Morro Bay City Council
August 27, 2024

CITY OF MORRO BAY
City Council Regular Meeting Agenda

Tuesday, August 27, 2024, 5:30 p.m.

Veterans Memorial Hall, 209 Surf St., Morro Bay, CA
Public Participation
Public participation is offered in the following ways:
• Community members may attend the meeting in person at the Morro Bay Veterans Hall.

Alternatively, members of the public may watch the meeting and speak during general Public Comment or on a specific agenda item by logging into the Zoom webinar using the information provided below. Please use the "raise hand" feature to indicate your desire to provide public comment.
•
Zoom webinar link:
https://us02web.zoom.us/j/82722747698?pwd=aWZpTzcwTHlRTk9xaTlmWVNWRWFU QT09
•
• Password: 135692
Or Telephone Attendee: 1 (408) 638-0968 or 1 (669) 900-6833 or 1 (346) 248-7799; Webinar ID: 827 2274 7698; Password: 135692: Press *9 to raise hand for public comment.
•
• Meetings are also broadcast on cable Channel 20 and streamed on the City's website.

Community Members are encouraged to submit agenda correspondence via email to the City Council at [email protected] prior to the meeting. Agenda correspondence received by 10:00 a.m. on the meeting day will be posted on the City website. •
Pages

1. ESTABLISH QUORUM AND CALL TO ORDER

2. MOMENT OF SILENCE

3. PLEDGE OF ALLEGIANCE

4. REPORTS

4.a Closed Session Report

4.b Mayor and Councilmembers' Reports, Announcements and Presentations

4.c City Manager Reports, Announcements and Presentations

4.d Subcommittee Reports - Verbal Update of Current Subcommittee Activities

1. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA

2. Morro Bay Power Plant (Vistra)

3. Offshore Wind Energy

4. Downtown Design District

5. RECOGNITION AND PRESENTATIONS
None.

6. PUBLIC COMMENT
Members of the audience wishing to address the Council on City business matters not on the agenda may do so at this time. For those desiring to speak on items on the agenda, but unable to stay for the item, may also address the Council at this time.

Public comment is an opportunity for members of the public to provide input to the governing body. To increase the effectiveness of the Public Comment Period, the City respectfully requests the following guidelines and expectations be followed:
•
Those desiring to speak are asked to complete a speaker slip, which are located at the entrance, and submit it to the City Clerk. However, speaker slips are not required to provide public comment. •
When recognized by the Mayor, please come forward to the podium to speak. Though not required, it is helpful if you state your name, city of residence and whether you represent a business or group. Unless otherwise established by the Mayor, comments are to be limited to three minutes.
•
All remarks should be addressed to Council, as a whole, and not to any individual member thereof.
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The Council respectfully requests that you refrain from making slanderous, profane or personal remarks against any elected official, commission and/or staff.
•
Please refrain from public displays or outbursts such as unsolicited applause, comments or cheering.
•
Any disruptive activities that substantially interfere with the ability of the City Council to carry out its meeting will not be permitted and offenders will be requested to leave the meeting.
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Your participation in City Council meetings is welcome and your courtesy will be appreciated.
•
The Council in turn agrees to abide by its best practices of civility and civil discourse according to Resolution No. 07-19.
•

7. CONSENT AGENDA

Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.

7.a Approval of Minutes
(City Clerk)
Recommended Action
Approve as submitted.

1. July 23, 2024 - Regular Council Meeting 8

2. August 13, 2024 - Special Closed Session Meeting 16

3. August 13, 2024 - Regular Council Meeting 18

7.b Acceptance of California Office of Traffic Safety (OTS) Grant 24 (Fire Department)
Recommended Action
Authorize the Fire Department to accept the grant award from the California Office of Traffic Safety Grant program for hydraulic extrication equipment; and

1. Authorize the City Manager to approve execution of grant related documents, subject to City Attorney review and
approval as to form; and

2. Adopt Resolution No. 54-24 to amend the Fiscal Year (FY) 2024-25 Operating & Capital Budget.

3. 7.c Approval of Amendment No. 6 to Environmental Impact Report (EIR) Contract with Rincon Consultants for the Vistra Battery Energy Storage System (BESS) Project at 1290 Embarcadero
42 (Community Development Department)
Recommended Action
Approve Amendment No. 6 to the EIR contract for the Vistra Battery Energy Storage System (BESS) project EIR at 1290 Embarcadero. The City Attorneys' Office has reviewed Amendment No. 6 (Attachment 2) as to form, such Amendment subject to final approval as to form by the City Attorney.

7.d Award of Contract to AAAA Engineering Contracting, Inc., for the Sequoia Court Storm Drain Repair Project
53 (Public Works Department)
Recommended Action
Award a contract to AAAA Engineering Contracting, Inc., for the Sequoia Court Storm Drain Repair Project for a total of $433,840, which includes a 10% contingency budget executable by the City Manager.

The contract (Attachment 1) has been reviewed and approved as to form by the City Attorneys' Office.

7.e Award of Contract to Hartzell General Engineering Contractor, Inc., for Lift Station 1 Force Main Replacement Project and Approval of Resolution No. 55-24 Amending the Fiscal Year (FY) 2024-25 Operating & Capital Budget
74 (Public Works Department)
Recommended Action
Award a contract to Hartzell General Engineering Contractor, Inc., (Hartzell) for the Lift Station 1 Force Main Replacement Project for a total of $414,568, which includes a 10%
contingency budget executable by the City Manager. The
contract (Attachment 1) has been reviewed and approved as to form by the City Attorneys' Office; and

1. Adopt Resolution No. 55-24 amending the FY 2024-25
Operating & Capital Budget to add $69,568 to the List Station 1 Force Main Replacement Project budget.

2. 7.f Approval of SB-1 Funding Project List for FY 24/25 Pavement Management Plan Project
97 (Public Works Department)
Recommended Action
Adopt Resolution No. 56-24 approving the Fiscal Year 2024/25 project list for use of Senate Bill 1 (Road Repair and Accountability Act of 2017) Road Maintenance and Rehabilitation Account (RMRA) funds.

7.g Approval of Contract with Filippin Engineering for Performing Construction Management and Inspection Services for the 2024 Pavement Rehabilitation Project
102
(Public Works Department)
Recommended Action
Approve and execute contract in the amount of $334,936.80, which includes a 10% contingency executable by the City Manager, with Filippin Engineering (FE), to perform Construction Management and Inspection Services for the 2024 Pavement Management project (Attachment 1). The City Attorneys’ Office has reviewed and approved the contract with FE (Attachment 1) as to form.

7.h Adoption of Resolution No. 57-24 Approving Amendment # 1 to the Master Lease Agreement with WBAM LLC, Lease Site 30W-33W, Bayfront Marina located at 201 Main Street
153
(Harbor Department)
Recommended Action

Adopt Resolution No. 57-24, approving Amendment 1 to the Master Lease Agreement.

7.i Central Coast Community Energy Proposed Amendment to Joint Powers Agreement
158
(City Manager)
Recommended Action
Receive and file.

8. PUBLIC HEARING ITEMS
None.

9. BUSINESS ITEMS

9.a Award of Contract to Souza Construction for the 2024 Pavement Rehabilitation Project
166
(Public Works Department)
Recommended Action
Award a contract to Souza Construction (Souza), for the 2024 Pavement Rehabilitation Project for a total of $4,383,595.98, which includes a 10% contingency budget executable by the City Manager.

The City Attorneys’ Office has reviewed the contract with Souza (Attachment 1) as to form, such contract subject to final approval as to form by the City Attorney prior to full execution.

9.b Authorization to Submit a Grant Application for California Coastal Commission (CCC) Local Coastal Program (LCP) Local Assistant Grant Program Funding and Increase Grant Budget for the Waterfront Master Plan Update
188
(Community Development Department)
Recommended Action
Adopt Resolution No. 58-24 authorizing staff to submit a grant application for California Coastal Commission (CCC) LCP Local Assistance Grant Program to fund the update of the City’s 1996 Waterfront Master Plan in the amount of $750,000. This is a $250,000 increase to the amount ($500,000) authorized by the City Council for the same grant application on September 26, 2023.

9.c Amend Council Policies & Procedures Section 5.5, for Elected Officials Not Running for Office, to Conduct Town Halls Under Section 5.5 During Election Season; and 2) Authorize Section 5.5 for Potential for Potential Upcoming Town Hall Meetings
211
(City Manager/City Attorney/City Clerk)
Recommended Action
Discuss and then consider approval of some/all of the following options:

1. Adoption of Resolution No. 59-24 amending the City Council Policies & Procedures, to amend Section 5.5 regarding the use of public resources during election season by elected officials not running for office, with one of following options:

Option A: affirm that Council by agendized action may consider specific exceptions to the restrictions in Section 5.5 during election season for Council Members not running that election season for re-election; or
Option B: provide that the restrictions in Section 5.5 during election season do not apply to a Council Member not running for re-election that election season; and/or

2. Provide exception(s) to Council Policies and Procedures Section

5.5 to Council Member Landrum for potential upcoming Town Hall meetings, to be determined at meeting, for possible topics including but not limited to homelessness, the downtown, harbor issues such as infrastructure needs and waterfront sustainability, and what can local government do about issues of what is in our water, air and food.

9.d Update on Fiscal Year (FY) 2023-24 and 2024-25 City Council Goals and Action Items
218
(City Manager)
Recommended Action
Receive a progress report on the City Council goals, goals’ statements, and action Items, acknowledge accomplishments and overall workload, and provide direction remaining goals.

10. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS

11. ADJOURNMENT
The next Regular Meeting will be held on September 10, 2024.

This agenda is subject to amendment up to 72 hours prior to the date and time set for the meeting. Please refer to the agenda posted at City Hall, 595 Harbor Street, Morro Bay, CA 93442 for any revisions or call the Clerk's office at (805) 772-6205 for further information.

Materials related to an item on this agenda submitted to the City Council after distribution of the agenda packet are available for public inspection upon request by calling the City Clerk's office at (805) 772-6205.

In compliance with the Americans Disability Act, if you need special assistance to participate in a City meeting, please contact the Clerk's office 24 hours prior to the meeting to insure reasonable arrangements can be made to provide

accessibility to the meeting.

1 MINUTES - MORRO BAY CITY COUNCIL

REGULAR MEETING
July 23, 2024, 5:30 p.m.

Veterans Memorial Hall, 209 Surf St., Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Zara Landrum
Council Member Laurel Barton
Council Member Cyndee Edwards
Council Member Jennifer Ford
Staff Present: City Manager Yvonne Kimball
City Attorney Chris Neumeyer
City Clerk Dana Swanson
Finance Director Emily Conrad
Community Development Director Airlin Singewald
Police Chief Amy Watkins
Fire Captain/Paramedic Travis Hasch
_____________________________________________________________________

1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom established a quorum and called the meeting to order at 5:39 p.m.

2. MOMENT OF SILENCE

3. PLEDGE OF ALLEGIANCE

4. REPORTS

4.a Closed Session Report
https://youtu.be/HBvQhTcCD5w?si=AYB6rV8I_Mb09wob&t=116
City Attorney Neumeyer announced no reportable action was taken in the July 23, 2024 closed session meeting.

Mr. Neumeyer reported the City Council met in closed session on July 10, 2024 to consider two matters. No legally reportable action was taken.

However, in the interests of transparency the Council asked that a “report out” be made on otherwise confidential information for Item No. 4.b.

Item No. 4.b concerned Council review under Govt Code 54956.8 with staff of a potential community benefits agreement with Vistra Energy after they sent a proposal to City. A potential community benefits agreement

2 includes potential real estate transactions, such as the deeding of Lila Keiser park to the City and joint real estate ventures to generate City income, as well as other related potential benefits.

No commitments were made. No final action was taken on any agreement or contract with Vistra Energy. Rather, the Council conferred with City staff on a non-binding, tentative response to Vistra Energy’s proposed community benefits agreement to continue the conversation.

Vistra Energy was informed that the City may amend the response subject to further City staff review and public input. The Council will seek community feedback and input on the community benefits agreement subsequent to the initial rounds of non-binding and tentative discussions.

Furthermore, no community benefits agreement will be approved without being agendized at a public Council meeting for review and discussion.

4.b Mayor and Councilmembers' Reports, Announcements and Presentations
https://youtu.be/HBvQhTcCD5w?si=sAhbrGqX6wklpUD3&t=232
Council Member Landrum announced she was in Texas providing child care for her family and participating remotely pursuant to the "just cause" provisions of Assembly Bill (AB) 2449.

4.c City Manager Reports, Announcements and Presentations https://youtu.be/HBvQhTcCD5w?si=SQaTW7xPLRJ98j4w&t=931

4.d Subcommittee Reports
https://youtu.be/HBvQhTcCD5w?si=7AhnqQ38NllRzi3s&t=1045 a. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA
b. Morro Bay Power Plant (Vistra)
c. Offshore Wind Energy
d. Downtown Design District

5. RECOGNITION AND PRESENTATIONS

5.a Townsend Public Affairs Legislative Update
https://youtu.be/HBvQhTcCD5w?si=uLUg92a6glo-emt0&t=1233 Presented by Townsend Public Affairs Director, Eric O'Donnell, and Senior Associate, Spencer Street.

6. PUBLIC COMMENT
https://youtu.be/HBvQhTcCD5w?si=4NDGg-c6KCr3Ixl7&t=2256

3  Aaron Ochs, Morro Bay, announced the recent passing of his mother, Pamela Ochs, who led efforts to oppose ocean acoustic testing and ensured all voices were heard when the city proposed a water/sewer rate increase in 2018. He urged the community to vote yes on Measure A-24.  Robert Skinner requested a resolution in favor of a ceasefire in Gaza.  Rich Raub, resident and Morro Bay Active Adults Board Member, asked the Council to agendize support for a fundraising effort to build four pickleball courts.
 David Yohe, Morro Bay, requested a resolution in favor of a ceasefire in Gaza and commented on the need for an evacuation center should the proposed BESS project move forward.
 Linda Winters, Morro Bay, commented on recent City events and invited attendees to take home COVID test kits provided at no charge by SLO Food Bank.
 Rachel Wilson, Cayucos, commented on the Brattle economic impact report for the proposed BESS Project.
 Dolores Howard, Paso Robles, asked the Council to consider a resolution in support of a ceasefire.
 Margaret Carman, Morro Bay, commented on Item 9a, urging the Council to authorize a second meeting to receive public comment on the findings and conclusions of the ad hoc committee.
 Steve Paige shared information about the potential impacts of the proposed BESS project.
 Barry Branin, Morro Bay, appreciated City Council, Fire and Police Departments, Caltrans and others for united effort to clean up encampments along Quintana Road.
 Betty Winholtz, Morro Bay, asked how the public would be informed about upcoming pavement projects.
 An unnamed resident shared his thoughts regarding a society steeped in violence.
 Jeff Eckles, Morro Bay, announced his candidacy for Morro Bay City Council.
 Terry Simons, Morro Bay, commented on the Townsend Public Affairs presentation and inquired about the annual cost of services.

End of public comment.

7. CONSENT AGENDA

4 Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.

Mayor Wixom opened public comment for items on the Consent Agenda. https://youtu.be/HBvQhTcCD5w?si=PNwwNldIrnXuoiv-&t=4306  Betty Winholtz, Morro Bay, thanked the City for protecting the library.  Terry Simons, Morro Bay, hoped to receive a cost/benefit report for the Ironman event and spoke in favor of appointing James Costanzo to the Recreation & Parks Commission.

End of public comment.

Council Member Ford pulled Item 7.e.

Council Member Landrum pulled Item 7.c.

Motion by Council Member Edwards
Seconded by Council Member Ford
Approve consent agenda Items 7.a., 7.b., 7.d. and 7.f.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford
CARRIED (5 to 0)

7.a Approval of Minutes
Approve as submitted.
a. May 23, 2024 - Special Closed Session Meeting
b. June 11, 2024 - Regular Council Meeting
c. June 25, 2024 - Regular Council Meeting

7.b Approval of Proclamations
a. Proclamation recognizing Latino Outreach Council's 30 Years of Service
Approve as submitted.

7.c Morro Bay Library Meeting/Book Room Discussion Update https://youtu.be/HBvQhTcCD5w?si=QtH6i2EZ9cGtJGTa&t=4521 The Council Members shared their appreciation for efforts made to support Friends of the Library.

5 Motion by Council Member Landrum
Seconded by Mayor Wixom
Receive and file this report.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford CARRIED (5 to 0)

7.d Update Regarding Ironman Event Contract Termination Receive and file the report.

7.e Authorization to Join the League of California Cities Letter of Opposition to Assembly Bill 2560 (Alvarez)
Council Member Ford declared a conflict on this item. (Due to a legislative conflict.)
https://youtu.be/HBvQhTcCD5w?si=1Q-HW37_AabNrxDM&t=4656 Motion by Mayor Wixom
Seconded by Council Member Barton
Join the League of California Cities ("Cal Cities") in opposition of Assembly Bill 2560 (Alvarez).

Ayes (4): Mayor Wixom, Council Member Landrum, Council Member Barton, and Council Member Edwards
Recused (1): Council Member Ford
CARRIED (4 to 0)

7.f Appointment of James Costanzo to the Recreation and Parks Commission
https://youtu.be/HBvQhTcCD5w?si=f_e-DeIqKgG-nH19&t=4684 Mayor Wixom invited Mr. Costanzo to the podium to say a few words.

Appoint James Costanzo to the Recreation and Parks Commission (RPC) to fill an unscheduled vacancy through January 31, 2026.

8. PUBLIC HEARING ITEMS
The Mayor and City Council took a brief recess at 6:58 p.m and reconvened at 7:07 p.m. with all members present.

9. BUSINESS ITEMS

6 9.a Downtown Design District Recommendations
https://youtu.be/HBvQhTcCD5w?si=FhDW1QEIe_40R_ct&t=4746 Community Development Director Singewald presented the report and responded to Council inquiries.

Council Members Landrum and Edwards offered comments as subcommittee members.

Mayor Wixom opened public comment on Item 9.a.
https://youtu.be/HBvQhTcCD5w?si=Ut_wXFdfoRSNNzjj&t=6636  Bill Luffee, Morro Bay, commended the subcommittee's work and hoped property owner input would be sought to understand their intentions.
 Terry Simons, Morro Bay, agreed with importance of involving property owners and urged the City to pursue a comprehensive Downtown/Waterfront Master Plan.
 Betty Winholtz, Morro Bay, stated that, as a committee member, she did not feel the work was complete and asked the Council to allow the committee to meet again to organize a public
presentation.
 Nattalia Merzoyan, Morro Bay, heartily agreed with Ms. Winholtz's comments regarding the need for more community input.
 Michelle Leicester-Cadaret, Morro Bay, agreed a second community input meeting should be allowed.
 Jeff Eckles, Morro Bay, appreciated Mr. Codron's incremental approach and focus on things that are achievable in the short term.

He felt it was unreasonable at this point to think the ad hoc committee would provide all the answers for our downtown.

The public comment period was closed.

There was Council discussion and support for a final meeting of the ad hoc group to form consensus prior to presenting information in a community forum,
Council Member Landrum moved for the subcommittee to meet again for a final meeting then to present final outcome to a public workshop as originally intended. The motion was seconded by Council Member Edwards for discussion.

Mr. Singlewald sought clarification on the areas of focus and noted the annual General Plan Progress Report would be another opportunity to

7 report back to Council and community regarding progress made on the implementation.

There was Council consensus the areas of focus should include:
 Viewshed
 Downtown Design District boundaries/footprint
 Historic or character defining buildings
 Housing
Following discussion, the motion carried 5-0 by roll call vote.

Motion by Council Member Landrum
Seconded by Council Member Edwards
That the subcommittee meet again for a final meeting then present final outcome in a public workshop as originally intended.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford CARRIED (5 to 0)

9.b Approval of City Manager Contract Amendment
https://youtu.be/HBvQhTcCD5w?si=yxE67VUmBjOWI--B&t=8775 City Attorney Neumeyer presented the report.

Mayor Wixom opened public comment for Item 9.b.
 Terry Simons, Morro Bay, questioned the need for a retention bonus and was concerned about automatic need for COLA
adjustments.

End of public comment.

Mayor Wixom responded to issues raised during public comment.

Mayor Wixom read the following statement into the record as presented in the staff report, "The City Manager will receive an extra 10 hours of maximum vacation leave bank accrual from 300 to 310 hours total; consistent with the COLA salary increases provided to City Department Heads the City Manager’s annual salary for FY 2024/25 will be $234,062, for FY 2025/26 will be $245,773, and for FY 2026/27 will be $258,066, totaling an increase of $35,155 over a three year period, with further increases thereafter consistent with COLA salary increases provided to City Department Heads; and, the City Manager will receive a one-time retention bonus of $1,063.25 to be paid no later than the second regular pay period following the effective date of the Second Amendment."

8 Motion by Mayor Wixom
Seconded by Council Member Barton
Consider approval of the Second Amendment to City Manager Employment Agreement for City Manager Yvonne Kimball and authorization for the Mayor to sign the Second Amendment on behalf of the City Council of the City of Morro Bay.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford CARRIED (5 to 0)

10. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS
None.

11. ADJOURNMENT
The meeting adjourned at 8:24 p.m.
/s/ Dana Swanson, City Clerk

1 MINUTES - MORRO BAY CITY COUNCIL

CLOSED SESSION MEETING
August 13, 2024, 4:00 p.m.

City Hall Conference Room
595 Harbor Street, Morro Bay, CA 93442
Members Present: Mayor Carla Wixom
Council Member Zara Landrum
Council Member Laurel Barton
Council Member Cyndee Edwards
Council Member Jennifer Ford
Staff Present: City Manager Yvonne Kimball
City Attorney Chris Neumeyer
Public Works Director Greg Kwolek
_____________________________________________________________________

1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom established a quorum and called the meeting to order at 4:01 p.m.

2. SUMMARY OF CLOSED SESSION ITEMS

3. CLOSED SESSION PUBLIC COMMENT
Mayor Wixom opened public comment for items on the agenda; seeing none, the public comment period was closed.

4. THE COUNCIL WILL CONVENE IN CLOSED SESSION

4.a CONFERENCE WITH REAL PROPERTY NEGOTIATOR -
GOVERNMENT CODE SECTION 54956.8

4.b CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Govt Code section 54956.9: one matter involving Ms. Betty Winholtz's claim of a Brown Act violation by the Council at the July 10, 2024, Council closed session meeting. The claim from Ms. Betty Winholtz is a public record available for public inspection and is attached to this closed session agenda listing.

5. RECONVENE IN OPEN SESSION
The City Council reconvened in Open Session. City Attorney Neumeyer reported that regarding Item 4.a., a review with real property negotiators for the property

2 generally known as the wastewater treatment facility, the Council directed that, while no reportable action was taken, the Council had a productive discussion and continues to move forward working with Cayucos figuring out what to do with the site. Regarding Item 4.b., pursuant to the receipt of a Brown Act cure and correct letter that Council received for the closed session meeting held July 10, 2024, the Council directed that a response be sent to the sender of that letter reaffirming no final action was taken and that any Community Benefits Agreement that the Council potentially could pass would be pursuant to review at a public meeting, public input would be sought, that no community benefit agreement was made by City Council, and that the response authorized to be sent back to Vistra was tentative and non-binding.

6. ADJOURNMENT
The meeting adjourned at 5:21 p.m.

Respectfully submitted,
/s/ Dana Swanson, City Clerk

1 MINUTES - MORRO BAY CITY COUNCIL

REGULAR MEETING
August 13, 2024, 5:30 p.m.

Veterans Memorial Hall, 209 Surf St., Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Zara Landrum
Council Member Laurel Barton
Council Member Cyndee Edwards
Council Member Jennifer Ford
Staff Present: City Manager Yvonne Kimball
City Attorney Chris Neumeyer
City Clerk Dana Swanson
Public Works Director Greg Kwolek
Community Development Director Airlin Singewald
Police Chief Amy Watkins
Fire Chief Dan McCrain
City Engineer Cynthia Cecil
IPR Program Manager Dan Heimel
_____________________________________________________________________

1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom established a quorum and called the meeting to order at 5:34 p.m. with all members present.

2. MOMENT OF SILENCE

3. PLEDGE OF ALLEGIANCE

4. REPORTS

4.a Closed Session Report
https://youtu.be/WbWJwyVj0EE?si=aZMcW74z2sgzJObI&t=84
City Attorney Neumeyer reported the Council met in Closed Session and, regarding Item 4.a, a review with real property negotiators for the property generally known as the wastewater treatment facility, the Council directed that, while no reportable action was taken, the Council had a productive discussion and continues to move forward working with Cayucos figuring out what to do with the site. Regarding Item 4.b., pursuant to the receipt of a Brown Act cure and correct letter that Council received for the closed session meeting held July 10, 2024, the Council directed that a response

2 be sent to the sender of that letter reaffirming no final action was taken and that any Community Benefits Agreement that the Council potentially could pass would be pursuant to review at a public meeting, public input would be sought, that no community benefit agreement was made by City Council, and that the response authorized to be sent back to Vistra was tentative and non-binding.

4.b Mayor and Councilmembers' Reports, Announcements and Presentations
https://youtu.be/WbWJwyVj0EE?si=YOTpneKfZdw6tPZz&t=174

4.c City Manager Reports, Announcements and Presentations https://youtu.be/WbWJwyVj0EE?si=VlKdNX3BPqoFXtB_&t=598

4.d Subcommittee Reports
https://youtu.be/WbWJwyVj0EE?si=qnoBNxClax6r9U9u&t=644
a. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA
b. Morro Bay Power Plant (Vistra)
c. Offshore Wind Energy
d. Downtown Design District

5. RECOGNITION AND PRESENTATIONS

5.a Morro Bay Chamber of Commerce Quarterly Review
https://youtu.be/WbWJwyVj0EE?si=CBbVbQneq2z3XLv6&t=1093 Presented by Interim CEO, Jocelyn Brennan.

6. PUBLIC COMMENT
 Ed Spera, Morro Bay, lobbied for traffic controls and restriping to improve bicycle and pedestrian safety along Main Street near Olive.  Aaron Ochs, Morro Bay, disputed comments in an opinion piece written in opposition to Measure A-24 and urged caution in how the City approaches revenue generating projects.
 Tina Metzger, Morro Bay, restated her written comments to Council requesting the Council direct staff to establish development standards for siting battery energy storage systems in our town and sphere of influence, and prepare an ordinance temporarily pausing any new battery storage project applications from being accepted as an urgency measure to protect public health, safety and welfare.

3  Linda Winters, Morro Bay, was inspired by the Olympics and shared the original start location for the Boston Marathon was in her small hometown.  Rachel Wilson, Cayucos, shared her appreciation for information gleaned from the August 2, 2024 Coastal Commission letter regarding the proposed BESS Project.
 An unnamed person offered comments.
 Michelle Leicester-Cadaret, Morro Bay, commented on the potential ratepayer impacts to cover the cost for extending Diablo Canyon and urged the Council to offer the Community Center as a venue where State officials can hold meetings on this topic.
 Betty Winholtz, Morro Bay, shared photos and concerns regarding tree pruning in Monte Young Park.

End of public comment.

The Council took a brief recess at 6:36 p.m. and reconvened at 6:44 p.m. with all members present.

7. CONSENT AGENDA
https://youtu.be/WbWJwyVj0EE?si=NEryrlyVzK7drA_z&t=4233 Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.

Mayor Wixom opened public comment for items on the Consent Agenda; seeing none, the public comment period was closed.

Motion by Council Member Landrum
Seconded by Council Member Ford
Approve Consent Agenda Items 7.a. through 7.d. as presented.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford
CARRIED (5 to 0)

7.a Approval of Minutes
Approve as submitted.
a. June 25, 2024 - Special Closed Session Meeting
b. July 10, 2024 - Special Closed Session Meeting
c. July 23, 2024 - Special Closed Session Meeting

4 7.b Adoption of Resolution No. 52-24 Authorizing the Public Works Director to Sign Planning Loan Amendments
Adopt Resolution No. 52-24 authorizing the Public Works Director to Sign Planning Loan Amendments.

7.c Status Update on Substantial Completion for the Water Tank Rehabilitation Project; and, Authorize Funding Reallocation Back to Water Fund

1. Receive and file this status update on substantial completion.

2. Authorize reallocation back to the Water Fund of remaining unexpended project funds not necessary for project completion.

7.d Determination of Public Convenience or Necessity for ABC License - 501 Embarcadero Road, Estero Inn
Make the Determination of Public Convenience or Necessity to approve the request to allow sales of alcohol for off sale beer and wine type 42 license for Estero Inn at 501 Embarcadero Road; and direct staff to provide the applicant with a letter of support.

8. PUBLIC HEARING ITEMS

8.a Adoption of Resolution No. 53-24 approving Major Revision #MAJ24- 001 to Conditional Use Permit #CUP22-09 at 801 Embarcadero for redevelopment of the Libertine Brewing site (Lease site 86/86W) and public access improvements
https://youtu.be/WbWJwyVj0EE?si=Vs1XBn31bLq2GQXb&t=4295 Community Development Director Singewald presented the report and responded to Council inquiries.

Mayor Wixom opened the public hearing for Item 8.a.
https://youtu.be/WbWJwyVj0EE?si=3t60TbaUmL4oDjDm&t=5157  Eric Newton spoke on behalf of the project development team, sharing his appreciation for a collaborative effort that has maximized the project. He responded to parking concerns, asked the Council to support development of the plaza area, and offered to answer any questions.

Mayor Wixom opened public comment.
 Betty Winholtz, Morro Bay, preferred a hard surface in the plaza area and was disappointed in the Planning Commission's approval of using DG. She requested additional changes to the resolution as submitted in agenda correspondence.

End of public comment.

5 Mr. Newton responded to Council questions.

Motion by Mayor Wixom
Seconded by Council Member Edwards
Adopt Resolution No. 53-24, for approval of Major Revision #MAJ24-001 to Conditional Use Permit (CUP) #CUP22-09 to remove the City Council added condition to defer public plaza improvements and require the proposed public plaza be added prior to final occupancy to be consistent with Coastal Commission conditions placed on the Coastal Development Permit (CDP), located at 801 Embarcadero.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford CARRIED (5 to 0)

9. BUSINESS ITEMS

9.a Professional Services Agreement for Hydrogeologic Support for the Recycled Water Program at the Morro Basin Extraction Well Project https://youtu.be/WbWJwyVj0EE?si=PTWM_NZq9JUGLGCX&t=6336 Public Works Director Kwolek and IPR Program Manager Dan Heimel presented the report and responded to Council inquiries.

Mayor Wixom opened public comment for Item 9.a.
https://youtu.be/WbWJwyVj0EE?si=7poWZwqbNvC90wzi&t=7679  Betty Winholtz, Morro Bay, asked what evidence existed to support the need for three wells, how much land would be needed for those wells, and an explanation of recycling vs. extraction wells.  Bill Luffee, Morro Bay, asked if these contracts were for consulting/engineering or construction.
 Linda Donnelly, Morro Bay, questioned the need for more contract amendments and requested an organizational chart showing what each company is expected to accomplish so the public can easily track the money.

End of public comment.

Staff responded to questions raised during public comment and additional Council inquiries.

Motion by Council Member Ford
Seconded by Council Member Barton
Authorize the City Manager to execute:

6 1. An agreement with GSI Water Solutions, Inc. (GSI) to provide Injection Well Design and Construction Support Services for the Recycled Water Program in an amount not to exceed $493,225, which includes a 10% contingency budget executable by the City Manager.

2. An agreement with GSI to provide Design and Construction Support Services for the Morro Basin Extraction Well project in an amount not to exceed $184,352, which includes a 10% contingency budget executable by the City Manager.

Ayes (5): Mayor Wixom, Council Member Landrum, Council Member Barton, Council Member Edwards, and Council Member Ford CARRIED (5 to 0)

10. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS
https://youtu.be/WbWJwyVj0EE?si=ya6O8N2F8fEtC69e&t=9056 Council Member Landrum requested the policy allowing for use of public facilities at no charge be amended to allow council members not running for office to use city facilities for town hall meetings during election season. City Manager Kimball suggested the Council could either amend the policy, or specifically authorize an exception to approve use of city facilities free of charge on specific dates.

11. ADJOURNMENT
The meeting adjourned at 8:13 p.m.
/s/ Dana Swanson, City Clerk

Prepared By: __DM________ Dept Review: ________
City Manager Review: YK______ City Attorney Review: _LNL___ Staff Report
TO: Honorable Mayor and City Council DATE: August 19, 2024 FROM: Daniel McCrain, Fire Chief
SUBJECT: Acceptance of California Office of Traffic Safety (OTS) Grant

RECOMMENDED ACTION

1. Authorize the Fire Department to accept the grant award from the California Office of Traffic Safety Grant program for hydraulic extrication equipment; and

2. Authorize the City Manager to approve execution of grant related documents, subject to City Attorney review and approval as to form; and

3. Adopt Resolution No. 54-24 to amend the Fiscal Year (FY) 2024-25 Operating & Capital Budget.

ALTERNATIVES
Decline to accept the grant award this year and reapply next year.

FISCAL IMPACT
The OTS grant program does not have a cost share for funding. The cost of equipment is funded 100% through the program up to the total award amount but must first be purchased by the City and then be reimbursed by the Office of Traffic Safety 90 days after purchase. If the equipment purchased exceeds the award amount, the City would be required to contribute the additional funds without the expectation of reimbursement on the additional amount. The financial burden for the City would be encumbering the funds to purchase the equipment for 90 days while awaiting reimbursement. The grant award is approved for up to $45,145.00. The current pricing is $48,132.44. The department would have to fund the difference due to vendor price increases between the time the estimate submitted with the grant application was received and the purchase date. The price difference is $2,987.44. Staff is requesting approval of Resolution No. 54-24 to amend the City’s FY 2024-25 Operating & Capital Budget to reflect the receipt of grant funds and offsetting expenditures.

BACKGROUND
The Office of Traffic Safety (OTS) is tasked with developing and implementing a highway safety program that addresses behavioral factors that impact safety on the road. The goal of the annual program is to prevent serious injury or death resulting from motor vehicle crashes so that all roadway users arrive at their destination safely. Using Federal Highway Safety Program funds, the OTS partners with political subdivisions of the state to address California’s highway safety needs at the state, county, and local level. The grant application period ran from December 2023, through January 31st, 2024. The grant applications were reviewed between February and May with awards being made in July 2024.

AGENDA NO: 7.b.

MEETING DATE: August 27, 2024

DISCUSSION
A majority of the hydraulic extrication equipment currently in use by Morro Bay Fire Department was scheduled for replacement in the 2017/2018 fiscal year but due to budget constraints most of these items have not been replaced. The gasoline power pumps were replaced during the 2018/2019 fiscal year; all other equipment is overdue to be replaced. The spreaders and cutters were purchased in 2011, and the rams and air bags were purchased in 2009. The equipment has a life expectancy of approximately 10 years depending on the item. In 2021, Governor Newsom signed AB 1346 requiring the phase out of all gasoline powered small engines beginning in 2024. To comply with this new law, we are replacing the current gasoline powered hydraulic extrication equipment with battery powered equipment. This new electric equipment has higher operating strengths than our current equipment and is designed for the high tensile strength materials of modern vehicles that our current equipment cannot cut. Upgrading this equipment also reduces our dependance on petroleum products and reduces emissions levels in accordance with the council’s stated goal of Climate Action. Purchasing this equipment would be a significant increase to the line-item budget if funded through the General Fund or Measure Q&E funds.

The Morro Bay Fire Department was able to obtain an award for one set of extrication tools from the OTS grant program during the last grant cycle. We had applied for two sets of tools but were awarded a single set to allow for more awards to be given to other departments. We were encouraged to apply this year for a second set. Due to our staffing model of running two engines daily having two sets of equipment is necessary to ensure access to the proper tools regardless of what apparatus responds to the incident.

CONCLUSION
The cost of replacing capital equipment such as extrication equipment can easily exceed the available funds in a departmental operating budget. Grant funding is a mechanism that many departments utilize to purchase much needed equipment that would be unobtainable without outside assistance due to limited agency finances. Accepting this grant award would allow the department to obtain equipment to enhance the safety of our responders and the community with a very small financial impact to city funds due to the requirement to purchase the equipment and request reimbursement.

ATTACHMENTS

1. Draft grant agreement

2. Resolution No. 54-24

8/7/2024 3:16:07 PM Page 1 of 15
State of California – Office of Traffic Safety

GRANT AGREEMENT

GRANT NUMBER
EM25023

1. GRANT TITLE
Regional Crash Response and Extrication Improvement Program

2. NAME OF AGENCY 3. Grant Period
Morrro Bay From:

To:
10/01/2024
09/30/2025 4. AGENCY UNIT TO ADMINISTER GRANT
Morro Bay Fire Department

5. GRANT DESCRIPTION
The city/county/regional fire agency will improve their crash response and extrication times by purchasing extrication equipment. Best practice strategies will be used to reduce the response time for the arrival of appropriate extrication equipment to traffic crash scenes and the time to extricate the victims of traffic crashes, thus increasing survivability. The grant will provide funding for new equipment and training for fire departments without extrication equipment or those that have existing equipment that has reached the end of its usable lifespan and is in need of replacement.

6. Federal Funds Allocated Under This Agreement Shall Not Exceed: $45,145.00

7. TERMS AND CONDITIONS: The parties agree to comply with the terms and conditions of the following which are by this reference made a part of the Agreement:
 Schedule A – Problem Statement, Goals and Objectives and Method of Procedure  Schedule B – Detailed Budget Estimate and Sub-Budget Estimate (if applicable)  Schedule B-1 – Budget Narrative and Sub-Budget Narrative (if applicable)  Exhibit A – Certifications and Assurances
 Exhibit B* – OTS Grant Program Manual
 Exhibit C – Grant Electronic Management System (GEMS) Access *Items shown with an asterisk (*), are hereby incorporated by reference and made a part of this agreement as if attached hereto.

These documents can be viewed at the OTS home web page under Grants: www.ots.ca.gov.

We, the officials named below, hereby swear under penalty of perjury under the laws of the State of California that we are duly authorized to legally bind the Grant recipient to the above described Grant terms and conditions.

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.

8. Approval Signatures
A. GRANT DIRECTOR B. AUTHORIZING OFFICIAL
NAME:

TITLE:

EMAIL:

PHONE:

ADDRESS:

Daniel McCrain
Fire Chief
[email protected]
(805) 772-6242
715 Harbor Street
Morro Bay, CA 93442
NAME:

TITLE:

EMAIL:

PHONE:

ADDRESS:

Yvonne Kimball
City Manager
[email protected]
(805) 772-6206
595 Harbor Street
Morro Bay, CA 93442
(Signature) (Date) (Signature) (Date)
C. FISCAL OFFICIAL D. AUTHORIZING OFFICIAL OF OFFICE OF TRAFFIC SAFETY NAME:

TITLE:

EMAIL:

PHONE:

ADDRESS:

Tracy McConnell
Administrative Technician
[email protected]
(805) 772-6242
715 Harbor Street
Morro Bay, CA 93442
NAME:

TITLE:

EMAIL:

PHONE:

ADDRESS:

Barbara Rooney
Director
[email protected]
(916) 509-3030
2208 Kausen Drive, Suite 300
Elk Grove, CA 95758
(Signature) (Date) (Signature) (Date)

8/7/2024 3:16:07 PM Page 2 of 15

10. PROJECTED EXPENDITURES
FUND CFDA ITEM/APPROPRIATION F.Y. CHAPTER STATUTE PROJECTED

EXPENDITURES

AGREEMENT
TOTAL $45,145.00

AMOUNT ENCUMBERED BY THIS DOCUMENT
I CERTIFY upon my own personal knowledge that the budgeted funds for the current budget year are available for the period and purpose of the expenditure stated above.
$45,145.00

PRIOR AMOUNT ENCUMBERED FOR THIS

AGREEMENT
$ 0.00
OTS ACCOUNTING OFFICER’S SIGNATURE DATE SIGNED TOTAL AMOUNT ENCUMBERED TO DATE $45,145.00
E. ACCOUNTING OFFICER OF OFFICE OF TRAFFIC SAFETY 9. SAM INFORMATION NAME: Carolyn Vu SAM #:

REGISTERED
ADDRESS:

CITY:

ZIP+4:

KAFQZMM3MRA5
595 Harbor St.

Morro Bay
93442-1957
ADDRESS: 2208 Kausen Drive, Suite 300
Elk Grove, CA 95758

8/7/2024 3:16:07 PM Page 3 of 15
State of California – Office of Traffic Safety

GRANT AGREEMENT
Schedule A

GRANT NUMBER
EM25023

1. PROBLEM STATEMENT
The Morro Bay Fire Department is an all-risk Advanced Life Support Fire Department. The Department has 13 full-time suppression personnel, a Fire Chief, one Division Chief/ Fire Marshal, one Administrative Technician, and two Seasonal firefighters. The Department operates out of one fire station with a second station unstaffed and utilized for equipment storage. Our current staffing model divides a four-person engine company into two engine companies staffed with two personnel on each engine to respond to simultaneous incidents. Both engines respond out of Station 53. This staffing model allows the Department to handle simultaneous incidents without needing mutual aid response but reduces the number of personnel available on the scene if split between two incidents. The City of Morro Bay is situated along the highly trafficked Pacific Coast Highway 1 and Highway 41. These State routes experience substantial traffic, resulting in numerous injuries and fatalities annually from motor vehicle crashes. According to CALTRANS Traffic Census Data for 2020 Highway 1 in North Morro Bay sees an annual average daily traffic of 20,500 vehicles, the highway 41 and Highway 1 junction has an annual average daily traffic of 17,100 vehicles. The city has a population of approximately 10,779 with 15% Latino, 5.3% Asian, 5.6% two or more races, and 28.5% over the age of 65. The city sees an estimated 800,000 annual visitors, which bring increased traffic along these Highways. Morro Bay Fire Department provides automatic and mutual aid response to the unincorporated rural areas of San Luis Obispo County along Highway 1, Highway 41, and South Bay Boulevard, which connects Morro Bay to the community of Los Osos. Highway 41 is a narrow, two-lane, undivided highway with many sharp blind turns, steep drop-offs, and limited areas for slower traffic to yield.

Vehicle crashes in this section of Highway 41 between Morro Bay and the City of Atascadero often result in a head-on collision as drivers attempt to pass slower vehicles in unsafe locations. As a result, Morro Bay Fire Department resources have extended response times to this section of Highway 41, and additional resources are approximately 20 to 30 minutes away. The auto extrication equipment currently deployed by Morro Bay Fire Department have reached the end of their lifespan, are outdated and in need of replacement. The average lifespan of extrication tools and airbags is 10 years, the cutters and spreaders are 12 years old, and the hydraulic rams and airbags are 14 years old. The tools currently in service have required multiple repairs due to hydraulic leaks, carburetor failure, broken valves, and hose failures. The Morro Bay Fire Department was awarded a reduced grant award from the OTS grant program last fiscal year and we have ordered one set of extrication tools and airbags. Due to our staffing model of two engines daily there is a need for a second set of extrication tools. This will ensure that both first out units are equipped to respond to traffic crashes with the appropriate equipment. Although the number of incidents requiring extrication has remained neutral, the number of motor vehicle crash responses is expanding annually, increasing the probability of need. The newer technology of extrication equipment improves firefighter and patient safety. The tools have higher operating speeds and strengths to cut through modern metals, reducing the time spent operating the tools and reaching the patient. This reduced operational time due to higher cutting and spreading forces can shorten the entrapment duration for patients and reduce strain on the operator utilizing the device. The new equipment is also lighter, reducing the risk of injury to the operator due to their weight. Electric extrication equipment requires less personnel to move, set up, and operate the equipment due to the lack of additional components such as remote pumps and hoses. This ease of operation is significant based on the staffing model of two personnel on each apparatus and the extended response times for additional resources. The higher strengths and faster operating speeds reduce the amount of time needed to complete the operation, resulting in more rapid extrication of the victim, allowing for more immediate access to patient care, thereby reducing morbidity and mortality. Ease of use, coupled with better performance, reduces the time firefighters are working in the roadway to extricate a patient, limiting their exposure to traffic and other safety hazards. Increased traffic has increased the number of motor vehicle crash responses, and infrastructure projects such as the construction of a water reclamation facility have increased the use of heavy equipment within city limits leading to a potential for greater calls for service. Morro Bay Fire Department has relied heavily on grants and donations to purchase capital equipment that is difficult to fund on the city’s limited and lean budget. The expense of replacing the extrication equipment equates to approximately 5.4% of the Department’s general fund operating budget.

The city did pass a one percent sales tax measure in 2020 that provided additional funding for public safety.

This tax revenue funds three full-time firefighter positions. The tax revenue is divided among Police, the Harbor Department and Fire Department, and a portion to public works to maintain public areas. This limited

8/7/2024 3:16:07 PM Page 4 of 15
additional sales tax provides relief for staffing costs but does little to provide for additional equipment. This grant funding would bridge the gap allowing for the purchase of this much-needed equipment, potentially reducing the number of injuries and loss of lives. Adding a second set of extrication equipment would allow both front line fire apparatus to be equipped to provide rapid extrication and patient access to those involved in traffic collisions.

2. PERFORMANCE MEASURES
A. Goals:

1. Reduce the number of persons killed in traffic crashes.

2. Reduce the number of persons injured in traffic crashes.

3. Decrease the average extrication time, from the time of arrival at the crash site to transport.

B. Objectives: Target Number

1. Issue a press release announcing the kick-off of the grant by November 15. The kick-off press releases and media advisories, alerts, and materials must be emailed to the OTS Public Information Officer at [email protected], and copied to your OTS Coordinator, for approval 7 days prior to the issuance date of the release.
1 2. Purchase and place fully equipped extrication systems in strategic locations within the jurisdiction.
1 3. Train firefighters in the use of the new equipment. 13

4. Conduct traffic safety presentations with an effort to reach persons and communities.
2 5. Display the OTS funded equipment during Public Safety Fairs, community festivals and/or other Department or community events.
2 6. Report on the number of times the grant-funded equipment is used during an extrication, provide a brief overview of the incident and indicate if the equipment was used to save a life.
1 7. Station 53 - Decrease the average extrication time, from the time of arrival at the crash site to transport, from 00 minutes to 00 minutes.

3. METHOD OF PROCEDURE
A. Phase 1 – Program Preparation (1st Quarter of Grant Year)  Determine specific equipment requirements.
 Request equipment vendor price quotation for the required equipment per host agency requirement.
 Submit purchase orders to equipment vendors for purchase of the equipment.

Media Requirements
 Issue a press release approved by the OTS PIO announcing the kick-off of the grant by November 15, but no sooner than October 1. The kick-off release must be approved by the OTS PIO and only distributed after the grant is fully signed and executed. If you are unable to meet the November 15 deadline to issue a kick-off press release, communicate reasons to your OTS grant coordinator and OTS PIO.

B. Phase 2 – Program Operations (Throughout Grant Year)  Inventory the new equipment following delivery.
 Disperse equipment to identified recipient agencies.
 Plan a media event announcing the grant funded equipment.  Recipient agencies will identify training needs and objectives and coordinate instructional staff to conduct a high quality training program for their respective agency.  Recipient agencies will develop a preventive maintenance schedule for the new equipment following manufacturers’ recommendations.

Media Requirements
The following requirements are for all grant-related activities:
 Send all media advisories, alerts, videos, graphics, artwork, posters, radio/PSA/video scripts, storyboards, digital and/or print educational materials for grant-related activities to the OTS PIO at [email protected] for approval and copy your OTS grant coordinator. Optimum lead time would be 7 days before the scheduled release but at least 3 business days prior to the scheduled release date for review and approval is appreciated.

8/7/2024 3:16:07 PM Page 5 of 15
 Send all Powerpoint presentations, online presentations and trainings for grant-related activities to the OTS PIO at [email protected] for approval and copy your OTS grant coordinator. Certified training courses are EXEMPT from the approval process.
 The OTS PIO is responsible for the approval of the design and content of materials. The agency understands OTS PIO approval is not authorizing approval of budget expenditure or cost. Any cost approvals must come from the OTS grant coordinator.  Pre-approval is not required when using any OTS-supplied template for media advisories, press releases, social media graphics, videos or posts, or any other OTS-supplied educational material.

However, copy the OTS PIO at [email protected] and your OTS grant coordinator when any material is distributed to the media and public, such as a press release, educational material, or link to social media post. The OTS-supplied kick-off press release templates and any kickoff press releases are an exception to this policy and require prior approval before distribution to the media and public.
 If an OTS-supplied template, educational material, social media graphic, post or video is substantially changed, the changes shall be sent to the OTS PIO at [email protected] for approval and copy to your OTS grant coordinator. Optimum lead time would be 7 days prior to the scheduled release date, but at least 3 business days prior to the scheduled release date for review and approval is appreciated.
 Press releases, social media posts and alerts on platforms such as NextDoor and Nixle reporting immediate and time-sensitive grant activities (e.g. enforcement operations, day of event highlights or announcements, event invites) are exempt from the OTS PIO approval process. The OTS PIO and your OTS grant coordinator should still be notified when the grant-related activity is happening (e.g. car seat checks, bicycle rodeos, community presentations, DUI checkpoints, etc.).
 Enforcement activities such as warrant and probation sweeps, court stings, etc. that are embargoed or could impact operations by publicizing in advance are exempt from the PIO approval process. However, announcements and results of activities should still be copied to the OTS PIO at [email protected] and your OTS grant coordinator with embargoed date and time or with “INTERNAL ONLY: DO NOT RELEASE” message in subject line of email.  Any earned or paid media campaigns for TV, radio, digital or social media that are part of a specific grant objective, using OTS grant funds, or designed and developed using contractual services by a subgrantee, requires prior approval. Please send to the OTS PIO at [email protected] for approval and copy your grant coordinator at least 3 business days prior to the scheduled release date.
 Social media posts highlighting state or national traffic safety campaigns (Distracted Driving Month, Motorcycle Safety Awareness Month, etc.), enforcement operations (DUI checkpoints, etc.), or any other grant-related activity such as Bicycle rodeos, presentations, or events, are highly encouraged but do not require prior approval.
 Submit a draft or rough-cut of all digital, printed, recorded or video material (brochures, posters, scripts, artwork, trailer graphics, digital graphics, social posts connected to an earned or paid media campaign grant objective) to the OTS PIO at [email protected] and copy your OTS grant coordinator for approval prior to the production or duplication.  Use the following standard language in all press, media, and printed materials, space permitting:

Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.  Space permitting, include the OTS logo on all grant-funded print materials, graphics and paid or earned social media campaign grant objective; consult your OTS grant coordinator for specifics, format-appropriate logos, or if space does not permit the use of the OTS logo.  Email the OTS PIO at [email protected] and copy your OTS grant coordinator at least 21 days in advance, or when first confirmed, a short description of any significant grant-related traffic safety event or program, particularly events that are highly publicized beforehand with anticipated media coverage so OTS has sufficient notice to arrange for attendance and/or participation in the event.

If unable to attend, email the OTS PIO and coordinator brief highlights and/or results, including any media coverage (broadcast, digital, print) of event within 7 days following significant grantrelated event or program. Media and program highlights are to be reflected in QPRs.

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 Any press releases, work plans, scripts, storyboards, artwork, graphics, videos or any educational or informational materials that received OTS PIO approval in a prior grant year needs to be resubmitted for approval in the current grant year.  For additional guidance, refer to the OTS Grants Materials Approval Process Guidelines and OTS Grants Media Approval Process FAQs on the OTS website.  Contact the OTS PIO or your OTS grant coordinator for consultation when changes from any of the above requirements might be warranted.

C. Phase 3 – Data Collection & Reporting (Throughout Grant Year)

1. Prepare and submit grant claim invoices (due January 30, April 30, July 30, and October 30)

2. Prepare and submit Quarterly Performance Reports (QPR) (due January 30, April 30, July 30, and October 30)
 Collect and report quarterly, appropriate data that supports the progress of goals and objectives.  Provide a brief list of activity conducted, procurement of grant-funded items, and significant media activities. Include status of grant-funded personnel, status of contracts, challenges, or special accomplishments.
 Provide a brief summary of quarterly accomplishments and explanations for objectives not completed or plans for upcoming activities.
 Collect, analyze and report statistical data relating to the grant goals and objectives.

4. METHOD OF EVALUATION
Using the data compiled during the grant, the Grant Director will complete the “Final Evaluation” section in the fourth/final Quarterly Performance Report (QPR). The Final Evaluation should provide a brief summary of the grant’s accomplishments, challenges and significant activities. This narrative should also include whether goals and objectives were met, exceeded, or an explanation of why objectives were not completed.

5. ADMINISTRATIVE SUPPORT
This program has full administrative support, and every effort will be made to continue the grant activities after grant conclusion.

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State of California – Office of Traffic Safety

GRANT AGREEMENT
Schedule B

GRANT NUMBER
EM25023

FUND NUMBER CATALOG

NUMBER (CFDA)

FUND DESCRIPTION TOTAL AMOUNT
402EM-25 20.600 State and Community Highway
Safety
$45,145.00

COST CATEGORY FUND
NUMBER

UNIT COST OR
RATE

UNITS TOTAL COST TO
GRANT
A. PERSONNEL COSTS
Straight Time
$0.00
Overtime
$0.00
Category Sub-Total $0.00
B. TRAVEL EXPENSES
$0.00
$0.00
Category Sub-Total $0.00
C. CONTRACTUAL SERVICES
$0.00
Category Sub-Total $0.00
D. EQUIPMENT
Fully Equipped Extrication System 402EM-25 $45,145.00 1 $45,145.00 Category Sub-Total $45,145.00
E. OTHER DIRECT COSTS
$0.00
Category Sub-Total $0.00
F. INDIRECT COSTS
$0.00
Category Sub-Total $0.00
GRANT TOTAL $45,145.00

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State of California – Office of Traffic Safety

GRANT AGREEMENT
Schedule B-1

GRANT NUMBER
EM25023

BUDGET NARRATIVE

PERSONNEL COSTS
-

TRAVEL EXPENSES
-

CONTRACTUAL SERVICES
-

EQUIPMENT
Fully Equipped Extrication System - Fully equipped extrication systems are generally comprised of a hydraulic pump, fluid, hoses, control valves, and hydraulically actuated spreaders and cutters used primarily for vehicle extrication incidents as well as edraulic tools. It includes every piece of extrication equipment, modifications, attachments, accessories, and auxiliary apparatus necessary to make it usable for the purpose it was acquired, and costs $5,000 or more (including tax, shipping, and installation).

OTHER DIRECT COSTS
-

INDIRECT COSTS
-

STATEMENTS/DISCLAIMERS
There will be no program income generated from this grant.

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State of California – Office of Traffic Safety

GRANT AGREEMENT
Exhibit A

GRANT NUMBER
EM25023
Certifications and Assurances for Fiscal Year 2024 Highway Safety Grants (23 U.S.C. Chapter 4 or Section 1906, Public Law 109-59, as amended by Section 25024, Public Law 117-58) The officials named on the grant agreement, certify by way of signature on the grant agreement signature page, that the Grantee Agency complies with all applicable Federal statutes, regulations, and directives and State rules, guidelines, policies, and laws in effect with respect to the periods for which it receives grant funding. Applicable provisions include, but are not limited to, the following:

GENERAL REQUIREMENTS
The State will comply with applicable statutes and regulations, including but not limited to:
 23 U.S.C. Chapter 4—Highway Safety Act of 1966, as amended;  Sec. 1906, Public Law 109-59, as amended by Sec. 25024, Public Law 117-58;  23 CFR part 1300—Uniform Procedures for State Highway Safety Grant Programs;  2 CFR part 200—Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards;
 2 CFR part 1201—Department of Transportation, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

NONDISCRIMINATION
(applies to all subrecipients as well as States)
The State highway safety agency [and its subrecipients] will comply with all Federal statutes and implementing regulations relating to nondiscrimination (“Federal Nondiscrimination Authorities”). These include but are not limited to:
 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);
 49 CFR part 21 (entitled Non-discrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964);  28 CFR 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964);  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.), and Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683 and 1685-1686) (prohibit 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 CFR part 27;  The Age Discrimination Act of 1975, as amended, (42 U.S.C. 6101 et seq.), (prohibits discrimination on the basis of age);
 The Civil Rights Restoration Act of 1987, (Pub. L. 100-209), (broadens 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, subrecipients and contractors, whether such programs or activities are Federallyfunded or not);  Titles II and III of the Americans with Disabilities Act (42 U.S.C. 12131-12189) (prohibits discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing) and 49 CFR parts 37 and 38;  Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (preventing 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 (requiring that recipients of Federal financial assistance provide meaningful access for applicants and beneficiaries who have limited English proficiency (LEP));
 Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities through the Federal Government (advancing equity across the Federal Government); and  Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (clarifying that sex discrimination includes discrimination on the grounds of gender identity or sexual orientation).

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The preceding statutory and regulatory cites hereinafter are referred to as the “Acts” and “Regulations,” respectively.

GENERAL ASSURANCES
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
“No person in the United States shall, 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 under any program or activity, for which the Recipient receives Federal financial assistance from DOT, including NHTSA.” The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI of the Civil Rights Act of 1964 and other non-discrimination requirements (the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these nondiscrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted.

SPECIFIC ASSURANCES
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted Highway Safety Grant Program:

1. The Recipient agrees that each “activity,” “facility,” or “program,” as defined in 49 CFR part 21 will be (with regard to an “activity”) facilitated, or will be (with regard to a “facility”) operated, or will be (with regard to a “program”) conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations.

2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all Highway Safety Grant Programs and, in adapted form, in all proposals for negotiated agreements regardless of funding source:
“The [name of Recipient], in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.”

3. The Recipient will insert the clauses of appendix A and E of this Assurance (also referred in every contract or agreement subject to the Acts and the Regulations.

4. The Recipient will insert the clauses of appendix B of DOT Order 1050.2A, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient.

5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith.

6. That where the Recipient receives Federal financial assistance in the form of, or for the acquisition of, real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property.

7. That the Recipient will include the clauses set forth in appendix C and appendix D of this DOT Order 1050.2A, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.

8. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the property.

9. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub- grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.

10. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance.

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By signing this ASSURANCE, the State highway safety agency also agrees to comply (and require any sub-recipients, sub-grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing NHTSA's access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by NHTSA. You must keep records, reports, and submit the material for review upon request to NHTSA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.

The State highway safety agency gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under the Highway Safety Grant Program. This ASSURANCE is binding on the State highway safety agency, other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors', transferees, successors in interest, and any other participants in the Highway Safety Grant Program. The person(s) signing below is/are authorized to sign this ASSURANCE on behalf of the Recipient.

THE DRUG-FREE WORKPLACE ACT OF 1988 (41 U.S.C. 8103)
The Subgrantee will provide a drug-free workplace by:
a. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace, and specifying the actions that will be taken against employees for violation of such prohibition; b. Establishing a drug-free awareness program to inform employees about:

1. The dangers of drug abuse in the workplace;

2. The grantee's policy of maintaining a drug-free workplace;

3. Any available drug counseling, rehabilitation, and employee assistance programs;

4. The penalties that may be imposed upon employees for drug violations occurring in the workplace;

5. Making it a requirement that each employee engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
c. Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—

1. Abide by the terms of the statement;

2. Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction; d. Notifying the agency within ten days after receiving notice under subparagraph (c)(2) from an employee or otherwise receiving actual notice of such conviction;
e. Taking one of the following actions, within 30 days of receiving notice under subparagraph (c)(2), with respect to any employee who is so convicted—

1. Taking appropriate personnel action against such an employee, up to and including termination;

2. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
f. Making a good faith effort to continue to maintain a drug-free workplace through implementation of all of the paragraphs above.

POLITICAL ACTIVITY (HATCH ACT)
(applies to all subrecipients as well as States)
The State will comply with provisions of the Hatch Act (5 U.S.C. 1501-1508), which limits the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds.

CERTIFICATION REGARDING FEDERAL LOBBYING
(applies to all subrecipients as well as States)

CERTIFICATION FOR CONTRACTS, GRANTS, LOANS, AND COOPERATIVE AGREEMENTS The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, 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 the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement;

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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 Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions;

3. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, subgrants, and contracts under grant, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

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 section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

RESTRICTION ON STATE LOBBYING
(applies to subrecipients as well as States)
None of the funds under this program will be used for any activity specifically designed to urge or influence a State or local legislator to favor or oppose the adoption of any specific legislative proposal pending before any State or local legislative body. Such activities include both direct and indirect (e.g., “grassroots”) lobbying activities, with one exception. This does not preclude a State official whose salary is supported with NHTSA funds from engaging in direct communications with State or local legislative officials, in accordance with customary State practice, even if such communications urge legislative officials to favor or oppose the adoption of a specific pending legislative proposal.

CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
(applies to all subrecipients as well as States)

INSTRUCTIONS FOR PRIMARY TIER PARTICIPANT CERTIFICATION (STATES)

1. By signing and submitting this proposal, the prospective primary tier participant is providing the certification set out below and agrees to comply with the requirements of 2 CFR parts 180 and 1200.

2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective primary tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary tier participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.

3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default or may pursue suspension or debarment.

4. The prospective primary tier participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary tier participant learns its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

5. The terms covered transaction, civil judgment, debarment, suspension, ineligible, participant, person, principal, and voluntarily excluded, as used in this clause, are defined in 2 CFR parts 180 and 1200. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations.

6. The prospective primary tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.

7. The prospective primary tier participant further agrees by submitting this proposal that it will include the clause titled “Instructions for Lower Tier Participant Certification” including the “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions and will require lower tier participants to comply with 2 CFR parts 180 and 1200.

8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or

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otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any prospective lower tier participants, each participant may, but is not required to, check the System for Award Management Exclusions website
(https://www.sam.gov/).

9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate the transaction for cause or default.

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS—

PRIMARY TIER COVERED TRANSACTIONS

1. The prospective primary tier participant certifies to the best of its knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency; b. Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
d. Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default.

2. Where the prospective primary tier participant is unable to certify to any of the Statements in this certification, such prospective participant shall attach an explanation to this proposal.

INSTRUCTIONS FOR LOWER TIER PARTICIPANT CERTIFICATION

1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below and agrees to comply with the requirements of 2 CFR parts 180 and 1200.

2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension or debarment.

3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

4. The terms covered transaction, civil judgment, debarment, suspension, ineligible, participant, person, principal, and voluntarily excluded, as used in this clause, are defined in 2 CFR parts 180 and 1200. You may contact the person to whom this proposal is submitted for assistance in obtaining a copy of those regulations.

5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled “Instructions for Lower Tier Participant Certification” including the “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions and will require lower tier participants to comply with 2 CFR parts 180 and 1200.

7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or

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otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any prospective lower tier participants, each participant may, but is not required to, check the System for Award Management Exclusions website
( https://www.sam.gov/).

8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension or debarment.

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION—

LOWER TIER COVERED TRANSACTIONS

1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

BUY AMERICA
(applies to subrecipients as well as States)
The State and each subrecipient will comply with the Buy America requirement (23 U.S.C. 313) when purchasing items using Federal funds. Buy America requires a State, or subrecipient, to purchase with Federal funds only steel, iron and manufactured products produced in the United States, unless the Secretary of Transportation determines that such domestically produced items would be inconsistent with the public interest, that such materials are not reasonably available and of a satisfactory quality, or that inclusion of domestic materials will increase the cost of the overall project contract by more than 25 percent. In order to use Federal funds to purchase foreign produced items, the State must submit a waiver request that provides an adequate basis and justification for approval by the Secretary of Transportation.

CERTIFICATION ON CONFLICT OF INTEREST
(applies to subrecipients as well as States)

GENERAL REQUIREMENTS
No employee, officer, or agent of a State or its subrecipient who is authorized in an official capacity to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting, or approving any subaward, including contracts or subcontracts, in connection with this grant shall have, directly or indirectly, any financial or personal interest in any such subaward. Such a financial or personal interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or personal interest in or a tangible personal benefit from an entity considered for a subaward. Based on this policy:

1. The recipient shall maintain a written code or standards of conduct that provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents. a. The code or standards shall provide that the recipient's officers, employees, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from present or potential subawardees, including contractors or parties to subcontracts. b. The code or standards shall establish penalties, sanctions, or other disciplinary actions for violations, as permitted by State or local law or regulations.

2. The recipient shall maintain responsibility to enforce the requirements of the written code or standards of conduct.

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DISCLOSURE REQUIREMENTS
No State or its subrecipient, including its officers, employees, or agents, shall perform or continue to perform under a grant or cooperative agreement, whose objectivity may be impaired because of any related past, present, or currently planned interest, financial or otherwise, in organizations regulated by NHTSA or in organizations whose interests may be substantially affected by NHTSA activities. Based on this policy:

1. The recipient shall disclose any conflict of interest identified as soon as reasonably possible, making an immediate and full disclosure in writing to NHTSA. The disclosure shall include a description of the action which the recipient has taken or proposes to take to avoid or mitigate such conflict.

2. NHTSA will review the disclosure and may require additional relevant information from the recipient. If a conflict of interest is found to exist, NHTSA may (a) terminate the award, or (b) determine that it is otherwise in the best interest of NHTSA to continue the award and include appropriate provisions to mitigate or avoid such conflict.

3. Conflicts of interest that require disclosure include all past, present, or currently planned organizational, financial, contractual, or other interest(s) with an organization regulated by NHTSA or with an organization whose interests may be substantially affected by NHTSA activities, and which are related to this award. The interest(s) that require disclosure include those of any recipient, affiliate, proposed consultant, proposed subcontractor, and key personnel of any of the above. Past interest shall be limited to within one year of the date of award. Key personnel shall include any person owning more than a 20 percent interest in a recipient, and the officers, employees or agents of a recipient who are responsible for making a decision or taking an action under an award where the decision or action can have an economic or other impact on the interests of a regulated or affected organization.

PROHIBITION ON USING GRANT FUNDS TO CHECK FOR HELMET USAGE (applies to all subrecipients as well as States)
The State and each subrecipient will not use 23 U.S.C. Chapter 4 grant funds for programs to check helmet usage or to create checkpoints that specifically target motorcyclists.

POLICY ON SEAT BELT USE
In accordance with Executive Order 13043, Increasing Seat Belt Use in the United States, dated April 16, 1997, the Grantee is encouraged to adopt and enforce on-the-job seat belt use policies and programs for its employees when operating company-owned, rented, or personally-owned vehicles. The National Highway Traffic Safety Administration (NHTSA) is responsible for providing leadership and guidance in support of this Presidential initiative. For information and resources on traffic safety programs and policies for employers, please contact the Network of Employers for Traffic Safety (NETS), a public-private partnership dedicated to improving the traffic safety practices of employers and employees. You can download information on seat belt programs, costs of motor vehicle crashes to employers, and other traffic safety initiatives at www.trafficsafety.org. The NHTSA website (www.nhtsa.gov) also provides information on statistics, campaigns, and program evaluations and references.

POLICY ON BANNING TEXT MESSAGING WHILE DRIVING
In accordance with Executive Order 13513, Federal Leadership On Reducing Text Messaging While Driving, and DOT Order 3902.10, Text Messaging While Driving, States are encouraged to adopt and enforce workplace safety policies to decrease crashes caused by distracted driving, including policies to ban text messaging while driving companyowned or rented vehicles, Government-owned, leased or rented vehicles, or privately-owned vehicles when on official Government business or when performing any work on or behalf of the Government. States are also encouraged to conduct workplace safety initiatives in a manner commensurate with the size of the business, such as establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving, and education, awareness, and other outreach to employees about the safety risks associated with texting while driving.

RESOLUTION NO. 54-24

RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF MORRO BAY, CALIFORNIA,
AUTHORIZING AMENDMENT TO THE CITY’S FISCAL YEAR
2024-25 OPERATING AND CAPITAL BUDGET

T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay is required to appropriate and expend public funds to conduct its day-to-day business activities; and
WHEREAS, the City Council adopted the Fiscal Year (FY) 2024-25 Operating and Capital Budget on June 25, 2024, by Resolution No. 47-24; and
WHEREAS, the California Office of Traffic Safety has awarded the City a grant to purchase hydraulic extrication equipment; and
WHEREAS, City staff did not include this award or associated expenditures in the adopted budget; and
WHEREAS, the City Council deems it necessary to amend said budgets.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California, authorizes a budget adjustment to recognize $45,145 in grant revenue received and $48,133 in expenditures as outlined in Table 1.

Table 1. Budget Amendment Detail
Type Account Description Increase
(Decrease)
Revenue 001-4210-3303 Federal Grant
Other Govt Svc
$45,145
Expense 001-4210-7302 Equipment
Acquisition
$48,133
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 27th day of August 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSE:
______________________________
CARLA WIXOM, Mayor
ATTEST:
_____________________________
DANA SWANSON, City Clerk

Prepared By: __AS________ Dept Review: ________
City Manager Review: _YK_____ City Attorney Review: _LNL__ Staff Report
TO: Honorable Mayor and City Council DATE: August 20, 2024 FROM: Airlin Singewald, Community Development Director
SUBJECT: Approval of Amendment No. 6 to Environmental Impact Report (EIR) Contract with Rincon Consultants for the Vistra Battery Energy Storage System (BESS) Project at 1290 Embarcadero

RECOMMENDED ACTION
Approve Amendment No. 6 to the EIR contract for the Vistra Battery Energy Storage System (BESS) project EIR at 1290 Embarcadero. The City Attorneys’ Office has reviewed Amendment No. 6 (Attachment 2) as to form, such Amendment subject to final approval as to form by the City Attorney.

ALTERNATIVES
None.

FISCAL IMPACT
No fiscal impact to the City as the Rincon EIR and Power Plant Master Plan contract is a reimbursable contract which is covered by the executed Vistra Deposit and Reimbursement Agreement (Attachment 3).

SUMMARY / BACKGROUND:

The City has an original contract with Rincon Consultants to perform the environmental work and prepare an Environmental Impact Report (EIR) for the Battery Energy Storage System (BESS) project that was executed March 19, 2021 (Attachment 1) for a not to exceed amount of $158,548. The EIR contract was subsequently amended five times for various reasons (see Table below).

Version Date Amount New Total Reason
Original Contract 3/19/2021 $158,548 $158,548 BESS Project EIR Amendment #1 4/4/2022 $123,203 $281,751 Project revisions including power plant and stack demolition; extended term
from 12/31/22 to 3/31/23
Amendment #2 5/1/2022 $23,180 $304,931 Analysis of geologic and hazard impacts
Amendment #3 7/25/2022 $172,342 $477,273 Include Master Plan Phase 1; extended term to 4/30/23
Amendment #4 5/1/2023 $6,610 $483,883 Community survey analysis for Master Plan; extend term to 12/31/23
Amendment #5 1/25/2024 $47,508 $531,391 Additional rounds of review of administrative draft EIR; extend term to
12/31/24
AGENDA NO: 7.c
MEETING DATE: August 27, 2024

2 Rincon Consultants submitted a sixth fee authorization request, dated August 19, 2024, seeking an additional $94,126 for a new contract amount of $625,517(Attachment 2, Exhibit A). A primary reason for this request is to cover Rincon’s cost to review and prepare responses to a higher-than-expected volume of comments on the Draft EIR. The City received 213 written comment letters totaling over 1,000 pages in response to the Draft EIR. Rincon will also provide written responses to the verbal comments received during the Draft EIR Scoping Workshop. Additionally, Rincon is seeking additional budget for hearing attendance, community engagement, and additional revisions to the Draft Master Plan, and project management.

The requested Amendment No. 6 does not propose to extend the term of the EIR contract, since Rincon’s proposed schedule still anticipates completion of work by December 31, 2024 (the current expiration date). The Community Development Director will continue to update the Council on the project timeline, as the BESS Project progresses through the environmental review and public hearing process. If the project timeframe extends beyond December 31, 2024, the City Manager will have the authority to extend the term of the agreement, without returning to the Council.

Pursuant to the City’s Master Fee Schedule, Vistra has previously paid the City an amount of $197,439 which represents cost plus 25% for the original contract, which was the requirement prior to the execution of the Deposit and Reimbursement Agreement. The Amendment No. 1 and Amendment No. 2 are covered by a deposit of $175,000 paid by Vistra, which is a Deposit and Reimbursement Agreement executed in January 2022. To keep up with expenditures, Vistra has replenished the deposit four times since January 2022 in the amount of $175,000 each (February 2023, May 2023, November 2023, and March 2024).

DISCUSSION
The original EIR contract authorized the City Manager to approve additional work not to exceed 25% of the amount of the original contract ($158,548). City Council approval is needed to authorize additional work in excess of this amount. Since the requested Amendment No. 6 ($94,126) is greater than 25% of the original contract amount, Council approval is required per the original contract. The contract amount, however, is fully reimbursable under the terms of the Deposit Reimbursement Agreement executed between the City and Vistra (Attachment 3).

CONCLUSION
Staff is recommending Council approve Amendment No. 6 to the Rincon Consultants EIR contract for the BESS Project, in the amount of $94,126 for a new contract amount of $625,517.

ATTACHMENTS

1. Rincon Consultants, Inc. Agreement for Consultant Services, March 19, 2021 - Link

2. Rincon Consultants Amendment #6 – Requested

3. Vistra Deposit and Reimbursement Agreement, January 24, 2022 - Link

01181.0005/865364.1
AMENDMENT NO. 6 TO THE AGREEMENT

FOR CONSULTANT SERVICES
BETWEEN THE CITY OF MORRO BAY AND RINCON CONSULTANTS, INC.

This Amendment No. 6 to the Agreement for Consultant Services (“Amendment”) is entered by and between the City of Morro Bay, a municipal corporation (“City”) and Rincon Consultants, Inc., a California corporation (“Consultant”), effective as of August ___, 2024 (the “Effective Date”). City and Consultant are sometimes referred to herein collectively as the “Parties” and individually as a “Party.”

RECITALS
WHEREAS, City and Consultant entered into an Agreement for Consultant Services dated effective as of March 19, 2021 (as amended by that certain Amendment No. 1 to the Agreement for Consultant Services, dated April 4, 2022, and that certain Amendment No. 2 to the Agreement for Consultant Services, dated May 1, 2022, and that certain Amendment No. 3 to the Agreement for Consulting Services, dated July 25, 2022, and that certain Amendment No. 4 to the Agreement for Consulting Services, dated March 23, 2023, and that certain Amendment No. 5 to the Agreement for Consulting Services, dated January 25, 2024, all collectively referred to as the “Amendments”) for certain services to be performed by Consultant to prepare CEQA documents and studies in connection with a proposed Battery Energy Storage project (“Project”) by Morro Bay Power Company, LLC, a California limited liability company (“MBPC”) to be located at 1290 Embarcadero Road, in the City of Morro Bay, i.e., the former Morro Bay Power Plant, (the “Site”).

The March 19, 2021 Agreement with all Amendments are collectively referred to as the “Agreement”; and
WHEREAS, the Parties now agree to further amend the Agreement to provide for the additional work that has been determined to be required of Consultant to respond to a higher-thanexpected volume of comments on the Draft Environmental Impact Report (DEIR); participate in additional public meetings for the DEIR and Draft Master Plan; and prepare additional revisions to the Draft Master Plan; and
WHEREAS, due to the additional work required to be provided under the Agreement via this Amendment, the compensation payable pursuant to the Agreement must be amended, and therefore, the Parties desire to amend the Agreement as set forth herein.

TERMS
NOW THEREFORE, the Parties mutually agree to amend the Agreement as follows:

1. Additional Work Required Under the Agreement: The services to be provided by Consultant, pursuant to the Agreement as amended by this Amendment, shall be generally the same as set forth on Exhibit A to the Agreement and its prior Amendments and incorporated herein by this reference, plus those additional services added pursuant to the terms in Exhibit A hereto (the “Additional Work”). The Additional Work further clarified in Exhibit A attached hereto and incorporated herein is intended to be an expansion of, not replacement of, services specified in the

01181.0005/865364.1
Agreement and all prior Amendments. The Additional Work shall be satisfactorily completed in accordance with the schedule set forth in the Exhibit A to the Agreement and its prior Amendments, except as extended in Section 3 below.

2. Amendment to Compensation: The compensation to be paid for the Additional Work described in Exhibit A to the Agreement and its prior Amendments shall not exceed $94,126. The total not to exceed amount stated in Section 5(a) of the Agreement shall be amended and revised to be $625,517.

3. Term of the Agreement. The Agreement shall remain and continue in effect until all tasks required under the Agreement (including the Additional Work) are satisfactorily completed, but in no event later than December 31, 2024, unless sooner terminated pursuant to the provisions of the Agreement.

4. Continuing Effect of Agreement. Except as expressly amended by this Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by this Amendment.

5. Affirmation of Agreement. City and Consultant each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each Party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein. Each Party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation.

6. Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment.

7. Authority. The persons executing this Amendment on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said Party, (iii) by so executing this Amendment, such Party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said Party is bound.

8. Counterparts. This Amendment may be executed in counterparts, and all so executed shall constitute an agreement binding on the Parties. The Parties further agree that a digital or electronic signature shall have the same force and effect as a manual or wet-ink signature, and that a facsimile copy or a copy in pdf format of the executed counterparts shall have the same force and effect as an original.
[Signature Pages Follow]

01181.0005/865364.1
IN WITNESS WHEREOF, the Parties shall be deemed to have caused this Amendment to be executed by their duly authorized representatives as of the Effective Date.

CITY CONSULTANT
CITY OF MORRO BAY RINCON CONSULTANTS, INC.

By: _____________________________ By: _____________________________ Name: Yvonne Kimball Name: Richard Daulton,
Title: City Manager Title: Principal / Secretary
By: _____________________________
Name: Lacrissa Davis
Title: Principal / Chief Financial Officer
Attest:
_________________________________
Dana Swanson, City Clerk
Approved As To Form:
_________________________________
Chris Neumeyer, City Attorney

01181.0005/865364.1

EXHIBIT A
[Attached]

Rincon Consultants, Inc.
1 5 3 0 M o n t e r e y S t r e e t , S u i t e D
San Luis Obispo, California 93401
8 0 5 5 4 7 0 9 0 0 O F F I C E A N D F A X
i n f o @ r i n c o n c o n s u l t a n t s . c o m
w w w . r i n c o n c o n s u l t a n t s . c o m
E n v i r o n m e n t a l S c i e n t i s t s P l a n n e r s E n g i n e e r s August 19, 2024
Project No: 19-08915
Attn: Kim Fowler, Interim Planning Manager
595 Harbor Street
Morro Bay, California 93442
805-772-6577 | [email protected]
Subject: Fee Authorization Request #6 to Provide Additional Responses to Comments Effort and Additional Master Plan Support for the Morro Bay Battery Energy Storage System Project EIR
Dear Ms. Fowler,
The purpose of this letter is to request an authorization of additional fees and work scope beyond those specified in the contract scope of work and budget between Rincon Consultants, Inc. (Rincon) and the City of Morro Bay for environmental services for the Morro Bay Battery Energy Storage System Project EIR.

Rincon’s contract scope of work for responding to public comments on the Draft EIR was originally prepared in February 2021 and was subsequently amended in February 2022 when the project description was modified to include demolition of the Power Plant building and stacks, and again in June 2022 with the addition of the Master Plan. Since that time the level of public interest in the project has increased substantially; the City has received 213 written comment letters totaling over 1,000 pages in response to the Draft EIR, and the public comments address the technical EIR analysis, conclusions, and mitigation. The public comments also include letters from public stakeholder agencies (San Luis Obispo Air Pollution Control District, the Department of Toxic Substances Control, California Coastal Commission, and California Department of Fish and Wildlife).

Rincon’s contract scope of work for the Master Plan included facilitating two community meetings with support from City staff. Due to the high level of public interest in the BESS project, the Master Plan engagement and level of staff engagement required to support the community meetings has exceeded what was assumed in our previous scope of work.

In order to respond to these changes in the project, the requested authorization would add budget and services to our contract scope of work to provide the required environmental analysis necessary to fully respond to the volume of comments received on the Public Review Draft EIR, and to complete the Master Plan public outreach process, incorporating guidance received from the public and from City staff regarding the scope of the Master Plan. The additional services included in this authorization request are:
 Additional professional staff time and technical expertise to support the expanded response to public comments on the Draft EIR;
 Additional staff and project management attendance at public hearings;  Additional professional staff time to support the expanded community engagement component of the Master Plan;

City of Morro Bay
Morro Bay Battery Energy Storage System Project EIR

 Corresponding updates to the Draft Master Plan to incorporate public input provided on the Master Plan’s vision and policy as well as Planning Commission’s feedback into the various sections of the draft Master Plan; and
 Project management and contract administration to support these additional tasks and extend the duration of Rincon’s schedule by 6 months (through January 2025).

The following section presents the additional scope of work that would be implemented for this effort.

With City authorization, these tasks would be incorporated into the contract as new subtasks under Task 6 (Prepare Administrative Final EIR and Responses to Comments), Task 9 (Public Meeting and Hearing Attendance), and Task 12 (Master Plan). The additional environmental analysis will be completed alongside Task 6 through Task 12 of the contract scope of work.

Scope of Work
Task 6.4: Additional Responses to Comments Effort
Rincon’s current tasks that allocate professional staff time to responding to public comments on the Draft EIR – Tasks 6.1, 11.6.1, and 13.3.1 – include a total of 114 hours of professional staff time allocated among a range of planners and document production staff. These tasks did not account for the volume and technical depth of public input provided on the Draft EIR or verbal comments during the Draft EIR Scoping Workshop, which was not anticipated in our original schedule for the project. The City received 214 written comment letters totaling over 1,000 pages in response to the Draft EIR, which include comments that address the technical EIR analysis, conclusions, and mitigation, as well as letters from public stakeholder agencies (San Luis Obispo Air Pollution Control District, the Department of Toxic Substances Control, California Coastal Commission, and California Department of Fish and Wildlife).

Effectively responding to the large volume of public comments received on the Draft EIR, and preparing a Final EIR that will adequately support the needs of City staff and decision makers requires engaging Rincon’s technical experts, including our biological resources specialists, cultural resources specialists, hazards and hazardous materials experts, and regulatory permitting experts, as well as a robust coordination effort among our senior project management team and additional effort from our planners and document production staff. We also anticipate this effort will require coordination with resource agency staff. Rincon intends to consolidate responses to public comments to the maximum extent practicable, preparing Topical Responses to key issues raised by multiple commenters, and focusing technical expertise on responding effectively to comments submitted by public stakeholder agencies where feasible. Based on the anticipated effort to respond to the volume of public comments received on the Draft EIR, Rincon has budgeted a total of 314 additional hours of professional staff time to address the full range of public input provided on the Draft EIR, which would provide a total average of approximately 2 hours of staff time per comment letter.

Task 6.5: Final EIR Project Management Extension
Rincon will continue to manage the preparation of environmental review, coordinate the environmental review process schedule, and provide City staff project updates for the environmental analysis.

Consistent with Rincon’s approved contract for this project, Rincon’s principal in charge or project manager will review and comment on regular meeting minutes and agendas. To support the professional effort associated with Task 6.4 and Task 9.2, Rincon will continue to attend biweekly status

City of Morro Bay
Morro Bay Battery Energy Storage System Project EIR

meetings via conference call with the City’s Project Manager for an additional duration of 6 months (through January 2025) and will attend up to 8 additional meetings with City staff and resource agency staff, including representatives of the Coastal Commission. These meetings can be scheduled and selected at the City’s discretion. We can conduct additional coordination with the City and complete other project management or technical tasks on a time-and-materials basis, in accordance with our schedule of fees, as authorized by the City.

Task 9.2: Additional Public Hearing (Final EIR)
Rincon attended a Draft EIR Scoping Workshop, which was not included in our original scope of work. As a result, the budget for this effort came from our existing Task 9.1: Public Hearings (2), which included scope and budget to attend two public hearings. We anticipate City staff will need Rincon to attend two public hearings in support of the Final EIR; therefore, we are requesting additional budget be added to the contract to provide staff time to support two public hearings on the Final EIR.

Task 12.5: Master Plan Project Management Extension
Rincon will continue to manage the preparation of the Master Plan. To support the professional effort associated with Task 12.7 and 12.8, Rincon will continue to attend biweekly status meetings via conference call with the City’s Project Manager for an additional duration of 6 months (through January 2025) and will attend up to 4 additional meetings with City staff. These meetings can be scheduled and selected at the City’s discretion. We can conduct additional coordination with the City and complete other project management or technical tasks on a time-and-materials basis, in accordance with our schedule of fees, as authorized by the City.

Task 12.6: Additional Community Engagement
Rincon facilitated and attended two community meetings, as included in our original scope of work, Task

12.3.3. This authorization would add budget to our existing contract scope of work to support the robust community engagement efforts needed and requested by City staff to adequately identify community priorities and vision for the Master Plan. Our original scope of work and budget assumed two staff members would attend the community meetings with support from City staff. Due to the high level of public interest in the BESS project, the Master Plan engagement and level of staff engagement required to support the community meetings was greater than what was assumed under the existing contract budget.

The additional scope and budget included in this task will support the following efforts that have been identified by City staff as necessary to complete a thorough series of community meetings as part of the Master Plan process and in support of the project overall:
 The need for four staff members to help facilitate the first community meeting (up to two staff members were originally assumed to be sufficient for each meeting.  Travel and cost for a senior public engagement specialist to develop and attend the second community meeting to assist with facilitating various interest groups anticipated to be in attendance.

City of Morro Bay
Morro Bay Battery Energy Storage System Project EIR

 Preparation of an additional memorandum deliverable to summarize the results of the second community meeting, due to requests from the community for a complete summary of comments made during the community meeting.

Task 12.7: Additional Public Hearing (Master Plan)
Rincon attended a Planning Commission Study Session, which was not included in our original scope of work. As a result, the budget for this effort came from our existing Task 12.3.4: Public Hearings, which included scope and budget to attend two public hearings. We anticipate City staff will need Rincon to attend two public hearings in support of the Master Plan; therefore, we are requesting additional budget be added to the contract to provide staff time to support two public hearings on the Master Plan.

Task 12.8: Additional Revisions to the Draft Master Plan Rincon’s current scope and budget under Task 2.2.5 to prepare the Draft Master Plan did not account for the depth of public input provided on the Master Plan’s vision and policy or additional input from the Planning Commission received during the out-of-scope study session. Additional professional staff time is necessary to adequately incorporate public input provided on the Master Plan’s vision and policy as well as Planning Commission’s feedback into the various sections of the draft Master Plan and compile a complete Draft Master Plan for City review.

Budget Amendment
Rincon is requesting a budget amendment of $94,126 to complete the scope of work tasks described in this request, as shown in the attached cost spreadsheet.

We are committed to working with the City of Morro Bay through the successful completion of this project. Please contact us if you have any questions regarding this scope and cost augmentation.

Sincerely,
Rincon Consultants, Inc.

Chris Bersbach, MESM
Supervising Environmental Planner/Project Manager
Richard Daulton, MURP
Vice President/Principal-in-Charge
Attachments: Cost Estimate

City of Morro Bay
1290 Embarcadero Road Battery Energy Storage System Project EIR E n v i r o n m e n t a l S c i e n t i s t s P l a n n e r s E n g i n e e r s Cost Estimate
19-08915 Morro Bay Battery Energy Storage Sy stem EIR Rate Hours Labor Budget Total Budget Final EIR Tasks 401.00 68,997.00 68,997.00
Task 6.4: Additional Responses to Comments Effort 314.00 51,374.00 51,374.00 Senior Principal 247.00 16.00 3,952.00
Principal 227.00 24.00 5,448.00
Senior Supervisor Planner II 211.00 36.00 7,596.00
Senior Biologist I 165.00 24.00 3,960.00
Senior Archaeologist I 165.00 8.00 1,320.00
Senior Environmental Scientist I 165.00 24.00 3,960.00
Senior Planner I 165.00 34.00 5,610.00
Planner III 134.00 132.00 17,688.00
Technical Editor 115.00 16.00 1,840.00
Task 6.5: Final EIR Project Management Extension 72.00 14,520.00 14,520.00 Senior Principal 247.00 12.00 2,964.00
Senior Supervisor Planner II 211.00 36.00 7,596.00
Senior Planner I 165.00 24.00 3,960.00
Task 9.2: Additional Public Hearing (Final EIR) 15.00 3,103.00 3,103.00 Senior Principal 247.00 2.00 494.00
Senior Supervisor Planner II 211.00 12.00 2,532.00
Admin Assistant/Billing Specialist 77.00 1.00 77.00
Master Plan Tasks 151.00 25,129.00 25,129.00
Task 12.5: Master Plan Project Management Extension 47.00 8,695.00 8,695.00 Senior Supervisor Planner II 211.00 30.00 6,330.00
Senior Planner I 165.00 12.00 1,980.00
Admin Assistant/Billing Specialist 77.00 5.00 385.00
Task 12.6: Additional Community Engagement 34.00 5,224.00 5,224.00 Senior Supervisor Planner II 211.00 10.00 2,110.00
Senior Planner I 165.00 6.00 990.00
Planner II 118.00 18.00 2,124.00
Task 12.7: Additional Public Hearing (Master Plan) 30.00 5,560.00 5,560.00 Senior Supervisor Planner II 211.00 20.00 4,220.00
Planner III 134.00 10.00 1,340.00
Task 12.8: Additional Draft Master Plan Revisions 40.00 5,650.00 5,650.00 Senior Supervisor Planner II 211.00 10.00 2,110.00
Planner II 118.00 30.00 3,540.00
Amendment Total 552.00 94,126.00 94,126.00

Prepared By: ___AD_____ Dept Review: __GK__
City Manager Review: _YK___ City Attorney Review: _LNL__ Staff Report
TO: Honorable Mayor and City Council DATE: August 21, 2024 FROM: Cindy Cecil, SE/CE – City Engineer
Austin Della, PE – Senior Civil Engineer
SUBJECT: Award of Contract to AAAA Engineering Contracting, Inc., for the Sequoia Court Storm Drain Repair Project

RECOMMENDED ACTION
Award a contract to AAAA Engineering Contracting, Inc., for the Sequoia Court Storm Drain Repair Project for a total of $433,840, which includes a 10% contingency budget executable by the City Manager. The contract (Attachment 1) has been reviewed and approved as to form by the City Attorneys’ Office.

ALTERNATIVE
The City Council may alternatively reject the bid and provide other direction to staff.

FISCAL IMPACT
Funding for the Sequoia Court Storm Drain Repair Project comes from a grant received from the Department of Water Resources (DWR), City General Fund budgeted in Fiscal Year 2023, and mid-year 2023 Transfer from Capital Project 915-9949 (Elena Street Slope Repair).

Revenue Sources Amount
DWR Grant: California State Budget Act of 2023
FY23 Budget Adoption
23 MY Transfer 9949 to 9950
$ 300,000.00
$ 120,000.00
$ 164,041.00
Total Revenue Sources for Project $ 584,041.00
Estimated Expenditures Amount
Contract Costs
Award (Base Bid)
Contingency (10%)
Other costs (already approved / implemented for project) Design, Construction Management, Inspection, and Testing $ 394,400.00
$ 39,440.00
$ 433,840.00
$ 125,364.52

Total Expenditures Authorized by Council for Project $ 559,204.52 AGENDA NO: 7.d
MEETING DATE: August 27, 2024

2 BACKGROUND
The Sequoia Court Storm Drain Replacement Project addresses a critical need for infrastructure improvement in response to recent weather events. The storm drain in question has required replacement for some time, and the severe storms in January and March of 2023 exacerbated the existing damage, making the need for immediate action clear.

In response to this urgency, the City secured grant funding of $300,000 from the California Department of Water Resources (DWR). This financial support has enabled the City to move forward with the necessary planning and design work. In 2023, the City contracted MNS Engineers to provide plans, specifications, and an engineer's estimate for the storm drain replacement. The design phase of the project was completed in early 2024.

The project was originally approved by the City Council in 2023 with the adoption of the FY 23 budget, which allocated $120,000 for this purpose. Additionally, during the mid-year budget review in 2023, the City transferred funds from Capital Project 915-9949, the Elena Slope Repair Project, to further support the Sequoia Court Storm Drain Replacement Project.

The storm drain is located within a City easement on private property, where existing landscaping materials and structures present challenges for maintenance and replacement activities. To address these challenges, the City has collaborated closely with the private property owners to ensure that the work is carried out in the least intrusive manner possible. The City has communicated to the property owner that City will not restore any landscaping improvements that need to be removed to facilitate the storm drain replacement.

DISCUSSION
The City posted a notice to bidders, and a public bid opening conducted on Wednesday, July 10, 2024, at City Hall. The lowest and only bid received is responsive to the City’s Invitation to Bid, and the bidder is well regarded as having successfully completed similar public works projects in the recent past.

PROJECT DATA
Low Bid: $540,400
No. Bids Received: 1
Engineer’s Estimate: $328,795
Bid Opening: 2:00 p.m. on 07/10/2024
Contract Time Allowed: 90 WORKING DAYS
The selection process for the project took into account both the base bid and the bid alternate to determine the apparent low bid. This combined total was used to ensure a fair comparison among all bids. However, the contract amount will be based solely on the base bid amount, which is $394,400. If the bid alternate option is employed during the project, it is anticipated that the overall construction costs will decrease. This alternate method, if applicable, offers a more cost-effective solution to install a pipe liner inside the damaged drainpipe.

3 The work shall include, but is not limited to, providing all tools, materials, labor, equipment, and incidentals necessary for the removal of a 36” CMP Storm Drainpipe, replacement with a 36” HDPE storm drainpipe, connection to existing headwall, laterals, and storm drain manhole, curb & gutter, sidewalk, curb opening catch basin, pavement restoration, and specified hardscape restoration. All utilities not replaced will be protected in place including manholes and returned to their prior condition.

The work will also include any required traffic control, signage, public notifications, stormwater control, formwork, and all other work necessary to render the infrastructure/facility complete and operational, as shown on the Project Plans and Specifications.

IMPACT TO THE COMMUNITY
The work is being performed on Sequoia Court. Motorists, cyclists, and the walking public may experience inconveniences during the project’s construction due to temporary closures of streets, traffic lanes, the presence of the construction equipment, and traffic control efforts. Project rollout will include public notification and temporary "No Parking" signs as applicable. These efforts are intended to allow residents to prepare for the project impacts by adjusting their routes of travel and/or schedules during construction work.

ATTACHMENT(S)

1. Form of Agreement for Services

01181.0006/1002380.2 Project No. 2023-SD03 7/23/2024

SEQUOIA COURT STORM DRAIN REPAIR PROJECT

CITY OF MORRO BAY

STATE OF CALIFORNIA

CONTRACT FOR
2023-SD03 SEQUOIA COURT STORM DRAIN REPAIR PROJECT

IN THE CITY OF MORRO BAY, CALIFORNIA
THIS AGREEMENT (“this Contract” or “this Agreement”) is made and entered into in triplicate this 27th day of August, 2024, by and among the City of Morro Bay, a municipal corporation, hereinafter referred to as “City” and AAAA Engineering Contracting, Inc., hereinafter referred to as “Contractor”. City and Contractor may be referred to, sometimes individually or collectively, as “party” or “parties.” In consideration of the mutual covenants, conditions, promises, and agreements herein contained, City and Contractor hereby mutually covenant and agree as follows:

ARTICLE I – SCOPE OF WORK:

Each work order issued pursuant to this Agreement and each amendment, as provided herein, shall be based on the unit prices included in the Bid Documents upon which this Agreement was awarded. For all work provided pursuant to this Agreement and every amendment provided for herein (the “Work”), Contractor agrees to furnish all tools, equipment, apparatus, facilities, labor and materials necessary to perform and complete in a workmanlike manner, and in strict accordance with the Contract Documents (defined in Article 6 herein) the Work of: SEQUOIA COURT STORM DRAIN REPAIR PROJECT: 2023-SD03, (“Project”) in the City of Morro Bay, State of California, as called for in the drawings and specifications adopted by City, which said drawings and specifications are identified by the signature of the parties of this Agreement, and such documents incorporated into this Agreement and made part hereof. It is understood and agreed the tools, equipment, apparatus, facilities, labor, and materials shall be furnished, and the Work performed and completed as required in said Contract Documents, and subject to the approval of City and duly authorized representatives.

ARTICLE 2 - TIME OF COMPLETION:

A. The Work, as defined in the specifications, per the following: The Work shall include, but is not limited to, providing all tools, materials, labor, equipment, and incidentals necessary for the replacement or lining of the failed storm drain and restoration of all asphalt, curb and gutter in the roadway and restoration of landscaping as indicated in the Project Plans and Specifications (included in the Bid Documents). All utilities will be protected in place or adjusted and returned to their prior condition. The Work will also include traffic control, public notifications, and all Work necessary to render the infrastructure/facility complete and operational.

B. Once the Notice to Proceed has been issued, the Contractor shall have Ninety (90) working days to complete their installation. The Contractor shall pay to the City the sum of One Thousand Dollars ($1,000.00), for each and every calendar day, or portion thereof, delay in finishing that installation Work in excess of the above-required completion time. This Article 2 both does not exclude recovery of damages under provisions of the Contract Documents and is also expressly in addition to the City’s ability to seek other damages.

C. City and Contractor recognize time is of the essence, and the City will suffer losses if the Work is not completed in the time specified in Subparagraphs 2.A and 2.B above. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by City if the Work is not completed on time. Accordingly, instead of requiring any such proof, City and Contractor agree, as liquidated damages for delay (but not as a penalty) Contractor shall

01181.0006/1002380.2 Project No. 2023-SD03 7/23/2024

SEQUOIA COURT STORM DRAIN REPAIR PROJECT

pay City amounts for each day, or portion thereof, that expires after the time and amounts specified in Subparagraphs 2.A and 2B above.

ARTICLE 3 - CONTRACT PRICE:

The Work shall be compensated at a “Maximum Contract Price” of: THREE HUNDRED NINETYFOUR THOUSAND, FOUR HUNDRED DOLLARS. ($394,400.00).

However, by accepting the Bid Documents, the parties accept and acknowledge that many Project Work elements are unknown and will be unknowable until such time that Project ground may be broken and further field conditions may be known, including the possibility of an option to line the existing storm drain pipe (such being the preferred option). To this end, the Bid Documents include a “bid alternate” in the amount of a Contract Price of ONE HUNDRED FORTY-SIX THOUSAND DOLLARS EVEN ($146,000.00). As appropriate, the Contract Price may be adjusted or reduced to accommodate the preferred option and attendant bid alternate, so long as the Maximum Contract Price is not exceeded. Adjustments to the Contract Price (not-to-exceed the Maximum) shall be processed as knowledge of field conditions develops, with Work compensation developed on a task and materials basis as described in Article 4 below.

Any increase in Contract Price of up-to the amount of contingency approved by the City Council at the time the Project was awarded to Contractor, if any, taken either separately or in the aggregate, or any increase in the time to perform of up to one hundred eighty (180) days and which are not detrimental to the Work or to the interest of the City, may be approved by the City’s Director of Public Works or City Engineer, or either of their designees. Any greater increases, taken either separately or in the aggregate, must be approved by the City Council.

ARTICLE 4 – PAYMENT PROCEDURES:

Without exceeding the Maximum Contract Price, payments for Work will proceed based on field conditions. Contractor shall provide the City a written description of the required tasks, including all additive and deductive components and subtasks, utilizing the pricing itemized under the base bid or the alternate bid as specified in the Bid Documents and as appropriate to field conditions:

A. If it is determined that the alternate bid option to line the existing storm drainpipe is the preferred option, Contractor shall submit a revised overall Contract Price estimate (not to exceed the Maximum Contract Price set forth above).

B. Each task of Work shall be indicated by Contractor in a written request produced to the City with a description of the Work to be performed including all components and subtasks, the time needed for completion of each task, the costs to perform each task, and a schedule for completion of each task with the aim of completing the Project in accordance with the Project deadline in Section 2.B above. The information required here may be included in the revised Contract Price submittal as specified in Section 4.A above or may cross-reference relevant information or data alreadyprovided in the Bid Documents.

C. Payment(s) will be processed following the satisfactory completion of scheduled tasks and the Work in the next regularly scheduled check run following submittal of invoice(s).

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D The acceptance by Contractor of final payment shall be and shall operate as a full and unconditional release to the City of all claims from Contractor, and all liability from City to Contractor, for all things done or furnished in connection with the Work and for every act and neglect of City and others relating to or arising out of the Work. No payment, however, final or otherwise, shall operate to release Contractor or sureties from any obligations under this Contract or the Performance and Payment BondE The amount of retention on the Project shall be five percent (5%) of the Work completed to date including stored materials, if any.

ARTICLE 5 – CONTRACTOR’S REPRESENTATIONS:

In order to induce City to enter into this Agreement the Contractor makes the following representations:

A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents.

B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work.

D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities), if any, that have been identified in Paragraph SC-4.02 of the Supplementary Conditions as containing reliable "technical data," and (2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site that have been identified in Paragraph SC-4.06 of the Supplementary Conditions as containing reliable "technical data."
E. Contractor has considered the information known to Contractor; information commonly known to Contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site-related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and (3) Contractor’s safety precautions and programs.

F. Based on the information and observations referred to in this Article 5, Contractor does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Work timeframes set forth herein, and in accordance with the other terms and conditions of the Contract Documents.

G. Contractor is aware of the general nature of Work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

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H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor.

I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

ARTICLE 6 – CONTRACT DOCUMENTS:

This Contract shall consist of the following identified documents herein referred to as the Contract Documents: (A) the Invitation to Bidders, Instructions for Bidders, Bid Form, Supplements to Bid Form, Project bid and proposal(s) from Contractor (collectively the “Bid Documents”) and (B) this Agreement, Bond Requirements and Bond Forms, Substitution of Securities, Guarantees, Insurance and Indemnification Requirements, Specifications, City Standard Specifications, and attached supplemental information, Drawings, and any Addenda, for the project, as those documents exist on the date of the first signature to this Contract. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein, and the Agreement shall be read and enforced as though it were included herein; if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either party, the Agreement shall forthwith be physically amended to make such insertion or correction. There are no other Contract Documents except those listed above. This Contract shall include all labor, materials, equipment, transportation, and services necessary for the proper execution of the Work. This Agreement and the Contract Documents may only be amended, modified, or supplemented in writing mutually executed by the parties. The Contract Documents are incorporated into this Agreement and made part hereof. In the event of any conflict between the terms of the Contract Documents and this Agreement, the terms of this Agreement shall govern.

ARTICLE 7 – LAW AND VENUE:

This Agreement has been executed and delivered in the County of San Luis Obispo, State of California and the validity, enforceability and interpretation of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. The duties and obligations of the parties created hereunder are performable in the City of Morro Bay and as such the County shall be the venue for any action of proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.

ARTICLE 8 - CONFLICTS OF INTERESTS:

No official of City who is authorized on behalf of City to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting, or approving any architectural, engineering, inspection, construction, or material supply contract or any subcontract in connection with the construction of the Project, shall become directly or indirectly interested personally in this Contract or in any part thereof. No officer, employee, architect, attorney, engineer, or inspector of or for City who is authorized on behalf of City to exercise any executive, supervisory or other similar function in connection with the construction of the Project shall become directly or indirectly interested personally in this Contract or in any part thereof.

Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.

ARTICLE 9 – ASSIGNMENT:

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No assignment by a party hereto of any rights under or interests in this Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents.

ARTICLE 10 – SUCCESSORS:

City and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.

ARTICLE 11 – SEVERABILITY:

Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon City and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

ARTICLE 12 – CONFLICTS:

In the event of a conflict between the Contract Documents and this Agreement, the terms and conditions of this Agreement shall control.

ARTICLE 13 – BONDS:

A. PERFORMANCE BOND: Pursuant to application of requirements of Section 20129 of the California Public Contract Code to this Agreement, the successful Bidder shall, within ten (10) working days after award of this Contract simultaneously with the execution and delivery of this Agreement, execute a Faithful Performance Bond in an amount equal to one hundred percent (100%) of the Contract price, secured from a surety company admitted in the State of California and satisfactory to City. The Bond shall be issued on the Performance Bond form contained in these Contract Documents.

B. PAYMENT BOND: Pursuant to Sections 9550 through 9560, inclusive, of the California Civil Code, the successful bidder shall, within eight (8) working days after award of this Contract exceeding $25,000, simultaneously with the execution and delivery of the Agreement, execute a Payment Bond in the amount equal to 100% of the Contract price, secured from a surety company admitted in the State of California and satisfactory to City. The Bond shall be issued on the Payment Bond form contained in these Contract Documents.

ARTICLE 14 - SUBSTITUTIONS OF SECURITIES FOR RETENTION AMOUNTS:

Substitution of certain securities for retention amounts are allowed under the Public Contract Code at the option of the Contractor. The Contractor is required to formally request the substitution and to conform to the specific provisions of Public Contract Code section 22300.

A. Acceptable Securities: Whenever retention of monies is authorized to ensure performance of Contract conditions, the Contractor shall be permitted to substitute securities for the amount withheld in accordance with Public Contract Code section 22300. Securities eligible for deposit under this procedure shall consist of bank or savings and loan certificates of deposit, interest

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B. Contractor warrants all Work under this Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within seven (7) calendar days after being notified in writing by the City of any defect in the Work or non-conformance of the Work to the Agreement, commence and prosecute with due diligence all w\Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act as soon as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair, remove and/or replace any portions of the Work (or Work of other contractors or subcontractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any Work damaged by such Work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

C. ADDITIONAL GUARANTEES: Additional Guarantees shall be provided as required in the technical sections of the Contract Documents.

ARTICLE 16 – INSURANCE:

The parties expressly agree the indemnification and insurance clauses in this Contract are an integral part of the performance exchanged in this Contract. The compensation stated in this Contract includes compensation for the risks transferred to Contractor by the indemnification and insurance clauses.

Attention is invited to the provisions of the Insurance Code of the State of California with reference to the writing of insurance policies and bonds covering risks located in this state, and the premiums and

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commissions thereon. Contractor shall obtain, and maintain, at his own expense, all the insurance required by this section. The insurance requirements must be met within the time period allowed for Contract execution as defined in the 00 41 13 BID FORM herein.

Required insurance forms are attached as Appendix “A” to these Specifications.

The Notice to Proceed with the Work under this Contract will not be issued, and Contractor shall not commence Work, until such insurance has been approved by City. Contractor shall not allow any subcontractor to commence Work on his subcontract until all similar insurance required for the subcontractor has been obtained. Such insurance shall be maintained in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.

A. General Requirements: The following requirements apply to all insurance to be provided by Contractor:

1. A Certificate of Insurance and all required insurance endorsements and documents shall be furnished to City along with Contract Documents within three (3) days of the receipt of the Notice of Award.

2. Certificates and policies shall state the policies not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to City, except if cancelation is for non-payment and then notice shall be ten (10) days.

3. Approval of the insurance by City shall not relieve or decrease the extent to which the Contractor may be held responsible for payment of damages resulting from Contractor’s services or operations pursuant to this Contract.

B. Commercial General Liability (CGL):

1. Contractor shall maintain in full force and effect, for the period covered by this Contract, Commercial General Liability insurance with the following coverages. a. Personal Injury and Bodily Injury, including death resulting therefrom. b. Property Damage.

2. The amount of insurance shall not be less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom and property damage coverage in in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

3. The following endorsements must be provided in the policy:
a. If the insurance policy covers an “accident” basis, it must be changed to “occurrence”. b. The policy must cover personal injury as well as bodily injury. c. Blanket contractual liability must be afforded and the policy must be afforded and the policy must contain a cross liability or severability of interest endorsement.

4. The City of Morro Bay, its officials, officers, employees and agents shall be named as additional insurer under the policy using standard ISO endorsement No. CG 2010. Contractor also agrees to require all subcontracting to do likewise. The policy shall provide that the insurance will operate as primary insurance. No other insurance effected by the City, whether commercial or self-insurance will be called upon to contribute to a loss hereunder. Nothing

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contained in this Contract shall be construed to require Contractor’s insurance to indemnify City in contravention of Insurance Code 11580.04.

C. Workers’ Compensation and Employer’s Liability Insurance: Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.

Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.

D. Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including symbol 1 (Any Auto) or an acceptable equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Contractor owns no vehicles, then this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described in B., above. If Contractor or Contractor’s employees or subcontractors will use personal autos in any way on this project, then Contractor shall provide evidence of personal auto liability coverage for each such person.

E. Umbrella or excess liability insurance. [if required to meet higher limits.] Contractor shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, auto liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
a. A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
b. “Pay on behalf of” wording as opposed to “reimbursement”; c. Concurrency of effective dates with primary policies.

Should Contractor obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, auto liability, and employer’s liability policies. Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.

F. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants.

G. Duration of coverage. Contractor shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or

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damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Contractor, their agents, representatives, employees, or subconsultants.

Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. Agency and its officers, officials, employees, and agents shall continue as additional insureds under such policies.

H. Products/completed operations coverage. Products/completed operations coverage shall extend a minimum of three (3) years after Project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include Work performed “by or on behalf” of the insured.

Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The Agency, its officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.

ARTICLE 17 – INDEMNIFICATION:

A. Except as otherwise provided in Subparagraphs B. and C. below, Contractor shall defend, indemnify and save harmless City, and entities’ agents, officials, officers and employees, from any and all claims demands, damages, costs expenses, judgments, attorney fees or liability relating to any act or omission by the Contractor, or its agents, employees, or certain independent Contractors (described below) which relates in any way to this Contract; regardless of whether said act or omission is willful, negligent or non-negligent. The preceding sentence applies to any theory of recovery relating to said act or omission, including but not limited to the following:

1. Violation of statute, ordinance, or regulation.

2. Professional malpractice.

3. Willful, intentional or other wrongful acts, or failures to act.

4. Negligence or recklessness.

5. Furnishing of defective or dangerous products.

6. Completed operations.

7. Premises liability.

8. Strict liability.

9. Inverse condemnation.

10. Violation of civil rights.

11. Violation of any federal or state statute, regulation, or ruling resulting in a determination by the Internal Revenue Service, California Franchise Tax Board or any other California public entity responsible for collecting payroll taxes, when Contractor is not an independent contractor. The certain “independent contractors” referenced above refer to independent contractors which are either hired by Contractor, directly responsible to Contractor, or under the direction or control of Contractor.

B. Nothing contained in the foregoing indemnity provision shall be construed to require indemnification for liability arising from proven willful misconduct of City.

C. Nothing contained in the foregoing indemnity provision shall be construed to require indemnification for that portion of any liability attributable to the active negligence of City provided, however, this exception for active negligence shall not apply to (1) liability arising from

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the passive negligence of City, or (2) that portion of any liability attributable to any act or omission, whether willful misconduct or active or passive negligence on the part of the Contractor.

D. Contractor shall have the burden of proving the exception described in paragraphs B and C above.

E. It is the intent of the parties to provide City the fullest indemnification, defense, and “hold harmless” rights allowed under the law. If any word(s) contained herein are deemed by a court to be in contravention of applicable law, then said word(s) shall be severed from this Contract and the remaining language shall be given full force and effect.

ARTICLE 18 – COMPLIANCE WITH LAWS:

Federal and State Laws and Regulations: All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, state or local governmental agency having jurisdiction in effect at the time services are rendered. City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns shall not be liable at law or in equity for failure of Contractor to comply with this Article 18. The Project shall be constructed under the complete jurisdiction of all applicable laws of the United States and State of California governing construction including, without limitation, the following:

A. The California Health and Safety Code and all applicable administrative code regulations pursuant thereto.

B. All laws governing the employment of labor, qualifications for employment of aliens, payment of employees, convict-made materials, domestic and foreign materials and accident prevention.

C. Title 19 of the California Administrative Code entitled “Public Safety” Chapter 1, State Fire Marshall, Sub-Chapter 1, “General Fire and Panic Safety”.

D. General Industrial Safety Orders: Each and every Contractor shall observe and conform to the provisions of Title 8, California Administrative Code bearing upon safe and proper use, construction, disposal, etc., of materials, machinery, and building appurtenances as therein set forth.

E. Code Rules and Safety Orders: All Work and materials shall be in full accordance with the latest - substantive rules and regulations of the State Fire Marshall, the safety orders of the Division of Industrial Safety, Department of Industrial Relations; the Uniform Building Code, National Electric Code, Uniform Mechanical Code, Uniform Plumbing Code, and other applicable State Laws or Regulations. Nothing in these plans and specifications is to be construed to permit Work not conforming to these codes.

Note: The procedural aspects of the Uniform Codes referred to above may not apply to the Work of this Contract, but the substantive provisions do apply. All of the above laws and regulations though referred to herein, are as much a part of the Agreement as if they were incorporated in their entirety herein.

F. Licenses, Fees, Permits and Assessments: Contractor shall maintain obtain and maintain, at its sole cost and expense, such licenses, permits, registrations, and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its

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officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

G. Prevailing Wage Law:
a.) Public Work. The parties acknowledge that the Work to be performed under this Agreement is a “public work” as defined in Labor Code section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. The Work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR.

Contractor shall post job site notices, as prescribed by regulation. b.) Registration with DIR. Pursuant to Labor Code section 1771.1, Contractor and all subcontractors must be registered with, and pay an annual fee to, the DIR prior to and during the performance of any Work under this Agreement.
c.) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code section 1771. Pursuant to Labor Code section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any Work under this Agreement, Contractor acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where Work is performed under this Agreement. Contractor assumes responsibility for the payment of prevailing wages and shall indemnify City and hold City harmless from any and all claims made by the State of California, the DIR, any subcontractor, any worker, or any other third party with respect thereto.
d.) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor.
e.) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records.
f.) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations.

Prior to commencing Work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after

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concluding Work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement.
g.) Eight-Hour Work Day. Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code section 1810. h.) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor 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 Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
i.) Workers’ Compensation. California Labor Code sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code section 1861, Contractor certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.” j.) Contractor’s Responsibility for Subcontractors. For every subcontractor who will perform Work under this Agreement, Contractor shall be responsible for such subcontractor’s compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for Work under this Agreement. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor.

ARTICLE 19 – INDEPENDENT CONTRACTOR:

Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Contractor, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Contractor shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor

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in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.

Contractor shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Contractor represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Contractor’s exclusive control and direction. No City employee benefits shall be available to Contractor, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Contractor, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Contractor or any officer, employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees’ Retirement System, to be classified as other than an independent contractor for City, then Contractor shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Contractor, or any officer, employee, agent, or subcontractor Contractor used to provide services under this Agreement, is/are employees of City.

ARTICLE 20 – PROTECTION AND CARE OF WORK AND MATERIALS:

The Contractor shall adopt reasonable methods, including providing and maintaining storage facilities, during the life of the Agreement, to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Work by City, except such losses or damages as caused by City’s own negligence.

Stored materials shall be reasonably accessible for inspection. Contractor shall not, without City’s consent, assign, sell, mortgage, hypothecate, or remove equipment or materials which have been installed or delivered and which may be necessary for the completion of the work.

ARTICLE 21 - ENFORCEMENT OF AGREEMENT AND TERMINATION:

A. California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Luis Obispo, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Luis Obispo, State of California.

B. Default of Contractor.
i. It is City's right to suspend or terminate this Agreement upon the occurrence of any of the following events by default of Contractor: (1) Contractor refuses or fails to perform the work required under this Agreement with diligence to ensure timely completion of the Work; (2) Contractor fails to comply with the provisions of this Agreement; (3) Contractor violates any ordinance, regulation, state or federal law which applies to its performance under this Agreement; (4) Contractor files bankruptcy or otherwise becomes insolvent; (5)

01181.0006/1002380.2 Project No. 2023-SD03 7/23/2024

SEQUOIA COURT STORM DRAIN REPAIR PROJECT

Contractor makes a general assignment for the benefit of creditors; (6) a trustee or receiver is appointed for the Contractor or his property; (7) Contractor repeatedly fails to supply sufficient skilled workers or suitable materials or equipment; (8) Contractor has abandoned the Work, and/or; (9) Contractor disregards proper directives of the architect, inspector, or City’s project manager under the Contract Documents. It will be at City's sole discretion to allow Contractor to remedy each cause for the termination without waiving City's right to terminate this Contract or restricting any other right or remedy under this Contract or law.
ii. In the event that Contractor is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate or suspend this Agreement immediately by written notice to Contractor. If the City’s project manager determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, the City’s project manager shall cause to be served upon Contractor a written notice of the default. Contractor shall have ten (10) calendar days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that Contractor fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. iii. Contractor shall be liable for damages sustained by City from the termination of the Agreement under this Subsection B, including, but not limited to, all cost necessary for repair and completion of the work. City shall have the right to withhold monies otherwise payable to Contractor until the Work is complete. If City incurs additional costs, expenses, or other damages due to the failure of Contractor to perform the Work pursuant to this Agreement, said expenditures shall be deducted from the amounts withheld (and if such deduction does not fully compensate City for said expenditures, then Contractor remains fully liable for the remaining balance owed to City). Should there be a balance of monies held after all expenses have been paid, the balance will be paid to Contractor upon completion of the Work.

C. Suspension or Termination. The City may at any time, for any reason (including but not limited to for City’s convenience, environmental considerations, or when it is in the best interests of the City), with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon Contractor at least ten (10) calendar days prior written notice.

Upon receipt of said notice, Contractor shall immediately cease all Work under this Agreement, unless the notice provides otherwise. If the City suspends a portion of this Agreement such suspension shall not make void or invalidate the remainder of this Agreement. Upon termination, Contractor shall be entitled to compensation for completion of any portion of the Work accepted by City up to the effective date of termination unless any portion of the Work is accepted by City after termination in which event Contractor shall be paid for such completed portion. Upon receipt of a termination notice, Contractor shall immediately discontinue the Work and placement of orders for materials, facilities and supplies in connection with the performance of this Agreement, unless otherwise directed in

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the notice. Contractor shall promptly deliver to City all completed work, including plans, asbuilts, forms, reports, and products. Any dispute regarding the amount owed to Contractor shall not diminish the right of City to receive and use such documents or materials. Contractor shall not be entitled to any claim or lien against City for any additional compensation or damages in the event of termination of this Agreement.

D. Dispute Resolution Process. In the event of any dispute or controversy with the City over any matter whatsoever, the Contractor shall not cause any delay or cessation in or of work, but shall proceed with the performance of the Work in dispute. The Contractor shall retain any and all rights provided that pertain to the resolution of disputes and protests between the parties. The disputed Work will be categorized as an “unresolved dispute” and payment, if any, shall be as later determined as set forth below. The Contractor shall keep accurate, detailed records of all disputed work, claims and other disputed matters. Section 20104 et seq. of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial-supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less, and Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims, said processes being incorporated herein by reference.

E. Rights and Remedies Are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.

F. Unfair Business Practices Claims. Pursuant to Public Contract Code section 7103.5, in entering into this Agreement, Contractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials related to this Agreement. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor without further acknowledgment by the parties.

G. Legal Action. In addition to any other rights or remedies, and as consistent with this Agreement and applicable law, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

H. Attorneys’ Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, consultants’ fees, taking depositions

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and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 22 – WAIVER:

Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any Work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement of this Agreement imposes no additional obligations on City nor does it waive any rights hereunder. Payment to Contractor for Work performed pursuant to this Agreement shall not be deemed to waive any defects in Work performed by Contractor.

ARTICLE 23 – MISCELLANEOUS PROVISIONS:

A. Non-Liability of City Officers and Employees.

No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

B. Interpretation.

The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.

C. Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. --SIGNATURES ON NEXT PAGE--

Prepared By: ___AD_____ Dept Review: _GK___
City Manager Review: __YK__ City Attorney Review: _LNL_ Staff Report
TO: Honorable Mayor and City Council DATE: August 21, 2024 FROM: Cindy Cecil, SE/CE – City Engineer
Austin Della, PE – Senior Civil Engineer
SUBJECT: Award of Contract to Hartzell General Engineering Contractor, Inc., for Lift Station 1 Force Main Replacement Project and Approval of Resolution No. 55- 24 Amending the Fiscal Year (FY) 2024-25 Operating & Capital Budget

RECOMMENDED ACTION

1. Award a contract to Hartzell General Engineering Contractor, Inc., (Hartzell) for the Lift Station 1 Force Main Replacement Project for a total of $414,568, which includes a 10% contingency budget executable by the City Manager. The contract (Attachment 1) has been reviewed and approved as to form by the City Attorneys’ Office; and

2. Adopt Resolution No. 55-24 amending the FY 2024-25 Operating & Capital Budget to add $69,568 to the Lift Station 1 Force Main Replacement Project budget.

ALTERNATIVE
The City Council may alternatively reject the bid and provide other direction to staff.

FISCAL IMPACT
The City Council allocated $400,000 for the Lift Station 1 Force Main Replacement Project during FY 2022-23 budget adoption. To date, $34,056 has been spent for Design services. Staff estimates up to $20,944 of additional funds may be required to support the completion of the project for engineering during construction services, inspection, and testing.

The low bid for construction received by the City was $376,880. With a recommended 10% contingency of $37,688, the total construction budget amount is $414,568. With design and support services totaling $55,000, the total recommended project budget is $469,568. This represents a budget shortfall of $69,568.

Budget Category Amount
Design $34,056
Support $20,944
Construction Bid $376,880
Construction Contingency $37,688
Total Recommended
Project Budget $469,568
Allocated Budget $400,000
Budget Shortfall $69,568
AGENDA NO: 7.e
MEETING DATE: August 27, 2024

2 Staff recommends supplementing the project budget with $69,568 from the Sewer Operating Fund via adoption of Resolution No. 55-24. As of June 30, 2024, the Sewer Operating Fund’s available working capital fund balance is estimated to be approximately $19 million, satisfying the City reserve policies for that fund.

BACKGROUND
In April 2022, the Lift Station 1 force main experienced a significant leak under State Route 1, necessitating its removal from service and the implementation of a temporary fix. While temporary repairs are still in place, a permanent solution is required to prevent further issues with the force main.

The OneWater Plan, which assessed the City's water and sewer infrastructure, had initially identified the need for the force main's replacement between the years 2029-2040. However, the recent leak has highlighted the urgency of addressing this deficiency sooner to minimize the risk of a Sanitary Sewer Overflow (SSO).

The Lift Station 1 Force Main Replacement Project implements an upsizing of the 225 foot force main from 6” diameter to 8” diameter to connect Lift Station No. 1 to the manhole on Main Street on the other side of Highway 1.

In response to this need, the City Council authorized $400,000 from the Sewer Fund during the adoption of the FY 22/23 Budget for this capital project.

DISCUSSION
Engineering plans and specifications were created and a notice to bidders posted with a public bid opening conducted on Thursday, July 11, 2024, at City Hall. The lowest and only bid received is responsive to the City’s Invitation to Bid, and the bidder is well regarded as having successfully completed similar public works projects in the recent past.

PROJECT DATA
Apparent Low Bid: $376,880
No. Bids Received: 1
Engineer’s Estimate: $274,550
Bid Opening: 2:00 p.m. on 07/11/2024
Contract Time Allowed: 30 WORKING DAYS
The work shall include, but is not limited to, providing all tools, materials, labor, equipment, and incidentals necessary for work including horizontal directional drilling for, installation of a new force main pipe within casing, connecting it to existing upstream piping and downstream manholes, and other work included in the project plans and specifications. All utilities not replaced will be protected in place including manholes and returned to their prior condition. The work will also include any required traffic control, signage, public notifications, stormwater control, formwork, and all other work necessary to render the infrastructure/facility complete and operational, as shown on the Project Plans and Specifications.

3 IMPACT TO THE COMMUNITY
The work is being performed on either side of Highway 1 near the Lift Station 1. Motorists, cyclists, and the walking public may experience inconveniences during the project’s construction due to temporary closures of streets, traffic lanes, the presence of the construction equipment, and traffic control efforts.

Project rollout will include public notification and temporary "No Parking" signs as applicable. These efforts are intended to allow residents to prepare for the project impacts by adjusting their routes of travel and/or schedules during construction work.

ATTACHMENTS

1. Form of Agreement for Services

2. Resolution No. 55-24 Authorizing the Budget Amendment

3. Site Map

RESOLUTION NO. 55-24

RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF MORRO BAY, CALIFORNIA,
AUTHORIZING AMENDMENT TO THE CITY’S FISCAL YEAR
2024-25 OPERATING AND CAPITAL BUDGET

T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay is required to appropriate and expend public funds to conduct its day-to-day business activities; and
WHEREAS, the City Council adopted the Fiscal Year (FY) 2024-25 Operating and Capital Budget on June 25, 2024, by Resolution No. 47-24; and
WHEREAS, in FY 2022-23, the City allocated $400,000 to fund the Lift Station No. 1 Force Main Replacement project (Project); and
WHEREAS, the City has carried forward unspent appropriation each year, resulting in approximately $365,944 remaining for project completion as of June 30, 2024; and WHEREAS, City staff request an additional $69,568 to complete the Project; and WHEREAS, the City Council deems it necessary to amend said budgets.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California, authorizes the budget adjustment of $69,568 as a transfer out of the Sewer Operating Fund (321) to the Sewer Capital Improvement Fund (922) for the purposes of completing the Lift Station No. 1 Force Main Replacement Project, as outlined in Table 1.

Table 1. Budget Amendment Detail
Type Account Description Increase
(Decrease)
Expense 321-7710-8540 Transfer to Capital
Improvement
Fund
$69,568
Revenue 922-8227-3801 Transfer In $69,568
Expense 922-8227-6106 Contractual
Services
$69,568
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 27th day of August 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSE:
______________________________
CARLA WIXOM, Mayor
ATTEST:
_____________________________
DANA SWANSON, City Clerk

Lift Station 1
Approx.

Limits of
Work Area
Site Map Page 96 of 230
Prepared By: ___CC___ Dept Review: _GK___
City Manager Review: __YK____ City Attorney Review: __LNL___ Staff Report
TO: Honorable Mayor and City Council DATE: August 27, 2024 FROM: Cindy Cecil, P.E. – City Engineer
SUBJECT: Approval of SB-1 Funding Project List for FY 24/25 Pavement Management Plan Project

RECOMMENDED ACTION
Adopt Resolution No. 56-24 approving the Fiscal Year 2024/25 project list for use of Senate Bill 1 (Road Repair and Accountability Act of 2017) Road Maintenance and Rehabilitation Account (RMRA) funds.

ALTERNATIVE
The Council could choose to not approve use of Senate Bill 1 (SB-1) funding. If a resolution is not approved by City Council before the September 30, 2024 deadline, project funds will not be eligible for use until the next opportunity when a resolution can be accepted by the California Transportation Commission (CTC) which would be in the following calendar year. The City may lose its ability to receive SB-1 funds from the State if projects have not been identified through a resolution passed by City Council.

FISCAL IMPACT
Funding from multiple sources, including SB-1 funds, for the Annual Pavement Management Project is included in the adopted Budget for Fiscal Year 2024/25 (FY24/25). The City anticipates approximately $260,000 in revenue from the State due to the continued implementation of SB-1 for the upcoming fiscal year. No local matching funds are required to receive this year’s SB-1 funding allocation; however, the City must keep in good standing with its commitment on MOE (Maintenance of Effort) over time to qualify for the continued receipt of SB-1 funds. In addition to SB-1 funds, the City Council has budgeted $350,000 from Measure Q & E for the FY24/25 pavement management project.

BACKGROUND/ DISCUSSION
The Road Repair and Accountability Act of 2017, SB-1, was passed by the State Legislature and signed into law by the Governor in April 2017. The purpose of the bill is to help State and local agencies address transportation funding shortfalls. SB-1 has generated revenue through increases in gas tax, vehicle registration fees, and fees on zero emission vehicles. The tax and fee rate increases were initiated on November 1, 2017, with final implementation of all the rate and fee increases completed in July 2020.

One of the major components of SB-1 is the Road Maintenance and Rehabilitation Account (RMRA), AGENDA NO: 7.f
MEETING DATE: August 27, 2024

which is the revenue stream set aside for the maintenance and rehabilitation of roadways. SB-1 generates over $5 billion annually at full implementation for the State, $1.5 billion of which will be distributed to local agencies and counties through the RMRA. The City of Morro Bay is projected to receive $260,000 in revenue from the RMRA for FY24/25. Revenue has remained steady for the last 2-3 years between $250,000-$300,000 of state funds dedicated to roadway projects.

SB-1 includes accountability and transparency provisions to enable local residents to remain aware of the projects proposed to be funded by SB-1 in their local area. As part of these provisions, it is a requirement for local agencies to adopt project lists before the start of every fiscal year. The project list must include all projects proposed to receive funding from the RMRA. The required list includes a description and the location of each proposed project, a proposed schedule for the project’s completion, and the estimated useful life of the improvement. Per the requirements of SB-1, the list must be approved by the City Council through resolution and sent to the California Transportation Commission (CTC) no later than September 30, 2024, to be eligible for RMRA funding for the current fiscal year.

The primary focus of the RMRA is maintenance of the existing infrastructure within the City’s rightsof-way. Other transportation funding sources, such as Measure Q and E, General Fund, Growth Mitigation, and other grant programs are available for capital expenditures through the normal budget process. Project selection is developed by the Public Works Department utilizing the City’s pavement management system, Street Saver, in coordination with recommendations from Public Works staff and engineering/pavement consultants. Streets that are heavily traveled generally will be prioritized because of the high volume of usage by the public. Critical point management, which targets treating roads that are at the bottom of one category of maintenance before they fall into another more costly treatment category, is widely used by many jurisdictions and is a factor in Morro Bay’s street selection.

These strategies are standard best practices for pavement management and are incorporated to utilize the limited funds on streets that will have the best possible impact on the pavement condition index (PCI) of the City’s collective road network. Additionally, when possible, the City will make efforts to distribute projects equitably geographically in the community.

The FY 24/25 pavement management project design was recently completed, and City staff followed up with an advertisement for construction bids in early August 2024. The project will include base material digouts where required based on road condition, placement of a 1/2 inch to 1 inch leveling course, and 1-4 inches of overlay and sealing. Construction is planned to begin in mid-September of 2024 and be complete by January 2025.

The City’s FY 24/25 pavement project includes a $1,619,999 budget with $260,000 coming from SB1 grant funding, $350,000 from Measure Q&E, and the remainder from the General Fund. The target project for this fiscal year is rehabilitating some of the lowest pavement condition index (PCI) residential roads that are in poor and very poor condition in order to slow down the rapidly declining PCI citywide. The following project list is proposed for use of SB-1 funds in FY24/25 and illustrates the City has sufficient work to justify the SB-1 allocation:

Annual Pavement Management Project (FY 24/25)
Description:

This project consists of rehabilitating and restoring pavement on several residential/local streets in the City of Morro Bay. SB-1 funds will be used during the construction phase of the project.

Location:

Various Streets throughout the City, some of which include:

Island Street, Java Street, Oahu Street, Panay Street, Beach Street, Birch Avenue, Coral Avenue, Embarcadero, Harbor Street, Koa Avenue, La Jolla Street, Main Street, Pacific Street and Sequoia Street.

Project Costs (includes contingencies)
Design Consultant: $204,070
Construction: : $3,985,087
Project management, testing: $336,437
Estimated Project Schedule: Start construction - 9/2024 Complete construction - 1/25
Estimated Useful Life: 15-20 years (rehabilitation)

CONCLUSION
In order to meet the SB-1 funding requirements for FY24/25, staff will submit to the California Transportation Commission (CTC) the proposed project and adopted resolution once approved.

Submittal of this list to the CTC does not preclude the City from making modifications due to changes in circumstances and scope, such as budget, addition and subtraction of streets from final list, and bidding or Council priorities. The final project details will be reported to the CTC in the project completion expenditure report after the project is complete. The obligation by the City is to spend SB1 funds appropriately and to not reduce the amount of general fund expenditures due to the Maintenance of Effort requirements.

ATTACHMENT

1. Resolution No. 56-24

RESOLUTION NO. 56-24

A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF MORRO BAY, CALIFORNIA
APPROVING THE FISCAL YEAR 2024/25 PROJECT LIST FOR SENATE BILL 1 (ROAD REPAIR AND ACCOUNTABILITY ACT OF 2017) ROAD

MAINTENANCE AND REHABILITATION ACCOUNT FUNDING

T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, Senate Bill 1 (SB-1), the Road Repair and Accountability Act of 2017 (Chapter 5, Statutes of 2017) was passed by the Legislature and signed into law by the Governor in April 2017 to address the significant multi-modal transportation funding shortfalls statewide; and
WHEREAS, SB-1 includes accountability and transparency provisions that will ensure the residents of Morro Bay are aware of the projects proposed for funding in our community and which projects have been completed each fiscal year; and
WHEREAS, the City of Morro Bay must adopt by resolution a list of projects proposed to receive fiscal year funding from the Road Maintenance and Rehabilitation Account (RMRA), created by SB-1, which must include a description and the location of each proposed project, a proposed schedule for the project’s completion, and the estimated useful life of the improvement; and
WHEREAS, the City of Morro Bay will receive an estimated $260,799 in funding in Fiscal Year 2024/25 from the RMRA of SB-1; and
WHEREAS, this is the 8th year in which the City of Morro Bay is receiving RMRA funding which will enable the City to continue essential road maintenance and rehabilitation projects, safety improvements, repairing and replacing aging bridges, and increasing access and mobility options for the traveling public that would not have otherwise been possible without SB-1; and WHEREAS, staff has undergone a robust public process to ensure public input into our community’s transportation priorities/the project list, including public meetings with the City of Morro Bay’s Public Works Advisory Board, City Council’s and their review of the capital improvement program and Operating and Capital Budget; and WHEREAS, the City of Morro Bay consulted with Pavement Engineering, Inc. to develop the SB-1 project list to ensure revenues are being used on high-priority and cost-effective projects that also meet the community’s priorities for transportation investment; and WHEREAS, the funding from SB-1 will help the City of Morro Bay maintain and rehabilitate approximately 2.5 centerline miles of roadway segments this fiscal year and additional street segments each year into the future, as SB-1 funds remain available; and WHEREAS, the 2020 California Statewide Local Streets and Roads Needs Assessment found that the City’s streets and roads are in an “at-risk” condition, and this revenue both will help us increase the overall quality of our road system, as well as over the next decade, with additional local funds, may help bring our streets and roads into a better condition; and WHEREAS, the SB-1 project list and overall investment in our local streets and roads infrastructure, with a focus on basic maintenance and safety, and investing in complete streets infrastructure, and using cutting-edge technology, materials and practices, will have significant positive co-benefits statewide.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California,

1. The foregoing recitals are true and correct and incorporated herein by reference.

2. The following is the proposed project that will be funded in-part or solely with fiscal year 2024/25 Road Maintenance and Rehabilitation Account revenues:

Annual Pavement Management Project (FY 24/25)
Description:

This project consists of rehabilitating and restoring pavement on several residential/local streets in the City of Morro Bay. SB-1 funds will be used during the construction phase of the project.

Location:

Various Streets throughout the City, some of which include:

Island Street, Java Street, Oahu Street, Panay Street, Beach Street, Birch Avenue, Coral Avenue, Embarcadero, Harbor Street, Koa Avenue, La Jolla Street, Main Street, Pacific Street and Sequoia Street.

Project Costs (includes contingencies)
Design Consultant: $204,070
Construction: : $3,985,087
Project management, testing: $336,437
Estimated Project Schedule: Start construction - 9/2024 Complete construction - 1/25
Estimated Useful Life: 15-20 years (rehabilitation)

3. The City Council has approved funding more than the SB-1 allocation for the Project List in the FY 2024/25 budget, in accordance with City Council goals and priorities.

PASSED AND ADOPTED by the City Council of the City of Morro Bay, California, at a regular meeting held on the 27
th day of August 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSE:

CARLA WIXOM, Mayor
ATTEST:

DANA SWANSON, City Clerk

Prepared By: AD Dept Review: _GK__
City Manager Review: _YK__ City Attorney Review: _LNL__ Staff Report
TO: Honorable Mayor and City Council DATE: August 21, 2024 FROM: Cindy Cecil, SE/CE – City Engineer
Austin Della, PE – Senior Civil Engineer
SUBJECT: Approval of Contract with Filippin Engineering for Performing Construction Management and Inspection Services for the 2024 Pavement Rehabilitation Project

RECOMMENDED ACTION
Approve and execute contract in the amount of $334,936.80, which includes a 10% contingency executable by the City Manager, with Filippin Engineering (FE), to perform Construction Management and Inspection Services for the 2024 Pavement Management project (Attachment 1). The City Attorneys’ Office has reviewed and approved the contract with FE (Attachment 1) as to form.

ALTERNATIVES

1. City Council may direct staff to not approve the proposed contract or suggest modifications to the scope of work.

2. City Council may provide other direction to staff.

FISCAL IMPACT
The recommended contract of $334,936.80 is included in the City Council approved FY24/25 Pavement Management project budget. This action does not require additional project budget.

BACKGROUND/ DISCUSSION
The 2024 Pavement Rehabilitation Project is aimed at maintaining and improving the condition of the City's roadway infrastructure. This project involves the resurfacing and repair of various streets throughout the City, focusing on extending pavement life, enhancing road safety, and improving the overall quality of our transportation network.

Given the scale and complexity of the project, the most efficient and effective means of implementation strategy for project construction is to hire a firm with the expertise and capacity to manage and oversee the construction contractor. Pavement rehabilitation projects of this nature are fast-paced, requiring quick decision-making, immediate response to issues as they arise, and meticulous coordination of resources and activities. This environment necessitates full-time, on-site construction management and inspection to ensure that work is carried out in compliance with project specifications, within budget, and on schedule.

To secure these services, the City released a Request for Proposals (RFP) on July 18, 2024, inviting qualified firms to submit proposals for construction management and inspection services for the project. A total of five firms responded to the RFP. The selection process was based on qualifications, with evaluations focused on each firm's experience, technical qualifications, and cost-effectiveness.

AGENDA NO: 7.g
MEETING DATE: August 27, 2024

FE was identified as the top candidate through this selection process. The firm's extensive experience in managing similar infrastructure projects, coupled with their technical expertise and ability to provide dedicated full-time staff, made them the most qualified for the job. Their proposal demonstrated a deep understanding of the complexities involved in pavement rehabilitation and a commitment to delivering the project efficiently and effectively.

The involvement of FE will provide the necessary oversight to maintain high-quality standards throughout the construction process, ensuring maximization of the City's investment in its roadway infrastructure.

ATTACHMENT(S)

1. Professional Services Contract with Scope of Services

01181.0001/813182.1 -1-

AGREEMENT FOR SERVICES

BETWEEN CITY OF MORRO BAY AND
FILIPPIN ENGINEERING, INC.

THIS AGREEMENT FOR SERVICES (“Agreement”) is made and entered into this 27th day of August, 2024 by and between City OF MORRO BAY, a California municipal corporation (“City”) and Filippin Engineering, Inc., a California corporation (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.” In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder.

1.2 Consultant’s Proposal. The Scope of Services shall include the scope of services or work included in Consultant’s proposal or bid, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal or bid, and this Agreement, the terms of this Agreement shall govern. No other terms and conditions from Consultant’s proposal or bid, other than description of scope of services or work, shall apply to this Agreement, unless specifically agreed to by City in writing.

1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered.

City, and its officers, employees and agents, shall not be liable at law or in equity for failure of Consultant to comply with this Section.

1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.5 Additional Services and Compensation. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes to the work by altering, adding to

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or deducting from said work. No such extra work may be undertaken unless a written order, consistent with both Section 9.4 as well as Morro Bay Municipal Code (“MBMC”) section

3.08.060 (and as amended), is first given by City to Consultant, incorporating therein any adjustment in the Contract Sum for the actual costs of the extra work and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants.

1.6 Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.

1.7 Software and Computer Services. If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.

1.8 Prevailing Wages. If services include any “public work” or “maintenance work,” as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws.

1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT

2.1 Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Three Hundred Eleven Thousand Six Hundred Eighty-Eight Dollars ($311,688) (“Contract Sum”), unless additional compensation is approved pursuant to Section 1.5. Compensation may include reimbursement, for actual and necessary expenditures, if both specified in the Schedule of Compensation, as well as approved by City in advance. The Contract Sum shall include the attendance of Consultant at all project meetings

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reasonably deemed necessary by City. Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.

2.2 Invoices. Unless some other method of payment is specified in Exhibit C, Schedule of Compensation, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City’s Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the Services; 3) line items for all other approved reimbursable expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.

ARTICLE 3. PERFORMANCE SCHEDULE

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

3.2 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, which shall be no later than January 31, 2025.

3.3 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit D and incorporated herein by this reference.

3.4 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay. City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City’s determination shall be final and conclusive upon the Parties to this

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Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of this Agreement pursuant to this Section.

ARTICLE 4. COORDINATION OF WORK

4.1 Representative of Consultant. The representative of Consultant is Gino Filippin, President, who is authorized to act on Consultant’s behalf with respect to the work or services specified herein and to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City to enter into this Agreement. Therefore, the representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the representative may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City.

4.2 Contract Officer for City. The Contract Officer for City is Yvonne Kimball (or such person as may be designated by the City Manager). The Contract Officer shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.

4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, are to be made (unless otherwise specified) either by the City Manager or by their delegate as provided for in writing.

4.4 Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant’s exclusive control and direction.

No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees’ Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer

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contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.

4.5 Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant’s indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees and agents of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change.

If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant’s compensation.
(a) Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office (“ISO”) form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.
(b) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.
(c) Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit

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for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant’s profession. This coverage may be written on a “claims made” basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant’s services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. (e) Cyber Liability. Cyber liability insurance appropriate to Consultant’s profession and the services hereunder, written on a per occurrence basis, with limits not less than $1,000,000 per occurrence/loss, and $2,000,000 in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant pursuant to this Agreement and shall include, but not be limited to, claims involving: infringement of intellectual property; copyright; trademark; invasion of privacy violations; data breach; electronic information theft, loss, damage, destruction, alteration or misuse; release of private information; extortion; and, network security. The policy shall provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses, with limits sufficient to respond to these obligations.
(f) Excess Liability Insurance. Excess liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable on behalf of wording as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) “follow form” to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy. (g) Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.

5.2 General Insurance Requirements.
(a) Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Consultant has provided City with insurance certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.

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Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days prior written notice for nonpayment) to City. In the event any of said policies of insurance are amended or cancelled, Consultant shall, five (5) business days prior to the cancellation date, submit new evidence of insurance in conformance with this Agreement to City. (c) Additional Insureds. The commercial general liability policy provided for in Section 5.1(a) and the automobile liability policy provided for in Section 5.1(c) both shall name City and its elected and appointed officers, employees and agents (“City Parties”) as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability, and policies of insurance shall not contain any cross-liability exclusions. (d) Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant’s insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties. None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
(e) Limitations, Self- Insured Retention and Deductibles. Consultant agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which

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Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant’s activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant’s indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention.

Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney’s fees, defense expenses and claims.

5.3 Indemnification.
(a) General Obligations. Consultant agrees, to the full extent permitted by law, to indemnify, defend and hold harmless City and its elected and appointed officers, employees and agents (each an “Indemnitee” and collectively, “Indemnitees”) against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein “Claims or Liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an “Indemnitor” and collectively, “Indemnitors”), or arising from Indemnitors’ reckless or willful misconduct, or arising from Indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitee(s) will reimburse and pay for all costs and expenses, including legal costs and attorneys’ fees, incurred by Indemnitee(s) in connection therewith; and, 2) Consultant will promptly pay any judgment rendered against Indemnitee(s) for any such Claims or Liabilities, and will save and hold Indemnitee(s) harmless therefrom.
(b) Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Consultant and shall survive termination of this Agreement.

Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively “City” for solely this Section 5.3(b)) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct

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of City, Consultant will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct.

Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees and costs of litigation. (c) Professional Liability. When the law establishes a professional standard of care for Consultant’s services, to the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.

ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION

6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (“books and records”) as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles, shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained for a period of three (3) years following completion of the services hereunder. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (“documents and materials”) prepared by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for City.

6.3 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant.

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Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from City or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant immediately gives City notice of such court order or subpoena.

If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Luis Obispo, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.

District Court, venue shall lie exclusively in the Central District of California, in the County of San Luis Obispo, State of California.

7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days’ notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized by City thereafter in accordance with the Schedule of Compensation, or such as may be approved by City, except as provided in Section 7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.

7.3 Default of Consultant and Opportunity to Cure. In the event that Consultant is

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in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement with notice to Consultant as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.

7.4 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.3, take over the work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City therefor.

7.5 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement of this Agreement imposes no additional obligations on

01181.0001/813182.1 -12-
City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

7.7 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

7.8 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

7.9 Attorneys’ Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and a Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, consultants’ fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Consultant written notice describing the conflict.

No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any

01181.0001/813182.1 -13-
State statute or regulation. Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to City Clerk at City of Morro Bay, 595 Harbor Street, Morro Bay, CA 93442, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.

9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.

It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and (consistent with, as amended, Chapter 3.08 of the MBMC) by City.

9.5 Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid

01181.0001/813182.1 -14-
provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.

9.6 No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity.

9.7 Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[SIGNATURES ON FOLLOWING PAGE]

01181.0001/813182.1 A-1

EXHIBIT A

SCOPE OF SERVICES
I. Consultant will perform services described in Consultant’s Proposal attached hereto.

II. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.

01181.0001/813182.1 B-1

EXHIBIT B

SPECIAL REQUIREMENTS
(Superseding Agreement Boilerplate)
None

01181.0001/813182.1 C-1

EXHIBIT C

SCHEDULE OF COMPENSATION
I. Consultant will be compensated for Services provided under this Agreement in accordance with description in Consultant’s Proposal attached hereto.

II. City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.2.

III. The total compensation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.

01181.0001/813182.1 D-1

EXHIBIT D

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services and deliver all work products timely in accordance with a construction and deliverables Schedule of Performance to be developed by Consultant and separate agreement with the Project Construction Contractor within ten (10) days of award of the Construction Contract. The Schedule of Performance shall be in writing, with final approval subject to City’s review and final written approval, which final Schedule shall be incorporated by this reference herein.

Prepared By: ___LS Dept Review: __ DM _
City Manager Review: __YK_____ City Attorney Review: __CFN____ Staff Report
TO: Honorable Mayor and City Council DATE: August 20, 2024 FROM: Lori Thompson, Harbor Business Coordinator
SUBJECT: Adoption of Resolution No. 57-24 Approving Amendment #1 to the Master Lease Agreement with WBAM LLC, Lease Site 30W-33W, Bayfront Marina located at 201 Main Street.

RECOMMENDED ACTION
Adopt Resolution No. 57-24, approving Amendment 1 to the Master Lease Agreement.

ALTERNATIVES
The City Council can elect to not approve the amendment as proposed and/or can propose changes, and direct staff accordingly.

FISCAL IMPACT
None at this time.

BACKGROUND
The Bayfront Marina lease site is one of the City’s water-only leases on the southern waterfront, where the adjacent property is private under fee-simple ownership. Craig and Kathy Shaffer, WBAM, LLC (Tenant) purchased Bayfront Marina in early 2022 and were assigned the Master Lease Agreement.

In the past few months, the City and Tenant have been in negotiations to correct, clarify and amend requirements within the current lease agreement.

DISCUSSION
The following are recommended corrective sections to the lease agreement that are addressed in Amendment 1:

SECTION 2.03 D. Calculation of New Minimum RentDuring a recent CPI adjustment in 2023, staff recognized the standard calculation language was missing from the Master Lease Agreement for lease site 30W-33W in calculating the annual rent increase which is identified in the Harbor Lease Management Policy Master Lease template. The standard language is recommended to be added to the amendment.

SECTION 2.04 A. Percentage RentThe lease’s eastern boundary abuts the Tenant’s private property, where a few of the tenant’s AGENDA NO: 7.h
MEETING DATE: August 27, 2024

buildings are encroaching onto the lease site. It was determined the area of all the buildings are 3,314 square feet. 600 square feet of those buildings are encroaching on the State Tidelands lease site.

Therefor staff proposed Tenant pay the recommended 5% rent on the real estate rental fees multiplied by 18% to cover the 600 feet of encroachment.

SECTION 13.03 TENANT Shall Commit to Clean Marinas Program CertificationAs in the Morro Bay Yacht Club and Morro Bay Marina leases the previous leaseholder agreed to obtaining Clean Marina certification. At that time the deadline committing to the program was 2 years from the date of initiation of the lease. The deadline was not met before the Tenant was assigned the lease. Staff has acknowledged Tenant is in the process to become compliant and has agreed to extend the deadline to December 31, 2025 to ensure compliance with the lease.

SECTION 13.05-
By adding this new section to the lease agreement, Tenant agrees to comply with a City of Morro Bay Fire Safety inspection, and to affirm uses allowed under the lease as well as the State policy of no residential use on Tidelands Trust property.

CONCLUSION
Staff recommends the City Council adopt Resolution No. 57-24, approving Amendment 1 to the Master Lease Agreement.

ATTACHMENTS

1. Resolution No. 57-24

2. Proposed Amendment 1, Lease Site 30W-33W

RESOLUTION NO. 57-24

RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF MORRO BAY, CALIFORNIA
APPROVING AMENDMENT #1 TO THE MASTER LEASE AGREEMENT FOR LEASE SITE 30W-33W, BETWEEN THE CITY OF MORRO BAY AND WBAM, LLC., LOCATED AT 201 MAIN STREET

T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay is the lessor of certain properties on the Morro Bay Waterfront described as City Tidelands leases and properties; and
WHEREAS, WBAM, LLC., a California limited liability company (Tenant) is the current master leaseholder at Lease Site 30W-33W; and
WHEREAS, the City and Tenant agree to amend the Master Lease to incorporate percentage rent for the privately owned buildings within the Tidelands Trust lease boundary, and to conform with the standard new minimum rent calculation method in the Harbor Lease Policy; and WHEREAS, the City and Tenant agree to amend the Master Lease to provide for Clean Marinas Program certification, compliance with a Morro Bay Fire Department safety inspection, and to affirm uses allowed under the lease as well as the State policy of no residential use on Tidelands Trust property.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California, as follows:

1. The attached Amendment #1 to the Master Lease Agreement with WBAM, LLC. for Lease Site 30W/33W is hereby approved.

2. The Mayor is hereby authorized to execute said Agreement.

PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on the 27h day of August 2024 on the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSE:
______________________________
CARLA WIXOM, Mayor
ATTEST:
_____________________________
DANA SWANSON, City Clerk

01181.0001/1008780.1 1 of 2
AMENDMENT #1 TO THE LEASE AGREEMENT FOR
LEASE SITE 30W-33W,
LOCATED AT 201 MAIN STREET
This Amendment ("this Amendment #1") is deemed to have been made and entered into as of 1 st
day of July, 2024, by and among the City of Morro Bay, a municipal corporation of the State of California, whereinafter called "City," and WBAM, LLC., a California limited liability company, hereinafter called "Tenant." (Collectively, City and Tenant are sometimes referred to herein as the "Parties.")
WHEREAS, this Amendment #1 is to that certain Lease, which was signed on behalf of the Parties and is effective as of January 28, 2014, (the "Master Lease"); WHEREAS, the Master Lease for site 30W-33W was assigned to WBAM, LLC, a California limited liability company (hereinafter, referred to as “Assignee”); and WHEREAS, the Parties agree to amend the Master Lease to add percentage rent to include the privately owned buildings in the Tidelands Trust lease boundary lines, as well as to amend the Master Lease to provide for a standard provision for calculation of new minimum rent; and
WHEREAS, the Parties agree to add language to the Master Lease concerning use of privately owned buildings in the Tidelands Trust lease boundary lines, and further provide for Clean Marinas Program certification and compliance with a Morro Bay Fire Department safety inspection.

NOW THEREFORE, Tenant and City agree, as follows: Tenant and City shall provide for the amendment of Lease as follows:

1. SECTION 2.03 D. Calculation of New Minimum Rent: Is hereby amended by adding a last sentence, thereto to read as follows:

The Base Index shall be adjusted upon each Calculation of new Minimum Rent as set out in this section so that the Base Index for CPI adjustment shall be the Consumer Price Index for January 1 of the year of the calculation of new Minimum Rent.

2. SECTION 2.04 A. Percentage Rent: Is hereby amended by replacing in its entirety the paragraph with the following language.

In addition to the Minimum Rent, TENANT agrees to pay to CITY at the time and in the manner hereinafter specified, as additional Rent for the use and occupancy of the Premises, a sum equal to the following for all TENANT'S Gross Sales as hereinafter defined: ten percent (10%) for vessel slip and tie-up fees and five percent (5%) of eighteen percent (18%) of the total income derived from the land based real estate/rental fees generated at the Master Lease for site 30W-33W, less the amount of the Minimum Rent paid pursuant to this Lease (the "Percentage Rent").

3. SECTION 13.03 TENANT Shall Commit to Clean Marinas Program Certification: Is hereby amended thereto to read as follows.

TENANT shall commit to certification under the Clean Marinas Program CleanMarina.org, or equivalent as determined by CITY, at TENANT’s sole cost and expense by December 31, 2025.

01181.0001/1008780.1 2 of 2

4. SECTION 13.05: Is hereby added with the following language.

1. Tenant agrees to no residential use on their Tidelands Trust lease property and affirms that all uses of the Tidelands Trust lease property shall be as provided in section 3.01 including but not limited to common areas which are accessible to all subtenants.

2. Tenant will provide written confirmation of passage of a current safety inspection of their Tidelands Trust lease property to the City in conformance with a City of Morro Bay Fire Safety inspection no later than October 31, 2024.

5. Except as expressly stated herein, all provisions of the Master Lease shall remain in full force and effect.

6. The effective date of this Amendment # 1 shall be deemed to be date first noted above.

IN WITNESS WHEREOF, the parties hereto have executed this Amendment #1 as of the date written above.

CITY OF MORRO BAY WBAM, LLC
a California limited liability company
By: ______________________ By:

Carla Wixom, Mayor Craig Shaffer, Managing Member
APPROVED AS TO FORM:

By:

Kathleen Shaffer, Managing Member
Chris F. Neumeyer, City Attorney
ATTEST:
_____________________________
Dana Swanson, City Clerk

Prepared By: _YK _______ Dept Review: ______
City Manager Review: __ YK______ City Attorney Review: ______ Staff Report
TO: Honorable Mayor and City Council DATE: August 21, 2024 FROM: Yvonne Kimball, City Manager
SUBJECT: Central Coast Community Energy Proposed Amendment to Joint Powers Agreement

RECOMMENDED ACTION
Receive and file.

FISCAL IMPACT
None

BACKGROUND/DISCUSSION
The City of Morro Bay has been a member of Central Coast Community Energy (3CE) since 2018. 3CE is formed through a JPA for the stated purposes of a.) reducing greenhouse gas emissions related to the use of power, b.) providing electric power and other forms of energy to customers at affordable rates, c.) carrying out programs to facilitate electrifying the transportation, public infrastructure, and building sectors, d.) stimulating and sustaining the local economy by lowering electric generation charges and creating local jobs, and e.) promoting long-term electric rate stability and energy security and reliability for residents through local control of electric generation resources (JPA Recitals C., page 2).

Under the current structure, there are 19 members each on the Policy Board and the Operation Board. 3CE is considering reducing the number of members on both boards from 19 to 11. As a result, Morro Bay will likely lose our rotations on both boards which would have taken place January 2025 as we are sharing one seat with the City of San Luis Obispo (SLO). Out of the 7 cities in SLO County, Morro Bay is the only city that has not served on either board. Mayor Wixom wrote a letter to Mayor Stewart at the City SLO to express her support to allow more time for participation in the amendment.

The City Managers group met to discuss the proposed changes. All managers had concerns ranging from regional representation to individual representation. In summary, the managers believe more time would have been ideal to determine how to change the governing structures.

The amendment is slated for a formal vote at 3CE governing board meeting on September

19. Given Morro Bay is not one of the 19 voting members, it is important that we team up AGENDA NO: 7.i
MEETING DATE: August 27, 2024

with other cities and county. Once the change is decided, additional agreements and implementation arrangements are anticipated.

ATTACHMENT(S)

1. August 16, 2024 letter from 3CE regarding proposed amendments to JPA

2. August 21, 2024 letter from Mayor Wixom to City of San Luis Obispo’s Mayor Stewart

3. Link to 2020 3CE Joint Powers Agreement

4. Link to Amended Agreement between the City of San Luis Obispo and City of Morro Bay regarding the shared 3CE Policy Board and Operations Board seats

Prepared By: ___AD_____ Dept Review: _GK___
City Manager Review: _YK___ City Attorney Review: _LNL__ Staff Report
TO: Honorable Mayor and City Council DATE: August 27, 2024 FROM: Cindy Cecil, SE/CE – City Engineer
Austin Della, PE – Senior Civil Engineer
SUBJECT: Award of Contract to Souza Construction for the 2024 Pavement Rehabilitation Project

RECOMMENDED ACTION
Award a contract to Souza Construction (Souza), for the 2024 Pavement Rehabilitation Project for a total of $4,383,595.98, which includes a 10% contingency budget executable by the City Manager.

The City Attorneys’ Office has reviewed the contract with Souza (Attachment 1) as to form, such contract subject to final approval as to form by the City Attorney prior to full execution.

ALTERNATIVE
The City Council may alternatively reject the bid and provide other direction to staff.

FISCAL IMPACT
The recommended action falls within existing project budget and as such, there is no request for additional project budget at this time. The City Council allocated, over the last 3 FY budgets, a total of $5,457,845.00 for a pavement management project made up from the following FY Budgets:

FY Allocation Amount
22-23 $1,737,846.00
23-24 $2,100,000.00
24-25 $1,619,999.00
Total $5,457,845.00
The remaining available funding from these prior year allocations is $5,037,669.

The low bid for construction received by the City was $3,023,108.70. for the base bid. The project includes four bid alternates. The low bidders base and bid alternates are outlined in the table below:

Bid Amount
Base $3,023,108.70
Bid Alternate 1 $137,374.70
Bid Alternate 2 $358,532.60
Bid Alternate 3 $200,584.80
Bid Alternate 4 $265,486.45
Total Base + Alternates $3,985,087.25
AGENDA NO: 9.a
MEETING DATE: August 27, 2024

2 With a recommended 10% contingency of $398,508.50, the total construction budget amount is $4,383,595.98. The total budget for the 2024 Pavement Rehabilitation Project is as follows:

Budget Category Amount
Design $164,130.00
Construction Management
& Materials Testing + 10%
Contingency
$334,936.80
Construction Bid +
Alternates $3,985,087.25
Construction Contingency $398,508.50
Total Recommended
Project Budget $4,882,662.78
Available Funding $5,037,669.00

BACKGROUND
In August of 2023, the City completed its FY 21/22 Annual Pavement Management Program Project, which included digouts throughout the City including Main Street and South Bay boulevard. A slurry project was slated for the FY 22/23 Annual Pavement Management Program Project, but due to the delay of the FY21/22 Annual Pavement Management Program project, the Slurry project was delayed.

Staff has consolidated the FY 22/23, FY 23/24, and FY 24/25 allocated budgets to complete the 2024 Pavement Rehabilitation Project. This project will consist of Slurry Seal, Cape Seal, and digouts, in order to cost-effectively manage the City’s pavement infrastructure.

DISCUSSION
Engineering plans and specifications were created and a notice to bidders posted with a public bid opening conducted on Thursday, August 15, 2024, at City Hall. A report of the bids received, summarizing the detailed proposal of the bidder, can be found in Attachment 1. The City received 3 bids. The lowest bid received is responsive to the City’s Invitation to Bid, and the bidder is well regarded as having successfully completed similar public works projects in the recent past.

Project Data
Low Bid: $3,023,108.70
High Bid: $3,708,186.40
No. Bids Received: 3
Engineer’s Estimate: $4,641,309.06
Bid Opening: 2:00 p.m. on 8/15/2024
Contract Time Allowed: 90 WORKING DAYS
The work shall include, but is not limited to, providing all tools, materials, labor, equipment, and incidentals necessary for the successful rehabilitation of specified roads utilizing a combination of treatments such as slurry seal, cape seal, localized dig-outs, and full rehabilitation techniques according to the prepared plans and specifications. All utilities not replaced will be protected in place including manholes and returned to their prior condition. The work will also include any required traffic control, signage, public notifications, stormwater control, formwork, and all other work necessary to render the infrastructure/facility complete and operational, as shown on the Project Plans and Specifications.

3 IMPACT TO THE COMMUNITY
The work is being performed throughout the City. Motorists, cyclists, and the walking public may experience inconveniences during the project’s construction due to temporary closures of streets, traffic lanes, the presence of the construction equipment, and traffic control efforts. Project rollout will include public notification and temporary "No Parking" signs as applicable. These efforts are intended to allow residents to prepare for the project impacts by adjusting their routes of travel and/or schedules during construction work. The community should note that both the Slurry and Cape seal operations will keep some segments of roads closed for the whole day.

ATTACHMENTS

1. Form of Agreement for Services

Prepared By: _AS_________ Dept Review: ______________
City Manager Review: __YK_______ City Attorney Review: ___LNL___

Staff Report
TO: Honorable Mayor and City Council DATE: August 20, 2024 FROM: Airlin Singewald, Community Development Director

SUBJECT: Authorization to Submit a Grant Application for California Coastal Commission (CCC) Local Coastal Program (LCP) Local Assistant Grant Program Funding and Increase Grant Budget for the Waterfront Master Plan Update

RECOMMENDED ACTION
Adopt Resolution No. 58-24 authorizing staff to submit a grant application for California Coastal Commission (CCC) LCP Local Assistance Grant Program to fund the update of the City’s 1996 Waterfront Master Plan in the amount of $750,000. This is a $250,000 increase to the amount ($500,000) authorized by the City Council for the same grant application on September 26, 2023.

ALTERNATIVES
A. Direct staff to discontinue application for the Coastal Commission Grant.

B. Decrease amount of grant request or provide other direction to staff regarding funding strategy.

FISCAL IMPACT
Should the City be successful in obtaining grant funding, the funds received would pay for consultant services, with staff time spent working on the Waterfront Master Plan (WMP) update to be paid from the City’s General Fund portion of the budget. No cash match is required in order to apply for the grant.

SUMMARY
The purpose of this item is to increase the budget of the City’s previously authorized LCP amendment grant application for the Waterfront Master Plan Update from $500,000 to $750,000 to fund a parking relocation plan, a comprehensive vision for Embarcadero pedestrian plazas, and robust public outreach. While the cover page of the attached application packet states the grant maximum is $500,000, Coastal Commission staff confirmed that higher amounts will be considered.

AGENDA NO: 9.b
MEETING DATE: August 27, 2024

BACKGROUND/DISCUSSION
Waterfront Master Plan Update
Plan Morro Bay Policy LU-8.1 calls for an update to the City’s Waterfront Master Plan with a focus on addressing issues of sea level rise and future planning for Morro Rock.

On September 26, 2023, the City Council voted unanimously to authorize the Community Development Director to submit a grant application to the California Coastal Commission to fund the update of the City’s Waterfront Master Plan in the amount of $500,000.

Adopted in 1996 and certified by the Coastal Commission in 1997, the City’s Waterfront Master Plan establishes a vision, design guidelines, and standards for public and private land uses and development on the Embarcadero. The plan also contains important background and historical information about the waterfront, which provides applicants, staff, the public, and decision-makers with context for land use planning decisions on the waterfront. The current Waterfront Master Plan boundary area includes the waterfront area from the north at Little Morro Creek and Morro Rock to the T-Piers/ Fishermen Working Area, to Embarcadero Visitor Area, and extending south to Tidelands Park which is characterized by the natural features of the bluff, sandspit, recreation/park use and the public boat launch and ramp area.

The proposed Waterfront Master Plan Update would involve significant public engagement to revisit the community’s vision for the waterfront, preparation of technical studies, and updated design guidelines and standards for development along the waterfront. Per Council direction on September 26, 2023, the update would expand the area covered by the Waterfront Master Plan to include both sides of the Embarcadero from Tidelands Park to the pedestrian bridge across Morro Creek, the old wastewater treatment plant property (pending discussions with the Cayucos Sanitary District), and offshore wind.

Because the grant funding requires a sea level rise adaptation planning component, the WMP update would also include a new chapter to address these grant funding components, as well as update the existing document. This is consistent with multiple LCP Policies including LU-8.2 which addresses planning for Morro Rock and to incorporate sea level rise projections and an updated coastal hazard vulnerability assessment; Policy LU-8.7 which requires relocation of underdeck utilities, decks, piers, etc. in the Embarcadero area to a location above the sea level rise zone; and Policy LU-8.12 which requires the City to continue to gather information the effects of sea level rise and other coastal hazards on Morro Bay’s shoreline.

The purpose of this item is to increase the LCP grant application budget from $500,000 to $750,000 to expand the scope of work to include a parking relocation plan that addresses the redevelopment of existing street-end parking lots west of the Embarcadero with pedestrian-oriented plazas as required by the City’s General Plan / Local Coastal Plan:

Morro Bay General Plan / LCP Policy CIR-2.2: Street End Pedestrian Connections. Create safer and more distinct lateral access connections across the street ends on the west side of the Embarcadero and Dunes, Harbor, Morro Bay Boulevard, Front, Pacific, Marina, and Driftwood Streets including by relocating parking from these areas (See also Policies LU-4.1, LU-4.5, LU4.6, LU-7.1 through LU-7.6, and OS-1.6 and Implementation Action LU-19).

In addition to a parking relocation plan, the additional budget would fund a comprehensive vision for the design of the street-end plazas and other public spaces along the Embarcadero. The additional budget would also allow for robust public outreach during the update process.