than once every five (5) years.

New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: CC101380; Cell Site Name: PGE1 (Arabian Road) (CA) Fixed Asset #: 14702818
1025 Lenox Park Blvd. NE, 3'd Floor
Atlanta, Georgia 30319

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With copy to New Cingular Wireless PCS, LLC
Attn: Legal Dept - Network Operations
Re: Cell site #: CCL01380; Cell Site Name: PGE 1 (Arabian Road) (CA) Fixed Asset #: 14702818
208 S. Akard Street
Dallas, TX 75202420G
Any party may change such address or contact person by written notice by registered mail to the other.
26 Holdi Over Any holding over after the expiration of the Term of this Lease Agreement, with the consent of the City, shall be construed to be a tenancy from month to month at a monthly rate equal to 11OVo of the previous month's rent, and shall otherwise be on the same terms and conditions herein specified so far as applicable. Following termination or expiration of this Lease Agreement, the Lessee shall be responsible for the payment of Rent to the City until such time as the Equipment is removed from the Leased Areas and the Leased Areas are restored as provided for in Section 29.

27. Modiflcation. This Lease Agreement may only be modified or amended by written agreement signed by all parties hereto, except that the number of extensions and the length of the initial term and extensions shall not be modified.

28. Default and Termination. During the Term of this Lease Agreement, City shall have the right to terminate Lease Agreement following an uncured default by Lessee of any material term of this Lease Agreement in accordance with this Section. Lessee shall have thirty (30) days following receipt of written notice from City to cure any such default, provided that if the nature of the default is such that additional time beyond thirty (30) days is needed to complete the cure, then no default shall be deemed to have occurred as long as Lessee has commenced to cure such default in good faith within such thirty (30) day period, and thereafter diligently prosecutes the cure to completion. The following will be deemed a default by City and a breach of this Lease Agreement: (i) City's failure to provide access to the Leased Premises as required by this Lease Agreement within Seventy-two (72) hours after written notice of such failure; (ii) City's failure to cure an interference problem as required by this Lease Agreement within seventy-two (72) hours after written notice of such failure; or (iii) City's failure to perform any term, condition or breach of any warranty or covenant under this Lease Agreement within thirty (30) days after written notice from Lessee specifying the failure. No such failure, however, will be deemed to exist if City has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. lf City remains in default beyond any applicable cure period, Lessee will have the right to: (i) terminate this Lease Agreement, and (ii) any and all other rights available to it under law and equity and this Lease Agreement. Lessee, shall have the right to terminate this Lease upon 90 days written notice to City, if the approval of any agency, board, court, or other governmental authority necessary for the construction and/or operation of the Wireless Telecommunications Facility is revoked or withdrawn so long as the Lessee pays City a termination fee equal to nine (9) months' Base Rent, at the then-current rate.

29. Removal, Restoralion and Surrender of Leased Areas
(a) All portions of the Wireless Telecommunications Facility brought onto the Property by Lessee will be and remain Lessee's personal property and, at Lessee's option, may be removed by Lessee at any time during the Term subject to the termination section. City covenants and agree that no part of the Wireless Telecommunications Facility constructed, erected or placed on Leose fot lnstollotion of Telecommunicotions Equipment-Finol Poge 14

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the Leased Areas by Lessee will become, or be considered a part of, the Property, it being the specific intention of City that all improvements of every kind and nature constructed, erected or placed by Lessee on and/or within the Leased Areas will be and remain the property of Lessee.

Within one hundred twenty (120) days of the termination of this Lease Agreement, Lessee shall surrender the Leased Areas to the City, remove all of Lessee's improvements and Lessee will, to the extent reasonable, restore the Leased Areas to its pre-construction condition on the Effective Date, reasonable wear and tear and loss by casualty or other causes beyond Lessee's control excepted. Lessee's restoration shall include the removal and or remediation of any hazardous materials generated by the Lessee's personal property as described and defined in Section 15.

Lessee shall perform all restoration made necessary by the improvements or alterations or by the removal the Wireless Telecommunications Facility, conneclions, and other components of the Wireless Telecommunications Facility within the time periods stated in this Section. Lessee shall be liable to City for costs for storing, removing, and disposing of any improvements, alterations, Equipment, or Antenna that are not removed within the 120-day period. (b) City may agree in writing to allow the Lessee to satisfy its obligation to remove the Wireless Telecommunications Facility, connections, and other components of the Wireless Telecommunications Facility by abandoning them in place. The City's written approval for the abandonment, if exercised, will be contingent upon Lessee satisfying such other terms and conditions as the City may impose, which at a minimum must include:
(2) Lessee submits to City an instrument in writing, approved by City Attorney, transferring ownership of the Facility and connections, and other components of the Wireless Telecommunications Facility in their AS lS and WHERE lS condition without representation or warranty of any kind or nature whereupon Lessee shall have no further responsibility for the maintenance, repair or removal related thereto.

Lessee waives all claims against City for any damage to Lessee resulting from City' retention or disposition of any such improvements, alterations, Equipment, Antenna, connections, or portion of the Wireless Telecommunications Facility.
(c) City waives any and all lien rights it may have, statutory or otherwise, concerning any portion of the Wireless Telecommunications Facility, all of which shall be deemed personal property for purposes of this Lease Agreement, regardless of whether any portion is deemed real or personal property under applicable law.

30. Warranties. City represents, warrants and agrees that: (i) City solely owns the Property as a legal lot in fee simple, or controls the Property by lease or license and (ii) the Property is not and will not be encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreemenls of record or not of record, which would adversely affect Lessee's permitted use and enjoyment of the Leased Areas under this Lease Agreement.

31. Casualtv. City will provide notice to Lessee of any casualty or other harm affecting the Leased Areas within forty-eight (48) hours of the casualty or other harm. lf any part of the Wireless Telecommunications Facility or Leased Areas are damaged by casualty or other harm as to render the Leased Areas unsuitable, in Lessee's sole determination, then Lessee may terminate this Lease Agreement by providing written notice to City, which termination will be effective as of the date of such casualty or other harm. Upon such termination, Lessee will be entitled to collect Leose fot lnstdllation of Telecommunicotions Equipment-Finol Poge 15 (1) The Wireless Telecommunications Facility and its connections are abandoned in the manner prescribed by the Community Development Director; and,

EXHIBIT A
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all insurance proceeds payable to Lessee on account thereof and to be reimbursed for any prepaid rent on a pro rata basis. City agrees to permit Lessee to place temporary transmission and reception facilities that can be easily moved to accommodate construction activities (e.9., cell on wheels or COW) on the Areas, but only until such time as Lessee is able to activate a replacement transmission facility at another location; notwithstanding the termination of this Lease Agreement, such temporary facilities will be governed by all of the terms and conditions of this Lease Agreement, including Base Rent. lf City or Lessee undertakes to rebuild or restore the Leased Areas as applicable, they agree to permit Lessee to place temporary transmission and reception facilities on City property in the vicinity subject to the Lessee obtaining any necessary governmental approvals. lf City determines not to rebuild or restore the Leased Areas or Wireless Telecommunications Facility, City will notify Lessee of such determination within thirty (30) days after the casualty or other harm. City agrees that the Base Rent shall be abated until the Leased Areas are rebuilt or restored, unless Lessee places temporary transmission and reception facilities on the Property.

32. GeneralProvisions.
(a)
Agreement
Timeof the Essence. Time is of the essence of each provision of this Lease (b) Relationship of the Parties. Nothing contained in this Lease Agreement shall be deemed or construed by the parties or by a third party to create the relationship of princrpal and agent, and/or of partnership, and/or ofjointventure, and/or ofany association between the parties. (c) Entire Aqreement. This instrument, including any attachments hereto, constitutes the entire agreement of the parties relating to the subject matter of this Lease Agreement and correctly sets forth the rights, duties and obligations of each party to the other. (d) Partial InvalidiW. lf any provision or portion of this Lease Agreement shall be deemed invalid by a court of competent jurisdiction, it is agreed that such invalidity shall affect only such provision or portion thereof, and the remainder of this contract shall remain in force and effect.
(e) California Law. This Lease Agreement shall be governed by and construed in accordance with the laws of the State of California.
(f) Review of Lease Aqreement. Each party to this Lease Agreement declares that prior to the execution of this Lease Agreement, each party had the opportunity to seek the independent advice of counsel and that they apprised themselves of sufficient relevant information in order that they might intelligently exercise their own judgment in deciding whether to execute this Lease Agreement. Each party agrees that they have completely read and understood the Lease Agreement, know the contents thereof, and have signed the Lease of their own free will and free of any duress. No single party has drafted this Lease Agreement and it shall not be interpreted against any party as the drafting party. (s) Performance Excused. The Parties shall be excused from performance, as hereunder agreed to, if such performance is rendered impossible, impractical, or unreasonably difficult by, but not limited to, any strike, lockout, labor disturbance of any kind, civil commotion, war, acts of terrorism, shortage of any supply or labor, shortage of water, weather, Act of government authority, enactment or change in laws or regulations, breakdown of facilities or any cause outside of the Parties' control.

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(h) ntentionallvomittedl
(i) Caotions. The captions of this Lease Agreement shall have no effect on its interpretation.
(J) Sinqular and Plural. When required by the context of this Lease Agreement, the singular shall include the plural.
(k) Joint and Several Oblioations. "Party' or "Parties," unless otherwise stated, shall mean the City and Lessee.
(l) Waiver. A term or condition of this Lease Agreement may be waived at any time by the party entitled to the benefit thereof, but no such waiver shall affect the right of the waiving party to require observance, performance or satisfaction either of that term or condition as it applies on a subsequent occasion or of any other term or condition. Lessee shall not be excused from complying with any of the terms and conditions of this Lease Agreement by any failure of the City upon any one or more occasions to insrst upon or to seek compliance with any such terms and conditions.
(m) Attachments All attachments referred to in and attached to this Lease Agreement are incorporated by reference as though set forth in full. (n) Attornev's Fees and Costs. lf any party commences an action against another party to enforce this Lease Agreement, the prevailing party is entitled to reasonable attorney's fees, costs of suit, investigation costs and discovery costs, including costs of appeal.

Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 17

EXHIBIT A
407
lN WITNESS WHEREOF, the parties to this Lease Agreement have executed this Lease Agreement as of the dates set forth below.

Dated: 2024 New Cingular Wireless PCS, LLC, a
Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:

Print Name: Michael
Director
Cohgtruction & Engineering
Dated 2024 City of Livermore
By:

Marianna Marysheva
City Manager
Approved as to Form:

By
Deputy/Assista nUCity/Attorney
Attachments:

B.

C.

D.

Property
Leased Areas
Proposed Wireless Telecommunication Facility with Equipment lnsurance Requirements
Leose for lnstollotion of Telecommunicotions Equipment-Finol Poge 18

EXHIBIT A
408
ATTACHMENT A. PROPERTY
Real property in the City of Livermore, County of Alameda, State of California. described as follows:

PARCEL B OF TRACT 6886, FILED IVIAY 29, 1998 IN BOOK 239 OF MAPS AT PAGE 80, OFFICIAL RECORDS OF ALAMEDA COUNTY.

APN: 0998-8118{62
Sheet 1 of 2

EXHIBIT A
409
(E) 6'PUBLIC UTILITY

EASEMENT PER
239lMAPS/80-85
F
t!i!
F
Lr.]
\,LARTINGALE L1'r\ E

LEASED AREA SEE

ATTACIIMENT B I
I
I
I
(E) PROPERTY

BOUNDARY
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L
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N
f-- I
PARCEI B.

TRACT 6886
239/MAPS 80-85
APN:
0998-8118-062

PROPERTY

STREAMLINE

ENGINEERING
& DEStGt{. tNC
at&t

LEASE/MOL

EXHIBIT

PROJECT
NAi'E:

ARABIAN
ROAD
NI.JMBER:
ccL01380

ADDRESS

AI,ES STREEI
UVENillORE CA
94551

A,A,,EIIA
MI{TY

ATTACHMENT
A
SCALE: N.T.S..

Sheet 2 of 2
I
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I
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@

EXHIBIT A
410
MARTINGALts LANE
FE]
!J.l
F
il
o
-l
@
--zi,
APN:
0998-81 t8-062
(P) 23 -4"x10 -0" (+233 SQ FT)

TRANSFORMER LEASE AREA
(P) 38-2"x48'-6'(+1,851 SQ FT)

EQUIPMENT LEASE ARTA
I
I
(P)j3,413 SQ FT

UTILITY ACCESS

LEASE AREAS
(P) AT&T l7'xl7' LICENSE
AR.EA.289 SQ FT

LEASE AREA PLAN

STREAI'ILINE

ENGINEERING
& DESIGN, INC
at&t

LEASE,/MOL

EXHIBIT

PROJECT
NAME:

ARABIAN
ROAD
NUMBER:
ccLo1380

ADDRESS

AIES STREET
L'VERi'ORE CA
945ltl
A-Ar,CIn
cctl'lTY

ATTACHMENT
B
SCALE: N.T.S. -
ri
I
\
A\t/

EXHIBIT A
411
\
N
t
n
7 rr]=
(P) PAD MOUNTED <F

TRAN SFORMER
(P) 23'-4"x10'-0" (+233 SQ

FT) TRANSFORMER

LEASE AREA
(P) 38-2"x48'-6" (+1,85 I

SQ FT) EQUIPMENT

LEASE AREA
(E) PG&E TOWER
(P) AT&T l7'xli' LICENSE
AREA, 289 SQ FT
(P) AT&T CONCRETE

DRIVEWAY APPROACH
& GRAVEL DRIVEWAY
(P) AT&T 20',WIDE

NON-EXCLUSIVE ACCESS
& UTILITY ROUTE
(P) T3.4I3 SQ FT UTILITY

ACCESS LEASE AREAS
APN:
0998-81r8-017
APN:
0998-8118-016
'd, a
3=a1 A p.z
-ii O
(P) AT&r l0'-0' wrDE

ALL-WEATHER GRAVEL

AROUND TOWERYLICENSE AREA
APN:
0998-8118-062
I
APN:
0998-8118-015

PROPOSED WIRELESS TELECOMMLTNICATION

FACILITY W EQUIPMENT

STREAMLINE

ENGINEERING
& DESIGN,INC
at&t

LEASE/MOL

EXHIBIT

PROJECT
I'IAME:

ARABIAN
ROAD

NIJ MBER
cc101380

ADDRESS
AftES STREEI
IIERiTRE CA
94551
A.ATEA
CqJNTY

ATTACHIIIENT
c
SCALE:

SH 'I.T.S,,
I
I
A\t/

EXHIBIT A
412
I
=d,
dz,
F
c^ |f
<t,
(P) PAD MOUNTED TRANSFORMER
(P) 23',-4'.X1o',-O', (+233 SQ Fr)

CITY OF LIVERMORE

TRANSFORMER LEASE AREA
APN:
(E) 6' PUBLIC UTILITY 0998-8118-062

EASEMENT PER
239/MAPS/80-85
(P) AT&T l0'-0', WIDE
NON.EXCLUSIVE ACCESS
& UTILITY ROUTE
(P) AT&T CONCRETE

DRIVEWAY APPROACH
& GRAVEL DRIVEWAY
(E) PG&E TOWER
(P) AT&T l7'x1i' LICENSE
AREA,289 SQ FT
(P) 38',-2',X48',-6', (+r.85 1 SQ

FT) CITY OF LIVERMORE
TELECOMMT]NICATION

EQUIPMENT LEASE AREA
(P) AT&T lo',-0' wlDE

ALL-WEATHER
GRAVEL AROI.ND

TOWERYLICENSE AREA
(P) AT&T 20' WIDE NON-EXCLUSIVE

ACCESS & UTIIITY ROUTE

PROPOSED WIRELESS TELECOMMLTNICATION

FACILITY W EQUIPMENT

STREAMLINE

ENGINEERING
& DESIGN,INC
at&t

LEASE/I'OL

EXHIBIT

PROJECT
NAME:

ARABIAN
ROAO
NUMBER
ccL01380

ADDRESS

AI,ES STREEI
LIIER"ORE CA
94551
A.A}EIN
cq.},fiY

ATTACHMENT
c
N.T.S.
20F 4
I
AI
M)
@

EXHIBIT A
413
(F)AT&T EQUIPMENT

CABINET
(P)AT&T EQUIPMENT

CABINETS
(E) PG&E
TOWER
(P) AT&T ACCESS

GATE (P) AT&T PRECAST

CMU FENCE
(P) AT&T l7'xl7' LICENSE
AREA.289 SQ FT (P) Ar&r

CONCRETE

EQUIPMENT SLAB
(P) AT&T UTILITY
H.FRAMES
(P) AT&T UTILITY

H-FRAMES

PROPOSED WIRELESS TELECOMMUNICATION

FACILITY W/ EQUIPMENT

STREAITLINE
ENGI}IEERING
& DES|Gi'I, tNC
at&t
LEASE/I,lOL

EXHIBIT

PROJECT
NAI'E:

ARABIAN
ROAD
NUMBER
ccL01380
ADDRESS:

A'CS STREET
I.JVERi'ORE CA
94ss1
A.ATEI)A

C'IINTY

ATTACHMENT
c
l\-
\\
A\Y/
. SCALE: N.T.S.

EXHIBIT A
414
tEt lsl AI
x
E
x
x
I
(P) AT&T ANTENNAS
(P) PC&E T0WER EXTENSI0N,
125'TOTAL HEIOHT
(P) AT&T ANTENNAS
(P) AT&T EQUIPMENT (E) PG&E T0WER
(E) EQUIPMENT BY OTHERS
(P) AT&T ACCESS DOOR
(P) AT&T PRECAST CMU FENCE
(P) AT&T EQUIPMENT

CABINETS

PROPOSED WIRELESS TELECOMMTINICATION

FACILITY W/ EQUIPMENT

STREAMLINE

ENGINEERING
& DESIGN,INC
at&t
LEASE/}lOL

EXHIBIT

PROJECT
NA"E:

ARABIAN
ROAD
NUMBER
ccL01380
AOORESS:

ATES STREET
TJVER"ORE CT
9,{551
a-alfm
COJNTY

ATTACHMENT
c
. SCALE: N.T.S.

SHEET 4

EXHIBIT A
415
Revised 6/27/24 B21 – License/Lease