IMPORTANT NOTICE REGARDING THIS MEETING: To protect our residents, officials, and staff, and in alignment with AB 361 and Orinda City Council Resolution No. 42-21, in which certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting, this meeting will be held by Teleconference.
BY
TELECONFERENCE
VIA
ZOOM WEBINAR
By PC:
MEETING URL:
https://tinyurl.com/ncusvn4h
MEETING ID: 924 9319 5201
By Telephone:
+1 669-900-9128
MEETING ID: 924 9319 5201
CITY COUNCIL
AGENDA
Tuesday, February 7, 2023
7:00 PM - REGULAR MEETING
City Council
Agenda Page 1 02.07.23
How to follow or participate in the meeting:
• Members of the public may observe and participate in the meeting at the teleconference location highlighted above. To ensure that the City Council receives your comments, we strongly encourage you to submit your comments in writing in advance of the meeting by following instructions below:
Send your e-mail to [email protected] by 3pm on the day of the meeting.
Those e-mails will be forwarded to the City Council. They will also be made a part of the public record and be available to view in the public review binder at Orinda City Hall, 22 Orinda Way. In addition, they will be available electronically by 5pm on the day of the meeting by selecting the date of the meeting in this Box account link:https://cityoforinda.box.com/s/aqrelwbwv0wc37m5hkju2o8a0sta7bup • Comments may also be submitted by e-mail during the meeting up until the closure of public comment period on the relevant agenda item. These will be read into the record by staff at their normal cadence and will be limited to a maximum of 3 minutes. To be read into the record, e-mail must contain in the subject line “Public Forum – Not on the Agenda” or “Public Comment – Agenda Item #” with the relevant agenda item indicated.
• To comment orally in real time during the meeting, you may use the Zoom “raise your hand” function on your computer screen or the *9 function on your phone.
City Council
Agenda Page 2 02.07.23
7:00 PM - REGULAR SESSION
A. CALL TO ORDER / ROLL CALL
Councilmembers: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
B. PLEDGE OF ALLEGIANCE
C. ADOPTION OF AGENDA
The City Council may take action on any item listed on the agenda.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Proclamation Recognizing Black History Month in Orinda - February 2023
E. PUBLIC FORUM
The public forum provides an opportunity for members of the public to speak on any item within the jurisdiction of the City Council that is not on the agenda.
Additionally, a speaker has the option of addressing the Council on an item listed on the agenda, if the speaker will not be present when that agenda item is taken up. When an item is not listed on the agenda, State law prohibits Council discussion or action. Councilmembers may only “briefly respond” to statements made and questions posed. For example, State law allows Councilmembers to ask questions for clarification and provide a reference to staff or other resources for factual information. Additionally, consistent with the “Matters Initiated” rule contained in its Policies and Procedures Manual, the Council may also direct staff to report back and/or place a matter on a future agenda for discussion.
F. CONSENT CALENDAR
F.1. City Council Minutes
Recommendation:
Approve City Council Minutes:
1. January 10, 2023 - Regular Meeting
2. January 17, 2023 - Regular Meeting
F.2. Authorization For Continued Use of Remote Teleconference for City Meetings
Recommendation:
City Council
Agenda Page 3 02.07.23
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of February 8, 2023 to February 24, 2023 Pursuant to the Provisions of Assembly Bill 361.
F.3. Authorize City Manager to Enter into the First Amendment of the Agreement with Bigbelly Smart Waste and Recycling System Recommendation:
Staff recommends the City Council direct it’s JPA Board Members to request sufficient funding from reserves of recycling revenue ($460,084.37) in which to amend the existing Big Belly contract by extending for an additional five years, and authorize the City Manager to sign said amendment
F.4. Authorizing the City Manager to Enter into a new 3-Year Contract with Contra Costa Certified Farmers’ Market (CCCFM) for Operation of a year-round Orinda Farmers’ Market
Recommendation:
Authorize the City Manager to enter into a new 3-year contract with CCCFM to operate a year-round Orinda Farmers’ Market from April 1, 2023 through March 28, 2026.
F.5. Reaffirming proclamation of the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms Recommendation:
Staff recommends that the City Council adopt Resolution 11-23 F.6. Authorization to Execute Fund Exchange Agreement No. 628 with the Contra Costa Transportation Authority (Authority) for State SB1 Local Partnership Program Formulaic (LPP-F)
Recommendation:
Staff recommends authorizing said Agreement and to allow the City Manager or designee to make any non-substantive changes to the language.
F.7. Contract Acceptance of the Lavenida Culvert Repair Project No. 4148 with Valentine Corporation.
Recommendation:
Staff recommends that the City Council adopt Resolution No.04-23 Acceptance of Work for the Lavenida Culvert Repair Project No. 4148 with Valentine Corporation and authorize filing a Notice of Completion F.8. Authorize Contract Amendment No. 2 with CSG Consultants, Inc. for On-Call Construction Management Services
Recommendation:
City Council
Agenda Page 4 02.07.23
Staff recommends that the City Council review Contract Amendment No. 2 for CSG Consultants, Inc to extend the on-call contract for Construction Management services and authorize the City Manager and City Clerk to execute the Contract Amendment, subject to approval as to form by the City Attorney. The amendment will increase the maximum on-call contract amount to $150,000.
F.9. Contract Acceptance of the Camino Sobrante Retaining Wall Replacement Project No. 4152 with E.E. Gilbert Construction, Inc.
Recommendation:
Staff recommends that the City Council adopt Resolution No.10-23 Acceptance of Work for the Camino Sobrante Retaining Wall Replacement Project No. 4152 with E.E Gilbert Construction, Inc. and authorize the City Clerk to sign and file the Notice of Completion with the Contra Costa County Clerk-Recorder.
F.10. Approve list of streets for the Annual 2023 Pavement Rehabilitation Project and approve $200,000 Road Project Funding Nomination to California Transportation Commission (CTC) for 2023 SB 1 Local Partnership Program formulaic funds for the 2023 Annual Pavement Rehabilitation Project No. 4171.
Recommendation:
Staff recommends the Council review and approve the list of streets for the Annual 2023 Pavement Rehabilitation Project, authorizing the City Manager to execute and submit the Funding Nomination packet to the California Transportation Commission (CTC)
G. PUBLIC HEARING
G.1. Introduce Ordinance 23-02 Amending Chapter 17.17 of the Orinda Municipal Code and Adopting the State Model Water Efficient Landscape Ordinance ("MWELO") by Reference
Recommendation:
Introduce Ordinance 23-02, waiving full reading, which includes a determination that it is exempt from the California Environmental Quality Act (CEQA).
H. POLICY MATTERS
I. COUNCILMEMBERS' REPORTS
J. CITY MANAGER'S REPORT
K. MATTERS INITIATED
L. ADJOURNMENT
City Council
Agenda Page 5 02.07.23
The next Regular Meeting of the Orinda City Council will be held on Saturday, February 11, 2023 at 9:00 AM.
Please visit the City’s website at www.cityoforinda.org to view the City Council Calendar.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this special meeting agenda has been posted at least 24 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way.
Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org. At least 24 hours in advance of the meeting, this agenda was also delivered to and received by each member of the City Council as well as each local newspaper, radio station and television station requesting written notice of special meetings.
I, Sheri Marie Smith, City Clerk, declare under penalty of perjury under the laws of the State of California that this regular meeting agenda has been posted at least 72 hours in advance at the Orinda City Hall, 22 Orinda Way and the Orinda Library, 26 Orinda Way. Additional copies are available at the Orinda Library, 26 Orinda Way, and at the City’s website at www.cityoforinda.org
~ Notices ~
There is a 90-day limit for the filing of a challenge in Court to certain City decisions that require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you file a challenge in Court, you may be limited by California law, including but not limited to Government Code §65009, to those issues raised in connection with the public hearing. The City Council may be requested to reconsider a decision if the request is made prior to the next City Council meeting. For information on the next City Council meeting, please call 925.253.4221 or visit the website at www.cityoforinda.org. Unless otherwise noted, City Council actions include a determination that the California Environmental Quality Act (CEQA) does not apply. ~ Accessible Public Meetings ~
The City of Orinda will provide special assistance for disabled citizens to participate in public meetings upon advance notice. If you need auxiliary hearing aid or sign language assistance at least two (2) working days advanced notice is necessary. Please contact the City Clerk’s Office, 22 Orinda Way, Orinda, Ca 94563 or 925.253.4221 or [email protected] with the following information: name, mailing address, phone number and type of assistance requested.
PROCLAMATION
RECOGNIZING BLACK HISTORY MONTH IN ORINDA
FEBRUARY 2023
WHEREAS, Black History Month, also known as African American History Month, is an annual celebration and recognition of the tremendous achievements by Black Americans in all aspects of American life and a time for acknowledging their important role in U.S. history; and
WHEREAS, Carter Goodwin Wilson, a Black historian, established a week to recognize the accomplishments of Black American citizens on February 7, 1926, which became one of the cultural landmarks of contemporary America; and the second week of February was chosen for the event because it coincided with the birthday of Abraham Lincoln on February 12th and of Frederick Douglass on February 14th; and WHEREAS, the Orinda Library is proud to celebrate Black History Month this February, and, with all the Contra Costa libraries, has partnered with local authors, artists, historians, activists, and regular folks doing extraordinary things to bring some important programs to the community, with live and virtual events that include art exhibits, conversations with poets, and workshops where Black History is taught and shared by those who are experiencing it, and the Library collection offers further resources describing Black experiences, and if residents seek further information regarding what to read, view, or listen to, as they recognize Black History Month, the Orinda library staff is happy to provide many reading and listening options; and
WHEREAS, Black History Month is a time for families in our community to reflect on the many contributions that Black Americans of all ages have made to our country and offers a time for family and neighbor conversations about the importance of celebrating and recognizing these tremendous contributions; and
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Communication: Proclamation Recognizing Black History Month in Orinda - February 2023 (ITEMS FOR THE GOOD OF THE CITY)
WHEREAS, the City of Orinda and the Orinda Union School District jointly adopted a Resolution supporting Inclusion, Diversity and Equity in our community and as part of those efforts the Orinda Union School District has developed a curriculum to celebrate Black History Month highlighting the myriad of ways Black Americans have contributed to the fabric of our country, with a focus on different themes and activities for each grade level; and
WHEREAS, the Orinda City Council feels it is important to communicate its support for inclusivity and respect in our City, and the Orinda City Council encourages all members of our community to remember and celebrate the contributions that African Americans have made to this nation and the importance of diversity and inclusion in our community and that racial equality must always be a cornerstone of democracy; and
NOW, THEREFORE, BE IT RESOLVED that I, Inga Miller, Mayor, on behalf of the Orinda City Council does hereby declare the month of FEBRUARY 2023 as BLACK HISTORY MONTH in the City of Orinda.
Inga Miller
Mayor, City of Orinda
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Communication: Proclamation Recognizing Black History Month in Orinda - February 2023 (ITEMS FOR THE GOOD OF THE CITY) AGENDA TITLE: City Council Minutes
RECOMMENDATION:
Approve City Council Minutes:
1. January 10, 2023 - Regular Meeting
2. January 17, 2023 - Regular Meeting
ATTACHMENTS:
A. City Council Minutes of January 10, 2023
B. City Council Minutes of January 17, 2023
Respectfully Submitted by:
Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:
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Orinda City Council Minutes Page 1 of 14 01.10.23
January 10, 2023
CITY OF ORINDA
CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed at: http://orindaca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=2347 They are also kept in the City Clerk’s Office as part of the public record and available upon request. 7:00 P.M. – REGULAR MEETING– BY TELECONFERENCE
A. CALL TO ORDER / ROLL CALL:
Mayor Miller called the Regular Meeting to order at approximately 7:13 p.m.
COUNCILMEMBERS PRESENT: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
COUNCILMEMBERS ABSENT: None.
B. PLEDGE OF ALLEGIANCE – Led by Mayor Miller.
C. ADOPTION OF AGENDA
Mayor Miller moved Item J; the City Manager’s Report up on the agenda.
City Manager Biggs also referred to a notice advertised regarding adoption of the Building Code update which will be continued to the City Council Meeting on January 17, 2023.
MOTION by Councilmember Iverson moved and seconded by Councilmember Riley to adopt the agenda, as amended. Said motion carried by unanimous (5-0) roll call vote.
J. CITY MANAGER’S REPORT – City Manager Biggs provided the following report:
• Public Works staff, police and Departmental staff have been working on storm related incidents, storm drains, downed tree branches, mudslides, addressing resident calls, and rain is forecasted for the rest of the week; • The Governor declared a State of Emergency up and down the state, effective December 27th and Mr. Biggs developed a local proclamation to be ratified on January 17th to ensure the City is eligible for reimbursement of FEMA funds;
• If residents see something out of order, the City asks that they contact Public Works during regular hours and the police non-emergency number outside business hours;
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 2 of 14 01.10.23
• Power outages have affected roads and closures include Charles Hill Road until tomorrow morning. The city recommends residents sign up for Nixle and CSW alerts, and social media for announcements;
• Sandbags are available at the two fire stations and over 8,000 have been distributed over the last week;
• Staff continues to monitor things and the City Manager asks that everyone stay safe.
Mr. Biggs announced that the first Wildfire Prevention and Safety Fair will be held on April 22nd in the Community Park.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Annual Comprehensive Financial Report and Audit Overview - Maze & Associates
Recommendation:
Receive presentation by Mr. David Alvey of Maze & Associates and ask any follow-up questions on the audit that was performed for the period ending June 30, 2022.
David Alvey, Maze & Associates, provided a PowerPoint presentation on their work to audit the financial statements of the City and reviewed background of the audit process, audit results, financial highlights, and the memorandum on internal controls or what is referred to as the Management Letter and findings.
Mayor Miller and Councilmembers recognized the work of Maze & Associates and thanked Mr. Alvey for his presentation.
Mayor Miller referred to the $6.8 million increase and net position entity-wide of the $103.5 million, asked if Measure R or the $3 million recovery money goes into either of those funds and if the City is still running on a net position as in prior years.
Mr. Alvey said this number is inclusive of add-on sales tax numbers and the ARPA monies. Mr. Biggs added that monies in the City’s General Fund have resulted in ongoing revenue where the City has seen a positive gain of just under $1 million. He then spoke of the City’s conservative standards.
Mayor Miller opened the Public Forum.
Nick Waranoff said he could not find the actual report in the public record or agenda packet on this item, spoke of an audit of TDA funding, and asked if Mr. Alvey was aware of the controversy concerning the electronic “No right turn on red sign” at the off-ramp from eastbound Hwy 24 and its inclusion in the TDA application.
Mr. Biggs clarified that this would have been covered in the prior audit, but staff can review the item and he believes it was disclosed and addressed at the time.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 3 of 14 01.10.23
Mayor Miller concluded the item.
E. PUBLIC FORUM
City Clerk Smith stated one public comment was forwarded to the Council and is on the public record.
Nick Waranoff asked that Item F.5 be removed from the Consent Calendar.
F. CONSENT CALENDAR
Mayor Miller removed Item F.5 from the Consent Calendar. There were no other requests for removal or public comments.
F.1. City Council Minutes
Recommendation:
Approve City Council Minutes:
1. December 6, 2022 - Regular Meeting
2. December 13, 2022 - Regular Meeting
F.2. Authorization For Continued Use of Remote Teleconference for City Meetings
Recommendation:
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of January 11, 2023 to February 9, 2023 Pursuant to the Provisions of Assembly Bill 361.
F.3. 2022 Annual Report of Development Impact Fee Funds Per AB1600 (Government Code Sections 66000 and Following)
Recommendation:
Staff recommends that the City Council: (1) Receive and file the City of Orinda Annual Report of Development Impact Fee Funds for the year ended June 30, 2022 (Attachment A); and (2) Adopt the resolution recording the completion of a Five Year Review including making findings regarding unexpended Mitigation Impact Fee Funds (Attachment C).
F.4. Acceptance of 2021 Annual Pavement Rehabilitation Project Recommendation:
Staff recommends that the City Council adopt Resolution No.02-23 Acceptance of Work for the 2021 Annual Pavement Rehabilitation, Project No. 4155 with DeSilva Gates Construction, LLP. and authorize the City Clerk to sign and file the Notice of Completion with the Contra Costa County Clerk-Recorder.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 4 of 14 01.10.23
MOTION by Councilmember Malkani and seconded by Vice Mayor Gee to approve Consent Calendar Items F.1, F.2, F.3, and F.4. Said motion carried by (5-0) roll call vote.
Item Removed from the Consent Calendar:
F.5. Approving Parcel Map and Subdivision Improvement Agreement for Subdivision MS 2022-002 Urban Lot Split at 15 St. James Ct.
Recommendation:
Staff recommends adoption of Resolution No. 55-22, approving Parcel Map for 15 St. James Court (MS 2022-002 Urban Lot Split) and Subdivision Improvement Agreement with owners Gerry Bakalian and Deborah MataBakalian, husband, and wife.
City Manager Biggs stated this item is the first lot split under SB 9 and has been approved ministerially by staff, which state law requires.
Councilmember Iverson commented that at the Planning Commission level the Director provides updates on SB 9 ministerial permits for visibility and transparency as to how SB 9 is implemented in the City. She suggested periodically providing this information to the City Council, as well.
Mayor Miller opened the Public Forum.
Nick Waranoff said his issue with the item is that he did not see that requirements of SB 9 were met for ministerial approval in that there is no indication that the applicant signed an affidavit indicating an intent to live in one of the parcels for at least 3 years. Therefore, he would like to be sure the affidavit was signed and be available for public review.
Planning Director Drummond Buckley said this stage of the process is the Final Map which is a technical stage confirming the details of the property lines and subdivision improvements are consistent with the Tentative Map. Staff confirmed that it met criteria of SB 9 and applicable objective standards and that the application includes a statement confirming the applicant intends to live there for 3 years.
MOTION by Councilmember Iverson and seconded by Vice Mayor Gee to approve Consent Calendar Items F.5. Said motion carried by (5-0) roll call vote.
G. PUBLIC HEARING – None.
H. POLICY MATTERS
H.1. Receive Annual Comprehensive Financial Report (ACFR) For June 30, 2022 Including Financial Statements and Audit Reports
Recommendation:
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 5 of 14 01.10.23
Accept the Annual Comprehensive Financial Report (ACFR) for the fiscal year ended June 30, 2022, including audited financial statements, report of balances, and other associated reports; Memorandum of Internal Controls Report; Gann Appropriations Limit Report; and Transportation Development Act Funds Report. (Note an Overview Presentation by the Independent Auditor is scheduled under the agenda section "Items For The Good of the City")
Director of Finance Doug Alessio gave the staff report and comprehensive presentation of the ACFR for fiscal year ending June 30, 2022. He emphasized that his overview covered the City’s General Fund and not funding from ARPA.
Councilmembers had the following questions, requests, and comments:
• (Gee) said she would like to ask that staff return this year to look again at the projections for the needs for the Library and Library Parcel Tax. Mr. Alessio stated the Council will be doing this as part of the budget process. • (Malkani) asked if there are big shifts in terms of major financial needs in the future such as capital projects and increased staffing. Mr. Alessio said staffing vacancies are being addressed in Public Works. He said revenues will not grow with the pace of inflation, so this will affect the City’s operating costs. The Parks and Recreation staff has not increased with the demand and revenues, so during mid-year and in the next cycle, the City will review staffing there as well as other departments. • (Miller) agreed the capital needs for the Library will be important. In addition to inflation, the City is going into new permitting requirements for roads through the Water Quality Control District and she hopes the Finance Committee will review this and determine how much of a surplus they are looking at. Mr. Biggs noted that in April staff will review roads, said they have the second highest pavement index in the Bay Area, and the permit requirements mandate green infrastructure on most road project which is estimated to cost an additional 30% to 50% to each project. The 2022 paving project is underway and expenses were not captured in the prior fiscal year so they did not underspend on that, as it was related to timing.
Mayor Miller opened the Public Forum.
Nick Waranoff referred to concerns about property crime, vacancies in the police department, and asked the Council to review the City’s contract with the County for police services has specific obligations for providing specified numbers of officers.
Mr. Biggs stated the City generally addresses vacancies by backfilling with overtime so it is not being left “unprotected.” An update was presented in November to the City’s Public Safety Committee and he spoke about difficulties with recruiting and increases coming forward in the coming year due to amortizing additional liability costs associated with policing.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 6 of 14 01.10.23
MOTION by Councilmember Riley moved and seconded by Councilmember Iverson to accept the Annual Comprehensive Financial Report (ACFR) for the fiscal year ended June 30, 2022, including audited financial statements, report of balances, and other associated reports; Memorandum of Internal Controls Report; Gann Appropriations Limit Report; and Transportation Development Act Funds Report.
Said motion carried by (5-0) roll call vote.
BREAK
Mayor Miller called for a break at 8:45 p.m. and thereafter reconvened the meeting at 8:50 p.m.
H.2. Review of the Revised Draft Safety Element of the General Plan and the Draft Downtown Precise Plan
Recommendation:
Staff recommends the City Council receive the report, take public testimony, and provide feedback on the revised draft Safety Element and draft Downtown Precise Plan.
Planning Director Drummond Buckley stated staff will divide the matter into two presentations, and introduced Eli Krispi, Project Manager, PlaceWorks.
Draft Safety Element:
Eli Krispi, Project Manager, PlaceWorks, gave a comprehensive PowerPoint presentation on the revised Draft Safety Element of the General Plan. He gave a background, changes since the June public draft, integration of MOFD’s efforts, climate change and vulnerability assessment, vulnerability assessment findings, and community engagement.
Councilmembers posed the following questions:
• (Miller) asked why crime is not addressed in the Safety Element. Mr. Biggs and Mr. Krispi said the Safety Element focuses on and serves as a natural hazards element so it does not address crime, policing, or fire operations. • (Iverson) referred to large earthquakes and asked if the current Safety Element also is sufficient on this topic. Mr. Krispi said the updated element does address earthquakes and seismic hazards more comprehensively than the existing element does. There is also information about notifying community members and preparing for overall disasters. However, there are ways to build on the work. Mr.
Buckley added that the evacuation analysis looks at a scenario around landslides and wildfires, as well.
Mayor Miller opened the Public Forum.
Nick Waranoff asked whether the consultant has considered whether evacuation would benefit if there was less housing downtown and more housing at the Caltrans site near the Caldecott Tunnel. If not, he asked why they have not.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 7 of 14 01.10.23
Michael Bowen, President, Friends of Orinda Creek, said the EIR and DPP took a pass on hydrology and he believes it did not convey the current status of San Pablo Creek as it flows through downtown Orinda. He asked how the Safety Element adequately or accurately calculates flood risk to the downtown area.
Mayor Miller asked and confirmed with Mr. Biggs that this presentation serves to familiarize the Council with the documents, as it was brought forward last year. There will not be an opportunity to make any modifications between now and January 31st, and she stated resources have been put into analyzing the creek for flooding because of the City’s capacity as the flood plain manager.
Mr. Buckley suggested Mr. Krispi respond if the Council had questions regarding this.
Mr. Krispi stated the Safety Element includes mapping on the areas that are deemed flood plains identified by FEMA, which is Figure 6. They also recognize flooding can occur outside of the areas identified. The policies in the Safety Element touch on the theme of flood plain as they are required to do under State law, and they also apply more broadly to other areas of the community that may be at risk. Additional hydrological modeling was not prepared which is beyond the scope of this type of work.
Mr. Buckley added that the City did hydrologic modeling as a separate project as part of the Creek Study that can be used to evaluate flood impacts of development projects or restoration projects, and this was the purpose of creating the model. The EIR also covered hydrology and hydrology impacts of the Plan Orinda project, as well.
Bruce McGurk, Boardmember, Friends of Orinda Creek, said he is a certified professional hydrologist with the Friends of Orinda Creek as a Boardmember and there is a big difference between hydraulic and hydrologic. PlaceWorks’ subcontractor, Questa Engineering performed a hydraulic model to ensure the work of the Friends would not cause any net rise in any flood flow and they certified that. However, they have not done hydrologic modeling which looks at the overall watershed response to rain, which is a different kind of model.
Additionally, there has not been a reopening of the study of the areas likely to be flooded from large storms in Orinda, which is not part of the DSP and it has not been identified or studied. They do not have a hydrology chapter in the EIR, so he believes this area is outside of analysis. Several Councilmembers heard him speak of the flood risk associated with their degraded channel in downtown Orinda and he believes the risk is not wellstudied and quite localized.
Downtown Precise Plan:
Mr. Buckley gave a PowerPoint presentation on the Downtown Precise Plan which sets a policy that will guide future decisions regarding downtown. He described its background, project area, public perception about the downtown, activities from 2020 to the present, other sources and plan relationships, Plan Orinda framework.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 8 of 14 01.10.23
Assistant Planner Darren Hughes then gave a presentation on the DPP structure and described the five chapters as introduction, 1) existing conditions, 2) vision and guiding principles, 3) San Pablo Creek, and 5) utilities, services, and infrastructure. There will be a 6th chapter if adopted in the future of objective design standards which are part of the appendices in draft format. The next meeting is January 19th for the PC, with a recommendation for adoption and then January 31 will be a presentation for adoption of the rest of the Plan Orinda elements.
Councilmembers posed the following questions:
• (Gee) confirmed with Mr. Buckley that the process of going from the draft objective design standards to the final is when the City codifies it as a municipal code change. And, at that time there will be some minor tweaks but these are just about final.
• (Gee) asked what would be the timing if the Council will consider an inclusionary housing ordinance. Mr. Buckley said staff could work on that as soon as the Housing Element is adopted and is at the pleasure of the Council as to prioritization. In July, the State will trigger requirements for mixed use so the Council may want staff to work on it. Mr. Biggs said there is a work element in the Housing Element and his plan would be to bring back an inclusionary ordinance within the first 6 months after the Housing Element is approved. He did not think there will be many projects coming forward, but staff could propose an urgency ordinance if they found there was a pending application. • (Miller) said the City seems to be peppered with comments that Orinda is trying to thwart any housing and it appeared today’s email was based on a major misconception that was taken from the City’s existing downtown policy that was written in the 1980’s versus the proposed downtown policy. It had to do with the BART lot, and she asked Mr. Buckley to comment. Mr. Buckley said there was a reference to a policy about using the BART lots purely for parking, except for subterranean. Staff was citing it as a relevant existing policy. The DPP has a Vision and Guiding Principles section which includes a goal of planning for TOD at the BART station which would include a mix of uses and not just parking. • (Miller) said Mr. Waranoff sent a question about a proposition by which the City could hold back from adopting the DPP and just adopt the Housing Element and go back and see whether they could reduce some of the 45 foot height limits to 35 feet with the idea that with the density bonus, waivers, and concessions it would not go as high for the 45 du/acre density. The 45 feet could be retail or a project that does not use density bonus or waivers and concessions, so the City might lose the potential for locally serving businesses and services which people travel out of town for.
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Attachment: City Council Minutes of January 10, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 9 of 14 01.10.23
Mr. Buckley replied the Council has the option to hold off adopting the DPP but it would be a missed opportunity to not adopt a holistic plan for both the housing in other parts of Orinda as well as downtown. The concern about adopting the DPP now and then amending it later if they need to for the Housing Element, to amend the DPP, all the City needs to do is adopt a resolution with some maps changed consistent with any changes necessary for the Housing Element.
Their goal is to receive a compliance letter from HCD, then finish the Housing Element on January 31st, and adopt a DPP consistent with that. If this cannot be achieved after January 31st it would not be difficult to amend the DPP concurrent with any other changes to the Housing Element. Mr. Biggs and Mr. Buckley then commented on the importance of the objective design standards as they affect quality development.
• (Malkani) commented that adopting the DPP now at the same time the Housing Element is being adopted sends a message to HCD that the City is serious. • (Iverson) said one slide said up to 55 feet in height in the presentation, and she asked as they get feedback letter from HCD, she asked Mr. Buckley if they will be able to get the two documents consistent by January 31st or if out of sync, would they get maximum heights and densities for each of the key colored areas in the plan. Mr. Buckley said those will be completely in sync by the time they get to the PC and Council. He thinks the 55 feet might have been 55 du/acre which is in the Housing Element in its current draft to respond to HCD comments. • (Iverson) asked and confirmed that staff can bring forward visual examples of developments at certain heights for Council review.
• (Miller) referred to the creek and hydrology and studies done to date and the letter received asking that the City not adopt the plan because it does not include the model initially developed by the Friends which the consultant reviewed. Mr.
Buckley said the DPP does not lock the City into a certain hydrology model regarding that issue and he did not understand the concern.
Mr. Biggs said at a high level, they want the creek to be an amenity for the community and the downtown. The Council appropriated $60,000 to review hydrology that works off the modeling the Friends had done. This resulted with PlaceWorks and Questa Engineering doing some additional work to do the chapter the City presented on the creek previously to the Council, and staff believes what has been done is adequate.
(Iverson) said it is a difficult issue to decide or to have it derail the DPP adoption.
When she re-read the letter with that in mind, the tone reads like the decision has been made. She would think with some sentences changed they should just make it clearer that the recommended plan is not technically complete which will buy them more time and flexibility. Mr. Buckley agreed and said staff can easily do this.
They can change some of the language in the modeling section on what the recommendation is and indicate there is still the option to do the bigger plan that the Friends has been wanting to do.
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• (Miller) referred to properties in the center area have the creek on one side and then have the electrical towers on the other side. She asked how much that constrains development. Mr. Buckley said the power lines are a big constraint.
The portion which has more development potential and not encumbered is on the side of the creek. So, on some parcels they are potentially taking up the one section of the parcel that could be developed with mixed use and housing. • (Miller) asked if any project on the creek is dependent upon the property owner agreeing to it. Mr. Buckley said the City may have a right to do some work within the actual floodway of the creek, but the restoration type activities and anything along the banks of the creek is dependent upon agreement by property owners. • (Miller) asked if there is any ability to loosen up the language and asked how much changing the language would affect the City’s ability to encourage developers to build that as part of the buildout of their property versus deciding not to do anything with the creek and just build as close to the creek bank as they could. Mr. Buckley said they say in the creeks section that they recommend a more limited restoration project and that is all they say. He said he thinks Mayor Miller is asking is if can they put something in the DPP which requires developers to do something in exchange for building housing and they cannot do that.
Mayor Miller said the downtown Library plaza was built with grant funding based on a specific plan. In that same way, she wondered if they could entice property owners to include that as part of their project in a way that makes their restaurant attractive because it sits out on the creek. Mr. Biggs said he thinks they need to view the DPP as an aspirational document and the idea is to encourage developers to view the creek as an amenity. If it includes residential, buildings looking out at the creek will be a tenant or resident amenity while also being available to the public.
• (Malkani) said she appreciated Councilmember Iverson’s comments. It seems to be one area of contention left in the DPP and to that end, having read the DPP and not been as involved with its germination as other Councilmembers, she read it as having different ways of doing creek development, with one way having roadblocks and the other is the way to go and was suggested. So, she suggested this language be slightly adjusted so it is integral to the DPP that the creek will be restored and is a jewel, to balance it out a bit more, and it will depend upon factors as to how to approach it.
• (Iverson) said to her the reason she has been so excited about the creek restoration is because it is integral to revitalizing the downtown, and this is the reason it has its own chapter in the DPP. If they can capture the notion that restoring the creek will create more valuable activities and create a two-sided experience, this ties Mayor Miller’s concern with it getting lost as a development incentive.
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• (Gee) asked when they get to the stage several years down the road where there is more effort being put into looking at the BART site, she asked staff if they envision at that point the Council would be amending the DPP. Mr. Buckley said he sees the BART site being a Specific Plan or a separate TOD Plan, but it could easily be done as an amendment to the DPP and this is a good suggestion so it integrates with everything else.
Mayor Miller opened the Public Forum.
Kevin Burke, East Bay for Everyone, said many of his friends cannot afford to live in Orinda or nearby, said the DPP describes underground parking which is very expensive, and this will increase the developer’s loan, costs, and traffic. He thinks the Council should:
1) waive the minimums altogether in the downtown core which only means a developer will simply not be required to build parking; 2) consider 55 du/acre throughout the entire downtown, particularly the gas station sites and did not think 35 du/acre will pencil out; 3) bet $200 to a charity of choice that the Housing Element will not get certified; 4) said the Gateway site is the second worst site and suggested listening to community members to build at BART; 5) if power lines are an issue, low income housing only needs 5 to 10 acres to meet RHNA requirements; and 6) There was opposition to the St. Stephen’s Church as a site, and if the church is interested in building house, they should have the chance to do that.
Mr. Buckley stated they did work with HCD to obtain feedback about whether they felt it was appropriate to use the BART station for this cycle and they said given the amount of planning and coordination it would take it would be better to wait until the next cycle.
Gina Peretti said she is a stakeholder in the downtown core area, acknowledged how difficult this process must be to successfully balance the needs of residents and commercial stakeholders with State housing requirements. The DPP and 6th Cycle Housing Element are a significant improvement for the City’s business community and residents. She knows there is more to do, but she applauded the work thus far. While it is appealing to delay decisions, that can be a decision to let real opportunities for positive change slip away and encouraged the Council to prioritize adopting the DPP with the Housing Element and objective design standards so intelligent, high quality, mixed use development can begin.
In response to Mayor Miller’s questions about the creek, Ms. Peretti said she had no comment on the creek.
EXTEND MEETING
MOTION by Vice Mayor Gee Riley moved and seconded by Councilmember Malkani to extend the meeting until 11:30 p.m. Said motion carried by unanimous (5-0) roll call vote.
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Michael Bowen, President, Friends of Orinda Creek, echoed Ms. Peretti’s comments, welcomed new Councilmembers, and thanked Mayor Miller for her long-standing cooperation to the Friends. The Friends embrace the DPP for a revitalized downtown enhanced with a beautiful creek. He described the Friends’ work and projects, welcome the opportunity to talk, and said he wanted to make corrections to comments made about the Friends’ proposal.
Staff indicated that the Friends’ proposal would eliminate 60 to 80 parking spaces, but the actual number has always been 10 spaces. They have worked with staff on an approach regarding creek restoration, clarified it is not true that their proposal requires moving transmission lines, said they try to work in good faith on a reasonable proposal and think it is compatible with revitalization and housing in downtown and do not understand why staff has spent time discrediting the Friends’ proposal and why these two concepts cannot be presented as incentives that are things that can serve as an amenity to the community.
They are also confused as to why the consultant thinks their proposal will undercut Camino Pablo as their meander goes to the east and not to the west, away from Camino Pablo. Lastly, the FEMA map is based on a 1990 study and said they look forward to working together in the future.
Nick Waranoff said he thinks there are important issues with the DPP the Council has not adequately considered, namely the issue of density bonus law, which he described. He and others ask that the DPP be postponed due to insufficient discussion and said the Housing Element on its own will send the message to HCD.
Mayor Miller said if language changes suggested today by Councilmembers are made to the Creek plan she asked and confirmed with Mr. Buckley the City is not jeopardizing the chance for anything to be done with the creek.
Councilmember Iverson explained why she is so supportive of adopting the DPP and Housing Element together on the 31st. The Housing Element is a negotiated document whereas the DPP is the City’s document and vision, and the culmination of a long process.
She was so appreciative of the number of meetings, input, and the work put together into a very clear vision of what the City wants and how the are going to get there. The specificities the Housing Element brings in distracts from the DPP as a plan for the downtown in the City’s own words, thinks it is ready, and everyone will appreciate finishing the job they started.
Vice Mayor Gee echoed Councilmember Iverson’s comments, knowing there is no requirement to approve both at the same time. There have been changes trying to balance the height and bonus density issues. She knows it will always be a challenge and there will be potentially more housing legislation this year so the City will constantly try to balance this. The reality is that the City needs to be inviting perusal of Orinda as being a location where they could have some positive new development in many ways, and she voiced support for moving forward.
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Councilmember Malkani agreed with comments made. The community wants housing, thinks it is an opportunity for residential and economic growth which residents want and need, thinks this is exciting, and that the DPP and Housing Element should be approved together.
Councilmember Riley agreed with comments and recommended moving forward.
Mayor Miller agreed with comments, thinks housing is needed as well as services and commercial development which affects sales tax dollars. She voiced moving forward and confirmed there was Council consensus on Councilmember Iverson’s language changes for the creeks.
Mr. Biggs stated there is no action for the Council tonight. Staff will bring back the matter for a public hearing. Staff will modify language which can be fine-tuned when items are presented on January 31, 2023. Staff will know shortly on potential changes from HCD for the Housing Element.
EXTEND MEETING
MOTION by Vice Mayor Gee moved and seconded by Councilmember Malkani to extend the meeting until 11:50 p.m. Said motion carried by unanimous (5-0) roll call vote.
H.3. Proposed 2023 Fire Code Update Review
Recommendation:
Receive Report on 2023 Fire Code Update as Proposed by the MoragaOrinda Fire District and provide comments, if any.
Mr. Biggs stated every three years, the State promulgates a new Fire Code. MOFD is moving towards adopting it at their meeting on January 18, 2023, and the City will have to ratify the code. The local amendments are proposed to be adopted and there are limited local amendments being proposed this year. There are some new provisions that would impact certain types of traffic calming in very high fire severity zone areas together with neighborhoods that have a single access point. Staff wanted to ensure the Council sees materials prior to that and staff will communicate to the MOFD Board that they are concerned about the impact of traffic calming provisions and hopes they will work with the City before adopting the final ordinance.
Mayor Miller opened the Public Forum, and there were no speakers.
Vice Mayor Gee echoed Mr. Biggs’ comments, said she did not see anything too problematic except giving the City the flexibility for traffic calming measures. She would hope there could be some case-by-case analysis that does not take away the City’s ability to have physical calming measures if needed, as she believes measures do not affect or restrict fire engines traveling over them.
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Councilmember Iverson referred to 25 Orinda Way which had a Q&A regarding where the 35 foot is measured from. One portion of that project was going to be more than 35 feet, and they had to go through significant costs and problems. She asked staff to find the outcome and ensure it is clear in the new code so everyone knows what is expected of them when they are planning.
Mayor Miller echoed Council comments and believes the City should have the ability for some traffic calming measures.
H.4. City Council Committee Appointment/Liaison List for 2023 Recommendation:
Review and Approve the recommended City Council Committee Appointment / Liaison List for 2023.
Mayor Miller opened the Public Forum, and there were no speakers.
MOTION by Councilmember Riley moved and seconded by Vice Mayor Gee to approve the recommended City Council Committee Appointment / Liaison List for 2023. Said motion carried by unanimous (5-0) roll call vote.
H.5. City Council Meeting Schedule for 2023
Recommendation:
Review, Amend, and Adopt City Council Meeting Schedule for 2023 Mayor Miler referred to proposed amendments on packet page 203 and a Councilmember who wishes to have an additional change to the May meeting to meet on May 2nd and May 9, 2023.
Mayor Miller opened the Public Forum, and there were no speakers.
MOTION by Councilmember Malkani moved and seconded by Councilmember Riley to adopt City Council Meeting Schedule for 2023, as amended. Said motion carried by unanimous (5-0) roll call vote.
I. COUNCILMEMBERS’ REPORTS – None.
J. CITY MANAGER’S REPORT – None.
K. MATTERS INITIATED – None.
K. ADJOURNMENT
The Regular Meeting was adjourned at approximately 11:36 p.m. to the next Regular Meeting on Tuesday, January 17, 2023 at 7:00 p.m.
______________________________________
Sheri Marie Smith, City Clerk
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January 17, 2023
CITY OF ORINDA
CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed at: http://orindaca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=2348 They are also kept in the City Clerk’s Office as part of the public record and available upon request. 7:00 P.M. – REGULAR MEETING– BY TELECONFERENCE
A. CALL TO ORDER / ROLL CALL:
Mayor Miller called the Regular Meeting to order at approximately 7:00 p.m.
COUNCILMEMBERS PRESENT: Brandyn Iverson, Latika Malkani, Janet Riley Vice Mayor Darlene Gee, Mayor Inga Miller
COUNCILMEMBERS ABSENT: None.
B. PLEDGE OF ALLEGIANCE – Led by Councilmember Riley.
C. ADOPTION OF AGENDA
City Manager Biggs referred to Item H.1 and said there is additional information included in the resolution which has been made available to the City Council and the public on the City’s website.
MOTION by Councilmember Malkani moved and seconded by Councilmember Gee to adopt the agenda. Said motion carried by unanimous (5-0) roll call vote.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Presentation of Commendation to Sally Hogarty Upon Her Retirement from Orinda News
Mayor Miller and Councilmembers recognized Sally Hogarty upon her retirement from Orinda News and presented a commendation to Ms. Hogarty.
Sally Hogarty said it has been a 29-year stretch getting to know people in Orinda and a pleasure to be able to report on the community. Orinda News is a non-profit organization and she thanked the Council for their support and assistance over the years.
Mayor Miller opened the Public Forum.
Sora O’Doherty said it has been a privilege to work with Sally Hogarty as she has covered similar articles for the Lamorinda Weekly.
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Carlos Baltodano, Orinda Association President, thanked the Council for honoring Ms.
Hogarty. The Orinda Association is grateful for her work over the years, said it was Sally’s vision that communication was provided to Orinda citizens at no cost, without political bias and objectivity, said they will miss her, and wished her well in her retirement.
Chris Laszcz-Davis asked and confirmed with Ms. Hogarty that she has been an actress.
Right after she announced her retirement she was hired to do a commercial back in New York which she just returned from. She is doing plays locally as well, and tomorrow she auditions for a film. So, she is hopeful to do as much acting as she possibly can and still be part of Orinda.
Bill Waterman, Orinda Association boardmember, echoed comments on behalf of fellow boardmembers for Sally’s years of dedicated work behind the scenes. He cited fond memories of Sally readying the newspaper which was a labor of love for her.
Mayor Miller closed the public comment period, and returned to Council discussion.
Councilmembers thanked Sally for being a gem, for her incredible hard work and tremendous efforts, for continuing to be involved, recognized the positive impacts made for the community, her professionalism and commitment, and wished her all the best.
Mayor Miller then presented Sally with a commendation to recognize her three decades at Orinda News and her work in the community.
E. PUBLIC FORUM
Henry Simons, BART’s Government and Community Relations representative for Contra Costa County, said BART has a major construction project coming up over President’s Day weekend that will impact Orinda residents where they will be replacing around 2,400 feet of rail between Orinda and Lafayette stations and working on maintenance projects in the Berkeley Hills Tunnel and at Orinda station. Train service will not operate between Lafayette and Rock Ridge stations throughout the weekend and a bus will be offered by AC Transit and County Connection. Work will occur 24 hours/day to get done quickly. A mailer was sent to all Orinda residents within one-quarter mile of the BART trackway informing them of the work and contact information.
F. CONSENT CALENDAR
Mayor Miller stated there was a request from the public to remove Item F.1.
MOTION by Councilmember Iverson and seconded by Vice Mayor Gee to make Item F.1 a regular Agenda item. Said motion carried by (5-0) roll call vote.
F.1. Approve a Grant Application for Moraga Way Pathway Phase 3 to the Metropolitan Transportation Commission for the Allocation of Fiscal Year 2023-2024 Transportation Development Act (TDA) Article 3 Pedestrian/Bicycle funding
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Recommendation:
Staff recommends that the City Council approve a Transportation Development Act grant application for the Moraga Way Pathway Phase 3 Project, from Altamount Drive to Ivy Drive, find the project categorically exempt with respect to CEQA and direct a Notice of Exemption be filed with the County Clerk, by adopting Resolution No. 06-23, in a format specified by the grant requirements.
Mr. Biggs suggested taking any Council questions on the item.
Councilmember Iverson questioned safety from the narrowing of the auto lane to accommodate this request.
Public Works Director Scott Christie replied that the work is consistent with what the City has already substantially completed; that being the section from Altamount down to El Camino Moraga. They used some of the shoulder so they could create the pedestrian walkway in addition to retaining the 5 foot bike lane, then narrowed the travel lane down to an average of 11 ½ feet which staff feels is adequate for this design. There are many roads that have a similar narrowing feature, which slows traffic down.
Councilmember Riley confirmed the Council is being asked to consider the grant project and not the underlying project. Mr. Christie confirmed and described the actions to be taken and the timeline.
Councilmember Malkani asked and confirmed that even though the lane width is being reduced, the bike lane remains the same. She then asked if the City has received any feedback from bicyclists on any negative impacts on Phase 1 or 2. Mr. Christie said staff has received only positive comments from pedestrians.
Mayor Miller opened the Public Forum.
Eric Carlson, 4 Dale Court, said he is a property owner along this stretch of the property, is a proponent of the project, and asked if he would be giving up any access rights to his lot along Moraga Way, given he has an access gate on Moraga Way and did not know where that stands legally. If there are previously existing access points on the road, he asked if those are intended to be maintained such as a gap in the curb.
City Attorney Osa Wolff stated she does not know the details of whether Mr. Carlson’s property has the right to access Moraga Way or just the street he currently fronts on. In general, when a property owner wants to add a curb cut for a driveway the Public Works Department does this through an encroachment permit process. Cost would be borne by the applicant, assuming he has the legal rights to take access.
Mr. Christie concurred with this response and added that staff also contacts the adjacent property owners during the design phase so people have an opportunity to comment. Mr.
Biggs suggested Mr. Carlson reach out to Mr. Christie in the Public Works Department.
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Mayor Miller closed the public comment period.
Councilmember Malkani commented that she has heard from many residents who have appreciated having Phase 1 and 2 in place, which is important for children’s safety. Mayor Miller echoed comments, said people are looking for safe walking routes, and the more projects like this will result in more people walking and riding bikes.
MOTION by Councilmember Malkani and seconded by Councilmember Riley to approve Consent Calendar Item F.1; a Transportation Development Act grant application for the Moraga Way Pathway Phase 3 Project, from Altamount Drive to Ivy Drive, find the project categorically exempt with respect to CEQA and direct a Notice of Exemption be filed with the County Clerk, by adopting Resolution No. 06-23, in a format specified by the grant requirements. Said motion carried by (5-0) roll call vote.
G. PUBLIC HEARING
G.1. Adopt Ordinance 23-01 to adopt by reference the 2022 editions of the California Building Code, California Residential Code, California Green Building Standards Code, California Energy Code, California Electrical Code, California Plumbing Code, California Mechanical Code, and Existing Building Code (“Building Codes”), with modifications to those codes to reflect local conditions, and review Resolution 01-23, adopting Contra Costa County’s Findings in Support of Changes, Additions and Deletions to Statewide Building Standards Code and readopting the City’s findings regarding the need for modifications to the California Green Building Standards Code, which find that the modifications to the Building Codes are reasonably necessary because of local climatic, geological, and topographical conditions.
Recommendation:
Hold Public Hearing and Adopt Ordinance No. 23-01 and Resolution No. 01-23
City Manager Biggs gave the staff report and overview of the second reading and adoption of the ordinance which updates and adopts the State’s Building Code and related codes without local amendments for Orinda. Staff recommends the Council open the public hearing, seek public comment, answer questions, and request the Council adopt Ordinance 23-01 and Resolution No. 01-23.
Mayor Miller opened the public hearing, and there were no speakers.
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MOTION by Councilmember Riley and seconded by Councilmember Iverson to adopt Ordinance No. 23-01; to adopt by reference the 2022 editions of the California Building Code, California Residential Code, California Green Building Standards Code, California Energy Code, California Electrical Code, California Plumbing Code, California Mechanical Code, and Existing Building Code (“Building Codes”), with modifications to those codes to reflect local conditions, waiving the second reading by the City Clerk. Said motion carried by (5-0) roll call vote.
MOTION by Councilmember Malkani and seconded by Councilmember Iverson to adopt Resolution 01-23, adopting Contra Costa County’s Findings in Support of Changes, Additions and Deletions to Statewide Building Standards Code, and readopting the City’s findings regarding the need for modifications to the California Green Building Standards Code, which find that the modifications to the Building Codes are reasonably necessary because of local climatic, geological, and topographical conditions. Said motion carried by (5-0) roll call vote.
H. POLICY MATTERS
H.1. Winter Storm Update and Adopt Resolution Relating to Existence of a Local Emergency
Recommendation:
Receive a Report on the recent Winter Storms response and impacts and Adopt Resolution 05-23 ratifying the City Manager’s Proclamation of the existence of a local emergency.
City Manager Biggs gave the staff report, described winter storms which began December 27th and continuing unabated until this week. He acknowledged the work of the City’s Public Works crews and contractors, Engineering and Parks and Recreation Department staff, described various work to address landslides, blackouts, detours, road closures, downed trees, and said an event that occurred yesterday where a sinkhole developed and was temporarily repaired adjacent to Moraga Way near Brookside Street.
Mr. Christie spoke about the slide from a private property which blocked Minor Road for a day which crews have worked to clear, as well as storm drains plugged by debris and slide material. He then gave a slide show displaying various properties, creek flows, the 10 foot round by 10 foot deep sinkhole and said their contractor lowered down the pieces of rock to place carefully next to a pipe to try to fill the void. He then displayed the actual location of the pipe which is within a CIP project which is in the permitting phase for repair.
Mr. Biggs then spoke about the City begin eligible for possible federal and state assistance, and noted over the weekend, the President signed a major disaster declaration for all of California that covers the City from the funding perspective. Given the sinkhole yesterday, he issued a new local proclamation today and that new resolution is on the agenda tonight for Council ratification.
Councilmember Malkani asked and confirmed the repairs should be completed by the end of this week, and that the original resolution expired and the new resolution would trigger access to funding.
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Councilmember Iverson said she understands why the end date is open ended, and she confirmed with the City Manager that unless weather conditions continue to be bad, staff will return to the Council with a determination.
Mayor Miller opened the Public Forum, and there were no speakers.
MOTION by Vice Mayor Gee moved and seconded by Councilmember Malkani to adopt Resolution 05-23 ratifying the City Manager’s Proclamation of the existence of a local emergency. Said motion carried by unanimous (5-0) roll call vote.
H.2. Update on Return to In-Person City Meetings beginning in March, 2023 and Authorization For Continued Use of Remote Teleconference until February 28, 2023
Recommendation:
Provide direction to staff on the return to in-person meetings in March, 2023 and any future exploration of providing an option of teleconferencing.
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of January 18, 2023 to February 16, 2023 Pursuant to the Provisions of Assembly Bill 361.
City Manager stated the City Clerk facilitates the Council meetings, produces the agenda, and supervises set up and take down for Council meetings. He has never been at an inperson meeting because he began during the pandemic. The City is at that point now that with the Governor’s State of Emergency to be going away as of February 28th and the county having continued to loosen their recommendations on public meetings. Staff and the City Attorney believe it is incumbent upon the City to return to in-person meetings as of March.
For every meeting, the Council has updated a resolution that allows the Council to operate under the Executive Order of the Governor. At the February 7th meeting, staff will return with one last resolution that will have remote meetings going away unless the Council wants to do something different which also applies to other boards and commissions. The Council will be meeting in-person on Saturday, February 25th so he thinks Zoom meetings could terminate on February 24th.
He asked if there is interest in hybrid meetings, stating the City Clerk has been exploring options and testing some technology related to this, so once they return to an in-person format, if the Council wishes to go to a hybrid format, this can be done after discussing it further.
City Clerk Smith said she has not yet tested the technology but has been exploring different technologies and has spoken with other City Clerks in the County as to what they are doing. At this meeting, she is not prepared with cost estimates because she wants to hear about what direction the Council’s would like to go.
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City Attorney Wolff said there are various and somewhat complicated rules about Councilmembers appearing telephonically. The system the City is operating under now is pursuant to AB 361 which is where everyone appears remotely from their own location.
The location need not be posted and no members of the public come to your home. This will ultimately terminate with the COVID emergency terminating. Staff believes this will be at the end of February. Continuing with the system they have been using, after the end of February is not a simple matter. Staff’s recommendation would be to not continue after the Governor terminates his emergency order. However, if the Council were to direct staff to investigate that, they could.
The second system is the one some are aware of which is where councilmembers occasionally phoned in from remote locations, but they had to post that location and the public had the right to appear there. That option remains even after end of February.
The third option is the one the legislature has created more recently where Councilmembers can potentially appear remotely but the public also must be given the same opportunity and the public would not be allowed at the Councilmember’s remote location but there will be a long list of additional procedural requirements, including a limit on how many times you can do it. It must be for just cause or for an emergency. So, it will be more complicated to appear via Zoom once March comes around.
Vice Mayor Gee said if they go back to in-person meetings, she asked and confirmed with the City Clerk that they could also go back to live streaming the meetings even though the public cannot interact but could view them. She voiced interest in seeing what other possibilities exist so the Council can make sure they have explored everything for the public.
Councilmember Iverson said when she read the rules for panelists to be remote they had to have a personal emergency and it could not just be that they were traveling. It was more interesting for her to relate to members of the public and cited how much more participation has been facilitated because of these meetings. So, rather than just livestream them she suggested the public have their own hybrid participation and asked if that had a different set of rules so those who could not come in person could still participate.
Ms. Smith said this could happen via Zoom so it is a matter of logistics and costs on the different facilities. It may be more expensive and complicated to do it in the auditorium because they do not have complete control over that room and there are many groups using it. The Sarge Room might be a lot easier, but both have pros and cons. Anything is possible but staff needs the right resources and people to assist them accomplish it.
Councilmember Malkani asked how the public commented during meetings when the Council held in-person meetings previously. Ms. Smith replied that past practice was that people commented either by attending in person or writing in advance of the meeting.
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Councilmember Malkani said she would love to return to in-person meetings because it would bring together the community and engage more residents to attend, knowing that there would be an option to return to Zoom if the Governor issued an order. At the same time, there are people who still do not feel comfortable in public settings for public health reasons and she would like to honor those individuals so they can participate.
Mayor Miller opened the Public Forum.
Sora O’Doherty said in the past, she enjoyed being in person at the Library Auditorium and there was very good spirit to that. However, over the past years using Zoom it is tremendously convenient for a journalist. Also, if she hovers her cursor over the picture she gets the correct spelling of whosever name is appearing. In addition, the Council has the transcript option on which is great when trying to get a quote correctly.
City Clerk Smith announced staff received correspondence from Steve Cohn on this item prior to the meeting which was distributed to the City Council and made available to the public on the City’s website.
Councilmember Riley commented that she is looking forward to in-person meetings and knows there are many things to consider, including costs and special needs of people.
She thinks they could go a bit slow on this, see how other cities solve the problem, learn from their hybrid systems, and then be more successful in adopting a practice or installing what is needed.
Vice Mayor Gee said she realizes the possibility is slim that they would end up with this hybrid capability. But assuming they did or could, she asked if the Councilmembers would not be allowed to participate remotely unless it was an emergency. She said many of them travel and thinks she missed only one meeting last year because of the convenience of Zoom.
City Attorney Wolff said the pre-COVID teleconference capability will remain in place. If the Councilmember was willing to post their remote location, i.e., at a conference at a hotel. The location would be published on the agenda and members of the public would be allowed to come to her hotel room to participate from her same location. That will remain an option, regardless of whether the City has hybrid technology in place. It is not used often because it is somewhat awkward to open your hotel room to members of the public and post it that way.
If the City adopts a technologically-compliant hybrid option where the public can participate via Zoom and there is specific requirements in the law, Councilmembers could also take advantage of that in a limited number of circumstances. It could include a Councilmember being sick, someone in the family being sick that you needed to take care of, include traveling for the City, but traveling for work is not on the list.
Mayor Miller then spoke of locations for meetings which include the Council Chambers, the Sarge Room, the Auditorium, and the community room at Wilder, all of which have varying degrees of issues.
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Attachment: City Council Minutes of January 17, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 9 of 11 01.17.23
Vice Mayor Gee said she watches many public meetings and looked at what the City Manager provided in terms of the City of Lafayette. When they did live stream meetings in the past it seemed like they were on the website. Many communities have created a YouTube channel which seems very easy. She asked if there are pros and cons to that worth exploring as an update to what they had in the past, which was clunky.
Ms. Smith said streaming to YouTube is not a problem and it is easy to do while using the Zoom platform.
Councilmember Iverson described the use of the main auditorium at the library, described how people would make presentations and how speakers would talk, and she did not think it would be difficult to have this system again, as they had been using it for years.
Ms. Smith noted there were many problems going on in setup, in the background, and breakdown. She would like to use Zoom in public meetings because she likes its features.
It was difficult at Council meetings when things would go wrong with the encoder which is what streams out to the public. As a Clerk, she was doing several things and then must break to figure out what is going on with the encoder. So, adding another element of Zoom to that streaming system would become overwhelming for one person to do and stay on top of everything else. Therefore, more help would be required.
Mr. Biggs said he is hearing that staff has been focused on options that would allow the Councilmembers to participate remotely, thinking there might be those opportunities where you might meet those other criteria. He is also hearing that allowing public participation through a level of remote access is more refined or different option to explore that would not perhaps meet the new teleconferencing requirements under the Brown Act, but might allow for a level of public participation.
So, allowing a level of someone to remote into the meeting and appear to make a public comment as opposed to the entirety of the meeting being in a hybrid format. He asked if this is an option the Council would want staff to explore, which would also permit that teleconferencing by members of the Council.
Councilmember Iverson said the rules are strict such that when she is traveling on a business trip or vacation she could not attend or participate. She would be fine if there could just be enhanced public participation with the public not having to be in person. She would also not mind a stricter standard for Councilmembers to not have to solve the harder problem of them having hybrid meetings and deferred to other Councilmembers.
Ms. Smith said if staff allows the public the ability to participate then it solves the problem that the Council can do the same, but just use different rules as the City Attorney talked about.
Mr. Biggs said there could also have a speaker phone in the Council Chambers and someone could call in and make their comments so it does not have to involve another technology.
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Attachment: City Council Minutes of January 17, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 10 of 11 01.17.23
Councilmember Malkani asked if she is understanding from the City Attorney that when the emergency proclamation ends, the Council will need to get away from meeting via Zoom. They would have to list their location of where they are appearing from. Ms. Wolff said that is the old rule, and she would not say it is cumbersome. Staff was able to accommodate Councilmembers a few times a year appearing by teleconference under the old rules.
Councilmember Malkani asked and confirmed with the City Attorney that if they were trying to do what they are doing tonight in March with everyone via Zoom, that would not be permissible.
Mr. Biggs said most of the body must be present for a quorum, so no more than two Councilmembers could be traveling or sick, and staff would have to reschedule the meeting.
Councilmember Malkani said she would favor resuming in-person meetings, but independent of that, this depends on the State. Beyond that, she favors trying to figure out a way for the public to participate for access reasons and for those who have compromised systems and need to stay home. She would support comments about use of dedicated spaces and suggested the Council be flexible, given impacts on staff and what is feasible. If that means the public must interact via speaker phone, staff and the Council can determine if that is feasible.
Mr. Biggs said staff is planning to come back in person on February 25th and when the resolution returns on February 7th, it will have an end date for use of AB 361. He is hearing the Council wants staff to explore and flush out potential teleconferencing opportunities and staff will bring this back sometime in March. Based on comments, staff will return with options which would include allowing the Council to participate on a teleconferencing basis and a lesser option that allows for public participation.
Councilmember Riley said she would not want to see them limited to the teleconferencing option. She would also like to explore dedicating the Sarge Room to meetings and having the flexibility of going to a larger auditorium when they anticipate the Boy Scout Troops or a large group wants to participate on a topic.
Ms. Smith said they could meet in two spaces to feel what those options really feel like, and then the Council could decide the pros and cons in both. Mayor Miller voiced support of this idea.
Mayor Miller confirmed staff has direction based on discussion.
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Attachment: City Council Minutes of January 17, 2023 (3006 : City Council Minutes) Orinda City Council Minutes Page 11 of 11 01.17.23
I. COUNCILMEMBERS’ REPORTS – Mayor Miller reported no one showed up for her first office hours which are on the 2nd Tuesdays of the month. She perused the other agendas and noticed that the MOFD has the Fire Fuels Mitigation Ordinance on its agenda for the first reading tomorrow night and asked staff if that came to the Council. Lastly, she reported good news from Orinda Union School District where they received the Distinguished Schools award for all schools in their district.
J. CITY MANAGER’S REPORT – Mr. Biggs encouraged residents to stay safe during storms. The City has sandbags available and if they have downed trees or vegetation they can utilize the Chipper service. Staff is reminding those people in a Firewise neighborhood or along an evacuation route that if they did have a larger downed tree, they could use the City’s incentive program of up to $599 and cover half the cost to remove it. On February 7th, staff may return to the Council with modifying the criteria for the incentive program for a limited timeframe, such as the next 90 days to be on a Citywide basis to assist with removal of downed trees.
Mr. Biggs said the Mayor provided comments on the Fire Code update and these were shared with the Fire Chief and Fire Board, and this is one of the agenda items for this week. Staff was aware MOFD was proposing to strip out what were the existing defensible space and fuel break requirements out of the Fire Code and put them in stand-alone ordinances. They were not provided with those to review in advance and after review today, he forwarded questions to the Fire Chief. They were look at whether these were different from what was previously included in the Fire Code.
K. MATTERS INITIATED – None.
K. ADJOURNMENT
The Regular Meeting was adjourned at approximately 9:05 p.m. to the next Regular Meeting on Tuesday, January 31, 2023 at 7:00 p.m.
______________________________________
Sheri Marie Smith, City Clerk
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Attachment: City Council Minutes of January 17, 2023 (3006 : City Council Minutes) City Council
Staff Report
Agenda Item: F.2
Date: February 7, 2023
Department: City Clerk
AGENDA TITLE: Authorization For Continued Use of Remote Teleconference for City Meetings
RECOMMENDATION:
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of February 8, 2023 to February 24, 2023 Pursuant to the Provisions of Assembly Bill 361.
BACKGROUND:
On October 5th, 2021 the Orinda City Council adopted Resolution No. 42-21 approving the continued use of teleconferencing for the meetings of all City legislative bodies pursuant to the provisions of Assembly Bill 361. The resolution was ratified on October 19, 2021, and at subsequent meetings since that time.
DISCUSSION:
At the time of adoption, the City Council anticipated that the resolution would appear on its consent calendar for review and ratification or update at regular Council meetings.
The State law authorizes the continuation for as long as the Governor’s proclaimed State of Emergency relating to the COVID-19 pandemic remains in effect.
State law also provides that the City Council determine that they desire to continue remote public meetings and make the necessary findings at least every thirty days.
Those findings were contained in Orinda City Council Resolution No. 42-21, which staff recommends the Council vote to ratify based on current conditions. On January 5, 2023, Contra Costa Health Services issued the attached revised Recommendations for Safely Holding Public Meetings in which online meetings are still encouraged.
On October 17, 2022, Governor Newsom announced that the COVID-19 State of Emergency will end on February 28, 2023. Due to the expected end of the emergency declared by the Governor, the City will begin meeting in person in March, therefore the recommendation is to ratify the attached resolution only until February 24, 2023. This will also allow for an in person Strategic Planning Workshop that is scheduled for February 25, 2023.
Approval of this item will allow all public bodies established by the City of Orinda and covered by Resolution No. 42-21 to continue to conduct teleconferencing meetings until February 24, 2023 and then they will also return to in-person meetings.
FISCAL IMPACT:
None.
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ATTACHMENTS:
A. Weblink to: Staff Report, Adopted Resolution at October 5, 2021 Council Meeting B. CCC Recommendations for Holding Safe Public Meetings - January 5, 2023 Respectfully Submitted by:
Sheri Smith
City Clerk
Prepared By: Sheri Smith, City Clerk
Approved by:
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Recommendations for safely holding public meetings
Each local government agency is authorized to determine whether to hold public meetings in person, on-line (teleconferencing only), or via a combination of methods. The following are recommendations from the Contra Costa County Health Officer to minimize the risk of COVID 19 transmission during a public meeting.
1. Online meetings (i.e. teleconferencing meetings) are encouraged, where practical, as these meetings present the lowest risk of transmission of SARS CoV-2, the virus that causes COVID 19. This is particularly important when community prevalence rates are high. Our current trends as of January 5, 2023 in Covid-19 case rate, test positivity, Covid-19 hospitalizations, and Covid-19 wastewater surveillance are stable but remain elevated. In addition to this, the predominant variant of Covid-19 being identified continues to be the Omicron variant and it’s subvariants the impact of which on the spread of Covid-19 has shown to dramatically increase COVID-19 transmission.
2. If a local agency determines to hold in-person meetings, offering the public the opportunity to attend via a call-in option or an internet-based service option is recommended, when possible, to give those at higher risk of and/or higher concern about COVID-19 an alternative to participating in person.
3. A written safety protocol should be developed and followed. It is recommended that the protocol require social distancing, where feasible – i.e. six feet of separation between attendees; and consider requiring or strongly encouraging face masking of all attendees and encouraging attendees to be up-to-date on their COVID-19 vaccine.
4. Seating arrangements should allow for staff and members of the public to easily maintain at least six-foot distance from one another at all practicable times.
5. Consider holding public meetings outdoors. Increasing scientific consensus is that outdoor airflow reduces the risk of COVID-19 transmission compared to indoor spaces. Hosting events outdoors also may make it easier to space staff and members of the public at least 6 feet apart. If unable to host outdoors, consider ways to increase ventilation and flow of the indoor space to reduce the risk of COVID-19 while indoors.
6. Current evidence is unclear as to the added benefit of temperature checks in addition to symptom checks. We encourage focus on symptom checks as they may screen out individuals with other Covid-19 symptoms besides fever and help reinforce the message to not go out in public if you are not feeling well.
7. Consider a voluntary attendance sheet with names and contact information to assist in contact tracing of any cases linked to a public meeting.
Revised 1-5-2023
Sefanit Mekuria, MD, MPH
Deputy Health Officer, Contra Costa County
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Attachment: CCC Recommendations for Holding Safe Public Meetings - January 5, 2023 (3022 : Ratify Continued Teleconference Resolution) City Council
Staff Report
Agenda Item: F.3
Date: February 7, 2023
Department: Parks and Recreation
AGENDA TITLE: Authorize City Manager to Enter into the First Amendment of the Agreement with Bigbelly Smart Waste and Recycling System RECOMMENDATION:
Staff recommends the City Council direct it’s JPA Board Members to request sufficient funding from reserves of recycling revenue ($460,084.37) in which to amend the existing Big Belly contract by extending for an additional five years, and authorize the City Manager to sign said amendment
BACKGROUND:
Up until June 2018, the City of Orinda had a total of 126 public space trash and recycling receptacles deployed city-wide, between its parks and open space, the community center plaza and library, City Hall, and the downtown corridor. Four separate parties (Parks and Recreation, landscape maintenance contractor MCE, Republic Services, and Public Works) were responsible for conducting frequent (proactive/preventative) bin collections between 3-5 days per week in an effort to keep the public spaces clean, safe, and inviting for residents and visitors. Those receptacles varied dramatically in terms of bin type and construction throughout the city, preventing any sense of familiarity or continuity to trash collection and recycling. Furthermore, out of the 126 receptacles, only 34% of the locations offered recycling. For instance, there was no recycling service available at the Wilder sports complex, where thousands of athletes and spectators visit each year.
In addition, the previous receptacles did not prevent individuals and pests from accessing waste/recyclables after materials were deposited in the units. Because the bins were not contained, rummaging and harvesting of receptacle contents occurred, and this, along with windy conditions, negatively impacted the cleanliness of the surrounding area and potential revenue from recycled materials. Lastly, City staff and trash collection personnel were forced to make contact with virtually every receptacle on a daily basis, first checking the capacity and then servicing as necessary, not to mention the time and resources required to collect wind-blown and rummaged trash present in the vicinity.
In late 2017, the Parks and Recreation Department, in coordination with Public Works and the City Manager’s Office, spent several months conducting a thorough evaluation to understand efficiency, effectiveness, and overall success of Orinda’s public space (outdoor) waste and recycling management operations. Bigbelly’s Regional Director of Northern California municipal waste and sustainability expert partnered with City Staff on the project to ensure the most accurate assessment possible, while upholding the highest level of integrity throughout data accrual, projected resource efficiency gains, F.3
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cost avoidance and savings calculations, and the improvement/solution recommendation.
After the 2017 staff review, the City Council authorized the City Manager to enter into a 5-year agreement with Bigbelly on January 16, 2018 at a cost of $599,877.69. By replacing Orinda’s traditional public space receptacles with Bigbelly’s smart waste and recycling system in mid-2018, the City has been able to offer 100% public space recycling across the city, while simultaneously reducing the required collection frequency (both time and resources associated) by 80%, compared to our previous operations. The new system is comprised of 49 double stations located throughout downtown as well as at all City park facilities. Since Bigbelly’s smart solar-powered stations ensure complete waste containment, the ancillary maintenance tasks, such as litter collection, has been virtually eliminated in the vicinity of the receptacles.
Bigbelly’s “CLEAN” software has allowed the City staff and collection personnel to have complete transparency (historical, analytical, and real-time data) into our public space waste management operations, so we can monitor and track both short and long-term program success. Bigbelly receptacles are consistent with Orinda’s Strategic Priority of promoting recycling as well as with the mission of Recycle Smart; primarily by increasing recycling and reducing emissions related to frequency of service on trash/recycling receptacles. Reducing frequency of service has also diminished the likelihood of accidents and injuries, further decreasing our costs.
At the introduction of the new system, Republic and Mt. Diablo Recycling provided a seamless transition by immediately servicing Bigbelly receptacles in their current territory as well as expanded service to the Wilder Sports Complex.
DISCUSSION:
In the past nearly five years, negative citizen feedback regarding trash collection and service went from among the most common inquires Park and Recreation staff encounter to one of the least. In addition, litter collection and servicing trash receptacles were some of the most time-consuming endeavors City staff undertake and they encompassed a significant financial portion of the City’s contract with our landscape maintenance vendor at the time.
Since transitioning to the Bigbelly system, the CIty went from a collection practice that was not conducive to trash collection and recycling to one that ensures long-term success and showcases the City of Orinda’s commitment to environmental sustainability. By providing consistent recycling availability at every public space receptacle location throughout the city, Orinda’s city-wide recycling/waste-diversion program became successful. This was accomplished by ensuring infrastructural continuity, allowing residents and visitors to become familiar with the same type of bin and disposal offerings, whether they are at Wilder Park, downtown, or at the library, and; providing consistent and highly visible community education at every public space waste and recycling location for the first few years.
Through 2021, the Smart Waste Operations resulted in:
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- Over 200,000 gallons of waste and recycling collected - 81% collection efficiency
- 44% recycling diversion rate
- 86% reduction in monthly collections
- Significant reduction in plastic bag use/cost
The technology and continuity exhibited by Bigbelly has maximized the City’s operational and resource efficiency and successfully supported a robust city-wide recycling and community education program. The City will continue to benefit from the ability to reduce labor and contract costs associated with collection, aesthetic benefits of more contemporary receptacles, and reduced emissions related to servicing and emptying trash receptacles (contributing to environmental sustainability goals). These benefits, together, continue to demonstrate the City’s commitment to environmental sustainability and efficient management of public services.
Staff recommends that the City extend the existing agreement for five (5) year years on a sole source selection basis as authorized under Section 6.2 of the adopted Purchasing Policy. The factors contributing to this recommendation are that Bigbelly is a unique product with system and software specifications that are not currently available with other trash receptacle providers. Among the unique characteristics of the Bigbelly equipment and services are:
• Solar panels and battery included in the receptacle unit, with the ability to operate three weeks of compaction without sunlight because of Bigbelly’s patented energy management technology
• Ability to compact waste and increase the capacity to five times that of a similarly sized unit
• Installation, trouble shooting and warranty on all units for the life of the lease • Annual inspection and comprehensive station cleaning included in the lease • Web-based software which provides real-time status on all units in the network, historical reports, frequency of use charting, diagnostic alerts and email notification as well as mobile application and software upgrade compatibility • Units include separate waste and recycle options with compacting and noncompacting options, fullness/collection sensing capabilities, and bi-directional communication/remote programming capability
• Safety elements to protect user from compacting and moving parts of units • Over fifteen (15) years of experience providing solar powered trash compactor receptacles to public agencies, including many in the Bay Area.
NEXT STEPS:
City Council direct City Manager to sign and fully execute the 5-year service agreement amendment with Bigbelly and direct Orinda JPA board members to request funding for the Big Belly system implementation starting in March 2023. A copy of the Request for Withdrawal of Member Agency Reserve Funds form is attached (Attachment C).
FISCAL IMPACT:
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The proposed 5-year program cost is $460,084.37, which is structured as an amended services agreement with Big Belly continuing to provide the containers and maintaining the operational features and providing operating supplies. Notable services scheduled to occur early in the new lease period include the replacement of the solar bubbles on all of the high-capacity stations and the addition of foot pedals on a select number of the heaviest used stations. The Budget will need to be revised to recognize a One-Time Grant Revenue from the Recycle Smart JPA of $460,084.37. This will be accounted for in Fund #261 Recycling Grants. The 2022/2023 Budget will need to be adjusted to account for $30,672.29 in expenses from this fund based on a March 2023 start date (monthly fees March – June = $30,672.29). The source of these funds is the special Recycling Grant (Diversion Incentive Funds) and not the General Fund. The Fiscal Year 2023-24 expenditures will be included in the new two-year Budget later this year. Some increased recycling revenue is possible; however, an estimate has not been included.
ATTACHMENTS:
A. First Amendment to Connect Services Agreement
B. Executive Summary Proposal regarding Big Belly Renewal C. Draft Request for Withdrawal of Member Agency Reserve Funds Form Orinda 2023 D. Connect Services Agreement with Big Belly Solar, Inc.
Respectfully Submitted by:
Todd Trimble
Director of Parks and Recreation
Prepared By: Todd Trimble, Director of Parks and Recreation Approved by:
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F.3.a
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Attachment: First Amendment to Connect Services Agreement (3010 : Agreement with Bigbelly Smart Waste and Recycling System) F.3.a
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Attachment: First Amendment to Connect Services Agreement (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Quote Number: Q32942-2
October 27, 2022
Bigbelly 2022
Executive Summary Proposal
CITY OF ORINDA
Program Overview
Connect is Bigbelly’s turnkey smart city solution which delivers a connected smart waste and recycling platform and provides Customers with a partner to help deploy, manage, and optimize their customized solution over a 60-month term. This subscription-based service was designed to deliver a flexible, scalable, smart platform that transforms waste operations today, and enables Customers to benefit from the technology innovations of the future.
Connect 60 Month Renewal Term
System Software Automated System Monitoring
CLEAN Management Console Licenses for Full Term
CLEAN Mobile Software Licenses for Full Term Automated System Diagnostics and Alerts Equipment/Hardware Cleaning and Inspection
Custom Configuration as Detailed Below Annual Comprehensive Station Cleaning Annual Station Inspection
Customer Support Warranty
On-Site Installation for Stations Hardware Parts Warranty for Full Term Equipment/Hardware Configuration
22 10
3 6
8 HC5/HC5 Double Station with Foot Pedals and Message Panels HC5/HC5 Double Station with Foot Pedals
HC5/SC5.5 Double Station with Hoppers, Foot Pedals, and Message Panels SC5.5/SC5.5 Double Station with Hoppers, Foot Pedals, and Message Panels SC5.5/SC5.5 Double Station with Hoppers and Foot Pedals Connect Renewal Start date: 6/29/2023
Connect Renewal End date: 6/28/2028
Serial Numbers Covered via Renewal:
9500832,9500833,9500834,9500835,9500836,9500837,8500361,8500362,8500363,8500364,8500365,8500366,8500367,8500368,1515925, 1515926,1515927,1516191,1515928,1515929,1515930,1515931,1515932,1515933,1515934,1515935,1515936,1515937,1515938,1515939, 1515940,1515941,1515942,1515943,1515944,1515945,8500355,8500356,8500357,8500369,8500359,8500360,1516160,1516166,1516167, 1515913,1515914,1515915,1515916,1515917,1515918,1515919,1515920,1515921,1515911,1515922,1515923,1515924,1515962,1515963, 1515964,1515965,1515966,1515967,1515968,9500841,9500845,9500844,1515952,1515953,1515954,1515956,1515957,1515958,1515955, 1515959,1515960,1515961,1515969,1515970,1515971,1515972,1515973,1515974,1515975,1516161,1516162,1516163,1516164,1516165, 9500846,9500847,9500848,9500849,9500850,9500838,9500839,9500840 Upgrades and Repairs Covered via Renewal:
Solar Bubble Refresh of (67) Stations
Station Repair from Fire (1515965)
Front Door Upgrades (1515973, 1516191, 1515965, 1515938, 1516165, 1515943) Total Monthly System Cost $7,083.67
1Pricing is valid for 60 days from October 27, 2022.
2Sales Tax is NOT included in above pricing.
3Pricing is subject to Connect Program Terms and Conditions.
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Attachment: Executive Summary Proposal regarding Big Belly Renewal (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Date of Request:
Member Agency:
Item # Item Description Amount
1 Year 1 Bigbelly subscription 85,004.04
2 Year 2 Bigbelly subscription 85,004.04
3 Year 3 Bigbelly subscription 85,004.04
4 Year 4 Bigbelly subscription 85,004.04
5 Year 5 Bigbelly subscription 85,004.04
6 7
8 9 Sales tax 35,064.17
10 11
12 13
14 $ 460,084.37
Board Approval Date:
Executive Director
Signature:
List Item Description and Amount
REQUEST FOR WITHDRAWAL OF MEMBER AGENCY
RESERVE FUNDS
Total Withdrawal Amount
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Attachment: Draft Request for Withdrawal of Member Agency Reserve Funds Form Orinda 2023 (3010 : Agreement with Bigbelly Smart Waste CONNECl ._,BRVICES AGREEMENT
~~tNo. 101J6
Full Legal Name: City of Orinda Legal Contact;
2.2- 01' rv\J~
Or;""e!4<... c.A- ~ '-(6:6 '3
BiDing Contact:
Billing Address: BillingPbooe:
Billing Email:
o &empt (Attach Certificate) TIN or FEIN: Sales TIIJtStatus:
Non-Exempt
Self-Insw-ed
lnsunmce:
Shipping Coll1act:
Shipping Pirone:
ShippiDg Email:
-
Connect Service Schedule
•
System Sotlware
~
Automated System Monitoring
.
• CLEANManagement Console licenses for Full Term
• Automated System Diagnostics aod Alcrtll • CLEAN Mobile Software Liccmea for Full Term •
EqujpmeDtlHardw~ e C1eming and lDspeclion
• Custom Coofiguration 85 Delailcd Below • Annual. Comprdleusive Station Cleaning • Annual21-Point Station Inspection
e Statiou lns1BUation • Wmanty
• Oo-Site Installation for Stations • Hardware Parts Warranty for Fun Term (includes battery)
•
Setup and TminiD8 e Customer Support
• CLEAN Management Console Software Account Setup • Customer Support Hotline and Trained Field Service • System Training & Onboarding Profeasiouals
•
EquipmentlHardware ConfiguJation
• 22 HCSfHC5 Double Slatioos with Message Pauela
• 10 HCSfHC5 Double Stations
• 3 HC5fSCS.S Double Stations with Message Panels
• 6 SCS.SfSCS.S Double Stll1ioos with Menage Panels
• 8 SCS.S/SC5.5 Double Statioos
Service Fee: Total Annual System Cost $100,000.32
10 Boxes ofHC Bags (Box of 50) $335.00
S Boxes ofSC Bags (Box of 1(0) $245.00
Shipping: One Time Fee $14,926.00 I
This Service Agreement (the "Agreement"), made and entered into as of ~ till (i (the "Effective Date"), by and between the Customer identified above ("Customer") and Big Belly Solar.Inc. (UBigbelly", • endorj a Delawarecorporation located at 150A Street, Connect by Bigbclly Service Agreement CSA20160216 Page 1 II F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Suite 103, Needham, MA 02494, and incorporates herein by reference the attached Terms and Conditions. Vendor and Customer shall each be referred to herein as a "Party." The initial term of this agreement shall be 60 Months (the "Initial Term"), The payment terms of this Agreement are IlIlI1U.aIin advan Payment Terms"). This Agreement may be executed in counterparts, each ofwbich shall be an original, but which t shall titute one instrument. Intending to be legally d, each of the parties has caused this Agreement to be executed by i representative as of the date set forth above.
Page21JI Connect by Bigbelly Service Agreement CSA20160216 F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) ATIACHMEN! A
CQN1'n~CT SERVICE TERMS AND CONDITIONS
For purposes of this Attachment A, the •Agreement' shall mean the Connect Service Agreement signed by the parties. The meaning of capitalized and undefined tenns appearing in these Terms and Conditions shall be as set forth in the Agreement unless otherwise indicated herein.
I .0 Definitions
1.1 ~ The term "Service" means Connect by Bigbelly, including software, equipment, equipment delivery, installation, customer service and equipment maintenance, warranty for defective part replacement and repair, set up and training and any other features, products or services provided as part of and included under the terms of this Agreement.
1.2 Equipment The term "Equipment" means station hardware and accessories provided by Bigbelly to Customer for use with the Service.
1.3 Software. The term "Software" refers to CLEAN cloud-based software for usc with mobile or desktop devices intended for use by Customer with the Service.
<,
2.0 Term of Agreement
2.1 Ism!!. The Term of this Agreement will commence on the date that all Equipment ordered pursuant to this Agreement has been delivered to the Customer and received atCustomer's receiving location Upon expiration of the Term, 1hls Agreement will automatically renew fur subsequent one-year terms (each a "Renewal Term") unless terminated according to Section 6.7 below. As used herein, "Term" shall mean the Initial Term and any applicable Renewal Terms. Except to the extent otherwise provided herein, the Term is non-cancelable.
2.2 Non-Renewal. IfCustomer elects not to renew, Customer must provide written notice to Bigbelly at least three (3) months prior to the expiration of the CUITent Tenn.
3.0 Fees Payable by Customer
3.1 Ee, In compensation for the Service described inthis Agreement, Customer agrees to pay the Service Fee specified in the Service Schedule and any fees payable fur additiooal custominstion and/or services. Fees shall become payable on the dab: by whichall the Equipment ordered pursuant to this Agreement has been delivered to the Customer. BigbeUy shall submit invoices to Customer during the Term of this Agreement per the Payment Terms outlined in the Service Schedule and Customer shall pay each invoice on the date due. All payments shall be made by check or, atCustomer's option, may be automatically deposited to the account of Bigbelly as authorized by Customer by means of Customer submitting a signed Pre-authorization Payment Form ("PAP') identical to the PAF attached hereto as Attachment B.
Any failure by Bigbelly to provide an invoice in a timely manner shall not affect Customer's obligation to make payments. Whenever any sum due hereunder is not paid when due, Customer agrees to pay to Bigbelly, on the next due date, a late charge equal to five percent(SO.4)of the amount ohuch late payment (but not less than 510.00), but only to the extent permitted by law. Late payments shall be subject to interest at the rate of eighteen percent (18%) per annum.
3.2 Service Fee Prices. Service Fee Prices are guaranteed for the first twenty-four (24) months of Service. Thereafter, Service Fee Prices shall not increase over the amounts charged for the immediately preceding Term bymore than the rate of inflation as reflected by the Consumer Price Index - Urban for all US Cities, unadjusted (''CPI-lf'). BigbeJty will provide Customer at least 120 days prior notice ofa price change.
4.0 Obligations of the Parties
4.1 Bigbelly's Obligations
(A) Equipment BigbeUy will supply the Equipment identified in the Service Schedule an a rental basis to Customer for the Term of the Agreement. The Equipment will be either new and/or BigbeJly refurbished equipment (8) System Software. The CLEAN Software License Agreement includes communication services and access to the CLEAN Management Console and CLEAN Mobile. Customer's use of the Software is subject to the CLEANTMSoftware License Agreement.
(C) Eauipment DeliveIT· Bigbelly will deliver the Equipment at Customer's expense to Customer's receiving dock or to a location mutually agreed upon by the parties before the shipment Bigbelly hereby warrants that its Equipment is:
(a) good and merchantable, (b)free from defects and mal functions, (c) free of liens, security interests or other encumbrances, (d) complies with all applicable laws, rules, regulations, and orders, and (e) is fit for the purpose for which the Equipment is intended.
Connect by Bigbelly Service Agreement CSA20160216 Page3!!1 r
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) (D) StalionJnstallation. Bigbelly Equipment will be installed at mutually agreed upon locations, including semipermanent attachment to the greend, Installation will be in accordance with the delivery and installation schedule agreed to by the parties.
(E) Setup and Training. BigbeJIy shall, at its expense, provide Customer Equipment and Software setup and training.
The parties shall agree upon the location and methodof training. (F) Warranty - Defective Part Replacement and Repajr. Replacement parts required due to manufi1cturer defects or workmanship will be provided by Bigbelly at no cost to Customer. All other repairs and part replacements, including but not limited to, repairs or replacements required as 8 result of external trauma or damage (mcluding but not limited to vehicle strikes or vandalism) are specifically excluded and must be repaired or replaced at Customer's expense. Custom add-ens including vinyl wraps purchased by Customer are not covered by this warranty and repair and replacement shall be at Customer's expense, unless the damage is caused by Blgbelly or its employees, subcontractors or representatives, in which case any repair or replacement will be at Bigbelly's expense.
(0) Customer Support and EquiPment Maimenans;e. Except for losses described in Section 52 below, Bigbelly will support the Customer in the maintenance of the Equipment at its sole discretion and expense in order to optimize up time. Technical CustoIllE.r Support is available Monday through Friday, 7am to 6 pm ESf to guide Customer in troubleshooting, repair and replacement efforts and to assist with parts ordering. In addition. Bigbeny maintains a network of trained Field Service professionals available for dispatch upon Customer request to investigate and resolve issues in the field.
Equipment batteries will be provided at no COllI:to Customer during the Term of the Agreement at BigbeUy's discretion, but no less frequently than necessary for the normal operation of the Equipment. If station operating conditions change such that insufficient sunlight is available fur normal station operations (for example, Customer moves station into storage and fails to switch off station or places station under awning), and as a result t!re equipment battery fails prematurely, battery will be replaced at Customer expense. (H) Remoyal. Upon termination, Bigbelly will de-install and remove the Equipment at Customer's expense, which amount shall not exceed $600 per station. Equipment so removed shall be in operational condition and free of any damage for which Customer is responsible pursuant to Section 5.2 below. (I) Subcontractor Services. Bigbelly may contract with third parties to provide the Service. (1) Bigbelly Insurance. During the Term of the Agreement, Bigbelly $hall maintain the following insurance coverages:
(i) commercial general liability insurance covering both bodily injury and property damage with limits of at least $1,000,000 per occurrence/S2,OOO,OOOannual aggregate, (ii) automobile liability insurance with combined single limit of $1,000,000 covering bodily injury and property damage, and (iii) workers compensation and employer's liability insurance as statutonly required. Customer and its officials. employees and agents shall be named additional insured on both the general liability and automobile insurance. Bigbelly's insurance coverage shan be primal)' insurance as respects to the Customer, its officers, officials, employees, or agents and any insurance maintained by the Customer, its offlcers, Officials, employees, or agents shan be excess of'Bigbelly's insurance and shall not contribute with it. With respect to the worker's compensation and employer's liability coverage, the insurer shall agree to waive all rights of subrogation against the Customer, its officers, officials, employees, or agents for losses arising from work performed by Bigbelly. Any deductibles or self-insured retention will be declared to Customer. Insurance is to be placed with insurers with a Best's rating of no less than A:VH. Prior to commencing work under this Agreement, Bigbelly shall furnish Customer with certificates of insurance and endorsements effecting coverage required herein. Customer reserves the right to require complete certified copies of all required insurance policies. Any failure to comply with reporting provisions of the policies shall no affect coverage provided hereunder,
(1<) Prevailing Wages. Bigbelly shall pay applicable prevailing wages to each person employed to perform the Service.
4.2 Customer's Obligations
(A) Customer information & Access. Customer agrees that Bigbelly's ability to perform the Service under the Agreement in 8timely manner is dependent upon access to Customer's installation information and locations.
Deadlines imposed by this Agreement shall be extended in the event that Customer fails to provide such information and/or access in a timely manner.
(B) Shipping. Customer agrees to pay for shipping expenses and to provide an appropriate facility that can receive, inspect and stage all Bigbel1y Equipment amil the Equipment is installed. (C) Site Preparation. Customer agrees to provide a poured concrete pad if the intended installation surface does not meet Bigbelly specifications. [f Customer's installation surface does not meet such specifications, any additional cost associated with Bigbelly's efforts to properly prepare the surface will be at Customer's Connect by Bigbelly Service Agreement CSA20160216 Pap;e4; II '.-----"'-.--....,.,....-"'IIIC.f)""~r----.....4'!""1--------- F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) expense. It IS the Customer's responsibility to remove, at Customer's expense, existing bins or any other items from the locations where Bigbelly stations will be installed (D) Operational Safety. Customer agrees to provide immediate notice to Bigbelly with respect to any damage or other event which causes the Equipment to pose a public safety issue or create unsafe operating conditions and Customer shall take prompt action if necessary, to eliminate such public or operator safety issues. Customer will promptly service or replace any Equipment that Customer has identified as causing a public safety issue or creating unsafe operating conditions. If after applying best effort, Customer cannot resolve the issue, Customer will contact Bigbelly Customer Service and BigbeJly will resolve the issue at Bigbelly's expense, unless unsafe operating condition is due 10 losses described in Section 5.2. (E) Automated System Monitoring & Cus10mer SuPPOrt Escalation • Customer will respond to routine maintenance and repair issues they observe or are notified of via automated CLEAN alerts. Customer will use best efforts to promptly resolve issues andmay contact Bigbelly Customer Service to receive troubleshooting assistance and instructions for proper repair. If a replacement part is needed to resolve the issue, Customer will contact Bigbelly Customer Service to request a part(s). If Customer best efforts do not resolve the issue, Customer should contact Bigbelly Customer Service.
If Bigbelly Field Service is djspatc~ and BigbeUy determines the issue is due to failure of Customer to provide best effort. to Customer error, or to damage B.8 described in Section 5.2 below. Bigbelly reserves the right to bill Customer for incurred expense. Furthermore, if a replacement part is provided and Bigbel1y determines that the original part failed due to misuse or abuse, Customer is responsible for replacement rom per Section 52 below.
(F) Clearung & Inspection - Up to five (5) cleaning and inspection visits from Bigbelly are included during the Term of this Agreement. One cleaning and inspection visit per every 12-month period shan be made available upon request at no cost to Customer. Customer will use best efforts to maintain general cleanliness of Equipment throughout the contract Term. If. after applying best effort to maintain Equipment cleanliness. Customer finds equipment needs an additional cleaning andinspection visit, Customer may contact Bigbelly Customer Support to request a cleaning and inspection visit Additional cleaning and inspection visits that are not included in the terms of this Agreement will be at Customers expense. (G) Insurance. This Section 4.2(0) shall not be applicable if Customer has provided evidence of self-insurance acceptable to Bigbelly and maintains such self-insurance in full force and effect. During the Term of this Agreement, Customer will keep the Equipment insured against all risks of loss or damage inan amount not less than the replacement cost thereof, with deductible not to exceed $15,000.00 and without co-insurance.
Customer will also maintain fortbe Term of this Agreement, commercial general liability insurance covering both bodily injury and property damage of at least $1,000,000 per occurrencel$2,OOO,OOOannual aggregate. BigbeUy and its assigns will be named as loss payee on the Property insurance and additional insured on General Liability insurance. Customer will pay all premiums for such insurance and must deliver proof of insurance coverage satisfactory to Bigbelly. If Customer docs not provide such insurance, it agrees that Bigbelly has the right, but not the obligation, to obtain insurance against theft and physical damage and add an insurance fee to the amount due from Customer, upon which Bigbelly may make a profit. (H) Equipment Relocation. Within five (5) business days following relocation of any Equipment, Customer shall notify Bigbelly in writing of the specific location of such Equipment.
5.0 Equipment Rental Terms and Conditions
5.1 Title To and Use of Eauipment
(A) Title. As further set forth inSection 6.4 below, Bigbelly is and will at all times be the sole owner of the Equipment.
Customer shall not acquire any title or interest, legal or equitable, in the Equipment, other than the use rights set forth in this Agreement In the event this Agreement is deemed to be disguised sale, Customer hereby grants 10Bigbelly a security interest in the Equipment (and all accessions thereto and substitutions therefore) and the proceeds thereof
(B) Use ofEauipment. Customer shall not use the Equipment for other than intended purposes. Customer shall ensure safe operation of the Equipment by trained persormel. Customer shall comply with all Bigbelly and governmental guidelines, laws, rules, regulations and ordinances applicable to the use and operation of the Equipment.
(C) No Pledge. Customer shall not pledge, lend, create a security interest in or permit any lien to attach to the Equipment or any part thereof or attempt in any other manner to dispose the Equipment. (D) No Attachments. Customer represents and warrants that the Equipment is, and shall at all times remain, fully removable personal property notwithstanding any affixation or attachment to real property or improvements.
Customer shall give BigbeUy immediate notice of any such attachment or other judicial process affecting the Connect by Bigbelly Service Agreement CSA20160216 Page 5111 ------------,-- .......-----_.,..----------- ....._.._
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Equipment and shall immediately take all action necessary to remove such attachment and terminate the effect of such judicial process on the Equipment.
(E) EQuipment Inspection Rights. Bigbellyand its agents shall have the right to enter any premises where Equipment is located to inspect such Equipment at any time with reasonable advance written notice to Customer.
5.2 Risk of Loss. From the time of delivery of Equipment by Bigbelly to Customer until the Equipment is removed by Bigbclly, Customer will bear the entire risk of whole or partial loss, theft, destruction or damage to the Equipment resulting from any causes other than Bigbelly's or its employees' or contractors' agents' actions or omissions with respect to the Equipment or defects, flaws or malfunctions in the Equipment, or requisition of the Equipment by any governmental entity. or expropriation or the taking of the Equipment by eminent domain or otherwise (collectively, "Loss"). Customer will give Bigbelly written notice within 10 days of any Loss ("Loss Notice"). (fany Equipment is damaged but can be economically repaired, Customer will immediately have the Equipment restored to good working order and condition by Bigbelly at Customer's expense and Customer agrees to immediately pay, on demand, all costs and expenses incurred in connection therewith. Upon the occurrence ofany other kind of Loss or ifthe Equipment is not economically repairable, Customer will, upon Bigbelly's demand, pay Bigbelly the replacement cost of the Equipment as solely determined by Bigbelly.
6.0 General Terms and Conditions -,
6.1 Taxes and Other Charges. Customer is responsible for all taxes (including sales, use and personal property tax), fees, and assessments (collectively, "Taxes") that may be imposed by any govenunental entity or taxing authority in connection with this Agreement or the Equipment or any amount due hereunder. Customer will reimburse Bigbe1ly (OT pay directly to tbe applicable taxing authority ifinstructed in writing by Bigbelly) for all such Taxes except to the extentCUstomer is tax-exempt and has delivered to Bigbelly a valid and current tax exemption certificate as reasonably detennined by Bigbelly.
6.2 Service. Customer agrees that during the Term of the Agreement, itshall keep in effect the Service as defined in the Agreement. Unless otherwise agreed ina written amendment to this Agreement, Bigbelly or its subcontractors shall be the sole and exclusive suppliers of the Service.
6.3 Additions and Modifications of Equipment. Unless otherwise expressly agreed by an officer of Bigbelly in writing, Customer shall not make any additions, alterations or modifications to the Equipment Customer shall not remove, cover or damage any Bigbelly logos or other identification markings on the Equipment
6.4 Ownership Rights. The Equipment and Software contain intellectual property including but not Iimitedto patented and unpatented inventions, trade secrets, know-how, and copyrights all of which is owned and will continue to be owned exclusively by BigbeUy and'or its licensors and Customer will obtain no rightsthereto other than the limited rights ofuse under this Agreement. Customer acknowledges and agrees that all teclmology, materials, hardware, software, content and data of which the Equipment and Software is comprised or which is otherwise contained within or attached to, generated, collected or processed by the Equipment and/or Software is the sole and exclusive property ofBigbeUy. Bigbelly hereby grants CtNomer a royalty-free, non-exclusive, fully paid up right and license to use the Eqllipment, the Software, and any intellectual property rights therein as necessary for Customer and its contractors to use the Equipment and Bigbelly Service consistent with the terms and conditions of the Agreement and these Terms and Conditions. Bigbelly ~ the right, at its sole cost and expense and subject to applicable govemmcntalguidelines, laws, rules, regulations and ordinances, at any timeupon notice to Customer, to enhance or otherwise modify the Equipment andlor Software made available to C~omer under this Agreement, including but not limited to enhancements or moditications for the purpose of implementing Wi-Fi network capability to the Equipment, instituting mechanisms for data collection, processing and analysis. 8igbeJIy retains all media rights associated withsignage, and Customer agrees not to post signage and'or advertisements on the Equipment without written approval by Bigbelly. For avoidance of doubt, this does not prohibit customer from displaying messages solely on behalf of customer such as public service messages.
6.5 Termination
(A) Effect of Termination. Except as provided for in Section 6.7 below, any termination of the Agreement by Customer, with or without cause, shall not relieve Customer of its obligations to make any and all payments due under this Agreement
(8) Post Termination Duties I Surrender of Equipment. Upon the expiration or earlier termination or cancellation of the Agreement, Bigbelly shall remove the Equipment as described in Section 4.1 (H) above.
6.6 Indemnifications by the Parties
(A) Indemnity by Bigbelly. Bigbelly shall, to the fullest extent permitted by law, indemnify, defend (with independent counsel approved by Customer), and hold Customer and its directors, officers and employees, harmless, and defend Customer and its representatives if it requests, as to all claims, demands, actions, liabilities, losses, damages and expenses (including reasonable attorneys' fees and other legal expenses and amounts paid in settlements) brought against Customer or its representatives because of (a) any breach or alleged breach by Connect by Bigbelly Service Agreement CSA20160216 Page6111 ------ --------.......-........----_.-..------- ·r~~r
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Bigbelly of any of its warranties to, or agreements with. Customer, including Bigbelly's fuilure to comply with obligations under this Agreement, (b) any claim that any of tile product or services infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world, or (c) any death. injury or damage to any person or property caused by Bigbelly's negligent performance of the Service. In no event will Bigbelly be liable for or indemnify Customer against any damage, claim or injury arising out of Customer's or any third party's actions, including but not limited to accidental or intentional tampering with the Equipment. Notwithstanding the foregoing however, Bigbelly's maximum liability with respect to subsection (b) herein shall be limited to twice the amount of fees paid by Customer with respect to the infringing product or services.
(B) Indemnity by Customer. Customer shall indemnify and hold Bigbelly and each of their directors, officers and employees, harmless, and defend Bigbelly and its representatives if it requests, as to all claims, liabilities, losses, damages and expenses (including without limitation, reasonable attorneys' fees and other legal expenses and amounts paid in settlements) brought against Bigbelly aodlor its representatives because of (a) any breach or alleged breach by Customer of any of its representations, warranties, or agreements with Bigbelly, (b) any claim that any of the information provided by Customer to Bigbelly infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world, or (c) any death, injury or damage to any person or property ~ by or resulting from Customer's negligence in operating or securing the Equipment.
(C) Surviyal of Indemnity. The rights and obligations of Customer and Bigbelly under this Section 6.6 survive the termination, cancellation or expiration of this Agreement and are not limited by the provisions of this Agreement relating to insurance.
6.7 pefault pispute Settlement: Governing Law
(A) Definition of Defuult The tenn "Default" means any of the following events; (i) Customer fails to make any payment required under this Agreement within ten days after the same shall have become due; (ii) Customer or Bigbelly fails to perform any other obligation under this Agreement and such non-performance isnot cured within thirty (30) days following notice or Customer fails to provide insurance as required under this Agreement; (iii) Customer defaults under any other Agreement with Bigbelly (iv) Customer or Bigbelly becomes insolvent or makes an assignment for the benefit ofits creditors; (v) a receiver, trustee, conservator or liquidator of Customer or Bigbelly of all or a substantial part of such party's assets is appointed with or without the application or consent of such party; (vi) a petition is filed by or against Customer or Bigbelly under any bankruptcy, insolvency or similar law; (; (vii) any warranty or representation made by either party herein proves to have been false or misleading when made; or, (viii) there is a material adverse change in Customer's financial condition.
(B) Default by Customer. Upon the occurrence of a Defuult by Customer, Bigbelly may do one or more of the following as Bigbelly in its sole discretion shall elect: (i) initiate Dispute Settlement procedures pursuant to subsection (D) herein to enforce performance by Customer of the Agreement or to recover damages for the breach thereof; (ii) cause Customer, at its expense, to promptly return the Equipment to Bigbelly at such place as Bigbelly designates in writing; (iii) by notice in writing to Customer, cancel or terminate the Agreement, without prejudice to any other remedies hereunder; (iv) enter upon, or instruct its agents or assigns to enter upon, the premises of Customer or other premises where any Equipment may be located and take possession of and remove all or any portion of such Equipment without liability to Customer by reason of such entry or taking possession; (v) require Customer to pay to Bigbelly immediately upon demand, in addition to all amounts then due under this Agreement, liquidated damages in the amount of the greater of (A) eighty percent (80010)of the remaining Service fees to become due during the InitialTerm or (8) one year of Service fees, which amount, owing to the acknowledged difficulty in establishing a value for the unexpired Initial Term, the parties agree represents an agreed upon reasonable measure of damages and is not to be deemed a forfeiture or penalty; (vi) charge Customer interest on all monies due Bigbelly at the rate of eighteen percent (18%) per year from the date of defuult until paid, but in no event more than the maximum rate permitted by law; (vii) collect from Customer all expenses incurred by Bigbelly in connection with the enforcement of any remedies, including all expenses of repossessing, storing, shipping, repairing and .selling the Equipment and reasonable attorneys' fees; and (viii) exercise any other right or remedy available to Bigbelly under applicable law.
(C) Default by Bigbelly. Upon the occurrence ofa Bigbelly Default, Customer may do one or more of the following as Customer in its sole discretion shall elect; (i)initiate Dispute Settlement procedures pursuant to subsection (D) herein to enforce performance of the Agreement or recover damages for the breach thereof; (ii) cause Bigbelly, at its expense, to promptly collect the Equipment; (iii) by notice in writing to Bigbelly, cancel or terminate the Agreement, without prejudice to any other remedies hereunder; (iv) collect from Bigbelly all expenses incurred by Customer in connection with the enforcement of any remedies, including all expenses Connect by Bigbelly Service Agreement CSA20160216 Page 7111 ------'1,.' -....,U·."";----_,------------ "!r:~~r ------ !1.:~~!
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) of repossessing, storiog, shippiDg. repairing and selling the Equipment and reasonable attorneys' fees; and (v) exercise Ill)'other right or remedy available to Customer under applicable law. (0) Dispute Setdemem. Inthe event of any dispute arising due to a Defiwlt or with respect to the terms of the Agreement or obligations Qf the parties. the parties agree to discuss the dispute in an BUempt to amicably resolve such dispute wi1bin 30 days of the date of a written notice of such dispute by one party to the other.
Failing any such resolution, either party will be freo 10seck remedy througha court of competent jurisdiction. (E) ContjrnI!tion of Obligati<!m. The occurrence of a dispute 1D:Ider or rolating to the Apement shall not relicNe Bigbelly ot; or change in any way, BigbeDy's obligation to provide tbe Service in accordance with the tenDs of the Agreement IlOJ shaD the occurrence of a dispute under: or relating to the Agreement relieve Customer of its obligations to make any and aD payments described in the Agreement, including the Attachments. (F) Govemjoa Law. The Agreement including the Attachments shall be iDteJpreIed POder the laws of the courts of the Slate ofCalifornia, without regard to principles of conflicts of lawor the United Nations Convention on the International Sale of Goods. Each party COD8CDtS to the personal jurisdiction of ftIderal and state courts located iD Califomia. Customer agreea that service of process in any action or prooeecting may be duly affected upon Custom« by mailina such process via certified mail. reIum TtICOipt requested or as otherwise provided under applicable Jaw. EXGl:PT AS PROHIBITED BY APPUCABLE LAW, BACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY UflOATION ARISING FROM OR RELATED IN ANY WAY TO THIS AGREEMENT OR 1HE EQUIPMENT.
6.8 Assignment. Customer may not assign this Agreement or any rights bcreunder, or sublease or lend any Equipment without ~ prior written consent of Bigbelly. No assigmnent or sublease sbaIl relieve Customer of its obligations hereunder and Customer shall remain primarily 1iab1e for such obligations. Any sale, assignment, transfer, encumbrance, delegation, or sublease by Customer not consented to by Bigbelly shaD be void ab initio. Bigbellymay at any time assign to any person (an "Assignee") any interest in this Agreement Inpart or inwhole or pant security interests in the Equip~ and/or the Bigbelly's rights hereunder. Insuch evem, all the provisions of this .Agreement for the benefit of BigbeHy shall imJre to the benefit of and be exerc:ised by or on behalf of sud!. Assignee, but the AsaigneeshalJ Dot beliable for or be RlCluiredto perform any of Big belly's obligations toCustomer and Bigbellyshall retain such Obligations. Customer acknowledges that any such assignment sbaD not materialJy change Customer's duties or obligations hereunder. Subject 10 the foregoing, tlr;.Apeemcntshall~ to tlr;beDefit o( and be b.indiDsupoo. the successors aDd penniUed assigns oftbe parties hereto.
6.9 RelationBbjp of Parties, Bigbelly and Customer are each independent eDlities and the relatiODsbip between BigbeIly and Customer UDder the Aga:cmcnt is not a joim ~ partnersb.ip.princlpat-agent, brokl:::r, sales replesentati:ve or Banchise relationsbip. Bigbollybasnoau1boritytomakeanypromise,commitmentoragreementonCustomer'sbebalt;aodBigbeDy will DOt represent to 8Il)'OIIethat itdoes have such authority.
6.10 ~ Each notice provided for in the Agreement shall be given in writing and become effective when:
(A) served by personal delivery to the recipient's Legal Department or Contract Administrator; Customer: ~f On V1.cla.. BIGBElLYSOLAR,INC.:
Name: _ sr.J Dh'\O() Brian Phillips
Title: C i~ M~e.¥"" PresidentJCEO
Address: y-.i2rjN1O:W~ 150 A Street, #103
_V'l __ • GA _$:2 Needham. MA 02494
(B) deposited, postage prepaid in the Unitod States registered or certified mails addressed to the recipient's Legal Department or Contract Administnrtor;
(C) dispatched to the recipient's Legal Department or Contract Administrator via overnight mailusing UPS, Federal Express or similar carrier; or,
(0) sent to recipient's Legal Department or Contract Administrator: via fiwshnile or other electronic means if delivery does not require a signature or other confirmation of delivery.
6.11 Force Majeure. Any delay or failure of either party to perform its obIiBations (other than payment obligations) shaD be excused ifitis caused by an extraordinary event or occurrence beyond the conlrol of the nonperforming party and without the nonperfonning party's fiwlt or negligence, such as acts of God, fires, floods, windstorms, explosions, natural disasters, wars and sabotage. Raw material or labor shortages are not force majeure events. Bach party shall promptly notifY the other of the reason for the delay BOduse its best effortB in curing such cause and shall take all action practicable to minimize the adverse impact of the delay on the other party.
Connect by Bigbelly Service Agreement CSAl0160216 Page 8111 , ,
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System)
6.12 No Wanantic:s. Customer hereby acknowledges that it has not entered into ate; Agreement including the Attaclnnents in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth therein.
6.13 Use of Trade Names andTraciemIll"ks. Neither party may use the trade name, service mark, logo or trademark of the other party for any purpose without previous penn ission in writing from the other party.
6.14 Damages. Unless otherwise provided in the Agreement, in no event shall either party. or its affiliates, shareholders, officers. directors, employees, agents, or representatives, or assigns be liable for lost revenue, lost profits, incidental, indirect or consequential damages, resulting from any aspect of the Service provided in connection with this Agreement, Bigbelly's maximum aggregate liability to Customer in relation to or in cormection with the Agreement will be limited to the total amount paid by Customer to Bigbelly under the Agreement
6.15 Injunctive Relief. If there is a breach or threat of a breach of the terms of the Agreement, the parties agree that compensation alone would not be an adequate remedy fur the harm suffered by the non-breaching party, which hann would be immediate and irreparable. Therefore, ifthere is a breach or threatened breach, then the non-breaching party shall be entitled to seek inj\Ulctive relief to stop the breach or threatened breach. The rights and obligations of the parties under this provision survive the termination, cancellation, or expiration of the Agreement
6.16 Reorgenlations. This Section 6.16 is ndt- applicable if Customer is a governmental entity, agency or authority. CUstomer hereby represents, warrants and covenants to Bigbelly that: (a) Customer is organized and validly existing WIder the laws of the jurisdiction of its organization, with adequate power and capacity to enter into the Agreement and any other documents, instnunent or agreement related to this Agreement; (b) The Agreement has been duly authorized, executed and delivered by Customer and constitutes a valid, legaland binding agreement, enforceable in accordance with its terms, except to the extent that the enforcement of remedies therein provided may be limited under applicable bankruptcy and insolvency laws; (c) no approval, consent or withhcldiog of objections is required from any governmental authority or instrumentality with respect to the entry into or performance by Customer of the Agreement, except such as have already been obtained; (d) there are no suits or proceedings pending or threatened in court or before any regulatory commission, board or other administrative governmental agency against or affecting Customer, which will have a material adverse effect on the ability of Customer to fulfill its obligations and liabilities under the Agreement
6.17 Fiscal Funding. This Section 6.17 is effective only if Customer is a governmental entity, agency or authority. Customer hereby represents and warrants to Bigbelly that:(a) Customer is a State, possession of tile United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Internal Revenue Code and Treasury Regulations and Rulings related thereto (the "Code"); (b) IfCustomer is incorporated, it is duly organized andexisting under the Constitution and laws of itsjurisdiction of incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect; (c) Customer has been duly authorized by the Constitution and laws of the applicablejurisdiction and by a resolution of its governing body (which resolution, if requested by Bigbelly, is attached hereto). to execute and deliver the Agreement and to cany out its obligations hereunder; (d) All legal requirements have been met, and procedures have been followed, including public bidding, in order to ensure the enforceability of the Agreement; (e) The Equipment will be used by Customer only for essential governmental or proprietary functions of Customer consistent with the scope of Customer's authority and will Dot be used ina trade or business of any person or entity, by the federal government or for any personal, family or household use. Customer's need for the Equipment is not expected to diminish during the term of the Agreement; (t) Customer has funds available to pay contracted Payments until the end of its current appropriation period, and it intends to request funds to make contracted Payments in each appropriation period, from now until the end of the term of the Agreement; and (g) The Customer shall comply at all times with all applicable requirements of the Code. [fsufficient funds are not appropriated to make contracted payments under the Agreement ("Payments,,), the Agreement shall terminate and Customer shall not be obligated to make contracted Payments WIder the Agreement beyond the then-current fiscal year for which funds have been appropriated. Upon such an event, Customer shall, no later than the end of the fiscal year for which contracted Payments have been appropriated, deliver possession of the Equipment to Bigbelly. If Customer fails to deliver possession of the Equipment to Bigbelly, the tennination shall nevertheless be effective but Customer shall be responsible fur the payment of damages in an amount equal to the portion of contracted Payments thereafter coming due that is attributable to the number of days after the tennination during which the Customer iUls to deliver possession and for any other loss suffered by Bigbelly as a result of Customer's failure to deliver possession as required. Customer shall noticy Bigbelly in writing within seven (7) days after the failure of the Customer to appropriate funds sufficient for the payment of tbe contracted Payments. but failure to provide such notice shall not operate to extend the Agreement term or result in any liability to Customer.
6.18 Entire Agreemem. The Agreement including the Attachments constitute the entire agreement between the parties regarding its subject matter and supersede all prior agreements, oral and written, negotiations, commitments and writings, and may not be released, discharged, abandoned, changed or modified in any manner, orally or otherwise, except by an instrument in writing signed by a duly authorized representative of each party. Any purchase order or other ordering document issued by Customer is for administrative purposes only and does not form part of this Connect by Bigbelly Service Agreement CSA20160216 PMe9; II ti' u.s lE!.).
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) I authorize Big Belly Solar, Inc. or its assignee ("Payee,,) to initiate debit entries our checking account from the financial institution listed below.
Ifany of tile below information changes, I will promptly complete a new a ization agreement. Payee will retain this document on file Company Name:
Address:
City: __ ~ 4-- +-
Phone:
Representative: . -4-_........ __
State: _
Fu: _
Title: _
Zip Code: _
Account Information - 0 =~"""--=="-'.!Ji~~~
Financial Institution Name:
City:
I authorize Payee to withdraw:
o Reoccurring Flat Arno nt of
~ ;
o Variable Amount
o Monthly
State: _ Zip: _
taple Voided Check
force and effect Wltil Payee has received written notificati n from me within 30 days of its termination sto afford Payee a reasonable opportunity to act on it.
Date
x
Signature of Authorized Check
Print First, Middle lnitial and Last Name Title
Connect by Bigbelly Service Agreement CSA20160216 Page II 111 F.3.d
Packet Pg. 54
Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) -'-'.~ '. .- ,~",~~~
Image Part # or SKU
ver2017No.;i
HP-T-BB5
'TYPe
High Capacity
(HC5)
Description
Black Hopper wI
"Trashman" icon
HP-R-BLUE-BB5 High Capacity
(HC5)
Blue Hopper wI
"Recycle" icon
- NoneSKIN-BLANK-BB5 Blank Side-skins
for wraps or
Messaging Panels
18"x30" Messaging Panels for
Insert INSERT-BB-T&R Side-skins
18"x3O" [ wI Recycle inserts]
..................................................................................................................... •••••••• n .
BBS-CONTROLLER-3G-US Board Type U.S.A
....................................................................................................................................................................................................................................
BIN-BB5 HC5 Bin STANDARD Style
....................................................................................................................................................................................................................................
I;iiII BBS TOPSTD 2ZN Solar Panels STANDARD Energy
IMPORTANT! Do NOTsign if there are changes. Please contact your Bigbelly Repor Distributor. ~ , 1have I~oked over this document and confirm a:1se/ections;nd quan~ities. vI'Y'v'Ible i ~ i 3 g 1(, i
Print Name Signature Date Bigbelly Rep Sign-Off
20·r::-e b·2e i8
F.3.d
Packet Pg. 55
Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Image Part # or SKU
~r2017No>9
Hp·T·BB5
Type
High Capacity
(HC5)
Description
Black Hopper wI
"Trashman" icon
HP·R·BLUE·BB5 High Capacity
(HC5)
Blue Hopper wI
"Recycle" icon
• None·
SKIN·T&R·BB5 Side·skins for
"Trash & Recycle"
............................................................... u···············.· u u , .
BB5-CONTROLLER-3G-US Board Type U.SA
............................................................................................................... ••••••••••••••••••••• .. • •••••••••••••• 06 .
BIN·BB5 HC5 Bin STANDARDStyle
BB5 TOPSTD 2ZN Solar Panels STANDARDEnergy
Print Name Signature Date Bigbelly Rep Sign-Off 'U, ersk evhschQsat ivalDown!oads :\lOT·illaster _2017Nov9 (6). x Is 2C·"eb·20' 8
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Name: Todd Trimble / Steve Salomon
81GBELLY
Quote #:
Rep Info: Kevin Schoenthaler
Image
v2017Nov15
Part # or SKU
HP·T·BB5
Type
High Capacity
(HC5)
Description
Black Hopper wi
"Trashman" icon
HP·R·BLUE·SC5 Standard Capacity
(SCC5.5)
SC Blue Hopper wi
"Recycle" icon
• None·
BBS DblStn 18"x30" Messaging Panels for
Insert INSERT-BB-T&R Side.skins
18"x30" [ wi Recycle inserts]
..H..'.•'H"'__ .._.-. ' "..Hm ·".•' _n".M'.."".'h"'n',~ "" .•'M' ~H" ~.._ _" ,, ._, .. ,__ .._"""'.''''' .._ .._ ""'''''''~., ·".~ ''' ,on ,..'''.'' MH '''H".n 'M " u ,,_, __ , , "'''''''''''.,,>0 .
BB5-CONTROLLER-US Board Type U.S.A.
SKIN·BLANK·BB5
Blank Side·skins
for wraps or
Messaging Panels
IMPORTANT! Do NOTsign if there are changes, Please contact your Bigbelly Rep or Distributor.
I havelooked over this document and confirm al/ selection and quantities. r,v:.b!R_ Signature Date Bigbelly Rep Sign-Off
Print Name
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Name: Todd Trimble / Steve Salomon
BIGBELLY
Quote #:
Rep Info: Kevin Schoenthaler
Image
v2017Nov15
Part # or SKU Type
Standard Capacity
(SC5.5 Hub)
Description
SC Black Hopper wI
"Trashman" icon
Hp·T·BLACK·SC5
HP·R·BLUE·SC5 Standard Capacity
(SCC5.5)
SC Blue Hopper wI
"Recycle" icon
• None·
SKIN·BLANK·BB5
Blank Side·skins
for wraps or
Messaging Panels
Please verify ::>I.:IC\;lIUn::;ana quanunes. \"umac{ your t:SlglJelly Kep or Distributor if there are any changes. Print, sign, scan and email form to your Rep or fax it to 781.444.5651. _- .....-..-.--- ....---- -, ...." _ .._H_' '_ H__ .............. _ ...._D~•..,'..".....~_...., " ,,_.._ ...,, ._._, _ __ ,,_..._.. _ ..._,_" ............. ---------_ .._.._----'_ _--------_ __ _-_ _ _--" _-_.___..,--_ _ _,------_ _ _----- ---.._."....._.__ ._ __._----_. ----_._ ....._._----_._- ._-_ --......._._-_. ---_._---_ __...-........._---- ----- _._-•. ---_._---_._.._ --_----- ._..........,_..._-------_ ..._--_._--_._._-- .......__-.--- _--._,...._---- -~-.. .------------ _--------- _._-----_ ..__ -----_........_----- ---, -- _......._- ----------- - ---_..._--_~...
BBS DblStn 18"x30" Messaging Panels for
Insert INSERT·B8-T&R Side.skins
1S"x30"
[ wI Recycle inserts]
- ...H.....- ......... ··'''·"·..,.....,__ ...~...~.._.......... _A_.~'''''.,,._'''' ..•.H~....'...-............. -_, ..."O,, . _...... .,.,..~,.•""""H.......''''.,.....'''.,"'-..."...",......__ '...'n.._.~........,_"" ........'''..._,.".....~,.......... ,_,.......__ .. •__ ........._. ....._, ....._..""'""....
BIN·BB5 acrsc Bin STANDARDStyle
IMPORTANT! Do NOT sign if there are changes, Pleasecontact your Bigbelly Repor Distributor.
I have looked over this document and confirm all selections and quantities. ~'cI ~/~b/~ . z ~ 3/~ It
Print Name Date Bigbelly Rep Sign-Off Signature
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Name: Todd Trimble / Steve Salomon
-----......... .._...~'--~-----.-.-"'..........~......~-.--~-.
BIGBELLV Rep Info: Kevin Schoenthaler
Image
v2D17Nov15
Part#orSKU Type
Standard Capacity
(SCS.SHub)
Description
SC Black Hopper wI
"Trash man" icon
HP-T-BLACK-SCS
HP-R·BLUE·SCS Standard Capacity
(SCCS.S)
SC Blue Hopper wI
"Recycle" icon
• None·
SKIN·T&R·BBS Side-skins for
"Trash & Recycle"
__ .... _ HM __ ._ ..... BIN-BB5 ,.._' __ ._ ...... __ • HC/SC Bin ... _,_ ... __ • STANDARDStyle .. __ ._ - --- _.;:::::::._-_._-_---:..- -. . ---~-----......;;.;;-~~~ ~=-::::'.'..-.-=--=--=---.=-====.:.==:_= .. _-==-=:::::=_:_-:-. _--=-_-_. __._:..-::::::.:-=-_"..'.""_-.::_-:_.-:-- - ---_-=-.::::-:=-=-_..:::::=--::..--=..::::_---=_=_-__-._.-._-- =-._------ ----------
Pleaseverify selections and quantities. Contact your Bigbelly Repor Distributor if there are any changes. Print, sign, scan and email form to your Repor fax it to 781.444.5651.
IMPORTANTI Do NOT sign if there are changes. Please contact your Bigbelly Rep or Distributor.
I have looked over this document and confirm all selections and quantities. r.-;-dti Irl~.b k 2i7dJ~
Print Name Signature Date Bigbelly Rep Sign-Off
J:ICustomer Approved VOT\Omida VOT 8 SC DBL 02·23-18.xls F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) ·gbelly
CHANGE YOUR SPACE
PO Processing Checklist
Quote #:
Contact Name:
~--~~~L-~~~~~ ~
Company:
Street: ~--~~~~~--~~----~------~
City, State, Zip:
~--~~~~----~~~~~--~~~ Contact Phone:
Contact Email: ~----~~------~--~~~~----~
3 ,
~
Ship via? (Enter 'X' to select.)
[2(] Bigbelly Solar arranged DCustomer Arranged
Acceptable trailer size? (Enter'X' to select.)
~ Full size acceptable (52 feet) DSmall truck only
Is Lift Gate Truck required for delivery?
j:RJVES DNO
Contact Name:
~~~--------~~~~~~------~ Contact Phone:
Contact Email: ~--~------------~--~--------~
What are the operating hours for the
receiving location?
Is a call ahead required?
[Z]VES DNO
If 'YES', enter name and number below:
IMPORTANT: If custom artwork is required, please confirm the following in advance of submitting the PO:
1) Artwork conforms to standards per artwork creation guidelines. 2) Submit artwork file as an attachment to the PO email.
NOTES I SPECIAL INSTRUCTIONS:
Please confirm or fill in missing info. Do NOT leave any sections blank. Return with signed VOT.
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) ACORD· EVIDENCE OF PROPERTY INSURANCE I
DATE(MMlDDIYYYY)
~
31112018
THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST.
AGENCY Ir... ~~N.t ,,~•.415-403-1406 COMPANY
Alliant Insurance Services, Inc. Lexington Insurance Company 100 Pine Street, 11th floor
San Francisco CA 94111
License No. OC36861
r~ No\:415-874-4811 I E-MAIL ~/li) .
ADDRESS: lcemeero alilant.com
CODE: I SUBCODE:
~~p~--,n ...
INSURED LOANNUMBER Municipal POOlingAuthority (MPA) I POUCYNUMBER Agreement #10116 017471589/04 C~OfOrinda
19 1 San Mieuel Drive, Suite 200 EFFECTIVEDATE
I
Walnut Cree ,CA 94596 EXPIRATIONDATE InCONTINUEDUNTIL 0710112017 07/0112018 TERMINATEDIFCHECKED THIS REPLACESPRIOREVIDENCEDATED:
PROPERTY INFORMATION
LOCATIONIDESCRIPTION
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSUREDNAMEDABOVE FOR THE POLICY
PERIOD INDICATED, NOTWITHSTANDINGANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENTWITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCEAFFORDED BY THE POLICIESDESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONSAND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENTWITH RESPECT TO WHICH THIS
EVIDENCE OF PROPERTY INSURANCEMAY BE ISSUED OR MAY PERTAIN, THE INSURANCEAFFORDED BY THE POLICIESDESCRIBEDHEREINIS SUBJECT TO ALL THE TERMS,EXCLUSIONSAND CONDITIONSOF SUCH POLICIES. LIMITSSHOWN MAY HAVEBEEN REDUCEDBY PAID CLAIMS.
COVERAGE INFORMATION
COVERAGEIPERILSI FORMS
All Risk of Direct Ph~SicalLoss or Damage and Flood excluding Earthquake.
AMOUNTOFINSURANCE DEDUCTIBUE
Coverage includes eal & Personal Property, Rental Income including bond $25,000,000Loss $25,000 Revenue Limits Per Occ. requirements, Business Interruption, Extra Expense andAll Extension and Sublimits of Coverage as shown on Manuscript Policy Form. Boiler & Machinery included in the Manuscript Policy Form.
Flood Dedicated Limit: $25,000,000
Flood Deductible: $250,000 for Flood Zones A and V, $100,000 for All Other Flood Zones.
Re~air or Replacement Cost Valuation
Su ~ectto Policy Terms, Conditions and Exclusions
REMARKS llncludina SDecial Conditions)
City of Orinda
Bigbelly Solar Inc. and its assigns are named as loss payee. Coverage in effect for all equipment in respect to ConnectServicesAgreement number 10116and any additional Service SChedulesbetween City of Orinda and Bigbelly Solar Inc. Total valued at $331,440.00. Equipment is located at various locations.
Please see attached Loss Payable Endorsement.
Subject to policy terms, conditions and exclusions.
See Attached...
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
ADDITIONAL INTEREST
NAMEANDADDRESS
~ MORTGAGEE RADDITIONAL INSURED
LOSSPAYEE
LOAN#
Bigbelly Solar, Inc.
Attn: Liz Todd, Controller Agreement #10116
150A Street, #103 AUTHORIZEDREPRESENTATIVE
Needham MA 02494
O-:!fk_
ACORD 27 (2009/12)
© 1993·2009 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) Remarks
DESCRIPTIONS Continued.
This certificate rescinds and replaces the certificate issued on 217/2018.
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) AG. ADDmONAL INSURED'S / LOSS PAYEES
It is hereby understood and agreed that the interest of Additional Insured's and/or Loss Payees is automatically included, as per schedule held on file with Alliant Insurance Services, Inc.
Public Entity Property Insurance Program (PEPIP) Form No. 13
F.3.d
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System)
CERTIFICATE OF COVERAGE
NAME AND ADDRESS OF AGENCY:
Municipal Pooling Authority of Northern California
ORGANIZATION AFFORDING COVERAGE:
Municipal Pooling Authority of Northern
California
P.O. Box 67
Walnut Creek, CA 94596
(925) 943-1100 * FAX (925) 946-4183
NAME AND ADDRESS OF COVERED ENTITY:
City of Orinda
Pamela Foster
22 Orinda Way
Orinda, CA 94563
This is to certify that coverage agreenlfmls IistE'.dbelow have been Issued 10 the covered parties named above and are In force at this lime. Notwithstanding /Iny requirement, term or condition of any contract or other document with respect to Wllich Ihis certificate may be issued or olily pertain, the coverage afforded by the coveraqe agreements described herein Is subject to all the terms, exclusions, and conditions of such coverage aqrcements.
General Liability
-l--~OVERAGE AGREE~-~~T-I:aVERA. - G.EAGREEMEN~- - L1M~~-~F LIABILITY NUMBER EXPIRATION per occurrence
~-.---
MPA17-18 i 6/30/2018 BodilyInjury, Property
, Damage,PersonalInjury i Combined ~~,OOO,~OO_
TYPE OF COVERAGE
Auto Liability
Workers' Compensation and
Employers Liability
1 I
-- -------- -I
I
I
BodilyInjury, Property
Damage,PersonalInjury
Combined
Auto
Collisionand Comprehenstve
$3,000 Deductlble Police Vehldes
$2,000 All Other Vehldes
I
--------J-
:
Umlt or Uability = $250,000
---------.~-.
SIR $500,000
Description of Operations/ Locations/Vehicles/ Event/Restrictions/Special Items:
It is hereby agreed that BigbellySolar Inc. and its assignsare named additional covered parties with regard to liability dalms ariSingfrom Connect by BigbellyService Agreement #10116, but only to the extent assumed by the City of Orindaunder the Agreement, and subject to MPA'sMemorandum of Coverageterms, conditions and exclusions. i
i Workers' Comp = Statutory
: Employers' Uabilily=$4.5 million
I
Cancp.llation: Should ,my of the above dcscnbod (Overage agreements be G3ncelccl before the expiration dato thereof, the I<;sulngcompany will endeavor 10 milll )0 dilYswritten notice to the below nameo (('rtine-ateholder, but faililre to mall such notice shall IInpDse no obllqatlon nr liability of ilny kind upon the Aulhorilv, Il\ ~g("'nts(If n·prescntiltiv'~~'. --.-
CERTIFICATE HOLDER (name and address):
Big Belly Solar, Inc.
Attn: Jordan Keglovits
[email protected]
Date Issued February 22, 2018
C(!I'i:ifjc<lte Ul: 2'181 : 201S-16 I'Y LI3
r'l'{:pi1n~clny: kb
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Attachment: Connect Services Agreement with Big Belly Solar, Inc. (3010 : Agreement with Bigbelly Smart Waste and Recycling System) City Council
Staff Report
Agenda Item: F.4
Date: February 7, 2023
Department: Parks and Recreation
AGENDA TITLE: Authorizing the City Manager to Enter into a new 3-Year Contract with Contra Costa Certified Farmers’ Market (CCCFM) for Operation of a year-round Orinda Farmers’ Market
RECOMMENDATION:
Authorize the City Manager to enter into a new 3-year contract with CCCFM to operate a year-round Orinda Farmers’ Market from April 1, 2023 through March 28, 2026.
BACKGROUND:
The CCCFM has provided Orinda with a Farmers’ Market since 1997. The Market is located on a portion of Orinda Way between 27 Orinda Way (Rite Aid) and the Community Park (adjacent to 28 Orinda Way) per Attachment B. In 2020, CCCFM requested and Council approved an agreement for the Orinda Farmers’ Market to be held from April 6, 2020 and continue uninterrupted year-round for three years, through March 25, 2023.
Staci DeShasier, the CCCFM Executive Director, indicated the most common request from market customers in the community over the years was to extend the market to year-round. Ms. DeShasier polled the farmers and vendors about their willingness and ability to adjust to the year-round schedule and only one farmer and two vendors indicated a preference for the current schedule. The appeal of the increased selling opportunities of a year-round market will likely attract new farmers and vendors and the continuity created by the year-round schedule is likely to increase customers.
Since the recommended adjustment to a year-round schedule was approved in 2020, the proposed Farmers’ Market Contract (Attachment A) contains very few changes from the current version.
DISCUSSION:
As Ms. DeShasier mentioned, the most common request from market customers in the community over the years has been to extend the market to year-round. Following a short closure early in the pandemic, the increased selling opportunities of a year-round market attracted new farmers and vendors and the continuity created by the year-round schedule attracted more customers. However, the winter months often present unique challenges, such as inclement weather (especially this year) and fewer participating farmers due to the lighter growing season.
Moving forward, the Market plans to focus on several goals for the future related to growing the customer base, including adding more unique artisan booths and vendors offering consumable products as well as pursuing collaborative events and activities F.4
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with local organizations, such as Orinda Parks & Recreation, the Orinda Library, the Chamber of Commerce, and more.
NEXT STEPS:
Authorize the City Manager to enter into a new 3-year contract with CCCFM to operate year-round on Saturdays from 9:00 A.M. until 1:00 P.M. from the April 1, 2023 through March 28, 2026.
FISCAL IMPACT:
Nominal costs are associated with logistical support provided by City employees.
ATTACHMENTS:
A. Farmers Market Contract 2023-26 DRAFT
B. Market Location
Respectfully Submitted by:
Todd Trimble
Director of Parks and Recreation
Prepared By: Todd Trimble, Director of Parks and Recreation Approved by:
F.4
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-
1-
AGREEMENT FOR SERVICES
CONTRA COSTA CERTIFIED FARMERS’ MARKET, INC.
THIS AGREEMENT is made and entered into in Orinda, California, this _ _ day of _______ 2020 by and between Contra Costa Certified Farmers’ Market, Inc. (“Contractor”) and the City of Orinda, a Municipal Corporation (“City”). The parties agree as follows:
1. Farmers' Market. Contractor shall make all necessary arrangements for, and conduct, a certified farmer's market to be held in the City of Orinda, called the Orinda Certified Farmers' Market, every Saturday from 9 a.m. to 1 p.m. from April 14, 20230 through March 285, 20263 (except Saturday, July 4, 2020). Contractor shall provide the services described in Attachment “A” in a manner compatible with the standard of care applicable to Contractor’s profession.
2. Certified Vendors. Contractor shall endeavor to provide a minimum of 20 certified stalls growers to be vendors at the Market; the maximum capacity of vendors shall be as determined by the City, based on space availability. Non-certified vendors will be allowed to participate in the Market shall be in the categories as provided in Attachment “B” to this agreement. A non-certified vendor who is not among the categories listed in Attachment “B” is and are subject to the review and approval of the City prior to participation in the market.
Examples of items provided by non-certified vendors include baked goods, hot food, coffee/drinks, crafts, and more.
3. Time of Performance. Contractor shall, upon receipt of a fully signed copy of this Agreement, immediately begin and diligently pursue implementation of the services. This Agreement shall remain in effect through the March 285, 20263 season as specified above, unless the agreement is terminated before that time.
4. Independent Contractor Status. Contractor, including its agents, servants, and employees, is not an agent or employee of the City, but rather an independent contractor solely responsible for its acts and omissions, and this Agreement shall not be construed as an employment contract. The manner in which the Contractor performs this contract shall be left to the discretion of the Contractor.
5. No Conflict of Interest. Contractor represents that in the acceptance of this assignment there is not a conflict of interest. The Contractor warrants that it has no business relationship of any kind with any of the principals or officers of any of the proponents of the project or property which is the subject of this Agreement.
6. Costs of Enforcement. If legal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ and witness’ fees and all related costs.
7. Assignment Prohibited. Contractor may not assign the rights and duties under F.4.a
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Attachment: Farmers Market Contract 2023-26 DRAFT (3008 : New 3-Year Contract with Contra Costa Certified Farmers’ Market) -
2-
this Agreement without prior written authorization of the City with City having absolute discretion to allow and refuse to allow an assignment. The Contractor may not enter into any subcontract or subconsultant agreement with any other firm or person to perform any of the tasks agreed to be performed by the Contractor without the prior written authorization of the City. If authorization to assign the rights and duties under this agreement is given by the City, the Contractor shall provide to the City copies of each and every contract into which the contractor enters with subconsultants or subcontractors prior to the date that subcontractor contracts or subconsultant contracts are executed by the parties. Contractor shall be fully responsible to the City for all acts or omissions of any subconsultant or subcontractor.
8. Amendments. The City Manager may approve written amendments to the Agreement on behalf of the City. No change or waiver shall be valid unless in writing signed by an authorized representative of the City and the Contractor.
9. Indemnification Requirement. To the fullest extent allowed by law, Contractor shall defend, indemnify and hold harmless City, its officers, employees, agents and volunteers from any liability, claims, demands, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, damages, injuries, losses, expenses or costs of any kind, attorney fees incurred by City, court, mediation and arbitration costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation arising out of or in any way related to Contractor's performance of the work required by this agreement, except for the sole negligence or willful misconduct of the City. All obligations under this provision are to be paid by Contractor as incurred by City. The City shall have no obligation to defend or indemnify the Contractor.
10. Insurance Requirement. The Contractor shall obtain and maintain the following policies of insurance during the term of this Agreement. All policies must be with insurers possessing a Best's rating of no less than A+.
A. Workers’ Compensation Insurance and Employer’s Liability Insurance. Contractor shall provide Workers’ Compensation Insurance and Employer’s Liability Insurance for employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California for all of the subcontractor’s employees. Any notice of cancellation or non- renewal of all Workers’ Compensation policies must be received by the City at least thirty (30) days prior to such change. If Contractor has no employees, it shall provide a declaration under penalty of perjury to the City attesting to that fact.
B. Automobile Insurance.
Vendors and Agents. Contractor shall require all vendors and their agents to secure and maintain during the term of this Agreement vehicle insurance in an amount no less than the minimum required by State law. Contractor shall obtain certificates of insurance F.4.a
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evidencing the required vehicle insurance as a condition to permitting persons to participate in the Farmers’ Market.
Contractor's Employees and Agents. Furthermore, the program manager of Contractor and any other employee or agent of Contractor who in any way participates, monitors, organizes or performs as part of Contractor’s obligations under this contract shall likewise maintain during the term of this Agreement vehicle insurance covering their vehicles in an amount no less than the minimum required by State law. Contractor shall require insurance certificates for this insurance as a condition of such persons' participating in or performing under this Agreement.
C. Commercial General Liability Insurance. Contractor shall obtain and maintain Commercial General Liability Insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
11. City as Additional Insured. City and its officers, employees and agents shall be added as additional insureds for general liability and automobile liability coverage. Contractor's insurance company shall provide a blanket written endorsement of the City's additional insured status in the form shown on Attachment C, incorporated into this agreement by this reference. The City, its elected or appointed officers, officials, employees, agents and volunteers shall be covered as additional insureds. The contractor's policy shall be primary and non-contributory as to the City. The insurance provided by this policy shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days written notice has been received by the City and the City has given written consent to that change in insurance.
12. Evidence of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required by this agreement.
Certificates shall reflect that the insurer will unconditionally provide 30 days written notice of any cancellation of coverage. Certificates of such insurance and endorsements required under Sections 10 and 11 shall be filed with the City and are considered an integral part of this agreement, which shall not become effective until satisfactory evidence of insurance has been received by the City and all required City signatures have been executed.
13. Parking. Contractor shall attempt in good faith to monitor and correct illegal parking on the street or unauthorized parking in neighboring private lots to alleviate any parking problems. It is recognized Contractor may need assistance of the Police Department in deterring illegal parking.
14. Community Booth. Contractor will provide community booth space free of charge for non-profit organizations to distribute information and/or conduct outreach for non- profit purposes. Organizations are subject to approval by CCCFM and may apply via their F.4.a
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website www.cccfm.org.
15. Landscape Repairs. Contractor shall replace at its sole expense any landscaping at and around the site of the Farmer's Market damaged as a result of the Farmers’ Market
16. Truck Restriction. Contractor shall not allow trucks weighing over 6 tons or having more than 3 axles to enter the city’s parking lot, as the subsurface was not constructed to handle large trucks on a routine basis. Market vendors and staff may not park in parking on Orinda Way adjacent to the market and reserved for Community Center and library patrons.
Market vendors and staff who cannot park in their stall spaces should off-load market items and park trucks in the parking area on Irwin Way.
17. Location. The Farmer's Market will be located on Orinda Way, which will be closed to traffic during market hours. The City shall have the right and the sole discretion to move or expand the location of the Farmer's Market to an alternative location. The City shall give Contractor 6 months notice of a change in location.
18. Facilities and Services. The City shall provide the following facilities and services:
A. The space designated by the City as provided in section 14 may be used for the Market vendors during the hours of operation for the Farmers’ Market and twoone hours before and one hour after.
B. City shall provide a small outside storage area for traffic cones and miscellaneous equipment. City shall not be responsible for any articles lost or stolen from this area.
C. City shall issue an encroachment permit. No fee is required.
D. On the day of the event the Contractor will place five temporary signs at locations to be determined by the City in order to advertise the Farmers' Market.
19. Information Booth. The City may staff an information booth contiguous to the Market.
20. Authority. The Contractor warrants that the person who signs this document has the full authority to do so, and that person's signature shall bind the Contractor to each and every term and condition of this agreement.
21. Effect. This Agreement, and each of its terms and conditions, shall inure to the benefit of, and be binding upon the heirs, successors, executors, and assigns of the parties to the contract.
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22. Termination. Upon 30 days advance written notice, the City or Contractor may terminate this Agreement with or without cause.
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23. Notices. All notices required to be given pursuant to this Agreement shall be addressed as follows:
If to City: City of Orinda
22 Orinda Way
Orinda, CA 94563
Attn: City Manager
If to Contractor: Contra Costa Certified Farmers’ Market, Inc. 1155C Arnold Drive #276
Martinez, CA 94553
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed on the day first written above. CONTRA COSTA CERTIFIED FARMERS’ MARKET, INC.
By:________________________________
Executive Director
CITY OF ORINDA
A Municipal Corporation
__________________________________
David BiggsSteve Salomon, City Manager
Date:______________________________ Date:______________________________ APPROVED AS TO FORM:
___________________________________
Osa Wolff, City Attorney
Date:______________________________
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Attachment: Farmers Market Contract 2023-26 DRAFT (3008 : New 3-Year Contract with Contra Costa Certified Farmers’ Market) -
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ATTACHMENT A
CONTRACTOR SCOPE OF SERVICES:
A. Contractor’s Board of Directors will establish stall fees and association membership fees.
B. The executive director and market manager will be employees of the Contractor and will be under direct supervision of the Contractor’s Board of Directors.
C. The executive director and the market manager are the liaisons to the City.
The executive director responsibilities include:
1. Periodic meetings with City staff, especially during start-up operations.
2. Promotions which will include mailers, newspaper ads and articles in various publications. All start-up promotions and advertising shall include general City of Orinda promotion.
3. Arrange for opening day special events and musicians and/or other entertainers. Work cooperatively with the City to modify market operations, as needed to minimize concerns of affected neighbors.
Assure that all signage, banners, and advertising are approved by the City of Orinda. The City will make every effort to provide a prompt response time.
4. Make necessary arrangements with the Health Department, as necessary, in addition to attempting to assure that at least 50% of product for sale at the Orinda market consists of agricultural products.
D. A trained on-site market manager will be at each scheduled market.
His/her responsibilities shall include:
1. Recruit and endeavor to maintain at least 20 growers as well as recruiting and screening additional non-certified participants. Selection of non-certified vendors will be conditioned on the needs of the market, consumer demands and qualifications, with adequate consideration to the business community.
2. Reporting any problems or concerns regarding Market operations to City staff at the earliest opportunity.
3. Making certain that at the end of each market day the site is left clean of all trash and debris. Trash and debris shall be placed in appropriate receptacles. All vendors are required to remove all trash/debris from their stall area.
4. Contractor is responsible for all garbage, trash, and recyclable materials associated with the Farmers’ Market. Use of the City dumpster at the Community F.4.a
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Center/Library shall be available for the Farmers’ Market use of disposing customer trash and recyclables.
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Attachment: Farmers Market Contract 2023-26 DRAFT (3008 : New 3-Year Contract with Contra Costa Certified Farmers’ Market) -9-
ATTACHMENT B
ACCEPTABLE CATEGORIES OF NON-CERTIFIED VENDORS:
Non-Certified Producers shall include but not be limited to bakers, hot food, knife sharpening, coffee/drinks, dips, sauces/mustards, jams, pasta, sausages, olive oil, popcorn, chocolates, textiles, fish and shellfish, and crafts.
The market may also from time to time invite participants such as business sponsors and entertainers.
Any non-certified vendor who does not fall within the categories listed above is subject to the review and approval of the City prior participation in the marKET
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Attachment: Farmers Market Contract 2023-26 DRAFT (3008 : New 3-Year Contract with Contra Costa Certified Farmers’ Market) -10
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ATTACHMENTBC
ADDITIONAL INSURED ENDORSEMENT
____________________________________ (insurance company) agrees that:
a. The City of Orinda, its elected or appointed officers, officials, employees, agents and volunteers are covered as additional insureds with respect to claims or liability arising out of Contractor’s operation of a Farmers’ Market, including services, materials, parts or equipment furnished by City or others in connection with Contractor’s operation of a Farmers’ Market. b. This policy shall be considered primary insurance as to the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not be required to contribute to a loss. c. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insurer. d. The insurer waives all rights of subrogation against the city, its elected or appointed officers, officials, employees or agent.
e. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents and volunteers.
f. The insurance provided by this policy shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty days written notice has been received by City.
Date:
Company
By: Its Authorized Representative
Address
City
Telephone Number
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Attachment: Market Location (3008 : New 3-Year Contract with Contra Costa Certified Farmers’ Market) City Council
Staff Report
Agenda Item: F.5
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Reaffirming proclamation of the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms RECOMMENDATION:
Staff recommends that the City Council adopt Resolution 11-23 BACKGROUND:
At its January 17, 2023 meeting, City Council adopted Resolution 05-23, proclaiming the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms, which began on or around December 27, 2022. The following significant damage occurred to public property, which requires immediate response and/or repair:
1. Sinkhole at bike lane fronting 190 Moraga Way – interim repairs completed.
2. Shoulder/road edge failure near 57 Tarry Ln. – lane closure in effect. Repair options being evaluated
3. Landslide at 14 Cedar Ln (potential road impacts).
4. Sinkhole/48” storm drain pipe failure in city easement at 7 North Ln. Repair options being evaluated
5. Damaged 72” storm drain pipe under Miner Rd. south of Camino Don Miguel
6. City buildings – water intrusion. Impacts to Community Center and City Hall.
DISCUSSION:
The response and repair costs of some or all of the above locations may exceed the $60,000 threshold for soliciting bids, which would likely delay the repairs in an unacceptable manner. Staff believes the ability to negotiate contracts is necessary in this emergency situation and therefore recommends continuing said proclamation which allows for a waiver of the normal public works bidding requirements. To be in conformance with the declaration of emergency and for the purpose of complying with the waiver of the Public Contracting Code, Section 22050, the Council needs to evaluate and reaffirm the need for the emergency declaration (by an updated resolution) at each of its subsequent regularly scheduled meetings.
NEXT STEPS:
Staff and city consultants and contractors have performed certain cleanup work and repairs to the extent possible and continue to work expeditiously to evaluate and plan necessary additional repair or corrective work.
Staff also intends to propose reaffirming said proclamation at the next regularly scheduled city council meeting, which is necessary if waiver to of the Public Contracting Code, as discussed above, continues to be warranted.
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FISCAL IMPACT:
It is estimated that cost to date for cleanup and repair activities for all of the public facilities (including the specific significant locations noted above) is approximately $160,000. This includes contractors, consultants and overtime for city staff. Total cost estimate, for complete repairs is roughly estimated to be $ 1.5 million. The extent of funding through reimbursement programs (OES of FEMA) is not known at this time.
Furthermore, the timing of when complete repairs are necessary has not been determined, and would be affected by available funding sources.
ATTACHMENTS:
A. Resolution 11-23 Emergency Resolution Continued 2022-23 Storms revised Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Scott Christie, Public Works Director
Approved by:
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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of:
Resolution of the City Council )
of the City of Orinda Reaffirming )
Proclaiming the Existence of a Local ) Resolution No. 11-23 State of Emergency with Respect to )
the Continuing 2022-23 Winter Storms )
WHEREAS, Section 2.32.090 of the Orinda Municipal Code, empowers the City Manager/Director of Emergency Services to proclaim the existence or threatened existence of a local state of emergency when the City is affected by a public calamity; and
WHEREAS, a series of severe winter rainstorms began in northern California, bringing high winds and significant amounts of precipitation in Contra Costa County starting on or about December 27, 2022, and are continuing; and WHEREAS, the rainstorms have resulted in flooding and earth movement, which has endangered public health and safety and presented a hazard to the members of the community, private property, and public infrastructure; and WHEREAS, during and/or immediately following the rainstorms, there have been a variety of impacts to the City’s buildings, roadway network, storm drains and culverts, and earth movement has occurred: and
WHEREAS, it is expected that mitigating and repairing the damages caused to public infrastructure, including the storm drain and roadway system, may be complex and costly; and
WHEREAS, the events and damages arising from the emergency are not contemplated in the City of Orinda’s Capital Improvement Budget and may be beyond the City’s ability to restore infrastructure without compromising other priorities; and WHEREAS, the City Manager issued a Proclamation on January 6, 2023, declaring a local emergency; and
WHEREAS, a sink hole occurred on January 16, 2023, as a result of the major storms and which threatens to undermine a portion of Moraga Way north of Brookside Road necessitating emergency repairs, and due to concerns for continuing storm impacts the City Manager issued a new Emergency Proclamation on January 17, 2023, declaring a local emergency; and
WHEREAS, since the Emergency Proclamation on January 17, 2023, additional significant damages occurred, including:
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Attachment: Resolution 11-23 Emergency Resolution Continued 2022-23 Storms revised (3021 : reaffirm emergency dec) • Shoulder/road edge failure near 57 Tarry Ln.
• Landslide at 14 Cedar Ln (potential road edge impacts). • Sinkhole/48” storm drain pipe failure in city easement at 7 North Ln. • City buildings – water intrusion. Impacts to Community Center and City Hall. • Damaged 72” storm drain pipe under Miner Rd. south of Camino Don Miguel WHEREAS, at its regular meeting on January 17, 2023 the City Council adopted Resolution 05-23, proclaiming the Existence of a Local State of Emergency with Respect to the Continuing 2022-23 Winter Storms; and
WHEREAS, the City Council does hereby find that conditions of extreme peril to the safety of persons and property have arisen within the City of Orinda, as a result of the severe rainstorms and flooding, commencing on or about December 27, 2022; and WHEREAS, the City Council does hereby find that the City must repair or replace public facilities, take directly related and immediate action required by the emergency, and procure the necessary equipment, services, and supplies for those purposes, without giving notice for bids to let contracts; and
WHEREAS, the aforesaid conditions of extreme peril warrant and necessitate the proclamation of the existence of a local state of emergency.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORINDA, DOES HEREBY PROCLAIM AND ORDER:
Section 1. That a local state of emergency now exists throughout the City.
Section 2. That during the existence of said local state of emergency, the powers, functions, and duties of the City Manager and the Emergency Services System of the City shall be those prescribed by State Law, by Ordinances and Resolutions of the City, and by the City of Orinda Emergency Operations Plan.
Section 3. That said local state of emergency shall be deemed to continue to exist until its termination is proclaimed by the City Council, and until such time, the City Council shall review, at regularly scheduled Council meetings until the local emergency is terminated, the need for continuing the local emergency.
Section 4. That City staff is hereby authorized and directed to take any action that may be necessary or convenient to assist in obtaining federal, state or regional disaster / emergency relief funding.
Section 5. That the City Manager or his/her designee is hereby designated as the authorized representative of the City of Orinda for the purpose of receipt, processing and coordination of all inquiries and requirements necessary to obtain county, state or federal relief assistance.
Section 6. The City Clerk shall forward a copy of this resolution to the Governor, to the California Office of Emergency Services, to the Contra Costa County Emergency F.5.a
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Attachment: Resolution 11-23 Emergency Resolution Continued 2022-23 Storms revised (3021 : reaffirm emergency dec) Services Division, and to all other appropriate county, state and federal agencies with an interest therein.
Section 7. City staff is hereby authorized and directed to take any and all actions that they or the City Attorney may deem necessary or advisable in order to respond to and repair storm damage to effectuate the purpose and intent of this Resolution.
Section 8. That time is of the essence to protect public safety and to facilitate response to the immediate peril.
Section 9. That pursuant to Section 22050 of the Public Contract Code, the City Council finds that the requirement for competitive bidding must be waived to facilitate the necessary repairs. The emergency will not permit a delay resulting from a competitive solicitation for bids and this action is necessary to respond to the emergency.
Section 10. The City is undertaking to implement the repairs as expeditiously as possible.
Section 11. The actions authorized by the Council are exempt from the requirements of the California Environmental Quality Act (CEQA) under CEQA Guideline sections 15302 (Replacement or Reconstruction) and 15269 (Emergency Projects).
Section 12. This Resolution shall take effect immediately upon its adoption.
The above and foregoing Resolution was passed and adopted at a regular meeting of the City Council of the City of Orinda held on February 7, 2023 by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
______________________
Inga Miller, Mayor
ATTEST:
____________________________
Sheri Marie Smith, City Clerk
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Attachment: Resolution 11-23 Emergency Resolution Continued 2022-23 Storms revised (3021 : reaffirm emergency dec) City Council
Staff Report
Agenda Item: F.6
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Authorization to Execute Fund Exchange Agreement No. 628 with the Contra Costa Transportation Authority (Authority) for State SB1 Local Partnership Program Formulaic (LPP-F)
RECOMMENDATION:
Staff recommends authorizing said Agreement and to allow the City Manager or designee to make any non-substantive changes to the language.
BACKGROUND:
The City and Authority are eligible recipients of Senate Bill 1 (SB1) Local Partnership Program Formulaic (LPP-F) funds. The City typically is allocated $200,000 per fiscal year in LPP funds, which are utilized for road pavement projects on a reimbursable basis. (A separate staff report requests nomination to the California Transportation Commission (CTC) of the 2023 annual paving project for the LPP-F funding and approval of the project street list.)
The City also receives Measure J funds for Local Streets Maintenance & Improvement, Programs 11 and 23 (Measure J return-to-source), upon compliance with the Measure J Growth Management Program (GMP).
The City LPP funds do not have a restriction of a required local match. However the Authority’s LPP funds require a one-to-one local match which results in them not being able to utilize the funding in the required timelines. Therefore, the Authority reached out to City Staff to explore the viability of exchanging some of the Authority’s available LPP funds for Measure J return-to-source (RTS) funds (City Fund #330), at a 10% discount to compensate for the resultant administrative work. The administrative work includes programming requests to CTC for use of LPP funding, submittal of contract award documents and reimbursement requests to MTC and Caltrans (as administrator for CTC), and reporting expenditures to CTC.
DISCUSSION:
Staff determined that $2,000,000 of said LPP funds could be successfully utilized in upcoming annual paving projects and is able to meet the required one-to-one local match. The City and Authority will both benefit from programming $2 million of the Authority’s share of LPP-F funds to the City’s Project in exchange for retaining $1.8 million in future City Measure J RTS funds. The Authority will be able to augment its Fund Exchange Reserve (FER) by $1.8 million, which can be used to address cost increases or provide matching funds for future grant applications. On the other hand, the City will be able to accelerate future funding without the need to issue bonds or pay interest.
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The City would obtain such funding at a 10% discount, since repayment of the $2.0 million of the Authority’s LPP funds would be with only $1.8 million of Measure J returnto-source funds. Furthermore, the repayment would be deferred by the Authority retaining $1.8 million in future City RTS Measure J funds per the schedule shown in the proposed Agreement (Attachment A), which would not start until FY 2024-25. The expected future RTS funds are approximately $600,000 per year.
NEXT STEPS:
Subject to approval of this agreement by the City and the Authority, we plan to utilize $1 million of the exchanged Authority’s additional LPP funding for the 2023 annual paving project and will submit necessary programming requests to the CTC. The remaining $1 million will be applied over the following two years’ worth of paving projects. The funding exchange will allow the city a higher annual budget for the next three years of paving, which reduces the chance of deferring pavement maintenance plans due to inflation, as was seen in the 2022 project.
FISCAL IMPACT:
$2 million of the Authority’s share of LPP-F funds will be available beginning in FY 23/24 in exchange for retaining $1.8 million in future City Measure J RTS funds, beginning in FY 24/25 and continuing for two more years, as shown in the repayment schedule (Appendix A of the Agreement). The net impact of funding exchange is $200,000 in additional road funding.
ATTACHMENTS:
A. Draft Agreement CCTA and City of Orinda, No. 628
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Scott Christie, Public Works Director
Approved by:
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Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
FUND EXCHANGE AGREEMENT
AGREEMENT NO. 628
BETWEEN
THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND
CITY OF ORINDA
FOR
EXCHANGE OF LOCAL PARTNERSHIP PROGRAM FORMULAIC FUNDS
This Agreement No. 628 (Agreement) is entered into on the 15th day of February 2023 between the Contra Costa Transportation Authority (Authority) and City of Orinda (City). Authority and City may be referred to as a “Party” or collectively as “Parties.”
RECITALS
(1) Parties are interested in completing a fund exchange between the Authority’s Senate Bill 1 (SB1) – Local Partnership Program Formulaic (LPP-F) funds and the City’s Measure J funds for Local Streets Maintenance & Improvements, Programs 11 and 23, also known as Return to Source funds (Measure J funds) upon compliance with Measure J Growth Management Program (GMP) as determined by the Authority. (2) The Parties receive SB1 – LPP-F funds each year for programming by the California Transportation Commission (CTC).
(3) CTC guidelines for SB1 – LPP-F funds require one to one match and provide limited flexibility for the Authority to program funds for ongoing projects. (4) The City plans to program its share of SB1 – LPP-F funds for its Citywide Street Maintenance & Rehabilitation Project (PROJECT).
(5) The Authority’s share of SB1 – LPP-F funds in Fiscal Year (FY) 2023-24 and FY 2024-25 totals $4.98 million.
(6) The City’s share of SB1 – LPP-F funds in FY 2023-24 and FY 2024-25 totals $400,000. (7) The City’s share of Measure J funds is approximately $500,000 per year. (8) The Authority wishes to exchange its share of SB1 – LPP-F funds for the City’s Measure J funds at a discount rate of 10% to overcome LPP-F funds restrictions and requirements, which prohibits the Authority from using to address cost increases on ongoing projects
ATTACHMENT A
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
or starting new projects that do not have the one to one required match. (9) The Authority and City desire to proceed with the fund exchange agreement immediately to maximize the benefits to both Parties.
Now, therefore, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows:
SECTION I
AUTHORITY AGREES:
(1) To perform such actions necessary to program $2 million of the Authority’s SB1 – LPP-F funds share to the City’s Project.
(2) To retain the City’s Measure J funds starting in FY 2023-242024-25 until $1.8 million is repaid.
(3) To deposit retained City Measure J funds in the Authority’s Fund Exchange Reserve.
SECTION II
CITY AGREES:
(1) To indemnify, defend and hold harmless the Authority, its Commissioners, directors, officers, representatives, agents, employees, contractors and volunteers from and against all claims, injury, suits, demands, liability, losses, damages, and expenses, whether direct or indirect (including any and all costs and expenses in connection therewith), incurred by reason of any third party challenge to this Agreement or any act or failure to act of the City, its officers, employees or agents, or subcontractors or any of them in connection with its performance of the Project under this Agreement. (2) Following the programming of $2 million in Authority SB1 – LPP-F funds for the Project by CTC, to reassign to the Authority $1.8 million in City Measure J funds starting in FY 2023-242024-25 according to the schedule in Exhibit A, attached herein. (3) If the City is found to be non-compliant with Measure J GMP funds in FY 2023-242024- 25 and beyond, the City will deposit with Authority local funds in an equivalent amount of Measure J funds until the $1.8 million is paid. Payments shall be made no later than one year from the date the City was determined to be non-compliant.
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
SECTION III
IT IS MUTUALLY AGREED:
(1) The term of this Agreement shall commence on March 1, 2023. This Agreement shall terminate when the full $1.8 million in Measure J funds is retained by the Authority or repaid by the City from other funding sources.
(2) Nothing in this Agreement shall preclude the City from making payments, in lieu of the reassigned Measure J funds.
(3) This Agreement shall bind and benefit the Parties hereto and their heirs, successors, and permitted assigns.
(4) The Parties agree to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of the Agreement. (5) This Agreement may not be changed, modified or rescinded except in writing, signed by all Parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.
(6) All required orpermitted payments,reports, demands and notices may be sent by regular mail or electronic mail. Noticesthat are mailed by regular mail shall be deemed delivered two business days after deposited in the mail. Notices maybe personally delivered and shall be deemed delivered at the time delivered to the appropriate address set forth below. Notices delivered by electronic mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return electronic mail or other written acknowledgment of receipt); provided that, if such notice is not sent during normal business hours of the recipient, such notice shall be deemed to have been sent at the opening of business on the next business day of the recipient. Unless and until notified otherwise in writing, a Party shallsend or deliver allsuch communicationsrelating to this Agreement to the following addresses:
AUTHORITY: CITY:
Contra Costa Transportation Authority City of Orinda
2999 Oak Road, Suite 100 22 Orinda Way
Walnut Creek, CA 94597 Orinda, CA 94563
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
Attn: Hisham Noeimi, Director, Programming Attn: Scott Christie (7) This Agreement is the entire agreement between the Parties relating to the subject matter of this Agreement. The Parties acknowledge they have not relied upon any promise, representation or warranty not expressly set forth in this Agreement in executing this Agreement.
(8) Should any part of this Agreement be declared unconstitutional, invalid, or beyond the authority of the Parties to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect; provided that the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the Parties. (9) No waiver by either Party of any default or breach of any covenant by the other Party shall be implied from any omission to take action on account of such default if such default persists or is repeated and no express waiver shall affect any default other than the defaultspecified in such waiver and then such waiver shall be operative only for the time and to the extentstated in such waiver. Waivers of any covenant, term or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. No waiver of any provision under this Agreement shall be effective unless in writing and signed by the waiving Party. (10) The laws of the State of California shall govern all questions with respect to the construction of this Agreement and the rights and liability of the Parties. (11) The Parties represent and warrant that they are authorized to execute this Agreement. (12) This Agreement may be executed in counterparts.
[Signatures on Next Page]
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
SIGNATURE PAGE FOR FUND EXCHANGE AGEREMENT NO. 628
BETWEEN THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND CITY OF ORINDA
IN WITNESS WHEREOF, the Parties have entered into this Agreement No. 628 as of the 15th day of February, 2023.
CONTRA COSTA TRANSPORTATION CITY OF ORINDA
AUTHORITY
By: By:
Chris Kelley David Biggs
Chair City Manager
ATTEST:
By: By:
Tarienne Grover Sheri Smith
Clerk of the Board City Clerk
APPROVED AS TO FORM AND LEGALITY:
By: By:
Fennemore Wendel Osa Wolff
Authority Counsel City Attorney
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) Agreement No. 628
City of Orinda
Executed: February 15, 2023
Commence: March 1, 2023
Appendix A
Estimated Repayment Schedule*
City of Orinda Measure J funds (Programs 11 and 23)
Fiscal Year Program 11 Program 23 SUM
2022-23 - - -
2023-24 503,6540 66,2060 569,8600
2024-25 520,317 68,397 588,714
2025-26 537,566 70,664 608,230
2026-27 33,196555,423 -47,633 33,196603,056
SUM $1,800,000
*Amountsshown are estimates based on the revenue projections in the 2022 Measure J Strategic Plan. Actual amounts will be based on final sales tax amounts collected in each fiscal year.
Formatted Table
Formatted: Font color: Text 1
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Attachment: Draft Agreement CCTA and City of Orinda, No. 628 (3019 : Agreement wtih CCTA re LPP) City Council
Staff Report
Agenda Item: F.7
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Contract Acceptance of the Lavenida Culvert Repair Project No. 4148 with Valentine Corporation.
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No.04-23 Acceptance of Work for the Lavenida Culvert Repair Project No. 4148 with Valentine Corporation and authorize filing a Notice of Completion
BACKGROUND: On May 3, 2022, the City Council awarded a construction contract to Valentine Corporation of San Rafael, California in the amount of $619,369 for performance of the Lavenida Culvert Repair Project No. 4148 and authorized a 15% contingency fund for a total construction budget of $712,274. The Contractor entered into a construction contract with the City subsequent to review and approval by the City Attorney.
A Notice to Proceed was issued to the Contractor on July 5, 2022, with all performance to be accomplished within 50 working days. The project was completed within the required number of working days and no liquidated damages were assessed to the Contractor upon substantial completion of the project.
DISCUSSION: During excavation operations it was found that unsatisfactory subgrade conditions existed adjacent to 14 Lavenida Dr. which impacted construction of the culvert headwall and a large (36” diameter) redwood tree. To correct the condition additional work was required, including subgrade removal and replacement, and removal of the tree. On August 16, 2022 City Council approved additional contingency ($31,000) to make progress on the project. Subsequent to that date additional unexpected conditions were encountered which required extra work, which was authorized by City Council on October 11, 2023.
Work in the creek was completed on or around October 26, 2022 (after obtaining necessary extension from the nominal creek work deadline of October 15 as set by the regulatory agencies (State DFW and State Water Board).
During the course of construction, three (3) Contract Change Orders (CCOs) were incorporated into the project. The combination of these CCOs and quantity adjustments to the bid items, resulted in increased cost of $162,409.
NEXT STEPS: Upon City Council approval, the City Engineer will sign the Notice of Completion and the City Clerk will record it with the Contra Costa County ClerkF.7 Packet Pg. 91
Recorder’s Office. Contract retention (5% of contract costs) will be released to Valentine Corporation thirty-five (35) days after recordation of the Certificate of Completion, provided that no stop notices are outstanding.
FISCAL IMPACT: The following is a summary of the construction contract costs:
Authorized Contract Value
Original Base Bid $ 619,369
Contingency at Award (15%) 92,905
Additional contingency (5%), CC 8/16/22 31,000
Additional contingency, CC 8/16/22 80,000
Total Authorized Contract $ 823,274
Actual Cost
Base Project Costs $ 619,369
Change Orders #1 - #3 $ 162,409
__________
Total Final Contract $ 781,778.
Amount of unused contingency: $ 41,496
The surplus funding of $41,496 will be made available in fund balances for future projects.
ATTACHMENTS:
A. Resolution 04-23 Acceptance of Lavenida Culvert Project CIP 4148 B. NOC, Contract #4148
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Scott Christie, Public Works Director
Approved by:
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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of:
Acceptance of Work for the Lavenida
Culvert Project CIP No. 4148, in the City
of Orinda and Authorizing the City Clerk
to sign and file the Notice of Completion
with the Contra Costa County ClerkRecorder
)
) Resolution No. 04-23
)
)
)
)
)
)
WHEREAS, Valentine Corporation, has completed the work in accordance with the construction contract documents for the Lavenida Culvert Project, CIP Project Numbers 4148; and
WHEREAS, the Director of Public Works has recommended that the work be accepted as complete.
NOW THEREFORE BE IT RESOLVED that the work accomplished by Valentine Corporation, under the terms and conditions of the above-referenced construction contract documents is hereby accepted.
BE IT FURTHER RESOLVED that the City Clerk is hereby authorized to sign and file the Certificate of Completion with the Contra Costa County Clerk-Recorder.
BE IT FURTHER RESOLVED that the Director of Finance is hereby authorized to release all withheld project retention thirty-five (35) days after recordation of the Certificate of Completion, provided that no stop notices are outstanding.
Adopted by the City Council of the City of Orinda at a regular meeting on February 7, 2023, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
Inga Miller, Mayor
ATTEST:
Sheri M. Smith, City Clerk
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Attachment: Resolution 04-23 Acceptance of Lavenida Culvert Project CIP 4148 (3016 : accept Lavenida culvert contract) WHEN RECORDED, RETURN TO:
City Clerk/Public Works Dept.
City of Orinda
22 Orinda Way
Orinda, CA 94563
NO FEE DOCUMENT
(Government Code section 27383)
TITLE:
Notice of Completion for
Lavenida Culvert Repair Project, City Project No. 4148
(Contractor: Valentine Corporation.)
NOTICE IS HEREBY GIVEN by the undersigned, those certain improvements, to wit:
Lavenida Culvert Repair Project No 4148, on Lavenida Dr. in Orinda.
Project location is in the City of Orinda, Contra Costa County, California:
Property Owner: Interest in Property or Right of Way is owned by City of Orinda (a municipal corporation, 22 Orinda Way, Orinda CA 94563) as right-of-way.
The contract which has heretofore been let to Valentine Corporation, and which contract was filed for record in the City Clerk’s office in the City of Orinda, Contra Costa County, California, was completed in accordance with the plans and specifications, and the work was completed and accepted by the City of Orinda, on 2/7/2023
Information pertaining to the estimate of cost, names of bidders with prices bid, changes in adopted and approved plans and specifications, and the total cost of work is on file at the City Clerks’ office of the City of Orinda.
CITY OF ORINDA,
a municipal corporation
Date: ________________ By: ____________________________________ Sivakumar Natarajan, City Engineer
City of Orinda
22 Orinda Way
Orinda, CA 94563
I hereby certify, under penalty of perjury, that the above Notice of Completion was duly accepted by the City Council of the City of Orinda at a regular meeting thereof held on 2/7/2023. ______________________________
Sheri Smith, City Clerk
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Attachment: NOC, Contract #4148 (3016 : accept Lavenida culvert contract) City Council
Staff Report
Agenda Item: F.8
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Authorize Contract Amendment No. 2 with CSG Consultants, Inc. for On-Call Construction Management Services
RECOMMENDATION:
Staff recommends that the City Council review Contract Amendment No. 2 for CSG Consultants, Inc to extend the on-call contract for Construction Management services and authorize the City Manager and City Clerk to execute the Contract Amendment, subject to approval as to form by the City Attorney. The amendment will increase the maximum on-call contract amount to $150,000.
BACKGROUND: California law requires that selection by a local public agency of private professional services (such as architectural, engineering, environmental, land surveying, or construction project management) shall be on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required. Local agencies shall not review or negotiate a cost proposal until after the final qualification determination has been made. The contract shall be negotiated with a qualified firm, at a price determined to be fair and reasonable to the local agency. City staff followed this process in the selection of the consulting firms.
The City is involved in projects ranging in size which require various on-call professional services such as land surveying, civil engineering, structural engineering, and transportation/traffic engineering. These on-call consultants have specialized skills beyond the scope of City staff and will augment staff on an as-needed basis. Due to limited Staff time, they will be used when extra help is needed or when in-house expertise is not available. On-call contracts will allow staff to mobilize professional services quickly. This is especially helpful for small or urgent tasks.
In June 30, 2019 the City entered into an on-call civil engineering services contract with CSG Consultants, Inc. (Attachment A). The scope of on-call needs were not specifically defined and a maximum contract limit was established at $25,000. The Agreement had an original termination date of June 30, 2021.
On August 9, 2022, the City Manager approved Amendment No. 1 to the subject contract, which increased the maximum cost under the agreement to $60,000 and extended the time of performance to June 30, 2023. This reflected the expected level of services as part of the regular construction management for various projects.
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DISCUSSION: The actual construction management services provided has exceeded the previous estimate when Amendment #1 was executed. This results in a need to present an Amendment in order to align the service needs with the approved agreement.
In order to continue the services provided by CSG it is necessary to increase the value of the agreement as CSG has performed their work in an effective manner. An adjustment to the maximum contract value under the agreement is recommended as part of Amendment No. 2. The nature of the services being provided are construction management. The actual level of services will fluctuate with number of projects under construction. Based on the work undertaken in the Current Fiscal Year 2022/2023, it is recommended that the contract limit stated in Amendment No. 2 be increased by $90,000. This will result in an amended total contract limit of $150,000. The actual Task order values will depend on time and materials and will be based on the extent of services required.
NEXT STEPS:
Upon City Council authorization, Contract Amendment No. 2 (Attachment B) will be sent to the consultant firms for signature, then forwarded to the City Clerk for processing and approval by the City Manager and City Attorney.
FISCAL IMPACT:
The expenditures under this agreement are budgeted as a General Fund Engineering expense. However, a portion of expenses to the contracts will be budgeted under specific projects. Currently no budget change is required.
ATTACHMENTS:
A. CSG Signed CM
B. Amendment No 2 CSG
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Farah Khorashadi, Paving Program Project Manager Approved by:
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F.8
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Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 99
Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 100 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 101 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 102 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 103 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 104 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 105 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 106 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) F.8.a
Packet Pg. 107 Attachment: CSG Signed CM (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) 1 CITY OF ORINDA
AMENDMENT No. 2 TO SERVICES CONTRACT
CSG Consultants, Inc. (“Provider”) and the City of Orinda (“City”), a municipal corporation, previously entered into a contract with an effective date of June 30, 2019 relating to a professional services contract for on-call construction management services. Section 18 of that agreement provides that “No waiver, modification or termination of this agreement is valid unless made in writing.”
City and Provider mutually agree to amend the agreement as follows:
1. Replace Section 4.a “Compensation” as follows:
a. City agrees to pay Provider at the rates described in Exhibit A, not to exceed a maximum contract price of $150,000 for all services performed under this agreement.
In all other respects, the agreement shall remain unchanged and in full force and effect.
City of Orinda
__________________________________
City Manager Date
Attest
___________________________________
City Clerk
Approved as to form
___________________________________
City Attorney
CSG Consultants, Inc.
__________________________________
Date
__________________________________
Printed Title
__________________________________
Printed Name
F.8.b
Packet Pg. 108 Attachment: Amendment No 2 CSG (3015 : Contract Amendment No. 2 Between the City of Orinda and CSG Consultants, Ic.) City Council
Staff Report
Agenda Item: F.9
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Contract Acceptance of the Camino Sobrante Retaining Wall Replacement Project No. 4152 with E.E. Gilbert Construction, Inc.
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No.10-23 Acceptance of Work for the Camino Sobrante Retaining Wall Replacement Project No. 4152 with E.E Gilbert Construction, Inc. and authorize the City Clerk to sign and file the Notice of Completion with the Contra Costa County Clerk-Recorder.
BACKGROUND:
On July 12, 2022, the City Council awarded a construction contract to E.E. Gilbert Construction, Inc. of Martinez, California in the amount of $700,378 for performance of the Camino Sobrante Retaining Wall Replacement Project No. 4152 and authorized a 15% contingency fund for a total construction budget of $805,435. The Contractor entered into a construction contract with the City subsequent to review and approval by the City Attorney.
A Notice to Proceed was issued to the Contractor on October 7, 2022, with all performance to be accomplished within 75 working days. The project was completed within the required number of working days and no liquidated damages were assessed to the Contractor upon substantial completion of the project.
DISCUSSION:
During the course of construction/excavation, the contractor encountered unforeseen larger size rocks. This required utilizing different drilling machines and additional labor to complete the drilling operation, resulting in one change order issued in the amount of $19,834 to compensate the contractor for the labor and equipment.
NEXT STEPS: Upon City Council approval, the City Engineer will sign the Notice of Completion and the City Clerk will record it with the Contra Costa County ClerkRecorder’s Office. The 5% withheld retention will be paid to E.E. Gilbert Construction Inc. thirty-five (35) days after recordation of the Certificate of Completion, provided that no stop notices are outstanding.
FISCAL IMPACT:
The following is a summary of the project construction / improvement costs:
Authorized Cost Based On Award Plus Contingency
Original Base Bid = $ 700,378
Contingency 105,057
Total Authorized Contract $ 805,435
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Actual Costs At Close-out
Base Project Costs $ 700,378
Change Order #1 19,834
___________
Total Final Contract $ 720,212
Net funding surplus $ 85,223
The surplus funding of $85,223 will be made available in fund balances for future projects.
ATTACHMENTS:
A. Resolution 10-23 Acceptance of Camino Sobrante Retaining Wall Replacement CIP4152 B. NOC
Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Farah Khorashadi, Paving Program Project Manager Approved by:
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BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
In the Matter of:
Acceptance of Work for the Camino
Sobrante Retaining Wall Replacement
Project CIP No. 4152, in the City of
Orinda and Authorizing the City Clerk to
sign and file the Certificate of
Completion with the Contra Costa
County Clerk-Recorder
)
) Resolution No. 10-23
)
)
)
)
)
)
WHEREAS, E.E. Gilbert Construction, Inc., has completed the work in accordance with the construction contract documents for the Camino Sobrante Retaining Wall Replacement Project, CIP 4152; and
WHEREAS, the Director of Public Works has recommended that the work be accepted as complete.
NOW THEREFORE BE IT RESOLVED that the work accomplished by E.E.
Gilbert Construction, Inc., under the terms and conditions of the above-referenced construction contract documents is hereby accepted.
BE IT FURTHER RESOLVED that the City Clerk is hereby authorized to sign and file the Certificate of Completion with the Contra Costa County Clerk-Recorder.
BE IT FURTHER RESOLVED that the Director of Finance is hereby authorized to release all withheld project retention thirty-five (35) days after recordation of the Certificate of Completion, provided that no stop notices are outstanding.
Adopted by the City Council of the City of Orinda at a regular meeting on February 7, 2023, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
Inga Miller, Mayor
ATTEST:
Sheri M. Smith, City Clerk
F.9.a
Packet Pg. 111 Attachment: Resolution 10-23 Acceptance of Camino Sobrante Retaining Wall Replacement CIP-4152 (3009 : Acceptance of Camino Sobrante
RECORDING REQUESTED BY AND
WHEN RECORDED, RETURN TO:
City Clerk/Public Works Dept.
City of Orinda
22 Orinda Way
Orinda, CA 94563
NO FEE DOCUMENT
(Government Code section 27383)
TITLE:
Notice of Completion for
Camino Sobrante Retaining Wall Replacement Project, City Project No. 4152 (Contractor: E.E. Gilbert Construction, Inc.)
NOTICE IS HEREBY GIVEN by the undersigned, those certain improvements, to wit:
Camino Sobrante Retaining Wall Replacement Project No 4152 Project location is in the City of Orinda, Contra Costa County, California:
Property Owner: Interest in Property or Right of Way is owned by City of Orinda (a municipal corporation, 22 Orinda Way, Orinda CA 94563) as right-of-way.
The contract which has heretofore been let to E.E. Gilbert Construction, Inc., and which contract was filed for record in the City Clerk’s office in the City of Orinda, Contra Costa County, California, was completed in accordance with the plans and specifications, and the work was completed and accepted by the City of Orinda, on 2/7/2023 Information pertaining to the estimate of cost, names of bidders with prices bid, changes in adopted and approved plans and specifications, and the total cost of work is on file at the City Clerks’ office of the City of Orinda.
CITY OF ORINDA,
a municipal corporation
Date: ________________ By: ____________________________________ Sivakumar Natarajan, City Engineer
R.C.E. #74789
City of Orinda
22 Orinda Way
Orinda, CA 94563
I hereby certify, under penalty of perjury, that the above Notice of Completion was duly accepted by the City Council of the City of Orinda at a regular meeting thereof held on 2/7/2023. ______________________________
Sheri Smith, City Clerk
F.9.b
Packet Pg. 112 Attachment: NOC (3009 : Acceptance of Camino Sobrante Retaining Wall Project) City Council
Staff Report
Agenda Item: F.10
Date: February 7, 2023
Department:
Public Works and
Engineering Services
AGENDA TITLE: Approve list of streets for the Annual 2023 Pavement Rehabilitation Project and approve $200,000 Road Project Funding Nomination to California Transportation Commission (CTC) for 2023 SB 1 Local Partnership Program formulaic funds for the 2023 Annual Pavement Rehabilitation Project No. 4171.
RECOMMENDATION:
Staff recommends the Council review and approve the list of streets for the Annual 2023 Pavement Rehabilitation Project, authorizing the City Manager to execute and submit the Funding Nomination packet to the California Transportation Commission (CTC)
BACKGROUND: The passage of California Senate Bill 1-The Road Repair and Accountability Act of 2017, increased the State gas tax, and provided for special distributions of the new gas tax to Cities and Counties. One category of the special gas tax funding is reserved for agencies that have enacted, collected and maintained a local tax to fund street maintenance and rehabilitation. This funding is to act as an incentive to all agencies to consider implementing this type of self-help tax. The eligibility is based on the City of Orinda voter approved General Obligation Bond Measures specifically for road and drainage repair in 2014 and 2016. As a result, Orinda qualifies for this special funding under the Formulatic Program, administered by the CTC as the Local Partnership Program (LPP). In this latest cycle of LPP funding, the 2022 Program, approved by the CTC by Resolution G-22- 61 on August 18, 2022, Orinda is eligible for $200,000 for two years: Fiscal Years 2023/24 through 2024/25. This nomination only covers one project, for FY 2023/24.
DISCUSSION: The 2023 Annual Pavement Rehabilitation Project No. 4171 was selected as the target project for these funds. The design costs will likely be incurred in Fiscal Year 2022/23 and the construction costs will be in Fiscal year 2023/24.
NEXT STEPS: Project Funding Nomination packets will be prepared and submitted to CTC for review and approval. Since Orinda is specifically programmed as being eligible under the formulatic funding for this $200,000, rather than having to apply for F.10
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the competitive LPP funding, it is very likely that the nominated project will be included in CTC’s adoption.
FISCAL IMPACT: Approving the submission of this nomination will allow the City to obtain reimbursement for $200,000 in construction costs for the 2023 Annual Pavement Rehabilitation Project No. 4171.
ATTACHMENTS:
A. 2023 List of Street for Pavement Rehabilitation - Final 0222023 Respectfully Submitted by:
Scott Christie
Public Works Director
Prepared By: Farah Khorashadi, Paving Program Project Manager Approved by:
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1/26/2023 Street List for FY 2023 Pavement Rehabilitation Project (Project No. 4171) Street Name Begin location End Location Length Width Area (Sq.Ft) PCI FC Happy Valler Road City Limit City Limit (North) 2,383 23 54,809 36 C
Tara Road Southwood Drive Nonie ROAD 2,349 25 58,725 70 C
Tara Road Nonie Road Overhill Road 908 23 20,884 48C
Lost Valley Drive Edgewood Road Cul-de-sac 906 24 21,744 87 R
Lost Valley drive Don Gabriel Way 700' W of PGE Substation 700 30 21,000 87 R
Lost Valley Drive 700' west of PGE Substation Edgewwod Road 2,664 24 63,936 85R Miner Road Lombardy Lane Tigertail Ct 2,350 23 54,050 32 C
Miner Road Tigertail CT Sycamore 2,048 24 49,152 27
El Nido Ranch Road St. Stevens Drive City Limit 1,935 37 71,595 86 A
Charles Hills Road 31 Charles Hills Soule Road 899 22 19,778 80 R
Sleepy Hollow Lane Lombardy Lane Sly Edge of Normandy Lane 2,809 22 61,798 79 UL Sleepy Hollow Lane Sly Edge of Normany Lane Tarry Lane 1,853 22 40,766 UL Washington Lane Sleepy Hollow Lane to End End 550 20 11,000 74 UL Normandy Lane Sleepy Hollow Lane Ridge lane 1,277 20 25,540 73 Ridge Lane East End West End 727 19 13,813 88
R
Tarry Lane Lombardy lane Sleepy Hollow 434 20 8,680 65R Amber Valley Drive Dalewood Cul-l De- Sac 1,060 29 30,740 89R Singingingwood Lane Amber Valley Drive Cul- De-Sac 550 29 15,950 89 R
Fallen Leaf TR Dalewood Drive Cul-De-Sac 837 29 24,273 85R Candel Terrace Dale wood Drive Cul-de-sac 496 31 15,376 75R Edgwood Road Lost Valley Drive End 591 25 14,775
R
Kenmore Ct Lost Valley Drive Cul-de-sac 487 25 12,175 93R Snow Court Lost Valley Drive Cul-de-sac 581 30 17,430 92R Albo Court Kemore Court Cul-De-Sac 387 25 9,675 82R
Don Gabriel Way Valley View Drive El Camino Moraga 2,058 24 49,392 85 UL SunDown TR Dalewood Drive Happy Valley Road 1,850 33 61,050 88R El Camino Moraga Dona Maria Way Don Gabriel Way 693 26 18,018 85 UL El Camino Moraga Donna Maria Way Moraga Way 737 26 19,162 86 UL Van Ripper Lane Lombardy lane Van Tassel Lane 3,819 19 72,561 88R F.10.a
Packet Pg. 115 Attachment: 2023 List of Street for Pavement Rehabilitation - Final 0222023 (3012 : Approval of List of Streets for the Annual 2023 Pavement City Council
Staff Report
Agenda Item: G.1
Date: February 7, 2023
Department: Planning Department
AGENDA TITLE: Introduce Ordinance 23-02 Amending Chapter 17.17 of the Orinda Municipal Code and Adopting the State Model Water Efficient Landscape Ordinance ("MWELO") by Reference
RECOMMENDATION:
Introduce Ordinance 23-02, waiving full reading, which includes a determination that it is exempt from the California Environmental Quality Act (CEQA).
BACKGROUND:
Staff suggests a number of minor changes that need to be made to Chapter 17.17 – Landscaping of the Municipal Code (Zoning Ordinance). These changes will bring the code into compliance with new State Law requirements for water efficient landscaping.
The precise text amendment is shown in the Draft Ordinance (Attachment A).
The Planning Commission, after holding a Public Hearing, approved Resolution 23-02 recommending that the City Council Adopt the proposed amendments to Chapter 17.17 of the municipal code (Attachment B).
DISCUSSION:
The State of California passed SB1383, the Short-Lived Climate Pollutants Reduction Act, which took effect January 1, 2022. The bill included a requirement to have municipalities either adopt a local Water Efficient Landscape Ordinance (WELO) of their own or adopt the State’s Model Ordinance to be implemented locally.
The WELO requirements apply to:
1) New Construction Project with a landscape area greater than 500 square feet that requires a building permit, landscape permit, plan check or design review. 2) Rehabilitated landscape projects with a landscape area greater than 2,500 square feet that requires a building permit, landscape permit, plan check, or design review.
3) Existing landscapes installed prior to December 2015, that are greater than 1 acre in size:
a. If the area has a water meter, the City review will be at a minimum irrigation water use analyses, irrigation surveys, and irrigation audits to evaluate water use and provide recommendations as necessary to reduce landscape water use to a level that does not exceed the Maximum Applied Water Allowance for existing landscapes.
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b. If the area does not have a water meter, the City review will be at a minimum irrigation surveys and irrigation audits to evaluate water use and provide recommendations as necessary in order to prevent water waste. 4) Cemeteries:
a. New Cemeteries – A new cemetery would be required to supply a Water Efficient Landscape Worksheet, maintain a landscape and irrigation maintenance schedule, and provide an Irrigation Audit, Irrigation Survey, and Irrigation Water Use Analysis.
b. Existing Cemeteries
i. If the area has a water meter, the City review will be at a minimum irrigation water use analyses, irrigation surveys, and irrigation audits to evaluate water use and provide recommendations as necessary to reduce landscape water use to a level that does not exceed the Maximum Applied Water Allowance for existing landscapes.
ii. If the area does not have a water meter, the City review will be at a minimum irrigation surveys and irrigation audits to evaluate water use and provide recommendations as necessary in order to prevent water waste.
The primary components of the requirements for WELO contained in the statues include:
1) Limit turf area in residential areas to 25% and disallows turf in non-residential areas
2) Does not allow turf to be planted on slopes greater than 1 foot of elevation change for 4 feet of length
3) Prohibits turf in parkways less than 10 feet wide, unless the parkway is adjacent to a parking strip and used to enter and exit vehicles. Any turf in parkways must be irrigated by sub-surface irrigation or by other technology that creates no overspray or runoff
4) For residential areas, requires climate adapted plants that require occasional, little or no summer water to be installed for 75% of the plant area excluding edibles and areas using recycled water
5) For non-residential areas, requires climate adapted plants that require occasional, little or no summer water for 100% of the plant area excluding edibles and areas using recycled water
6) Requires a minimum of a three-inch layer of mulch to be applied on all exposed soil surfaces of planting areas, creeping or rooting groundcovers, or direct seeding applications where mulch is contraindicated
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7) Requires automatic irrigation controllers that use evapotranspiration or soil moisture sensor data and utilize a rain sensor
8) Requires pressure regulators to be installed on the irrigation system 9) Manual shut-off valves be installed as close as possible to the point of connection of the water supply
10)Requires all irrigation emission devices to meet the requirements set in the ANSI standard, ASABE/ICC 802-2014. “Landscape Irrigation Sprinkler and Emitter Standard,” requiring all sprinkler heads installed to be document that they have a distribution uniformity low quarter of 0.65 or higher.
11)Require areas less than ten feet in width in any direction shall be irrigated with subsurface irrigation or other means that produces no runoff or overspray. 12)Require that compost be incorporated at a rate of at least four cubic yards per 1,000 square feet to a depth of six inches into landscape area (unless contraindicated by a soil test). 13)For non-residential projects with landscape areas of 1,000 sq. ft. or more, a private submeter(s) to measure landscape water use shall be installed.
Staff is recommending that the City adopt the State’s Model Ordinance (weblink at Attachment C) by reference and proposes adding Section 17.17.4 (Water Efficient Landscape Requirements) to Municipal Code Chapter 17.17 (Landscaping) to refer to the MWELO (with the addition of the definitions noted below). Furthermore, the City has developed a Checklist and a Compliance Form (Attachments D and E) that correspond to the State’s requirements and that will be used in Orinda to document water efficient landscape compliance. Staff has added definitions for terms that are not clearly defined by the State statues to Chapter 17.17. The definitions that have been added are:
Microspray: a microirrigation emission device with one or more orifices to convert irrigation water pressure to water discharge with a flow rate not to exceed thirty gallons per hour at the largest area of coverage available for the nozzle series when operated at thirty psi. Microsprays are inclusive of microbubbers, microspinners, and microspray jets.
No-water using plant: a plant species with water needs that are compatible with local climate and soil conditions such that regular supplemental irrigation is not required to sustain the plant after it has become established.
Swimming pool: any structure intended for swimming, recreational bathing or wading that contains water over twenty-four inches deep. This includes inground, above ground, and on-ground pools; hot tubs; spa and fixed in place wading pools.
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FISCAL IMPACT:
None.
ATTACHMENTS:
A. Draft Ordinance 23-02 MWELO Amendment to Municipal Code B. Planning Commission Resolution 23-02 Recommending Council Adoption of WELO C. State of California Model Water Efficient Landscape Ordinance (weblink) D. Draft MWELO Checklist
E. Draft MWELO Compliance Form
Respectfully Submitted by:
Drummond Buckley
Director of Planning
Prepared By: Winnie Mui, Associate Planner
Approved by:
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1 BEFORE THE CITY COUNCIL OF THE CITY OF ORINDA
Ordinance 23-02
Whereas, to conserve water, State law requires local jurisdictions to enforce requirements consistent with the California Model Water Efficient Landscape Ordinance (Chapter 2.7 of Division 2, Title 23, of the California Code of Regulations, Sections 490 and following) (MWELO);
Whereas, the City has been implementing the State’s MWELO requirements, but limited staff time and resources have precluded formal City adoption of a MWELO until now; Whereas, the purpose of a water efficient landscape ordinance is to promote the conservation and efficient use of water and to prevent the waste of this valuable resource, while recognizing the values and benefits of landscaping; Whereas, adoption of the State MWELO by reference in the City’s Zoning Code will help ensure that the City remains in compliance with State regulations, as they may be amended from time to time;
Whereas, on January 24, 2023, the Planning Commission held a duly noticed public hearing and adopted Resolution No. 23-01 recommending that the City Council approve this ordinance; and
Whereas, the City Council of the City of Orinda has determined it is appropriate to make certain modifications to Chapter 17.17 (Landscaping) of the Zoning Code.
Now therefore, the City Council DOES ORDAIN as follows:
SECTION 1.
Chapter 17.17 (Landscaping) is amended to add Section 17.17.4 (Water Efficient Landscape Requirements) as shown in Attachment A.
SECTION 2.
This ordinance is consistent with the Orinda General Plan.
SECTION 3.
In the Matter of: An Ordinance Updating
Chapter 17.17 (Landscaping) of the Orinda
Municipal Code to Amend Section 17.17.1
(Landscaping Plans Required) and Add Section
17.17.4 (Water Efficient Landscape
Requirements).
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Packet Pg. 120 Attachment: Draft Ordinance 23-02 MWELO Amendment to Municipal Code (3020 : Water Efficient Landscape Ordinance Amending Chapter 2 The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines (Title 14 of the California Code of Regulations) Sections 15305 (Minor Alterations in Land Use Limitations), 15060(c)(1) (the activity does not involve the exercise of discretionary powers), 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change in the environment, directly or indirectly. Further, this action is exempt from CEQA under CEQA Guidelines section 15061(b)(3) (the amendments are exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment).
SECTION 4.
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase.
SECTION 5.
The City Clerk shall either (a) have this ordinance published once within fifteen (15) days after adoption in a newspaper of general circulation, or (b) have a summary of this ordinance published twice in a newspaper of general circulation, once five (5) days before its adoption and again within fifteen (15) days after adoption.
This ordinance becomes effective 30 days after adoption.
Following a duly-noticed public hearing, the foregoing ordinance was introduced at a meeting of the City Council of the City of Orinda held on _____ and was adopted and ordered published at a regular meeting held on _____ by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
_____________________________
Mayor
ATTEST:
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Packet Pg. 121 Attachment: Draft Ordinance 23-02 MWELO Amendment to Municipal Code (3020 : Water Efficient Landscape Ordinance Amending Chapter 3 ATTACHMENT A:
Municipal Code Chapter 17.17 (Landscaping) is amended by amending Section 17.17.1 and adding Section 17.17.4 (Water Efficient Landscaping Requirements) as follows:
17.17.1 – Landscaping Plans Required
Each application for construction of a new residential or commercial structure must include a landscape plan and/or compliance with the model water efficiency landscape ordinance (MWELO) as described in this chapter. Each application for an addition or a remodel of a residential or commercial structure must include a landscape plan as described in this chapter, when the proposed addition or remodel will have a significant effect on existing landscaping. In addition, as a condition of approval of any permit or design review required under this title, a landscaping plan may be required. In all cases, riparian landscape restoration shall be required if the subject property includes or is bordered by a watercourse as defined in Title 18 of this code. No fence may be constructed in the front yard or a side yard with street frontage without landscape plan approval when landscaping is required under Subsection 17.4.27(B)(1) of this title.
17.17.4 – Water Efficient Landscape Requirements
A. The water-efficient landscape ordinance of the City of Orinda is the State of California Model Water-Efficient Landscape Ordinance adopted by the California Department of Water Resources and set forth in Chapter 2.7 of Division 2, Title 23, of the California Code of Regulations, Sections 490 and following, including all appendices (the “MWELO”), as that MWELO may be amended from time to time, together with the definitions added below.
B. The following definitions are added to those contained in MWELO Section 491 (Definitions).
1. “Microspray” means a microirrigation emission device with one or more orifices to convert irrigation water pressure to water discharge with a flow rate not to exceed thirty gallons per hour at the largest area of coverage available for the nozzle series when operated at thirty psi. Microsprays are inclusive of microbubbers, microspinners, and microspray jets.
2. “No-water using plant” means a plant species with water needs that are compatible with local climate and soil conditions such that regular supplemental irrigation is not required to sustain the plant after it has become established.
3. “Swimming pool” means any structure intended for swimming, recreational bathing or wading that contains water over twenty-four inches deep. This includes in-ground, above ground, and on-ground pools; hot tubs; spa and fixed in place wading pools.
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Packet Pg. 122 Attachment: Draft Ordinance 23-02 MWELO Amendment to Municipal Code (3020 : Water Efficient Landscape Ordinance Amending Chapter 4 1602386.1
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Packet Pg. 123 Attachment: Draft Ordinance 23-02 MWELO Amendment to Municipal Code (3020 : Water Efficient Landscape Ordinance Amending Chapter G.1.b
Packet Pg. 124 Attachment: Planning Commission Resolution 23-02 Recommending Council Adoption of WELO (3020 : Water Efficient Landscape Ordinance G.1.b
Packet Pg. 125 Attachment: Planning Commission Resolution 23-02 Recommending Council Adoption of WELO (3020 : Water Efficient Landscape Ordinance Landscape Water Efficiency Checklist: 01/2023 Page 1 of 3
CITY OF ORINDA
Landscape Water Efficiency Checklist
22 Orinda Way, Orinda, CA 94563
(925)253-4210 [email protected]
This checklist implements the requirements of Orinda Municipal Code Section 17.17.4, Appendix D: Prescriptive Compliance Option. The responses provided will be evaluated to determine whether the proposed landscape is generally consistent with the water-efficiency goals of Section 17.17.4.
PROPERTY
Address:
Assessor’s Parcel Number:
PROPERTY OWNER(S)
Name:
Mailing Address:
Phone:
Email:
APPLICANT(S) (If not the property owner)
Name:
Mailing Address:
Phone:
Email:
PROJECT INFORMATION
Project Type: New Rehabilitated Private Public
Cemetery Homeowner installed
Water Supply Type: Potable Recycled Well
Local Retail Water Purveyor:
Total Landscape Area: square-feet
Turf Area: square-feet
Landscape Area: All the planting areas, turf areas, and water features in a landscape installation. The landscape area does not include footprints of buildings or structures, sidewalks, driveways, parking lots, decks, patios, gravel or stone walks, other pervious or non-pervious hardscapes, and other non- irrigated areas designated for nondevelopment (e.g., open spaces and existing wildland vegetation).
NOTE: If landscape area exceeds 2,500 sq. ft., a landscape and irrigation design plan (and supporting documents) shall be required. If no landscaping is proposed, enter “0” for “Total Landscape Area,” and proceed directly to Certification below.
Turf: A ground cover surface consisting of non-native grass species that is customarily mowed. Annual bluegrass, Kentucky bluegrass, perennial ryegrass, red fescue, and tall fescue are examples of cool-season turf grasses. Bermuda grass, kikuyu grass, seashore paspalum, St. Augustine grass, zoysia grass, and buffalo grass are warm-season turf grasses.
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Packet Pg. 126 Attachment: Draft MWELO Checklist (3020 : Water Efficient Landscape Ordinance Amending Chapter 17.17 of the Orinda Municipal Code) Landscape Water Efficiency Checklist: 01/2023 Page 2 of 3
CHECKLIST
Complete the checklist for staff to determine project compliance. If the response is “No” to any of the requirements, provide an explanation on a separate sheet. Definitions for certain terms are provided on the next page.
Landscape
Parameter Requirements Project Compliance
Turf
For residential areas, turf shall not exceed 25% of the landscape area in residential areas, and there shall be no turf in non-residential areas. Yes No Turf shall not be planted on sloped areas which exceed a slope of 1-foot vertical elevation change for every 4 feet of horizontal length. Yes No Turf is prohibited in parkways less than 10 feet wide unless the parkway is adjacent to a parking strip and used to enter and exit vehicles. Any turf in parkways must be irrigated by sub-surface irrigation or by other technology that creates no overspray or runoff.
Yes No
Plant Material
For residential areas, climate adapted plants that require occasional, little or no summer water (average WUCOLS plant factor 0.3) shall be installed for 75% of the plant area excluding edibles and areas using recycled water.
For non- residential areas, climate adapted plants that require occasional, little or no summer water (average WUCOLS plant factor 0.3) shall be installed for 100% of the plant area excluding edibles and areas using recycled water.
Yes No
A minimum three-inch (3″) layer of mulch shall be applied on all exposed soil surfaces of planting areas except in turf areas, creeping or rooting groundcovers, or direct seeding applications where mulch is contraindicated.
Yes No
Irrigation
System
Automatic irrigation controllers are required and must use evapotranspiration or soil moisture sensor data and utilize a rain sensor.
Irrigation controllers must not lose programming data in the event the primary power source is interrupted.
Yes No
Pressure regulators shall be installed on the irrigation system to ensure the dynamic pressure of the system is within the manufacturers recommended pressure range.
Yes No
Manual shut-off valves (such as a gate valve, ball valve, or butterfly valve) shall be installed as close as possible to the point of connection of the water supply.
Yes No
All irrigation emission devices must meet the requirements set in the ANSI standard, ASABE/ICC 802-2014. “Landscape Irrigation Sprinkler and Emitter Standard,” all sprinkler heads installed in the landscape must document a distribution uniformity low quarter of 0.65 or higher using the protocol defined in ASABE/ICC 802-2014.
Yes No
Areas less than ten (10) feet in width in any direction shall be irrigated with subsurface irrigation or other means that produces no runoff or overspray. Yes No Soil
Compost shall be incorporated at a rate of at least four cubic yards per 1,000 square feet to a depth of six inches into landscape area (unless contra-indicated by a soil test).
Yes No
Water Use For non-residential projects with landscape areas of 1,000 sq. ft. or more, a private submeter(s) to measure landscape water use shall be installed. Yes No G.1.d
Packet Pg. 127 Attachment: Draft MWELO Checklist (3020 : Water Efficient Landscape Ordinance Amending Chapter 17.17 of the Orinda Municipal Code) Landscape Water Efficiency Checklist: 01/2023 Page 3 of 3
CERTIFICATION
I am aware of available informational resources regarding native and low water use plants, irrigation efficiency, and other aspects of water-efficient landscaping. I certify that the information provided in this checklist is correct, and I understand that any changes to the provide will require completion of a new checklist. I agree to comply with the requirements of the prescriptive compliance option of the Model Water Efficient Landscape Ordinance (MWELO).
Signature: Date:
Select Definitions
Automatic irrigation controller: a timing device used to remotely control valves that operate an irrigation system. Automatic irrigation controllers are able to self-adjust and schedule irrigation events using either evapotranspiration (weather-based) or soil moisture data Local water purveyor: any entity, including a public agency, city, county, or private water company that provides retail water service
Low water use plant: a plant species whose water needs are compatible with local climate and soil conditions.
Species classified as "very low water use" and "low water use" by Water Use Classification of Landscape Species (WUCOLS), having a regionally adjusted plant factor of 0.0 through 0.3, shall be considered low water use plants Native plant: a plant indigenous to a specific area of consideration. For the purpose of this division, the term will refer to plants indigenous to the coastal ranges of Central and Northern California, and more specifically to such plants that are suited to the ecology of the present or historic natural community of the project’s vicinity Submeter: a metering device to measure water applied to the landscape that is installed after the primary utility water meter.
WUCOLS: the current version of the Water Use Classification of Landscape Species current edition published by the University of California Cooperative Extension and the Department of Water Resources Clarifying Definitions Pertaining to the State MWELO Requirements Microspray: a microirrigation emission device with one or more orifices to convert irrigation water pressure to water discharge with a flow rate not to exceed thirty gallons per hour at the largest area of coverage available for the nozzle series when operated at thirty psi. Microsprays are inclusive of microbubbers, microspinners, and microspray jets
No-water using plant: a plant species with water needs that are compatible with local climate and soil conditions such that regular supplemental irrigation is not required to sustain the plant after it has become established
Swimming pool: any structure intended for swimming, recreational bathing or wading that contains water over twenty-four inches deep. This includes in-ground, above ground, and on-ground pools; hot tubs; spa and fixed in place wading pools.
STAFF USE ONLY
The City of Orinda Planning Department has reviewed and approved this Landscape Water Efficiency Checklist.
Name:
Signature: Date:
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Packet Pg. 128 Attachment: Draft MWELO Checklist (3020 : Water Efficient Landscape Ordinance Amending Chapter 17.17 of the Orinda Municipal Code) Landscape Compliance Form: 01/2023 Page 1 of 1
CITY OF ORINDA
Landscape Compliance Form
22 Orinda Way, Orinda, CA 94563
(925)253-4210 [email protected]
Orinda Municipal Code Section 17.17.4 requires a licensed landscape architect, licensed landscape contractor, certified irrigation designer, or other licensed or certified professional in a related field to conduct a final project inspection and complete this form before a Certificate of Occupancy or building final is issued. The design professional completing this form certifies that the plants and irrigation systems have been installed as specified and that an irrigation audit has been performed, including any deficiencies.
PROJECT INFORMATION
Permit Number:
Address:
Assessor’s Parcel Number:
LICENSED PROFESSIONAL
I am a: Licensed Landscape Architect Licensed Landscape Contractor Certified Irrigation Designer Other:
Name:
Mailing Address:
Phone:
Email:
License Number:
License Expiration Date:
CERTIFICATION
I certify that the landscape and irrigations system has been installed as specified in the landscape and irrigation design plan and complies with the criteria of the ordinance and permit.
Signature: Date:
STAFF USE ONLY
The City of Orinda Planning Department has reviewed and approved this Landscape Compliance Form.
Name:
Signature: Date:
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Packet Pg. 129 Attachment: Draft MWELO Compliance Form (3020 : Water Efficient Landscape Ordinance Amending Chapter 17.17 of the Orinda Municipal