Agenda packet — Oakley City Council, April 23, 2024 (part 1 of 2)

AGENDA

REGULAR JOINT MEETING OF THE OAKLEY CITY COUNCIL/OAKLEY CITY

COUNCIL ACTING AS THE SUCCESSOR AGENCY TO THE OAKLEY

REDEVELOPMENT AGENCY AND SPECIAL MEETING OF THE OAKLEY

PUBLIC FINANCING AUTHORITY
Tuesday, April 23, 2024
6:30 PM
Oakley City Council Chambers located at 3231 Main Street, Oakley, California 94561.

Unless stated otherwise on the agenda, every item on the agenda is exempt from CEQA Guidelines Sections 15060(c), 15061(b)(3), 15273, 15378, 15301, 15323 and/or Public Resources Code Section 21065.

MISSION STATEMENT: The City of Oakley will create a resilient future that fosters and attracts a vibrant and evolving community that welcomes and values all people.

VISION STATEMENT: The City of Oakley celebrates our unique Delta lifestyle and small-town feel where we Live in a safe, dynamic community, Work together to build the future, and Play in our own backyard.

Agendas are posted in Oakley at Oakley City Hall-3231 Main Street, outside the gym at Delta Vista Middle School-4901 Frank Hengel Way and outside the Library at Freedom High School-1050 Neroly Road.

Agendas are also posted on the City’s Internet Website www.ci.oakley.ca.us.

A complete packet of information containing staff reports and exhibits related to each item is available for public review prior to an Oakley City Council and/or City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority meeting at Oakley City Hall, 3231 Main Street, Oakley, CA 94561. Any writings or documents provided to a majority of the Oakley City Council, Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency or Oakley Public Financing Authority regarding any item on this agenda will be made available for public inspection, during regular business hours, at the front counter in the Main Lobby of the Oakley City Hall located at 3231 Main Street, Oakley, CA 94561. Agendas may be picked up at the Oakley City Hall located at 3231 Main Street, Oakley, CA 94561 for no charge. To request information regarding placement on the City’s agenda e-mail distribution list, please contact us at (925) 625-7000.

The City of Oakley provides social media options to stay connected to City Hall through Facebook, Twitter, Next Door and Instagram. Other opportunities to connect with City Hall include Engage In Oakley, Oakley OnDemand on the City's website, and by emailing [email protected]. 1 If you have a physically challenging condition and require special accommodations, please call the City Clerk’s office at (925) 625-7000.

Please keep cell phones/electronic devices turned off during the meeting. Please be advised that City Council meetings are video recorded and attendees may appear on video.

Information Regarding Public Comment
Members of the public may address the Council on items of interest that are within the City’s jurisdiction. In compliance with State law, the council may not take actionor have discussion on any item that is not specifically listed on the agenda. Public comment on items not listed on the agenda will be heard under the Public Comments section of the agenda. Public comments on items listed on the agenda will be heard as the Mayor calls the items. In compliance with State law, the Council may not take action on an item that is not specifically listed on the agenda. If you would like to speak on any agenda item, please fill out a public speaker card available in the lobby and submit it to the City Clerk seated in the Council Chamber prior to the agenda item being called. The Mayor will call you by name to the podium to hear your comment.

PUBLIC COMMENTS ARE LIMITED TO THREE (3) MINUTES. Online public comments are accepted until 5 p.m. the day of the meeting and can be submitted at
https://www.ci.oakley.ca.us/online-public-comment-card/.

1.OPENING MATTERS

1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority

1.2 Pledge of Allegiance to the Flag

1.3 Update from Liberty Union High School District Superintendent (Eric Volta) and Oakley Union Elementary School District Superintendent (Jeff Palmquist)

1.4 Proclamation Recognizing May 5-11, 2024 as Municipal Clerks Week (Libby Vreonis, City Clerk)
Proclamation

2.PUBLIC COMMENTS
At this time, the public is permitted to address the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority on non-agendized items.

3.COUNCILMEMBER COMMENTS
2 4.CONSENT CALENDAR
Consent Calendar items are typically non-controversial in nature and are considered for approval by the Oakley City Council/ Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority with one single action. Members of the audience, Staff or the Oakley City Council/ Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority who would like an item removed from the Consent Calendar for purposes of public input may request the Mayor remove the item. The public may request to remove an item(s) to provide input by completing a public speaker card and submitting it to the City Clerk prior to the item(s) being called by the Mayor.

4.1 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency/Public Financing Authority Meeting held April 9, 2024 (Libby Vreonis, City Clerk)
Minutes 04-09-24

4.2 Accept Report Out of Closed Session Memo (Derek Cole, City Attorney) Memo

4.3 Adopt a Resolution Authorizing the City Manager to Execute an Agreement for monthly Security Camera Services with KB Security Kams, Inc. for Fiscal Years (FY) 2024/25 and 2025/26 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Proposal

4.4 (Continued from April 9, 2024) Adopt a Resolution Accepting a Grant Deed Conveying to the City of Oakley Certain Real Property Interests (portions of APN 034-090-022, located at Laurel Road and O’Hara Avenue) (Derek Cole, City Attorney)
Staff Report

1. Proposed Resolution Accepting Real Property

4.5 Adopt a Resolution Approving the Contract and Grant of Transmission Line Easement for a portion of Laurel Road to Western Area Power Administration (WAPA) to Relocate Electric Utility Poles to accommodate the Laurel Road Widening Project – Capital Improvement Project Number 280 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution
3 2. Easement Plat and Legal Document

4.6 Adopt a Resolution Authorizing the City Manager to execute an agreement with TJKM Transportation Consultants, to provide contract traffic engineering services for the City of Oakley on an on-call basis for Fiscal Years (FY) 2024/25 and 2025/26 (Kevin Rohani, P.E., Public Works Director/City Engineer) Staff Report

1. Resolution

2. TJKM Proposal

4.7 Adopt a Resolution for Award of a contract to Waterworks Industries, Inc. for Lake, Aeration Fountain, Pump Station, Generator Maintenance and Overhead Crane Inspection Services at Cypress Grove Subdivision, Emerson Ranch Subdivision, Delaney Park Subdivision, Prescott Subdivision, Bridgehead Rd, City Hall, Recreation Center and Oakley Plaza for Fiscal Year FY 2024/25 and 2025/26 (Kevin Rohani, P.E., Public Works Director/City Engineer) Staff Report

1. Resolution

2. Waterworks Proposal

4.8 Adopt a Resolution Authorizing the Purchase and Installation of Four New Firewalls (Danielle Navarro, Assistant City Manager and Robert Barker, IT Manager)
Staff Report

1. Proposed Resolution

2. Firewalls Quote

4.9 Adopt a Resolution Authorizing the City Manager to Execute a Professional Services Contract with Keep IT Simple for Information Technology Services for FY 2024/25 (Danielle Navarro, Assistant City Manager)
Staff Report

1. Proposed Resolution

2. Unsolicited Proposal and Statement of Work for It Support from KIS

4.10 Adopt a Resolution Authorizing the Purchase and Installation of a New Storage Area Network and Appropriation of $105,538 from the ARPA Fund in FY 2023/2024 (Robert Barker, IT Manager)
Staff Report

1. Proposed Resolution

2. Storage Area Network Equipment Quotes
4 4.11 Adopt a Resolution authorizing the City Manager to Execute a Purchase and Sale Agreement with KB Home North Bay for the sale of the real property containing approximately 27.0-acres, located at the northeast corner of East Cypress Road and Knightsen Avenue (APN 032-081-025) (Joshua McMurray, City Manager)
Staff Report
Site Map
Draft Resolution
Draft Purchase and Sale Agreement

4.12 Adopt a Resolution Approving the Agreement with McDonald’s USA, LLC (APN 035-510-006) for “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for DR 09-20 McDonald’s Restaurant Project Located at 1060 Laurel Plaza and Authorizing the City Manager to Execute the Agreement (Kevin Rohani, P.E., Public Works Director/City Engineer) Staff Report

1. Resolution

2. Stormwater Agreement

4.13 Adopt a Resolution Approving the Agreement with McDonald’s USA, LLC for “Agreement of Property Owner for Provision of Landscaping in the Public Right of Way” for DR 09-20 McDonald’s Restaurant Project Located at 1060 Laurel Road and Authorizing the City Manager for Execute the Agreement (Kevin Rohani, P.E., Public Works Director/City Engineer)
Staff Report

1. Resolution

2. Vicinity Map

3. Landscaping Agreement

4.14 Approve the City of Oakley Website Design, Hosting, Implementation & Maintenance Support Services Request for Proposal (RFP) and Authorize the Release of the RFP (Danielle Navarro, Assistant City Manager) Staff Report

1. Request for Proposal (RFP)

5.PUBLIC HEARINGS

6.REGULAR CALENDAR

6.1 Annual Report of Military Equipment Usage - 2023 (Paul Beard, Chief of Police) 5 Staff Report

1. Oakley Police Department 2023 Annual Military Equipment Report

2. Oakley Police Department Policies Regarding Military Equipment

6.2 Waive the First Reading and Introduce an Ordinance Amending Section 2.1.010 of the Oakley Municipal Code Concerning the Use of Social Media by Members of the City Council (Derek Cole, City Attorney)
Staff Report

1. Ordinance

7.REPORTS

7.1 CITY MANAGER
(a) City Manager
(b) Report from the Oaks Apartments
(c) Legislation Update
(b) The Oaks Update
(c) AB 1657 (Wicks) Bill Analysis
(c) AB 1033 (Ting) Bill Analysis

7.2 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE

8.WORK SESSION

9.CLOSED SESSIONS

9.1 PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Pursuant to Government Code Section 54954.5(e)
Title: City Manager

10.ADJOURN
6 7
Proclamation
55th Annual Professional Municipal Clerks Week
May 5-11, 2024
WHEREAS, The Office of the Professional Municipal Clerk, a time honored and vital part of local government exists throughout the world, and
WHEREAS, The Office of the Professional Municipal Clerk is the oldest among public servants, and WHEREAS, The Office of the Professional Municipal Clerk provides the professional link between the citizens, the local governing bodies and agencies of government at other levels, and WHEREAS, Professional Municipal Clerks have pledged to be ever mindful of their neutrality and impartiality, rendering equal service to all, and
WHEREAS, The Professional Municipal Clerk serves as the information center on functions of local government and community, and
WHEREAS, Professional Municipal Clerks continually strive to improve the administration of the affairs of the Office of the Professional Municipal Clerk through participation in education programs, seminars, workshops and the annual meetings of their state, provincial, county and international professional organizations, and WHEREAS, It is most appropriate that we recognize the accomplishments of the Office of the Professional Municipal Clerk.

NOW, THEREFORE, BE IT RESOLVED, that I, Anissa Williams, Mayor of the City of Oakley along with the members of the Oakley City Council, do recognize the week of May 5 through 11, 2024 as Professional Municipal Clerks Week and further extend appreciation to our Professional Municipal Clerk, and to all Professional Municipal Clerks for the vital services they perform and their exemplary dedication to the communities they represent.

April 23, 2024
___________________
Anissa Williams, Mayor
8 Minutes of the Regular Joint Meeting of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority held April 9, 2024
1) OPENING MATTERS

1.1 Call to Order and Roll Call of the Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency/Oakley Public Financing Authority
Mayor Anissa Williams called the meeting to order at 6:30 p.m. Vice Mayor Shannon Shaw and Councilmembers Hugh Henderson and Aaron Meadows were in attendance.

Councilmember Dr. George Fuller joined via teleconference.

Mayor Williams announced that Dr. Fuller was joining from the Hilton Garden Inn Philadelphia Center City Room 973, 1100 Arch Street, Philadelphia, PA 19107.

1.2 Pledge of Allegiance to the Flag (Daniel Adair, Delta Vista Middle School Student)
Daniel Adair led the Pledge of Allegiance to the Flag.

1.3 Proclamation Recognizing April 7-13, 2024, as National Library Week and Update from Oakley Library Manager Lisa Cano-Loomis
Mayor Williams presented the proclamation to Oakley Library Manager Lisa CanoLoomis. Ms. Cano-Loomis provided a PowerPoint presentation regarding the library including National Library Week, circulation, e-book checkouts, library visits, most popular books in 2023, Rolling Reader, CareersOnline High School, Library Foundation of Contra Costa, Bookmark Art contest winners, STEAMUp Spring Break, Sterling the Bubblesmith, Rockets Away, sensory playtime/neurodiversity, and how a larger library would provide welcoming and safe community space, space for children, space for teens, meeting rooms, study rooms, Friends of the Oakley Library space, and endless possibilities.

Councilmember Meadows inquired what is located on the wall in slide 14. 9 Ms. Cano-Loomis mentioned she believes it is the donor wall at the Pleasant Hill Library.

Councilmember Meadows mentioned he pointed out the wall because that is what it will take to have a new Oakley Library.

Dr. Fuller thanked her for her presentation and mentioned he looks forward to working with her. He mentioned he likes the diagram of the proposed Library on the City’s webpage; it is something they can begin envisioning.
2) PUBLIC COMMENTS
Mayor Williams mentioned there was one online public comment submitted and it will be made part of the meeting record. The comment was submitted by Julie P. She inquired what could be done regarding homeless tents off Laurel and the freeway.

Dr. Richard Brophy shared that he has been a resident since 1992, and last month, he provided irrefutable evidence of the unconscionable burden brought on our country by illegal immigration. He mentioned the statistics are not of a political affiliation; they are from the federal government. He also mentioned that illegal aliens are drawn to sanctuary cities, are allowed to place an unconscionable burden on taxpayers, and are committing crimes at a disproportionate percentage related to the population. He mentioned if you turn on the television, you’ll see an attack on a citizen or even a law enforcement officer because they have no regard for our laws, not all of them, but enough of them where we need to be concerned. He mentioned that today, 125,000 illegals were transported to San Diego. He shared that he was once a trustee for a church, and he always inquired how they are going to pay for it, and here they are not; they are going to have to raise taxes in an already highly taxed state. He requested until they can remove, via the ballot box, those who have a cavalier approach to enforcing our laws, we’re basically on our own. He mentioned Oakley is not a sanctuary city and he is requesting the City Council make a public proclamation reaffirming that it is not a sanctuary city and immediately amend the City’s website homepage to show that it is not a sanctuary city; it is a city that obeys the law. He provided data for the Council and the oath of office and asked the Council to review the oath and make a public vote on the issue so they can see who takes the oath seriously.

Bud Chaddock mentioned it is now spring and, in the fall, the salmon will spawn again.

He shared that by his calculations, he estimates at least 1,000 salmon were poached from the creek this past year, indicating that he is walking the area to see it. He mentioned it is very serious, as there is not going to be a commercial sport season once again, and there are a lot of people affected by it. He thanked Mayor Williams for reaching out to him, looking up data and doing footwork, as it is more serious than people realize and it is allowing extinction to happen, but there have been a few people getting together on it. He mentioned that Dr. Fuller made comments on it earlier and Mayor Williams has done homework on it that justifies doing something more than they are doing; indicating not one citation has been issued. He mentioned since all the beautiful work has been done in the creek to connect with the Delta again to allow for proper spawning again; to let it go for not is not the right direction to go in. He shared 10 that September/October/November will be paramount in patrolling it and fines should be handed out, for possession alone, especially because people are out of work because of it and are losing their businesses and boats from it, people that make good money from it and do it right, in a lawful way.
3) COUNCILMEMBER COMMENTS
Councilmember Meadows asked Mr. Chaddock to follow up with him where Fish & Game is in this matter.

Dr. Fuller commented on the public comment submitted reporting the encampment on the Laurel overpass. He shared that he recently asked City Manager Joshua McMurray about it, and Mr. McMurray reminded him it is the City of Antioch’s area and their responsibility. He shared that he is presenting at the AERA (American Education Research Association) conference, and the City of Pittsburgh has a reputation as the most accessible city for disabled persons with the City of Philadelphia right behind them. He mentioned in being a disabled person, they are very welcoming and accessible.

Mayor Williams commented that recently Governor Newsom reported on the record level snowpack; however, that water is still a huge issue for California. She mentioned he has released many articles on the topic and has indicated in them that he vows to bring back the Delta Conveyance Project in his Water Plan. 4) CONSENT CALENDAR

4.1 Approve Minutes of the Special Meeting of the Oakley City Council held February 24, 2024 (Libby Vreonis, City Clerk)
Mayor Williams mentioned that staff has requested to pull item 4.4. She inquired if there is a date certain to which it is being continued.

City Attorney Derek Cole mentioned they hope to bring it back at the next meeting.

Item 4.1 was pulled by Vice Mayor Shaw.

Item 4.2 was pulled by Dr. Fuller.

Item 4.6 was pulled by Mayor Williams.

It was moved by Councilmember Meadows and seconded by Councilmember Henderson to approve the remainder of the Consent Calendar. The City Clerk conducted a roll call vote. Motion was unanimous and so ordered. (5-0) Item 4.1
Vice Mayor Shaw commented that she reviewed the proposed changes and went back to watch the video where some of the changes were suggested, and she is noticing that 11 some of the proposed changes are beyond what was said at the last meeting. She mentioned that she has no problem changing the spelling of David Wall's last name to Wahl. She added that she believes the minutes were as detailed as they could have been and one of the comments made during the last meeting was, “I meant to say”, which she believes is a slippery slope to do down because they all get up there and say things, and what they meant to say maybe didn’t come out that way, and if they keep going back to what was meant to be said or what they were referencing, it is a problem for her, and they talked about changing minutes before, and she is not supporting any other changes.

Mayor Williams inquired if they could move this item to keep the original minutes without other changes except for the correct spelling of David Wahl’s last name.

Ms. Vreonis responded that she believes the Council could do that, rejecting all other changes other than David Wahl.

Dr. Fuller asked for it to be explained.

City Attorney Derek Cole mentioned their options would be if it is the pleasure of the Council to approve the minutes with the amendments shown in red, the motion would be to move the minutes as amended; if it is the Council’s pleasure to approve the minutes as previously presented at the last meeting, the motion would be to approve the minutes without the changes shown in red; a third option is if there is a change the Council accepts, which is the gentleman’s name, the Council can make a motion to approve the minutes as originally drafted without the changes, except for the gentleman’s name.

Dr. Fuller commented that he believes the minutes should be detailed and correct. He shared that that he was asked to put his words in writing which he did, and no one asked for word for word verbatim. He mentioned it is a good summary and is accurate; to not include it would be a disservice to the community; they rely on the minutes; and when they need corrections, they need to be corrected. He mentioned he has seen it go on for 2-3 meetings now and he has seen where it has been said that he didn’t do it right so we won’t vote on it now and we won’t go back and change the minutes because whatever they say the first time is good enough and he would oppose any of that.

Dr. Fuller moved to approve the minutes as amended. The motion died for lack of second.

It was moved by Vice Mayor Shaw and seconded by Mayor Williams to approve the original minutes except for amending David Wall to reflect David Wahl.

The City Clerk conducted a roll call vote. The item was approved. AYES: Henderson, Meadows, Shaw, Williams. NOES: Fuller (with the caveat that the proposed amendments be attached to these minutes). (4-1)
12 Item 4.2
Dr. Fuller mentioned that the “Randall-Bold Water Treatment Plant” should replace “Ironhouse Sanitary District” on page 3 of the minutes where he provided Councilmember comments. He moved to approve the item with this amendment.

Councilmember Meadows commented that the Council had a joint meeting with Ironhouse Sanitary District and Diablo Water District at Big Break Regional Park. He mentioned Randall-Bold is the water treatment plant off Neroly.

Mayor Williams mentioned she believes Randall-Bold was brought up during Council reports as part of what happened at the Diablo Water District meeting, but she does not see it here.

Dr. Fuller’s motion died for lack of a second.

It was moved by Councilmember Meadows and seconded by Vice Mayor Shaw to approve the minute as presented. The City Clerk conducted a roll call vote. AYES:

Henderson, Meadows, Shaw, Williams. NOES: Fuller. The item was approved. (4-1) Item 4.6
Mayor Williams mentioned she pulled the item so the public can hear all the projects and the report in case they are not able to look through the agenda packet. She asked if staff could provide an overview of all the great work happening and that still to come.

Public Works Director/City Engineer Kevin Rohani provided highlights of his report, including feature projects at East Cypress Road and Laurel Road. He mentioned he will have a report on Laurel Road later on the agenda. He mentioned that construction for the East Cypress Road project will occur in the next 2-3 years from Knightsen Avenue in an eastward direction to Bethel Island Road and will include 4 lanes, a median, sidewalks, curb, gutter, underground drainage systems, and traffic signals. He mentioned parts of it have already been designed, awarded, contracted and other parts are under design. He mentioned the other important project is Laurel Road near the O’Hara Avenue intersection. He explained they have been working for several years to obtain the right-of-way and it is now under design. He mentioned it involves moving big WAPA utility poles which WAPA will be relocating over the next 2-3 months, and he will present a contract for construction in July which he hopes, if approved, they may begin construction in August. He explained that the construction will complete the road from O’Hara Avenue to Cloverbrook Avenue and also O’Hara Avenue from Laurel Road south to the end of the Del Barba vineyard. He added that the benefit and timing of the project is important as the Safeway shopping center project and this project will complement each other. He mentioned the Safeway project will start its offsite work by August/September so by end of summer next year, the offsite work on Laurel Road and O’Hara Avenue will include a traffic signal and there will be major improvement. He 13 mentioned just as important as these projects, it is also important for the City to replace and repair damaged concrete and the City offers a cost-share program to share the cost with property owners. He mentioned that project is under construction now and staff will bring an acceptance report to the Council in May. He mentioned other small projects that are just as important such as the traffic calming project, continuing traffic signal modernization, and an award for the Enrico Cinquini Park.

It was moved by Mayor Williams and seconded by Vice Mayor Shaw to accept the report. The City Clerk conducted a roll call vote. Motion was unanimous and so ordered. (5-0)

4.2 Approve Minutes from the Regular Joint City Council/City Council Acting as the Successor Agency to the Redevelopment Agency and Special Public Financing Authority Meeting held March 26, 2024 (Libby Vreonis, City Clerk)

4.3 Accept Report Out of Closed Session Memo (Derek Cole, City Attorney)

4.4 Adopt a Resolution Accepting a Grant Deed Conveying to the City of Oakley Certain Real Property Interests (portions of APN 034-090-022, located at Laurel Road and O’Hara Avenue) (Derek Cole, City Attorney)

4.5 Adopt a Resolution Accepting as complete the work associated with Capital Improvement Project Number 249-Recreation Center Emergency Generator Project (Kevin Rohani, P.E., Public Works Director/City Engineer)

4.6 Accept the Fiscal Year (FY) 2023/24 Third Quarter Report on the Capital Improvement Program (Kevin Rohani, P.E., Public Works Director/City Engineer)

4.7 Adopt a Resolution Authorizing the City Manager to execute a Consulting Services Agreement with Francisco & Associates, Inc. for preparation of professional special Police Tax Services (P6), Community Facility District (CFD), Lighting and Landscape Assessment District (LLAD), and Common Area Maintenance (CAM) for FY 2024/25 and FY 2025/26 (Kevin Rohani, P.E., Public Works Director/City Engineer)

4.8 Adopt a Resolution Approving a Subdivision Improvement Agreement and Final Map for Machado Property Subdivision 9615 located at the southwest corner of East Cypress Road and Machado Lane (Kevin Rohani, P.E., Public Works Director/City Engineer)

4.9 Adopt a Resolution Awarding a Construction Contract to K&K JL Services, Inc. for the construction of the Public Works Operations Building Remodeling Project, Capital Improvement Project Number 303 (Kevin Rohani, P.E., Public Works Director/City Engineer)
14 4.10 Adopt a Resolution Appointing a Representative to the Contra Costa County Advisory Council on Aging for a Two-Year Term (Libby Vreonis, City Clerk)
5) PUBLIC HEARINGS
Mayor Williams announced there are no public hearing items. 6) REGULAR CALENDAR

6.1 Approve a Letter of Support for Senate Bill 1034 (SB 1034) regarding a California Public Record Act response extension during a declared State of Emergency (Libby Vreonis, City Clerk)
City Clerk Libby Vreonis presented the staff report.

There were no public comments.

Dr. Fuller requested the letter be amended to include that the state incur the cost of the City Clerk’s Office to retrieve records in response to Public Records Act requests as it is a state mandated program for the Clerk to retrieve records at the local level. He motioned to approve the letter with this amendment. The motion died for lack of a second.

It was moved by Vice Mayor Shaw and seconded by Councilmember Henderson to approve the letter of support as presented. The City Clerk conducted a roll call vote.

Motion was unanimous and so ordered. (5-0)

6.2 Adopt a Resolution Approving the Design and Construction Agreement with Contra Costa Water District for the Canal Undergrounding Project Segment 5A on East Cypress Road at Jersey Island Road associated with Capital Improvement Project (CIP) Number 310 (Kevin Rohani, P.E., Public Works Director/City Engineer)
Public Works Director/City Engineer Kevin Rohani presented the staff report.

Mayor Williams inquired if road completion would be able to happen without undergrounding of the canal.

Mr. Rohani mentioned that it can, but not really because the canal still needs to be addressed. He explained that this is the only section not undergrounded at the Cypress overcrossing; pipes are undergrounded north and south and now they have to close the gap, install pipes, and put the roadway on top.

There were no public comments.
15 It was moved by Councilmember Meadows and seconded by Councilmember Henderson to approve the item. The City Clerk conducted a roll call vote. Motion was unanimous and so ordered. (5-0)
7) REPORTS

7.1 CITY MANAGER
(a) City Manager
City Manager Joshua McMurray announced that Art in the Park will be held Saturday, 10am-1:00 pm, and if it rains, the Recreation Division has an alternative. He also announced that on May 4, the City will host the City’s 25th Anniversary Party at Civic Center Plaza, 4:00pm-10:00pm. He reported that the second Library Stakeholders’ meeting was held last week, and progress is being made. He mentioned the City’s website homepage has been updated to include information regarding the envisioned library with a link to the Friends of Oakley Library website that has information regarding the project, and the Friends have kickstarted their fundraising effort. (b) Business License Update
Mr. McMurray mentioned the business license report for March was included with the agenda packet.

7.2 OAKLEY CITY COUNCIL/OAKLEY CITY COUNCIL ACTING AS THE

SUCCESSOR AGENCY TO THE OAKLEY REDEVELOPMENT AGENCY
(a) Reports from Council Liaisons to Regional Committees, Commissions and Boards AND Oakley City Council/Oakley City Council Acting as the Successor Agency to the Oakley Redevelopment Agency
Councilmember Meadows reported he attended the Contra Costa Transportation Authority Planning Committee meeting last Thursday where the WETA (Water Emergency Transportation Authority) Ferry Service was discussed, including 4 proposed locations, two in Hercules and two in Pittsburg/Antioch, but not all four will go.

Vice Mayor Shaw reported she attended the Tri-Delta Transit meeting, the Library subcommittee meeting, and the ribbon cutting at Willy’s Bagels last Friday.

Councilmember Henderson reported he attended the Ironhouse Sanitary District meeting on April 2 and they are working on public education which we will see more of in the community. He also reported he attended the Contra Costa County Needs for Affordable Housing and Homelessness consortium held in Brentwood on April 4, the ribbon cutting for Willy’s Bagels on April 5 and it is exciting to have that new business in town, and Friday Night Bites where the weather was a little cold.

Dr. Fuller reported ABAG/BAHFA/others are in full force to get the $20 billion regional affordable housing bond issue on the November ballot and the next report will be August 2nd. He mentioned he will have more on this when he returns. He also 16 mentioned one of the most disturbing aspects is that they seem to have a bouncing ball; they don’t have a set $10 billion or $20 billion but are going forth with a regional approach which for 9 counties, will impact residents’ property tax. He also reported that AB 1657 (Wicks) is going along fine, and she is taking the lead for democrats with affordable housing, and she is now toying with more measures to come which is a little frightening because Mayor Arreguin from Berkeley who is endorsed by The Chronicle and East Bay Times will join on the other side of the State Senate floor. He mentioned he will provide more details at the next meeting.

Mayor Williams reported she attended the Tri-Delta Transit meeting where SB 1031 (Weiner/Wahab) was discussed and could appear in 2026. She mentioned it is being driven by MTC to regionalize transportation but for those familiar with Tri-Delta Transit, it started because centralized transportation didn’t meet needs in our area. She shared that MTC is analyzing different things; it could choose to do a sales tax, a road toll, or other means to raise funds, including bond measures. She explained that the bill would give MTC control over state funds that could be allocated toward the urban core, even if a bond measure were not approved by voters. She mentioned Tri-Delta and others are opposing it because it takes control away from the voters where the money is going to be spent. She shared that two Tri-Delta Transit drivers were awarded for safe driving involving accidents or near accidents. She reported that she also attended the Library Stakeholders’ meeting and Mayors Conference. She mentioned that at the Mayors Conference, a presentation was provided regarding stormwater funding options and there is a Municipal Regional Stormwater Permit which is issued every 5 years, it becomes more costly and stringent each time it is issued, and every city in Contra Costa County is a co-permittee except for Richmond and Brentwood. She explained that when the permit was first issued it had 10 provisions and there are now 21 provisions. She mentioned that the speakers discussed impacts to municipalities of the new provisions, one being unsheltered homeless populations and that municipalities are required to provide a map where those populations are located and create plans for stormwater runoff. She explained that becomes complicated when they have shared jurisdiction with CalTrans, Diablo Water District, etc. She mentioned starting in July, cities will need to document implementation costs and there is a $45 million deficit from these unfunded mandates, so cities and counties need a way to fund it and are reviewing funding options, the deficit can only be expected to increase, and they can potentially be exposed to third party lawsuits due to non-compliance. She shared that CalTrans was issued a cease-and-desist order by the Water Board because of trash on the roadways that causes stormwater issues. She also reported she was appointed to the Delta Protection Commission. She mentioned they offered an endorsement to continue the Library Commission which she moved, and it passed unanimously. She mentioned they also heard about CCTA (Contra Costa Transportation Authority) for receiving a Legacy Award for innovation, She mentioned that on Earth Day there will be a vegetation management event at Big Break 10am-12pm. She mentioned that they also received a report on ABAG and April 18 is the next big vote for BAHFA. (b) Requests for Future Agendas
Dr. Fuller requested staff draft a letter to the Department of Fish & Wildlife to provide notice of salmon poaching in our area. He mentioned it is his understanding that the 17 Contra Costa County Sheriff has jurisdiction over the rivers as well as the U.S. Coast Guard and requested the letter also be sent to them.

Mayor Williams inquired if that would need to be a work session or if it is possible to draft the letter and bring it back.

City Manager Joshua McMurray mentioned staff has enough information to propose a draft letter and ask for it to be approved or modified and sent.

Dr. Fuller agreed and inquired if staff could research the San Joaquin/Sacramento Rivers and adjoining waterways to see if they can address all three agencies he mentioned.

Mr. McMurray confirmed staff can do that.

Mayor Williams supported it.

Councilmember Henderson suggested East Bay Regional Parks District also be included because he believes it has jurisdiction over the pathway.

Dr. Fuller agreed with that.

Dr. Fuller also requested a draft letter to the state legislature to revoke or rescind Proposition 47 to address when someone steals something, they get time in County jail, but County jails don’t have enough space and do not get reimbursed from the state so really no time is being served for things such as retail theft, burglary, etc. He mentioned he would like to see it revoked or replaced to provide accountability and some form of mechanism for viable justice.

Mayor Williams commented that there are 247 bills related to amending, changing, or gutting Proposition 47 and Vice Mayor Shaw has sat on the policy committees.

Vice Mayor Shaw mentioned that there are a lot of legislators not looking to repeal Proposition 47 but are open to amending it and she is fine with starting a draft letter on the City’s position.

City Manager Joshua McMurray requested clarification whether the letter would be specific to Proposition 47 and Vice Mayor Shaw confirmed it would be. 8) WORK SESSIONS

8.1 Report to the City Council Regarding Implementation of a Social Media Policy for Members of the City Council (Derek Cole, City Attorney) City Attorney Derek Cole presented the staff report.

Mayor Williams commented that she doesn’t want the City paying for someone’s poor judgment on social media, and with the Supreme Court case, it looks like they went 18 after the individual, but she would like to know if it would be on a case-by-case basis and if the City could be held responsible for someone making comments ahead of time that would prejudice a quasi-judicial decision.

Mr. Cole explained that a person can sue a City or an individual and there are two types, equitable relief which is a judgment by the court that says do or don’t do something, and the other is damages. He explained that if a Councilmember said something truly defamatory and if the City is sued, the immunities are so broad that a defamatory, malicious statement would likely be immunized. He further explained that if someone is communicating in a way that is defamatory by law and someone tried to say it was an official act of the City, the City would have broad immunities under California state law so as a practical matter, it may be virtually impossible to hold the City responsible, but that doesn’t mean lawsuits can’t be filed. He mentioned that the hope here is that these reminders will tell Councilmembers now and into the future, be careful with what they say.

Mayor Williams commented that she didn’t ask him to poll neighboring cities, but she doesn’t think it is unusual to have a social media policy.

Mr. Cole explained the difference here is that he is attempting to address Councilmember’s communications on their private media that they own and only they can access, but on which they talk about things they do for the City which the City has no control over. He further explained that the official social media for the City is under the direction of the city manager and staff delegated to post on social media and they administer that policy. He added that what the Councilmembers do on their own social media accounts is unofficial; what the City does is official.

Councilmember Meadows mentioned he was going to ask the same thing as he wants to make sure the Council does not have any liability. He commented that he understands why the policy was requested but also believes in the First Amendment.

He explained that they’re accountable for what they say, some people will like or not like comments they make, and comments they make on social media or verbally reflect on themselves, the City as a whole, and reflects on staff. He mentioned they should be aware of what they are saying when they are doing it, but they have the right to do it. He added that he doesn’t have to like other Councilmembers’ comments but they have right to make them and it is a reflection on them.

Councilmember Henderson commented that when he brought the item forward, he was looking for and hoping to see guidelines for what the Brown Act says they can do or can’t do, i.e., “liking” a comment, providing a thumbs up, or disagree with them on a comment, or if they decide to make a separate post on the same topic, is it is now serial meeting. He mentioned having guidelines for the current and future Council will be helpful for both the Council and public to understand what they can and can’t do, and that was his reason for wanting to see this policy come forward.

Dr. Fuller mentioned it is his understanding with the Lindke v. Freed decision that Councilmembers have not forfeited their First Amendment right; they can talk, but if the Council, as official government action, has voted on a certain item together to censure 19 or squash any comment of a particular Councilmember, that Councilmember can now sue the City for a violation of Lindke v. Freed and other compensation for a violation of First Amendment rights, the City would be liable from the individual, and the Councilmember could file suit in federal or state court.

Mr. Cole mentioned that is incorrect. He explained that Lindke only dealt with the issue of whether a particular elected official’s actions on social media were state action and First Amendment protections would kick in (if something is not state action, the First Amendment does not reach that conduct). He clarified that the court was addressing if communications and actions on social media were actions of the government, and the issue of damages was not there. He mentioned he provided a summary on censures some meetings ago and the court there ruled that the censure does not violate the First Amendment rights of the censured party, generally, unless there is some type of punitive measure attached to it. He mentioned he cannot see any basis for damages against the City from one Councilmember censuring another Councilmember because that is essentially the nature of politics, but that is not the question presented tonight; the question presented tonight is if the Council wants to go forward with this policy or do something else. He mentioned he realizes it doesn’t have a lot of teeth, but damages and other things are not what is addressed in this policy.

Dr. Fuller agreed with Councilmember Meadows in that comments are reflective of that Councilmember, and he agrees they are public comments. He mentioned that he is not averse to having his comments public and he makes them public; there is no reason to hide them if he is putting them out and it is a reflection on him or a reflection on another person that goes through. He expressed concern that they keep saying they have to protect City staff and optics. He mentioned he was once injured by the former City Manager because he was not giving good optics and the City realized that and didn’t like it and rightly so. He mentioned the Council does not cover City staff; the Council supervises staff and commends them when they are doing well and if there are booboos they stand up to say there are boo-boos, so people now, in his estimation, have much more confidence in City Hall and City Council, and they understand nothing will be held in secret or thrown on three days before it comes up. He mentioned he believes that is the best route to go. He shared that Lindke v. Freed is a big case that has made national news, the policy is good as it is operating in the spirit of the law, and he agrees with the resolution as presented.

Vice Mayor Shaw commented that she does not see this infringing on personal First Amendment rights and likes that. She also commented that this will be good for new Councilmembers coming on as there may be things that they don’t think of, i.e., blocking somebody on social media could potentially be problem or serial meeting comments regarding the Brown Act. She mentioned it is a good idea to get it when you come in but also as a reminder because you get complacent and can forget in going about day-today things. She mentioned that she thinks they are all free to say what they want on social media, but they do work together so maybe they shouldn’t like or dislike something someone posts. She commented that she does not mind the way this was written; it was well thought out and while they can’t have something with teeth in it, if something happens, they have a reminder of this policy. 20 Dr. Fuller mentioned it is important for the public to realize that a Councilmember is not quoting for the City, and that is why he tries to use words such as “my perspective”, “my opinion”, and “what I observed”, so he is not saying it is official.

Mr. Cole mentioned they don’t have to take a vote and inquired if the Council wants him to bring it back to formally introduce it.

Mayor Williams mentioned she is for it; it provides clarity and as Vice Mayor Shaw mentioned, they get complacent, so it is a good reminder. She inquired if things change and they modernize the Brown Act if it would trigger an update which Mr. Cole confirmed it would. She inquired if there is consensus for Mr. Cole to bring it back to formally introduce it.

Councilmember Henderson and Dr. Fuller confirmed they are fine with it.

Mr. Cole confirmed he will bring back the item to formally introduce it. 9) CLOSED SESSION

9.1 CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
County of Contra Costa et al. (and City of Oakley) v. Monsanto Company et al., Contra Costa Sup. Ct. Case No. C22-02818
Schaefers v. BNSF Railway Company et. al. (and City of Oakley), Contra Costa Sup. Ct. Case Nos. C22-01552 and C22-01555
McCalister v. Moeckel at al. (and City of Oakley), Contra Costa Sup. Ct.

Case No. C23-00834
City of Oakley v. Scelsi, Contra Costa Sup. Ct. Case No. MSN16-1620 City of Oakley v. Rodriguez, Contra Costa Sup. Ct. Case No. N23-1091 Mayor Williams announced the closed session items. She announced after closed session, the meeting will adjourn, and the next regular meeting will be held Tuesday, April 23, 2024, at 6:30pm in the Oakley City Council Chambers, and the community is invited to attend.
10) ADJOURN
There being no further business, the meeting was adjourned at 8:15 p.m.

Respectively Submitted,
Libby Vreonis
City Clerk
21 MEMORANDUM
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Date: April 9, 2024
To: Mayor and City Councilmembers
From: Derek P. Cole, City Attorney
CC: Joshua McMurray, City Manager
Subject: Closed Session Report-Out Memo
For Consideration at the City Council Meeting of April 23, 2024 Background and Analysis
The City Council considered the following closed session items during its regular meeting held April 9, 2024:

CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
County of Contra Costa et al. (and City of Oakley) v. Monsanto Company et al., Contra Costa Sup. Ct. Case No. C22-02818
Schaefers v. BNSF Railway Company et al. (and City of Oakley), Contra Costa Sup.

Ct. Case Nos. C22-01552 and C22-01555
McCalister v. Moeckel et al. (and City of Oakley), Contra Costa Sup. Ct. Case No.

C23-00834
City of Oakley v. Scelsi, Contra Costa Sup. Ct. Case No. MSN16-1620 City of Oakley v. Rodriguez, Contra Costa Sup. Ct. Case No. N23-1091 Direction was provided to staff. There was no reportable action.

Fiscal Impact
None.
22 City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Recommendation
Receive and file this report.

Attachments
None.
23 STAFF REPORT

The various types of public works maintenance activities that the City needs for outside contractor resources generally are for major street repair, large storm drainpipe repair and rehabilitation, large scale brush removal from open ditches and drainage basins, large striping projects of streets and parking lots, and security camera services for parking lots, street intersections and parks.

The City parks and facilities have been the target of various types of vandalism on a regular basis over the past several years. The amount of damage caused as a result of these illegal activities has been high. The quality of the City parks and facilities degrades with continued vandalism and has required many staff time hours to repair and replace damaged and vandalized parts. It is not sustainable to continue to react to vandalism and graffiti attacks with limited staffing. KB Security Kams, Inc. has been in service since 2015 and has been in a formal contract with the City since 2020, by providing real time monitoring and identifying the individuals who commit illegal acts that are ranging from vandalism and graffiti attacks to drug use in the parks and at City facilities as well as providing Public Internet Wi-Fi services at several of our parks, Public Works and Police Departments.

Staff worked with KB Security Kams, Inc. to prepare a scope of work and proposal that accommodates the City’s needs. The award of the agreement is exempt from competitive bidding under Section 3.6.010 of the Oakley Municipal Code paragraph 8) which provides an exception for competitive bidding “For maintenance and repair of buildings and facilities.” Currently, for all such contract services above $50,000 amount, the City Council must authorize the work by simple majority per the City’s purchasing policy. KB Security Kams, Inc. has provided their statement of qualifications and continues to be the preferred contractor to help assist staff for FY 2024/25 and FY 2025/26 with the option to extend the contract for an additional two years to 2028 if work is performed satisfactorily.

Approved and
Forwarded to the
City Council
24 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Consistency with the Oakley Strategic Plan 27+
Consistency with the Oakley Strategic Plan for community health and safety by ensuring our Parks and Facilities are maintained to preserve safety for the Oakley Community.

Fiscal Impact
Approval of the resolution will authorize the City Manager to execute the monthly Security Camera services agreement with KB Security Kams, Inc. for FY 2024/25 and FY 2025/26. The funding for this service is included in the budget for various Landscape and Lighting District (LLD) Zones and Community Facility Districts (CFD). Contract signing will not occur until the FY 2024/2025 Budget has been adopted by Council.

Staff Recommendation
Staff recommends that the City Council adopt the resolution approving the monthly Security Camera Services Agreement with KB Security Kams, Inc. for FY 2024/25 and FY 2025/26 and authorizing the City Manager to execute the agreement in an amount not to exceed $129,004 each for FY 2024/25 and FY 2025/26 with the option to extend the Agreement through June 30, 2028, if work continues to be performed satisfactorily.

Attachments

1. Resolution

2. KB Security Kams, Inc. Proposal FY 2024/25 and FY 2025/26 25 Resolution No. ___-24 1
RESOLUTION NO. ___-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY APPROVING AN AWARD OF CONTRACT WITH KB SECURITY KAMS, INC. FOR MONTHLY

SECURITY CAMERA SERVICES FOR THE CITY OF OAKLEY AND AUTHORIZING

THE CITY MANAGER TO EXECUTE SAID AGREEMENT FOR FISCAL YEARS (FY) 2024/25 AND 2025/26
WHEREAS, the City of Oakley Public Works and Engineering Department frequently seeks repair and maintenance services for City-owned infrastructure and facilities; and WHEREAS, KB Security Kams, Inc. has performed security camera services competently for the City of Oakley since 2015 and under a formal contract since 2020; and WHEREAS, the award of the agreement is exempt from competitive bidding under Section 3.6.010 of the Oakley Municipal Code paragraph 8) which provides an exception for competitive bidding “For maintenance and repair of buildings and facilities”.

NOW, THEREFORE, BE IT RESOLVED AND ORDERED, by the City Council of the City of Oakley that the monthly Security Camera Services agreement with KB Security Kams, Inc. for Fiscal Year 2024/25 and FY 2025/26 in the amount of $129,004 per fiscal year is hereby approved, and the City Manager is authorized to execute said agreement.

PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 23rd of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

_______________________
Anissa Williams, Mayor
ATTEST:
______
Libby Vreonis, City Clerk Date
26 27
28 STAFF REPORT
1 City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Derek Cole, City Attorney
SUBJECT: Resolution of the City Council of Oakley Accepting a Grant Deed Conveying to the City of Oakley Certain Real Property Interests (portions of APN 034-090-022, located at Laurel Road and O’Hara Avenue)
Background and Analysis
At the City Councils regular meeting on February 27, 2024, the City Council authorized the execution of a Purchase and Sale Agreement in which the owners of portions of property needed for the widening of Laurel Road and OHara Venue (CIP 280) are selling the property to the City. The parties are in escrow.

The proposed action is a formality California law requires when a public agency accepts a deed to real property. The Council is required by resolution to authorize a City officer to accept a deed. To this end, the proposed resolution authorizes the City Manager to accept the deed for the referenced parcels. This acceptance must be presented to the Contra Costa County Recorded for purpose of recording the grant deed for the transaction.

Consistency with the Oakley Strategic Plan 27+
The proposed action is consistent with The City’s Sustainable Organization Goal.

Fiscal Impact
The City Council has previously authorized the sale of the referenced parcels. There is no additional cost associated with the acceptance of the parcel deeds.

Staff Recommendation
The City Council is requested to adopt the Resolution of the City Council of Oakley Accepting a Grant Deed Conveying to the City of Oakley Certain Real Property Interests
Attachments

1. Proposed Resolution Accepting Real Property
Approved and
Forwarded to the
City Council
29 Resolution No. XX-24 Page 1 of 4
RESOLUTION NO. XX-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY ACCEPTING A

GRANT DEED CONVEYING TO THE CITY OF OAKLEY CERTAIN REAL

PROPERTY INTERESTS
WHEREAS, California Government Code Section 27281 provides that deeds or grants conveying an interest in fee or easement upon real estate to a political corporation or governmental agency for public purposes shall not be accepted for recordation without the consent of the grantee evidenced by its resolution of acceptance; and, WHEREAS, certain real property interests have been presented to the City of Oakley (hereinafter "City") for acceptance; and,
WHEREAS, the real property interests are set forth in a grant deed, attached hereto as Exhibit "A" and incorporated herein by this reference (hereinafter "Deed"); and, WHEREAS, Exhibit "A" also sets forth the names of the grantor(s) of the real property interests as well as the location of the real property interests; and WHEREAS, the owner(s) of the real property interest described in Exhibit "A" have offered to convey to the City the real property interests therein; and WHEREAS, the City Council of the City of Oakley does hereby find and determine that it is in the best interests of the City to accept the Deed.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Oakley hereby finds and directs as follows:

1. The foregoing recitals are true and correct.

2. The Deed, which is described in Exhibit "A," is hereby accepted by the City Council.

3. The City Manager is hereby authorized to sign the Certificate of Acceptance for said property in the form attached to this Resolution.

4. The City Clerk is hereby authorized and directed to cause the Deed to be recorded in the Office of the County Recorder for the County of Contra Costa. 30 Resolution No. XX-24 Page 2 of 4
PASSED AND ADOPTED by the City Council of the City of Oakley this 23rd day of April, 2024 by the following vote:

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Anissa Williams, Mayor
ATTEST:
___________________ ___________________
Libby Vreonis, City Clerk Date
31 Resolution No. XX-24 Page 3 of 4

CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in the real property conveyed by the grant deed dated [insert] from [insert names of sellers], to The City of Oakley, a municipal corporation, is hereby accepted by the undersigned officer on behalf of the City of Oakley, a municipal corporation, pursuant to authority conferred by Resolution No. _________ of the City Council of the City of Oakley, adopted on April ____, 2024, and the City of Oakley consents to recordation thereof by its duly authorized officer.

Dated: By:

Joshua McMurray
City Manager
32 Resolution No. XX-24 Page 4 of 4

EXHIBIT A
33 STAFF REPORT

This is consistent with the City’s goals to improve the quality of the City’s public infrastructure and to enhance the quality of life for Oakley residents.

The Laurel Road Widening Project (Cloverbrook Avenue to O'Hara Avenue), CIP 280 is progressing with the design phase and the project is slated for construction by summer 2024. This project is the last section of Laurel Road that needs widening to 4 lanes and compliments the section of Laurel Road from Rose Avenue to Cloverbrook Avenue that was widened and improved in 2018.

On November 14, 2023, the City Council approved a Utility Relocation Agreement between the United States Department of Energy Western Area Power Administration (WAPA) and City of Oakley. The purpose of entering into this agreement was for WAPA to design the installation and relocation of utility poles to accommodate the Laurel Road Widening Project CIP 280. The WAPA Pole Relocation project is slated to commence construction in spring 2024.

The City of Oakley has acquired the right of way for the construction of CIP 280 and WAPA been working on the design of the relocation of their utility poles. The next step in the process is for the City to grant WAPA easement for the relocation of the utility poles by WAPA. The attached easement documents need to be executed by the City and WAPA to proceed with the utility pole relocation project.

Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Strategic Plan 27+ Community Health and Safety goals.

Approved and
Forwarded to the
City Council
34 STAFF REPORT
City of Oakley | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us Fiscal Impact
This approval and grant of easement to WAPA will not have a fiscal impact to the City budget currently as the City paid WAPA in November 2023 in the amount of $177,000 for the relocation of the utility poles.

Staff Recommendation
Staff recommends that the City Council adopt the Resolution approving the Grant of Transmission Line Easement for a portion of Laurel Road for the WAPA Pole Relocation related to CIP 280 Laurel Road Widening Project.

Attachments

1. Resolution

2. Easement Plat and Legal Document
35 Resolution No. __-24 Page 1
RESOLUTION NO. __-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY

APPROVING THE CONTRACT AND GRANT OF TRANSMISSION LINE

EASEMENT FOR A PORTION OF LAUREL ROAD FOR THE WESTERN AREA

POWER ADMINISTRATION POLE RELOCATION RELATED TO CAPITAL IMPROVEMENT PROJECT (CIP) 280 - LAUREL ROAD WIDENING BETWEEN O’HARA AVENUE AND CLOVERBROOK AVENUE
WHEREAS, the United States Department of Energy, Western Area Power Administration (WAPA) owns and operates a 69-kilovolt transmission line known as the Tracy-Contra Costa 69-kV transmission line in the City of Oakley along Laurel Road; and
WHEREAS, on November 14, 2023, the City Council approved a Utility Relocation Agreement between the United States Department of Energy Western Area Power Administration (WAPA) and the City of Oakley for the design and construction of the WAPA utility pole relocations to accommodate the Laurel Road Widening Project CIP 280; and,
WHEREAS, the City has advanced payment in the sum of $177,000 to WAPA for the Utility Relocation project; and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Oakley that the grant of easement outlined above is hereby approved in the form attached hereto as Exhibit A and made part of this resolution and that the City Manager is hereby authorized to execute said agreement.

PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 23rd of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:
_______________________
Anissa William, Mayor
ATTEST:
______
Libby Vreonis, City Clerk Date
36 37
38 39
40 41
42 43
44 45
46 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Kevin Rohani, P.E., Public Works Director/City Engineer SUBJECT: Adopt a Resolution Authorizing the City Manager to execute an agreement with TJKM Transportation Consultants, to provide contract traffic engineering services for the City of Oakley on an on-call basis for Fiscal Years (FY) 2024/25 and 2025/26
Background and Analysis
Traffic Engineering is a key component of private development projects in the City of Oakley. Having a key Traffic Engineering component helps ensure that all projects (Residential, Commercial, and Industrial) are processed and approved in compliance with the City’s General Plan, ordinances, and laws. Understanding the demands placed on the community’s transportation network by these developments is an important dimension of assessing the overall impacts of development.

The City of Oakley Public Works and Engineering Department provides a cursory review of the traffic improvement plans related to private development projects, to ensure that projects are built to standards and specifications. Development projects have increased and the ongoing review of traffic signal, signing, striping and traffic handling plans need further detailed review by design experts of traffic engineering. It is imperative that we increase the level of sophistication in our traffic engineering plan reviews to keep up with our developing community and industry standards to ensure any traffic impacts generated by development projects are addressed properly.

As the City continues to grow with the construction of private development projects, the demand to provide detailed traffic engineering services increases to ensure the development projects that are designed and constructed to meet standards and specifications; in addition to being in conformance of the City’s traffic model that evaluates the cumulative traffic impacts of development projects in Oakley.

TJKM Transportation Consultants is a premier engineering firm with over 40 years of experience in transportation and traffic engineering in the Bay Area and have extensive experience working with various municipalities providing on-call traffic engineering services and have worked successfully in the past for City of Oakley projects since 2016.

Staff recommends that TJKM Transportation Consultants continue to provide traffic engineering services for the City of Oakley’s projects. The award of the agreement is exempt from competitive bidding under Section 3.6.010 of the Oakley Municipal Code paragraph 1) which provides an exception for competitive bidding on “Contracts involving Approved and
Forwarded to the
City Council
47 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US the acquisition of professional or specialized services, such as, but not limited to, services rendered by architects, attorneys, engineers, and other specialized consultants” Currently, for all such contract services above the $50,000 amount, the City Council must authorize the work by simple majority per the City’s purchasing policy Consistency with the Oakley Strategic Plan 27+
Consistency with the Oakley Strategic Plan for community health and safety by ensuring engineering review of various projects are maintained to preserve safety for all. Contracting engineering services also maintains a sustainable organization from the demand of varying schedules of multiple projects.

Fiscal Impact
There is no fiscal impact to the City’s General Fund as a result of these on-call services since the costs associated with the agreement will be supported by developer deposits for time and materials expended for the project. Contract signing will not occur until the FY 2024/2025 Budget has been adopted by Council.

Staff Recommendation
Staff recommends that the City Council adopt the resolution authorizing the City Manager to execute an agreement for a not-to-exceed amount of $75,000 each for Fiscal Years 2024/25 and 2025/26 for Traffic Engineering services with TJKM Transportation Consultants for plan review services with the option to extend the agreement through June 30, 2028, if work is performed satisfactorily.

Attachments

1. Resolution

2. Proposal
48 Resolution No. __-24 Page 1
RESOLUTION NO. __-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY

AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH

TJKM TRANSPORTATION CONSULTANTS FOR ON-CALL TRAFFIC
ENGINEERING SERVICES FOR FISCAL YEARS (FY) 2024/25 AND FY 2025/26 WHEREAS, the City of Oakley’s Public Works and Planning Departments commonly use consultants to conduct in-depth review of private development projects; and
WHEREAS, the volume and complexity of private development projects have increased especially in areas of traffic engineering and it is important to be able to address various traffic related issues related to development projects; and WHEREAS, TJKM Transportation Consultants, is the premiere traffic engineering firm in the bay area with expertise in municipal traffic and transportation engineering and has been providing review of private development project traffic documents for City of Oakley since 2016; and
WHEREAS, the costs associated with the agreement for on-call traffic engineering services will be supported from deposits provided by developers without any impacts to the City’s General Fund, TJKM Transportation Consultants will be compensated based on actual time and materials expended; and WHEREAS, The award of the agreement is exempt from competitive bidding under Section 3.6.010 of the Oakley Municipal Code paragraph 1) which provides an exception for competitive bidding on “Contracts involving the acquisition of professional or specialized services, such as, but not limited to, services rendered by architects, attorneys, engineers, and other specialized consultants” Currently, for all such contract services above the $50,000 amount, the City Council must authorize the work by simple majority per the City’s purchasing policy NOW, THEREFORE, BE IT RESOLVED AND ORDERED, that the City Council of the City of Oakley hereby authorizes the City Manager to execute an agreement for a not-to-exceed amount of $75,000 per fiscal year for 2024/25 and 2025/26 with TJKM Transportation Consultants for on-call traffic engineering services commencing July 1, 2024 through June 30, 2026. The proposal is attached hereto as Exhibit A.

BE IT FURTHER RESOLVED AND ORDERED, if at the end of the term the services have been performed satisfactorily the City Manager has the discretion to approve an extension of the agreement through June 30, 2028, under the same terms as the original agreement.
49 Resolution No. __-24 Page 2
PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 23rd of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

_______________________
ATTEST: Anissa Williams, Mayor
______
Libby Vreonis, City Clerk Date
50 CALIFORNIA | FLORIDA | TEXAS
Corporate Office 4305 Hacienda Drive, Suite 550, Pleasanton, CA 94588 925.463.0611 www.TJKM.com
April 12, 2024
Kevin Rohani
Public Works Director/City Engineer
3231 Main Street
Oakley, CA 94561
Email: [email protected]
Subject: Proposal to Extend On-Call Services for Transportation Engineering, Transportation Planning, and Traffic Operations
Dear Kevin:

TJKM Transportation Consultants would like to thank the City of Oakley for giving us an opportunity to provide professional services on an on-call basis for the transportation planning, traffic operations and traffic engineering needs since April 1, 2016. Over these years, we have enjoyed working with City of Oakley staff and assisting them in achieving their goals and objectives of providing safe and efficient transportation infrastructure.

We would like to request an extension of this on-going contract beyond the current expiration date of June 30, 2024 into Fiscal Year (FY) 2024/2025 and FY 2025/26. For the On-Call tasks, we proposed the same annual budget of $75,000 per fiscal year. This amount excludes tasks funded through specific projects budgeted in the City of Oakley Capital Improvement Program (CIP). We also propose that the Scope of Services are similar to our current Agreement and include tasks as follows:

SCOPE OF WORK

1. General Transportation Planning – TJKM will collect data, validate future conditions and conduct analyses to provide critical data to determine infrastructure needs and provide specific recommendations based on City policy and goals.

2. Traffic Impact Studies for Environmental Documents – TJKM will adhere to the requirements of the City of Oakley for conducting or reviewing traffic impact studies. TJKM will ensure that the traffic impact studies are conducted using standard and accepted methodology and satisfy all of the City of Oakley’s criteria.

3. Traffic Operations – TJKM will evaluate level of service (LOS) at intersections and roadway segments, prepare detailed traffic simulation analyses of intersections, roundabouts and freeway interchanges, evaluate the need for upgrading geometric design, and examine the need for revised roadway signing, striping and markings. 51

Page 2 of 3 ends

4. Traffic Signal Design – TJKM will review plans, specifications and estimates for new traffic signals and modifications to existing traffic signals.

5. Speed Surveys – TJKM will conduct radar speed and Average Daily Traffic (ADT) data collection, perform speed survey analysis, including discussion of existing roadway conditions, collision analysis, and 85th percentile speeds, and recommend speed limit changes and/or traffic calming solutions along identified roadways segments.

6. Traffic Signal Timing and Review – TJKM will collect existing data, develop a model for existing conditions, evaluate signal timing parameters, optimize signal timings, and implement and fine-tune optimized timing plans.

7. Multimodal Planning and Design – TJKM will inventory existing bicycle and pedestrian volumes as part of multimodal planning studies and design projects, analyze impacts, develop recommendations and alternatives as well as conduct outreach and prepare deliverables.

8. Safe Routes to School – TJKM will conduct meetings with school stakeholders, collect background data, field inventory of existing infrastructure, conduct walking and bicycling audits as well as identify operational and physical improvement measures.

9. Peer Review – TJKM will conduct peer review of studies and plans, related to transportation planning, traffic operations and design for compliance with conditions of approval, consistency with City of Oakley standards and acceptable industry practices.

The current hourly rates in FY 2023-24 have remained unchanged since 2016. For this contract extension, we request a modest increase aligned with local inflation rates. We propose the following rate schedule:

Principal .............................................................................................................................................. $240/hour Director ............................................................................................................................................... 220/hour Senior Project Manager ................................................................................................................ 190/hour Project Manager .............................................................................................................................. 180/hour Senior Transportation Engineer ................................................................................................. 165/hour Transportation Engineer …………………………………………………………………………….……….. 130/hour Assistant Transportation Engineer ........................................................................................... 120/hour Senior Transportation Planner ................................................................................................... 165/hour Transportation Planner ................................................................................................................. 130/hour Assistant Transportation Planner ………………………………………………………………………... 120/hour GIS Specialist ..................................................................................................................................... 100/hour Graphics Designer ........................................................................................................................... 100/hour Designer .............................................................................................................................................. 95/hour Technical Staff II ............................................................................................................................... 85/hour Administration Staff ....................................................................................................................... 80/hour 52

Page 3 of 3 ends

Production Staff ............................................................................................................................... 55/hour Reimbursable Expenses
Plotting (per sheet) ......................................................................................................................... $18.00 Travel Cost (per mile, subject to change; based on IRS standard mileage rates)… 0.67 All outside services are billed at cost plus a ten percent margin for handling. Expert Witness charges available upon request. Invoices are due and payable within 30 days. Invoices paid after 30 days will be subject to separate billings of one and one half percent per month of unpaid balance. Late charges are not included in any agreement for maximum charges.

Thank you for considering TJKM again for your transportation consulting needs. We look forward to continuing to work with you. If you have any questions or concerns regarding our proposal, do not hesitate to contact me at (925) 264-5023 or by email at [email protected].

Sincerely,
Ruta Jariwala, P.E., T.E.

Project Manager
Principal at TJKM Transportation Consultants
53 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Kevin Rohani, P.E., Public Works Director/City Engineer SUBJECT: Adopt a Resolution for Award of a contract to Waterworks Industries, Inc. for Lake, Aeration Fountain, Pump Station, Generator Maintenance and Overhead Crane Inspection Services at Cypress Grove Subdivision, Emerson Ranch Subdivision, Delaney Park Subdivision, Prescott Subdivision, Bridgehead Rd, City Hall, Recreation Center and Oakley Plaza for Fiscal Year FY 2024/25 and 2025/26
Background and Analysis
The City of Oakley utilizes a wide range of consultants and contractors across all departments to augment City staff as needed to accommodate the workload activities. One of the areas that this approach is used in various public works maintenance operations (i.e. Landscaping, Street Sweeping, Traffic Signals, Street Lights, etc.) to ensure the community receives high quality and timely maintenance services.

The construction of the Cypress Grove, Emerson Ranch, Delaney Park and Prescott Subdivisions has added new lakes, aeration fountains, complex pump stations, generators, overhead crane inspection services and their associated infrastructure to the City’s ownership and maintenance responsibilities. In addition to these large infrastructure systems, the City owns and operates the fountains outside of City Hall and at the Oakley Plaza Shopping Center, plus emergency generators at City Hall and the Recreation Center.

The City staff does not have the unique expertise and certifications for the maintenance of these facilities and have to use the services of specialty maintenance contractors to keep these important infrastructure assets in good operating condition for the enjoyment of the community.

Waterworks Industries, Inc. is a company with over 40 years of experience and with aquatic maintenance professionals specializing in customized lake management, including water quality testing, algae and aquatic weed control, maintenance and operation of fountains and aeration systems, and pump station maintenance services. They have offices throughout California and serve a large number of municipalities, including the Cities of San Ramon and Walnut Creek in Contra Costa County. They have staff available in the East County area and can respond promptly in case of emergency service needs, in addition to regular maintenance service.

Staff has negotiated a comprehensive and all-inclusive scope of work with Waterworks Industries, Inc. to provide the City the full maintenance services that are needed for City owned lakes, fountains, pump stations, and generators at a very competitive price. Having all of these Approved and
Forwarded to the
City Council
54 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US maintenance services under one contractor is more efficient, as having all of these components work in coordination with each other and one contractor can provide a more effective and stable service.

Staff is recommending that an agreement with Waterworks Industries, Inc. be approved by the City Council for an annual cost of $138,693.00 each fiscal year to provide maintenance services for lakes, aeration fountains, complex pump stations, generators, overhead crane inspections, and their associated infrastructure for FY 2024/25 and 2025/26 and if at the end of the term the services have been performed satisfactorily, the City Manager has the discretion to approve an extension of the agreement to June 30, 2028, under the same terms as the original agreement. The award of the Agreement is exempt from competitive bidding under Section 3.6.010 of the Oakley Municipal Code paragraph 1) which provides an exception for competitive bidding on “Contracts involving the acquisition of professional or specialized services, such as, but not limited to, services rendered by architects, attorneys, engineers, and other specialized consultants”.

Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Strategic Plan 27+ Community Health and Safety goal.

Fiscal Impact
Funding for the above referenced maintenance service is included in the City of Oakley Storm Drain Community Facility District (CFD) budget allocations, and there is no impact to the City’s General Fund for this maintenance service contract.

Contract signing will not occur until the FY 2024/2025 Budget has been adopted by Council.

Staff Recommendation
Staff recommends that the City Council adopt the Resolution approving the agreement with Waterworks Industries, Inc. for Lake, Aeration Fountain, Pump Station, Generator Maintenance and Overhead Crane Inspection Services at Cypress Grove, Emerson Ranch, Delaney Park and Prescott Subdivisions, Bridgehead Road and at City Hall, the Recreation Center and the Oakley Plaza for FY 2024/25 and 2025/26 and to authorize the City Manager to execute the agreement.

Attachments

1. Resolution

2. Proposal from Waterworks Industries, Inc.
55 Resolution No. ___-24 1
RESOLUTION NO. ___-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY APPROVING AN AWARD OF CONTRACT WITH WATERWORKS INDUSTRIES, INC. FOR LAKE,

AERATION FOUNTAIN, PUMP STATION, AND GENERATOR MAINTENANCE AND

OVERHEAD CRANE INSPECTION SERVICES AT CYPRESS GROVE, EMERSON

RANCH, DELANEY PARK AND PRESCOTT SUBDIVISIONS, BRIDGEHEAD ROAD,

CITY HALL, RECREATION CENTER AND OAKLEY PLAZA AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT FOR FY 2024/25 AND FY 2025/26 WHEREAS, the City of Oakley Public Works Department is responsible for the overall maintenance and operation of all City’s Parks and Facilities; and WHEREAS, the City of Oakley does not have the unique expertise and certifications for the maintenance of these lakes and its associated infrastructure and as a result have researched outside resources for this specialty maintenance service; and WHEREAS, Waterworks Industries, Inc. is a firm specializing in aquatic maintenance with over 40 years of experience and are the best suited to provide the City this service; and NOW, THEREFORE, BE IT RESOLVED AND ORDERED, by the City Council of the City of Oakley that the Maintenance Services agreement with Waterworks Industries, Inc. for Lake, Aeration Fountain, and Pump Station, Generator Maintenance and Overhead Crane Inspection Services at Cypress Grove, Emerson Ranch, Delaney Park and Prescott Subdivisions, Bridgehead Road, City Hall, Recreation Center and Oakley Plaza for an amount not to exceed $ 138,693.00 annually for FY 2024/25 and 2025/26 is hereby approved, and the City Manager is authorized to execute said agreement. If at the end of the term the services have been performed satisfactorily, the City Manager has the discretion to approve an extension of the agreement to June 30, 2028, under the same terms as the original agreement.

PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 23rd of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

APPROVED:

_______________________
Anissa Williams, Mayor
56 Resolution No. ___-24 2
ATTEST:
_____________________ ________________________
Libby Vreonis, City Clerk Date
57 2024-2026

THE CITY OF OAKLEY

OAKLEY, CA

POND, FOUNTAIN, AND PUMP STATION

MAINTENANCE PROPOSAL
Prepared By:

WaterworksIndustries
930 Shiloh Rd, Bldg. 38, Suite D
Windsor, CA 95492
Prepared For:

The City of Oakley
Oakley, CA 94561
58 POND SERVICE PROPOSAL
Waterworks Industries, Inc. is a full-service design, construction, and maintenance company. Our company was started in 1980 as The Waterworks Company specializing in aquatic management. Within a few years of our start up, our clients began to ask us to provide more services. As the services that we provided grew, we incorporated our company and modified our name to better fit our capabilities. Waterworks Industries, Inc. is that company.

Waterworks Industries is licensed and registered to fulfill all the requirements of this proposal. Waterworks Industries is a multi-discipline licensed contractor with the State of California, Contractors State License Board # 678182 with the following classifications: Class A - General Engineering Contractor, Class B - General Building Contractor, Class C-36 Plumbing Contractor, C-27 Landscape and Class C-53 Swimming Pool and D-21 Machinery and Pump Contractor. Waterworks Industries is licensed with the California State Department of Pesticide Regulation, Pest Control Business License # 30609.

SCOPE OF WORK
Waterworks Industries Inc. shall provide all equipment, labor, PPEs, and materials required for the treatments, and the work performed will be performed in accordance with the highest industry standards to manage the water features throughout The City of Oakley.

Objective - The objective is to control nuisance aquatic vegetation including Sago Pond weed, Eurasian Water Milfoil, other submerged Aquatic grasses, and Algae. The algicides and herbicides utilized will be provided by Waterworks to perform the treatments and are included in the cost proposal. All work shall be performed in accordance with the highest industry standards.

Waterworks Industries Inc. would also provide all necessary labor to remove normal debris on a weekly basis.

Major debris and or cleaning due to storms or natural disasters would be an additional cost to the normal services.

SYSTEM COMPREHENSION
At the inception of maintenance, Contractor will review the system completely to clarify any unfamiliar items in the below pictured properties. We are very familiar with these types of pond systems and fountains.

Eurasian Water Milfoil SAGO POND WEED ALGAE/ORGANICS
59 CITY OF OAKLEY PONDS

CITY HALL FOUNTAINS
60 A. System Monitoring and Inspections
The time of day and duration of visit shall be at the discretion of the Contractor. Variations in the day-today scheduling can occur depending on such conditions as climatic changes, traffic conditions, and emergency conditions elsewhere, etc.
• Weekly Monitoring: The Ponds will be monitored one (1) time(s) per week to ensure high water quality. Pumps, water level, time clocks, lighting, electrical panels, and all other components will be monitored to ensure proper operation. Any component not working properly will be brought immediately to the
management’s attention if in need of repair.
• Annual Fountain Inspections: Fountains and panels will be inspected weekly for proper operation. Once annually, all Floating fountains in ponds will be inspected, intakes cleaned, remove buildup of algae/scum from fountain structure, and fountain anchors inspected. Any repairs necessary will be reported to the city with costs.

B. Water Quality – Weekly Service
• Debris Clean -Up: Floating debris (trash, leaves, etc.) In addition, visible bottom debris shall be removed and held to a minimum by routine collection during each service visit. • Mechanical System Maintenance: Water overflow intakes, pump intakes, screens, and circulating jets to be checked at each service visit and maintained operational and free of debris. Necessary cleaning and service to be done when discovered.
• Water Treatment: The water will be treated as necessary with EPA approved Algaecides to inhibit the growth of all types of algae. Contractor to provide chemicals as necessary and will be billed as an addition to the contract.
• Equipment: Contractor shall furnish all application equipment, as necessary.

C. Cypress Pond & Pump Station (3.5 Surface acres) – Weekly Service • Pump Station: Maintain & Monitor pump station including general housekeeping of the pump station room.
• Alert system: Receive alerts and respond, if necessary, via phone alert. All service calls necessary will be billed at an additional charge to normal maintenance. Weekly service visits will log alerts as not to respond if alert has been verified previously. • Irrigation Well Pump: Monitor pump station and report any issues, as necessary. • Inspect overhead crane, provide preventative maintenance, and report all deficiencies. All work to follow ANSI, CAL-OSHA, AND CMAA standards.
• Generator: Monitor generator station and report any issues, as necessary. Generator service will be an additional cost
61 D. Emerson Ranch Pond & Pump Station (3.3 Surface Acres) – Weekly Service • Pump Station: Maintain & Monitor pump station including general housekeeping of the pump station room.
• Alert system: Receive phone alerts and respond, if necessary. All service calls necessary will be billed at an additional charge to normal maintenance. Weekly service visits will log alerts as not to respond if alert has been verified previously.
• Fountains: Three (3) Fountains will be monitored, maintained, and cleaned annually by a certified diver. Any needed repairs found will be reported to City. • Irrigation Well Pump: Monitor pump station and report any issues, as necessary. • Outfall DI’s: Three (3) Outfalls with DI’s will be monitored, panels checked for alerts, manhole covers removed bi-monthly for visual inspection. • Inspect overhead crane, provide preventative maintenance, and report all deficiencies. All work to follow ANSI, CAL-OSHA, AND CMAA standards.
• Generator: Monitor generator station and report any issues, as necessary. Generator service will be an additional cost.

E. Delaney Park Pond & Pump Station (4.9 surface acres) – Weekly Service • Pump Station: Maintain & Monitor pump station including general housekeeping of the pump station room.
• Alert system: Receive alerts via SCADA system, respond if necessary. All service calls necessary will be billed at an additional charge above regular maintenance service. Weekly service visits will log alerts as not to respond if alert has been verified previously. • Fountains: One (1) Fountains will be monitored, maintained, cleaned annually by a certified diver, and any repairs found to be necessary will be reported to the City. • Outfall DI’s: Three (3) Outfalls with DI’s will be monitored, panels checked for alerts, manhole covers removed bi-monthly for visual inspection. • Irrigation Well Pump: Monitor pump station and report any issues, as necessary. • Inspect overhead crane, provide preventative maintenance, and report all deficiencies. All work to follow ANSI, CAL-OSHA, AND CMAA standards.
• Generator: Monitor generator station and report any issues, as necessary. Generator service will be an additional cost.
62 F.City Hall Large & Small Fountain – Weekly Service
• Equipment Vault: Maintain & Monitor pump station including general housekeeping of the pump station vault.
• Fountain Basins: Routine maintenance of bowls, basins, fountain structure for an aesthetically pleasing appearance.
• Annual Inspections: At least annually, all electrical contact points of pump start motors to be visually inspected for overheating, corrosion, etc. and serviced properly. • Pumping Systems: Clean intakes, strainers, fountain jets, and discharge ports, as necessary. • Lighting Systems: Maintain and monitor lights, as necessary. Repairs and replacement of lamps are additional.
• Generator: Monitor generator station and report any issues, as necessary. Generator service will be an additional cost.

G. Oakley Plaza Fountain – Weekly Service
• Equipment Vault: Maintain & Monitor pump station including general housekeeping of the pump station vault.
• Fountain Basins: Routine maintenance of bowls, basins, fountain structure for an aesthetically pleasing appearance.
• Surge Tank: Surge tank to be cleaned annually at the end of Fall season. • Annual Inspections: At least annually, all electrical contact points of pump start motors to be visually inspected for overheating, corrosion, etc., and serviced properly. • Pumping Systems: Clean intakes, strainers, fountain jets, and discharge ports, as necessary. • Lighting Systems: Maintain and monitor lights, as necessary. Repairs and replacement of lamps are additional.

H. Oakley Recreation Building Generator
• Inspect 150 KW generator monthly including readiness, status, oil levels, fuel levels, and alert conditions. Consumables at an additional cost.
• Annual service for 150 KW unit with 2-hour load test to conform to Air Quality standards additional.

I. Exclusions
Contractor shall not be responsible for: 63
• Parts: Repair or replacement parts required for routine maintenance (i.e., pump seals, belts, gaskets, filters, basket, floats, pipefitting, motors, etc.). • Utilities: Water and electrical costs.
• Outside services: Outside services of electricians, certified backflow preventer services, motor rewinding, and other specialty services not specifically covered in the basic responsibilities.
• Clean-up jobs: Dredging, pond draining, and major cleanup jobs dictated by uncontrollable conditions. This type of work would need a separately prepared proposal and approval by the City before this work would be implemented. • Off schedule service calls: Any service call that occurs outside your normal service days will be charged to your account. A minimal service will be provided during the week of December 24 – January 2.
• Chemicals: In the event of Vandalism Defoamer will be charged at an additional charge of $75.00 per gallon. Clarifier will be charged at an additional charge of $50.00 per gallon.

WATERWORKS INDUSTRIES hereby agree to perform the above services set forth in the following service agreement at THE CITY OF OAKLEY, OAKLEY, CA for the dollar amount SPECIFIED IN EXHIBIT A on an annual basis. This agreement shall be effective for two years from the date of signed approval. If both parties continue to perform after the one-year anniversary of the effective date, and neither party informs the other of its intention to terminate services, services shall continue, in full for another year with a rate increase equal to the CPI increase for the region.

We look forward to working with you on your water features. If you have any questions about this proposal, budgetary issues, our services, or any modifications, concerns, or questions that you may have, please do not hesitate to reach out to me at 925-270-5514 or my email [email protected]
Sincerely,
Waterworks Industries, Inc.

Andy Trujillo
Regional Manager
64 In- Contract Work Not-in-Contract Repairs & Upgrades Provide Quotes or Estimates Before Invoicing
Job/Location
Monthly $ Quarterly $ Annual $ Oakley Account#
Job/Location Oakley Account #
CITY HALL Fountains & Generator
CITY HALL Fountains & Generator 100-12-070-5180
City Hall 450 kw Monthly Generator inspection, readiness status, oil levels, fuel levels, alert condition. Consumables at added cost $ 320.00 $ - $ 3,840.00 100-12-070-5180 City Hall Annual Service for 450kw unit W/2-hour load test to conform to Air Quality standards $ - $ - $ 3,310.00 100-12-070-5180
City Hall Weekly Fountain & Pump vault monitoring (inclusive of all costs for conducting event) $ 698.00 $ - $ 8,376.00 100-12-070-5180 Total $ 1,018.00 $ - $ 15,526.00
In- Contract Work
(ORB) Oakley
Recreation Building Generator 100-12-070-5180 (same account as city hall) Job/Location
Monthly $ Quarterly $ Annual $ Oakley Account# Oakley Recreation Building Generator ORB 150 kw Monthly Generator inspection, readiness status, oil levels, fuel levels, alert condition. Consumables at added cost $ 225.00 $ - $ 2,700.00 100-12-070-5180 ORB Annual Service for 150kw unit W/2-hour load test to conform to Air Quality standards $ - $ - $ 1,908.00 100-12-070-5180
Total $ 225.00 $ - $ 4,608.00
Cypress Grove/Pond/Pump House - 3.5 surface acres Monthly $ Quarterly $ Annual $ Oakley Account# Cypress Grove/Pond/Pump House
- 3.5 surface acres
110-35-251-6623
Cypress Grove/Pond 250 kw Monthly Generator inspection, readiness status, oil levels, fuel levels, alert condition. Consumables at added cost $ 260.00 $ - $ 3,120.00 110-35-251-6623 Cypress Grove/Pond Annual Service for 250kw unit W/2-hour load test to conform to Air Quality standards $ - $ - $ 2,299.00 110-35-251-6623 Cypress Grove/Pond Weekly Fountain & Pump vault monitoring (inclusive of all costs for conducting event) $ 2,060.00 $ - $ 24,720.00 110-35-251-6623 Inspect overhead crane, provide preventative maintenance and report any deficiencies.

All work to follow ANSI, CAL-OSHA, NEC and CMAA standards $ - $ 233.00 $ 932.00 100-35-251-6623 Total $ 2,320.00 $ 233.00 $ 31,071.00
Oakley Plaza Fountain Monthly $ Quarterly $ Annual $ Oakley Account# Oakley Plaza Fountain 138-82-002-5380 Oakley Plaza Fountain Weekly Fountain & pump vault monitoring (inclusive of all costs for conducting event) $ 475.00 $ - $ 5,700.00 138-82-002-5300 Total $ 475.00 $ - $ 5,700.00
Emerson Ranch/Pond/Pump House - 3.3 surface acres Monthly $ Quarterly $ Annual $ Oakley Account# Emerson Ranch/Pond/Pump
House - 3.3 surface acres 407-53-501-5380
Emerson Ranch/Pond 300 kw Monthly Generator inspection, readiness status, oil levels, fuel levels, alert condition. Consumables at added cost $ 286.00 $ - $ 3,432.00 407-53-501-5300 Emerson Ranch/Pond Annual Service for 300kw unit W/2-hour load test to conform to Air Quality standards $ - $ - $ 2,504.00 407-53-501-5300 Emerson Ranch/Pond Weekly Fountain & Pump vault monitoring (inclusive of all costs for conducting event) $ 2,039.00 $ - $ 24,468.00 407-53-501-5300 Three (3) Outfalls with DI's will be monitored, panels checked for alerts, manhole covers removed 2 times per month for visual inspection ($163.00 per inspection) $ 326.00 $ - $ 3,912.00 407-53-501-5300
Monitor DI's weekly, check panels, alarms, bump test pumps, inspect vaults, clean debris from vaults $ 163.00 $ - $ 1,956.00 407-53-501-5300 Inspect overhead crane, provide preventative maintenance and report any deficiencies.

All work to follow ANSI, CAL-OSHA, NEC and CMAA standards $ - $ 233.00 $ 932.00 407-53-501-5300 Total $ 2,814.00 $ 233.00 $ 37,204.00
Delany Park/Pond/Pump House - 4.9 surface acres Monthly $ Quarterly $ Annual $ Oakley Account# Delany Park/Pond/Pump House -

4.9 surface acres
422-53-501-5380
Delany Park/Pond 300 kw Monthly Generator inspection, readiness status, oil levels, fuel levels, alert condition. Consumables at added cost $ 300.00 $ - $ 3,600.00 422-53-501-5300 Delany Park/Pond Annual Service for 300kw unit W/2-hour load test to conform to Air Quality standards $ - $ - $ 2,504.00 422-53-501-5300
Delany Park/Pond Weekly Fountain & Pump vault monitoring (inclusive of all costs for conducting event) $ 2,140.00 $ - $ 25,680.00 422-53-501-5300 Three (3) Outfalls with DI's will be monitored, panels checked for alerts, manhole covers removed 2 times per month for visual inspection ($163.00 per inspection) $ 326.00 $ - $ 3,912.00 422-53-501-5300
Monitor DI's weekly, check panels, alarms, bump test pumps, inspect vaults, clean debris from vaults $ 163.00 $ - $ 1,956.00 422-53-501-5300 Inspect overhead crane, provide preventative maintenance and report any deficiencies.

All work to follow ANSI, CAL-OSHA, NEC and CMAA standards $ - $ 233.00 $ 932.00 422-53-501-5300 Total $ 2,929.00 $ 233.00 $ 38,584.00
Exhibit A - Proposal Pricing Waterworks Industries, INC & City of Oakley Scope of Services & Pricing Matrix
65 Bridgehead Rd Pump Station Monthly $ Quarterly $ Annual $ Oakley Account# Bridgehead Rd Pump Station 145-35-001-5385 Monitor Pump Station weekly, check panels, alarms, bump test, inspect/clean debris from vaults, check plugs and fittings and replace as needed $ 350.00 $ - $ 4,200.00 145-35-001-5385 Total $ 350.00 $ - $ 4,200.00
Prescott Pump Station Monthly $ Quarterly $ Annual $ Oakley Account# Prescott Pump Station 409-53-501-5380 Monitor DI's bi-monthly, check panels, alarms, bump test pumps, inspect vaults, clean debris from vaults $ 150.00 $ - $ 1,800.00 409-53-501-5300 Total $ 150.00 $ - $ 1,800.00
Full Contract Total
Monthly $ Quarterly $ Annual $
$ - $ - $ 138,693.00 Additional Rates Cost per hour
Repair labor rate normal hours $ 145.00
Added into contract 03/15/2023 Labor rates nights & weekends $ 195.00 Added into contract 03/20/2024 For FY 24/25 ***Quarterly prices billed 4 times per year upon each completion*** Electrician rate normal hours $ 160.00 Electrician rate nights & weekends $ 275.00
Generator repair rate normal hours $ 225.00
Generator repair nights & Saturdays $ 350.00
Generator repairs Sundays $ 420.00
66 STAFF REPORT
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Danielle Navarro, Assistant City Manager and
Robert Barker, Information Technology Manager
SUBJECT: Adopt a Resolution Authorizing the Purchase and Installation of Four New Firewalls
Background and Analysis
A firewall is a network security device that monitors incoming and outgoing network traffic and determines whether to allow or block specific traffic based on a defined set of security rules. It is the security barrier between the cyber threats that exist on the internet and the City’s internal data network. Cybercrime is increasing exponentially and techniques to hack into organizations are getting more and more advanced. The current generation of firewalls on the market provide robust security features and are easier to administer and configure. Our current firewalls are approaching end of life and therefore will cease to receive security updates from the manufacturer, leaving the City vulnerable to new threats. Deploying the latest firewall technology will decrease the risk of exposure for the City.

Staff recommends the purchase of four new firewalls manufactured by Palo Alto Networks, a well-known leader in the firewall industry. They have consistently been ranked as a top leader for network firewalls by Gartner’s Magic Quadrant, a wellrespected technology research and advisory company. Palo Alto Network solutions can be found in many Fortune 500 companies worldwide and in many government institutions. Two devices will be installed together at the Police Department and two will be installed at City Hall. The reason for two devices at each location is that they operate in ‘High Availability’ mode, meaning that if one device fails, the other is able to continue operating.

The City has received a quote for $51,652.00 for the equipment and $5,000 for the labor (Attachment 2 to the staff report) from Keep IT Simple (KIS) to install the firewalls for the City. KIS is an information technology solutions provider located in the San Francisco Bay Area. KIS was recommended to the City of Oakley by another City within Contra Costa County, and the City of Oakley was highly satisfied with the support services recently provided by KIS while recovering from the recent cyberattack. Oakley Municipal Code Section 3.6.010(a)(6) provides an exception to the City’s competitive bidding requirements for goods of a technical nature but requires the City Council by simple majority to authorize procurement without competitive bidding when the amount exceeds $50,000.

Approved and
Forwarded to the
City Council
67 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Consistency with the Oakley Strategic Plan 27+
Approval of this item is consistent with the Sustainable Organization Goal’s objective of identifying and investing in resources to execute the City’s responsibilities and subobjective of upgrading IT services to include new computer systems and more efficient IT response to computer and technical issues to ensure projects can be delivered efficiently.

Fiscal Impact
The one-time cost to purchase and install the new firewalls is $56,652. Funding for the project was approved in the Technology Service Fund as part of the FY 2023/24 Budget adoption.

Staff Recommendation
Staff recommends the City Council adopt the proposed resolution authorizing the purchase and installation of four new firewalls at City Hall and the Police Department.

Attachments

1. Proposed Resolution

2. Firewalls Quote
68 Resolution No. XX-24 Page 1 of 1
RESOLUTION NO. XX-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY AUTHORIZING

THE PURCHASE AND INSTALLATION OF FOUR NEW FIREWALLS
WHEREAS, a firewall is a network security device that monitors incoming and outgoing network traffic and determines whether to allow or block specific traffic based on a defined set of security rules and is the security barrier between the cyber threats that exist on the internet and the City’s internal data network; and
WHEREAS, the City’s current firewalls are approaching end of life and therefore will cease to receive security updates from the manufacturer, leaving the City vulnerable to new threats; and
WHEREAS, deploying the latest firewall technology will decrease the risk of exposure for the City as cybercrime is increasing exponentially, techniques to hack into organizations are getting more and more advanced, and the current generation of firewalls on the market provide robust security features; and
WHEREAS, the City received a quote for the firewalls for $51,652.00 from Keep IT Simple (KIS), an information technology solutions provider located in the San Francisco Bay Area; and
WHEREAS, Oakley Municipal Code Section 3.6.010(a)(6) provides an exception to the City’s competitive bidding requirements for goods of a technical nature but requires the City Council by simple majority to authorize procurement without competitive bidding when the amount exceeds $50,000.

BE IT RESOLVED by the City Council of the City of Oakley that the purchase and installation of a new firewalls is hereby approved at a cost not to exceed $51,652.00.

PASSED, APPROVED AND ADOPTED this 23rd day of April 2024 by the following vote.

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Anissa Williams, Mayor
ATTEST:
____________________ ________
Libby Vreonis, City Clerk Date
69 † Non-taxable item
Please contact us if you have any questions.

Comments
CMAS: 3-18-70-2443Q
One-Time Subtotal $50,252.00
(8.75%) $1,400.00
Total $51,652.00 USD
KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10390 v4
Date 2024/04/12
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-12-2024 Palo Alto
Fees
Category Item Qty Price Total
Network
Security &
Firewalls
Palo Alto PA-460 Network Security/Firewall Appliance
Palo Alto PA-460 Network Security/Firewall Appliance - 8 Port - 10/100/1000Base-T - Gigabit Ethernet - 3DES, AES (128-bit), AES (192-bit), AES (256-bit), MD5, SHA-1, SHA-256, SHA-384, SHA-512 - 8 x RJ-45 - Desktop 4 $3,920.00 $15,680.00
Software
Licensing
Palo Alto Core Security Bundle - 3 Year
Palo Alto Core Security Bundle Advanced Threat Prevention, Advanced URL Filtering, Advanced Wildfire, DNS Security and SD-WAN - Subscription License - 1 License - 3 Year
4 $6,053.00 $24,212.00
†
Services Palo Alto Networks Premium Support Program - 3 Year Palo Alto Networks Premium Support Program - Extended Service - 3 Year - Service - Service Depot - Exchange - Parts 4 $2,510.00 $10,040.00
†
Rack
Equipment
Palo Alto Rack Tray
Palo Alto Rack Tray - 4 Post - Metal
2 $160.00 $320.00
Cost Breakdown

ACCEPT QUOTE

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10390 v4 2 / 3
70 KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10457 v3
Date 2024/04/08
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-08-2025 PAN Installation
Fees
Category Item Qty Price Total
Labor /
Professional
Services
KIS Professional Services - Firewall Installation for Police Dept.

Engagement Details:

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10457 v3 2 / 4
71 † Non-taxable item
Please contact us if you have any questions.

Comments
CMAS #: 3-21-07-1018
Total $5,000.00 USD
Labor /
Professional
Services
KIS Professional Services - Firewall Installation for City Hall Engagement Details:

ASA Configuration review
Palo Alto device registration, PAN-OS and Dynamic updates update to latest releases
Configuration of management plane
Configuration of LDAP binding
Configuration of Authentication profiles
Configuration of USER-ID group mappings
Email alerts
Network configuration
Configuration of network objects
Security policy configuration (includes use of APP-ID feature) Configuration of site to site vpn tunnels
Configuration of GlobalProtect for Remote Access (intial configuration wont include MFA setup)
Cutover and testing
1 $2,700.00 $2,700.00
†
Category Item Qty Price Total
Cost Breakdown
Category Fees
Labor / Professional Services $5,000.00
Total $5,000.00 USD
Terms and Conditions
A convenience fee of two point nine percent (2.9%) will be applied to credit card purchases.

Unless otherwise stated on the invoice, payment terms are thirty (30) days net from date of invoice. If Buyer fails to pay in accordance with these terms, KIS, at its option, may charge Buyer, and Buyer shall pay KIS (in addition to the price), a delinquent administrative service charge on the unpaid amount at the rate of one and a half percent (1.5%) per month (or such lower rate as may be the maximum allowable by law) from any such date until the date of payment. Should the Buyer become delinquent in the payment of any sum due to KIS, KIS shall not be obligated to continue performance under any agreement with Buyer. In the event of default, collection costs and attorney fees may apply.

Contact

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10457 v3 3 / 4
72 STAFF REPORT
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Danielle Navarro, Assistant City Manager
SUBJECT: Adopt a Resolution Authorizing the City Manager to Execute a Professional Services Contract with Keep IT Simple for Information Technology Services for FY 2024/25
Background and Analysis
The City has contracted for information technology (IT) services since incorporation in 1999. In 2023, management of the IT Managed Service Provider (MSP) shifted from Finance to the City Manager’s Office under the Assistant City Manager (ACM). The ACM was tasked with reviewing the existing services, including the cost, staff satisfaction, IT hardware and software needs, and quality and level of service provided, and making a recommendation on how best to provide citywide IT services balancing the needs of a growing organization with costs.

As part of the 2023 citywide reorganization, staff recommended, and the City Council authorized, the new Information Technology Manager classification beginning in the second half of FY 2023/24 with an anticipated reduction in the services provided by the MSP in FY 2024/25. The City’s first in-house IT Manager was hired in February.

In addition to providing a second person to supplement the on-site technician contracted through the MSP, having a subject matter expert on staff to provide oversight of the MSP and to be able to quickly assess and implement IT services and projects has increased efficiency and built trust across the organization in the IT division.

With the IT Manager now in place, and after careful assessment of: 1) the City’s current and future information technology equipment and services needs, including those brought to staff’s attention by the recent cyberattack on the City; and 2) the cost and satisfaction with the service provided over the last few years, staff determined that it is in the best interest of the City to contract with a new MSP for the FY 2024/25 fiscal year.

While assessing next steps to draft a Request for Proposals, Keep IT Simple (KIS), an IT services provider the City contracted with for incident response and emergency recovery/restoration services from the recent cyberattack, sent the City an unsolicited proposal and state of work for IT support services (attached). The proposal estimates Approved and
Forwarded to the
City Council
73 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US the cost of proposed services to be $145,892 for a 12-month agreement, which is approximately $40,000 less than the current MSP agreement.

Staff was satisfied with the work performed by KIS during the response to and recovery from the cyberattack and determined that the proposal, statement of work, and estimated costs meet the needs of the City.

KIS is an approved contractor on the California Multiple Award Schedule (CMAS). The CMAS contracting program allows the City to procure a contractor that was previously selected through the State of California procurement process. All pricing, products and/or services offered to the State of California through this system are made available to the City as authorized by Oakley Municipal Code Section 3.6.010(a)(10).

Making use of this process results in cost savings to the City and expedites contractor selection.

Consistency with the Oakley Strategic Plan 27+
The provided services will support several objectives under the Strategic Plan 27+ goal of Financial and Fiscal Responsibility as well as the Sustainable Organization Goal.

Fiscal Impact
Funding for the MSP services is included in the proposed FY 2024/25 budget in the Information Technology Fund 503. Contract signing will not occur until the FY 2024/2025 Budget has been adopted by Council.

Staff Recommendation
Staff recommends the City Council adopt a Resolution authorizing the City Manager to negotiate and execute a contract with Keep IT Simple for information technology services through the California Multiple Award Schedule (CMAS) contracting process.

Attachments

1. Proposed Resolution

2. Unsolicited Proposal and Statement of Work for It Support from KIS 74 Resolution No. XX-22 Page 1 of 1
RESOLUTION NO. X-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY AUTHORIZING

THE CITY MANGAER TO EXECUTE A PROFESSIONAL SERVICES CONTRACT

WITH KEEP IT SIMPLE FOR INFORMATION TECHNOLOGY SERVICES FOR FY 2024/25
WHEREAS, the City has contracted for Information Technology (IT) Managed Services since incorporation in 1999; and
WHEREAS, as part of the 2023 citywide reorganization, staff recommended, and the City Council authorized, the new Information Technology Manager classification beginning in the second half of FY 2023/24 with an anticipated reduction in the services provided by the current Managed Service Provider in FY 2024/25; and.

WHEREAS, after careful analysis, staff determined that it is in the best interest of the City to contract with a new IT Managed Service Provider for the FY 2024/25 fiscal year; and WHEREAS, Keep IT Simple (KIS), an IT services provider the City contracted with for incident response and emergency recovery/restoration services from the recent cyberattack, sent the City an unsolicited proposal and state of work for IT support services at an estimated cost of $145,892 for a 12-month agreement; and WHEREAS, staff was satisfied with the work performed by KIS during the response to and recovery from the cyberattack and determined that the proposal, statement of work, and estimated costs meet the needs of the City.

BE IT RESOLVED by the City Council of the City of Oakley that the City Manager is authorized to negotiate and execute a contract with Keep IT Simple for information technology services through the California Multiple Award Schedule (CMAS) contracting process.

PASSED, APPROVED AND ADOPTED this 23rd day of April 2024 by the following vote.

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Anissa Williams, Mayor
ATTEST:
____________________ ________
Libby Vreonis, City Clerk Date
75 Prepared By: Craig Miller Partner and Practice Manager 43160 Osgood Rd. Fremont CA 94539 • Tel: 510.403.7500 • Fax: 510.403.7501 • Email: [email protected],[email protected] • www.kiscc.com
KIS Unsolicited Proposal – IT
Support for the City of Oakley,
CA

KIS PROPOSAL AND STATEMENT OF WORK (SOW)

76 1
City of Oakley 2024 IT Support Services Final
Keep I.T. Simple
Contents
Introduction ................................................................................................................................................................................ 2 COMPAY BACKGROUND............................................................................................................................................................. 3 PROJECT STAFF BACKGROUND AND CERTIFICATIONS .............................................................................................................. 5 Statement of Work ..................................................................................................................................................................... 8 Time and Cost Estimate.............................................................................................................................................................. 9 Authorization............................................................................................................................................................................ 10 Attachment A – Services Terms and Conditions....................................................................................................................... 11 77 2
City of Oakley 2024 IT Support Services Final

Introduction
KIS has recently assisted with an incident response for the City of Oakley, CA (Oakley) and is interested in determining if KIS would be a good candidate to provide managed support for Oakley.

This is an unsolicited proposal to introduce KIS in this role and our estimate for providing managed services to Oakley. KIS will provide support for IT services for Oakley. KIS has been a successful partner with our clients in supporting their IT environments since 1988. KIS implements the support model specific to the needs of each client. Whether support is a full IT support model, specific staff augmentation for various SME skills, or executive level IT management and strategic guidance, KIS is ready and capable of providing quality support for our clients. Our commitment to excellence is evident in the longevity of our many relationships with the clients we continue to support. KIS will initially provide a support team to gather relevant details and set up the support model. KIS will then provide services specific to the needs of Oakley. The primary model is one onsite resource daily for 4 hours and remote support using the KIS ticketing and service desk resources. Support will include the services in the Statement of Work (below).

Our approach to this engagement is to work directly with Oakley IT manager to manage the support model. KIS will provide tools to support the team specifically RMM, Inventory, ticketing, and SOC services. KIS will conduct an inventory and configurations of all included devices, applications, and services that are in scope during the initial phase. KIS will provide a maintenance chart that will be used to conduct proactive checks on critical infrastructure and other systems and services. KIS has worked with many organizations like Oakley and has a history of being thorough in performing support services. KIS will provide guidance to ensure that Oakley identifies and organizes their strategic projects efficiently and securely.

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City of Oakley 2024 IT Support Services Final

COMPAY BACKGROUND
KIS - Keep IT Simple is an IT solutions provider and multi-disciplinary consultancy serving customers throughout California and beyond since 1988 (36 years). KIS is comprised of approximately 50 employees and is based in Fremont, CA. KIS provides Cloud services through Entra and Cloud hosting facilities in Fremont, CA, Houston, TX, and Kansas City, Mo. KIS has successfully completed thousands of projects, implementations, and mission-critical emergency repairs and services for commercial and government organizations across the nation including a thriving staff augmentation/service desk practice.

KIS practice areas are managed by a KIS partner and includes the following. • Sean Canevaro – KIS Cloud services, Virtualization, KIS Cabling practice Lead, and CEO • Todd Schmitzer – Client Support, Sales Lead, vendor relations, Physical Security and Voice systems
• David Powell – KIS and Microsoft Cloud solutions, Office 365, virtualization, Service Desk Technical Lead, and Infrastructure
• Allan Hurst – Project Management, Virtualization, DNS Infrastructure, Microsoft Active Directory and Server Infrastructure.
• Craig Miller –Cybersecurity, Risk Management, Microsoft solutions, and IT Support • Karen Bascomb – Sales
• Brent Schmidt – Virtualization and Storage
• Boris Bosnacovich – Infrastructure and Cybersecurity Compliance • Kyle Bascomb – Structured Cabling, Datacenter, and physical infrastructure Lead KIS has a number of industry certifications, recognition, awards, and proven expertise in the specific technologies and solutions that are directly in line with projects such as this. The following is a list of relevant awards and certifications that KIS holds. • Microsoft Cloud Solution Provider
• Microsoft Data Center Silver Partner continuous from 2005-2024 • Cisco Certified Premier Partner
• Vmware Partner / Cloud Service Provider – HCI, Server Virtualization, Management, Hybrid/Multi-Cloud, Transform Networking and Security, Empower Digital Workspace competencies and related certifications.
• Awarded Industry ERA 2019 10 Best Security Solution Providers • Awarded Vmware Advanced Professional Data Center virtualization Deployment 2019 • Chosen as a VMware Ignite Partner for Horizon 2007
• Chosen as a VMware Ignite Partner Workspace One 2017
• Chosen as a VMware Ignite Partner HCI 2018
• Chosen as a VMware Ignite Partner Digital Workspace 2020 • Chosen as a VMware Ignite Partner Vmware Cloud Foundation 2020 • Continuous VMware Partner Technical Advisory Board member 2013-2024 • Multiple Vmware VCAP Certifications which represents top .1% of VMware Certifications • VMware Premiere Reseller
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City of Oakley 2024 IT Support Services Final
• VMware VCPP (Cloud Reseller)
• VEEAM Gold Reseller and Silver Service Provider
• ISACA Member for over 11 years
• Arctic Wolf Silver Partner
• TRAPP – ArmorPoint SOCaaS Partner
• DarkTrace – Cybersecurity SIEM/Threat Detection AI
• Center for Internet Security Secure Suite Member and Consultant • Member of the EC-Council (international Security consortium) for 8 years • Fortinet Authorized Partner
• Dell Gold Reseller and authorized to use Dell NASPO to sell to Public Sector. • HPE Business Partner
• Juniper Authorized Partner
• Palo Alto Networks Partner / Innovator
• RingCentral Partner
• Sonicwall Silver Partner
• Tintri / Tegile Partner
• Verkada Partner
KIS contact information:

Sable Computer Inc. dba Keep IT Simple
43160 Osgood Rd.

Fremont, CA 94539
Primary Contact: Craig Miller – Partner and Security/Infrastructure Practice Manager Phone: (510)403-7500 x7560
Email: [email protected]
Service Desk Primary Contact – David Powell
Phone: (510)403-7500 x7566
Email: [email protected]
Alternate Support Contact: Boris Bosnacovich – Associate Partner / Infrastructure Technical Lead Phone: (510)403-7500 x7547
Email: [email protected]
Sales Executive Contact: Matt Eickmann – Sales Executive Phone: (510)403-7500 x7561
Email: [email protected]
80 5
City of Oakley 2024 IT Support Services Final

PROJECT STAFF BACKGROUND AND CERTIFICATIONS
The staffing model is based on the listed services identified in the project SoW. Our service desk team is a select group of professionals across many of our Practice Areas who can provide basic to advanced skills for all levels of services needed. Our approach is to have a single point of contact (SPOC) with alternates to provide Oakley direct and escalated support as needed (i.e. emergencies after-hours). Senior Consultants and practice managers involved with this team will be informed and involved with the support team as is deemed necessary to fulfill support or project tasks. Our partner relationships with vendor products provides vendor escalations for advanced issues that may arise. Work records will be completed by any staff that are involved in any service ticket or request. Oakley can initiate and follow the tickets generated through their dashboard.

Staffing Model and Organization Chart is below;
Primary Support and Project Team Chart:
81 6
City of Oakley 2024 IT Support Services Final
Craig Miller – Client Technical and relationship Lead
Craig Miller is a Partner who leads the KIS Security and Infrastructure Practices and shares the IT Support services role with other partners. He has over 30 years of direct and relevant experience in providing network design, cable systems design, Data Center implementations, Microsoft BackOffice and Server solutions, virtualization planning and implementations, Cyber Security Controls and Defense, Cyber Security Incident Response, Ethical Hacking, Hacking Forensics, and multiple vendor solution implementation experience such as Dell, HPE, Cisco, and many other product deployments. Craig has an extensive history of implementing IT helpdesks, datacenters, and infrastructure projects as well as managing quarterbacking security projects such as this in both commercial and government organizations. Craig has held a number of certifications such as Microsoft’s MCSA and MCP, Cisco’s CCNA, Novell’s CNA, Fiber-Channel and iSCSI Storage solutions, Leviton and Siemon Cabling installation and design, Krone cabling, and Master Project Manager to name a few. Craig is a member the Center for Internet Security and an ISACA member. Craig works with frameworks and tools such as COBIT and CIS Controls, CIS Benchmarks, CIS CAT-Pro as well as successfully implementing NIST 800-53 (Security Controls) and NIST 800-100 (Cyber Security Program Model), NIST-CSF, and has created the KIS Incident Response Team (IRT) that provides “boots on the ground” support for our clients. Craig performs cybersecurity assessments for compliance testing. Craig and his team successfully performed incident response efforts for many commercial and government organizations that includes working with State and Federal agencies during these efforts as needed. Craig currently manages multiple clients in local government, education, commercial, and quasi-government agencies. Craig has defended government organizations from impending attacks from groups such as anonymous and has successfully planned and implemented cybersecurity programs in commercial and government organizations.

David Powell – Consultant and Lead for Azure, Microsoft 365, Cloud and virtualization technologies:

Over 28 years of professional IT experience including the last 18 years in a consulting role that consists of designing and deploying data networks, enterprise identity management solutions, corporate collaboration systems, and cloud and SaaS solutions. Principal Architect and Director of KIS Cloud, a private cloud solution providing Infrastructure as a Service, Desktop as a Service, Backup as a Service, and Disaster Recover as a Service. Infrastructure planning, deploying, and troubleshooting in Microsoft Active Directory, Microsoft Exchange, Microsoft Remote Desktop Services, Microsoft Network Policy Server, Azure AD/Entra, Microsoft 365, Microsoft Intune, Citrix Virtual Desktops and Apps, Citrix Netscaler, VMware vSphere, VMware Horizon, VMware VSAN, and Microsoft Hyper-V. Architected and deployed storage solutions from Dell/EMC, Tegile, NetApp, Nimble, and VMware. Architected enterprise wireless solutions from Cisco/Meraki and Aerohive.

Latest certifications include VMware VCP & VCAP in Data Center Virtualization Boris Bosnacovich– Associate Partner and Infrastructure lead:

Boris leads the infrastructure practice engineering capability. Boris has been in the field since 2011 (13 years). Experienced in a number of vendor solutions and technical aspects of deployment as well as overall global design. Boris is experienced with and has held/holds certifications in Cisco, Sonicwall, Brocade, Meraki/Cisco, Barracuda, and is continuing to fulfill certifications in Fortinet, Palo Alto Networks, and Wireless Solutions (across a number of vendors). Boris is expanding into virtual solutions from Vmware, and Microsoft solutions. Boris is also being trained to achieve the Certified Ethical Hacker (CEH) certification to provide a direct cybersecurity aspect to current and future deployments. Other experience includes Solarwinds, Cisco Unity, RSA SecurID, Cisco ACS, Cisco Call Manager, and is proficient in Ethereal and Wireshark analysis tools. 82 7
City of Oakley 2024 IT Support Services Final
Tier 1 – 3 Technical Support Team – Primary Support Team:

These will be assigned specifically to support the client under this SoW. The team will gather relevant information to enable the other alternate team members to provide support as needed.

The primary team will be 1 primary, 1 secondary, and 1 alternate technical resource and will be scheduled by ticket generation and coordinated by the team coordinator/scheduler. 83 8
City of Oakley 2024 IT Support Services Final
Statement of Work
KIS will provide support for IT services for Oakley. Currently Oakley has an IT Manager and an agreement with an MSP. KIS is to provide all IT services needed to support the client, server, infrastructure, and security of the IT environment. The support model is to be primarily remote with onsite support being provided daily for 4 hours. KIS is to leverage ticketing and remote capabilities using the KIS support tools. KIS will provide the following services.

NOTE: The cost chart is based on this list. Any additions may increase the amount of license costs and support time.
• Production MS AD Forest/Domain
• 4 sites, 100 endpoints
• 17 tablets (All on MS operating systems located in PD Cars) • Printer/Copier routine support (connectivity and toner) • 20 Servers (VMware in place)
• MS365 Administration (Business Standard)
• Palo Alto Firewalls (6 individual and 2 in HA)
• 8 switches
• Administrative support of Oakley applications - CJIS applications, Eden ERP, Tyler MDR, Tiburon, and the backup of the servers
Phase 1 – Initial setup and implementation
• Assign and introduce the support team.
• Implement the KIS Support tools.
• Initial Discovery and Inventory of the included systems, services, applications, infrastructure.
• Documentation of the systems by type and role.
• MS365 review and documentation – acquire access to the Admin portal and CSP management.
• Implement the ticketing and RMM process.
• Introduce the client to the ticketing process and escalations. • Document the Maintenance Schedule (updates, patches, firmware, configuration checks).

Phase 2 - Conduct Support Services
• Assign and schedule on-premises support.
• Introduce the Service Desk coordinator to the client and initiate the service. • Assign and schedule maintenance checks.
• Schedule automated and manual update and patch schedules. • Provide relevant documentation for the support team.
• Conduct services and ticket processing as required Tier 1-3. o Onboarding and Termination of users
o Endpoint support
o Server support
o Printer Support
o Infrastructure device support
▪ Firewall, network, Wireless.
o MS AD administration
o MS365 support
84 9
City of Oakley 2024 IT Support Services Final
o Server and data backup and recovery solution monitoring and administration. o Monthly meeting to provide updates and guidance on projects and strategy for improvements/optimizations.

Non-routine Support services (see exclusions and services outside of standard support (below).

Time and Cost Estimate
Time Cost Chart:

Note: If this is a multi-year contract, year 2 and beyond has a 7% annual rate increase (see CMAS Contract - #: 3-21-07-1018).

All pricing is based on a 12 Month Agreement.

Task Item Cost
Initial Setup and
Configuration (One-Time Cost)
Phase 1
Discovery and Initial setup $5,000.00
Task 1 – One-Time Cost $5,000.00
Monthly Support
On-Premises (M-F 8am1200PM) and remote service desk support $9,667.00 Monthly Support Total: $9,667.00
Support Tools
RMM, Inventory, SOCaaS,
and Ticketing (per Month) 122 Licenses $2,074.00
Support Tool Costs (per
Month): $2,074.00
Total Support Per Month: $11,741.00
Total Costs Year 1 $145,892.00
Note: This proposal is intended for professional services only. All other adds/moves/changes relating to services or equipment not part of support services under this proposal will be charged the fees as listed in the “Exclusions and services outside the standard support” section (below).

Exclusions and services outside the standard support:

Services included in the standard monthly rate are standard IT support services for routine maintenance and support. Anything outside of that support is considered out of scope and will be billed at the appropriate SME rate or as negotiated if a project. These include, but are not limited to, the following.

1. Technology Refresh of the infrastructure, Directory, or systems. 85 10
City of Oakley 2024 IT Support Services Final

2. Adds/moves/changes outside of normal administrative tasks of included systems and services.

3. Emergency Support – i.e. Outages, Cybersecurity Incidents, other system or service failures.

4. Structured cabling and physical infrastructure.

5. Anything not specifically included in the SoW task list.

These services are available but not included in the monthly cost. The rates for these services are as follows and will increase at a rate of +7% in year 2 and beyond per CMAS. CMAS Contract - #: 3- 21-07-1018.

1. $185.00/hr. Emergency Response

2. $165.00/hr. Consultant - Senior Engineer/SME

3. $165.00/hr. Engineer

4. $125.00/hr. Physical infrastructure, Cabling
Authorization
In the event the Customer is required by law to withhold taxes, the Customer agrees to furnish KIS all required receipts and documentation substantiating such payment.

EACH OF THE PARTIES agrees to the details of this Statement of Work and has caused this SOW to be executed by its duly authorized representative.

CLIENT KIS
Signature: Signature:

Printed Name: Printed Name: Craig A. Miller
Title: Title: Director of Infrastructure & Security
Practice, Partner
Date: Date: March 29, 2024
Attachments:

Attachment A – Services Terms and Conditions
86 11
City of Oakley 2024 IT Support Services Final
Attachment A – Services Terms and Conditions

1. Services Keep IT Simple Computer Center Will Supply. Keep IT Simple Computer Center (“KIS”) agrees to deliver to you the services (the “Services”) described in the Statement of Work (SOW) included here. When we refer to “you” in this Agreement, we mean the Customer identified above. When we say “we” or “us,” we are referring to you and KIS.

2. Fees. Subject to Sections 3 and 4 here, you agree to pay KIS the fees for the Services described on the SOW plus any applicable sales, use, or other taxes. There will be additional fees if you change or expand the scope of the work that you ask KIS to do.

3. Estimates. Unless otherwise indicated in the SOW, KIS will perform the Services on a time-and-materials basis. KIS may provide you with an estimated fee. This is KIS’s good faith estimate of the total amount the Services will cost but is not a fixed fee. The actual cost may be more or less than the estimate. If this Agreement specifies a “not-to-exceed” amount, KIS will not bill you for more than such amount without your prior consent. However, KIS does not guarantee the Services will be completed for such an amount.

4. Payment. KIS will send you an invoice on a bi-weekly basis as the Services outlined in this SOW are completed. These invoice(s) are due Net 30. In the event an agreement for prepaid hours is in place, that agreement defines the specific terms of payment and other details related to the services agreement and is to be the defining Terms and Conditions for this SoW.

5. Warranty. KIS agrees to provide qualified consultants who will perform their work in accordance with generally and currently accepted consulting principles and practices. The Services will be deemed accepted unless you notify KIS in writing within fifteen business days after performance that the Services did not conform to this warranty. KIS will promptly correct any non-conformities and will notify you in writing that the non-conformities have been corrected; the Services then will be deemed to be accepted after fifteen business days following such notice unless you notify KIS that the non-conformities have not been corrected. KIS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH RESPECT TO THE PERFORMANCE

OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE

PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION KIS MAY PROVIDE.

6. Your Responsibilities.
a. You agree to provide the resources described in the section of the SOW entitled “Customer Responsibilities.” b. We agree generally to cooperate with each other to see that the Services are successfully completed. c. KIS IS NOT RESPONSIBLE FOR LOSS OF DATA OR LOSS OF USE OF ANY OF YOUR COMPUTER OR NETWORK SYSTEMS RESULTING FROM ITS PERFORMANCE OF THE SERVICES.

7. You represent and warrant to KIS that you have obtained permission for both you and KIS to access and use your system, the data on it and all hardware and software components included in it for the purpose of providing the Services. If you do not already have such permission, it is your responsibility to obtain it, at your expense, before you ask KIS to perform the Services.

8. Limitation of Liability. NEITHER ONE OF US WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE,

INCLUDING BUT NOT LIMITED TO ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR LOSS, LOST PROFITS OR LOST DATA, ARISING OUT OF

OR IN CONNECTION WITH (A) THIS AGREEMENT OR THE SERVICES, (B) THE RESULTS OR OPERATION OF ANY SYSTEM RESULTING FROM IMPLEMENTATION OF ANY RECOMMENDED PLAN OR DESIGN. UNDER NO CIRCUMSTANCES WILL KIS BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE SERVICES FEE UNDER THE APPLICABLE STATEMENT OF WORK FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION THAT GIVES RISE TO YOUR CLAIM. THIS

LIMITATION OF LIABILITY APPLIES TO ALL TYPES OF LEGAL THEORIES, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, PROFESSIONAL LIABILITY, PRODUCT LIABILITY, WARRANTY OR OTHERWISE.

9. Confidentiality. We do not expect that either of us will have access to the other’s confidential information, so this Agreement does not include a nondisclosure agreement. If in the future it becomes necessary for one or the other of us to disclose confidential information, we will sign a separate nondisclosure agreement. In the meantime, each of us will assume that what the other tells us or shows us is not confidential.

10. HIRING OF EMPLOYEES. During the Term and for a period of two (2) years after termination of this Agreement, neither Customer nor KIS shall directly recruit or solicit for employment any employees of the other without the prior written approval of the Party whose employee is being considered for employment.

11. Forms. We agree that the use of preprinted forms, such as acknowledgments, purchase orders or invoices, will be for convenience only, and all preprinted terms and conditions stated on the forms will not apply to this Agreement.

12. Independent Contractor. KIS is an independent contractor. Neither of us will consider the other its agent or representative. You will not be responsible for paying benefits or employment taxes for the KIS persons who perform the Services, and they will not be considered as your employees.

13. Governing Law and Venue. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. IN ADDITION, THE PARTIES AGREE THAT ANY DISPUTES ARISING OUT OF THIS CONTRACT SHALL BE HELD WITHIN A COURT OF COMPETENT JURISDICTION WITHIN ALAMEDA COUNTY, CALIFORNIA.

14. Entire Agreement. This Agreement, as modified by the customer purchase order and including all attachments and exhibits hereto, is the complete agreement between us. Neither of us will try to claim that we agreed to something else, unless it is in writing and signed by both of us.

15. Notices. All notices provided for herein shall be in writing and delivered to the other KIS Project Manager, whose name and address appear on the SOW and the customer’s superintendent. Each of us can change our respective designated Project Managers, or their address, by providing written notice to the other. 87 STAFF REPORT
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Rob Barker, Information Technology Manager
SUBJECT: Adopt a Resolution Authorizing the Purchase and Installation of a New Storage Area Network and Appropriation of $105,538 from the ARPA Fund in FY 2023/2024
Background and Analysis
A Storage Area Network (SAN) is a specialized, high-speed network that provides network access to storage devices. SANs are typically composed of hosts, switches, storage elements, and storage devices that are interconnected using a variety of technologies, topologies, and protocols and may span multiple sites. The normal life expectancy of a Storage Area Network (SAN) is approximately five to seven years.

The City’s SAN was last upgraded in 2018 and has had two major outages between May 2022 and November 2023. The existing SAN became a part of a new vendor’s product line by acquisition, is no longer under support, and has been phased out by the new vendor.

The City has received three quotes (Attachment 2 to the staff report) for a replacement SAN . The quote from Keep IT Simple (KIS) is the lowest at $105,537.47 (including fiber cables that the City would have to purchase separately) . KIS is an information technology solutions provider located in the San Francisco Bay Area. KIS was recommended to the City of Oakley by another City within Contra Costa County, and the City of Oakley was highly satisfied with the support services recently provided by KIS while recovering from the recent cyberattack. The useful life for the proposed SAN is approximately five to 10 years and the quote includes five years of support.

Consistency with the Oakley Strategic Plan 27+
Approval of this item is consistent with the Sustainable Organization Goal’s objective of identifying and investing in resources to execute the City’s responsibilities and subobjective of upgrading IT services to include new computer systems and more efficient IT response to computer and technical issues to ensure projects can be delivered efficiently.

Approved and
Forwarded to the
City Council
88 STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us Fiscal Impact
The one-time cost to replace the SAN and fiber cables is $105,537.47 ($86,937.47) equipment and $18,600 labor). Funding for the project is available in the American Rescue Plan Act (ARPA) Fund, from the portion of funding the City Council allocated to technology expenses.

Staff Recommendation
Staff recommends the City Council adopt the proposed resolution authorizing the purchase and installation of a new Storage Area Network and approve the appropriation of $105,538 from the ARPA Fund in FY 2023/2024 for the goods and services.

Attachments

1. Proposed Resolution

2. Storage Area Network Equipment Quotes
89 Resolution No. XX-22 Page 1 of 1
RESOLUTION NO. X-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY AUTHORIZING

THE PURCHASE AND INSTALLATION OF A NEW STORAGE AREA NETWORK AND APPROPRIATION OF $105,538 FROM THE AMERICAN RESCUE PLAN ACT (ARPA) FUND IN FY 2023/24
WHEREAS, Storage Area Network (SAN) is a specialized, high-speed network that provides network access to storage devices and are typically composed of hosts, switches, storage elements, and storage devices that are interconnected using a variety of technologies, topologies, and protocols and may span multiple sites; and WHEREAS, the City’s SAN was last upgraded in 2021, is no longer under warranty, has experienced two recent failures, and is at the end of its useful life; and WHEREAS, the City received three quotes for the SAN replacement with the lowest quote being $105,537.47 from Keep IT Simple (KIS), an information technology solutions provider located in the San Francisco Bay Area.

BE IT RESOLVED by the City Council of the City of Oakley that the purchase and installation of a new Storage Area Network is hereby approved at a cost note to exceed 105,537.47.

BE IT FUTHER RESOLVED by the City Council of the City of Oakley that the City Manager is authorized to appropriate $105,538 in American Rescue Plan Act Funds for the purchase and installation of the Storage Area Network.

PASSED AND ADOPTED by the City Council of the City of Oakley this 23rd day of April 2024 by the following vote.

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Anissa Williams, Mayor
ATTEST:
____________________ ________
Libby Vreonis, City Clerk Date
90

Page 1 of 2 ends

RackSimply International Corp.
3100 N Lake Harbor ln, suite 174
Boise, ID 83703 US
[email protected]
Estimate

ADDRESS
City of Oakley
3231 Main Street
Oakley, CA 94561

SHIP TO
City of Oakley
3231 Main Street
Oakley, CA 94561
ESTIMATE 3132
DATE 03/21/2024

PART NUMBER DESCRIPTION QTY PRICE EXTENDED TOTAL
R4U33A HPE Alletra 5010 Adaptive Flash Array Dual
Controller Configure-to-order Base Array
1 12,832.00 12,832.00T
R4G78A HPE Nimble Storage 2x32Gb 2-port Fibre
Channel FIO Adapter Kit
1 12,100.00 12,100.00T
R4U47A HPE Alletra 5000 Adaptive Flash Array 2.88TB
(3x960GB) SATA 6G FIO Cache Bundle
1 18,288.00 18,288.00T
R8F35A HPE Alletra 5000 Adaptive Flash Array 1.44TB
(3x480GB) SATA 6G FIO Cache Bundle
1 9,625.00 9,625.00T
Q8J27A HPE Nimble Storage C13 to C14 250V
10Amp 1.8m Universal FIO Power Cord
2 1.00 2.00T
R4U42A HPE Alletra 5000 42TB (21x2TB) SAS 12G
FIO HDD Bundle
1 22,490.00 22,490.00T
R9X15A HPE Alletra Tier 1 Storage Array Standard
Tracking
1 1.00 1.00T
S2V19A HPE Alletra Storage 5000 2x 1200W Platinum
FIO Power Supply Kit
1 1.00 1.00T
Q8G27B HPE Tier 1 Storage OS Default FIO Software 1 1.00 1.00T S0L75AAE HPE Alletra 5010 Software and Support 5-
year SaaS
1 13,508.00 13,508.00T
HA124A1 HPE Technical Installation Startup SVC 1 0.00 0.00T HA124A1 5MR HPE Tier 1 Storage Array Startup SVC 1 3,725.00 3,725.00T HU4A6A5 HPE 5Y Tech Care Essential Service 1 0.00 0.00T HU4A6A5 Z8K HPE NS 2x32Gb 2p FC Adptr Supp 1 2,693.00 2,693.00T HU4A6A5007D HPE Alletra 5010 CTO Base Array Supp 1 1,628.00 1,628.00T HU4A6A5007M HPE Alletra 5000 42TB SAS HDD Bdl Supp 1 2,856.00 2,856.00T HU4A6A5007S HPE Alletra 5000 1.44TB FIO CachBdl Supp 1 1,222.00 1,222.00T HU4A6A5007T HPE Alletra 5000 2.88TB FIO CachBdl Supp 1 2,321.00 2,321.00T State of California Participating Addendum #7-23-70-55-03 SUBTOTAL 103,293.00 TAX 9,038.14
91 Account Executive: Dianna De Stefano
Phone:

Fax:

Email: Date: 3/21/2024
Valid Through: 4/20/2024
Account #: Contra Costa
Customer Contact: Rob Barker Phone: (925) 625-7032
Email: [email protected] Fax:

DELIVERY FOB SHIP VIA SHIP WEIGHT TERMS CONTRACT ID#
Destination Small Pkg Ground Service Level 179.00 lbs
* Line # Qty Item # Mfg. Part # Description Mfg. Price Ext 1 1 41545185 R4U33A CTO ENT Alletra 5010 CTO Base Array Hp Enterprise Storageworks
Hp Enterprise
Storageworks $ 13,700.00 $ 13,700.00
2 1 41153850 R4G78A
CTO ENT NS 2x32Gb 2p FC FIO Adptr
Kit
Nimble Storage
Nimble Storage $ 12,800.00 $ 12,800.00
3 1 41531987 R4U47A
CTO ENT Alletra 5000 2.88TB FIO Cache
Bundle
Hp Enterprise Storageworks
Hp Enterprise
Storageworks $ 19,900.00 $ 19,900.00
4 1 41605934 R8F35A
CTO ENT Alletra 5000 1.44TB FIO Cache
Bundle
Hp Openview
Hp Openview $ 10,500.00 $ 10,500.00
5 2 41384967 Q8J27A
AC Power Cord, C13 to C14 FIO, CTO
ENT
Nimble Storage
Nimble Storage $ 1.00 $ 2.00
6 1 41531988 R4U42A
CTO ENT Alletra 5000 42TB SAS FIO
Hard Drive Bundle
Hp Enterprise Storageworks
Hp Enterprise
Storageworks $ 24,400.00 $ 24,400.00
7 1 41500347 R9X15A
CTO ENT Alletra Tier 1 Storage Array Std
Trk
Hp Openview
Hp Openview $ 1.00 $ 1.00
8 1 41758863 S2V19A
CTO ENT HPE AL STG 5000 2x 1200W
Plat FIO PS Kit
Hp Openview
Hp Openview $ 1.00 $ 1.00
9 1 41240782 Q8G27B
CTO ENT NOS Default Software License
FIO
Nimble Storage
Nimble Storage $ 1.00 $ 1.00
10 1 41588045 S0L75AAE
CTO ENT HPE Alletra 5010 SW / Sup 5yr
SaaS
Hp Openview
Hp Openview $ 9,850.00 $ 9,850.00
11 1 41338565 HA124A1
CTO ENT Technical Installation Startup
SVC
Hp Openview
Hp Openview $ - $ -
12 1 41430317 HA124A1#5MR
CTO ENT HPE Tier 1 Storage Array
Startup SVC
Hp Openview
Hp Openview $ 4,064.00 $ 4,064.00
13 1 41254183 HU4A6A5 CTO ENT 5Y TC Essential SVC
Hp Openview Hp Openview $ - $ -
USA
(925) 625-7032 (925) 625-7032
5-30 Days A/R/O
Important Notice: --- THIS QUOTATION IS SUBJECT TO THE FOLLOWING Terms of Sale: All purchases from GovConnection, Inc. are subject to the Company's Standard Terms of Sale, which describe important legal rights and obligations. You may review the Company's Standard Terms of Sale on the Company's website: www.govconnection.com, or you may request a copy via fax, e-mail, or mail by calling your account representative. The only exception to this policy is if your order is being placed under any one of our many national, state, educational or cooperative Agreements, in which case the Terms and Conditions of your Purchase Order are already pre-negotiated and stated in that Agreement. No other Terms and Conditions shall apply and any other terms and conditions referenced or appearing in your Purchase Order are considered null and void. Due to the industry-wide constraints and fluctuations, we reserve the right to change pricing at any time. Please refer to our Quote Number in your order.

SALES QUOTE
GovConnection, Inc. # 25611659.01
732 Milford Road PLEASE REFER TO THE ABOVE
Merrimack, NH 03054 QUOTE # WHEN ORDERING
City of Oakley
USA
3639 Main St
QUOTE PROVIDED TO: SHIP TO:

City of Oakley
Rob Barker Rob Barker
3639 Main St
Oakley, CA 94561 Oakley, CA 94561

Page 1 of 3 ends

603-683-4153
[email protected]
92 Account Executive: Unassigned Unassigned
Phone:

Fax:

Email: Date: 3/21/2024
Valid Through: 4/20/2024
Account #: Contra Costa
Customer Contact: Rob Barker Phone: (925) 625-7032
Email: [email protected] Fax:

DELIVERY FOB SHIP VIA SHIP WEIGHT TERMS CONTRACT ID#
Destination Small Pkg Ground Service Level 179.00 lbs
* Line # Qty Item # Mfg. Part # Description Mfg. Price Ext USA
(925) 625-7032 (925) 625-7032
5-30 Days A/R/O
Important Notice: --- THIS QUOTATION IS SUBJECT TO THE FOLLOWING Terms of Sale: All purchases from GovConnection, Inc. are subject to the Company's Standard Terms of Sale, which describe important legal rights and obligations. You may review the Company's Standard Terms of Sale on the Company's website: www.govconnection.com, or you may request a copy via fax, e-mail, or mail by calling your account representative. The only exception to this policy is if your order is being placed under any one of our many national, state, educational or cooperative Agreements, in which case the Terms and Conditions of your Purchase Order are already pre-negotiated and stated in that Agreement. No other Terms and Conditions shall apply and any other terms and conditions referenced or appearing in your Purchase Order are considered null and void. Due to the industry-wide constraints and fluctuations, we reserve the right to change pricing at any time. Please refer to our Quote Number in your order.

SALES QUOTE
GovConnection, Inc. # 25611659.01
732 Milford Road PLEASE REFER TO THE ABOVE
Merrimack, NH 03054 QUOTE # WHEN ORDERING
City of Oakley
USA
3639 Main St
QUOTE PROVIDED TO: SHIP TO:

City of Oakley
Rob Barker Rob Barker
3639 Main St
Oakley, CA 94561 Oakley, CA 94561
14 1 41478512 HU4A6A5#Z8K
CTO ENT HPE NS 2x32Gb 2p FC Adptr
Supp Nimble Storage $ 2,935.00 $ 2,935.00
15 1 41552012 HU4A6A5007D
CTO ENT HPE Alletra 5010 CTO Base
Array Supp
Hp Openview
Hp Openview $ 1,775.00 $ 1,775.00
16 1 41552013 HU4A6A5007M
CTO ENT HPE Alletra 5000 42TB SAS
HDD Bdl Supp
Hp Openview
Hp Openview $ 3,115.00 $ 3,115.00
17 1 41605935 HU4A6A5007S
CTO ENT HPE Alletra 5000 1.44TB FIO
CachBdl Supp
Hp Openview
Hp Openview $ 825.00 $ 825.00
18 1 41552014 HU4A6A5007T
CTO ENT HPE Alletra 5000 2.88TB FIO
CachBdl Supp
Hp Openview
Hp Openview $ 1,685.00 $ 1,685.00
Subtotal $ 105,554.00
Fee $ 0.00
Shipping and
Handling $ 0.00
Tax $ 7,114.20
Total $ 112,668.20

Page 2 of 3 ends

ORDERING INFORMATION
GovConnection, Inc. DBA Connection
Please contact your account manager with any questions.

Ordering Address
GovConnection, Inc.
732 Milford Road
Merrimack, NH 03054
Remittance Address
GovConnection, Inc.

Box 536477
Pittsburgh, PA 15253-5906
Please reference the Contract # on all purchase orders.

TERMS & CONDITIONS
Payment Terms: NET 30 (subject to approved credit)
FOB Point: DESTINATION (within Continental US)
Maximum Order Limitation: NONE
FEIN: 52-1837891
DUNS Number: 80-967-8782
CEC: 80-068888K
Cage Code: OGTJ3
Business Size: LARGE
Erate Spin Number: 143026005
WARRANTY: Manufacturer’s Standard Commercial Warranty
NOTE: It is the end user's responsibility to review, understand and agree to the terms of any End User License Agreement (EULA).

Important Notice: --- THIS QUOTATION IS SUBJECT TO THE FOLLOWING Terms of Sale: All purchases from GovConnection, Inc. are subject to the Company’s Standard Terms of Sale, which describe important legal rights and obligations. You may review the Company’s Standard Terms of Sale on the Company’s website: www.govconnection.com or you may request a copy via fax, e-mail, or mail by calling your account representative. The only exception to this policy is if your order is being placed under any one of our many national, state, educational or cooperative Agreements, in which case the Terms and Conditions of your Purchase Order are already prenegotiated and stated in that Agreement. No other Terms and Conditions shall apply and any other terms and conditions referenced or appearing in your Purchase Order are considered null and void. Due to the industry-wide constraints and fluctuations, we reserve the right to change pricing at any time. Please refer to our Quote Number in your order.

If you require a hard copy invoice for your credit card order, please visit the link below and click on the Proof of Purchase/Invoice link on the left side of the page to print one:https://www.govconnection.com/web/Shopping/ProofOfPurchase.htm Please forward your Contract or Purchase Order to:

[email protected]
QUESTIONS: Call 800-800-0019
94 KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10498 v2
Date 2024/04/08
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-08-2024 HPE 5010 Hybrid - 5 Year
Fees
Category Item Qty Price Total
Storage
Arrays &
Servers
HPE Alletra 5010 CTO Base Array 1 $21,135.00 $21,135.00 Network
Interface
Cards
HPE NS 2x32Gb 2p FC FIO Adapter Kit 1 $7,116.00 $7,116.00 Hard
Drives/Solid
State Drives
HPE Alletra 5000 2.88TB FIO Cache Bundle 1 $9,076.00 $9,076.00 Hard
Drives/Solid
State Drives
HPE Alletra 5000 1.44TB FIO Cache Bundle 1 $4,777.00 $4,777.00 Hard
Drives/Solid
State Drives
HPE NS C13 to C14 FIO Power Cord 2 $0.00 $0.00
Hard
Drives/Solid
State Drives
HPE Alletra 5000 42TB SAS FIO HDD Bundle 1 $11,162.00 $11,162.00 Service HPE Alletra Tier 1 Storage Array Standard Tracking 1 $0.00 $0.00 †
Power
Supplies
HPE 5000 2x 1200W Plat FIO Power Supply Kit 1 $0.00 $0.00 Software HPE Tier 1 Storage OS Default FIO Software 1 $0.00 $0.00 †
Support HPE Alletra 5010 Software Support, 5 Year SaaS 1 $12,190.00 $12,190.00 †
Service HPE Technical Installation Startup Service 1 $0.00 $0.00 †
Service HPE Tier 1 Storage Array Startup Service 1 $6,000.00 $6,000.00 †
Service HPE Technical Care Essential Exchange Service, 5 Years 1 $0.00 $0.00 †

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10498 v2 2 / 4
95 † Non-taxable item
Please contact us if you have any questions. One-Time Subtotal $82,200.00 (8.75%) $4,660.78
Total $86,860.78 USD
Support HPE NS 2x32Gb 2-Port FC Adapter Support - 5 Years 1 $4,010.00 $4,010.00 †
Support HPE Alletra 5010 CTO Base Array Support - 5 Years 1 $1,370.00 $1,370.00 †
Support HPE Alletra 5010 42TB SAS HDD Bundle Support - 5 Years 1 $2,394.00 $2,394.00 †
Support HPE Alletra 5010 1.44TB FIO Cache Bundle Support - 5 Years 1 $1,030.00 $1,030.00 †
Support HPE Alletra 5010 11.52TB FIO Cache Bundle Support - 5 Years 1 $1,940.00 $1,940.00 †
Category Item Qty Price Total
Cost Breakdown
Category Fees
Storage Arrays & Servers $21,135.00
Network Interface Cards $7,116.00
Hard Drives/Solid State Drives $25,015.00
Service $6,000.00
Power Supplies —
Software —
Support $22,934.00
$4,660.78
Total $86,860.78 USD
Terms and Conditions
A convenience fee of two point nine percent (2.9%) will be applied to credit card purchases.

Contact

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10498 v2 3 / 4
96 † Non-taxable item
Please contact us if you have any questions.

Comments
CMAS #: 3-21-07-1018
Total $15,480.00 USD
KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10478 v3
Date 2024/04/08
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-08-2024 SAN Services
Fees
Category Item Qty Price Total
Labor /
Professional
Services
KIS Professional Services - SAN Migration & Configuration Assist with deployment of storage array. Test and validate new storage array Create new storage design configuration
Migrate virtual machines to new storage
1 $15,480.00 $15,480.00
†
Cost Breakdown
Category Fees
Labor / Professional Services $15,480.00
Total $15,480.00 USD
Terms and Conditions
A convenience fee of two point nine percent (2.9%) will be applied to credit card purchases.

ACCEPT QUOTE

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10478 v3 2 / 3
97 † Non-taxable item
Please contact us if you have any questions.

Comments
CMAS #: 3-21-07-1018
Total $3,120.00 USD
KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10479 v3
Date 2024/04/12
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-12-2024 - Horizon
Fees
Category Item Qty Price Total
Labor /
Professional
Services
KIS Professional Services - Horizon Optimization
Update Horizon configuration and migrate VDI workloads to new storage 1 $3,120.00 $3,120.00
†
Cost Breakdown
Category Fees
Labor / Professional Services $3,120.00
Total $3,120.00 USD
Terms and Conditions
A convenience fee of two point nine percent (2.9%) will be applied to credit card purchases.

Contact

ACCEPT QUOTE

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10479 v3 2 / 3
98 Please contact us if you have any questions.

Comments
CMAS #: 3-18-70-2443Q
One-Time Subtotal $70.52
(8.75%) $6.17
Total $76.69 USD
KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 10458 v2
Date 2024/04/12
Expires 2024/05/31
Contact Matt Eickmann
Prepared for City of Oakley
Rob Barker
3231 Main St
Oakley, CA 94561
United States
T: 925-625-7032
E: [email protected]
04-12-2024 Fiber Patch Cables
Fees
Category Item Qty Price Total
Cable DX/LC-LC/50uAqua10Gig/2M Fiber Patch Cord-OM4
DX/LC-LC/50uAqua10Gig/2M Fiber Patch Cord-OM4
4 $17.63 $70.52
Cost Breakdown
Category Fees
Cable $70.52
$6.17
Total $76.69 USD
Terms and Conditions
A convenience fee of two point nine percent (2.9%) will be applied to credit card purchases.

ACCEPT QUOTE

ACCEPT QUOTE
Quote
KIS - Keep IT Simple - Quote # 10458 v2 2 / 3
99 STAFF REPORT

City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: City Council
FROM: Joshua McMurray, City Manager
SUBJECT: Authorization to Execute a Purchase and Sale Agreement with KB Home North Bay, LLC for the Sale of the Real Property Containing Approximately 27.0-Acres, Located at the Northeast Corner of E.

Cypress Rd. and Knightsen Avenue (APN 032-081-025)
Background and Analysis
History of the Dutch Slough Properties
Prior to incorporation of the City, Contra Costa County designated approximately 1,500 acres owned by the Emerson, Gilbert, and Burroughs families (the "Dutch Slough area"), for urban development and executed Development Agreements (DAs) with the land owners. Upon incorporation, the DAs with the County became binding upon the City.

In fall of 2001, the Dutch Slough landowners submitted an application to the Cal-Fed Delta Program to sell the properties north of the CCWD/USBR Canal to create the Dutch Slough Tidal Marsh Restoration Project. On September 2002, the City Council approved a Memorandum of Understanding ("MOU") between the City and the Dutch Slough landowners summarizing the terms of basic understanding regarding the disposition of the northern and southern portions of the properties and the future planning for the southern portions. In August 2003, the MOU was supplemented by DAs between the City and the Dutch Slough landowners to formalize and secure the rights created in the MOU, General Plan, and the Department of Water Resources (DWR) transaction.

In March of 2005 the City Council approved a collaborative planning processing for the Dutch Slough area. A group of five developers and the City developed the Dutch Slough Planning Framework Study to guide the development of the three properties made up of the Emerson, Gilbert and Burroughs properties. After the completion of the Dutch Slough Planning Framework Study, the City began processing the Tentative Maps for the three properties and one Environmental Impact Report for the Dutch Slough project area. This cooperative framework went away during the recession and the Emerson and Gilbert properties have now developed separately.

Emerson Ranch has been mostly built-out with Neighborhoods 1-5 constructed and Neighborhood 6 is wrapping up construction and the commercial parcel has an approved project wich has yet to be constructed. The Delaney Park (former Gilbert property) project is nearly complete.

Approved and
Forwarded to the
City Council
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STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US The Burroughs property is comprised of two parcels. APN 032-081-026, which is approximately 17.90-acres, is owned by the Burroughs Family and APN 032-081- 025, which is approximately 27-acres, is owned by the City. The City received the 27-acres as part of the transaction discussed above between the State and parcel owners.

Cooperative Agreement with WestGate Services
On December 10, 2019, the Oakley City Council approved the Cooperative Agreement between the City and WestGate Services for the entitlement and Preparation for Sale of this property. There are significant economies of scale to plan, entitle and develop both the Burroughs' 18 acres and the City's 27 acres together. The planning and entitlement work would include geotechnical analyses, biological consultants, civil engineering, preliminary architectural and other related consultancy. It is also believed that the sales proceeds on the sale of the jointly planned parcels to be much higher than if planned, entitled and sold separately.

The Cooperative Agreement sets forth the terms and conditions of our arrangement with WestGate. The key provisions include:
 WestGate oversees the various consultants and professionals needed to plan, entitle and sell the property.
 Unless a particular consultant is only needed for the Burroughs Property, or the City's property, all costs of consultants will be shared equally. (Price proposals/bids will be jointly reviewed by WestGate and the City and be mutually agreed upon).
 Communication and coordination between WestGate and the City will focus on the main goal of maximizing value of the properties.  WestGate will process all entitlement documents with the City to include, any General Plan Amendment (not being proposed), Tentative Map, Design Review, etc.
 WestGate will assist with the marketing and sale of the City property to a merchant homebuilder and will receive 2.5% of the sales price as commission.
 WestGate would also receive upon sale of the property a $30,000 a fee for coordinating the work of the consultants and entitlement process. 101

STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 3
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US  The City would not charge for City staff time for this development; however, costs to the City by outside parties providing services needed to process the development application would be billed to the development.

The City entered into a Purchase and Sale Agreement with DR Horton in March of 2022, after an extensive marketing campaign by WestGate. That deal never went further than the due diligence stage. In November of 2023, the City entered into a Purchase and Sale Agreement with Landsea Homes. That deal also never went past the due diligence stage. Westgate entertained three offers from three builders but only one was deemed to be serious and worth considering. The Purchase and Sale Agreement being proposed for consideration is with KB Home North Bay, LLC.

They are a California based company with over a decade of experience building quality communities in ten states, including northern and southern Califonria.

One thing to note, is that the offer received accounts for affordable housing, which is a State imposed City requirement when we dispose of a residential property (Govt Code section 54233). The builder would be required to deliver to the City 17 finished lots, or 15% of the total number of lots, which is the State requirement. Those lots will then be used for below market rate homes, in which the City will need to find a partner to work with. That state requirement would cap the sales price of the 17 homes to no more than 80% of Area Median Income (AMI).

City Council Approval of the Burroughs Subdivision
On May 25, 2021, the City Council approved the Burroughs property subdivision which consisted of a Rezone (RZ 01-21) and Vesting Tentative Map (TM 01-21) to rezone the property from the A-3 (Heavy Agriculture) District to the Planned Development (P-1) District and to subdivide the approximately 43.24-acre project site into 208 single-family residential lots with associated site improvements and amenities. Of the 208 approved lots, the City owns 115 lots and WestGate controls 93. This Purchase and Sales agreement only addresses the 115 City owned lots.

The City retained Brothers Smith LLP to assist with the preparation and review of the Purchase and Sales Agreement. This firm is the same firm that WestGate Services is using.

It should be noted that the City did follow the provisions Government Code Section 54220 of the State of California, by providing notification that the City intends to sell the surplus property to affordable housing developers. We did not receive any formal interest on the property during that process, thus reducing our obligation to the State to provide Affordable Housing from a 25% requirement down to a 15% requirement. 102

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CITY HALL | 3231 Main Street, Oakley, CA 94561 4
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Purchase and Sale Agreement
The Purchase and Sale Agreement contains the terms for the purchase of the property. The purchase price is $5,383,517, with a series of two deposits to be given to the City. The first deposit would amount to $50,000 and would be due within 5 days of after the opening of escrow. The second deposit of $250,000 would be due after the 65 day due-diligence period ends and the buyer provides the City with a Notice of Suitability.

The City is currently going through the United States Bureau of Reclamation as part of the Burroughs Central Valley Project Inclusion process. That process is expected to wrap up in the next few months and the escrow related to this Purchase and Sale Agreement is expected to close on or before July 16, 2024.

Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Finance and Fiscal Responsibility Goal and specifically the sub-objective that points to the City making the most needed improvements to streets, utilizing development’s improvements, funds from the sale of property, and other financing sources to make improvements to the East Cypress traffic flow situation.

Fiscal Impact
The City stands to generate at a minimum $5,383,517 of gross revenue off the sale of this City owned property. The net proceeds would take into account the agreement the City has with WestGate Services and the City share of the costs to entitle the property.

Staff Recommendation
Staff recommends that the Council adopt the resolution approving the Purchase and Sale Agreement with KB home North Bay, LLC for the sale of the real property containing approximately 27.0-Acres, located at the northeast corner of E. Cypress Rd. and Knightsen Avenue (APN 032-081-025).

Attachments
Site Map
Draft Resolution
Draft Purchase and Sale Agreement
103
Vicinity Map
Burroughs Purchase and Sale Agreement
Northeast corner of East Cypress Rd. and Knightsen Ave.

APNs. 032-081-025
104
RESOLUTION NO. XX-24

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY

AUTHORIZING THE CITY MANAGER TO EXECUTE A PURCHASE AND SALE

AGREEMENT WITH KB HOME NORTH BAY, LLC FOR THE SALE OF THE REAL PROPERTY CONTAINING APPROXIMATELY 27.0-ACRES, LOCATED AT THE NORTHEAST CORNER OF E. CYPRESS RD. AND KNIGHTSEN AVENUE (APN 032-081-025)
BE IT RESOLVED by the City Council of the City of Oakley that the City Manager is hereby authorized and directed to sign on behalf of the City that certain Purchase and Sales Agreement between the City and with KB Home North Bay, LLC for the sale of the real property containing approximately 27.0-Acres, located at the northeast corner of E. Cypress Rd. and Knightsen Avenue (APN 032-081-025).

The foregoing resolution was introduced at a regular meeting of the Oakley City held on the 23rd day of April 2024, by Councilmember _________________, who moved its adoption, which motion being duly seconded by Councilmember _______________, was upon voice vote carried and the resolution adopted by the following vote:

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
__________________________
Anissa Williams, Mayor Date
ATTEST:
__________________________ _
Libby Vreonis, City Clerk Date
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PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions (“Agreement”) is made and entered into by and between THE CITY OF OAKLEY, a California municipal corporation (“Seller”), and KB HOME NORTH BAY LLC, a Delaware limited liability company (“Buyer”), each a “Party” and collectively the “Parties.”

1. PURCHASE AND SALE OF REAL PROPERTY

1.01 Agreement of Purchase and Sale. For and in consideration of the promises, undertakings, and mutual covenants of the Parties set forth in this Agreement, Seller hereby agrees to sell and convey unto Buyer, and Buyer hereby agrees to purchase and take from Seller the real property containing approximately 27.04 acres located at the northeast corner of E.

Cypress Rd. and Knightsen Avenue, in the City of Oakley (“City”), Contra Costa County (“County”), California (“State”), APN 032-081-025, which is more particularly described in Exhibit A attached hereto, together with any and all improvements, rights and appurtenances pertaining thereto, including, but not limited to, all associated easements, privileges, entitlements, permits, rights of way and appurtenances benefiting such land, development rights, air rights, water rights, mineral, oil and gas and other subsurface rights, and all right, title, and interest of Seller in and to adjacent streets, alleys, easements, and rights-of-way, to the extent of Seller’s interest therein, if any, all of such real property, rights and appurtenances being referred to as the “Property.” The Parties acknowledge that Buyer has entered into (or intends to enter into) an agreement with WESTGATE VENTURES FUND III, LLC, a California limited liability company (“Assignor”), to acquire the property adjacent to the Property containing approximately 17.9 acres located at Cypress Road and commonly known as County Assessor’s Parcel Number 032-081-026 (“Adjacent Property”). The City and other applicable governmental authorities approved Vesting Tentative Map No. TM-01-21 (Subdivision 9557) with respect to the Property and the Adjacent Property (“Tentative Map”), related CEQA clearance or approvals, and other permits, approvals, and entitlements to permit development of ninety-three (93) single family lots (“Lots”) on the Adjacent Property and one hundred fifteen (115) Lots on the Property planned for residences to be constructed thereon (collectively, the “Residences”), of which seventeen (17) Lots, as described on Exhibit A-1 attached hereto (“Affordable Lots”), will be conveyed back to the City as one or more conveyable parcels to be developed as below market rate Residences in accordance with Section 7.02 below.

1.02 Purchase Price. The purchase price for the Property (“Purchase Price”) shall be Five Million Three Hundred Eighty-Three Thousand Five Hundred and Seventeen Dollars ($5,383,517).

1.03 Deposit.
(a) Deposit. In consideration for the right to purchase the Property granted in this Agreement by Seller to Buyer: (i) Buyer and Seller shall, within five (5) business days after the Effective Date (as defined below), open escrow (“Escrow”) with First American Title Company, 4750 Willow Road, Suite 275, Pleasanton, CA 94588, Attn: Sarah Eads (“Escrow Holder”) by delivering a fully executed copy of this Agreement to Escrow Holder (“Opening of 106
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Escrow”), and (ii) within five (5) business days after the Opening of Escrow, Buyer shall deliver to Escrow Holder the sum of Fifty Thousand Dollars ($50,000) (“Initial Deposit”). If Buyer delivers the Notice of Suitability pursuant to Section 4.02, Buyer shall, within five (5) business days thereafter, deliver to Escrow Holder the additional sum of Two Hundred Fifty Thousand Dollars ($250,000) (“Second Deposit”). All references herein to “Deposit” refer to the Initial Deposit and the Second Deposit to the extent delivered by Buyer to Escrow Holder, and all interest earned on the Deposit. Upon Buyer’s delivery of the Notice of Suitability to Seller as provided in this Agreement, the Initial Deposit and the Second Deposit shall be nonrefundable to Buyer, except as otherwise provided in this Agreement.
(b) Termination. If Buyer fails to deposit the Initial Deposit as required by this Agreement, and if such failure continues for more than two (2) business days after delivery of written notice to Buyer, then Buyer shall not be deemed in default and either Party may terminate this Agreement by written notice to the other at any time prior to the deposit of the Initial Deposit. If Buyer fails to deposit the Second Deposit as required by this Agreement, and if such failure continues for more than two (2) business days after delivery of written notice to Buyer, then Buyer shall not be deemed in default and either Party may terminate this Agreement by written notice to the other at any time prior to the deposit of the Second Deposit, and the Initial Deposit will be returned to Buyer. If this Agreement is terminated pursuant to this Section 1.03(b), then neither party will have any obligations under this Agreement, except for those that expressly survive termination of this Agreement.
(c) Deposit Applicable. The Deposit shall be invested by Escrow Holder in an account approved by Buyer with any interest accruing thereon to be paid to the Party entitled to the Deposit pursuant to this Agreement. The Deposit shall be applicable to the Purchase Price at the Closing.
(d) Independent Consideration. Notwithstanding any other provision of this Agreement, in addition to the Initial Deposit and at the time Buyer delivers the Initial Deposit to Escrow Holder, Buyer will deposit the sum of One Hundred Dollars ($100.00) (“Independent Consideration”), which shall be non-refundable to Buyer as independent consideration for the rights extended to Buyer in this Agreement, including the right to terminate this Agreement as provided herein. If this Agreement terminates for any reason, Seller shall retain the Independent Consideration. The Independent Consideration shall not be applicable towards the Purchase Price. (e) Escrow. If the Closing does not occur at the time and in the manner provided in this Agreement because of the default of one of the parties, then the costs of cancellation, if any, shall be paid by the defaulting party. If the Closing does not take place for any reason other than a default by one of the parties, then each of Buyer and Seller shall be responsible for one-half share of any cancellation costs. (f) Entitlement Costs. Notwithstanding anything to the contrary in this Agreement, at any time after the Effective Date Buyer shall have the right, in Buyer’s sole and absolute discretion, to elect to use all or any portion of the Deposit towards the costs and expenses to design, process and obtain Buyer’s Entitlement (as hereinafter defined in Section 7.01 of this Agreement ). If Buyer elects to apply any portion of the Deposit towards such Entitlement costs as provided in this Section 1.03(f), Buyer shall provide written notice to Seller and Escrow Holder 107
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(“Release Notice”), which Release Notice shall identify the amount of the Deposit to be released to Buyer, and reasonable documentation outlining the applicable Entitlement costs related to the same. Unless Seller objects in writing to the release of the Deposit, Escrow Holder shall promptly release such portion of the Deposit to Buyer within five (5) days after receipt of Buyer’s Release Notice. Seller agrees to cooperate with such releases of the Deposit, including promptly providing any instructions requested by Escrow Holder.

1.04 Memorandum of Agreement. Concurrently with the execution of this Agreement, Seller and Buyer shall execute, acknowledge and deliver to Escrow a memorandum of agreement (“Memorandum of Agreement”) in substantially the form attached hereto as Exhibit B. Upon Buyer’s delivery of the Notice of Suitability to Seller and Buyer’s delivery of the Second Deposit to Escrow Holder, Escrow Holder shall immediately record the Memorandum of Agreement in the Official Records of the County against the Property. Upon the termination of this Agreement, and subject to Buyer’s receipt of the Deposit if Buyer is entitled to the same pursuant to this Agreement, Buyer shall deliver to Escrow Holder a notice of termination or quitclaim of the Memorandum of Agreement in recordable form to remove the Memorandum of Agreement from the condition of title to the Property.

2. CLOSE OF ESCROW

2.01 Closing.
(a) Closing Date. The closing (“Closing”) of the purchase and sale of the Property shall take place on the date (“Closing Date”) that is later to occur of either (i) thirty (30) days after the expiration of the Feasibility Period; or (ii) July 16, 2024 (the “Outside Closing Date”). The Closing Date and the Outside Closing Date shall be automatically extended on a day-to-day basis due to Force Majeure (as defined below). (b) Permitted Closing Day. Notwithstanding any other provision of this Agreement, the Closing must occur on a Tuesday, Wednesday or Thursday (a “Permitted Closing Day”), and if the scheduled Closing would otherwise occur on a day that is not a Permitted Closing Day, the Closing shall be extended automatically to the next day that is a Permitted Closing Day.
(c) Adjacent Property. The Closing shall occur concurrently with Buyer’s acquisition of the Adjacent Property (“Adjacent Property Closing”) and the Parties agree to cooperate to affect such closings concurrently.

2.02 Seller’s Closing Obligations. At the Closing, Seller shall:
(a) Execute, acknowledge and deliver to Buyer a Grant Deed in the form attached hereto as Exhibit C and incorporated herein (“Deed”), conveying to Buyer good and indefeasible fee simple title to the Property free and clear of all liens, claims, and encumbrances except the Permitted Exceptions (as defined in Section 3.03); (b) Execute and deliver to Escrow Holder two executed original counterparts of a General Assignment Agreement (the “General Assignment”) in the form 108
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attached hereto as Exhibit D assigning to Buyer all rights of Seller in and to any intangible rights and personal property or other interests in the Property; (c) Pay Seller’s closing costs as specified in this Agreement; (d) Deliver an executed title affidavit and other documents if required by, and in a form reasonably acceptable to, First American Title Company (“Title Company”) that is sufficient to enable Title Company to issue the Title Policy (as defined below) subject to the requirements of this Agreement.
(e) Deliver such proof of Seller’s authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents, or certificates on behalf of Seller to act for and bind Seller as may be reasonably required by Title Company.
(f) Execute and deliver such other instruments and affidavits as the Escrow Holder may reasonably require.

2.03 Buyer’s Obligations at Closing. At the Closing, Buyer shall:
(a) Pay to Seller the Purchase Price in cash for the Property less the amount of the Deposit;
(b) Execute and deliver to Escrow Holder two executed original counterparts of the General Assignment;
(c) Pay Buyer’s closing costs as specified in this Agreement; and, (d) Execute and deliver such other instruments and affidavits as the Escrow Holder may reasonably require.

2.04 Closing Costs. Seller shall pay (i) all County and City documentary transfer taxes, if any, (ii) all title insurance fees and premiums for the CLTA standard coverage portion of the Title Policy (as defined below), (iii) one-half of Escrow Holder’s fees, and (iv) Seller’s attorneys’ fees incurred in connection with the negotiation and consummation of this Agreement. Buyer shall pay (i) one-half of Escrow Holder’s fees, (ii) all additional title insurance fees and premiums for extended coverage portion of the Title Policy, and (iii) Buyer’s attorneys’ fees incurred in connection with the negotiation and consummation of this Agreement. All other closing costs shall be allocated between Seller and Buyer in accordance with the customary allocation of such costs in the County.

2.05 Prorations. Current ad valorem taxes, special taxes and all assessments of whatever kind shall be prorated on the Property as of the Closing Date based on the latest information available to Escrow Holder. Seller shall be responsible for, and shall pay, any delinquent or supplemental taxes properly attributable to the Property prior to the Closing, and shall pay for such delinquent or supplemental taxes, whether such delinquent or supplemental taxes become due before or after the Closing. Buyer shall be responsible for all supplemental taxes 109
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assessed as the result of the Closing. If, after the Closing, either Party receives a bill for any such taxes or assessments, including supplemental taxes (collectively, “Other Taxes”), owed by the other Party, then the Parties agree that (a) such Other Taxes shall be prorated between the Parties to the Closing and (b) the Party receiving the bill for the Other Taxes shall notify the Party responsible for paying the Other Taxes in writing of the amount of such Other Taxes and the Party owing the Other Taxes shall promptly pay its prorated share of such Other Taxes within thirty (30) days of demand therefor. All prorations and/or adjustments called for in this Agreement are to be made on the basis of a thirty (30) day month, unless otherwise specifically instructed in writing.

The provisions of this Section 2.05 shall survive the Closing.

2.06 Escrow Holder’s Duties at Closing. Escrow Holder shall cause the Closing to occur by (a) recording Seller’s Deed and each other document required to be recorded and (b) delivering funds and documents as set forth in Section 2.07 WHEN AND ONLY WHEN (i) all funds and instruments required pursuant to Sections 2.02 through 2.05, inclusive, have been delivered to Escrow Holder and (ii) each of the conditions precedent to the Closing set forth in this Agreement have been satisfied or waived as provided for in this Agreement. The applicable provisions of this Agreement shall constitute joint instructions to Escrow Holder to consummate the purchase in accordance with the terms and provisions hereof. The Parties shall execute such additional escrow instructions, not inconsistent with the provisions hereof, as may be deemed reasonably necessary to carry out the intentions of the Parties as expressed herein; provided, however, if the provisions of any such additional instructions contradict with the provisions of this Agreement, then the provisions of this Agreement shall control.

2.07 Distribution of Funds and Documents
(a) Escrow Holder shall, at the Closing, deliver to Seller and Buyer a copy of the Deed (conformed to show recording date) and conformed copies of each document recorded to place title in the condition required by this Agreement. Escrow Holder shall cause the County Recorder of the County to mail Seller’s Deed and each other recorded document after recordation, to the grantee, beneficiary or person (i) acquiring rights under said document or (ii) for whose benefit said document was acquired.
(b) Escrow Holder shall, at the Closing, deliver by certified mail, overnight courier or United States mail (or will hold for personal pickup, if requested) one (1) copy of each non-recorded document received hereunder by Escrow Holder to the payee or person (i) acquiring rights under said document or (ii) for whose benefit said document was acquired.

Escrow Holder shall deliver copies of all documents deposited into Escrow to the Parties. (c) All disbursements by Escrow Holder shall be made by wire transfer in accordance with instructions provided to Escrow Holder. Escrow Holder shall deliver, at the Closing, to Seller all amounts to which Seller is entitled and shall deliver any excess amount to Buyer.

3. TITLE REPORT

3.01 Title Report; Title Review Period. Escrow Holder delivered to Buyer a preliminary title report covering the Property, including true and correct copies of all instruments 110
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reflected as exceptions in the title report (the “Title Report”), issued by the Title Company. Buyer has thirty (30) days after the Effective Date (the “Title Review Period”) to notify Seller in writing of any objection to exceptions in the Title Report.

3.02 Buyer’s Title Response; Cure Period. If Buyer does not notify Seller of any objection to the exceptions in the Title Report, then at the end of the Title Review Period, Buyer shall be deemed to have accepted all of the exceptions in the Title Report. If Buyer objects to any exception(s) in the Title Report, then Seller shall have ten (10) business days following the end of the Title Review Period (the “Cure Period”) to commit in writing to modify or eliminate the objected to exceptions as of the Closing, to the sole and absolute satisfaction of Buyer. Notwithstanding anything to the contrary contained in this Agreement, whether or not Buyer objects, Seller must remove at or prior to the Closing, and title to the Property shall be conveyed to Buyer free and clear of, all of the following: (i) any mortgage or deed of trust, (ii) any mechanic’s lien, (iii) any other monetary liens and obligations of any kind whatsoever, except for non-delinquent real property taxes and assessments that constitute a lien on the Property, (iv) any rights of possession, (v) any exceptions related to Seller’s authority and power to sell the Property, (vi) any exceptions caused or created by Seller after the Effective Date, and (vii) any encumbrance or exception to title related to the Oil and Gas Lease (as defined below). If Seller has not agreed to modify or eliminate the objected to exceptions, to the sole and absolute satisfaction of Buyer, within the Cure Period, Buyer may, at its option, and as Buyer’s sole remedies, elect to (A) waive its objections to the Title Report or (B) terminate this Agreement. Buyer shall notify Seller of its election in writing, within five (5) business days following the end of the Cure Period (the “Buyer’s Title Waiver Period”). If Buyer fails to notify Seller prior to the expiration of the Buyer’s Title Waiver Period, however, the Agreement shall be deemed terminated as of the end of the Feasibility Period unless Buyer delivers the Notice of Suitability, in which event the approved condition of title shall be as set forth in the last title commitment issued by Title Company received by Buyer at least one (1) business day prior to the expiration of the Feasibility Period, and Seller shall be obligated to remove those objectionable exceptions, if any, that Seller is required to remove or that Seller previously agreed to remove in writing. If Buyer elects or is deemed to elect to terminate this Agreement pursuant to this Section, the Deposit shall be promptly returned to Buyer, and thereafter neither Seller nor Buyer shall have any further duties, rights or obligations hereunder, except for those duties, rights and/or obligations that are expressly stated herein to survive such termination. Seller or Buyer may elect to extend the Closing Date and the Outside Closing Date for up to thirty (30) days as may be required to modify or eliminate any objected to exceptions in accordance with this Section.

3.03 Permitted Exceptions. “Permitted Exceptions” shall consist of the following: (a) the lien for real property taxes and assessments not yet due or payable, and (b) the exceptions disclosed in the Title Report or any Supplemental Report that Buyer has notified Seller in writing are acceptable to Buyer.

3.04 New or Additional Exceptions. After the Effective Date and so long as this Agreement remains in effect, Seller shall not place or knowingly allow any deed of trust, lien, encumbrance, or other exception to title to the Property without the prior written consent of Buyer, and if Seller breaches this covenant, in addition to all other rights and remedies, Buyer may direct Escrow Holder to use Seller’s proceeds from the Closing to pay off and remove any such deed of trust, lien, encumbrance, or other exception to title to the Property. If any new or additional 111
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exceptions to title to the Property appear of record after the date of the Title Report, including after the expiration of the Feasibility Period, the Escrow Holder shall deliver to Buyer a supplemental title report, including true and correct copies of all instruments reflected as exceptions in the supplemental title report (“Supplemental Report”). Thereafter, the Parties shall comply with Sections 3.01 and 3.02, except that the Title Review Period for any Supplemental Report shall be five (5) business days, the Cure Period shall be five (5) business days, Buyer shall notify Seller of its election regarding any uncured exceptions within two (2) business days (and shall be deemed to have disapproved any exceptions not approved in writing within such period), and the Closing shall be extended as necessary to accommodate review of the Supplemental Report in accordance herewith.

4. FEASIBILITY AND ACTIVITIES RELATING TO PROPERTY

4.01 Seller’s Materials. On or before the Effective Date, Seller has provided to Buyer, for Buyer’s review and approval, all information currently in Seller’s possession or control regarding the Property (collectively “Seller’s Materials”). Without limiting the generality of the foregoing, and to the extent they exist, and are known to Seller to be in Seller’s possession or control, Seller has provided to Buyer the following items:
(i) All reports and studies concerning the Property, including the soils and geologic condition of the Property;
(ii) All entitlement documents, permits, plans, and any property conditions reports;
(iii) All permits, approvals, and inspection reports relating to the Property;
(iv) All existing leases affecting the Property, and all lease files, including without limitation, all material correspondence to or from any current tenant regarding their occupancy;
(v) Any previously completed survey of the Property;
(vi) Copies of all reports, studies, and other materials which Seller possesses or controls which pertain to the environmental condition of the Property and the Adjacent Property; and
(vii) Copies of all reports, studies, and other materials which Seller possesses or controls that pertain to FC Permit No. 626-21, the Soil Material or the Soil Material Permit (as such terms are defined below).

4.02 Buyer’s Feasibility. Buyer, at its expense, may conduct a feasibility study of the Property (including architectural, geotechnical, environmental, marketing, engineering and financial feasibility studies) to determine whether or not the Property is suitable to Buyer as determined by Buyer in its sole and absolute discretion. Such operations shall be conducted in such a manner as to not permanently damage the Property, and if damage is done, Buyer shall repair and restore it to substantially its condition existing immediately prior to Buyer’s operations 112
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on the Property at Buyer’s expense. If the feasibility study indicates, in Buyer’s sole and absolute discretion, that the Property is suitable to Buyer, then Buyer will send written notice (the “Notice of Suitability”) to Seller on or before the date that is sixty five (65) days after the Effective Date (the “Feasibility Period”). If Buyer does not send Seller the Notice of Suitability on or before the last day of the Feasibility Period, and if such failure continues for more than two (2) business days after delivery of written notice thereof to Buyer, or if Buyer provides Seller written notice terminating this Agreement at any time prior to delivering the Notice of Suitability, this Agreement shall terminate. In the event of such termination, Escrow Holder is irrevocably instructed to immediately return the Deposit to Buyer, less the Independent Consideration, and Seller and Buyer shall have no further obligation to each other except for those obligations that expressly survive termination of this Agreement. If a Phase I environmental assessment of the Property recommends a Phase II environmental assessment or further investigations and/or reports as Buyer may require due to the recommendation and conclusion obtained in its Phase I environmental assessment or other environmental reports, then the Feasibility Period shall automatically be extended for the period of time necessary for Buyer to obtain such additional assessments, investigations, or reports not to exceed an additional sixty (60) days.

4.03 Right of Entry. Unless this Agreement is earlier terminated, from and after the Effective Date through the Closing, Buyer and its agents, consultants, contractors, subcontractors and employees (collectively, “Buyer’s Representatives”) shall have the right to enter upon the Property at reasonable times during ordinary business hours to perform such inspections, investigations, tests and studies. In conducting any inspections, tests, or studies, the Buyer and Buyer’s Representatives shall (a) not unreasonably interfere with the operation, use, and maintenance of the Property, (b) not permit any liens to attach to the Property by reason of Buyer’s exercise of the rights under this Section, (c) restore any damage to the Property caused by Buyer or Buyer’s Representatives, and (d) not conduct any invasive testing without the prior consent of Seller. Prior to any such entry by the Buyer or Buyer’s Representatives on the Property, Buyer shall obtain and maintain commercial general liability insurance written on an occurrence basis, with aggregate limits and per occurrence limits of at least Two Million Dollars ($2,000,000) and that names Seller as additional insured with respect to any loss, damage, or injury that may occur as a result of Buyer or Buyer’s Representatives’ entry upon the Property. In addition, Buyer hereby agrees to indemnify, defend, and hold Seller free and harmless from and against any and all damages, claims, losses, liabilities, causes of action, proceedings, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) to the extent caused by any such activities of Buyer or Buyer’s Representatives upon or about the Property; provided, however, the foregoing indemnity, defense, and hold harmless obligations shall not extend to liability arising from (x) the acts or omissions of Seller, or its agents, consultants, contractors, or tenants, (y) any diminution in value of the Property arising from or relating to any matters discovered by the Buyer or Buyer’s Representatives, or (z) the discovery (but not negligent exacerbation) by Buyer or Buyer’s Representatives of preexisting physical conditions on the Property. Buyer’s indemnity, defense, and hold harmless obligations shall survive the Closing or earlier termination of this Agreement for a period of one (1) year.

4.04 Termination Prior to expiration of the Feasibility Period. If this Agreement is terminated pursuant to Section 4.02 for any reason other than a breach or default by Seller, then Buyer shall provide to Seller copies of all documents, reports, studies, and other materials prepared by third parties on Buyer’s behalf in connection with Buyer’s due diligence 113
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investigations of the Property (“Buyer’s Materials”), excluding all financial analysis, appraisals, internally generated analysis, reports, and communications, attorney work product, all environmental reports, including any Phase I or Phase II environmental assessment, architectural and/or house plans, and all other proprietary, privileged, and/or confidential information. Seller acknowledges and agrees that (i) Buyer makes no covenant, representation, or warranty whatsoever as to Buyer’s Materials, including their content, reliability, accuracy or completeness, and (ii) if Seller uses or relies on any of Buyer’s Materials, Seller shall do so solely at Seller’s own risk, and Buyer makes no representation, warranty or assurance as to whether Seller has any right to use or rely thereon. The delivery of Buyer’s Materials shall be subject to the proprietary rights of any engineer or other consultant preparing the same and any limitations on use imposed by them.

5. REMEDIES

5.01 Seller’s Remedies; LIQUIDATED DAMAGES. If Buyer defaults in performing Buyer’s obligations hereunder for any reason other than Seller’s default, and such default is not cured within the notice and cure period set forth in Section 5.05, Seller shall be entitled, as Seller’s sole and exclusive remedy, to obtain one of the following remedies (a) to waive the contractual obligations of Buyer in writing; (b) to extend the time for performance by such period of time as may be mutually agreed upon in writing by the Parties hereto; or (c) if Buyer has delivered its Notice of Suitability and Escrow fails to close solely due to Buyer’s default under this Agreement, Seller may elect to terminate this Agreement and receive the amount of the Deposit to the extent actually delivered to Escrow Holder as liquidated damages (the “Liquidated Damages”) in accordance with the provisions set forth below. IF SELLER ELECTS THE REMEDY SET FORTH IN SECTION 5.01(c), SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES. SUCH DAMAGES WILL,

HOWEVER, BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN FOR THE FOLLOWING REASONS: (i) THE DAMAGES TO WHICH SELLER WOULD BE

ENTITLED IN A COURT OF LAW WILL BE BASED IN PART ON THE DIFFERENCE

BETWEEN THE ACTUAL VALUE OF THE PROPERTY AT THE TIME SET FOR THE CLOSING AND THE PURCHASE PRICE AS SET FORTH IN THIS AGREEMENT; (ii) PROOF OF THE AMOUNT OF SUCH DAMAGES WILL BE BASED ON OPINIONS OF VALUE OF THE PROPERTY, WHICH CAN VARY IN SIGNIFICANT AMOUNTS; AND (iii) IT IS IMPOSSIBLE TO PREDICT AS OF THE DATE ON WHICH THIS AGREEMENT

IS MADE WHETHER THE VALUE OF THE PROPERTY WILL INCREASE OR DECREASE AS OF THE DATE SET FOR THE CLOSING. THE PARTIES DESIRE TO LIMIT THE

AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER

BREACH THIS AGREEMENT AND TO AVOID THE COSTS AND LENGTHY DELAYS

WHICH WOULD RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, IF AFTER BUYER DELIVERS A NOTICE OF SUITABILITY, ESCROW FAILS TO CLOSE DUE SOLELY TO BUYER’S

DEFAULT, THEN THE AMOUNT OF THE LIQUIDATED DAMAGES SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER’S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE, AND SELLER’S

SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF THE FAILURE TO CLOSE ESCROW RESULTING FROM BUYER’S DEFAULT SHALL BE LIMITED TO SUCH

AMOUNT AND SELLER SHALL HAVE NO RIGHT TO RECOVER ANY ADDITIONAL 114
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DAMAGES OR TO PURSUE ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT. IN CONSIDERATION OF THE PAYMENT OF

LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OTHER

CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY INCLUDING ANY RIGHTS SELLER MAY HAVE PURSUANT TO SECTION 1680 OR SECTION 3389 OF THE CALIFORNIA CIVIL CODE RELATING TO BUYER’S DEFAULT RESULTING IN ESCROW NOT CLOSING AS PROVIDED UNDER THIS AGREEMENT. BY INITIALING

THIS PROVISION IN THE SPACES BELOW, SELLER AND BUYER EACH SPECIFICALLY

AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS AGREEMENT AND

AGREE THAT SUCH SUM IS A REASONABLE SUM CONSIDERING THE CIRCUMSTANCES AS THEY EXIST ON THE DATE OF THIS AGREEMENT.

NOTWITHSTANDING THE FOREGOING, SELLER’S RIGHTS OF DEFENSE AND

INDEMNIFICATION AS SET FORTH IN THIS AGREEMENT SHALL NOT BE DISTURBED BY SELLER’S ELECTION UNDER SECTION 5.01(c).

BUYER’S INITIALS SELLER’S INITIALS

5.02 Buyer’s Remedies. If Seller defaults in performing Seller’s material obligations hereunder for any reason other than Buyer’s default, and such default is not cured within the notice and cure period set forth in Section 5.05, Buyer shall be entitled: (a) to waive the contractual obligations of Seller in writing; (b) to extend the time for performance by such period of time as may be mutually agreed upon in writing by the Parties hereto, in which case the Closing Date and the Outside Closing Date will be extended for a period equal to the delay in completing Seller’s performance of such material obligation; (c) to terminate this Agreement and receive, within three (3) business days after termination of this Agreement, a return of the Deposit, plus reimbursement of the costs and expenses incurred by Buyer in connection with the review, planning and development of the Property and with the transactions contemplated by this Agreement; or (d) to enforce specific performance of this Agreement or to enforce any other equitable relief, including the right to record a lis pendens against the Property, unless specific performance is not available, in which case Buyer may instead pursue any other remedy available at law or in equity. If Buyer extends the time for Seller’s performance pursuant to Section 5.02(b), then Buyer may exercise any of Buyer’s other remedies set forth above in the event Seller fails to cure such breach prior to the expiration of such extension period. This provision shall not limit or otherwise affect Buyer’s right to receive reimbursement for attorneys’ fees as authorized by Section 16.10, Seller’s indemnity obligations under this Agreement or any rights or obligations that survive the Closing or termination of this Agreement.

5.03 Post-Closing Remedies. From and after the Closing, each Party shall have the right to pursue its actual damages against the other Party (a) for a breach of any covenant or agreement contained in this Agreement that is performable after or that survives Closing (including the indemnification obligations of the Parties contained in this Agreement, but excluding any obligation to purchase the Property), and (b) for a breach of any representation or warranty made by the other Party in this Agreement. The obligations described this Section 5.03 shall survive the Closing and any termination of this Agreement.
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5.04 Limitation on Remedies. Notwithstanding anything to the contrary in this Agreement, in no event shall any Party be entitled to recover any speculative, consequential, or punitive damages from the other Party in connection with this Agreement and/or the Property.

5.05 Notice and Cure. Notwithstanding anything to the contrary contained in this Agreement, neither Buyer nor Seller shall be in breach or default of any provision of this Agreement, and the other party shall have no right to terminate this Agreement as a result of any non-performance, unless the other party first provides written notice of such breach and the defaulting party fails to cure such breach within five (5) business days following receipt of such written notice, provided that such cure period shall be two (2) business days with respect to the failure to perform the obligations under Sections 2.02 and 2.03 or payment of the Deposit. The Closing Date and the Outside Closing Date will be extended to accommodate any such notice and cure period. Each Party agrees to reasonably cooperate with the other in any and all attempts by the defaulting Party to cure any default within the default cure period.

5.06 Escrow Cancellation Charges Due to a Default. If the Closing fails to occur due to Seller’s or Buyer’s default, the defaulting Party must pay all Escrow cancellation charges. If Escrow fails to close for any reason other than the foregoing, each Party must pay onehalf of the Escrow cancellation charges. “Escrow cancellation charges” means all fees, charges, and expenses incurred by Escrow Holder, including all expenses incurred in connection with issuance of the Title Report and other title matters.

5.07 Force Majeure. The term “Force Majeure” means events beyond Buyer’s reasonable control, including acts of God, war, riot, civil disobedience or disturbance, weather, impracticality, accident, strike or other labor disputes, delays of suppliers, contractors or carriers, fire, flood or casualty, governmental or judicial actions, governmental shut downs and/or delays, quarantine and/or other disease control measures related to a public health crisis, and shortages of material, components, fuel, labor or facilities and delays due to data breaches, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, or failure of third-party software or hardware. In the event of Force Majeure that delays a party’s ability to perform its obligations hereunder, neither party shall be in default under this Agreement and the time periods and deadlines for performance of a party’s obligations hereunder shall be extended for the amount of time that such party is delayed as a result of such Force Majeure event.

Notwithstanding anything to the contrary contained herein, if any such event of Force Majeure lasts longer than ninety (90) consecutive days, each party shall have the right, but not the obligation, to terminate this Agreement, in which event the Deposit shall be fully refunded to Buyer, and the parties hereto shall have no further obligation to each other except for those obligations which expressly survive termination of this Agreement. Notwithstanding the foregoing, if Seller delivers a notice to terminate to Buyer (“Termination Notice”), then Buyer shall have five (5) business days after receipt of such Termination Notice to deliver written notice electing to waive any further delay as a result of a Force Majeure event. If Buyer delivers such notice electing to waive any further delay, then the Termination Notice shall be deemed to be rescinded and this Agreement shall remain in full force or effect. If Buyer elects to agree to the Termination Notice or fails to deliver written notice electing to waive any further delay within such five (5) business day period, then this Agreement shall terminate, in which event the Deposit shall be fully refunded to Buyer, and the parties hereto shall have no further obligation to each other except for those obligations which expressly survive termination of this Agreement. 116
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6. COMMISSIONS
Seller and Buyer hereby represent and warrant that there are no brokers, agents or finders, and that no other commissions or other similar fees are due or arising in connection with this Agreement, the sale and purchase of the Property, or the consummation of transactions contemplated in this Agreement, other than WestGate Services, Inc., dba WestGate Ventures (“Broker”), who represents Seller, and to which Seller will pay compensation pursuant to a separate agreement. Seller agrees to indemnify, defend, and hold Buyer harmless from and against all liability, loss, cost, damage, and expenses (including but not limited to attorneys’ fees and costs) because of any claim by a broker, agent, or finder claiming through Seller for any compensation with respect to this Agreement, the sale and purchase of the Property, and the consummation of the transactions contemplated in this Agreement, whether or not such claim is meritorious. Buyer agrees to indemnify, defend, and hold Seller harmless from and against all liability, loss, cost, damage, and expenses (including but not limited to attorneys’ fees and costs) because of any claim by a broker, agent, or finder (other than Broker) claiming through Buyer for any compensation with respect to this Agreement, the sale and purchase of the Property, and the consummation of the transactions contemplated in this Agreement, whether or not such claim is meritorious. The obligations described in this Section 6 shall survive the Closing and any termination of this Agreement.

7. DEVELOPMENT MATTERS

7.01 Entitlements. From and after the Effective Date through the Closing, Buyer shall have the right (directly or through its affiliates) to process all applications, plans, maps, agreements, documents, and other instruments or entitlements (collectively, the “Entitlements”) necessary or appropriate for the subdivision and development of the Property as contemplated by Buyer in its sole discretion, including a final map for the subdivision of the Property and the Adjacent Property into the Lots in substantial conformance with the Tentative Map (“Final Map”) and the improvement plans required in connection with the Final Map (“Improvement Plans”).

Seller agrees to assist and reasonably cooperate with Buyer’s efforts to process the Entitlements, including assigning rights relating to the Entitlements and executing applications, consents, and other documents in connection with processing the Entitlements. Seller agrees that it will not interfere or take any action in opposition to Buyer’s efforts to process the Entitlements and shall not take any action which could materially and adversely affect the Property or the Entitlements.

From and after the Effective Date, Buyer shall have the right to meet and communicate with the consultants, engineers, contractors, and subcontractors providing or that have provided services to Seller in connection with the Property, and Seller shall instruct such parties to communicate freely with Buyer. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall require the continued efforts of Buyer or its affiliates to process or pursue the Entitlements, and Buyer and its affiliates will have no liability to Seller in connection with the processing of the Entitlements, if this Agreement is terminated for any reason or if Escrow does not close.

7.02 Affordable Lots. After Closing, Buyer will use commercially reasonable efforts to complete work required for the Affordable Lots to be in a Finished Lot condition (as defined in Exhibit E attached hereto) (“Completion”). Within thirty (30) days after Completion of the Affordable Lots, Buyer shall convey the Affordable Lots to Seller as one or more conveyable parcels for no additional consideration (“Conveyance Date”) and Seller agrees to take all 117
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necessary actions to accept Buyer conveyance of the Affordable Lots to Seller. Seller agrees to reasonably cooperate with Buyer’s efforts to achieve Completion of the Affordable Lots. For the avoidance of doubt, recordation of a final map or parcel map establishing the Affordable Lots as seventeen (17) separate legally conveyable parcels shall not be a condition to the Completion of the Lots in Finished Lot condition, and Seller, at Seller’s sole cost and expense, shall be solely responsible for the same as well as for obtaining any individual building permits and paying related fees and costs for the Affordable Lots. Seller represents, warrants, and covenants to Buyer that Buyer’s Completion of the Affordable Lots shall satisfy any applicable affordable housing or low income housing requirements applicable to the Property, and upon such Completion neither Buyer nor any successor owner of the Property shall have any further obligations with respect to the same. The terms of this Section 7.02 shall survive the Closing. Neither Buyer nor any of its past, present and future employees, agents, representatives or attorneys has made and is not now making, and Seller has not relied upon and will not rely upon (directly or indirectly), any warranties or representations of any kind or character, express or implied, oral or written, with respect to the Affordable Lots, including the physical condition of the Affordable Lots, the Finished Lot improvements, including any construction or design defects, errors, omissions or other conditions relating to the Affordable Lots or the Completion of the Lots, latent or otherwise, soil conditions, the presence of hazardous materials or any other matter affecting the Affordable Lots (collectively, the “Property Matters”). Seller represents that it has relied and shall rely solely upon (a) its own expertise and that of Seller’s consultants in entering into this Agreement and acquiring the Affordable Lots and (b) Seller’s own knowledge of the Property based on its ownership prior to the effective date and investigations and inspections of the Affordable Lots. Seller has conducted, or will have had the opportunity to conduct, such inspections and investigations of the Affordable Lots as Seller deemed or shall deem necessary, including the Property Matters and shall rely upon same. Seller acknowledges and agrees that Buyer shall convey to Seller and Seller shall accept the Affordable Lots “as is, where is,” with all faults, defects (latent and apparent) or other adverse matters that may be associated with the Affordable Lots. Effective on the Conveyance Date, Seller waives, releases and agrees to indemnify, defend and hold harmless Buyer, its affiliates, and their respective officers, directors, employees, managers, members, representatives, agents, successors and assigns (“Released Parties”) from and against any and all claims, actions, causes of action, demands, liabilities, damages, costs and expenses, including attorneys’ fees and costs (collectively, “Claims”), of any and every kind or character, known or unknown, that it may now have or hereafter acquire against any of the Released Parties for any Claims arising from or related to Affordable Lots or the Property Matters. This release includes Claims of which Seller is presently unaware or which Seller does not presently suspect to exist which, if known by Seller, would materially affect Seller’s release to Buyer. To the fullest extent permitted by law, Seller hereby agrees and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims that are presently unknown, unanticipated and unsuspected, and Seller further agrees that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Seller nevertheless hereby intends to release, discharge and acquit Buyer from any such unknown Claims. Seller specifically waives the provision of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
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THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
The terms of this Section 7.02 shall survive the Closing.

Seller has initialed this Section to confirm its acceptance of the provisions hereof.

Seller’s Initials

7.03 Inclusionary Letter. The Parties acknowledge that Assignor will continue to use commercially reasonable efforts to process and obtain all necessary approvals relating to the National Environmental Policy Act and approval of an inclusionary letter for the Property and the Adjacent Property by the Contra Costa Water District (“Inclusionary Letter”).

7.04 Stockpiled Soil at Upper Sand Creek Basin. Seller presently holds Contra Costa County Flood Control and Water Conservation District Permit No. 626-21 (“FC Permit No. 626-21”), which is a placeholder permit intended to reserve approximately 200,000 cubic yards of available soil material stockpiled at Upper Sand Creek Basin for use in the development of the Property and the Adjacent Property (“Soil Material”), and which expired on December 31, 2021. Seller and Assignor each provided a cash bond deposit for FC Permit No. 626-21. If Buyer provides a Notice of Suitability and the Soil Material is available for use, then Buyer shall apply for a permit from the Contra Costa County Flood Control and Water Conservation District for the excavation and removal of the Soil Material (“Soil Material Permit”) and provide a cash deposit in connection with such Soil Material Permit. Buyer acknowledges and agrees that Seller previously paid a One Hundred Thousand Dollar ($100,000) deposit to the Contra Costa County Flood Control and Water Conservation District in consideration for FC Permit No. 626-21. Buyer further agrees that Buyer shall reimburse Seller for such deposit upon Closing. Seller shall use its best efforts in order to modify or extend the existing FC Permit No. 626-21 to allow it to be effective at the Closing, and at the Closing Seller shall assign or otherwise transfer such permit to Buyer to be utilized for the import of Soil Material as required for development of the Property and Adjacent Property. If Seller, due to reasons outside its control, is unable to assign and/or transfer the existing FC Permit No. 626-21 to Buyer, Seller shall assist and reasonably cooperate (and use reasonable efforts to cause the Assignor to assist and reasonably cooperate) with Buyer’s efforts to obtain the Soil Material Permit. Buyer will have no obligation under this Section 7.03 if Buyer does not provide a Notice of Suitability.

7.05 CIP 247. Buyer and Seller acknowledge that Seller is currently improving a portion of East Cypress Road along the frontage of the Property as referenced in the Tentative Map conditions of approval 60(a) and 60(b) (collectively, the “Improvement COA”), known as Capital Improvement Project 247 (“CIP 247”). Seller was previously requiring a payment and/or reimbursement for its costs associated with CIP 247. Seller hereby acknowledges and agrees that this payment and/or reimbursement and the Improvement COA is no longer required, and Buyer will not be required to reimburse the Seller for any of its costs associated with CIP 247 for the Property. For the avoidance of doubt, Buyer acknowledges it may be responsible for a CIP 247 119
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reimbursement to the extent related to the Adjacent Property, but only the portion along the Adjacent Property frontage related to Tentative Map condition of approval 60(a).

7.06 Tentative Map. Seller shall use commercially reasonable efforts to, prior to the Closing, (i) extend the term of the Tentative Map to expire no sooner than the date that is two (2) years after the existing Tentative Map expiration date, and (ii) modify the conditions of approval in accordance with Section 7.05 above.

7.07 Oil and Gas Lease. The Title Report discloses the existence of that certain Memorandum of Oil and Gas Lease which recorded on November 21, 1962 in Book 4247

Page 850 ends

agreement dated as of September 19, 1962 (“Unrecorded Oil and Gas Lease” and collectively with the Oil and Gas Lease Memorandum and as amended, the “Oil and Gas Lease”). Seller shall use commercially reasonable efforts to, prior to the Closing, cause the termination, release, and removal of the Oil and Gas Lease.

7.08 Dewatering Work. Buyer and Seller acknowledge and agree that in connection with Buyer’s post-Closing development and construction activities with respect to the Property and the Adjacent Property, Buyer anticipates to incur costs and expenses associated with dewatering the Property and the Adjacent Property in an amount equal to Nine Hundred Thousand Dollars ($900,000) (“Anticipated Dewatering Costs”). Upon the completion of Buyer’s development and construction activities with respect to the Property and the Adjacent Property, if Buyer’s actual costs and expenses associated with dewatering the Property and the Adjacent Property in the aggregate is less than the Anticipated Dewatering Costs (such savings being referred to herein as the “Dewatering Savings”), Buyer shall pay to (i) Seller an amount equal to twenty-five percent (25%) of the Dewatering Savings, and (ii) Assignor (with respect to the Adjacent Property) an amount equal to twenty-five percent (25%) of the Dewatering Savings, within thirty (30) days after written notice from Seller or Assignor as applicable. For illustrative purposes only, if Buyer’s actual costs and expenses associated with dewatering the Property and the Adjacent Property is Eight Hundred Thousand Dollars ($800,000) in the aggregate, Buyer would pay Twenty-Five Thousand Dollars ($25,000) to Seller, and Twenty-Five Thousand Dollars ($25,000) to Assignor.

8. TERMINATION OF LEASES AND OPERATION OF PROPERTY

8.01 Termination of Leases. Seller shall terminate all leases and cause all tenants, other parties in possession, and trespassers to vacate the Property prior to the Closing.

During the term of this Agreement, Seller shall not enter into any new leases, licenses, or other occupancy agreements for the Property, or modify, amend, or extend the term of any existing leases. If any tenant or other party in possession fails to vacate the Property, Seller shall, at its sole cost and expense, take all commercially reasonable action to cause such tenant or other party in possession to vacate the Property prior to the Closing, including the prosecution of unlawful detainer proceedings. Buyer shall have the right to extend the Closing Date and the Outside Closing Date without payment of any extension fee or deposit if any of the leases have not been terminated and/or any tenant or other party in possession and trespassers have not vacated the Property prior to the scheduled Closing Date.
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8.02 Additional Seller Pre-Closing Covenants. As long as this Agreement remains in full force and effect, Seller hereby covenants as follows:
(a) Without the prior written consent of Buyer, which may be withheld in Buyer’s sole and absolute discretion, Seller shall not subject the Property to any additional liens, exceptions, encumbrances, easements or rights of way after the Effective Date, except for as may be otherwise expressly provided for in this Agreement. (b) Seller shall not make any material changes or alterations to the Property, other than necessary or typical maintenance and repairs. (c) Seller shall not enter into any contract or agreement providing for the provision of goods or services to or with respect to the Property or the operation of this Agreement, without the prior written consent of Buyer, which shall not be unreasonably withheld or delayed.
(d) Seller will not sell, lease, transfer, convey or encumber, or cause or permit to be sold, transferred, conveyed or encumbered, the Property, or any part thereof or interest therein.
(e) Seller will maintain its existing insurance in force with respect to the Property and not violate the terms of any existing indebtedness or documents securing same. (f) Seller will promptly notify Buyer in writing of any litigation or governmental proceeding to which Seller becomes a party or which affects the Property or any part thereof.
(g) Seller will continue to operate and maintain the Property in the ordinary course of its business and substantially in accordance with Seller’s present practice. (h) Seller shall comply with and not violate any and all laws and existing permits, licenses and approvals applicable to the Property, and keep all such permits, licenses and approvals in full force and effect, and not take any action which would have a material and adverse effect upon the Property, or upon Buyer if Buyer acquires the Property. (i) Seller shall not initiate, consent to approve or otherwise take any action with respect to zoning, land use or any other governmental rules or regulations presently applicable to all or any part of the Property, unless otherwise required by applicable law or regulation.
(j) Promptly deliver to Buyer any and all notices and/or other written communications delivered to or received from: (i) any party under any of the contracts affecting the Property; and/or (ii) any governmental authority and deliver to Buyer prompt notice of: (A) the occurrence of any inspections of the Property by any governmental authority; (B) any actual or alleged default by a party to any contract affecting the Property; or (C) any notices of violations of laws, ordinances, orders, directives, regulations or requirements issued by, filed by or served by any governmental agency against or affecting Seller or any part or aspect of the Property.
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(k) Seller shall not, directly or indirectly, market the Property or have discussions or make, accept or entertain offers to or from any third parties interested in acquiring the Property.

8.03 Compliance with Laws. Seller shall comply with all laws, regulations, and other requirements applicable of every governmental body having jurisdiction of the Property.

8.04 Cooperation. Each Party agrees that it will without further consideration execute and deliver such other documents and take such other action, as maybe reasonably requested by the other Party to consummate more effectively the purposes or subject matter of this Agreement (but without expanding the obligations or liability of either party hereunder in any material manner).

9. ASSIGNMENT OF RIGHTS
At the Closing, Seller will execute the General Assignment assigning the rights described therein to Buyer. With respect to the work performed and construction of improvements by the Seller, and to the extent they exist and/or in possession and/or favor of Seller, Seller hereby assigns to Buyer, effective as of the Closing, all of Seller’s right, title, and interest in and to the following:
(1) rights and remedies under any product and construction contracts, including warranties and indemnification rights, received by Seller from third parties relating to the Property, including utility and other service providers, engineers, contractors, and subcontractors; (2) all entitlements, licenses, permits, including building permits, fee credits, and prepaid fees attributed to the Property, to the extent assignable; (3) rights and remedies, including indemnification rights, under any contract Seller may have with any engineers, architects, consultants, contractors, and subcontractors; and (4) all plans, designs, and specifications relating to the design of the residences and other improvements planned to be constructed on the Property. Prior to the Closing, Seller shall request consents to the foregoing assignments (in form reasonably acceptable to Buyer and Seller) from all parties whose consent to such assignments is required, if any. To the extent any of the foregoing rights and remedies are not assignable, Seller shall reasonably cooperate with Buyer in pursuing such remedies, with any benefits accruing to Buyer. Notwithstanding the foregoing, Seller shall not be obligated to incur any cost or expense other than Seller’s own general overhead costs and expenses in relation to Buyer’s pursuit of such remedies. The provisions of this Section 9 shall survive the Closing.

10. MORATORIUM AND CONDEMNATION AND CASUALTY.

10.01 Moratorium. If any moratorium on the issuance of building permits for the construction of single family houses and/or condominiums as applicable is enacted, or certificates of occupancy, the purchase of sewer and/or water taps, and/or public school attendance rights are abated, which moratorium or abatement is applicable to any portion of Property, and, as a result of such moratorium or abatement, the City, State, County, school district, or any other Governmental Agency (as defined below) will not issue permits for the construction and/or purchase of sewer and/or water taps and/or certificates of occupancy for houses to be constructed on the Property, or will not permit attendance in the school district attendance zone in effect as of the Effective Date, then Buyer’s obligations in accordance with this Agreement and the Closing Date and the Outside Closing Date shall toll for the duration of the moratorium and/or abatement. 122
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Upon the discontinuation of any such moratorium and/or abatement, all requirements for performance shall resume as of that date and continue as per the provisions of this Agreement. If any moratorium and/or abatement lasts longer than six (6) months, then either Party shall have the right to terminate this Agreement, provided that if Seller so elects to terminate, Buyer may elect to waive any further tolling pursuant to this Section by written notice to Seller delivered within five (5) business days after receipt of Seller’s notice of termination, in which case this Agreement shall remain in full force and effect. In the event of such termination, the Deposit shall be refunded to Buyer, and the Parties shall have no further obligation to each other except for those obligations that survive termination of this Agreement.

10.02 Condemnation; Casualty. In the event of destruction, material damage, or condemnation of all or any portion of the Property, Seller shall promptly notify Buyer in writing, unless such destruction or damage was caused by Buyer or Buyer’s invitees onto the Property.

Buyer may elect to terminate this Agreement in writing within ten (10) days of such notice from Seller. If this Agreement is terminated in accordance with this Section 10.02, the Deposit shall be immediately returned to Buyer and neither Party shall have any further rights, obligations, or liabilities under this Agreement, excepting those obligations that survive termination of this Agreement. If Buyer does not elect to terminate this Agreement and Buyer consummates its purchase of the affected portion of the Property, Seller shall assign to Buyer all of Seller’s rights to any condemnation or insurance proceeds, and Buyer shall receive a credit towards the Purchase Price in the amount of any deductible and/or uninsured casualty paid by Buyer.

11. “AS IS” PHYSICAL CONDITION OF THE PROPERTY

11.01 “As Is” Condition. The Parties acknowledge and agree that prior to the Closing, Buyer shall have had the full opportunity to inspect the Property and, by proceeding to the Closing, shall have accepted the Property in its current “As Is” condition, except as otherwise expressly set forth in this Agreement. Buyer understands and agrees that, except as otherwise expressly set forth in this Agreement, the Property is sold in an As Is condition, without any warranty, express or implied. Except as otherwise expressly set forth in this Agreement, Seller makes no representations or warranties, express or implied, concerning the condition of the Property, the location of Property lines, the exact area of the Property, the condition of any improvements on the Property, or any environmental conditions affecting the Property.

11.02 Release. Except for the Excluded Claims (as defined below), effective as of Closing, Buyer hereby waives and releases Seller, its employees, elected officials, and officers of and from any claims, actions, causes of action, demands, rights, damages, costs, expenses, penalties, fines, or compensation that Buyer may otherwise have at any time against Seller arising out of or in connection with the known or unknown physical and environmental condition of the Property, it being agreed that Buyer shall acquire the Property in its “as is” condition as provided in Section 11.01. Notwithstanding anything to the contrary contained herein, the foregoing release and waiver shall expressly exclude any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, penalties, fines, or compensation whatsoever, direct or indirect, that Buyer may have at any time that arise from (a) a breach of Seller’s representations, warranties or covenants set forth in this Agreement or any documents executed by Seller in connection with this Agreement, (b) the fraud, willful misconduct, or other tortious acts of Seller or any of Seller’s employees, elected officials, officers, consultants, or contractors in relation to this Agreement, or 123
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(c) personal injury, property damage or breach of contract that occurs prior to Closing and is not caused by Buyer (collectively, the “Excluded Claims”). At the Closing in connection with the matters released above, Buyer expressly waives the provisions of California Civil Code §1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

11.03 Survival. The provisions of this Section 11 shall survive Closing and shall not be deemed merged into any instrument or conveyance delivered at the Closing.

12. REPRESENTATIONS AND WARRANTIES OF SELLER

12.01 Seller’s Representations and Warranties.
(a) Seller hereby makes the following representations, warranties, and covenants which shall also be true as of the Closing:
(i) Seller has the full right, power, and authority to sell the Property to Buyer as provided in this Agreement and to carry out its obligations hereunder; and all required action necessary to authorize Seller to enter into this Agreement and to carry out its obligations hereunder has been or will have been taken prior to the Closing Date. Neither this Agreement nor anything provided to be done under this Agreement violates or will violate any contract, document, understanding, agreement or instrument to which Seller is a party or by which it is bound. Seller has complied with all applicable laws, rules, and regulations with respect to the sale of the Property to the Buyer pursuant to this Agreement, including but not limited to California Government Code sections 5422054234, and Title 2, Chapter 8 of the City’s Municipal Code, and implementing the Surplus Land Act Guidelines published by the California Department of Housing and Community Development and any ordinances, regulations, policies or requirements governing Seller. At a properly noticed public meeting, the City Council of the City of Oakley has approved this Agreement, which is binding on and enforceable against Seller in accordance with its terms.
(ii) The Seller’s Materials provided by Seller, or to which Seller has provided access to Buyer, are true and correct and complete copies and to Seller’s actual knowledge there are no other documents or instruments in the possession or control of Seller that would materially and adversely affect ownership and development of the Property with residences.

There is no default by Seller under any Seller’s Materials or any other contracts, leases, agreements, easements, or any other documents or instruments relating to or affecting the Property. (iii) Seller has not entered into, and has no knowledge of, any lease, sublease, contract, license, or other agreement or other rights of possession with respect to the occupancy or use of the Property. No party has any right of first refusal, option to purchase the Property or any portion thereof, or any similar right.
(iv) To Seller’s actual knowledge there are no pending or threatened actions, condemnation or similar proceeding or special assessment affecting the Property, or any part thereof, nor is any such proceeding or assessment contemplated by any 124
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Governmental Agency or any other party or entity, or affecting the right, power or authority of Seller to enter into and perform this Agreement in accordance with its terms, or which question the validity or enforceability of this Agreement or of any action taken by Seller in accordance with this Agreement. The term “Governmental Agency” means the United States, the State of California, the County and City (if any) in which the Property is located, and any agency, department, commission, board, or bureau of instrumentality of any of them. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation of the Property or any portion thereof, or any other proceedings arising out of injury or damage to the Property or any portion thereof, Seller will notify Buyer of the pendency of such proceedings. (v) Seller has not received written notice of any pending or threatened litigation, claim, action, proceeding, suit, condemnation, or arbitration before any court, tribunal or agency that materially and adversely affects the development of the Residences on the Property, prevents Seller’s performance hereunder or which would result in any unsatisfied lien, charge, encumbrance or judgment against any part of or any interest in the Property, and, to Seller’s actual knowledge, no such litigation, claim, action, proceeding, suit, condemnation, or arbitration exists.
(vi) Neither the Property, nor any portion thereof, is subject to any wetlands, endangered species or protected habitat, flora, or fauna. (vii) To Seller’s actual knowledge, (A) Seller has complied with all applicable laws, ordinances, regulations, statutes, codes, rules, orders, decrees, determinations, covenants and restrictions relating to the Property and every part thereof (collectively the “Applicable Laws”), including those promulgated or imposed by the FHA, the VA, and any other agency, department, commission, board, bureau, or instrumentality of any Governmental Agency, and (B) no violation, condition, or any action which with the passing of time or giving of notice would be deemed a violation of any Applicable Laws.
(viii) Except as disclosed in Seller’s Materials provided to Buyer, neither Seller nor, to Seller’s actual knowledge, any previous owner of the Property or any other person or entity has ever used, generated, processed, stored, disposed of, released or discharged any Hazardous Substance on, under, or about the Property or transported it to or from the Property, nor, has any party ever alleged that any such activities have occurred. In addition, no use by Seller or to Seller’s actual knowledge any previous owner of the Property or any other person or entity, has occurred which violates or has been alleged by any party to violate any applicable Environmental Law, and the Property is not on any “Superfund” list under any applicable Environmental Law, nor is it subject to any lien related to any environmental matter. “Hazardous Substance” means all hazardous or toxic substances, wastes or materials, any pollutants or contaminates (including, without limitation, asbestos and raw materials which include hazardous constituents, radon and urea formaldehyde), and any other similar substances or materials which are included or regulated by any local, state, or Federal law, rule, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, as amended (collectively, “Environmental Laws”). Hazardous Substance shall not include typical household 125
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or commercial cleaning agents used in the regular cleaning of facilities located on the Property in accordance with all applicable Environmental Laws.
(b) If any of the representations or warranties by Seller contained in this Agreement becomes untrue or incorrect, Seller shall immediately notify Buyer thereof, and Seller shall use good faith efforts to make such representations or warranties true and correct on the Closing Date. If any of the representations or warranties contained in this Agreement are untrue or incorrect on the Closing Date, Buyer may (i) terminate this Agreement and receive a return of the Deposit; or (ii) elect to close notwithstanding the failure of such representation or warranty, in which event the Closing shall not be deemed a waiver by Buyer of the failure of such representation or warranty and Buyer may recover from Seller any actual damages sustained by Buyer, and this Agreement shall remain in full force and effect. Seller’s representations, covenants and warranties set forth in this Agreement shall survive the Closing for a period of twelve (12) months, shall not merge into the Deed to be delivered at the Closing and are deemed to be material to Buyer’s execution of this Agreement and Buyer’s performance of its obligations hereunder.

13. REPRESENTATIONS AND WARRANTIES OF BUYER

13.01 Buyer’s Representations and Warranties.
(a) Buyer hereby makes the following representations, warranties, and covenants which shall also be true as of the Closing:
(i) Buyer has the legal power, right, and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transaction contemplated hereby.
(ii) All requisite action has been taken by Buyer in connection with the entering into of this Agreement, in connection with the execution and delivery of the instruments referenced herein, and the consummation of the transaction contemplated hereby.

This Agreement and all documents in connection herewith that are to be executed and delivered by Buyer have been or will be duly executed and delivered by Buyer. (iii) The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer have the legal power, right, and actual authority to bind Buyer to the terms and conditions hereof and thereof.
(iv) Buyer’s execution and delivery of this Agreement and the consummation of the transactions contemplated hereby does not and will not result in a default (or an event which, with the giving of notice or the passage of time, would constitute a default) under, any instrument or obligation to which Buyer is a party or by which Buyer is bound, or violate any law, order, writ, injunction, or decree of any court or regulatory agency with jurisdiction over Buyer or require the consent, approval, waiver, or authorization of any third party. (b) If any of the representatives or warranties by Buyer contained in this Agreement becomes untrue or incorrect, Buyer shall immediately notify Seller thereof, and Buyer shall use good faith efforts to make such representations or warranties true and correct on the Closing Date. If any of the representations or warranties contained in this Agreement are untrue 126
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or incorrect on the Closing Date, Seller may (i) terminate this Agreement or (ii) elect to close notwithstanding the failure of such representation or warranty, in which event the Closing shall not be deemed a waiver by Seller of the failure of such representation or warranty and Seller may recover from Buyer any actual damages sustained by Seller, and this Agreement shall remain in full force and effect. Buyer’s representations, covenants and warranties set forth in this Agreement shall survive the Closing for a period of twelve (12) months, shall not merge into the Deed to be delivered at the Closing and are deemed to be material to Seller’s execution of this Agreement and Seller’s performance of its obligations hereunder.

14. CONDITIONS PRECEDENT TO CLOSING

14.01 Buyer’s Conditions Precedent. Buyer’s obligation to close the purchase at the Closing is expressly conditioned upon the following conditions precedent, which conditions may be waived in writing by Buyer, in Buyer’s sole discretion:
(a) The Title Company shall be unconditionally committed to issue to Buyer an ALTA Extended Coverage Title Insurance Policy (the “Title Policy”) which shall: (i) be in the amount of the Purchase Price; (ii) insure fee simple title to the Property vested in Buyer; (iii) include a mechanics’ lien endorsement as may be required by Buyer; and (iv) contain no exceptions other than the Permitted Exceptions.
(b) All of Seller’s representations and warranties as set forth in this Agreement shall be true and correct as of the Closing.
(c) Seller shall have deposited with Escrow Holder the documents required to be deposited by Seller under the terms of this Agreement and shall not be in default in performing Seller’s obligations under this Agreement.
(d) Seller shall have terminated any possessory rights of third parties with respect to the Property, and all lessees, tenants, and occupants of the Property, if any, must have vacated the Property so that sole and exclusive possession of the Property can be provided to Buyer at the Closing. There shall be no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers.
(e) All easements, rights-of-ways, licenses and other agreements required for Buyer’s proposed development of the Property in accordance with the Entitlements have been obtained.
(f) No moratorium as described in Section 10.01 shall have occurred. (g) There shall not have occurred any material adverse change with respect to the Property from the condition existing as of the Effective Date. (h) The Closing and the Adjacent Property Closing shall occur substantially concurrently such that Buyer acquires fee title to the Property and the Adjacent Property, and possession of the Property and the Adjacent Property is delivered to Buyer on the Closing Date.
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(i) Seller shall have obtained a Conditional Letter of Map Revision from FEMA as required for development of the Property in a manner acceptable to Buyer in its reasonable discretion.
(j) Seller shall have modified the FC Permit No. 626-21 to cause it to be assignable or otherwise transferable to Buyer and effective at Closing in accordance with Section 7.04 above and in a manner acceptable to Buyer in its reasonable discretion. (k) The City shall have approved any plans and/or permits as needed for the immediate import and placement of Soil Material, and the Soil Material Permit shall have been issued, provided that Buyer provided the applicable plans to the City on or before June 10, 2024. (l) The term of the Tentative Map shall have been extended to expire no sooner than the date that is two (2) years after the existing Tentative Map expiration date, and the conditions of approval shall be modified in accordance with Section 7.05 above. (m) Seller shall have caused the termination, release, and removal of the Oil and Gas Lease.

If any of the conditions precedent are neither satisfied nor waived by Buyer by the Closing Date, Buyer may, in addition to all other rights and remedies, (a) terminate this Agreement by giving a written notice of termination to Seller, and in such case the Deposit shall be returned to Buyer, and neither Party shall have any further rights, obligations or liabilities under this Agreement other than those that expressly survive termination of this Agreement or (b) continue with the Closing and waive such condition as to the Closing.

14.02 Seller’s Conditions Precedent. Seller’s obligation to close the purchase at the Closing is expressly conditioned upon the following conditions precedent, which conditions may be waived in writing by Seller, in Seller’s sole discretion:
(a) Buyer’s representations and warranties shown above are true as of the Closing.
(b) Buyer must not be in breach or default of any of its material obligations under this Agreement beyond any applicable notice and cure period.

15. NOTICE
Any notice authorized, required, or permitted to be given hereunder shall be addressed to the Party to be notified at the following address, or to such additional, alternate or updated addresses and persons as the Parties may designate by written notice to the other Party:

Seller: City of Oakley
3231 Main Street
Oakley, CA 94561
Attn: Joshua McMurray, City Manager
Telephone: 925-625-7025
Email: [email protected]
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With a
copy to:

Brothers Smith LLP
2033 N. Main Street, Ste. 720
Walnut Creek, CA 94596
Attn: Mark V. Isola, Esq.

Telephone No.: 925-944-9700
Fax No.: 925-944-9701
Email: [email protected];
[email protected]
Buyer: KB Home North Bay LLC
4830 Business Center Drive, Suite 150
Fairfield, CA 94534
Attention: Oren Hershkovich
Email: [email protected]
With
copies to:

KB Home North Bay LLC
5000 Executive Parkway, Suite 125
San Ramon, CA 94583
Attention: Michael L. MacDonald, Esq.

Email: [email protected]
And
Sheppard Mullin Richter & Hampton LLP
501 West Broadway, 189th Floor
San Diego, CA 92101
Attn: David M. Hymer and Marko Valentine
Telephone No.: (619) 338-6500
Email: [email protected];
[email protected]
Escrow
Holder:

First American Title Company
4750 Willow Road, Suite 275
Pleasanton, CA 94588
Attn: Sarah Eads, Sr. Escrow Officer
E-mail: [email protected]
Phone: (925) 201 -6606
Any notice delivered by United States mail, postage prepaid, certified mail or registered mail, return receipt requested, by hand delivery or sent by overnight courier shall be deemed received on the date of actual receipt or upon refusal of delivery. Notice given by e-mail shall be deemed received upon transmission unless notice of a failure of transmission is received by the sender. Any address for notice may be changed by ten (10) days prior written notice in the manner provided above.
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16. MISCELLANEOUS PROVISIONS

16.01 Survival of Covenants. Any covenant or agreement in this Agreement which contemplates performance after the time of the Closing shall not be deemed to be merged into or waived by the instruments of the respective Closing, but shall expressly survive the Closing and be binding upon the Parties obligated thereby.

16.02 Successors and Assigns. The terms, provisions, warranties, representations, covenants, and agreements contained in this Agreement shall apply to, be binding upon, and inure to the benefit of, the Parties hereto and their respective legal representatives, successors, and assigns. Notwithstanding the foregoing, Seller shall not have the right to assign this Agreement without Buyer’s prior written approval, but Buyer shall have the right to assign this Agreement, in whole or in part, without Seller’s prior written approval to (i) any party or entity that: (a) is controlled by or is a subsidiary, directly or indirectly, of Buyer or of KB Home, Inc. (“KB”); (b) controls or is controlled by, directly or indirectly, Buyer or KB; (c) results from the merger or consolidation with Buyer or KB; (d) is taking such assignment for financing purposes only, with Buyer remaining responsible for the performance of the obligations under this Agreement (other than the payment of the Purchase Price); or (e) is a limited liability company in which Buyer is the managing member; or (ii) a third party for purposes of land banking or similar arrangement pursuant to which Buyer or its affiliate has the right or option to reacquire and develop the Property (“Landbanker”), provided that any such assignee assumes in writing all of the obligations of Buyer under this Agreement. Buyer shall not have the right to assign this Agreement to any other party or entity without Seller’s prior written approval. Upon an assignment to a Landbanker, Buyer shall be released from its obligations hereunder.

16.03 Parties Cooperation; Additional Escrow Instructions. The Parties will each cooperate with each other, their employees, and agents to facilitate the purchase of the Property by Buyer under the terms and conditions in this Agreement. Buyer and Seller agree to execute any additional escrow instructions not inconsistent with the terms of this Agreement as shall be reasonably required by Escrow Holder. To the extent of any conflict between such additional escrow instructions and this Agreement, this Agreement shall control.

16.04 Governing Law. This Agreement shall be governed and interpreted under the laws of the State of California without regard to its conflict of law rules.

16.05 Section Headings. The section headings used in this Agreement are for reference and convenience purposes only, and shall not be used in the interpretation of this Agreement. Should there be any conflict between any such caption and the provision at the head of which it appears, the provision, and not the caption, shall control and govern in the construction of this Agreement.

16.06 Exhibits and Schedules. All exhibits and schedules attached hereto are incorporated in this Agreement by reference and made a part of this Agreement.

16.07 No Waiver of Future Performance. Failure of Buyer or Seller to insist in any one or more instances upon the performance of any of the covenants, agreements, and/or 130
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conditions of this Agreement or to exercise any right or privilege in this Agreement conferred shall not be construed as a waiver of any such covenant or condition.

16.08 Integration; Amendment in Writing. This Agreement contains the entire agreement between the Parties relating to the Property, and neither Party shall be bound by any oral statement or oral or written agreement made prior to or contemporaneous with this Agreement and not included within this Agreement. This Agreement cannot be amended except by written agreement executed by the Parties.

16.09 Survival of Representations. All of the representations, warranties, covenants, and agreements made by Seller and by Buyer shall survive the Closing and shall not be merged therein for the benefit of Buyer and Seller and their respective legal representatives, successors, and assigns.

16.10 Attorney’s Fees. In the event of any legal proceeding arising out of or relating to this Agreement, including the judicial proceeding arising out of or relating to this Agreement, the prevailing Party, as declared by a court or adjudicatory body with competent jurisdiction over the matter, shall be entitled to recover its reasonable attorneys’ fees and expenses (including expert witness fees, accounting and engineering fees, and any other professional fees) arising from the proceeding. Attorneys’ fees under this Section shall include attorneys’ fees related to the following proceedings: (1) any appeal, (2) any bankruptcy proceedings related to this Agreement, (3) mediations; (4) judicial reference proceedings or arbitrations; (5) post-judgment motions and collection actions; and (6) garnishment, levy and debtor examinations. A Party entitled to attorneys’ fees shall be entitled to all other reasonable costs and expense incurred in connection with such action. In addition to the foregoing award of attorneys’ fees to the prevailing Party, the prevailing Party in any lawsuit shall be entitled to its attorneys’ fees incurred in any post-judgment proceedings to collect or enforce the judgment. The obligations described in this Section 16.10 shall survive the Closing and any termination of this Agreement.

16.11 No Partnership or Joint Venture. Nothing contained in this Agreement is intended to create, nor shall it ever be construed to make, Seller and Buyer partners or joint venturers.

16.12 Consent. Any consent requested or required by one Party under the terms of the Agreement shall not be unreasonably withheld or delayed by the other Party hereto unless expressly stated in this Agreement to be at the sole and absolute discretion of such Party, in which case such Party shall have sole and absolute discretion to withhold or delay such consent.

16.13 Severability. The provisions of this Agreement are severable, and if any provision or part hereof or the application thereof to any person or circumstances shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part hereof to other persons or circumstances shall not be affected thereby. Notwithstanding the foregoing, the remainder of this Agreement shall not be deemed to remain in effect if there is a material failure of consideration as a result of the severance of any provision of this Agreement. 131
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16.14 Effective Date. The phrase “date of this Agreement”, or “effective date of this Agreement”, or “Effective Date” as used in this Agreement, means the later date of the following: (a) the City Council of Seller takes all necessary action to approve and authorize the execution of this Agreement or (b) Buyer’s signature on this Agreement. Seller will promptly notify Buyer of the approval of the Agreement by the City Council of Seller (“Seller Approval Notice”) and within three (3) business days thereafter will deliver an executed copy of the Agreement to Buyer. This Agreement shall not be deemed effective or binding on either Party until executed by both Parties.

16.15 Dates for Performance; Force Majeure. Any references in this Agreement to time for performance of obligations or elapsed time shall mean consecutive calendar days, months, or years, as applicable, unless otherwise explicitly indicated herein. Should the date for the giving of any notice, the performance of any act, or the beginning or end of any period provided for in this Agreement not fall on a business day, such date shall be extended to the next succeeding business day. As used herein, “business day” means any day other than the following:
a Saturday, a Sunday, a federal or California state holiday. Whenever any action, notice, approval or disapproval must be given to Escrow Holder and Escrow Holder’s office is closed on the last day for taking such action, then the Parties shall have until 5:00 p.m. on the first following day Escrow Holder’s office is open to take such action. In the event of delay due to Force Majeure, the time periods and deadlines for the giving of any notice, the performance of any act, or the beginning or end of any period (including the Feasibility Period, the Closing Date, and the Outside Closing Date) shall be extended for the period that a Party is delayed as a result of such Force Majeure event; provided, however, the Party claiming delay must provide written notice to the other Party within ten (10) days after obtaining actual knowledge of such delay.

16.16 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In addition, if any Party uses facsimiletransmitted signed documents, or signed documents which have been electronically scanned and transmitted by email, Escrow Holder and the other Party are authorized to rely upon such documents as if they bore original signatures. The Parties acknowledge and agree that execution of the Notice of Suitability by an authorized officer and execution of this Agreement or any amendment to this Agreement by an authorized officer may be accomplished by electronic signature utilizing DocuSign or any similar technology.

16.17 Construction of Agreement. The agreements contained herein shall not be construed in favor of or against either Party, but shall be construed as if both Parties prepared this Agreement. Buyer and Seller acknowledge that they have been represented, or have had the opportunity to be represented, by counsel of their own choice. In this Agreement, the masculine, feminine or neuter gender, the singular or plural number shall be deemed to include the other whenever the context so requires, and “shall” and “agrees” are mandatory, and “may” is permissive. The Parties acknowledge, understand and agree that their respective agents and representatives executing this Agreement on behalf of each of the Parties are learned and conversant in the English language, and that the English language shall control the construction, enforcement, governance, interpretation and performance of this Agreement. 132
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16.18 No Third Party Beneficiaries. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than the Parties hereto, their respective successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provisions herein contained, this Agreement and any conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the above mentioned Parties, persons and entities, and for the benefit of no other person.

Signatures Appear on the Following Page
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EXECUTED by the Parties hereto in multiple copies, each of which shall be deemed to be an original, on the dates set forth below.

SELLER: THE CITY OF OAKLEY, a California
municipal corporation
By:

Name:

Title:

Date of Execution: _____________________
APPROVED AS TO FORM:
_____________________________________
BUYER: KB HOME NORTH BAY LLC, a Delaware
limited liability company
By:____________________________
Name:____________________________
Title:____________________________
Date of Execution: _____________________
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ACKNOWLEDGEMENT OF ESCROW HOLDER:

First American Title Company
By:

Sarah Eads, Senior Escrow Officer
Date of Receipt: _________________
EXHIBITS:

EXHIBIT A: Legal Description of the Property
EXHIBIT A-1 Affordable Lots
EXHIBIT B: Memorandum of Agreement
EXHIBIT C: Grant Deed
EXHIBIT D: General Assignment
EXHIBIT E: Finished Lot Condition
135
SMRH:4890-6641-9113.10 Exhibit A
041724 0HDW-385377
54078.002/768962.154078.002/764995.254078.002/763170.1

EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Oakley, County of Contra Costa, State of California, described as follows:

BEING A PORTION OF THAT CERTAIN PARCEL OF LAND GRANTED TO BRUCE R. BURROUGHS AND BARBARA M. BURROUGHS, TRUSTEES OF THE B & B BURROUGHS REVOCABLE TRUST UNDER INSTRUMENT DATED JUNE 16, 1994, BY DEED RECORDED JANUARY 26, 1995, IN SERIES NO. 95-13407

OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE EAST ONE-QUARTER CORNER OF SECTION 29, TOWNSHIP 2 NORTH, RANGE 3 EAST, MOUNT DIABLO MERIDIAN;

THENCE, FROM SAID POINT OF COMMENCEMENT, ALONG THE MID-SECTION LINE OF SAID SECTION 29, NORTH 89°15'39" WEST 210.32 FEET;
THENCE, LEAVING SAID MID-SECTION LINE, NORTH 00°44'21" EAST 30.00 FEET TO A POINT ON THE NORTHERN LINE OF CYPRESS ROAD AND TO THE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE, FROM SAID POINT OF BEGINNING, ALONG SAID NORTHERN LINE, NORTH 89°15'39" WEST 1856.90 FEET;
THENCE, LEAVING SAID NORTHERN LINE, NORTH 00°44'21" EAST 1124.07 FEET TO A POINT ON THE

SOUTHWESTERN LINE OF THAT CERTAIN PARCEL LAND GRANTED TO CONTRA COSTA WATER DISTRICT BY DEED RECORDED MARCH 9, 1940, IN BOOK 539 OF OFFICIAL RECORDS AT PAGE 218, IN SAID OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY; THENCE, ALONG SAID SOUTHWESTERN LINE, THE FOLLOWING THREE (3) COURSES:
1) SOUTH 62°13'01" EAST 1616.42 FEET,
2) ALONG THE ARC OF A TANGENT 470.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 18°22'00", AN ARC DISTANCE OF 150.66 FEET, AND 3) SOUTH 43°51'01" EAST 421.92 FEET TO SAID POINT OF BEGINNING.

EXCEPTING THEREFROM:

1. AN UNDIVIDED 16/33 INTEREST IN ALL OIL, GAS, MINERALS, AND HYDROCARBONS AS RESERVED IN THE DEED FROM ERNEST C. BURROUGHS AND MARY LOO BURROUGHS RECORDED MAY 21, 1984, BOOK 11798, PAGE 982, SUBJECT TO THE INTEREST DESCRIBED IN THE MINERAL POOLING AGREEMENT RECORDED APRIL 27, 1964, BOOK 4604, PAGE 338.

THE INTEREST IN AND TO THE SURFACE OF THE LAND AND TO A DEPTH OF 500 FEET THEREUNDER HAS BEEN RELINQUISHED BY GRANT DEED (SURFACE RIGHTS) RECORDED OCTOBER 31, 2003 AS INSTRUMENT NO. 2003-540677 OF OFFICIAL RECORDS.

2. RIGHTS GRANTED IN THE DEED TO ERNEST C. AND MARY LOO BURROUGHS, TRUSTEES OF THE BURROUGHS REVOCABLE TRUST, UNDER AGREEMENT DATED NOVEMBER 16, 1982 RECORDED AUGUST 22, 2003 AS INSTRUMENT NO. 2003-418732 OF OFFICIAL RECORDS AS FOLLOWS:

AN UNDIVIDED 16/33 INTEREST IN ALL OIL, GAS, MINERALS AND HYDROCARBONS, SUBJECT TO THE 136
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INTEREST DESCRIBED IN THE MINERAL POOLING AGREEMENT RECORDED SEPTEMBER 28, 1962, BOOK 4212, PAGE 144 AND AMENDED MINERAL POOLING AGREEMENT RECORDED APRIL 27, 1964, BOOK 4604, PAGE 338, OFFICIAL RECORDS.

3. MINERAL RIGHTS AS DESCRIBED AND GRANTED IN THE GRANT DEED EXECUTED BY ERNEST C.

BURROUGHS, ET AL, TO ERNEST C. BURROUGHS, ET AL RECORDED OCTOBER 31, 2003 AS INSTRUMENT NO. 2003-0540678 OFFICIAL RECORDS.

APN: 032-081-025-2
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EXHIBIT A-1

DESCRIPTION OF AFFORDABLE LOTS
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MEMORANDUM OF PURCHASE AND SALE AGREEMENT

THIS MEMORANDUM OF PURCHASE AND SALE AGREEMENT
(“Memorandum”) is made as of the date of recordation hereof, between THE CITY OF OAKLEY, a California municipal corporation (“Seller”), and KB HOME NORTH BAY LLC, a Delaware limited liability company (“Buyer”), who agree as follows:

RECITALS
A. Seller is the owner of the real property located in the City of Oakley (the “City”), Contra Costa County (the “County”), California, as more particularly described in Exhibit 1 (“Property”).

B. Seller and Buyer have entered into that certain Purchase and Sale Agreement (“Agreement”) with respect to the sale of the Property, upon and subject to the provisions and conditions set forth in the Agreement. The Agreement is incorporated in this Memorandum by this reference.

C. Seller and Buyer desire to execute this Memorandum and cause the same to be recorded in the Official Records for the purpose of memorializing the Agreement and to provide third parties with notice of the Agreement.

AGREEMENT

1. Pursuant to the Agreement and this Memorandum, Seller hereby agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property, upon and subject to the provisions and conditions set forth in the Agreement, as the same may be amended from time to time.

Pursuant to the Agreement, Seller may not knowingly place or allow any additional deed of trust, lien, encumbrance or other exception to title to the Property.

2. This Memorandum is being recorded to provide notice to any and all subsequent interests in the Property of the rights and obligations of the parties to the Agreement and is not intended to modify or change the provisions of the Agreement. To the extent of any inconsistency 139
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between the Agreement and this Memorandum, the Agreement shall control. This Memorandum shall inure to the benefit of and shall be binding upon Buyer and Seller and their respective successors and assigns.

3. Upon the recordation of a grant deed executed and acknowledged by Seller that conveys all or a portion of the Property to Buyer, this Memorandum shall automatically terminate with respect to such portion of the Property (but shall remain in effect with respect to any portion of the Property that has not been conveyed to Buyer).

4. This Memorandum may be executed in one or more counterparts, of each which shall be deemed an original, but all of which together shall constitute one and the same instrument.

SELLER: THE CITY OF OAKLEY, a California municipal
corporation
By:

Name:

Title:

BUYER:

KB HOME NORTH BAY LLC
a Delaware limited liability company
By:

Name:

Title:
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EXHIBIT 1
to the Memorandum of Agreement
Legal Description of the Property
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

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

WITNESS my hand and official seal.

Signature
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EXHIBIT C

GRANT DEED

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL

THIS GRANT DEED AND ALL
TAX STATEMENTS TO:

KB HOME NORTH BAY LLC
4830 Business Center Drive, STE 150
Fairfield, CA 94534
Attn:
(Above Space for Recorder’s Use Only)
APN:

GRANT DEED
The undersigned grantor declares:

Documentary transfer tax is $________________
(X) computed on full value of property conveyed, or
( ) computed on full value, less value of liens and encumbrances remaining at time of sale.

FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF OAKLEY, a California municipal corporation (“Grantor”), hereby GRANTS to KB HOME NORTH BAY LLC, a Delaware limited liability company, the following described real property (the “Property”) located in the City of Oakley, Contra Costa County, State of California:

SEE EXHIBIT ”1” ATTACHED HERETO AND INCORPORATED

HEREIN BY THIS REFERENCE
Signature Appears on the Following Page
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IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as of the ___ day of _____________, _______.

GRANTOR:

THE CITY OF OAKLEY, a California municipal corporation
By:

Name:

Title:
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EXHIBIT “1” to GRANT DEED
Legal Description of the Property
[To be attached]
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EXHIBIT D
General Assignment
THIS GENERAL ASSIGNMENT AGREEMENT (“Assignment”), is made as of the ______ day of __________, _____, by and between THE CITY OF OAKLEY, a California municipal corporation (“Assignor”) and KB HOME NORTH BAY LLC, a Delaware limited liability company (“Assignee”).

W I T N E S E T H:

Assignor has sold to Assignee the real property in the City of Oakley, California, as are more particularly described in Schedule 1 attached hereto (“Property”). Assignor desires to transfer to Assignee, and Assignee desires to acquire from Assignor, all of Assignor’s rights, privileges and easements appurtenant to the Property (the “Appurtenances”), and all improvements thereon (the “Improvements”). The Property, the Appurtenances and the Improvements are hereinafter referred to collectively as the “Real Property.” The Real Property is being conveyed by Assignor to Assignee pursuant to a grant deed (“Grant Deed”) of or about even date herewith.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Assignor hereby grants, assigns, transfers, conveys and delivers to Assignee any and all of Assignor’s right, title, interest, benefits and privileges that Assignor possesses in and to the following (collectively, the “Rights”):
(a) All contract rights, warranties, guaranties and licenses which benefit the Real Property;
(b) all contractual and statutory indemnities and warranties received by Assignor from third parties relating to the Property, including utility and other service providers, engineers, architects, consultants, contractors and subcontractors, and the associated rights and remedies, including indemnification rights, under any contract Assignor may have with any engineers, architects, consultants, contractors, and subcontractors for claims related to the Property;
(c) All soils tests, appraisals, engineering, seismic and geological reports and similar materials relating to any or all of the Real Property; (d) All governmental entitlements (including, but not limited to, all environmental impact reports, negative declarations, map approvals, conditional use permits, building permits and certificates of occupancy for the Improvements), approvals, permissions, environmental clearances, authority to subdivide the Property, rights, licenses, permits and any prepaid impact fees attributed to the Property that relate to all or any of the Real Property; and (e) All general intangibles relating to the development or use of the Real Property, including, without limitation, all names under which or by which the Real Property or 146
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any portion thereof may at any time be operated or known, all rights to carry on business under any such names or any variant thereof, all trademarks and goodwill in any way relating to the Real Property and all plans, designs and specifications relating to the design of the residences and other improvements planned to be constructed on the Property.

2. Assignor hereby represents and warrants to Assignee that, effective as of the date of recordation of the Grant Deed, (i) Assignor has not assigned, sold, mortgaged, pledged or otherwise transferred all or any of Assignor’s right, title or interest in or to any of the Rights to any party other than Assignee and (ii) Assignor owns the Rights free and clear from any and all liens, encumbrances and security interests.

3. This Assignment shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives.

4. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants, conditions, agreements or provisions on the part of the other party arising out of this Assignment, then in that event the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit, including reasonable attorneys’ fees.

5. This Assignment shall be governed by, interpreted under, and enforced and construed in accordance with the laws of the State of California.

6. This Assignment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first hereinabove written.

ASSIGNOR: THE CITY OF OAKLEY, a California municipal
corporation
By:

Name:

Title:

ASSIGNEE: KB HOME NORTH BAY LLC,
a Delaware limited liability company
By:

Name:

Title:
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SCHEDULE 1

LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT E
Finished Lot Condition
The term “Finished Lot” shall refer to a lot that has all:
(A) grading completed in accordance with approved grading plans, including the complete installation of any retaining walls (with backfill and drainage) necessary to create the building pad, with the pad certified by a civil engineer licensed in good standing in the State with respect to elevation, with an elevation tolerance to one-tenth (.1) foot accuracy vertically and one-half (.5) foot accuracy horizontally of the grade set forth in the rough grading plans approved by the City or County, as applicable, at the tops and toes of slopes, and by a soils engineer licensed and in good standing in the State with respect to compaction, (B) water services installed and stubbed to the lot behind the curb, with water meter boxes set to grade, lids (traffic-rated boxes and lids shall be installed if water meter boxes are to be encased in concrete driveway aprons), meter setters, curb stops, and under-sidewalk water sleeves; as well as all sewer services installed and stubbed to the lot one-and-a-half (1.5) foot behind the property line with ‘S’ markings on curb to indicate the location of sewer laterals, (C) gas, electricity, telephone, and cable television conduits installed and stubbed to the lot line behind the curb/sidewalk and capable of being energized/ pressurized/ connected for immediate service upon completion of the residence on the lot (all PG&E house service reimbursements shall be returned to the party who initially paid the costs attributable to such reimbursable items),
(D) storm drain, water system, sewer system, curb, gutter, sidewalk, joint trench and street pavement for public access and frontage improvements constructed and installed for the entire tract in which the lot is located,
(E) street signs and striping installed, curbs painted red as shown in the signage and striping plans, street monuments installed and certified by the surveyor licensed and in good standing in the State, and street lights installed, numbered and energized, (F) all community and street monumentation installed, all retaining walls installed around utility boxes and/or along property line(s) as may be required by the plans approved by the City and/or utility companies, all perimeter walls, gates and/or fencing installed (excluding Lot fences), all site perimeter, street frontage or median landscaping and irrigation systems required by the improvement plans and City specifications installed (except landscaping and irrigation contained entirely within the Lots) and all common areas and other amenities completed and accepted by the applicable Agency and/or homeowners’ association, (G) park area, open space and other public amenities required by the conditions of approval to the tentative and final maps or applicable Agencies that are necessary for construction and occupancy of residential units.
149

STAFF REPORT
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.ci.oakley.ca.us DATE: April 23, 2024
TO: Joshua McMurray, City Manager
FROM: Kevin Rohani, P.E., Public Works Director & City Engineer SUBJECT: Adopt a Resolution Approving the Agreement with McDonald’s USA, LLC (APN 035-510-006) for “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for DR 09-20 McDonald’s Restaurant Project Located at 1060 Laurel Plaza and Authorizing the City Manager to Execute the Agreement
Background and Analysis
The installation of the Permanent Stormwater Pollution Prevention Measures (BMP’s) for the DR 09-20 McDonald’s Restaurant project will be constructed with the improvements associated with the project. The City’s Stormwater Management and Discharge Control Ordinance requires proper operation and maintenance of the permanent BMP’s by the respective property owners. The “Stormwater Management Facility Operation and Maintenance Agreement and Right of Entry” memorializes the owner’s maintenance, operations and inspection obligation under the City’s Ordinance and the approved plans.

Under the Contra Costa Countywide National Pollutant Discharge Elimination System (NPDES) Municipal Stormwater Permit, projects “deemed complete” after February 15, 2005, are to comply with the provisions of the Permit. The City adopted an Ordinance, as required by the Permit, to enable this activity within the City of Oakley. A requirement of the permit is that each property implement stormwater treatment devices, fund the perpetual maintenance of those devices, and enter into an agreement with the City stating that the property owner will maintain the devices, grant a right of entry to City staff for inspections, and agree to pay the cost of City inspections.

Consistency with the Oakley Strategic Plan 27+
This item is consistent with the Strategic Plan 27+ for Community Health and Safety Goal.

Fiscal Impact
There is no fiscal impact associated with the agreement since all inspection, operations, and maintenance costs are the responsibility of the property owners.

Staff Recommendation
Staff recommends that the City Council adopt the resolution approving the “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for DR 09-20 McDonald’s Restaurant Project located at 1060 Laurel Road and authorize the City Manager to sign the agreement on behalf of the City.

Approved and
Forwarded to the
City Council
150

STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561 2
O (925) 625-7000 | F (925) 625-9859 | www.CI.Oakley.CA.US Attachments
1) Resolution
2) “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for DR 09-20 McDonald’s Restaurant Project 151
Resolution No. __-24 Page 1
RESOLUTION NO. __-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY, CALIFORNIA APPROVING THE AGREEMENT WITH MCDONALD’S USA, LLC (APN 035-510-006) FOR “STORMWATER MANAGEMENT FACILITY
OPERATIONS AND MAINTENANCE AGREEMENT AND RIGHT OF ENTRY” FOR DR 09-20 MCDONALD’S RESTAURANT PROJECT LOCATED AT 1060

LAUREL ROAD AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE

AGREEMENT
WHEREAS, the City of Oakley’s Stormwater Management and Discharge Control Ordinance requires proper operation and maintenance of the Permanent Stormwater Pollution Prevention Measures installed for the McDonald’s Restaurant project; and
WHEREAS, the “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” memorializes the owner’s maintenance, operations, and inspection obligations under the City’s Ordinance and the approved plans; and WHEREAS, the installation of the Permanent Stormwater Pollution Prevention Measures for the McDonald’s Restaurant project will be consistent with the approved improvement plans; and
WHEREAS, McDonald’s USA, LLC, the current owner of the parcel described in Exhibit A, desires to execute the “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry”; and
NOW, THEREFORE, BE IT RESOLVED AND ORDERED, that the City Council of the City of Oakley does hereby approve the “Stormwater Management Facility Operations and Maintenance Agreement and Right of Entry” for the McDonald’s Restaurant project in the form attached hereto as Exhibit A and authorizes the City Manager to execute the agreement.

PASSED AND ADOPTED by the City Council of the City of Oakley at a meeting held on the 23rd of April 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTIONS:
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Resolution No. __-24 Page 2
APPROVED:

_______________________
ATTEST: Anissa Williams, Mayor
______
Libby Vreonis, City Clerk Date
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April 12, 2024
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Oakley City CouncilApril 23, 2024

Oakley City Council
April 23, 2024