CITY OF PITTSBURG
AGENDA
MAY 01, 2023
CITY HALL COUNCIL CHAMBER
65 CIVIC AVENUE, PITTSBURG, CA
SPECIAL MEETING
BUDGET WORKSHOP
5:00 P.M.
REGULAR MEETING
7:00 P.M.
CITY COUNCIL
HOUSING AUTHORITY
PITTSBURG ARTS AND COMMUNITY FOUNDATION
PITTSBURG POWER COMPANY
SOUTHWEST PITTSBURG GEOLOGIC HAZARD ABATEMENT DISTRICT II
SUCCESSOR AGENCY
PRESIDING
Shanelle Scales-Preston, Mayor/Chair
Juan Antonio Banales, Vice- Mayor/Chair
Jelani Killings, Council Member/Board Member
Dionne Adams, Council Member/Board Member
Angelica Lopez, Council Member/Board Member
FOR HOUSING AUTHORITY:
S.L. Floyd, Housing Authority Member
Annie Hill Herring, Housing Authority Member
-------------------------------------------------------------------------------------------------------------------------- Pittsburg City Council meetings are held the first and third Mondays of each month at 7:00 p.m. The Housing Authority meets in conjunction with the City Council on the third Monday of each month. The Pittsburg City Council meets regularly in the Council Chamber at 65 Civic Avenue, unless otherwise noted above. The City Council also sits as the Board of Directors of several other City agencies. The stipends for all agency members conform to state statutes governing compensation amounts. All other Agencies meet on an as needed basis and will be listed above if applicable. Copies of the open session agenda packets, which are distributed to the City Council, are on file in the office of the City Clerk, 65 Civic Avenue, Pittsburg, California, and are available for public inspection, beginning 72 hours in advance, during normal business hours (8:00 a.m. – 5:00 p.m., Monday through Friday, except from noon to 1:00 p.m. and City holidays). The agenda and reports are also located on the City’s website at www.pittsburgca.gov. Additionally, if any reports or documents, which are public records, are distributed to the City Council less than 72 hours before the meeting, those reports and documents will also be available for public inspection in the City Clerk’s Office and on the day of the meeting in the Council Chamber at the public counter area below the dais. 1 5:00 PM - SPECIAL MEETING - BUDGET WORKSHOP
The Audience Remarks period is for the public to comment on any items scheduled to be heard during the Closed Session portion of the meeting, if applicable.
7:00 PM - CONVENE IN OPEN SESSION FOR REGULAR MEETING
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE
CITY MANAGER REPORTS/REMARKS
The City Manager may make brief announcements or informal comments at this time and brief the Council on items of interest. (No Action Required)
PUBLIC COMMENTS
Members of the audience who wish to address the City Council or Agency Boards on issues that are not scheduled for the agenda and on any items listed as part of the Consent Calendar should complete a Speaker's Card available at the dais. Please read the card carefully in order to fill out the card properly.
Submit the completed card to the City Clerk before the item is called, preferably before the meeting begins. Individuals will be given three minutes to address the Council unless additional time is allowed as provided for spokespersons. Prior to speaking, each member of the public shall state their name and business and City of residence in a clear and audible tone of voice. (No Action Required)
COMMITTEE REPORTS
Council Members may make a report on their committee assignments at this time. (see attached list of adhoc committees and other public agencies in which Council members particiapte). (No Action Required)
CONSIDERATION
1. Adoption of a City Council Resolution to Authorize the City Manager to Execute an Agreement with Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center to Establish and Administer a Restaurant Coaching Program
The City of Pittsburg (“City”) and the Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center (“NorCal SBDC”) are proposing to enter into an agreement whereby NorCal SBDC shall coordinate the development and implementation of “Pittsburg Eats,” a program intended to help existing restaurateurs within Pittsburg modernize their operations and receive one-on-one technical assistance.
2. Adoption of a City Council Resolution Accepting a Metropolitan Transportation Commission OBAG3 Grant for Project 2052—Delta de Anza Multi Modal Trail Safety Improvements
On January 2023, the Contra Costa Transportation Authority (CCTA) approved a list of projects recommended for funding through the One Bay Area Grant 3 (OBAG 3). One of the projects included in the list is Project 2052—Delta de Anza 2 Multimodal Trail Safety Improvements. As part of the OBAG 3 process, the City will submit the attached resolution of local support.
3. Adoption of a City Council Resolution Authorizing the City Manager to Execute a Consulting Services Agreement with Northpoint Security Services, Inc. for Park Security Patrol Services
After a detailed review of the responses to the City’s Request for Proposals for Pittsburg Park Security Patrol Services (RFP), staff recommends the City Council to authorize the City Manager to execute a Consulting Services Agreement (Agreement) with Northpoint Security Services, Inc.
CONFLICT OF INTEREST STATEMENT
City Council/Agency Members may make any conflict of interest declarations pertaining to Consent Calendar items at this time.
COMBINED CITY COUNCIL, PITTSBURG ARTS AND COMMUNITY FOUNDATION,
PITTSBURG POWER COMPANY, SUCCESSOR AGENCY AND SOUTHWEST
PITTSBURG GHAD II CONSENT CALENDAR
4. Adoption of Ten City Council Resolutions to Find Developers in Compliance with their Respective Development Agreements for: Southwest (San Marco), Tuscany Meadows, Liberty, Trans Bay Cable, Edgewater, Belle Harbor (Waterstone), Sky Ranch II, Montreux, Columbia Solar, and Greystone.
State law requires local jurisdictions to conduct a periodic review of active development agreements (DAs) within the community. For the calendar year 2022, staff has conducted reviews of ten active DAs, including: Southwest (San Marco) Development, Tuscany Meadows Subdivision, Liberty Subdivision, Trans Bay Cable, Edgewater Development, Belle Harbor (Waterstone) Subdivision, Sky Ranch II Subdivision, Montreux Subdivision, Columbia Solar, and Greystone Subdivision. Staff has found each developer to be in compliance with the terms of their respective DA, and as such, recommends the City Council adopt ten resolutions finding good faith compliance and authorizing the City Manager to execute Certificates of Compliance as appropriate.
5. Adoption of a City Council Resolution Authorizing the Execution of the First Amendment to Consulting Services Agreement between City of Pittsburg and Opticos Design, Inc. for the Accessory Dwelling Unit Pre-Approved Plan The proposed item would authorize the City Manager to execute the First Amendment to the Consulting Services Agreement with Opticos Design, Inc. in an amount not to exceed $244,475. This amount would allocate an additional $8,000 to the existing Consultant Budget of $236,475 for contract design and consulting services related to streamlining the City’s permitting and entitlement process for multifamily development projects and Accessory Dwelling Unit (“ADU”) projects. 3 6. Adoption of a City Council Resolution Allocating Additional Funds to Project 3021—City Park Tree Maintenance and Authorizing the City Manager to Execute the First Amendment to the Consultant Services Agreement with Hamilton Tree Service, Inc.
During the most recent storm events, emergency work began to reduce stress on certain trees in City Park. If approved, the resolution would allocate additional funds to Project 3021—City Park Tree Maintenance (the “Project”) and authorize execution of the First Amendment to the consulting services agreement with Hamilton Tree Service, Inc. for additional tree maintenance and removals in City Park.
7. Adoption of a City Council Resolution to Comply with State Housing Laws The One Bay Area Grant 3 (OBAG 3) establishes the policy framework and commitments for investing federal Surface Transportation Block Grant Program (STP) and Congestion Mitigation and Air Quality Improvement Program (CMAQ) funds for a four-year period covering federal fiscal year (FY) 2022/23 through FY 2025/26. As part of the OBAG 3 program, the City of Pittsburg must comply with state housing laws related to surplus lands, accessory dwelling units, density bonuses, and the Housing Accountability Act to maintain funding eligibility.
8. Adoption of a City Council Resolution Authorizing the Use of $365,000 of Measure M Surplus Funds for Additional Library Services
To better serve the needs of the community, the City worked with the Contra Costa County Library (County Library) to extend the hours of service by an additional 12 hours at the Pittsburg Library.
9. Adoption of a City Council Resolution Directing the City Engineer to Prepare and File an Annual Report for the Citywide Landscaping and Lighting Assessment District 1988-01 for FY 23/24
Directing the City Engineer as the Engineer of Work to prepare and file the Engineer’s Report is the first of three steps in the annual renewal process for the Citywide Landscaping and Lighting Assessment District 1988-01. Upon receipt and approval of the Engineer’s Report, the City Council may order that assessments be placed on the county tax roll. Revenue collected through this district is necessary to fund citywide landscaping and lighting operations.
10. Adoption of Two City Council Ordinances Amending Prezoning Designations, Including Approval of a Master Plan, and Approving a Development Agreement for the Faria/Southwest Hills Annexation Project, AP-10-717 (GP, RZ, DA, ANNEX) On April 17, 2023,the City Council adopted Resolutions certifying a Final Environmental Impact Report; approving CEQA Findings; adopting a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program; approving General Plan mapping and text amendments; and initiating annexation proceedings for the Faria/Southwest Hills Annexation Project. The City Council also introduced and waived further reading of two ordinances amending the 4 prezoning designations, adopting a master plan, and approving a development agreement for the proposed project. The project site is located in the hills southwest of the existing city limits and is commonly known as the Faria property APN’s 097-180-002, 097-180-006, 097-190-002, 097-200-002, 097-200-003, 097- 230-008 & 097-240-002 (now APN’s 091-040-002, 092-010-002 & -006, 092-020- 002 & -003, 092-040-008, 092-050-002, and a portion of 092-030-012).
11. Adoption of a City Council Resolution Directing the City Engineer to Prepare and File an Annual Report for the Oak Hills Landscaping and Lighting Assessment District 1988-02 for FY 23/24
Directing the City Engineer as the Engineer of Work to prepare and file the Engineer’s Report is the first of three steps in the annual renewal process for the Oak Hills Landscaping and Lighting Assessment District 1988-02. Upon receipt and approval of the Engineer’s Report, the City Council may order assessments to be placed on the county tax roll. Revenue collected through this district is necessary to fund landscaping and lighting operations in the Oak Hills area.
COUNCIL REQUEST FOR FUTURE AGENDA ITEMS
Council Members may request items to be considered for future agendas. An item will only be brought forward with a majority vote and will appear on a future agenda with staff recommendations for further Council consideration.
COUNCIL MEMBER REMARKS
Council Members may make brief announcements or informal comments at this time. (No Action Required) ADJOURNMENT TO MAY 15, 2023
5 NOTICE TO PUBLIC
GENERAL INFORMATION
Copies of the open session agenda packets, which are distributed to the City Council, are on file in the office of the City Clerk, 65 Civic Avenue, Pittsburg, California, and are available for public inspection, beginning 72 hours in advance, during normal business hours (8:00 a.m. – 5:00 p.m., Monday through Friday, except City holidays). The full packets are also located on the City’s website at www.pittsburgca.gov. If any reports or documents, which are public records, are distributed to the City Council less than 72 hours before the meeting, those reports or documents will be available for public inspection in the City Clerk’s Office and on the day of the meeting in the Council Chamber at the public counter area below the dais.
SPEAKER’S CARD
Members of the audience who wish to address the City Council on issues that are not scheduled for the agenda and on any items listed as part of the agenda should complete a Speaker’s Card available at the dais. Please read the card carefully in order to fill out the card properly. Submit the completed card to the City Clerk before the item is called, preferably before the meeting begins. Individuals will be given up to three minutes to address the Council unless additional time is allowed as provided for spokespersons. Speakers are not permitted to yield their time to another speaker. Prior to speaking, each member of the public shall state their name and business and City of residence in a clear and audible tone of voice. Pursuant to the Brown Act, no action may be taken by the City Council on items not already scheduled on the agenda; however, the City Council may refer your comments/concerns to staff or request that the item be placed on a future agenda.
PUBLIC HEARINGS
Persons who wish to speak on Public Hearings listed on the agenda will be heard when the Public Hearing is opened, except on Public Hearing items previously heard and closed to public comment. After the public has commented, the item is closed to public comment and brought to the Council/Agency level for discussion and action. Further comment from the audience will not be received unless requested by the Council/Agency.
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders which 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 Section 1094.6). Further, if you challenge an action taken by the City Council in court, you may be limited, by California law, including but not limited to Government Code Section 65009, to raising only those issues you or someone else raised in the public hearing, or in written correspondence delivered to the City Council prior to or at 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, regardless of whether it is a regular or special meeting.
NOTICE TO THE DISABLED AND VISUALLY OR HEARING IMPAIRED In compliance with the Americans with Disabilities Act, the City of Pittsburg will provide special assistance for disabled residents. Upon request, an agenda for any meeting shall be made available in appropriate alternative formats. The Council Chamber is equipped with sound amplifier units for use by the hearing impaired. The units operate in conjunction with the Chamber’s sound system. You may request the sound amplifier from the City Clerk for personal use during Council meetings. If you need special assistance to participate in this meeting, or are requesting a specially formatted agenda, please contact the City Clerk at 925-252-4850. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting or provide the requested agenda format. (28 CFR 35.102-35.104 ADA Title II)
DISRUPTIVE CONDUCT
The Council requests that you observe the order and decorum of our Council Chamber by turning off or setting to vibrate all cellular telephones and electronic devices, and that you refrain from making personal, impertinent, or slanderous remarks. Boisterous and disruptive behavior while the Council is in session, and the display of signs in a manner which violates the rights of others or prevents others from watching or fully participating in the Council meeting, is a violation of our Municipal Code and any person who engages in such conduct can be ordered to leave the Council Chamber by the Mayor.
LIVE MEDIA BROADCASTING ADVISEMENT
City Council meetings are webcast live on the City’s website at www.pittsburgca.gov on the Agendas and Live Meetings page. Past meetings and approved minutes are also archived on that webpage. Watch the live meeting via the City’s webcast (www.pittsburgca.gov), or on Delta TV Comcast Channel 32, or Delta TV AT&T U-Verse Channel 99. For more information, please contact the City Clerk’s office at 252-4850. 6 City Council Outside Agency / Liaison / Sub-Committees Assignments - 2023 Updated January 17, 2023
OUTSIDE AGENCY BOARDS COUNCIL MEMBER(S) TYPE MEETS TIME STAFF ABAG Shanelle Scales-Preston / Jelani Killings Alt. Standing Annual G. Evans Delta Diablo* Juan Banales / Shanelle Scales-Preston Alt. Standing 2 nd Wednesday 4:30 pm J. Samuelson East Co. Co. County Habitat Conservancy Juan Banales / Jelani Killings Alternate Standing 4 th Monday 2:00 pm J. Davis Bi-Monthly
East County Water Management Juan Banales / Jelani Killings Alternate Standing Annual J. Samuelson MCE Clean Energy Board Shanelle Scales-Preston / Angelica Lopez Alt. Standing Quarterly 7:00 pm D. Buchanan TRANSPLAN / ECCRFFA Shanelle Scales-Preston / Juan Banales Alt. Standing 2 nd Thursday 6:30 pm J. Samuelson Tri-Delta Transit (2 reps)** S. Scales-Preston & Dionne Adams / Jelani Killings Alt. Standing Last Wednesday 4:00 pm J. Samuelson
LIAISON TO COUNCIL MEMBER(S) TYPE MEETS TIME STAFF
East Bay League of Calif. Cities Shanelle Scales-Preston / Jelani Killings Alt. Standing 3 rd Thursday G. Evans Los Medanos Health Advisory Committee Shanelle Scales-Preston & Jelani Killings Ad Hoc As needed M. Aliotti Mayor’s Conference Shanelle Scales-Preston / Juan Banales Alt. Standing 1 st Thursday 6:30 pm G. Evans School Districts Committee (2x2) Jelani Killings & Angelica Lopez / Dionne Adams Alt. Standing 2nd Thursday 4:00 pm M. Aliotti even months
SUBCOMMITTEES COUNCIL MEMBER(S) TYPE MEETS TIME STAFF
CAC CDBG Dionne Adams & Angelica Lopez / S. Scales-Preston Alt. Standing As needed M. Aliotti City Infrastructure and Transportation S. Scales-Preston & Juan Banales / Jelani Killings Alt. Standing As needed J. Samuelson Community Services S. Scales-Preston & Angelica Lopez / Dionne Adams Alt. Standing As needed M. Aliotti Constituent Management Services S. Scales-Preston & Dionne Adams / Angelica Lopez Alt. Ad Hoc As needed M. Aliotti Economic Develop/Waterfront Jelani Killings & Dionne Adams / S. Scales-Preston Alt. Standing As needed 4:30 pm J. Davis Finance S. Scales-Preston & Juan Banales / Dionne Adams Alt. Standing Monthly 3:30 pm P. Rodrigues Government Performance Juan Banales & Jelani Killings Ad Hoc As needed J. Brizel Land Use Juan Banales & Dionne Adams / Angelica Lopez Alt. Standing Monthly 1:30 pm J. Davis My Brothers Keeper S. Scales-Preston & Jelani Killings Ad Hoc As needed K. Simonton Pittsburg Arts & Community Foundation S. Scales-Preston & Jelani Killings / Dionne Adams Alt. Standing As needed K. Simonton Pittsburg Police Activities League (PAL) S. Scales-Preston & Angelica Lopez / Dionne Adams Alt. Standing Monthly S. Albanese Pittsburg Recognition Juan Banales & Jelani Killings Standing As needed M. Aliotti Power Company Advisory Dionne Adams & Angelica Lopez / Juan Banales Alt. Standing As needed D. Buchanan Public Safety S. Scales-Preston & Jelani Killings / Juan Banales Alt. Standing As needed 5:00 pm S. Albanese Sister City Committee Jelani Killings & Angelica Lopez / S. Scales-Preston Alt. Standing As needed K. Simonton Tobacco, Cannabis, Alcohol Policy Review Juan Banales & Jelani Killings Ad Hoc As needed G. Evans *Stipend of $170 per month
**Stipend of $100 per month
7 OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of a City Council Resolution to Authorize the City Manager to Execute an Agreement with Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center to Establish and Administer a Restaurant Coaching Program MEETING DATE: May 1, 2023
EXECUTIVE SUMMARY
The City and the Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center (“NorCal SBDC”) are proposing to enter into an agreement whereby NorCal SBDC shall coordinate the development and implementation of “Pittsburg Eats,” a program intended to help existing restaurateurs within Pittsburg modernize their operations and receive one-on-one technical assistance.
FISCAL IMPACT
Staff is requesting the City Council allocate $200,000 of American Rescue Plan Act (ARPA) funds to cover the cost of the contract. The contract commences on May 4, 2023 and expires on June 30, 2025.
RECOMMENDATION
City Council adopt a resolution authorizing the City Manager to execute an agreement with NorCal SBDC to establish and administer a restaurant coaching program.
BACKGROUND
On May 9, 2022, the City Council held a budget workshop, which included a discussion on the use of up to $350,000 for local business coaching. Staff has determined that a budget of $200,000 would be adequate for implementation of the program. 8 SUBCOMMITTEE FINDINGS
In 2022, the Community Services Subcommittee, as part of its discussion on potential uses of ARPA funds, considered the use of up to $350,000 for administration of a program which would support local business coaching, and recommended the coaching focus on assisting restaurants in rebounding from the COVID-19 pandemic. The Subcommittee has consistently supported the use of funding to for this endeavor.
STAFF ANALYSIS
As mentioned above, staff is recommending the City hire NorCal SBDC due to its experience, track record of working with local restauranteurs, and project management capabilities. As part of the base contract, NorCal SBDC would administer application and screening processes, cohort training, technical trainings and one-on-one programing, and virtual roundtables. A more detailed overview is provided in Attachments 3 and 4. All module would be provided in English and Spanish.
Specifically, the program will include several phases within the contract program.
1. The Kickoff Period Phase will focus on advising, curriculum development, and client onboarding.
2. Cohort Training Phase will include six classes focusing on finance, online presence, daily operations and food costing.
3. Advanced Classes and Advising Phase will present more technical assistance and guidance with one-on-one sessions.
4. Roundtable Phase will bring experienced restaurateurs and subject matter experts for the participants.
ATTACHMENTS:
1. Proposed Resolution
2. Professional Services Agreement
3. Pittsburg Eats Program Overview
4. Pittsburg Eats “Road Map”
Report prepared by: Jordan Davis, Director of Community and Economic Development 9 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 1 of 12
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF PITTSBURG AND
NORTHERN CALIFORNIA SMALL BUSINESS DEVELOPMENT CENTER
THIS Agreement (“Agreement”) for consulting services is made by and between the City of Pittsburg (“City”) and the Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center (“Consultant”) (together referred to as the “Parties”) as of May 4, 2023 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A, and incorporated herein, at the time and place and in the manner specified therein.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2025, or the date the Consultant completes the services specified in Exhibit A, whichever occurs first, unless the term of the Agreement is otherwise terminated or extended, as referenced herein.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided herein above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Two Hundred Thousand Dollars ($200,000), as set forth in Exhibit A, attached hereto and incorporated herein for services to be performed under this Agreement. This dollar amount is not a guarantee that the City will pay that full amount to the Consultant, but is merely a limit of potential City expenditures under this Agreement.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and 10 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 2 of 12
subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the fixed fees for services performed prior to the invoice date. Invoices shall contain the following information, unless waived by the City Manager, or his or her designee:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; The total number of deliverables completed under the Agreement by Consultant; and
The Consultant’s signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and deliverables completed. City shall pay undisputed invoices that comply with the above requirements within 30 days from the receipt of the invoice.
2.3 Final Payment. Consultant shall submit its final invoice within 60 days of completing its services. Consultant’s failure to submit its final invoice within this 60 day period shall constitute Consultant’s waiver of any further billings to, or payments from, City.
2.4 RESERVED.
2.5 Payment of Taxes. Consultant is solely responsible for the payment of all federal, state and local taxes, including employment taxes, incurred under this Agreement.
2.6 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a written authorization from the City Manager, or his or her designee.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement 11 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 3 of 12
Section 4. INSURANCE REQUIREMENTS. Before beginning any services under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant’s bid or proposal. Consultant shall be fully responsible for the acts and omissions of its subcontractors or other agents.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant in the amount required by applicable law. The requirement to maintain Statutory Workers’ Compensation and Employer’s Liability Insurance may be waived by the City upon written verification that Consultant is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $2,000,000 per occurrence and $4,000,000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Consultant has no owned autos, hired (code 8) and non-owned autos (Code 9). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis.
b. City, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Consultant, including 12 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 4 of 12
materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased,
hired, or borrowed by the Consultant. Coverage can be
provided in the form of an endorsement to the Consultant’s insurance at least as broad as CG 20 10 11 85, or both CG 20 10 10 01 and CG 20 37 10 01.
c. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance covered shall be
primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the
Consultant’s insurance and non-contributing.
d. The policy shall cover inter-insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
e. Consultant agrees to give at least 30 days prior written notice to City before coverage is canceled or modified as to scope or amount.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 per occurrence or claim covering the Consultant’s errors and omissions.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must 13 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 5 of 12
purchase an extended period coverage for a minimum of five (5) years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be
submitted to the City for review prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Submittal Requirements. Consultant shall submit the following to City prior to beginning services:
a. Certificate of Liability Insurance in the amounts specified in this Agreement; and
b. Additional Insured Endorsement as required for the General Commercial and Automobile Liability Polices.
4.4.2 Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.3 Deductibles and Self-Insured Retentions. Insurance obtained by the Consultant shall have a self-insured retention or deductible of no more than $100,000.
4.4.4 Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents, and subcontractors.
4.4.6 Subcontractors. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the scope of work, without prior written approval of the City Manager, or his or her designee. 14 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 6 of 12
4.4.7 Excess Insurance. If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: 1) obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; 2) order Consultant to stop work under this Agreement and withhold any payment that becomes due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof; and/or 3) terminate this Agreement.
Section 5. INDEMNIFICATION AND RESPONSIBILITIES.
5.1 General Requirement. To the fullest extent permitted by law, Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers (collectively, “Indemnitees”) from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, costs and fees of litigation, (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services under this Agreement, or its failure to comply with any of its obligations contained in this Agreement, or its failure to comply with any applicable law or regulation, except such Liability caused by the sole negligence or willful misconduct of City.
Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damage or claims for damages whether or not such insurance policies shall be determined to apply.
To the fullest extent permitted by law, City shall indemnify, defend with counsel acceptable to Consultant, and hold harmless Consultant and its officers, officials, employees, agents and volunteers (collectively, “Indemnitees”) from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, costs and fees of litigation, (collectively, “Liability”) of every nature arising out of or in connection with City’s obligations under this Agreement, or its failure to comply with any of its obligations contained in this Agreement, or its failure to comply with any applicable law or regulation, except such Liability caused by the sole negligence or willful misconduct of Consultant. 15 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 7 of 12
5.2 PERS Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever which is not explicitly included in this Agreement.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Consultant shall also, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. 16 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 8 of 12
7.4 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. Upon ten days’ prior written notice, either party may cancel this Agreement at any time and without cause upon such written notification to the other party. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Amendments. The parties may amend this Agreement only by a writing signed by the parties hereto.
8.3 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the City Manager, or his or her designee. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the scope of work, without prior written approval of the City Manager, or his or her designee.
8.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and 17 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 9 of 12
Consultant, including but not limited to the provisions of Section 5, shall survive the termination of this Agreement.
8.5 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.5.1 Immediately terminate the Agreement;
8.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.5.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.5.4 The remedies mentioned in this Agreement are not exclusive of any other right, power or remedy permitted by law. The City’s failure or delay in exercising any remedy shall not constitute a waiver of such remedy or preclude the further exercise of City’s rights.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. City and Service Provider shall have the right to publish, disclose, disseminate and use, in whole and in part, any data and information received or developed under this agreement. The parties agree that neither will use the name of the other party or its employees in any advertisement, press release or publicity with reference to this agreement or any product or service resulting from this agreement, without prior written approval of the other party.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all records or documents evidencing or relating to charges for services and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Pursuant to Government Code Section 8546.7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
18 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 10 of 12
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in Contra Costa County or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
10.7 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.8 Notices. Any notice, demand, request, consent or approval that either party is required to give the other pursuant to this Agreement, shall be in writing and may be given by either (i) personal service, or (ii) certified 19 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 11 of 12
United States mail, postage prepaid, return receipt requested. Notice shall be effective upon personal delivery or delivery to the addresses specified below, as reflected on the receipt of delivery or return receipt, as applicable.
Consultant : Cal Poly Humboldt Sponsored Programs Foundation 1 Harpst Street, SBS 427
Arcata, CA 95521-8299
ATTN: Christiana Gomez Frye
City: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
ATTN: City Manager
10.10 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. To the extent there are any inconsistences between this Agreement, the Exhibits, and Consultant’s proposal, the Agreement shall control To the extent there are any inconsistences between the Exhibits and the Consultant’s Proposal, the Exhibits shall control.
Exhibit A Scope of Services and Compensation Schedule
10.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.12 Construction of Agreement. Each party hereto has had an equivalent opportunity to participate in the drafting of the agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply hereto.
10.13 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties hereto, with no intent to benefit any third parties.
//
//
20 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 12 of 12
The Parties have executed this Agreement as of the Effective Date.
CITY OF PITTSBURG CONSULTANT
____________________________ ______________________________ Garrett Evans, City Manager Kacie Flynn, Executive Director Cal Poly Humboldt SPF
Attest:
____________________________
Alice E. Evenson, City Clerk
Approved as to Form:
____________________________
Donna Mooney, City Attorney
21 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 1 of 3
EXHIBIT A
SCOPE OF SERVICES and COMPENSATION SCHEDULE
Kickoff period (2-4 weeks) – $9,000 for advising, curriculum development, and client onboarding
● Outreach and Marketing in English and Spanish
● Application and Screening Process
● Content creation, curriculum development, and client onboarding ● Determination of necessity for Spanish language curriculum/advising ● Possible on-site pre-visits to participating restaurants ● Review each participant’s online presence
● Communicate the needs assessment individually
● Assign each a primary advisor
Deliverable: Restaurants are onboarded as Norcal SBDC clients (i.e. assigned a client number) and assigned a primary advisor
Cohort Training (6 weeks) – $16,000 per class for six classes, includes coursework and advising – $96,000
● Advisors from Restaurant Program and Finance Center will present course materials via Zoom webinar and be available for follow on one-on-one sessions ● Participants will work through their goals with their primary advisor ● As courses progress, advisors work with clients to do a deeper dive into their finances, getting online or maximizing online presence, reviewing daily operations and food costing, etc.
● Guest speakers from the field as inspiration and motivation join webinars from time to time
● Legacy Restaurant status tips and techniques, offered as a goal and aspiration ● Graduation night with the city and special dignitaries invited to meet successful participants
Deliverable: Classes to be invoiced upon completion, with attendance sheet provided and recording available as documentation
Round 2 (4 weeks) – $20,000 per class for four advanced classes and advising – $80,000
● Advisors from Restaurant Program and Finance Center will present advanced and more technical course materials via Zoom webinar and be available for follow on one-on-one sessions
● Program qualifies participating restaurants for an additional $5,000 22 Consulting Services Agreement between May 4, 2023
City of Pittsburg and NorCal SBDC Page 2 of 3
● Deeper dive into more complicated and specialty topics, joined by experts in these areas
● Graduation night with the city and special dignitaries invited to meet successful participants
Deliverable: Classes to be invoiced upon completion, with attendance sheet provided and recording available as documentation
Roundtable (ongoing) – $5,000 per event for three virtual or in-person industry gatherings - $15,000
● Three to four virtual or in-person industry gatherings are held, bringing together experienced restaurateurs, guest speakers, and subject matter experts.
Following a panel discussion, the floor is opened up for a free flowing and informative conversation.
● One-on-one sessions available outside of the meetings ● Available to both restaurateurs that did and those that did not qualify for the grants
● Able to reach a wider audience and support the food community at large ● If demand is there, can be held in Spanish
Deliverable: Roundtables to be invoiced upon completion, with attendance sheet provided and recording available (if held online) as documentation Note: Advisors listed above may be independent contractors 23 Consulting Services Agreement between May 4, 2023
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CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
CONSULTANT
By:
Title:
2784980.1
24 Norcal SBDC – Regional Restaurant Program
Proposal to the City of Pittsburg, CA
February 15, 2023
PittsburgEats
Working in partnership with the Norcal SBDC, the Pittsburg Office of Community and Economic Development provides technical and financial assistance to county constituents and businesses through a new program. Grants of up to $10,000 are made available to businesses that meet all eligibility criteria (as determined by the Pittsburg OCED), complete a comprehensive small business training program, and have multiple one-on-one expert advising sessions. Marketing and technical assistance provided by the SBDC help restaurants in Pittsburg to not just survive but thrive in the post-pandemic reality we live in today.
The pandemic and associated shut downs had far-reaching effects on local economies. No economy was immune, though restaurants were among the most impacted industries, and recovery has been slow. Consumer behavior has changed, supply chain disruption has played havoc on ingredient availability and menus, labor costs increased for a smaller available workforce, and rising inflation have combined to evaporate already thin profit margins. A cornerstone of a downtown economy, a thriving restaurant scene provides benefits to nearby shops, venues, their entire diverse supply chain, and their community at large. Conversely, losing restaurants in key commercial areas, or having high turnover, destabilizes a downtown that is looking for cohesion after so much time spent sheltered in place. By revisiting the basics of sound financial management, lean and efficient operations, exploring takeout and online ordering, increasing their digital presence and social media marketing, restaurants have a better chance to survive and thrive.
The Northern California Small Business Development Center Network (Norcal SBDC) is the largest small business technical assistance program operating in the State of California, and the fifth largest SBDC network in the United States. Serving the northern 36 counties of California, the Norcal SBDC has 15 years of experience providing direct training and one-on-one advising, meeting and generally exceeding annual goals. Utilizing a hub-and-spoke model, 18 locations spread throughout the region serve local entrepreneurs, and collaborate closely with regional programs such as the Finance Center (helping get the most challenging of deals through), International Trade, Manufacturing, and the Restaurant Program. The Restaurant Program represents the best of the restaurant industry in a region known for its culinary prowess, with successful entrepreneurs joining the ranks as advisors from all parts of the food industry. By collaborating with the 18 centers to adapt their curricula to the local context, the Restaurant Program leverages expansive resources and experience to help small restaurant and food businesses.
Enter PittsburgEats – a bespoke program to buoy the restaurants of Pittsburg, from the Waterfront and beyond. With an investment of $200,000, the Norcal SBDC proposes to provide high quality technical assistance in the form of training and one-on-one advising to support local restaurants and prepare them to apply for city grants ranging from $5,000 to $10,000. Building on the success of the Dream Fund, where the Norcal SBDC was able to leverage an investment from the State of California to provide nine hours of training and at least one hour of one-on-one 25 advising to over 900 entrepreneurs throughout Northern California to help them apply for over $6,000,000 in grant funds from the state! These were also in $5,000 and $10,000 increments, and transformative to the recipients and the communities they call home.
The Restaurant Program team will create a new program, PittsburgEats, to assist local restaurants with a customized training program and one-on-one consulting services at no cost to the clients.
The combination of training, and on-site and virtual one-on-one advising will help the businesses gain access to resources and guidance to ensure their success and sustainability. Following completion of the curriculum, local restaurants will be qualified for city grants with the SBDC team assisting in the screening and application process. The team will advise on how to best use the grant funds to achieve the best results and maximize their impact.
In collaboration with the City of Pittsburg, the Norcal SBDC will market PittsburgEats to the community, in English and Spanish. Depending on response, a version of PittsburgEats will be offered in Spanish. Cohorts will be formed, and in response to the types, sizes, and stages of restaurants enrolled, the training program will be tailored to the specific needs of each restaurant.
The topics covered may include things like menu planning, marketing strategies, cost control, customer service, and financial management. The Norcal SBDC has found that while most restaurant owners and employees understand some of these topics, a refresher and a deeper dive is almost always beneficial as they can analyze real work challenges in a new light, providing real benefit to them, their clients, and their communities.
Classroom work will be augmented by one-on-one advising. PittsburgEats will feature a high- touch approach, one that the Norcal SBDC does not typically provide, but we believe will create significant impact for the restaurants in Pittsburg. While clients will be encouraged to contact their advisors by phone or Zoom meeting, sessions can also be held on-site at the client’s facility.
Whether virtual or in -person, the advisor will have the ability to ‘see’ the restaurant and give the client actionable advice and support.
The Norcal SBDC will also convene periodic roundtables for any interested restaurants in Pittsburg, not just for program participants. These roundtables will bring together experienced restauranteurs from the
The goal of this program is to provide the restaurants with the resources they need to succeed and help to create a vibrant restaurant scene in the area. By pre-qualifying candidates, the Norcal SBDC will provide robust training and mentoring to the restaurants of Pittsburg. The Norcal SBDC knows that the City can do appropriate due diligence on grant recipients, but by partnering with the SBDC, the City can be confident that their grant funds are going to the best and most prepared candidates. We look forward to working with the City of Pittsburg to provide this invaluable assistance to local restaurants.
26 Proposed Schedule
Session 1 – From Survive to Thrive!
Your restaurant has been in survival mode for too long, take the first steps on your journey to thriving. This webinar is a brief introduction to entrepreneurship and what goes into managing a legacy restaurant. It will include a high-level overview of some of the things that will be critical to your success, including assessing how well suited your restaurant operation is in the current food environment, brushing up your entrepreneurial skills, and how to make sure your business is visible to the public in the current food world.
In this session, you’ll meet restaurant program advisors, and we’ll cover the importance of planning in creating successes for a small business. We will also spend some time providing an overview of different topics we will cover in the following sessions, such as:
● Needs Assessment – what do you need to grow and thrive? ● Modernizing menus
● Social Media Marketing – using social media to enhance presence, online ordering, and sales
● Finances – Food Costing
● ADA compliance
● Design/Remodel 101: How to make the most of your space ● Identify other ways to stay relevant and increase sales – Events, Tastings, Signature products, and off-site sales of artisan products like sauces and dressings
Session 2 – Daily Operations and Planning for Success
Businesses with a plan are 6 times MORE successful than a business without a plan. But there are multiple types of business plans, so how do you know which type best meets your needs and how do you go about creating one? In this interactive Webinar, we will guide you through your options and help you as you work through a simple tool that will get you started creating a business plan. The course will cover:
● Creating a business plan
● Daily operations
● Job descriptions
● The value of a quality employee handbook
● SOP’s
● Modernizing the menu
● Financial Requirements
Session 3 – Small Business Finance 101
For many entrepreneurs, understanding the numbers can be a daunting task. This task will be made accessible by an expert joining us from the Norcal SBDCs Finance Center. This engaging webinar is designed to help startup and existing entrepreneurs demystify the most important aspects of financial management for small businesses. This is not a dull accounting course, but rather an in-depth exploration of the most essential financial topics from an entrepreneur's perspective. Join us for practical and powerful financial information to help you thrive in your business. Take control of your financial future and join us for a webinar on money management! You'll learn the basics and fine-tune your skills to make responsible decisions in both your personal and business life. Topics include:
27 ● Financial planning
● Managing bank accounts
● Start-up budgets
● Simple projections.
● Essential financial topics for the restaurateur
● The three most crucial financial statements and how to read
Session 4 – Marketing and Social Media for Success
Join us for an engaging and informative webinar on the essential building blocks of marketing, as today we will work with the premier Marketing expert working with the Norcal SBDC! You will gain valuable insights, understand the competitive landscape, learn to identify and target your ideal audience, and develop a comprehensive marketing plan using the classic 4Ps. This course will provide you with the knowledge and skills you need to stand out from the competition and drive success for your business.
Getting your business “digitized” to reach all your customers is critical to success these days.
You'll learn the ins and outs of the major online social media apps, how to reach your customer with engaging posts vs sales posts and how to simplify the posting process itself with scheduling software. What you can expect:
● Platforms to get your business online
● Review of the major online media companies
● How to find local influencers to promote your food
● Photography tips
● Promotional vs engaging posts and why you need mostly engaging ● Tracking the effectiveness of your efforts
Session 5 – Understanding Food Cost
For many entrepreneurs, understanding food cost can be overlooked, misunderstood, or simply lost on that endless TO DO list that you never quite get around to doing. In this course, you will finally start costing your menu items! Whether you are more comfortable programming an Excel sheet or buying a food costing software program, this session will give you the tools you need and the standards to help you get your costs understood and how to price your food to ensure you stay in business, profitably. What you can expect:
● How to price for profitability
● Industry benchmark for food cost
● How to work from a budget
● Industry techniques for calculating plate cost
● Understanding Profit and Loss statements
● Weekly flashcards to keep on track
● Best practices for managing inventory
Session 6 – Hospitality: Become a Legacy Business
The Hospitality Industry is our chosen field, yet its meaning is often overlooked and misunderstood. We bring it front and center, defined and presented by an expert with a toolkit for all. Identify the traits of long term, multi-decade, and even multi-generational restaurants and food businesses. Catering? Special Events? Tastings? Artisan Food Products? Grab and Go? 28 Culinary Classes, in person or online? Community Involvement? Support a local team or cause? We will dive into topics like:
● Stamping your brand and experience from your to-go bags and into the minds and hearts – and bellies – of your customers
● New products, merchandise, and swag
● Fundamentals of Hospitality
Finally – The last week will feature a ‘Graduation Night’ where a special gathering will be held bringing together all program participants, their advisors and instructors, local dignitaries, and community members to show off what they’ve learned! A convivial night of sharing experiences and swapping stories, offering gratitude to the gracious funder that is the City of Pittsburg, showing off specialty food and drinks, this night will be a celebration of PittsburgEats, and more importantly, will be the first steps in building a cohesive restaurant scene in Pittsburg.
The Norcal SBDC envisions that clients that complete all six of the above courses, plus engage in one-on-one meetings with their advisors would be considered pre-qualified for a $5,000 grant from
the City of Pittsburg. If the City would like to increase its impact, the Norcal SBDC has a second round of coursework that it recommends. This coursework complements and builds on the first six classes and could be used to prequalify restaurants for an additional $5,000 investment.
Round 2
Session 7 – Design, Remodel, and ADA Compliance
Are you a restaurant owner looking to make the most of your space? Join our design and ADA compliance experts on this webinar as we teach you the insider secrets to building your restaurant environment out for maximizing sales and seating options. From simple fixes to large scale remodels, not to mention paying for them, there are a number of things to consider before changing one’s space, but these changes can have significant and positive effects on your bottom line!
Session 8 – Small Business Finance 201 – Financial Planning, Projections, and Overhaul This is a deeper dive for anyone with a need to not only understand their sales and financial figures but to do more planning for the future. It will include a deeper dive into one’s financials, how to consider taking on loans to achieve concrete goals such as remodels, expansion, additional locations, or just how to get a better sense of how to grow and plan for the future
Session 9 – Human Resources
No more crying in the walk-in! Get ahead of the challenges and learn how to proactively manage your workforce. Your head chef may know the difference between a batonnet, a julienne, and a brunoise, but does he know how to get the most of his staff and stay in compliance with sometimes tricky HR rules and regulations? Additionally, these days you have to motivate your staff in a wholly different way than many of us are accustomed to, win the battle for Generation Z hearts and minds, and have the stable, happy, and efficient team of your dreams!
29 Norcal SBDC – Regional Restaurant Program
Proposal to the City of Pittsburg, CA
February 15, 2023
Road Map for PittsburgEats
Kickoff period (2-4 weeks)
● Outreach and Marketing in English and Spanish
● Application and Screening Process
● Determination of necessity for Spanish language curriculum/advising ● Possible on-site pre-visits to participating restaurants ● Review each participant’s online presence
● Communicate the needs assessment individually
● Assign each a primary advisor
Cohort Training (6 weeks)
● Advisors from Restaurant Program and Finance Center will present course materials via Zoom webinar and be available for follow on one-on-one sessions ● Participants will work through their goals with their primary advisor ● As courses progress, advisors work with clients to do a deeper dive into their finances, getting online or maximizing online presence, reviewing daily operations and food costing, etc.
● Guest speakers from the field as inspiration and motivation join webinars from time to time
● Legacy Restaurant status tips and techniques, offered as a goal and aspiration ● Graduation night with the city and special dignitaries invited to meet successful participants
Round 2 (4 weeks)
● Program qualifies participating restaurants for an additional $5,000 ● Deeper dive into more technical topics, joined by experts in these areas ● Graduation night with the city and special dignitaries invited to meet successful participants
Roundtable (ongoing)
● Three to four virtual or in-person industry gatherings are held, bringing together experienced restaurateurs, guest speakers, and subject matter experts. Following a panel discussion, the floor is opened up for a free flowing and informative conversation. ● One-on-one sessions available outside of the meetings ● Available to both restaurateurs that did and those that did not qualify for the grants ● Able to reach a wider audience and support the food community at large ● If demand is there, can be held in Spanish
30 Resolution No. 23- Page 1 of 2 May 1, 2023
BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:
Authorizing the City Manager to Execute) RESOLUTION NO. 23-_____ a Professional Services Agreement with )
Cal Poly Humboldt Sponsored Programs)
Foundation’s Northern California Small )
Business Development Center to )
Establish and Administer a Restaurant )
Coaching Program )
WHEREAS, the COVID-19 pandemic has severely impacted the restaurant industry, with many restaurants continuing to feel the effects of the required closures for much of 2020 and 2021; and
WHEREAS, the City Council seeks to assist its business community in rebounding and modernizing operations to continue to flourish in today’s market; and WHEREAS, on May 9, 2022, the City Council held a budget workshop, which included a discussion on the use of up to $350,000 of American Rescue Plan Act (ARPA) funding for local business coaching; and
WHEREAS, in 2022, the Community Services Subcommittee, as part of its discussion on potential uses of ARPA funds, considered the use of this funding for administration of a program which would support local business coaching, and recommended the coaching focus on assisting restaurants in rebounding from the COVID- 19 pandemic; and
WHEREAS, the Subcommittee has consistently supported the use of funding to for this endeavor; and
WHEREAS, staff has determined that a budget of $200,000 would be adequate for implementation of the program; and
WHEREAS, the Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center (“NorCal SBDC”) was selected for its experience in assisting small businesses, including restaurants in Pittsburg with similar one-on-one training and technical assistance.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the City Manager to execute an agreement with Cal Poly Humboldt Sponsored Programs Foundation’s Northern California Small Business Development Center for local restaurant coaching in an amount not to exceed Two Hundred Thousand Dollars ($200,000).
31 Resolution No. 23- Page 2 of 2 May 1, 2023
BE IT FURTHER RESOLVED that the agreement shall commence May 4, 2023 and expire June 30, 2025.
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of May 2023, by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
________________________________
Shanelle Scales-Preston, Mayor
ATTEST:
______________________________
Alice E. Evenson, City Clerk
32 Resolution No. 23- Page 1 of 3 May 1, 2023
BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:
Adoption of a City Council Resolution ) RESOLUTION NO. 23- Accepting Metropolitan Transportation )
Commission OBAG 3 Grant for Project )
2052 – Delta De Anza Multimodal Trail )
Safety Improvements )
WHEREAS, the City of Pittsburg submitted an application to the Metropolitan Transportation Commission (MTC) for funding assigned to MTC for programming discretion, which includes federal funding administered by the Federal Highway Administration (FHWA), and federal or state funding administered by the California Transportation Commission (CTC) such as Surface Transportation Block Grant Program (STP) funding, Congestion Mitigation and Air Quality Improvement Program (CMAQ) funding, Transportation Alternatives (TA) set-aside/Active Transportation Program (ATP) funding, and Regional Transportation Improvement Program (RTIP) funding (herein collectively referred to as “Regional Discretionary Funding”) for Project 2052—Delta de Anza Multimodal Trail Safety Improvements (the “Project”) for the One Bay Area Grant 3 (OBAG 3) Program; and
WHEREAS, the United States Congress from time to time enacts and amends legislation to provide funding for various transportation needs and programs, (collectively, the Federal Transportation Act) including, but not limited to the Surface Transportation Block Grant Program (23 U.S.C. § 133), the Congestion Mitigation and Air Quality Improvement Program (CMAQ) (23 U.S.C. § 149), and the Transportation Alternatives (TA) set-aside (23 U.S.C. § 133); and
WHEREAS, state status, including California Streets and Highways Code §182.6, §182.7, and 2381(a)(1), and California Government Code 14527, provide various funding programs for the programming discretion of the Metropolitan Planning Organization (MPO) and the Regional Transportation Planning Agency (RTPA); and WHEREAS, pursuant to the Federal Transportation Act and any regulations promulgated thereunder, eligible project sponsors wishing to receive federal or state funds for a regionally significant project shall submit an application first with the appropriate MPO, or RTPA, as applicable, for review and inclusion in the federal Transportation Improvement Program (TIP); and
WHEREAS, MTC is the MPO and RTPA for the nine counties of the San Francisco Bay region; and
33 Resolution No. 23- Page 2 of 3 May 1, 2023 WHEREAS, MTC has adopted a Regional Project Funding Delivery Policy (MTC Resolution No.3606, Revised) that sets out procedures governing the application and use of Regional Discretionary Funding; and
WHEREAS, the City of Pittsburg is an eligible project sponsor for Regional Discretionary Funding; and
WHEREAS, the City Council authorizes the City Manager or designee to execute and file an application with MTC for Regional Discretionary Funding for the Project as referenced in this Resolution.
WHEREAS, as part of the application and award for Regional Discretionary Funding, the City commits to allocate local matching funds to the Project; and WHEREAS, the City understands that the Regional Discretionary Funding is fixed at the programmed amount, and therefore any cost increase cannot be expected to be funded with additional Regional Discretionary Funding; and WHEREAS, the Project will comply with the procedures, delivery milestones, and funding deadlines specified in the Regional Project Funding Delivery Policy (MTC Resolution No. 3606, Revised); and
WHEREAS, the City will complete the project as described in the application, subject to environmental clearances, and if approved, as included in MTC’s federal Transportation Improvement Program (TIP); and
WHEREAS, the City understands the funding deadlines associated with these funds and will comply with the provisions and requirements of the Regional Project Funding Delivery Policy (MTC Resolution No. 3606, Revised), and the City has, and will retain the expertise, knowledge and resources necessary to deliver federally-funded transportation and transit projects, and has assigned, and will maintain a single point of contact for all FHWA- and CTC-funded transportation projects to coordinate within the agency and with the respective Congestion Management Agency (CMA), MTC, Caltrans, FHWA, and CTC on all communications, inquires or issues that may arise during the federal programming and delivery process for all FHWA- and CTC-funded transportation and transit projects implemented by City; and WHEREAS, there is no legal impediment to the City making applications for or being granted the funds, and there is no pending or threatened litigation that might in any way adversely affect the Project or the ability of the City to deliver such project. 34 Resolution No. 23- Page 3 of 3 May 1, 2023 NOW, THEREFORE, BE IT RESOLVED that the City Council hereby accepts the MTC OBAG 3 grant award in the amount of $4,427,000 and that the above recitals are true and correct and incorporated herein.
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of May, 2023 by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
_____________________________
Shanelle Scales-Preston, Mayor
ATTEST:
________________________________
Alice E. Evenson, City Clerk
35 OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of a City Council Resolution Accepting a Metropolitan Transportation Commission OBAG3 Grant for Project 2052—Delta de Anza Multi Modal Trail Safety Improvements
MEETING DATE: May 1, 2023
EXECUTIVE SUMMARY
On January 2023, the Contra Costa Transportation Authority (CCTA) approved a list of projects recommended for funding through the One Bay Area Grant 3 (OBAG 3). One of the projects included in the list is Project 2052—Delta de Anza Multimodal Trail Safety Improvements. As part of the OBAG 3 process, the City will submit the attached resolution of local support.
FISCAL IMPACT
The City anticipates an OBAG grant award of $4,427,000 for Project 2052—Delta de Anza Multimodal Trail Safety Improvements (the “Project”). The minimum local match is 11.47% ($507,777) of the total federally funded cost. The local match is expected to be divided amongst all participating agencies (Contra Costa County, East Bay Regional Park District, Pittsburg, and Antioch).
RECOMMENDATION
City Council adopt the attached resolution accepting funding assigned to the Metropolitan Transportation Commission (MTC) through OBAG 3, commit to a future allocation of local matching funds, and state assurance to complete the Project.
BACKGROUND
On May 2022, CCTA announced a call for projects for the OBAG 3 program to allocate approximately $750 million in federal funding for projects from 2023 to 2026.
On July 15, 2022, the City submitted the OBAG 3 application for the Project and was selected through a competitive process to receive $4,427,000 in Congestion Mitigation and Air Quality (CMAQ) funding.
36 SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.
STAFF ANALYSIS
Project 2052—Delta de Anza Multimodal Trail Safety Improvements includes a series of safety and operational improvements within the communities of Bay Point, Pittsburg, and Antioch. These enhancements will address policies common to MTC Regional Safety/Vision Zero Policy, MTC’s Equity Platform, MTC Regional Active Transportation Plan, the County Climate Action Plan, CCTA’S Vision Zero Policy, and the Pittsburg Moves Active Transportation Plan.
This existing paved, multi-use hiking, bicycling, and equestrian trail currently spans over 16 miles, connecting cities within central and eastern Contra Costa County. The highly used trail provides important connections for recreational and commute trips by alternative modes, linking local neighborhoods to key community assets such as schools, parks, grocery stores, and BART stations.
The Project will enhance safety at key conflicting points and augment the overall sustainability and operations of the facility through the implementation of at-grade crossing improvements, lighting, and increased green space. Thirty-five (35) at-grade crossings exist on the Delta De Anza Trail. Of these 35 crossings, 17 occur on facilities that are part of CCTA’S High Injury Network, and six exist on facilities identified in the CCTA’s priority network for safety. In coordination with Contra Costa County, City of Antioch, East Bay Regional Park District, and East Bay Municipal Utility District (EBMUD), the City of Pittsburg will design and construct improvements that may or may not include the following:
1. Delta de Anza Trail Intersection: Install raised Crosswalks, rapid rectangular flashing beacons, high visibility crosswalks, lighting, way-finding signage, and green bike lanes.
2. Delta de Anza Trail Improvements: Install landscaping, lighting, trail pavement, fencing, and other improvements consistent with the City’s Living Green Gardens initiative for sustainability.
The Project will serve as a connector project that will improve access and mobility for large numbers of pedestrians and bicyclists though these areas.
ATTACHMENTS: Resolution
Report Prepared By: Julissa Rico Ruiz, Consultant Engineer 37 OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of a City Council Resolution Authorizing the City Manager to Execute a Consulting Services Agreement with Northpoint Security Services, Inc. for Park Security Patrol Services
MEETING DATE: May 1, 2023
EXECUTIVE SUMMARY
After a detailed review of the responses to the City’s Request for Proposals for Pittsburg Park Security Patrol Services (RFP), staff recommends the City Council to authorize the City Manager to execute a Consulting Services Agreement (Agreement) with Northpoint Security Services, Inc.
FISCAL IMPACT
The proposal is for $200,000 for a term commencing July 1, 2023 and expiring June 30, 2023. Funding will be from Measure M Surplus Funds which currently has a balance of $665,000 for this effort.
RECOMMENDATION
City Council adopt the Resolution authorizing the City Manager to: 1) execute the Agreement with Northpoint Security Services, Inc. for park security patrol services; 2) extend the term of the contract twice for one additional year each; 3), use an additional $200,000 in compensation for each of the two one-year term extensions; and 4) appropriate Measure M surplus funds to fund the services commencing Fiscal Year 2023/24.
BACKGROUND
COVID guidelines limited access to shelters because shelters with congregate accommodations were prohibited. Only the unhoused meeting specific requirements were admitted to the Project Room Key shelters. The guidelines also limited interactions with encampments to minimize the spread of COVID. Although the City received complaints, staff was limited in what they could do because of strict COVID guidelines. As COVID subsided and guidelines eased, staff began conducting clean ups of encampments to reduce the spread of COVID and other communicable diseases. 38 To reduce opportunities of the encampments reestablishing themselves in parks and facilities, staff from the Public Works, Police and Recreation Departments developed a pilot project for overnight patrols in April 2021. The initial term was for two months since it was a pilot project.
Because of the pilot project’s success, a request for proposal was conducted and staff reviewed proposals from five firms. On August 2,2021, by City Council Resolution 21-13975, a contract for park patrol services was awarded to Northpoint Security Services. Because of the park security patrol project’s continued success, the term of the contract was extended and is set to expire on June 30, 2023.
In anticipation of the current contract expiring, staff conducted another RFP and three security firms responded before the deadline of February 23, 2023. Staff reviewed the responses according to the following criteria: experience providing security services of similar scope and complexity in communities comparable to Pittsburg, ability to perform the work in the time specified, knowledge of the City and surrounding area and cost.
SUBCOMMITTEE FINDINGS
This item was discussed in the Community Services Subcommittee on February 27, 2023.
STAFF ANALYSIS
The City issued the RFP for overnight security patrols at certain City parks and facilities, in order to improve health and safety, and reduce incidences of trespassing and damage to public facilities from vandalism and theft that seem to occur overnight.
Respondents were asked to provide a description of experience and years in business, training and experience of individuals who will perform the services, and information regarding equipment and vehicles being used.
Staff reviewed proposals from three firms: Patrol Solutions, Shield Protection & Public Safety, Inc. dba Spearhead Protection and Northpoint Security Services, Inc.
This service is a supplement to the City’s own Park Patrol, which closes and locks restrooms and park gates at dusk and re-opens them shortly after dawn each day. The City’s Park Patrol and the contracted park security patrol service’s combined efforts have helped to improve the conditions at the City’s parks and facilities.
ATTACHMENTS: Contract for Services
Resolution
Report Prepared By: Ishani Rasanayagam, Administrative Analyst II 39 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF PITTSBURG AND
NORTHPOINT SECURITY SERVICES, INC.
THIS Agreement (“Agreement”) for consulting services is made by and between the City of Pittsburg (“City”) and Northpoint Security Services, Inc., a California corporation (“Consultant”) (together referred to as the “Parties”) as of July 01, 2023 (the “Effective Date”).
Section 1. SERVICES . Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A, and incorporated herein, at the time and place and in the manner specified therein.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2024 or the date the Consultant completes the services specified in Exhibit A, whichever occurs first, unless the term of the Agreement is otherwise terminated or extended, as referenced herein. The City, at its sole discretion, may extend the term twice, for one additional year each. If the term is extended, compensation may be increased up to, but no more than the CPI for the Bay Area.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, requests in writing the reassignment of any such persons to ensure Consultant performs services in accordance with the Standard of Performance, Consultant shall, immediately upon receiving City’s request, reassign such persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided herein above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Two Hundred Thousand dollars ($200,000.00), as set forth in Exhibit B, attached hereto and incorporated herein for services to be performed and reimbursable expenses incurred under this Agreement. This dollar amount is not a guarantee that the City will pay that full amount to the Consultant but is merely a limit of potential City expenditures under this Agreement.
40 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date.
Invoices shall contain the following information, unless waived by the City Manager, or his or her designee:
Serial identification s of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; At City’s option, for each wor k item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
The total number of hours of work performed under the Agreemen t by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
The Consultant ’s signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall pay undisputed invoices that comply with the above requirements within 30 days from the receipt of the invoice.
2.3 Final Payment. Consultant shall submit its final invoice within 60 days of completing its services. Consul tant’s failure to submit its final invoice within this 60 day period shall constitute Consultant’s waiver of any further billings to, or payments from, City.
2.4 Reimbursable Expenses. Reimbursable expenses, if any, are specified in Exhibit B and included in the total compensation referenced in Section 41 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
2. Expenses not listed in Exhibit B are not chargeable to, or reimbursable by, City.
2.5 Payment of Taxes. Consultant is solely responsible for the payment of all federal, state and local taxes, including employment taxes, incurred under this Agreement.
2.6 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a written authorization from the City Manager, or his or her designee.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement
Section 4. INSURANC E REQUIREMENTS. Before beginning any services under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of this Agreement. The cost of suc h insurance shall be included in the Consultant’s bid or proposal. Consultant shall be fully responsible for the acts and omissions of its subcontractors or other agents.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant in the amount required by applicable law. The requirement to maintain Statutory Workers’ Compensation and Employer’s Liability Insurance may be waived by the City upon written verification that Consultant is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $2,000,000 per occurrence and $4,000,000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. 42 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Consultant has no owned autos, hired (code 8) and non-owned autos (Code 9). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Au tomobile Liability Insurance shall cover on an occurrence basis.
b. City, its officers, officials , employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Consultant, including materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased,
hired, or borrowed by the Consultant. Coverage can be
provided in the form of an endorsement to the Consultant’s insurance at least as broad as CG 20 10 11 85, or both CG 20 10 10 01 and CG 20 37 10 01.
c. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance covered shall be
primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the
Consultant’s insurance and non-contributing.
d. The policy shall cover inter-insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
e. Consultant agrees to give a t least 30 days prior written notice to City before coverage is canceled or modified as to scope or amount.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than 43 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
$1,000,000 per occurrence or claim covering the Consultant’s errors and omissions.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive dat e of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replace d with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must purchase an extended period coverage for a minimum of five (5) years after completion of work under this Agreement.
d. A copy of the claim repor ting requirements must be
submitted to the City for review prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Submittal Requirements. Consultant shall submit the following to City prior to beginning services:
a. Certificate of Liability Ins urance in the amounts specified in this Agreement; and
b. Additional Insured Endorsem ent as required for the General Commercial and Automobile Liability Polices.
4.4.2 Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.3 Deductibles and Self-Insured Retentions. Insurance obtained by the Consultant shall have a self-insured retention or deductible of no more than $100,000.
4.4.4 Wasting Policies . No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). 44 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents, and subcontractors.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, and Consultant shall ensure that City, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.
4.4.7 Excess Insurance. If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: 1) obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; 2) order Consultant to stop work under this Agreement and withhold any payment that becomes due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof; and/or 3) terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.
5.1 General Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage, or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, subcontractors and subcontractors arising out of or in connection with the performance of the Services, the Project out of 45 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
or in connection with the performance of the services, the Project or this Agreement, including without limitation the payment of all consequential damages, attorneys’ fees and other related costs and expenses.
Contractor shall defend, at Contractor’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that many be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall pay and satisfy any judgement, award or decree that many be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any ad all legal expenses and costs, including reasonable attorneys’ fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall nit be restricted to insurance proceeds, if any, received by City or its directors, officials, officers, employees, agents, or volunteers. Notwithstanding the foregoing, to the extent Contractor’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. This Section 5.1 shall survive any expiration or termination of this Agreement.
5.2 PERS Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
46 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Consultant shall also, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City.
7.4 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Section 8. TERMINAT ION AND MODIFICATION.
8.1 Termination. Upon ten days’ prior written notice, City may cancel this Agreement at any time and without cause upon such written notification to Consultant. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
47 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
8.2 Amendments. The parties may amend this Agreement only by a writing signed by the parties hereto.
8.3 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the City Manager, or his or her designee. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the City Manager, or his or her designee.
8.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant, including but not limited to the provisions of Section 5, shall survive the termination of this Agreement.
8.5 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.5.1 Immediately terminate the Agreement;
8.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.5.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.5.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
8.5.5 The remedies mentioned in this Agreement are not exclusive of any other right, power or remedy permitted by law. The City’s failure or delay in exercising any remedy shall not constitute a waiver of such remedy or preclude the further exercise of City’s rights. 48 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
Section 9. KEEPING A ND STATUS OF RECORDS.
9.1 Records Created as Part o f Consultant’s Performance. All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City.
Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement, and the City may use, reuse or otherwise dispose of the documents without Consultant’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential drafts and will not be released to third parties by Consultant without prior written approval of City.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Pursuant to Government Code Section 8546.7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLA NEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in Contra Costa County or in the United States District Court for the Northern District of California. 49 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whol e or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach . The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
10.7 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.8 Notices. Any notice, demand, request, consent or approval that either party is required to give the other pursuant to this Agreement, shall be in writing and may be given by either (i) personal service, or (ii) certified United States mail, postage prepaid, return receipt requested. Notice shall be effective upon personal delivery or delivery to the addresses specified below, as reflected on the receipt of delivery or return receipt, as applicable.
50 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
Consultant : Northpoint Security Services, Inc.
2063 Main Street, Suite #106
Oakley, CA 94561
ATTN: Bill Davies, Owner
City: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
ATTN: City Manager
10.9 Professional Seal. Where applicable in the determination of the City Manager, or his or her designee, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility.”
10.10 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A and B represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
To the extent there are any inconsistences between this Agreement, the Exhibits, and Consultant’s proposal, the Agreement shall control To the extent there are any inconsistences between the Exhibits and the Consultant’s Proposal, the Exhibits shall control.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
10.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together sh all constitute one agreement.
10.12 Construction of Agreement. Each party hereto has had an equivalent opportunity to participate in the drafting of the agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply hereto.
10.13 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties hereto, with no intent to benefit any third parties.
The Parties have executed this Agreement as of the Effective Date. 51 CITY OF PITTSBURG CONSULTANT
y /t_ ~
Garrett Evans, City Manager 'Bill Davies, Owner
Attest:
Alice E. Evenson, City Clerk
Approved as to Form:
Donna Mooney, City Attorney
Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
52 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
EXHIBIT A
SCOPE OF SERVICES
53 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
EXHIBIT B
COMPENSATION SCHEDULE
54 Consulting Services Agreement between
City of Pittsburg and Northpoint Security Services, Inc.
July 01, 2023
CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
CONSULTANT
By:
2784980.1
Title:
55 EXHIBIT A
List of Pittsburg City Parks and Facilities
Park/Facility Address/Location
8th St. Greenbelt 8th Street (between Harbor St. and Cumberland St.) 4th St. Plaza 4th St (between Railroad Ave. and Cumberland St.) Americana Park Bend of Emerson Drive, heading into Parkview Dr (bordering Salinas Ct) Buchanan Park 4040 Harbor St
Buckley Park Plaza Railroad Avenue, between E 5th and E 6th Streets California Seasons Park 1951 Seasons Way
California Theater 351 Railroad Avenue
Central Park 2987 Pittsburg - Antioch Hwy
Central Harbor Park End of Cutter Ave, off Marina Blvd
City Park E 17th & Railroad Ave
Columbia Linear Park End of Central Avenue
De Anza Park E Trident Drive
Environmental Center 2581 Harbor Street
Giacomelli Park 2011 W. Leland Road
Harbor Master Office 51 Marina Blvd
Heritage Park Plaza 124 E 4th St
Highlands Park 4234 Goldenhill Dr
Highlands Ranch Park Rangewood Drive, off Buchanan Rd
Hillsdale Park 2240 Daffodil Dr
John Henry Johnson Park West Leland Road at John Henry Johnson Parkway (North side of Leland Road)
John Henry Johnson Trailhead John Henry Johnson Parkway (south side of Leland Road) Larry Lasater Park Corner of Santa Teresa Dr and Rancho Bernardo Dr Marina Boat Ramp Marina Blvd
Marina Center 51 Marina Blvd
Marina Walk Park 65 Devito St
Mariner Park 8th St
Modular Unit Bend of River Park Dr. heading into Riverview Park Museum Parking Lot 515 Railroad Ave
Oak Hills Park 2280 Southwood Dr
Plaza Marina Building 51 Marina Blvd
Public Library 80 Power Avenue
Riverview Park End of River Park Drive
Santa Fe Linear Park E. Santa Fe Ave
Senior Center 300 Presidio Lane
Small World Park 2151 Harbor St
Stoneman Trailhead End of John Henry Johnson Parkway
Veteran's Memorial 2551 Harbor St next to Small World Amusement Park Village Park at New York Landing 240 Pebble Beach Loop
Woodland Hills Park 315 Alta Vista Dr (corner of Crestview and Alta Vista) 56 Pittsburg Park Security Patrol Services
FY 2023-2024
Patrol Locations Areas of concern
STOP 1
Highlands Ranch Park
South of Buchanan Road near
Ventura
Parking lot, Ball Fields/ Dog Park
STOP 2
Highlands Park
4234 Goldenhill Dr
Open area
STOP 3
Buchanan Park
4150 Harbor St
Parking lot, creek area, around facilities
STOP 4
City Park
17th & Railroad Ave
Parking lot, bathrooms, Fields
STOP 5
Ray Giacomelli Park
2011 West Leland Rd
Parking lot, bathroom
STOP 6
John Henry Johnson Park
West Leland Road at John
Henry Johnson Parkway (North
side of Leland Road)
Parking lot, bathroom
STOP 7
Central Park
Pittsburg-Antioch Hwy
Parking lot, Playground Equipment,
Soccer Field
STOP 8
Santa Fe Linear Park
E. Santa Fe St
Park area that runs along Santa Fe
STOP 9
Harbor Master Office
51 Marina Blvd
Parking lot
STOP 10
Marina Boat Ramp
Marina Blvd
Parking lot, bathrooms, open area
STOP 11
Marina Walk Park
65 Devito St
STOP 12
Riverview Park
Bayside Drive
Parking lot, bathrooms, open area
STOP 13
Mariner Park
8th St
Vandalism and after hours use
STOP 14
California Seasons Park
1951 Seasons Way
Open area
57 Exhibit B
Cost Structure
Northpoint Security Services, Inc. (“CONSULTANT”) shall provide The City of Pittsburg ( “CITY”) with licensed and insured security officers. The all- inclusive hourly or monthly rates for this project are as follows:
Rate Structure
Level One Security Officers - $39.73 per hour
Level Two Security Officers - $44.73 per hour
P a t r o l V e h i c l e - $ 2 ,470 per month
Level Two Security Officers are those who have at least two (2) years of experience with the Cit y under the current park patrol services contract
All non-holiday overtime is factored into the monthly rate Vehicle cost includes fuel, maintenance, cleaning, insurance and all other operating costs
The Account Manager and Supervisor’s time are not billed to the City at any given time The Account Manager and Supervisors will be on site on a regular basis at unannounced times to observe the assigned security officers. They will also serve as a liaison between the City and Consultant.
Scheduled overtime shall not be billed to the City. All project overtime has been accounted for in the billable rate. However, any unscheduled changes or additions requested by the City may result in overtime charges.
Holidays will be billed at time and a half. Consultant observes all federally recognized holidays.
Uniforms, equipment, or other expenses shall not be billed to the City at any time.
Pre-employment screening, training, ongoing training, and all other related expenses shall not be billed to the City.
58 PROPOSAL FOR
Ishani Rasanayagam
Administrative Analys I
City of Pit u
i Avenue
t g, CA 94565
Northpoint Security Services, Inc.
Bill Davies, Owner
2063 Main Street, Suite #106
Oakley, CA 94561
Phone 800‐976‐6619
[email protected]
California State License PPO-15383
59 Proposal for Security 2
Ishani Rasanayagam
City of Pittsburg 65
Civic Avenue
Pittsburg, CA 94565
Ishani,
It is with great pleasure we submit our proposal in response to the Request for Proposal, to provide security se rvices for your property. We ho pe that this may be the start of an exciting and productive relationship.
Northpoint Security Services, Inc. is an acclaimed firm of security agents with a reputation for both effective security solutions and the use of innovative technology in the protection of life and property. We have a portfolio of completed and on‐ going projects with particular emphasis on retail and commercia l properties. We think that your project is well suited to our strengths and asp irations
We ask a few moments of your time to review the attached inform ation package.
We are extremely interested in the project and we very much hop e that you consider the Northpoint Security Services, Inc. team as a stron g candidate for selection.
Yours Sincerely,
William T. Davies.
President, CEO
Northpoint Security Services
60 Proposal for Security 3
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 Northpoint Security Services, Inc. Personnel
Applicant Screening
Training
Method
Patrol
Uniforms
Supervision
24 Hour Customer Service
Cost
Liability
Executive Protection
Uniformed Security Security
Consulting International
Travel Security
Maritime Patrol & Port Security
K‐9 Service
“Exhibit A”
Attachment 1 – Response to City specific questions
4 5
5 5
6 6
6 7
7 7
8 9
9 9
61 Proposal for Security 4
Northpoint Security Services,
Inc. Personnel
Northpoint Security Services, Inc. will provide
you with certified, licensed, and insured,
Security Officers. Each Security Professional has
been screened to the standards of the State of
California Department of Justice and the Federal
Bureau of Investigations (FBI).
1) Northpoint Security Services, Inc. has set some of the strictes t background screening standards in the industry. Our personnel all submit to a battery of aptitude tests, a 5‐panel drug screening, and extensive in‐service trai ning regarding protection of property and customer service.
2) Northpoint Security Services, Inc. offers, free of charge, supervisory personnel to insure strict adherence to our company policies and your rules, regulations and ordinances. Northpoint Security Services, Inc. supervisors are utilized as a liaison between Northpoint Security Services, Inc. and our clients. Sup ervisors are on duty 24 hours a day, 365 days per year for your convenience and will regularly make spot checks to prevent the issue of complacency. It is our belief that in order t o a s s u r e t h e b e s t q u a l i t y o f s e r v i c e t h a t w e s t a n d b y , w e m u s t keep close relationships with our personnel both on and off duty.
3) At Northpoint Security Services, Inc, all of our security officer will be equipped with two‐way radios or mobile phones, to ensure constant communication with our management team.
4) Each and every security officer will be in‐serviced regularly r egarding your specific site to further enhance the protection we provide.
Northpoint Security Services, Inc. has taken a unique approach to the business of contract security. Many of our competitors employ minimally scr eened and trained guards. Our approach involves a proactive theory of well‐groomed, exceptionally trained, uniformed security officers. Our strategy entails several steps to mitigate the possibility and opportunity for theft of property, or injury to persons within the facility. The following is an overview of our Security Guard Project:
Exceptionally Trained and Rigorously Screened
Uniformed Security Professionals
62 Proposal for Security 5
Applicant Screening
5) The quality we bring to your environment begins long before you see our security guards. The Management Team at Northpoint Security Services, Inc. has resolved to make the recruitment and training of our personnel the key t o our success; in that, we conduct hiring initiatives on a regular basis with ove r 100 applicants per month, with an average of 5‐10 new appointees. Most applicants are unable to meet our qualifications, which are well above minimum industry standards.
Northpoint Security Services, Inc. conducts training that exceeds that of any of our competitor’s
programs. The knowledge of our management team
is passed on to our new employees. In addition to the state mandated certification courses,
Northpoint Security Services, Inc. personnel must attend:
A. 40‐hour initial training
B. 8‐hour annual refresher training
C. Customized training to meet our clients requirements
Our uniformed security guards are trained to act as a criminal deterrent by adopting the principals of the C.O.S.P (Community Oriented Security Program) methodology.
Simply put, our guards are encouraged to be an approachable source of information to patrons, residents and employees. Letting the public know that we are there for them generates a feeling of community and safety.
63 Proposal for Security 6
Patrol
The placement of our security guards is what generally places Northpoint Security Services, Inc. in the position to confidently describe the impl ementation of our security officer project as authentic. Our security officers are trained to make visible foot patrols throughout their posts in undetermined patterns. We encourage our personnel to interact with your patrons and employees in additi on to standing a fixed post
Compliance
Northpoint Security Services, Inc. has developed a theory of ”Enforcement through Reinforcement”
The management, having forty
c o m b i n e d y e a r s o f s e c u r i t y a n d l a w enforcement experience, has
realized that prevention of crime
can be accomplished by utilizing
tactical approaches, rather than
accusations and the traditional
methods of our predecessors. The
art of verbal judo is commonplace in
our organization and has often been
effective in deescalating volatile
situations.
6) Our uniformed security guards are outfitted with police‐style u niforms. Our corporate general orders, require that our personnel keep their uniforms pressed and clean at all times. Their shoes are polished; military‐styl e and men are clean‐ shaven with neat haircuts. Our female officers are held to the same standard. We pride ourselves on the appearance of our personnel, as they are representing our agency in your facilities.
64 Proposal for Security 7
Supervision
7) Northpoint Security Services, Inc. supervisory personnel are re quired to possess a minimum of 7 years of law enforcement or security experience. Our supervisors are charged with scheduling, assigning security posts, and acti ng as liaison between the Board of Directors and our client. Supervisory personnel are available to you 24 hours every day in order maintain quality assurance and customer service on behalf of THE CITY OF PITTSBURG.
24 Hour Customer Service
Northpoint Security Services, Inc. stands
above our competitors by providing an
open line of communication with our
Our offices are staffed around the clock with
customer service representatives for your
convenience. While most of our competitors
work 9AM‐5PM, Northpoint Security Services,
Inc. staffs 24‐hour dispatch centers. Our
customer service representatives are not
salespeople; they are security professionals
assigned to light duty or administrative
functions. Desk personnel are utilized as watch‐
commanders with full authority to make
supervisory decisions for Northpoint Security
Services, Inc.
You can significantly reduce your liability with
our $3 Million comprehensive Insurance Policy
65 Proposal for Security 8
Cost
Northpoint Security Services, Inc. will provide you with a forensic breakdown of our costing specifications, on request. Northpoint Security Services, Inc. maintains a philosophy that in order to retain the highest quality security professionals in the industry, we must
compensate them commensurate to their qualifications.
The Management team has resolved to reduce our profit margin rather than decrease a security guard’s salary. Our costing structure provides for a well‐paid security professional and a conservative rate to our client.
Liability
Northpoint Security Services, Inc. maintains
insurance that is three times the minimum
aggregate coverage obtained by most of our
competitors. Our Legal Division recommends that
in order to protect our assets as well as yours, we
must maintain financial security in full force and effect at a level that far exceeds industry
standard.
Security Service Project Schedule
Site Survey
Analysis
Contract
Training
Supervisory Selection
Implementation
Time in Weeks
4 66
Proposal for Security 9
Having reviewed in detail, your request for proposal particulars and understood the scope and schedule of the project, Northpoint Security Services , Inc. has put together a first class team of security professionals who we think are p articularly suited to the project. We have selected prospective supervisory personnel on their ability and suitability for the type of project, and of course their availa bility to start right away if we are fortunate enough to be appointed.
Pictured above is a preliminary plan for project development. N orthpoint Security Services, Inc. will partner with you in every stage of this pro j e c t a n d a c t a s b o t h consultants and colleagues to work in a manner commensurate wi th both of our agency’s relative skills – bringing greatly enhanced value to t he project. 67 Proposal for Security 10
Executive Protection
Discrete Bodyguard Service
BDU Bodyguard Service
Armed Transport Service
Residential Protection Details
Corporate Protection Details
Prisoner Extradition
Uniformed Security
Healthcare Facilities
Residential Complexes
Corporate Buildings
Loss Prevention Retail
Venues Parking
Lots Governmental
Bike Patrol
Hotel Security
68 Proposal for Security 11
❒ Physical Safety and Security Tours of Each Property
❒ Review of Incident Reports & Other Foresee‐ability Issues ❒ Property Manual Review and Preparation
❒ International Travel Security Consulting & Protection Service
❒ Review of Property Security Procedures and Equipment
þ Management and Employee Safety & Security training
þ In‐house Security Rules and Procedures
International Travel Security
❒ Travel warnings
þ Crime reports
þ Unusual currency
❒ Entry requirements
þ Areas of instability
þ Consulate contacts
þ Embassies
❒ Disease information
❒ Extremist Groups
Security Consulting
69 Proposal for Security 12
❒ Assessments of threats, vulnera bilities, and critical infrastru cture at ports ❒ Coordination and cooperation among agencies
❒ Establishment of guidelines for commercial facilities handling certain cargo ❒ Patrol of rivers, shorelines, and other waterways
❒ Conduct tracks
❒ Conduct searches and apprehensions
❒ Narcotics detection
þ Missing person location
þ Explosives detection
Maritime Security
K‐9 Service
70 “Exhibit A”
Cost Structure
Northpoint Security Services, Inc. will provide THE CITY OF PITTSBURG with licensed and insured security officers. Our all-inclusive hourl y or monthly rates for this project are as follows:
$39.73 per hour for Level One security officers and $44.73 for Level Two security officers, which would have at least two-years of experience with the City of Pittsburg’s contract. All non-holiday overtime is factored into this rate.
$2470.00 monthly patrol vehicle flat rate. Cost includes fuel, maintenance, cleaning, insurance, and all other operating costs.
Account Manager and Supervisor’s time are not billed in any way to THE CITY OF PITTSBURG. Our Account Manager and Supervisor’s will be on site on a regular basis at un-announced times to check up on the assigned security officers. They also serve as a liaison to you, our cli ent on all security initiatives and project maintenance.
Scheduled overtime is never billed to THE CITY OF PITTSBURG. We have accounted for project overtime in our billable rate. Any unscheduled changes or additions may result in overtime charges.
Holidays are billed at time and a half. Northpoint Security Services, Inc. observes all federally recognized holidays.
Uniforms, equipment, or other expenses are never billed to THE CITY OF PITTSBURG.
Pre-employment screening, training, ongoing training, and other related expenses are never billed to THE CITY OF PITTSBURG.
This shall serve as a brief synopsis of the security services contract provided before the start of services. The security services contract and purchase order supersede any information contained in this proposal.
Proposal for Security
13 71
Proposal for Security 14
Requirements/Questionnaire
A. Proposing Firm and General Information
a. Company Name and Address: Northpoint Security Services, Inc. b. RFP contact person–phone/email: Bill Davies, 925-354-1668, [email protected]
B. Experience
1. Describe your company’s history and experience in the field:
Northpoint Security Services, Inc. has been one of the leading private security firms in Contra Costa County since 2004. We ha ve provided security for Contra Costa’s largest land developer and commercial real estate firm, Seno Enterprises/Sierra Pacific and Graventa Enterprises, which is the one of the state’s largest privately ran commercial and residential waste disposal companies, many other businesses and residential properties throughout the local area, and even the City of Pittsburg.
Northpoint Security’s Manag ement Team the combined
experience nearly 100 years.
Northpoint initially started the Park Patrol for the City of Pittsburg a few years ago. We have worked with the City of Pittsburg to create the program and implemen t its success. We have a team of dedicated professionals who have proved their worth and our company’s dedication to the City of Pittsburg. The feedback and reporting have been commended at all levels of interactions we have had with the City.
2. Describe your company’s knowledge and experience, if any, in Pittsburg, East Contra Costa Count y, and/or communities that ar e similar: Northpoint Security provides security and patrol services to dozens of clients throughout C ontra Costa, and many of them in the Pittsburg-Antioch area. We have worked with city governments in the county and dozens of private businesses, business associations, and residential clients. Our long-term success has been a direct result of our dedication to our clien ts, cities, county, neighbors, employees, and clients.
3. Provide three reference contac ts including name, telephone and email
Bob Garrison, Sierra Pacific Vic e President Commercial Properti es (925) 609.6200 [email protected]
Tim Bredbenner, Garaventa Enterprises [email protected] 925-682-9113
Rob Drewry. Merit Steel [email protected]
72 Proposal for Security 15
C. Qualifications
1. Provide information regarding t he training and experience of th e person(s) who will perform the services for the City: Northpoint Security has been providing this service for the City of Pittsb urg for two years, to the City’s satisfaction. We have highly train ed employees at the ready and our in-house training is customizabl e to the client’s needs and wants. We have adapted to the City’s requests in the inception of this program and have worked to see its success. The cost savings to the city, vs. having police or other city staff patrol the parks is significant and having a dedicated patrol to the parks, helps to protect the physical as sets of the City and the residents and visitors to the City of Pitts burg.
2. Provide information regarding t he equipment used and considerat ions or techniques used in providing services as described in the RF P:
Northpoint Security has a fleet of patrol cars to customize appearances for our clients. We can accommodate almost any reasonable request. We employ a state-of-the-art mobile patrol software that reports narrative, pictures, videos, and more. Th is ensures to the client that the services have been rendered and any pictures of documentation needed for follow-up by the clien t at a later time.
D. Cost Proposal
1. Provide information regarding an approach and cost proposal for effective overnight security fo r the Primary Locations, and a p lanned approach and cost proposal for ef fective overnight security for Priority 2 Locations. Due to budget constraint s, the City reserves the rig ht to eliminate one or more locati ons from the scope of work.: We have currently been providing this service for the City at the rate of $39.73 per hour and $2,470.00 for a patrol vehicle. We propose to continue the current rate for Level One security officers and $44.73 for Level Two security officers, which would have at lea st two-years of experience with the City of Pittsburg’s contract. We base this rate on ensuring our dedicated employees are properly compensated, feel valued, are motivated to strive for client satisfaction, and limit turnover. Patrol vehicle costs are base d on acquisition of the vehicle, insurances, fuel, maintenance, washing, etc. The flat rate is inclusive of all vehicles needs and the labor rate is inclusive of all employer costs, other than h oliday and unscheduled overtime.
2. Provide information regarding ho urly rate and any other cost considerations relevant to the proposal (s eparate charges for v ehicle or equipment, training expense, holi day rate, rate for hours in ex cess of eight hours per shift): As outlined above, we pride ourselves in transparent pricing for our clients. We provide a flat hourly rate for labor and a flat monthly rate for vehicles. Dedicated patrol phones that are available for client communications and report writing are also available at $123.00 per month, all inclusive. 73 Proposal for Security 16
E. Certificate of Insurance
a. Demonstrate you have the insuranc e required in the attached con tract agreement, including an endorsement listing the City as additio nal insured, Attached to this proposal
Northpoint Security sincerely appr eciates being the first provi der of patrol services for the city parks. We hope that our dedication to the City and community have been visible in our success. We will work together with the City Management and City Government to add and enhance the patrol services the city parks currently receive.
One of the benefits of a local, family-owned company is the ability to customize the services to the needs of our clients. We can modi fy, expand, alter, change, etc. all our services to adapt to the ch anging and progressing needs of the City.
If the City Council needs any further information or clarificat ion, please feel free to reach out to our company owner, Bill Davies [email protected] or direct at 925-354-1668 74 City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565-3814
September 7 , 2021
To Whom It May Concern
This letter is to confirm the City of Pittsburg hired Northpoin t Security Services for overnight patrols at City parks , parking lots and facilities effective August 15 , 2021.
In May 2021 , the City launched a Park Patrol Pilot Project and hired Northpo int Security Services based on their initial proposal. The project provided overnight patrols at nine City parks .
In recent years, the City has ex perienced a significant increas e in vandalism , dumping and trespassing in its parks , including establishment of several homeless encampments. The pilot project wa s an effort to reduce the incidence of trespassing , dumping and vandalism in public recreation areas .
The success of the pilot projec t led to development of a Reques t for Proposals with guidelines and scope of work that drew heavily from the prior experience . The City received multiple qualified proposals , and ultimately awarded a one-year contract to Northpoint to conti nue patrols at approximately 20 city-owned p roperties.
I have found Northpoint to be res ponsive and professional in th eir contacts with the public and with City staff. Their guards communicate well with City's parks maintenance employees and local police to coordinate efforts . Their daily written reports provide useful informa tion for follow-up actions and ha ve included photos and short videos when the situation warranted.
If you have questions regarding the City's park patrol project, please feel free to contact me directly.
75 CERTIFICATE OF LIABILITY INSURANCE
COVERAGES CERTIFICATE NUMBER: 95950281-654475 REVISION NUMBER: 38
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERI OD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR TYPE OF INSURANCE ADDL
INSD
SUBR
WVD POLICY NUMBER
POLICY EFF
(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY) LIMITS
A X COMMERCIAL GENERAL LIABILITY Y Y SCGL005000088000 12/03/2022 12/03/2023 EACH OCCURRENCE $ 1,000,000
CLAIMS-MADE X OCCUR
DAMAGE TO RENTED
PREMISES (Ea occurrence) $ 100,000
MED EXP (Any one person) $ 5,000
PERSONAL & ADV INJURY $ 1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 X
POLICY PRO- LOC JECT
OTHER:
PRODUCTS - COMP/OP AGG $ 2,000,000
$
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT
(Ea accident) $
ANY AUTO BODILY INJURY (Per person) $
OWNED
AUTOS ONLY
HIRED
AUTOS ONLY
SCHEDULED
AUTOS
NON-OWNED
AUTOS ONLY
BODILY INJURY (Per accident) $
PROPERTY DAMAGE
(Per accident) $
$
A X UMBRELLA LIAB
EXCESS LIAB
X OCCUR
CLAIMS-MADE
SXCS005000025800 12/03/2022 12/03/2023 EACH OCCURRENCE $ 2,000,000 AGGREGATE $ 2,000,000
DED RETENTION $ $
B WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY Y / N
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED? Y
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
N / A
9146699 08/01/2022 08/01/2023 X PER
STATUTE
OTH-
ER
E.L. EACH ACCIDENT $ 1,000,000
E.L. DISEASE - EA EMPLOYEE $ 1,000,000
E.L. DISEASE - POLICY LIMIT $ 1,000,000
A Professional Liabili SCGL005000088000 12/03/2022 12/03/2023 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CERTIFICATE HOLDER CANCELLATION
City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
(ELJ)
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD Printed by ELJ on 02/22/2023 at 04:16PM
DATE (MM/DD/YYYY)
02/22/2023
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be e ndorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions o f the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER
Zeigler Insurance and Financial Services, Inc
1300 Central Blvd Ste B
Brentwood, CA 94513
License #: 0H18234
CONTACT
NAME: Erica Juarez
PHONE
(A/C, No, Ext): (925)634-1240
FAX
(A/C, No): (888)347-3597
E-MAIL
ADDRESS: [email protected]
INSURER(S) AFFORDING COVERAGE NAIC #
INSURER A : Summit Specialty Insurance Company 16889
INSURED
Northpoint Security Services Inc.
2063 Main St #106
Oakley, CA 94561
INSURER B : State Compensation Insurance Fund 35076
INSURER C :
INSURER D :
INSURER E :
INSURER F :
76 Resolution No. 23- Page 1 of 2 May 1, 2023
BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:
Authorizing City Manager to Execute the )
Consulting Services Agreement with )
Northpoint Security Services, Inc. for Park ) RESOLUTION NO. 23- Security Patrol Services )
WHEREAS, in April 2021, staff developed a pilot project for overnight patrols at several City parks and facilities to improve health and safety, and reduce the incidences of trespassing and damage to public facilities from vandalism and theft; and WHEREAS, the successful pilot project was used as the basis for a request for proposal issued on June 1, 2021 and resulted in an award of a contract to Northpoint Security Services on August 2, 2021 by City Council Resolution 21-13975; and WHEREAS, because of the park security patrol project’s success, the contract with Northpoint Security Services was extended and set to expire on June 30, 2023; and WHEREAS, in anticipation of the contract expiring, another Request for Proposals was issued on February 13, 2023 with a deadline for responses of February 23, 2023; and, WHEREAS, three security patrol providers submitted proposals to the City for consideration; Patrol Solutions, Shield Protection & Public Safety, Inc. dba Spearhead Protection and Northpoint Security Services, Inc.; and
WHEREAS, staff’s careful review of all the proposals included the following criteria:
experience providing security services of similar scope and complexity in communities comparable to Pittsburg, ability to perform the work in the time specified, knowledge of the City and surrounding area and cost.
NOW, THEREFORE BE IT RESOLVED that the City Council authorizes the City Manager to execute the Consulting Services Agreement with Northpoint Security Services, Inc. for park security patrol services, authorizes the City Manager to extend the term of the contract twice for one additional year each, and authorizes an additional $200,000 in compensation for each of the two one-year term extensions, and appropriates Measure M surplus funds to fund the services for Fiscal Year 2023/24. 77 Resolution No. 23- Page 2 of 2 May 1, 2023
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of May 2023, by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
__________________________
Shanelle Scales-Preston, Mayor
ATTEST:
_______________________
Alice E. Evenson, City Clerk
78 OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of Ten City Council Resolutions to Find Developers in Compliance with their Respective Development Agreements for:
Southwest (San Marco), Tuscany Meadows, Liberty, Trans Bay Cable, Edgewater, Belle Harbor (Waterstone), Sky Ranch II, Montreux, Columbia Solar, and Greystone
MEETING DATE: May 1, 2023
EXECUTIVE SUMMARY
State law requires local jurisdictions to conduct a periodic review of active development agreements (DAs) within the community. For the calendar year 2022, staff has conducted reviews of ten active DAs, including: Southwest (San Marco) Development, Tuscany Meadows Subdivision, Liberty Subdivision, Trans Bay Cable, Edgewater Development, Belle Harbor (Waterstone) Subdivision, Sky Ranch II Subdivision, Montreux Subdivision, Columbia Solar, and Greystone Subdivision. Staff has found each developer to be in compliance with the terms of their respective DA, and as such, recommends the City Council adopt ten resolutions finding good faith compliance and authorizing the City Manager to execute Certificates of Compliance as appropriate.
RECOMMENDATION:
City Council adopt the ten attached resolutions finding:
1) SEECON Financial and Construction Co., Inc., in good faith compliance with the San Marco DA; and
2) SEECON Built Homes, Inc., in good faith compliance with the Tuscany Meadows DA; and
3) Forecast Land Development, LLC, in good faith compliance with the Liberty Subdivision DA; and
4) Trans Bay Cable, LLC, in good faith compliance with the Trans Bay Cable DA; and 5) Sunnyside Pittsburg, LLC, in good faith compliance with the Edgewater Apartments DA; and
6) Discovery Homes, Inc., in good faith compliance with the Belle Harbor (Waterstone) DA; and
79 7) SkyRanch Land Investors, LLC, in good faith compliance with the Sky Ranch II DA; 8) Altec Homes, Inc., in good faith compliance with the Montreux DA; and 9) Columbia Solar LLC, in good faith compliance with the DA Columbia Solar DA; and 10)SEECON Financial and Construction Co., Inc., in good faith compliance with the Greystone DA.
FISCAL IMPACT:
No impact to the General Fund or any enterprise/special funds. The subject development agreements include provisions requiring the respective developers to submit fees to cover staff costs associated with processing periodic reviews of Development Agreements.
BACKGROUND:
California Government Code Section 65864 et seq. authorizes and regulates the execution of development agreements (DAs) between Cities and persons who desire to develop property within the City's jurisdiction. Pursuant to the law, the City establishes procedures for the consideration of the DA applications, as well as procedures for reviewing the DAs.
State law also requires the periodic review of a Development Agreement, at which time the Developer must demonstrate good faith compliance with the terms of the DA.
The last periodic reviews were conducted by the City in 2020 for eight of the DAs listed above in addition to the Garaventa DA for a total of nine with Greystone and Columbia Solar as the two additional DAs in this iteration.
STAFF ANALYSIS:
If the City Council finds that the respective developers are in compliance with their respective DAs, then the City would issue a "Finding of Compliance" for each project, which may be recorded against the properties. If, as a result of the review, the City Council finds and determines, on the basis of substantial evidence that a developer has not complied in good faith with the terms and conditions of their DA, then the City may terminate or modify the associated DA. Pursuant to the City's procedures, the City would then issue a "Finding of Non-Compliance," identifying the areas of non-compliance, the terms of compliance and a time period for the Developer to bring the project into compliance with the DA.
At this time, all current issues associated with each DA reviewed have either been addressed or will be addressed when appropriate by the respective developer or are being addressed in coordination with the developer on an on-going basis. As such, staff recommends the adoption of all ten proposed resolutions, finding good faith compliance by Developers with the terms of the DAs.
ATTACHMENTS:
Compliance Resolutions
1. Resolution finding SEECON Financial and Construction Co., Inc., in good faith compliance with the San Marco DA
1a. Exhibit 1 – San Marco 2022 Summary Table
2. Resolution finding SEECON Built Homes, Inc., in good faith compliance with the Tuscany Meadows DA
80 2a. Exhibit 1 – Tuscany Meadows 2022 Summary Table
3. Resolution finding Forecast Land Development, LLC, in good faith compliance with the Liberty Subdivision DA
3a. Exhibit 1 – Liberty 2022 Summary Table
4. Resolution finding Trans Bay Cable, LLC, in good faith compliance with the Trans Bay Cable DA
4a. Exhibit 1 – Trans Bay Cable 2022 Summary Table
5. Resolution finding Sunnyside Pittsburg, LLC, in good faith compliance with the Edgewater Apartments DA
5a. Exhibit 1 – Edgewater 2022 Summary Table
Edgewater Recorded Development Agreement (full text)
6. Resolution finding Discovery Homes, Inc., in good faith compliance with the Belle Harbor (Waterstone) DA
6a. Exhibit 1 – Belle Harbor 2022 Summary Table
7. Resolution finding SkyRanch Land Investors, LLC, in good faith compliance with the Sky Ranch II DA
7a. Exhibit 1 – Sky Ranch 2022 Summary Table
8. Resolution finding Altec Homes, Inc., in good faith compliance with the Montreux DA 8a. Exhibit 1 – Montreux 2022 Summary Table
9. Resolution finding Columbia Solar LLC, in good faith compliance with the DA Columbia Solar DA
9a. Exhibit 1 – Columbia Solar 2022 Summary Table
10. Resolution finding SEECON Financial and Construction Co., Inc., in good faith compliance with the Greystone DA
10a. Exhibit 1 – Greystone 2022 Summary Table
Report Prepared By: Maurice Brenyah-Addow, Senior Planner 81 Resolution No. 23- 1 May 1, 2023
BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:
Periodic Review of Southwest (San )
Marco) Development Agreement )
Between The City of Pittsburg and ) RESOLUTION NO. 23-
Seecon Financial and Construction )
Co. Inc. and Determination as to )
Compliance With Development )
Agreement )
The Pittsburg City Council DOES RESOLVE as follows:
WHEREAS, a Development Agreement between the City of Pittsburg and Seecon Financial and Construction Co., Inc., was recorded on August 1, 1990, for the Southwest (San Marco) Development Area; and
WHEREAS, a 1st Amendment to the Development Agreement was executed on November 1, 2001; and
WHEREAS, a 2 nd Amendment to the Development Agreement was executed on July 19, 2010; and
WHEREAS, a 3rd Amendment to the Development Agreement was executed on April 8th, 2013; and
WHEREAS, California Government Code Section 65864 et seq. (“Development Agreement Statutes”) authorizes and regulates the execution of development agreements (“DAs") between certain public entities and persons who desire to develop private property within a public entity’s jurisdiction; and
WHEREAS, pursuant to the Development Agreement Statutes, the City established procedures for the consideration of DA applications by pr operty owners or other persons having an interest in property within City’s jurisdiction; and
WHEREAS, Section 65865.1 requires City to conduct a periodic review of the City’s active Development Agreements, at whic h time each respective developer is required to demonstrate good faith compliance with the terms of t he Development Agreement (“Periodic Review”); and
WHEREAS, if, as a result of the Periodic Review, the City finds and determines, on the basis of substa ntial evidence, that a developer has no t complied in good faith with the terms and conditions of the Development Agreement, the City may terminate or modify the DA pursuant to the Development Agreement Statutes; and
82 Resolution No. 23- 2 May 1, 2023
WHEREAS, the last periodic review of t he Southwest (San Marco) Development Agreement was conducted , and on December 2 1, 20 20, the City Council determined that the developer was in compliance with the terms of the Development Agreement.
NOW, THEREFORE, the City Council finds and determines as follows:
Section 1. Findings
The City Council hereby finds and determines that the above recitals are true and correct and have served as the basis, in part, for the findings and actions of the City Council set forth below.
Section 2. Compliance with Development Agreement
The Ci ty Council hereby finds and determines that , based on the information provided by the Developer and City Staff, as well as the information contained in the "San Marco DA – 2022 Annual Review” summary table, attached hereto and incorporated herein by refere nce as "E xhibit 1,” the Developer has demonstrated good faith compliance with the Southwest (San Marco) Development Agreement.
Section 3. Certificate of Compliance
The City Council hereby directs and authorizes the City Manager to issue a certificate c odifying the "Finding of Compliance" for Southwest (San Marco ) Development Agreement in a form that can be recorded by the Developer.
Section 4. Certification
The City Clerk shall certify the adoption of this Resolution.
83 Resolution No. 23- 3 May 1, 2023
Section 5. Effective Date
This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a r egular meeting on the 1st day of May, 2023, by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
_____________________________
Shanelle Scales-Preston, Mayor
ATTEST:
______________________________
Alice E. Evenson, City Clerk
84 Exhibit 1 - San Marco DA - 2022 Annual Review Summary Table DA Section Condition/Requirement Status Comments Action Items 1 Recitals
2 A To strengthen the public planning process, encourage private participation and comprehensive planning, and reduce the public and private economic risks of development, the Legislature of the State of California adopted Sections 65864 et seq. of the Government Code ("Development Agreement Statute") which authorizes City to enter into a development agreement with a person having a legal or equitable interest in real property, for the development of property. Under the authority of the Development Agreement Statute, City adopted Resolution No. 89-7466 on June 5, 1989, establishing procedures and requirements for the consideration of development agreements.
Not Applicable
3 B Developer is the owner of approximately 639± acres of property located near the City of Pittsburg, within Contra Costa County and described more specifically in Exhibit "A" attached (the "Property") located within the Southwest area described in paragraph E.
Not Applicable
4 C It is the intent of City and Developer to establish certain development rights in the Property which will be the subject of property development applications and this Development Agreement.
Not Applicable
5 D Developer desires to develop and construct on the Property, in phases, a complex of buildings for 2938 single and multifamily residential units plus walk and bicycle paths, play and picnic areas, park areas, and similar open spaces, swimming pools, parking facilities, interior roadways and other related infrastructure improvements (collectively the "Project").
Not Applicable
6 E On May 4, 1987, by Resolution No. 87-7138, the City Council determined that the approximately 639± acre area located adjacent and contiguous to the southwest boundary of City ("Southwest Area") should be included in the Pittsburg sphere of influence and then annexed and developed as part of City.
Not Applicable On 7/19/10, the City Council approved the 2nd Amendment to the Southwest DA (Ordinance No. 10-
1326), which revised the map exhibit of the DA to
remove 1.41 acres for which the developer intended to
pursue commercial rather than residential land use
entitlements (gas station).
7 F On June 15, 1987, by Resolution No. 87-7202, the City Council of City determined, on the basis of mutual interests of City and property owners in the Southwest Area, that City would enter into development agreement(s) with property owners in that area. The agreements are intended to insure orderly urbanization and the housing needs of existing and future City residents in a manner which makes maximum utilization of resources and reduces economic costs of development.
Not Applicable
8 G On August 3, 1987 by Resolution No. 87-7209, City adopted a General Plan amendment to the Southwest Area. On September 6, 1988, by Resolution No. 88-7357 the City adopted an updated General Plan. The General Plan established goals, objectives, policies and criteria to guide the development of this area, and it is the parties' intent that this area be developed consistent with those land use categories specified in the Land Use Element Map of the General Plan and applicable land use regulations as modified herein.
Not Applicable
9 H Developer intends to develop the Property which is described in Exhibit "A" in accordance with this Agreement.
Not Applicable
10 I The Southwest Area has been studied and the City has determined that development of the area must be done in an environmentally sensitive manner. City and Developer recognize that its particular development requires coordination and compliance with the City General Plan, but that certain aspects of developing the Property will require flexibility and variation from other applicable City land use regulations will be necessary and appropriate to implement the Project. To the extent that the proposed Project, (as described in paragraph D above and as shown on the Land Use Element of the General Plan), differs from the current zoning regulations, the provisions of this agreement shall prevail.
Not Applicable
11 J In accordance with the California Environmental Quality Act ( "CEQA"), City will prepare and adopt the appropriate environmental documents for the administration of this Development Agreement and the approvals necessary to carry out the Project.
Compliant A Subsequent Environmental Impact Report (SEIR, SCH #91073029) was prepared for the San Marco
Development Plan Area and certified by the Planning
Commission on October 13, 1992.
12 K The Property proposed for the Project is presently located in the unincorporated territory of the County of Contra Costa but within the City's sphere of influence. In accordance with section 65865(b) of the Development Agreement Statute, City and Developer may enter into a Development Agreement before annexation, provided that the Agreement shall not become operative unless annexation of the Property to the City is completed within the period of time specified by the Agreement or by any extension of time provided for by the Agreement. City and Developer desire to complete annexation as soon as possible.
Not Applicable
13 L By entering into this Agreement, City has determined it is in the City's public interest and the interest of its citizens to do so.
Not Applicable
14 M Following compliance with CEQA and after conducting duly noticed public hearings, the Planning Commission recommended approval and the City Council approved this Agreement, authorized its execution and found that this Agreement is consistent with the General Plan. The Agreement was approved by City Ordinance No.
Not Applicable
15 N Development of the Project in accordance with this agreement and subsequent discretionary approvals will provide for orderly growth conformance with the policies and goals set forth in the General Plan in accordance with paragraph "G" and "I".
Not Applicable
16 O For the reasons recited, Developer and City have determined that the Project is a development for which this Agreement is appropriate. This Agreement eliminates uncertainty in planning for and in securing orderly development of the Project. Developer desires to receive the assurance that it may proceed with the Project in accordance with the existing ordinances, resolutions and regulations as of the effective date of this agreement and subject to the terms and conditions in this Agreement, and subject to review and approval and the grant of land use entitlements by the appropriate reviewing body (Planning Commission or City Council) as to each specific proposal for development.
Not Applicable
17 P By entering into this Agreement, City recognizes and hereby acknowledges that approvals herein constitute a present exercise of the governmental authority of City.
Not Applicable
6Exported on April 17, 2023 3:19:25 PM PDT
85 DA Section Condition/Requirement Status Comments Action Items 18 Agreement Sections
19 1 Operative date of Agreement. Under Government Code section 65856(b), the annexation of Property to City must occur on or before July 1, 1993. This agreement does not become operative unless annexation is complete by that date. The parties may, however, extend this completion date for annexation beyond July 1, 1993.
Compliant
20 2 Term. The duration of this Agreement shall extend to October 1, 2032, unless terminated, modified or extended by mutual written consent of the parties.
Compliant On 10/1/01, the City Council approved the 1st Amendment to the Southwest DA to extend its term
from the original horizon year of 2002 to an amended
horizon year of 2020 (Ordinance No. 01-1187). On
4/15/13, the City Council approved the 3rd Amendment
to the DA which extended the term of the DA from its
prior expiration year of 2020 to a new expiration year of 2032 in exchange for a revision to the developer's park obligations and a $10,000 annual payment for
development agreement compliance reviews. This
year, the City Council will consider a 4th Amendment to the DA that would require the developer to commence
construction of a minimum 30,000-square-foot
commercial center on a project site located at the
southwest corner of W. Leland Road and San Marco
Boulevard. The same DA amendment would also
require the developer to construct improvements on the
2.78-acre park site located in San Marco Subdivision
Unit No. 12 at a cost not to exceed $1,582,724.
21 3 Effect of Agreement on Land Use Regulations
22 (a) Permitted Uses. The permitted uses of the property are those uses designated in the Land Use Element of the General Plan adopted on September 6, 1988. A copy of the Land Use Element Map is attached as Exhibit "B".
Compliant
23 (b) Density and Land Use Intensity. At its option, the Developer may construct up to a maximum of 2,938 residential units consisting of a mix of single-family and multiple-family residential units as shown on the General Plan Map attached as Exhibit "B". The location and configuration of lots is subject to City's review and approval under the Subdivision Map Act. The parties recognize that in order for the project site to accommodate up to 2,938 mixed residential units, grading in excess of that permitted under the applicable Hillside regulations will be necessary. City agrees that in its review and approval of Developer's grading plans, it shall permit additional grading, which is necessary to construct infrastructure and building pads to effectively and efficiently accommodate the maximum number of units Developer is permitted and proposes to construct, subject to the normal property development process of the City.
Compliant Plot plans continue to be reviewed for conformance with the approved vesting tentative map. As of the date of this periodic review, Villages A, B, E, F, G, H, J, K, and L have been completed. Village D (Positano at
San Marco) is under construction. Villages C, M, N,
and O have not been constructed yet.
24 (c) Applicable Land Use Regulations. Except as provided in subparagraph (b) relating to density and grading, the land use regulations applicable to the project shall be those land use regulations in effect on the date this agreement is entered into. The rules, regulations and policies governing the approval and the design, improvement and construction standards and specifications applicable to development of the property shall be those rules, regulations and policies in force on the date this Agreement is entered into except as specifically provided in this Agreement (e.g., subparagraphs (d) and (e) of this para graph).
Compliant
25 (d) Application of Building Codes. Developer is subject to changes in the Uniform Building Codes occurring from time to time subsequent to the date this Agreement is entered into which are not inconsistent with subparagraphs (a) and (b) of this para graph and if the changes (i) are found by the City Council to be in the best interest of the health and safety of its citizens and (ii) are applicable to all other developments in the City.
Compliant
26 (e) Subsequent Land Use Entitlements. In subsequent land use entitlement actions concerning the property, the City may only apply those existing rules, regulations and policies that were in force and effect on the effective date of this Development Agreement with respect to the property.
Compliant
27 4 Fees, Charges and Assessments.
28 (a) City to Adjust Existing Fees. City recently adopted a new fee schedule for fees and charges which it levies in connection with land use entitlements, including subdivisions. Developer agrees that this new fee schedule (attached to this agreement as Exhibit "C") will govern the fees and charges applicable to the project and that it is the intent of the City not to impose additional fees, exactions, dedications or regulations through the exercise of the police power orthe taxing power unless they are solely for unanticipated health and safety reasons as a direct result of this project and are consistent with Government Code Sections 66000 et. seq.Any additional fees shall in no event include, for example: child care, public art, libraries,community centers or other similar fees not essential to health and safety. The limitations on fees contained in this subparagraph shall not preclude the City from instituting procedures to impose taxes or assessments on the property (as opposed to development fees) pursuant to districts which may be formed under the provisions of by way of example, the Community Facilities Financing Act (Mello Roos), or Limited Obligation Revenue Bonds (Marks-Roos) or the Landscaping Lighting and Maintenance Act. The Developer hereby reserves the right to protest the formation of and the participation of the property in any such district.
Compliant
29 (b) Exceptions to Limitations on City's Right to Impose Fees, Taxes, and Assessments. Notwithstanding subparagraph (a) of this section limiting the right of the City to impose fees, charges, and assessments in connection with land use entitlements and subdivisions, the City may impose the following additional fees consistent with Government Code section 66000 et seq., and taxes and assessments without protest from the developer: (i) a fee imposed or mandated by another governmental agency; or (ii) a fee imposed for citywide traffic or drainage mitigation purposes; or (iii) a fee in the form of a capital improvement facility fee for sewer purposes or water purposes. (iv) an assessment to be imposed on residential units pursuant to a Mello Roos or Marks Roos District for the exclusive purpose of providing police services to the property. (v) an assessment imposed for the benefit of the property pursuant to the Landscape Lighting and Maintenance District Act.
In Progress Fees, taxes, and assessments the City currently imposes on projects within the San Marco PD area
include: Facilities Reserve Charge (PMC Chapters
13.08, 13.12, and 13.24) for water and sewer service;
Local Transportation Mitigation Fee (PMC Chapter
15.90); Regional Transportation-Development Impact
Mitigation Fee (PMC Chapter 15.102); In-Lieu Parkland
Dedication Fee; Community Facilities District 2007-01
for park maintenance; and Community Facilities District 2004-1 for police services.
6Exported on April 17, 2023 3:19:26 PM PDT
86 DA Section Condition/Requirement Status Comments Action Items 30 (c) Consumer Price Index Adjustment. At the end of one year from the date this agreement becomes operative (see paragraph l) and annually thereafter during the term of this agreement, the City may adjust the fees and charges imposed upon Developer to reflect the increase, if any, in the Consumer Price Index (San Francisco/Oakland) as publishedby the Bureau of Labor Statistics,US Departmentof Labor, by comparing the Index figure nearest to the time of execution of this agreement to the Index figure nearest to the expiration of each one year period.
Compliant
31 5 Application of CEQA. The parties acknowledge that this agreement and Developer's project is subject to CEQA. The parties also acknowledge that the City has previously had prepared and certified an EIR for the proposed change in the City's sphere of influence in the Southwest Hills, the annexation of the area to the City and the General Plan Amendment applicable to the Southwest Hills. City shall treat that EIR as a program EIR against which Developer's future activities under this Agreement will be examined for the need of additional environmental review and analysis as Developer seeks land use entitlements to carry out the Project.
Compliant A Subsequent Environmental Impact Report (SEIR, SCH #91073029) was prepared for the San Marco
Development Plan Area and certified by the Planning
Commission on October 13, 1992.
Developer has agreed to
conduct pre-construction
biological surveys to
ensure, in concert with the
City, that there will be no
impact to federal, state or
locally listed habitat or
species.
32 6 Commencement of Construction. It is the desire of Developer and City that Developer begin construction upon annexation after the securing of all discretionary entitlements. Developer agrees to begin and complete, with due diligence, all major infrastructure including arterial roadways, storm drainage facilities, sewer trunk lines and water main lines within six (6) years of annexation. Developer agrees to submit all necessary applications for approval by the City within six (6) months of annexation and City agrees to act upon the project within one (1) year from the submittal of all com pleted applications.
See Comments/Action Items Developer did not complete the improvements within the 6 years required due to a variety of reasons, many
outside of their control. In 1993, the City and Developer entered into a Memorandum of Understanding to
resolve this issue.
33 7 Phasing. Developer may accomplish construction on the Project in phases. However, Developer shall construct each phase in such fashion that construction of a single phase does not exceed two years to complete.
Compliant
34 8 Conditions, Terms and Restrictions.
35 (a) City agrees to cooperate and use its best efforts to cooper ate with Developer in processing applications for land use entitlements including all zoning, building, and grading permits necessary to implement the Project.
Compliant
36 (b) Developer is responsible for obtaining all land use entitle ments, permits and approvals which may be required by City and other govern- mental entities for development of the Property. City agrees to cooperate with Developer and support Developer's efforts in obtaining any such necessary permits and approvals. City further agrees to, from time to time at the request of Developer, enter into agreements with any such entity when such agreements are essential for development of the Project and there is no cost or liability to City.
Such agreements may include, but are not limited to, joint powers agreements pursuant to the provisions of the Joint Exercise of Powers Act (Government Code section 6500, et seq.), or the provisions of other laws, in order to create agreements between such parties. To the extent allowed by law, Developer shall be a party to any such agreement, or a third party beneficiary thereof, entitled to enforce for its benefit on behalf of City or in its own name, the rights of City or Developer thereunder or the duties and obligations of the parties thereto.
Compliant
37 (c) Cooperation-Implementation. Upon satisfactory completion by Developer of all required preliminary actions and payments of appropriate processing fees, if any, the parties shall promptly commence and diligently proceed to complete all required steps necessary for implementation of this Agreement and the development by Developer of the Project Site including, but not limited to the following:
Compliant
38 (i) All required public hearings Compliant
39 (ii) The processing and checking of all maps, plans, land use permits, building plans and specifications and other plans relating to the development of the Property, filed by Developer, including, but not limited to, all Annexations, General Plan amendments, zoning, final development plans, tentative maps, parcel maps, final maps, grading plans, subdivision improve ment plans, agreements, lot line adjustments, encroachment permits, formation of assessment/benefit districts and related matters as necessary for the completion of the development of all lots and parcels comprising the Property. In this regard, Developer will, in a timely manner, provide City with all documents, applications, plans and other information necessary for City to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit in a timely manner all required materials and documents thereof. Developer to pay cost of all professional support (including testing) for the project as determined by the Community Development Director/City Engineer. It is the express intent of this Agreement that all parties cooperate and diligently work to implement any General Plan amendment, zoning, filing of any tentative or final subdivision map or other land use or building approvals or grading plans and improvement plans for development of the Property in accordance with Exhibit "B".
Compliant
40 (d) Conditions and Dedications. Developer shall make only those dedications and comply with only those conditions expressly prescribed in this Agreement or in force and applicable to the property as of the effective date of this Agreement subject to the following:
Compliant
41 (i) Development Fees. The City may charge development fees for land use approvals, building permits and other similar permits and entitle ments which fees are not to exceed those in force and effect as of the effective date of this Agreement; subject to section 4(b).
Compliant
42 (ii) Additional Fees. In no event shall any additional fees be imposed upon the Property except as expressly provided in this Agreement. Furthermore, the conditions, exactions, dedications, fees or regulations applicable to the Property shall not be subject to modifications or renegotia tion by City as a result of an amendment of this Agreement, or as a result of the filing of any new entitlement application including but not limited to a land use permit, rezoning, general plan amendment, subdivision map, tentative map, tentative parcel map or parcel map, or any resubdivision of the Property (including a merger or lot line adjustment or the creation of new lots within a designated remainder parcel, provided, however, that these provisions shall not exclude the imposition of normal processing fees in effect at the time of the new application, and provided further that the new application shall not result in substantial impacts and further that all new entitlement requests shall be subject to the property development process of the City.
Compliant
43 (iii) Dedications. Upon completion of the improvements and construction in accordance with City standards for the facilities referred to in this paragraph, Developer agrees to dedicate such facilities, including all in terior subdivision streets and other public improvements, in accordance with tentative and final map approvals which shall be consistent with Exhibit "B" and this Agreement. Developer will convey to City, by Grant Deed, the park, path areas, and other public rights of way in accordance with this paragraph. The City specifically reserves the right to accept, or reject, such offers of dedication.
Compliant
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87 DA Section Condition/Requirement Status Comments Action Items 44 9 Construction of Facilities and Infrastructure In-Lieu of the Payment of Fees; Reimbursements; Assessment District and Benefit Districts.
47 10 Williamson Act Fees. Upon completion of annexation of the Property, and if the City has the authority it shall act as the lead agency in administering the cancellation of the Williamson Act contract which affects a portion of the Property. If the City does not have this authority, the City shall use its best efforts to support cancellation of the contract in accor dance with applicable rules and regulations and shall apply any fees which it receives in connection therewith toward public improvements and facilities to benefit the Property.
The City's decision in how to apply these funds is final.
Compliant
48 11 Assessment and Benefit District(s). The City agrees to cooperate with the Developer in establishing and implementing an assessment district(s) and benefit district(s) in accordance with applicable laws to finance or reimburse Developer for improvements constructed inside or outside of the Property.
Compliant Fees, taxes, and assessments the City currently imposes on projects within the San Marco PD area
include: Facilities Reserve Charge (PMC Chapters
13.08, 13.12, and 13.24) for water and sewer service;
Local Transportation Mitigation Fee (PMC Chapter
15.90); Regional Transportation-Development Impact
Mitigation Fee (PMC Chapter 15.102); In-Lieu Parkland
Dedication Fee; Community Facilities District 2007-01
for park maintenance; and Community Facilities District 2004-1 for police services.
49 12 Life of Subdivision Maps. Pursuant to Government Code Section 66542.6(a), the term of the tentative maps filed subsequent to the operative date of this Agreement shall automatically be extended for the term of this Agreement (as the term is extended by this Third Amendment).
Compliant Language from 3rd Amendment to Southwest DA
50 13 Default; Remedies; Termination
51 (a) Failure or unreasonable delay by either party to perform any term or provision of this Agreement for a period of ninety (90) days after written notice from the other party shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. The notice shall specify the nature of the alleged default and the manner in which the default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such time period, then the diligent prosecution to completion of the cure shall be deemed a cure within such a period. Subject to the foregoing, after notice and expiration of the 90-day period without cure, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate the Agreement pursuant to Government Code Section 65868. Following such notice of intent to terminate, the matter shall be scheduled for consideration and reviewed by City Council within thirty (30) calendar days in the manner set forth in Government Code sections 65865, 65867, and 65868. If City does not accept, review, act upon or issue necessary development permits, entitlements, or other land use or building approvals for use in a timely fashion as required by this Agreement, or as otherwise agreed to by the parties, or the City otherwise defaults under the terms of this Agreement, Developer shall have all rights and remedies provided herein or under applicable law.
52 (b) In addition to specific provisions of this Agreement, per formance by either party is not in default where delays or defaults are due to war, insurrection, strikes, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, judicial decisions, or other basis for excused performance which is not within the reasonable control of the party to be excused. If written notice of such delay is given to either party within thirty (30) days of the commencement of such delay, an extension of time for such cause shall be granted in writing for the period of the enforced delay, or such longer period as may be mutually agreed upon.
53 (c) All other remedies at law or in equity which are not other wise provided for in this Agreement or in the City's regulations governing development agreements are available to the parties to pursue if there is a breach. 54 14 Changes in Law.
55 (a) If state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this agreement, such provisions of this Agreement shall be modified or suspended only to the extent necessary to comply with such state or federal laws or regulations.
Not Applicable
56 (b) City agrees that other development approvals within the City shall not diminish Developer's plans for the full development of the Property in accordance with this Agreement, despite increased burden by virtue of other development upon public facilities subject to the provisions of Section 9. Nothing in this subsection (b) shall limit or restrict orders or regulation from the City or other governmental agencies that would affect the rate, timing or sequence of development because of lack of water or sewer infra structure to accommodate such development (such as water service restrictions imposed by Contra Costa Water District, or similar orders and regulations).
Compliant
57 15 Amendment or Cancellation.
58 (a) This Agreement may be amended or canceled in whole or in part, by mutual consent by the parties or their successors in interest. Notice of intention to amend or cancel any portion of this Agreement shall be given in the manner provided by section 65867 of the Government Code. All amendments to this Agreement shall be first approved by ordinance of the City Council in accordance with section 65867.5 of the Government Code.
Compliant
59 (b) Notwithstanding the foregoing, an amendment to this Agreement which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservations of land, conditions, fees for public facilities, terms, restrictions and requirements regarding covenants relating to the use of the property does not require a public hearing before the parties may execute an amendment to this Agreement.
Compliant
60 (c) Any non-substantive deviation from the development plan for the Project, as determined by the Director of the Community Development Department, with respect to the location of buildings, streets and other physical facilities, shall not require an amendment to this Agreement.
Compliant
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88 DA Section Condition/Requirement Status Comments Action Items 61 16 Annual Review. Annual Review. Each year during the term of this agreement the City shall at the first City Council meeting in September or as soon there after as the Council agenda permits review the extent of good faith compliance by Developer with this Agreement. This periodic review shall be limited in scope to compliance with the terms and conditions of this Agreement as provided in Government Code section 65865.1. Developer shall pay the City's administrative costs of the annual review process. The fee shall be as fixed by Resolution of City Council. At the review meeting, Developer must demonstrate good faith com pliance with the terms and conditions of this Agreement under Government Code section 65865.1. At the conclusion of the meeting, City shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer or its successor in interest has complied in good faith with the terms and conditions of this Agreement. If City finds and determines that Developer has not complied with its terms and conditions, City may terminate or modify this Agreement by giving notice of its intention to do so in the manner set forth in Government Code sections 65867 and 65868. In the manner prescribed in Section 27, Notices, the City shall deposit in the mail to Developer a copy of all public staff reports, documents and related exhibits concerning Developers' performance here under at least ten (10) days before each periodic review.
Developer shall be permitted an oppor tunity to respond to the City's evaluation of its performance, either orally at a public hearing or in a written statement, at Developers' election. This response shall be made to the City Council or, if the matter has been referred to the Planning Commission, to the Planning Commission.
Beginning in 2013, Developer shall pay the City a fixed sum of $10,000 each year (adjusted by the San Francisco-Oakland-San Jose Consumer Price Index starting July 1, 2014) for the City to conduct annual review of the Development Agreement starting in 2013. Failure by the City to conduct the annual review required each year shall not be deemed a default by Developer under the Development Agreement; if the City does not conduct the review, the payment shall not be required for that year.
In Progress
62 17 Enforcement. Unless amended or canceled as provided in Section 15, the Agreement is enforceable notwithstanding any change in the applicable General Plan, specific plan, zoning ordinance or regulations, subdivision design/improvement construction standards, specifications and regulations or building regulations adopted by City which alters or amends an ordinance, rule, regulation or policy governing permitted use of the Property, or governing the density and grading as provided in paragraph 3 (a), (b) and (c) of this Agreement.
Not Applicable
63 18 Recordation. Not later than 10 days after execution of this Agreement by all parties, the City Clerk shall record a copy of this Agreement with the Contra Costa County Recorder. From and after the date of recordation, this Agreement imparts notice to all persons under the recording laws of the State.
Compliant
64 19 Certificate of Satisfaction. After completion of the Project, City upon request of Developer, shall execute in recordable form and deliver to Developer an instrument certifying that Developer has satisfied all of Developers" obligations under this Agreement.
See Comments/Action Items Developer may request a Certificate of Satisfaction after completion of the Project.
65 20 Relationship of Parties. It is understood and agreed that the contractual relationship between City and Developer is such that the latter is an independent contractor and in no case an agent of City.
Not Applicable
66 21 Hold Harmless. The Developer agrees to and shall hold the City, its officers, agents, employees and representatives harmless from, and shall defend against, liability for damage or claims for damage for personal injury including death and claims for property damage including inverse condemnation which may arise from its direct or indirect actions or those of its contractors, subcontractors, agents, employees or other persons acting on its behalf, which relate to real property covered by this Agreement, except that the foregoing does not extend to any willful acts committed by the City, its offices, agents or employees. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the actions referred to in this paragraph, regardless of whether or not City prepared, supplied or approved plans or specifications for the project.
Not Applicable
67 22 Cooperation in the Event of Legal Challenge. If legal action is instituted by a third person challenging the validity of any provision of this agreement, developer shall defend that action and pay all costs, expenses and fees associated with the defense. The parties agree to cooperate in defending the action.
Not Applicable
68 23 Assignment. Nothing in this Agreement prevents Developer from conveying all or part of this interest in the property to a buyer, assignee or other nominee as Developer may elect. An assignment or transfer of this agreement other than an affiliate or subsidiary of Developer is subject to City"s prior review and written approval which approval shall not be unreason ably withheld.
Not Applicable
69 24 Successors. The obligations imposed by this Agreement shall be considered covenants running with the land described in Exhibit "A", in accordance with sections 1460, et seq. of the Civil Code and shall inure to the benefit of, and be binding upon all successive owners of such lands, or parts thereof, during the term of this Agreement, as provided in Section 65868.5 of the Government Code.
Not Applicable
70 25 Validity. If a covenant, condition or term of this Agreement is held by a court to be illegal or in conflict with law, the validity of the remaining portions or provisions are not affected. The parties agree to use their best efforts to defend the validity of this Agreement against the claims of third parties.
Not Applicable
71 26 Attorney's Fees. If legal action is brought by either party for breach of this Agreement or to enforce its provisions, the prevailing party is entitled to reasonable attorneys' fees, court costs and such other costs as may be fixed by the court.Attorney's Fees. If legal action is brought by either party for breach of this Agreement or to enforce its provisions, the prevailing party is entitled to reasonable attorneys' fees, court costs and such other costs as may be fixed by the court.
Not Applicable
72 27 Notice. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid, return receipt requested, to the following addresses: City of Pittsburg, 2020 Railroad Avenue, Pittsburg, CA 94565, Attn: City Clerk; Seecon Financial & Construction Co., Inc., 4300 Railroad Avenue, Pittsburg, CA 94565, Attn: Robert J. Rossi or such to other addressee(s) and at such other place as the parties may from time-to-time designate by written notice to each other. Notices, demands and requests which are served by mail in this manner are deemed served or given for all purposes five (5) calendar days after the date the notice, demand or request is mailed.
Compliant
73 28
74 (a) The headings of sections are used for convenience only and shall not affect the meaning or interpretation of the contents of this Agreement.
Not Applicable
75 (b) The laws of the State of California shall govern the interpretation and enforcement of this Agreement, and the conduct of the parties.
Not Applicable
76 (c) Time is expressly declared to be of the essence in this Agreement and of all terms expressed in it. Not Applicable
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89 DA Section Condition/Requirement Status Comments Action Items 77 (d) The language in all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against any party. The parties have equally participated in the preparation of this Agreement. The term "assign" shall include the term "transfer". The plural shall include the singular, and the singular the plural. One gender shall include all genders.
Not Applicable
78 (e) This instrument, along with the attached Exhibits, constitutes the entire Agreement between the Parties relative to this subject matter. This Agreement may be altered, amended or revoked only by an instrument in writing signed by the Parties. No representations whatsoever have been made relative to this subject matter except as may be expressly stated in writing in this Agreement.
Not Applicable
79 (f) The waiver by a party of a breach of a term in this Agreement is not a waiver of that term or a subsequent breach of the same or any other term. No custom or practice which may develop between the parties during the term is a waiver of or in any way affects the right of a party to insist upon performance and observance by the other party in accordance with the terms of this Agreement.
Not Applicable
80
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90 Resolution No. 23- 1 May 1, 2023
BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:
Periodic Review of Tuscany Meadows )
Development Agreement Between The )
City of Pittsburg and Seecon Built ) R ESOLUTION NO. 23- Homes, Inc. and Determination as to )
Compliance With Development )
Agreement )
The Pittsburg City Council DOES RESOLVE as follows:
WHEREAS, a Development Agreement between the C ity of Pittsburg and Seecon Built Homes, Inc. was executed on February 5, 2018, for the Tuscany Meadows Property; and
WHEREAS, California Government Code Section 65864 et seq. (“Development Agreement Statutes”) authorizes and regulates the execution of development agreements (“DAs") between certain public entities and persons who desire to develop private property within a public entity’s jurisdiction; and
WHEREAS, pursuant to the Development Agreement Statutes, the City established procedures for the consideration of DA applications by property owners or other persons having an interest in property within City’s jurisdiction; and
WHEREAS, Section 65865.1 requires City to conduct a periodic review of the City’s active Development Agreements, at which time each respective developer is required to demonstrate good faith compliance with the terms of the Development Agreement (“Periodic Review”); and
WHEREAS, if, as a result of the Periodic Review, the City finds and determines, on the basis of substantial evidence, that a developer has not complied in good faith with the terms and conditions of the Development Agreement, the City may terminate or modify the DA pursuant to the Development Agreement Statutes; and
WHEREAS, t he last periodic review of t he Tuscany Meadows D evelopment Agreement was conducted , and on December 21 , 20 20, the City Council d etermined that the developer was in compliance with the terms of the Development Agreement.
NOW, THEREFORE, the City Council finds and determines as follows:
Section 1. Findings
The City Council hereby finds and determines that the above recitals are true and correct and have served as the basis, in part, for the findings and actions of the City 91 Resolution No. 23- 2 May 1, 2023
Council set forth below.
Section 2. Compliance with Development Agreement
The City Council hereby finds and determines that , based on the inform ation provided by the Developer and City Staff, as well as the information contained in the "Tuscany Meadows D A – 2022 Annual Review ", attached hereto and incor porated herein by reference as "Exhibit 1, ” the Developer has demonstrated good faith compliance with the Tuscany Meadows Development Agreement.
Section 3. Certificate of Compliance
The City Council hereby directs and authorizes the City Manager to issue a certificate codifying the " Finding of Compliance" for Tuscany Meadows Development Agreement in a form that can be recorded by the Developer.
Section 4. Certification
The City Clerk shall certify the adoption of this Resolution.
Section 5. Effective Date
This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a r egular meeting on the 1st day of May, 2023, by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
_____________________________
Shanelle Scales-Preston, Mayor
ATTEST:
______________________________
Alice E. Evenson, City Clerk
92 Exhibit 1 - Tuscany Meadows DA - 2022 Annual Review Summary Table DA Section Condition/Requirement Status Comments Action Items 1 Article II - Effective Date; Term
2 Section 2.01 Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the “Effective Date”).
See Comments/Action Items On February 5, 2018, the City Council adopted Ordinance 16-1405 approving the Development Agreement between the City of Pittsburg and Seecon Built Homes, Inc. for the Tuscany Meadows property.
3 Section 2.02 Term. The term of this Agreement shall commence upon the Effective Date and continue for a period of twenty five (25) years (the “Term”).
See Comments/Action Items Based on the effective date of February 5, 2018, the DA will expire on February 5, 2043.
4 Article III - Obligations of
Developer
5 The parties acknowledge and agree that the City’s agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Developer’s agreement to perform and abide by its long term covenants and obligations, as set forth herein. The parties acknowledge that many of Developer’s long term obligations set forth in this Agreement are in addition to Developer’s agreement to perform all the mitigation measures identified in the Mitigation Monitoring Program. As material consideration for the long term assurances and vested rights provided by this Agreement and as a condition of approval to one or more of the Project Approvals, Developer agrees to each of the following:
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
6 Section 3.01 Drainage Improvements. Subject to the terms of this Agreement, as a condition of approval to one or more of the Project Approvals, Developer agrees to construct and offer for dedication to the City those Project storm water drainage improvements to be located within City’s boundaries and required to serve the Project Site (“Drainage Improvements”). The City shall accept the offer of dedication of the Drainage Improvements, as long as the Drainage Improvements comply with the City’s standards, applicable rules and regulations, and this Agreement. The parties agree that the construction of the Drainage Improvements shall be phased according to a construction schedule determined by Developer, subject to the written approval of the City Manager. City shall not require any improvements to onsite or offsite drainage facilities to address pre-existing deficiencies provided that Developer demonstrates to City’s reasonable satisfaction that impact to downstream facilities are not being exacerbated.
Not Applicable (at this time)
7 Section 3.02 Facility Reserve Charges. Developer agrees to pay City’s Facility Reserve Charges (“FRC”) as set or modified by the City Council from time to time.
Not Applicable (at this time)
8 Section 3.03 Water Infrastructure. Developer shall comply with the 2015 Water System Master Plan, as amended.
Developer shall have the option, subject to the written approval by the City Manager, to provide water infrastructure facilities as specified by the City or to construct the water infrastructure facilities in phases subject to a storage requirement and site analysis study, commissioned by the City, that incorporates the water infrastructure requirements pursuant to the 2015 Water System Master Plan, as amended.
Not Applicable (at this time)
9 Section 3.04 School Facilities Impact Mitigation. Developer shall pay in lieu school impact fees in accordance with Government Code §§ 65995 et seq. Compliance with this Section shall satisfy all of Developer’s obligations required by City to mitigate school impacts resulting from the Project.
Not Applicable (at this time)
10 Section 3.05 Applicable Fees. City may levy development fees, and charges during the term of this Agreement relative to the development of the Project Site which are in force and effect as of the Effective Date, as more particularly described and according to the payment schedule set forth on Exhibit B (“Applicable Fees”). Unless otherwise provided in this Agreement, no development fees, or charges, or categories thereof, shall be imposed on the Project other than those fees (including categories within such fees), and charges identified as Applicable Fees on Exhibit B, which exhibit shall exclusively govern the Applicable Fee payment schedule. The parties agree that any and all Project development fees, charges or exactions related to schools, fire prevention, water, sewer, stormwater, and storm drainage facilities, which are to be paid by Developer directly to third-party governmental agencies, are not subject to or within the scope of this Agreement whether such third party charges exist or are subsequently imposed by such third parties, whether directly upon Developer or through City. This provision shall not be construed to benefit any Non-Assuming Transferees, as such term is defined in herein.
Not Applicable (at this time)
11 Section 3.06 Applicable Fee Adjustments. Developer shall pay fees and charges consistent with Section 3.05, and the applicable adjustments currently provided in such fees, and as modified from time to time by the City, whether such adjustment or modification is an increase or decrease. Developer retains the right to challenge the imposition of any new fees not referenced in this Agreement or the modification, amendment or adjustment of all Applicable Fees pursuant to Government Code § 66000 et seq., not already authorized by ordinances, resolutions or policies in place at the time of this Agreement’s execution. Should the City Council approve a new AB 1600 fee study and/or authorize a decrease in any of the Applicable Fees during the term of this Agreement by ordinance or by resolution, Developer shall have the option, at its sole discretion, to pay the lower fee, as may be adjusted by the applicable CPI or ENR, unless otherwise bound by separate contract or memorandum of understanding with City. In no event shall Developer receive retroactive adjustments for lower fees.
Not Applicable (at this time)
12 Section 3.07 City Local Traffic Mitigation Fee. Developer shall pay the City Local Traffic Mitigation Fee, which fee is necessary to finance unmet City traffic improvement needs in the amount in effect as of the Effective Date and subject to adjustment in accordance with Resolution No. 07-10917 with credit for certain improvements constructed by Developer per Section 4.05 below. If the City Council approves a new AB 1600 fee study and/or authorize a decrease in any of the Applicable Fees during the term of this Agreement by ordinance or by resolution, Developer shall have the option, at its sole discretion, to pay the lower fee, as may be adjusted by the applicable CPI or ENR, unless otherwise bound by separate contract or memorandum of understanding with City. In no event shall Developer receive retroactive adjustments for lower fees.
Not Applicable (at this time)
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93 DA Section Condition/Requirement Status Comments Action Items 13 Section 3.08 Regional Traffic Fee. Developer shall pay the ECCRFA regional traffic fee should it be imposed by the City in an amount equal to or less than the amount paid by projects in the Cities of Antioch, Brentwood, and Oakley or in accordance with the existing valid Memorandum of Understanding dated June 29, 2010, as amended, whichever is less.
Not Applicable (at this time)
14 Section 3.09 Fees, Assessments and/or Taxes to be Paid by Developer. Developer agrees to pay its fair share of any levies imposed by any assessment district, geologic hazard abatement district, landscaping and lighting district, community facilities district, tax-exempt financing mechanisms, or other funding mechanisms related to public safety; traffic; sewer; water; fire; the prevention, mitigation, abatement, or control of geologic hazards; or other infrastructure improvements (including, without limitation, design, acquisition, construction and maintenance costs) (collectively, “Funding Mechanisms”) within the Project Site, provided that such Funding Mechanism is referenced herein and/or was legally created pursuant to applicable law.
Not Applicable (at this time)
15 Section 3.10 Affordable Housing. Developer shall comply with PMC 18.86.080 and VTM Condition of Approval No. 5 by constructing at least ninety two (92) rental attached accessory units within the Project. A covenant shall be recorded limiting the amount of rent that may be charged for these secondary units, consistent with the terms and conditions set forth in the affordable housing agreement. Forty six (46) of these units shall be constructed no later than the City’s issuance of the four hundred and fiftieth (450th) building permit for the Project. Prior to the City’s issuance of the first certificate of occupancy Developer agrees to enter into an affordable housing agreement with the City (the “Affordable Housing Agreement”) which further memorializes the provisions of this Section 3.10 and is consistent with applicable law, including Pittsburg Municipal Code Chapter 18.50. Developer agrees that the attached accessory units referenced in this Section shall not be built or otherwise allowed on adjoining lots without the prior written approval of the City Manager. City agrees that Developer shall not be required to pay any additional fees (building permit, sewer, water, traffic fees etc.) associated with any attached, affordable secondary/accessory dwelling units.
Not Applicable (at this time)
16 a) Timing. The Affordable Housing Agreement shall establish provisions to implement the affordable housing requirements within this Agreement and shall include, but not be limited to, implementation and monitoring provisions to ensure compliance with municipal law related to affordable housing. The agreement shall include provisions for the reasonable reimbursement of costs to the City for the administration and monitoring of the agreement.
Not Applicable (at this time)
17 b) Inclusionary Housing Ordinance. Notwithstanding any provision of this Agreement, in the event that the City has rescinded its respective previously adopted affordable housing ordinance and not replaced it with another affordable housing or similar ordinance, or such ordinance has been declared illegal, Developer shall not be obligated to comply with the provisions for affordable housing set forth in this Agreement. In the event, prior to or during the development of the Project, the City amends or replaces or eliminates its affordable housing ordinance which would result in a reduction in the number of secondary units Developer is obligated to construct, then the Affordable Housing Agreement shall be modified to provide for an equivalent reduction in the number of secondary units required to be constructed in the Project or elimination of the requirement.
Not Applicable (at this time)
18 Section 3.11 Security Improvements. Developer shall install the basic home security wiring in the Project homes (defined herein as wiring for a basic home security system on the first floor windows and doors only).
Developer shall offer one year of professional monitoring service to new homeowners. The monitoring service shall be at the election of the new homeowner.
Not Applicable (at this time)
19 Section 3.12 Solar Roof System. Developer shall install a solar roof system on one of its model homes for example purposes only (which may consist of a few panels with photovoltaic compatibility or other comparable technologies) and offer solar installation as an option at the homeowner’s expense.
Not Applicable (at this time)
20 Section 3.13 C.3 Facilities. Developer shall construct C.3 facilities as provided in the Project Approvals. In accordance with the City’s NPDES permit, provision C.3.e.i.and ii., developer shall have the right to construct or participate in the funding of offsite C.3 facilities as approved by the City Engineer and memorialized by separate agreement with the City. If Developer elects to participate in offsite C.3 facilities in lieu of on-site C.3 facilities, Developer will work with the City to provide an appropriate funding mechanism for the continuous maintenance of these facilities in perpetuity.
Not Applicable (at this time)
21 Section 3.14 Traffic Conditions. Developer shall install at its sole cost the following traffic improvements in accordance with the provisions set forth below. In the event any improvements listed below are within the City of Antioch or the City of Antioch’s control, Developer, at its option, shall not be required to construct such improvements but shall only be required to pay its proportionate share of the costs of such improvements. In such event, Developer shall deposit with the City of Pittsburg the amount that Developer and the City of Pittsburg City Engineer agree in writing is the Developer’s appropriate proportionate share of the cost of such improvements. Upon the deposit of such sums with the City of Pittsburg, the restriction on the issuance of building permits, if any, with respect to such improvement shall be eliminated.
Not Applicable (at this time)
22 a) Traffic Control Plan: Developer shall obtain an encroachment permit and submit a traffic control plan for all construction related activities affecting the public right-of-way.
Not Applicable (at this time)
23 b) Summit Way Extension: Subject to prior written approval from the Antioch and Pittsburg City Engineers, Summit Way shall be extended into the subdivision to provide an additional point of pedestrian and vehicular access from James Donlon Boulevard. The extended street shall consist of a 40-foot-wide roadway and sidewalks that are at least six feet wide in accordance with the City of Pittsburg’s standards, and comply with all other applicable City standards.
Not Applicable (at this time)
24 c) Buchanan Road Dedication and Widening: Prior to the first occupancy in the Project, Developer shall dedicate Buchanan Road right-of-way along the project frontage to provide 59 feet from centerline to property line or as requested by the City Engineer in writing. This represents half the width of the City’s residential arterial standard. There shall be a transition to existing roadway improvements as approved and determined by the City Engineer in writing. Developer shall also provide all frontage improvements and reconstruct Buchanan Road as necessary to City Standards for a Residential Arterial Street as determined by the City Engineer, providing a consistent two percent maximum cross slope, Class II bicycle lane, sidewalk, and repair any pavement failure areas along the south Buchanan Road project frontage, from Highlands Ranch subdivision to the Contra Costa Canal, approximately 2,870 linear feet. The City Engineer, in writing, may allow occupancy if this work is underway.
Not Applicable (at this time)
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94 DA Section Condition/Requirement Status Comments Action Items 25 d) Developer shall install a fully actuated and interconnected traffic signal system at the proposed Somersville Road/Sequoia Drive intersection at the time that Sequoia Drive is connected to Somersville Road. This includes left and right turning lanes to and from Sequoia Drive on Somersville Road.
Not Applicable (at this time)
26 e) Traffic Improvements: Developer shall design and construct the following improvements prior to issuance of a building permit for the 551st dwelling unit. These improvements shall be made with prior written approval of the City Engineer.
Not Applicable (at this time)
27 1) An additional eastbound left turn lane and an additional northbound left turn lane at the Somersville Road/Buchanan Road intersection along with appropriate traffic signal modifications. This improvement shall not be required if deemed infeasible by the City Engineer during the design process. If acquisition of additional right-of-way is required for this improvement, this improvement will be deemed infeasible. In addition, this improvement shall not be required if ECCRFFA or the City have extended James Donlon Boulevard to Kirker Pass Road or if the City of Pittsburg and TRANSPLAN have approved control point metering of traffic on Kirker Pass Road to 1,400 vehicles per hour during the afternoon peak hour in which case Developer shall design, construct, and fund implementation of such metering near City limits during the p.m. peak commute period.
Not Applicable (at this time)
28 2) An additional westbound through lane on Buchanan Road along the approach to and departure from Harbor Street. This improvement shall not be required if deemed infeasible by the City Engineer in writing during the design process. If acquisition of additional right-of-way is required for this improvement, this improvement will be deemed infeasible. In addition, this improvement shall not be required if ECCRFFA or the City has extended James Donlon Boulevard to Kirker Pass Road.
Not Applicable (at this time)
29 3) An additional westbound through lane on Buchanan Road along the approach to and departure from Loveridge Road. This improvement shall not be required if deemed infeasible by the City Engineer in writing during the design process. If acquisition of additional right-of-way is required for this improvement, this improvement will be deemed infeasible. In addition, this improvement shall not be required if ECCRFFA or the City has extended James Donlon Boulevard to Kirker Pass Road.
Not Applicable (at this time)
30 4) An additional eastbound through lane on Buchanan Road along the approach to and departure from Ventura Drive. This improvement shall not be required if deemed infeasible by the City Engineer in writing during the design process. If acquisition of additional right-of-way is required for this improvement, this improvement will be deemed infeasible. In addition, this improvement shall not be required if ECCRFFA or the City has extended James Donlon Boulevard to Kirker Pass Road or if the City of Pittsburg and TRANSPLAN have approved control point metering of traffic on Kirker Pass Road to 1,400 vehicles per hour during the afternoon peak hour in which case Developer shall design, construct, and fund implementation of such metering near City limits during the p.m. peak commute period.
Not Applicable (at this time)
31 5) An additional eastbound through lane on Buchanan Road along the approach to and departure from Tuscany Meadows Drive. This improvement shall not be required if ECCRFFA or the City has extended James Donlon Boulevard to Kirker Pass Road or if the City of Pittsburg and TRANSPLAN have approved control point metering of traffic on Kirker Pass Road to 1,400 vehicles per hour during the afternoon peak hour in which case Developer shall design, construct, and fund implementation of such metering near City limits during the p.m. peak commute period.
Not Applicable (at this time)
32 6) An additional eastbound through lane on Buchanan Road along the approach to and departure from the Entrance to Parcel A prior to occupancy of this Project’s multifamily residential units. This improvement shall not be required if ECCRFFA or the City has extended James Donlon Boulevard to Kirker Pass Road or if the City of Pittsburg and TRANSPLAN have approved control point metering of traffic on Kirker Pass Road to 1,400 vehicles per hour during the afternoon peak hour in which case Developer shall design, construct, and fund implementation of such metering near City limits during the p.m. peak commute period.
Not Applicable (at this time)
33 7) Left and right turning lanes to and from Sequoia Drive on Somersville Road. Not Applicable (at this time) 34 f) Other Traffic Improvements: Developer shall design and construct the following improvements prior to the issuance of the first building permit, with prior written approval of the City Engineer:
Not Applicable (at this time)
35 1) A fully actuated and interconnected traffic signal system at the proposed Buchanan Road/Tuscany Meadows Drive intersection.
Not Applicable (at this time)
36 2) Westbound left-turn/acceleration lanes and eastbound right-turn/acceleration lanes at the proposed Buchanan Road/Tuscany Meadows Drive intersection.
Not Applicable (at this time)
37 3) Bus turnouts, bus shelters, and bicycle racks on both sides of Buchanan Road adjacent to Tuscany Meadows Drive. Improvements to the north side of Buchanan Road that are deemed infeasible by the City Engineer in writing shall not be required. If additional right-of-way is required for these improvements, the construction of these improvements will be deemed infeasible.
Not Applicable (at this time)
38 4) Provide Class II bicycle lane and sidewalk along north side of Buchanan Road. The sidewalk improvement shall not be required if deemed infeasible by the City Engineer in writing during the design process.
Not Applicable (at this time)
39 5) A direct multi-use pathway between the project and the Delta de Anza Regional Trail for use by pedestrians and bicyclists. The required timing of these improvements may be adjusted by the City Engineer to accommodate acquisition of necessary access rights.
Not Applicable (at this time)
40 6) Left and right turning lanes to and from Entrance to Parcel A on Buchanan Road prior to occupancy of this Project’s multifamily residential units.
Not Applicable (at this time)
41 g) When Tuscany Meadows Drive is connected to James Donlon Boulevard, Developer shall redesign and reconstruct the intersection of Tuscany Meadows Drive/James Donlon Boulevard to eliminate the westbound free-right turn, including removal of a raised island to the written satisfaction of the City Engineer.
Not Applicable (at this time)
42 h) When Tuscany Meadows Drive is connected to James Donlon Boulevard, a physical barrier may be installed, as determined by the City Engineer in writing, to prohibit public vehicle access from James Donlon Boulevard and allowing emergency vehicle access.
Not Applicable (at this time)
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95 DA Section Condition/Requirement Status Comments Action Items 43 i) Developer shall design and construct a fully actuated and interconnected traffic signal system at the Buchanan Road/Entrance to Parcel A intersection prior to occupancy of this Project’s multifamily residential units.
Not Applicable (at this time)
44 Article IV - Obligations of the
City
45 Section 4.01 Obligations of City Generally. The parties acknowledge and agree that Developer’s agreement to perform and abide by its covenants and obligations set forth in this Agreement, including Developer’s decision to process the siting of the Project in the City, is a material consideration for City’s agreement to perform and abide by the long term covenants and obligations of City, as set forth herein.
Compliant
46 Section 4.02 Processing of Annexation and Central Valley Project Inclusion. City shall promptly, in cooperation with Developer, process all documents necessary to achieve annexation of the Property to the City, CCWD, and Delta Diablo and inclusion into the Central Valley Project area.
Compliant
47 Section 4.03 Availability of Public Services.
48 a) General. To the extent permitted by law and consistent with its authority, City shall reserve such capacity for water services as may be necessary to serve the Project. This reservation of water infrastructure capacity shall be assured for the Term to the extent consistent with applicable law.
Not Applicable (at this time)
49 b) Construction Water. City shall make construction water available to the Project by allowing the Project access to the City’s water supply infrastructure, at a location reasonably determined by the City, at Developer’s cost and on those terms and conditions and charges customarily applied by City to similar projects consistent with City standards. Developer shall provide backflow prevention for all points of connection to the City’s potable water supply system and the volume of water consumed shall be tracked with the use of a City-issued hydrant meter.City shall also permit Developer to install such temporary construction water pipelines and related infrastructure as reasonably necessary to provide construction water to the Project site for Developer’s use in any and all Project grading and construction operations, as long as such water is unrelated to potable use.
Not Applicable (at this time)
50 Section 4.04 Developer’s Right to Rebuild. City agrees that Developer, in Developer sole’s discretion, may renovate or rebuild the Project within the Term of this Agreement should it become necessary due to natural disaster, changes in seismic requirements, acts of God, acts of terrorism, or damage to work in progress by reason of fire, floods or other casualties. Any such renovation or rebuilding shall be subject to the square footage and height limitations vested by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA and this Agreement.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 4.04.
51 Section 4.05 Reimbursement of Infrastructure Costs. See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 4.05.
52 a) Reimbursement. Unless otherwise provided for herein, to the extent Developer incurs costs related to the planning and construction of traffic infrastructure, water delivery infrastructure, sewer infrastructure or other public infrastructure required by City or this Agreement for the Project that exceed the Project’s fair share obligation for such infrastructure, City shall reimburse Developer for the City’s portion of such costs (including any management fees provided for in this Agreement), subject to City’s prior verification through inspection of the construction that is subject to such reimbursement and upon final acceptance of the infrastructure by the City. This reimbursement shall be paid within sixty (60) days after City’s final acceptance or at such other time as mutually agreed upon in writing by the parties. Developer shall be entitled to a management fee of five percent (5%) for City’s share of approved infrastructure costs, including but not limited to design and special inspection costs. The management obligations of Developer hereunder shall include contracting and managing the construction of the infrastructure, retaining copies of records, photographs and “as builts” for the improvement(s) as well as attending meetings and providing necessary reports as reasonably requested by City.
Not Applicable (at this time)
53 b) City’s Authorization of Reimbursement. Notwithstanding any other provision of this Section or of this Agreement or VTM provisions, City shall not be responsible to reimburse or credit Developer for any costs, including as referenced in Section 4.05(a) herein, unless prior to Developer incurring any costs for which Developer will request reimbursement from City, Developer shall first provide written documentation as to the work to be performed, the estimated costs thereof, including a not-to-exceed cap, and such other details as reasonably requested by the City Manager and the City Manager approves the proposed costs and related work. If the City Manager fails to respond with thirty (30) days of its receipt of such estimated costs, Developer shall provide a second written notice to the City Manager and to the City Engineer, if neither responds with thirty (30) days of the City’s receipt of the second request, the request shall be deemed approved. The City Manager shall have the discretion to require Developer to obtain competitive bids on any work for which Developer may request reimbursement or credit from the City where the total cost (not just the City’s share) of that work is One Hundred Thousand Dollars ($100,000) or more. City shall also have the opportunity to inspect any and all infrastructure during its construction, as well as to review any work product for which Developer requests reimbursement or credits. If mutually agreed by the parties in writing, any reimbursement due Developer pursuant to this Agreement may be satisfied by City in the form of credits, which can actually be used by Developer to offset Developer’s payment of any Applicable Fees. In the event there are not enough credits to fully satisfy the reimbursement due Developer and subject to the terms of the mutual agreement between the parties referenced in the prior sentence, City shall reimburse Developer within thirty (30) days of invoicing.
Not Applicable (at this time)
54 Section 4.06 James Donlon Extension. Developer shall be entitled to build out the Project prior to construction of the James Donlon Extension, to the extent consistent with CEQA. Developer shall not be required to provide a connection to the James Donlon Extension until the James Donlon Extension is completed and the portion of the Project contiguous to the connection is constructed.
Compliant
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96 DA Section Condition/Requirement Status Comments Action Items 55 Section 4.07 Parkland Dedication In Lieu Fee. Developer and City agree that the park in-lieu fee valuation is currently Ten Dollars and Twenty Seven Cents ($10.27) per square foot (unless City adopts a lower fee in which case the lower fee shall apply), increased annually by the CPI for the San Francisco- Oakland area, with the first increase implemented in January 2019 reflecting 2018 increases. The timing of the payment of the park in-lieu fee shall be satisfied through compliance with the Municipal Code or a separate agreement between Developer and the City.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
56 Section 4.08 The Project will provide for its fair share of the cost of the water storage, pump station, and transmission pipeline capacity required to serve the homes in the Project in accordance with the most current City Water Master Plan. The Parties shall enter into a separate agreement memorializing such mutual obligation and which agreement shall take into account the following facts, to the extent of their relevance: (i) that a portion of the Property is included in the City’s Assessment District No. 1974-1; (ii) the October 2, 1997 letter from Albert D. Seeno Construction Company; (iii) subsequent City Council action January 5, 1998 (Resolution 98-8551).
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
57 Section 4.09 Undergrounding of Electrical Lines. The developer shall underground all overhead utilities in the subdivision in accordance with Pittsburg Municipal Code 12.36.120 and 12.36.130. City shall cooperate with and assist Developer in applying for Rule 20A funds to be used towards the cost of undergrounding the electrical lines of Buchanan Road in front of the Project Site.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
58 Article V - Cooperation -
Implementation
59 Section 5.01 Processing Application for Subsequent Approvals. The parties agree that all Subsequent Approvals shall be processed by City in a manner consistent with the following provisions:
60 a) Standard of Review. By adopting the Project Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its discretionary authority in considering any application for a Subsequent Approval to change the policy decisions reflected by the Project Approvals or otherwise prevent or delay development of the Project as set forth in the Project Approvals. Instead, the Subsequent Approvals shall be deemed tools to implement those final policy decisions and shall be issued by City so long as they comply with this Agreement and Applicable Law, as defined below, and are not inconsistent with the Project Approvals as set forth above, and meet the intent and comply with any City adopted Designed Guidelines, as applicable. To the extent permitted by law, City shall not use its discretionary authority in considering these Subsequent Approval applications to revisit or frustrate the policy decisions or material terms reflected by the Project Approvals. Developer agrees that development under this Agreement shall comply with provisions reflected in Uniform Codes (whether building, fire, plumbing, or other applicable uniform codes) which may adopted subsequent to the Effective Date of this Agreement.
Compliant
61 b) Basis for Denial. City may deny an application for a Subsequent Approval only if such application does not comply with this Agreement or Applicable Law, defined below, or does not substantially comply with the Project Approvals (provided, however, that inconsistency with the Project Approvals shall not constitute grounds for denial of a Subsequent Approval which is requested by Developer as an amendment to that Project Approval). City may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with this Agreement or Applicable Law, or as is necessary to make this Subsequent Approval consistent with the Project Approvals. If City denies any application for a Subsequent Approval, City shall specify in writing the reasons for such denial and may suggest a modification which would be approved by City.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 4.05.
62 Section 5.02 Timely Submittals By Developer. Developer acknowledges that City cannot expedite processing of the Subsequent Approvals until Developer submits complete applications on a timely basis.
Developer shall use its best efforts to (a) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (b) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other necessary materials as set forth in the Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Approvals consistent with this Agreement.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for engineering or building permits for the project. 63 Section 5.03 Timely Processing By City. Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, City shall promptly and diligently commence and complete all steps necessary to act on the Subsequent Approval applications including, without limitation, (a) providing at Developer’s expense and subject to Developer’s request and prior written approval, reasonable overtime staff assistance and/or staff consultants for planning and processing of each Subsequent Approval application; (b) if legally required, providing notice and holding public hearings; and (c) acting on any such Subsequent Approval application. If Developer elects to request and approve the use of overtime staff assistance or staff consultants for planning and processing of any Subsequent Approval pursuant to this Section 5.03, Developer’s reimbursement to City for such services shall be made in amount equal to City’s actual costs of providing such services, in accordance with standard City practice.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for engineering or building permits for the project. 64 Section 5.04 Other Government Permits. At Developer’s sole discretion and in accordance with Developer’s construction schedule, Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. City shall cooperate with Developer in its efforts to timely obtain such permits and approvals and shall, from time to time, at the request of Developer, use its best efforts to ensure the timely availability of such permits and approvals. City shall cooperate with Developer to obtain any and all approvals from Contra Costa County related to the construction or operation of the Drainage Improvements. City shall also cooperate with Developer, CCWD and the Bureau of Reclamation (the “Bureau”) in all matters related to CCWD’s application to the Bureau to expand the place of use of Central Valley Project water to include the Project Site.
See Comments/Action Items The City has cooperated with the Developer in finalizing the Planning Survey Report (PSR) necessary for Habitat Conservation Plan (HCP) compliance. Developer submitted the final PSR to the Bureau as part of its application for CVP inclusion.
65 Section 5.05 Lighting and Landscaping District, Park Maintenance. See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
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97 DA Section Condition/Requirement Status Comments Action Items 66 a) Developer agrees that the Project Site will be annexed into the City’s existing Lighting and Landscaping District, as established pursuant to City Resolution No. 88-7324 (“LLD”). as well as City’s Community Facilities District 2007-1 for park maintenance (“CFD”).
Not Applicable (at this time)
67 b) Developer agrees that the base assessment applies to the Project and is subject to increase, provided any such increase of the base assessment imposed uniformly or similarly situated properties by City in a manner consistent with State law. Developer further agrees that the base assessment shall be levied upon recordation of each of the Project’s final maps. The parties agree that the base LLD assessment described herein shall finance, among other things, the maintenance of any and all landscape improvements and the maintenance of the parks.
Not Applicable (at this time)
68 Section 5.06 Public Safety Services CFD. Developer agrees to take all steps necessary to include the Project Site into the City’s existing police services Community Facilities District 2005-1, as adopted pursuant to Resolution No. 05-10342 (the “Public Safety Services”) at no cost to the City, in order to provide for police and other emergency services to the Project Site. This process shall be completed, to the reasonable satisfaction of the City Manager and the City Attorney, before filing the first final map on the Project. Each legal residential lot located on the Project Site will be required to pay the levy by the Police Services District no earlier than the issuance of a building permit for such lot.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
69 Section 5.07 Fire Services CFD. Developer agrees to annex the Project Site into the City’s existing Community Facilities District 2017-1 (Fire Facilities and Fire Safety and Emergency Services) as adopted pursuant to Resolution 17-13311, at no cost to the City, to provide fire protection and emergency services for the Project Site. This process shall be completed to the satisfaction of the City Manager, prior to the recordation of the first final map for the Project. Each legal residential lot located on the Project Site will be required to pay the levy for this district no earlier than the issuance of a certificate of occupancy for such lot (such levy shall not go into effect for any certificate of occupancy issued for model homes in the Project until such model home is transferred to a third party homebuyer).
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
70 Section 5.08 General Plan Maintenance Fee. Developer agrees to pay a development related fee to help fund the maintenance of the Pittsburg General Plan. The General Plan Maintenance Fee will be One Hundred Twenty-five Dollars ($125) per building permit.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
71 Section 5.09 Assessment Districts or Other Funding Mechanisms. 72 a) City understands that City’s long term assurances to Developer concerning fees, taxes and assessments related to the Project are a material consideration for Developer agreeing to process the siting of the Project in its present location and to pay the fees, taxes and assessments described in this Agreement. City shall retain the ability to initiate or process applications for the formation of new assessment districts or other Funding Mechanisms, as defined in Section 3.09 of this Agreement, covering all or any portion of the Project site. Notwithstanding the foregoing, Developer retains all its rights to oppose the formation or proposed assessment of any new assessment district, Funding Mechanism, or any and all increases thereto, or to request or pursue assessment credits or reductions, unless otherwise provided for herein or unless such assessment, Funding Mechanism or related increases are in place and legally effective as of the date of this Agreement’s Effective Date.
See Comments/Action Items As of December 31, 2022, the Developer has not submitted applications for design review or building permits for the project.
The City shall seek performance of Developer's obligations prior to or as part of project development.
73 b) At the request of Developer, City shall cooperate in the formation of, or annexation to, those assessment districts, geologic hazard abatement district, landscaping and lighting districts, community facilities districts, tax-exempt financing mechanisms, or other Funding Mechanisms that Developer and City determine are needed to fund infrastructure improvements and to ensure the orderly development of the Project, at no cost to the City. City shall diligently and expeditiously process applications by Developer necessary to establish such Funding Mechanisms as long as (i) the application complies with law, (ii) is consistent with City’s standards, and (iii) provides for a lien to value ratio and other financial terms that are reasonably acceptable to City, and which will result in no commitment of City funds. City shall diligently seek to sell any bonds to be issued and secured by such assessments upon the best terms reasonably available in the marketplace. Any and all costs associated with this Section shall be borne and/or advanced by Developer.
Not Applicable (at this time)
74 Section 5.10 Warranty Bonds. Developer agrees that every infrastructure improvement dedicated to City (except landscaping, unimproved real property or open space dedications) pursuant to this Agreement shall be accompanied by a one (1) year warranty bond in a form and in an amount, and with a surety acceptable to City or otherwise as determined in the applicable Subdivision Improvement Agreement.
Not Applicable (at this time)
75 Article VI - Standards, Laws and
Proceedures Governing the Project
76 Section 6.01 Vested Right to Develop. Developer shall have a vested right to develop the Project on the Project Site in substantial conformance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), the Subsequent Approvals (as and when issued), and amendments thereto as shall, from time to time, be approved pursuant to this Agreement. Nothing in this Section
6.01 shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals.
Compliant
77 Section 6.02 Permitted Uses Vested by This Agreement. The permitted uses of the Project Site; the density and intensity of use of the Project Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals.
Compliant
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98 DA Section Condition/Requirement Status Comments Action Items 78 Section 6.03 Applicable Law. “Applicable Law” shall mean the existing rules, regulations, official policies, standards and specifications governing permitted uses of the project site; governing density; and governing design, improvements, and construction standards and specifications applicable to the Project and Project site as set forth in this Agreement and the Project Approvals, and in force and effect on the Effective Date of this Agreement. However, this Agreement and this Section shall not be construed to prevent the City, in any subsequent actions applicable to the Project Site, from applying any new rules, regulations, official policies, standards, and specifications that do not conflict with those rules, regulations, official policies, standards, and specifications existing as of the Effective Date of the Agreement.
Compliant
79 Section 6.04 Uniform Codes. Notwithstanding any other provision of this Agreement, City may apply to the Project Site, at any time during the Term, the then current Uniform Building Code and other uniform construction codes as properly modified by City and uniformly applied on a citywide basis, and City’s then current design and construction standards for road and storm drain facilities. In no event shall any such uniform code or standard be adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project.
Compliant
80 Section 6.05 Moratorium And Conflicting Enactments. To the extent consistent with State Law, if any ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development, or a voter-approval requirement which would otherwise affect the timely development of the Project on all or any part of the Project Site, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Project Site, this Agreement, the Project Approvals, or the Subsequent Approvals, if any, during the term of this Agreement, unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code Section 8558. Developer reserves the right to challenge in court any City action or inaction which Developer believes is in conflict with Applicable Law or this Agreement.
Compliant
81 Section 6.06 Environmental Mitigation. The parties understand that the EIR for the Project is a project level CEQA document intended to be used in connection with each of the Project Approvals and Subsequent Approvals needed for the Project. Consistent with the CEQA policies and requirements applicable to the EIR, City agrees to use the EIR in connection with the processing of any Subsequent Approval to the extent allowed by law. City agrees not to impose on Developer any mitigation measures or other conditions of approval other than those specifically imposed by the Project Approvals and the Mitigation Monitoring Program described in the FEIR, specifically required by Applicable Law, or as properly required through the design or architecture review process as long as such mitigation measures or other conditions are imposed in a manner consistent with applicable design review guidelines.
Compliant
82 Section 6.07 Life of Subdivision Maps, Development Approvals, and Permits. To the extent consistent with Applicable Law, the term of any subdivision map or any other map, permit, rezoning or other land use entitlement approved as a Project Approval or Subsequent Approval shall automatically be extended for the duration of this Agreement, including any extensions. The term of this Agreement and any subdivision map or other Project Approval or Subsequent Approval shall not include any period of time during which any applicable development moratorium (including, but not limited to, a water or sewer moratorium) or the actions of other public agencies that regulate land use, development or the provision of services to the land, prevents, prohibits or delays the construction of the Project. The term of this Agreement and any subdivision map or other Project Approval or Subsequent Approval shall not include any period of time during which any applicable court order or other legal requirement prevents the processing of any Subsequent Approval or prevents any Project development activities.
Compliant
83 Section 6.08 State and Federal Law. As provided in California Government Code § 65869.5, if any state or federal laws or regulations, enacted after this Agreement’s Effective Date prevent or preclude compliance with one or more provisions of this Agreement (“Changes in the Law”), such provision of the Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations as may be necessary to comply with Changes in the Law, and City and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article V and Section 10.05. Not in limitation of the foregoing, nothing in this Agreement shall preclude City from imposing on Developer any fee specifically required by State or Federal laws and regulations.
Compliant
84 Section 6.09 Timing of Project Construction and Completion. 85 a) Project Phasing. The Project is expected to be built in phases in response to then-existing market conditions over the Term of the Agreement. Except as otherwise specifically provided by this Agreement with respect to Project infrastructure timing, City and Developer expressly agree that there is no requirement that Developer initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and City shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates, competition and other similar factors.
Compliant
86 b) The parties agree that Developer shall be able to develop in accordance with Developer’s own time schedule as such schedule may exist from time to time, and Developer shall determine which part of the Project Site to develop first, and at Developer’s chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ desire to avoid that result by acknowledging that Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. Developer’s rights under this Section 6.09(b) shall be subject to the requirement that adequate infrastructure to serve each phase of the Project is constructed concurrently with such phase. The City Manager shall reasonably determine what infrastructure will be required to serve each phase of the Project, which determination shall be consistent with Applicable Law.
Compliant
87 c) Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof.
Compliant
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99 DA Section Condition/Requirement Status Comments Action Items 88 Section 6.10 Exempting Fees, Mitigation Measures and Similar Requirements Imposed by Outside Agencies.
Notwithstanding any other provision of this Agreement, the City agrees to exclude Developer from any and all discretionary collection agreements regarding fees, mitigation measures and similar requirements including, but not limited to, development impact fees, which other public agencies request the City to impose at City’s discretion on the Project or on the Project Site after the Effective Date through the Term of this Agreement. This Section 6.10 shall not prohibit the City from imposing on Developer any fee, mitigation measure or similar requirement or obligation that is required by a local or regional agency in accordance with local, regional, State or Federal obligations and implemented by the City in cooperation with such local, regional, state or federal agency, provided such fee, mitigation measure or similar requirement or obligation is imposed in a similar manner on similarly situated properties within the City as, for example, stormwater-related C.3 requirements and increases thereto.
Compliant
89 Section 6.11 City’s Joint-Inspection Jurisdiction. Developer acknowledges that City has joint inspection jurisdiction within other third-party governmental entities within any and all City rights-of-way and easements.
Compliant
90 Article VII - Amendment
91 Section 7.01 Amendment to Project Approvals, Subsequent Approvals. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner:
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 7.01.
92 a) Administrative Project Amendments. Upon the written request of Developer for an amendment or modification to a Project Approval or Subsequent Approval, the City Manager or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement, Applicable Law, applicable uniform codes and State or Federal law. If the City Manager or his/her designee finds that the proposed amendment or modification is minor in the context of the entire Project, consistent with this Agreement and Applicable Law, and will result in no new significant environmental impacts not addressed and mitigated in the EIR, the amendment shall be determined to be an “Administrative Project Amendment” and the City Manager or his/her designee may, except to the extent otherwise required by law, approve the Administrative Project Amendment without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, minor variations in lot layouts, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Project Site diagram or Project Site legal description shall be treated as Administrative Project Amendments.
Not Applicable (at this time)
93 b) Non-Administrative Project Amendments. Any request of Developer for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.
Not Applicable (at this time)
94 Section 7.02 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows:
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 7.02.
95 a) Administrative Agreement Amendments. The City Manager, or his/her designee, may, except to the extent otherwise required by law, enter into certain amendments of this Agreement on behalf of the City as long as any such amendment does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Project Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings or (vi) monetary contributions by Developer (“Administrative Agreement Amendment”), and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. For purposes of this Section 7.02(a), the term “substantially affect” shall be evaluated in the context of the entire Project.
Not Applicable (at this time)
96 b) Amendment Exemptions. No amendment of a Project Approval or Subsequent Approval, whether done administratively or not, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project and vested under this Agreement when written and executed by both parties.
Not Applicable (at this time)
97 c) Amendment Limitations. In consideration of the scope of the benefits to City set forth in this Agreement, any amendment to this Agreement shall only be subject to such new terms and conditions, including new exactions or other obligations, as are reasonably related to the impacts on City directly attributable to such amendment.
Not Applicable (at this time)
98 Article VIII - Assignment,
Transfer and Notice
99 Section 8.01 Assignment of Interests, Rights and Obligations. Developer may transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or Subsequent Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Article VIII.
100
Section 8.02 Transfer Agreements. Not Applicable (at this time)
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DA Section Condition/Requirement Status Comments Action Items 101
a) In connection with the transfer or assignment by Developer of all or any portion of the Project (other than a transfer or assignment by Developer to an affiliated party, any deed of trust beneficiary or mortgagee, or a “Non-Assuming Transferee” (as defined in Section 8.03), Developer and the transferee shall enter into a written agreement (a “Transfer Agreement”) regarding the respective interests, rights and obligations of Developer and the transferee in and under the Agreement, the Project Approvals, and the Subsequent Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Agreement, the Project Approvals, or the Subsequent Approvals that pertain to that portion of the Project being transferred or assigned, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of the Project being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment.
Not Applicable (at this time)
102
b) Any Transfer Agreement shall be binding on Developer, City and the transferee and, unless otherwise provided for in Section 8.03 of this Agreement, shall require the City’s prior written consent, which consent shall not be unreasonably withheld. Failure by City to respond within thirty (30) days of a written request by Developer for City’s consent shall be deemed City’s approval of the Transfer Agreement in question. City may refuse to give its consent only if, in light of the proposed transferee’s reputation and financial resources, such transferee would not in City’s reasonable determination be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the City Manager and is appealable to the City Council. In no event, however, shall City refuse to give its consent to a proposed transferee pursuant to this Section
8.02(b) if such transferee has a net worth of at least Ten Million Dollars ($10,000,000) documented in a manner reasonably acceptable to City. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein.
Not Applicable (at this time)
103
c) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement.
No breach or default hereunder by any person succeeding to any portion of Developer’s obligations under this Agreement shall be attributed to Developer, nor may Developer’s rights hereunder be canceled or diminished in any way by any breach or default by any such person.
Not Applicable (at this time)
104
Section 8.03 Non-Assuming Transferees. Except as otherwise required by Developer in Developer’s sole discretion, the burdens, obligations and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor City’s consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than ten (10) lots to a single retail builder or (iii) any property that has been established as one or more separate legal parcels for office, commercial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors (“Non-Assuming Transferees”) shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this Section 8.03 shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval.
Not Applicable (at this time)
105
Section 8.04 Notice of Compliance Generally. Subject to City’s finding that the facts contemplated by clauses (i) through (iii) herein are true and accurate, within thirty (30) days following any written request which Developer may make from time to time, City shall execute and deliver to Developer (or to any party requested by Developer) a written “Notice of Compliance,” in recordable form, duly executed and acknowledged by City, that certifies that (i) this Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications, (ii) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such default, and (iii) any other information reasonably requested by Developer. City’s failure to deliver such notice within such time period shall constitute a conclusive presumption against City that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer’s sole discretion, to record the Notice of Compliance.
Not Applicable (at this time)
106
Article IX - Cooperation in the
Event of Legal Challenge
107
Section 9.01 Cooperation. See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Article IX.
108
a) Developer agrees to indemnify, defend, and hold harmless the City, its officials, officers, employees, agents and consultants from any and all administrative, legal or equitable actions or other proceedings instituted by any person not a party to this Agreement challenging the validity of the Agreement or any Project Approval or any Subsequent Project Approval, or otherwise arising out of or stemming from this Agreement. Developer may select its own legal counsel to represent Developer’s interests at Developer’s sole cost and expense. The parties shall cooperate in defending such action or proceeding. Developer shall pay for City's costs of defense, whether directly or by timely reimbursement on a monthly basis. Such costs shall include, but not be limited to, all court costs and attorneys' fees expended by City in defense of any such action or other proceeding, plus staff and City Attorney time spent in regard to defense of the action or proceeding. The parties shall use best efforts to select mutually agreeable defense counsel but, if the parties cannot reach agreement, City may select its own legal counsel and Developer agrees to pay directly or timely reimburse on a monthly basis City for all such court costs, attorney fees, and time referenced herein.
Not Applicable (at this time)
109
b) Developer also agrees to indemnify, defend and hold harmless the City, its officials, officers, employees, agents and consultants from any claims, costs, damages or other liabilities for any personal injury or death, or property damage, resulting from the construction of the Project or of operations by the Developer, its officers, employees, agents or consultants, under this Agreement, except for such claims, costs, damages, or other liabilities which are caused by the sole or gross negligence of the City, its officials, officers, employees, agents, or consultants. Developer may select its own legal counsel to represent Developer’s interests at Developer’s sole cost and expense.
Not Applicable (at this time)
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DA Section Condition/Requirement Status Comments Action Items 110
c) The parties agree that this Section 9.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this Section 9.01, which shall survive such invalidation, nullification or setting aside.
Not Applicable (at this time)
111
Section 9.02 Cure; Reapproval. Not Applicable (at this time) 112
a) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 9.01, all or any portion of this Agreement, Project Approvals, or Subsequent Approvals are set aside or otherwise made ineffective by any judgment (a “Judgment”) in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter “Deficiencies”), the parties agree to use their respective best efforts to sustain and reenact or readopt this Agreement, Project Approvals, and/or Subsequent Approvals that the Deficiencies relate to, as follows, unless the parties mutually agree in writing to act otherwise:
Not Applicable (at this time)
113
i) If any Judgment requires reconsideration or consideration by City of this Agreement, Project Approval, or Subsequent Approval, then the City shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of this Agreement or any Project Approval, or Subsequent Approval, then the parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement and the Judgment.
Upon the parties cure of such Deficiencies, City shall then take steps consistent with the Judgment necessary readopt or reenact this Agreement and any applicable Project Approval, Subsequent Approval, or any portion thereof.
Not Applicable (at this time)
114
ii) Acting in a manner consistent with the intent of this Agreement or a Judgment includes, but is not limited to, recognizing that the parties intend that Developer may develop a nine hundred seventeen (917) single-family residential unit project, and adopting such ordinances, resolutions, and other enactments, including, but not limited to, a general plan amendment, rezoning, vesting subdivision map approvals, development plan approvals, PD Plan approvals, design review, improvement agreements, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, final development plans, development agreements, permits, resubdivisions, and any amendments to, or repealing of, any of the foregoing as are necessary to readopt or reenact all or any portion of this Agreement, Project Approvals, and/or Subsequent Approvals without contravening the Judgment.
Not Applicable (at this time)
115
b) The parties agree that this Section 9.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this Section 9.02, which shall survive such invalidation, nullification or setting aside.
Not Applicable (at this time)
116
Article X - Default, Remidies,
Termination
117
Section 10.01 Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (the “Complaining Party”) (unless such period is extended by mutual written consent), shall constitute a default under this Agreement. The Complaining Party’s notice (“Default Notice”) shall specify the nature of the alleged failure and, may specify the manner in which the failure satisfactorily may be cured By the other party (the “Defaulting Party”). Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of a default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings, which it may deem necessary to protect, assert, or enforce any such rights or remedies. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then no fault shall be deemed to have occurred if: (a) the cure shall be commenced at the earliest practicable date following receipt of the Default Notice; (b) the cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest practicable date (if no event later than thirty (30) days after the Defaulting Party’s receipt of the Default Notice), the Defaulting Party provides written notice to the Complaining Party that the cure cannot practicably be completed within such 30-day period; and (d) the cure is completed at the earliest practicable date. In no event shall Complaining Party be precluded from exercising remedies if a default is not cured within one hundred twenty (120) days after the Notice of Default is given. Complaining Party shall not send notice to any third party, including, but not limited to, bonding and surety companies, until such time as the cure opportunities set forth above have expired unless otherwise required by applicable law. Upon the occurrence of a default under this Agreement, the Complaining Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured consistent with this Section, then no default shall exist and the Complaining Party shall take no further action.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.01.
118
Section 10.02 Termination. If City elects to consider terminating this Agreement due to a material default of Developer, then City shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. As used herein, a finding of materiality shall be based on the effect of the default in relation to the size and scope of the Project. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Developer files an action to challenge City’s termination of this Agreement within such 60-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed City’s termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired).
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.02.
119
Section 10.03 Periodic Review See Comments/Action Items The City has conducted its second Annual Review of the Development Agreement. As of December 31, 2022, both parties were compliant with the DA.
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DA Section Condition/Requirement Status Comments Action Items 120
a) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the execution of this Agreement, City shall review the extent of good-faith compliance by Developer with the terms of this Agreement. This review (the “Periodic Review”) shall be conducted by the City Manager or his/her designee and shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code § 65865.1. Developer also agrees to pay City annually the greater of Five Thousand Dollars ($5,000) or the actual cost of Periodic Review Fee (not to exceed Ten Thousand Dollars ($10,000)). The Five Thousand Dollars ($5,000) shall be increased annually thereafter by the CPI for the San Francisco-Oakland Area, with the first increase implemented in January 2017 reflecting 2016 increases. Such Periodic Review Fee shall only be paid in the years in which a Periodic Review is actually conducted.
Compliant
121
b) Notice. At least ten (10) days prior to the Periodic Review, and in the manner prescribed in Article XII of this Agreement, City shall deposit in the mail to Developer a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Developer’s performance hereunder. Developer shall be permitted an opportunity to respond to City’s evaluation of Developer’s performance, either orally at a public hearing or in a written statement, at Developer’s election. Such response shall be made to the City Manager.
See Comments/Action Items Notice of the Annual Review was given to the Developer on April 21, 2023.
122
c) Good Faith Compliance. During the Periodic Review, the City Manager shall review Developer’s good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the City Manager shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the City Manager shall be appealable to the City Council. If the City Manager finds and determines that Developer has not complied with such terms and conditions, the City Manager may recommend to the City Council that it terminate or modify this Agreement by giving notice of its intention to do so, in the manner set forth in California Government Code §§ 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be shared equally by Developer and City.
Compliant
123
d) Failure to Properly Conduct Periodic Review. If, after thirty (30) days following Developer’s notice requesting a Periodic Review, City fails to initiate the Periodic Review, such failure shall be conclusively deemed an approval by City of Developer’s compliance with the terms of this Agreement.
Compliant
124
e) Written Notice of Compliance. With respect to any year for which Developer has been determined or deemed to have complied with this Agreement, City shall, within thirty (30) days following a written request by Developer, provide Developer with a written notice of compliance, in recordable form, duly executed and acknowledged by City. Developer shall have the right, in Developer’s sole discretion, to record such notice of compliance.
See Comments/Action Items Written Notice of Compliance will be sent to the Developer upon conclusion of the Annual Review.
125 Section 10.04 Default by City or Developer. In the event City or Developer defaults under the terms of this Agreement, City or Developer shall have all rights and remedies provided herein and under law.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.04.
126
Section 10.05 Excusable Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, terrorism, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting State or Federal laws or regulations, or judicial decisions.
Neither party shall be deemed to be in default where delays in performance or failure to perform are due to a court order arising out of or related to litigation attacking the validity of this Agreement, the Project Approvals, the Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project. Developer shall not be deemed to be in default where delays in performance or failure to perform are t due to Developer’s inability to obtain materials, power or public facilities (such as water or sewer service) to the Project and unrelated to Developer’s actions or inactions and beyond Developer’s control. Upon the properly noticed request of either party hereto, as required by Section 12.09, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be set forth in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon in writing.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.05.
127
Section 10.06 Legal Action. Either party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the purpose of this Agreement.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.06.
128 Section 10.07 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Compliant
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DA Section Condition/Requirement Status Comments Action Items 129
Section 10.08 Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City’s request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. If the parties are then unable to resolve their dispute, either party may commence mediation by providing to JAMS, or its successor, and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or ninety (90) days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the parties both agree in writing. The provisions of this Section 10.08 may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom enforcement is ordered. Nothing in this Section 10.08 shall in any way be interpreted as requiring that Developer and City and/or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to in writing by the parties to such meetings.
See Comments/Action Items As of December 31, 2022, there has been no need to exercise the provisions of Section 10.08.
130
Section 10.09 Attorneys’ Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and any related other costs incurred in that proceeding in addition to any other relief to which it is entitled.
Not Applicable
131
Article XI - No Agency, Joint
Venture or Partnership
132
It is specifically understood and agreed to by and between the parties hereto that unless otherwise expressly provided herein: (i) the subject development is a private development; (ii) City have no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. City agrees that Developer’s obligations under this Agreement related to the construction of Project water, sewer and drainage infrastructure improvements, the grading and construction of traffic improvements, and the grading and construction of any other public improvements (collectively, the “Public Improvements”) are all public works of improvement City is requiring as a condition of regulatory approval of the Project and that the Project is an otherwise private development. City further agrees that it will contribute no more money, or the equivalent of money, to the overall Project than is required to construct the Public Improvements and that City maintain no proprietary interest in the overall Project.
Compliant
133
Article XII - Miscellaneous
134
Section 12.01 Section 12.01 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein.
Not Applicable
135
Section 12.02 Enforceability. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Project Site at the time of the approval of this Agreement as provided by California Government Code § 65866. In the event of any conflict between the provisions of this Agreement and Applicable Law, the Project Approvals or any Subsequent Approval, this Agreement shall prevail.
Compliant
136
Section 12.03 Findings. City hereby finds and determines that execution of this Agreement furthers public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan.
Not Applicable
137
Section 12.04 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either City or Developer may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party.
Compliant
138
Section 12.05 Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder.
Compliant