Agenda packet — Pittsburg City Council, July 1, 2024 (part 2 of 3)

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. 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 MISCELLANEOUS 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.

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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 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.

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Consultant : <________________>
< ________________>
< ________________>
ATTN:<___________>

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 included in any Task Orders issued during the term of this Agreement 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 inconsistencies between this Agreement and Task Orders issued during the term of this Agreement, the Agreement shall control.

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.

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The Parties have executed this Agreement as of the Effective Date.

CITY OF PITTSBURG < CONSULTANT>

____________________________ ______________________________ Garrett Evans, City Manager < Name, Title>

Approved as to Form:

____________________________
Donna Mooney, City Attorney
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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:
141

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 Approving a List of On-Call Civil Engineering and Surveying Service Firms, Authorizing the City Manager to Enter into Agreements with Selected Firms and to Approve up to Two One-Year Extensions of the Agreements, and Authorizing the Public Works Director/City Engineer to Execute Task Orders MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
The Civil Engineering and Surveying Services On-Call List of pre-qualified firms will allow staff to engage services as they are needed for design, studies, documentation, and surveying. If adopted, the resolution will approve a list of qualified firms for on-call civil engineering and surveying services, authorize the City Manager to enter into Agreements with selected firms and to approve up to two one-year extensions of the executed Agreements, and authorize the Public Works Director/City Engineer to execute Task Orders.

FISCAL IMPACT
There are no fiscal impacts associated with approving the proposed On-Call Civil Engineering and Surveying Services List. Every On-Call Agreement will have a fee limit of $500,000 and no Task Order will exceed $250,000, unless amended by City Council. Costs for each Task Order will be paid from capital project budgets or operating budgets approved by the City Council.

RECOMMENDATION
City Council adopt the attached resolution approving the list of recommended firms for on- call civil engineering and surveying services, authorize the City Manager to enter into Agreements with selected firms and to approve up to two one-year extensions of the executed Agreements, and authorize the Public Works Director/City Engineer to execute Task Orders.
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BACKGROUND
On June 20, 2022, the City Council adopted Resolution No. 22-14111, approving a list of qualified firms to provide engineering services on an on-call basis. The agreements for those services expired on April 20, 2024.

On March 28, 2024, staff posted the Civil Engineering and Surveying Services Request for Qualifications on the City’s website. The City received statements of qualification (SOQ) from 16 firms prior to the April 23, 2024, deadline.

A sample Consulting Services Agreement is attached to this staff report.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
A list of pre-qualified consultants streamlines the process for engaging local firms to provide on-call services for city projects, which prevents unnecessary delays in project completion.

Staff reviewed and scored each SOQ across parameters including understanding of the scope of work; demonstrated firm and professional staff technical skill, experience, performance, and approach; familiarity with city, county, and state procedures; firm and professional staff references/satisfaction of clients; completeness and quality of proposal; and rates for services.

Staff recommends that the five highest ranking firms from the review be approved for the On-Call Civil Engineering and Surveying Services List.

Duties performed by the selected firms under the On-Call Civil Engineering and Surveying Services Agreement may include, but not be limited to, assisting staff with processing documentation related to the City’s Five-Year Capital Improvement Program, preparing construction documents, surveying, reviewing maps and easements, approving record documents, and performing applicable studies.

The City Manager shall be authorized to enter into an Agreement with each firm listed on the On-Call Civil Engineering and Surveying Services List. If approved, the On-Call Civil Engineering and Surveying Services List will be valid for two years, and the City Manager shall be authorized to approve up to two one-year extensions of the executed Agreements.

The Public Works Director/City Engineer shall be authorized to execute Task Orders pursuant to the On-Call Agreements. Each Agreement will set forth a rate schedule established at the time of contract execution. The City will provide a Task Order, pursuant to the Agreement, when a specific task is identified and a consultant is selected from the approved on-call list. The “not to exceed” fee for a Task Order will be negotiated at the time that each Task Order is assigned.
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Multiple Task Orders may be issued over the specified term of the Agreement, though the City will not be under any obligation to issue any Task Orders or to utilize any agreement to its limits. The proposed On-Call Civil Engineering and Surveying Services List contains five firms with varying areas of expertise to ensure any anticipated future needs of the City can be met.

The City, at its discretion, may use consultants from the approved on-call list or may issue additional requests for proposals and qualifications. Consultants on the approved on-call list will not be restricted from submitting proposals for future City requests for proposals or requests for qualifications, however, a separate proposal will be required to be considered in the selection process.

ATTACHMENTS: Resolution
On-Call Civil Engineering and Surveying Services List
Sample Consulting Services Agreement
Report Prepared By: Gabriel Piña, Associate Engineer
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Resolution No. 24- Page 1 of 2 July 1, 2024

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Approving a List of On-Call Civil )
Engineering and Surveying Service Firms, )
Authorizing the City Manager to Enter into ) RESOLUTION NO. 24- Agreements with Selected Firms and to )
Approve up to Two One-Year Extensions of )
The Agreements, and Authorizing the Public)
Works Director/City Engineer to Execute )
Task Orders )
WHEREAS, on June 20, 2022, the City Council adopted Resolution No. 22-14111, approving a list of qualified firms to provide engineering services on an on-call basis. The previous on-call agreements expired on April 20, 2024; and WHEREAS, the City has a need for continuing engineering and surveying services to augment City staff; and
WHEREAS, on March 28, 2024, staff posted the Civil Engineering and Surveying Services Request for Qualifications on the City’s website; and WHEREAS, staff received statements of qualification from 16 firms prior to the April 23, 2024, deadline; and
WHEREAS, staff reviewed and scored the statement of qualifications received and compiled a list of the five most qualified firms; and
WHEREAS, staff recommends that the City Manager be authorized to execute Agreements with firms on the On-Call Civil Engineering and Surveying Services List; and WHEREAS, staff recommends that the City Manager be authorized to approve up to two one-year extensions of the executed Agreements; and WHEREAS, staff recommends that the Public Works Director/City Engineer be authorized to execute Task Orders; and

WHEREAS, staff may issue multiple Task Orders pursuant to the fully executed Agreement over the term of the Agreement; and
WHEREAS, each On-Call Agreement will have a maximum compensation of $500,000, with no individual Task Order to exceed $250,000, unless amended by City Council; and
WHEREAS, Task Orders will be funded by capital or operational projects or from the City’s adopted budget.
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Resolution No. 24- Page 2 of 2 July 1, 2024 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby approves a list of qualified firms for On-Call Civil Engineering and Surveying Services, authorizes the City Manager to enter into Agreements with selected firms and to approve up to two one-year extensions of the executed Agreements, and authorizes the Public Works Director/City Engineer to execute Task Orders.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_____________________________
Juan Antonio Banales, Mayor
ATTEST:
____________________________
Alice E. Evenson, City Clerk
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2024 On-Call Civil Engineering and Surveying Services
Firm Name Location
HydroScience Engineers Berkeley
BKF Engineers Walnut Creek
Akel Engineering Group, Inc. Fresno
Bennett Fremont
LCC Martinez
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City of Pittsburg
Exhibit A On-Call Request for Qualifications

Exhibit A
Sample Consulting Services Agreement
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ON-CALL CIVIL ENGINEERING AND SURVEYING CONSULTING SERVICES

AGREEMENT BETWEEN THE CITY OF PITTSBURG AND
<NAME OF CONSULTANT>

THIS Agreement (“Agreement”) for consulting services is made by and between the City of Pittsburg, a municipal corporation (“City”) and <____________>, a <state>
<corporation/limited liability company> (“Consultant”) (together referred to as the “Parties”) as of <____________>, 20<___> (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 Task Orders issued during the term of this Agreement, and incorporated herein, at the time and place and in the manner specified therein.

1.1 Scope of Services. Consultant is expected to perform the following services as specified in Task Orders issued during the term of this agreement:

Assist staff with processing documentation, including:
a. Coordination with Caltrans for federal-aid projects. b. Coordination with funding agencies.
c. Facilities planning studies.
d. Project improvements/repairs/modifications/studies.
e. Programming and project scope development.
f. Schematic design and design development.
g. Value Engineering, constructability review, and peer review. h. Project meeting coordination and preparation of minutes. i. Preparation or review of detailed cost estimates.
j. Internal and regulatory agency project approval coordination. k. Obtaining right-of-way and easements.

Civil Engineering Design

Preparation or assistance in the preparation of construction documents:
a. Develop Plan, Specifications and Estimates.
b. Coordination with outside agencies and utilities.
c. Development of detailed project schedules and cost estimates. d. Assistance during bidding and construction.
e. Design services during construction.
f. Shop drawing review.
g. Coordination and preparation of change orders.
h. Preparation of as built plans from marked construction plans.

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Surveying

a. Topographic, Boundary, and Easement survey
b. Plats and legal descriptions
c. Construction staking
d. ALTA

City Surveyor

Perform reviews of maps, easements, and act as and approve record documents a. Parcel Maps
b. Record of Survey
c. Tentative Maps
d. Court Exhibits
e. Research Services
f. Expert Witness Testimony
g. Subdivision Maps
h. FEMA Certificates (flood zone)
i. Certificates of Compliance
j. Corner Records
k. Elevation Certificates
l. Legal Description Preparation
m. Application Processing

Transportation Design

a. Preparing plans, specifications, and estimates (PS&E) for the installation of new traffic signal systems, highway lighting systems, traffic signing and striping, bicycle facilities, or pedestrian facilities. b. Traffic signal modifications including video detection, equipment replacement, pole and cabinet foundations, conduits, conductors, and pull boxes.
c. Street and pedestrian lighting modifications including equipment replacement, pole and cabinet foundations, conduits, and, conductors, and pull boxes.
d. Design coordination with other public agencies and utilities. e. Preparing traffic control plans and construction staging plans. f. Developing and presenting design alternatives to the community, gathering public opinion, considering public sentiment in the context of safety, feasibility, and all applicable guidelines, policies, and law, and recommending a preferred alternative with a well-developed justification. Advising and assisting with funding applications for various Local, State, and Federal funded programs including but not limited to, HSIP, ATP, and OBAG.
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1.2 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on <_______>, 20<__>.

1.3 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.

1.4 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.

1.5 Time. Consultant shall devote such time to the performance of services pursuant to Task Orders issued per 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. The Consultant shall be paid for the actual fees, costs and expenses for all time and materials required and expended, pursuant to the rate schedule incorporated in Task Orders issued per this Agreement. A total not-to-exceed amount of compensation will be determined by the Task Order(s) issued. In no event shall total compensation exceed the amount of the Task Order, without City’s prior written approval. Unless authorized by amendment to this Agreement, executed by the Parties, no Task Order shall exceed $250,000. The total compensation during the term of this agreement shall not exceed $500,000. The not-to-exceed dollar amount is not a guarantee that the City will issue Task Orders for that full amount to the Consultant, or that City will enter into a Task Order with Consultant but is merely a limit of potential City expenditures pursuant to a Task Order 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 per Task Order, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation per Task Order 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 151

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performed and reimbursable costs incurred prior to the invoice date.

Separate invoices shall be submitted for each Task Order. Invoices shall contain the following information, unless waived by the City Manager, or his or her designee:

 A unique invoice number;
 The beginning and ending dates of the billing period;  A Task Summary identifying the scope of services performed including project name, number, or Task Order name/description;  Detail of Charges including, where appropriate, labor (by sub- category), travel, materials, equipment, supplies, subcontractor charges, and miscellaneous expenses (include title, number of hours, and hourly rate billed);
 An Invoice Summary containing the original Task Order amount, the amount of prior billings, the total due this period, the balance available under the Task Order, and the percentage of completion;  At City’s option, for each work 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 Consultant’s signature;
 Invoices shall be addressed to:

City of Pittsburg
Engineering Division
Attn: Lydia Blakley
65 Civic Avenue
Pittsburg, CA 94565

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 for each Task Order within 60 days of completing its services. Consultant’s failure to submit its final invoice for each Task Order 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 to be specified and included in the total compensation authorized per Task 152

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Order. Expenses not listed the approved Task Order 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. 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) 153

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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 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 154

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professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $2,000,000 per occurrence or claim, $4,000,000 aggregate 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 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.

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4.4.4 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.

4.4.5 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.

4.4.6 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 Requirement. Consistent with California Civil Code Section 2782.8, Consultant shall, to the fullest extent permitted by law, indemnify, protect, defend and hold harmless City, and its employees, officials, and agents, from any and all demands, losses, claims, costs, liabilities, and expenses for any damage, injury, or death, including any and all administrative fines, penalties, or costs imposed as a result of an administrative proceeding, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, 156

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employees, agents, contractors, subconsultants, or any persons under its direction or control. If requested by City, Consultant shall defend any such suits at its sole cost and expense. If City elects to provide its own defense, Consultant shall reimburse City for any expenditures, including reasonable attorneys’ fees and costs. Consultants’ obligations under this section exist regardless of concurrent negligence or willful misconduct on the part of City or any other person; provided, however, that Consultant will not be required to indemnify, including the cost to defend, City for the proportion of liability a court determines does not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, employees, agents, contractors, subconsultants, or any persons under its direction or control. 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.

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 157

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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. TERMINATION 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.

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 158

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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 the Task Orders issued during the term of this Agreement not finished by Consultant; or

8.5.4 Charge Consultant the difference between the cost to complete the work described in the Task Orders issued during the term of this Agreement that are 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.

Section 9. KEEPING AND STATUS OF RECORDS.

9.1 Records Created as Part of Consultant’s Performance. All final versions of reports, data, maps, models, charts, studies, surveys, 159

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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.

Section 10 MISCELLANEOUS PROVISIONS.

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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.

10.7 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.

Consultant : <________________>
< ________________>
< ________________>
ATTN:<___________>

City: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
ATTN: City Manager
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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.

10.13 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.

CITY OF PITTSBURG < CONSULTANT>

____________________________ ______________________________ Garrett Evans, City Manager < Name, Title>

Approved as to Form:

____________________________
Donna Mooney, City Attorney
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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:
163

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 Approving a List of On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Service Firms, Authorizing the City Manager to Enter into Agreements with Selected Firms and to Approve up to Two-One Year Extensions of the Agreements, and Authorizing the Public Works Director/City Engineer to Execute Task Orders MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
The Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services On-Call List of pre-qualified firms will allow staff to engage services as they are needed for studies, documentation, reports, mitigation, sampling, monitoring, and testing. If adopted, the resolution will approve a list of qualified firms for on-call construction material testing, environmental, hazardous material testing, and geotechnical services, authorize the City Manager to enter into Agreements with selected firms and to approve up to two one-year extensions of the executed Agreements, and authorize the Public Works Director/City Engineer to execute Task Orders.

FISCAL IMPACT
There are no fiscal impacts associated with approving the proposed On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List. Every On-Call Agreement will have a fee limit of $500,000 and no Task Order will exceed $150,000, unless amended by City Council. Costs for each Task Order will be paid from capital project budgets or operating budgets approved by the City Council.

RECOMMENDATION
City Council adopt the attached resolution approving the list of recommended firms for on- call construction material testing, environmental, hazardous material testing, and geotechnical services, authorize the City Manager to enter into Agreements with the selected firms and to approve up to two one-year extensions of the executed Agreements, and authorize the Public Works Director/City Engineer to execute Task Orders. 164

BACKGROUND
On June 20, 2022, the City Council adopted Resolution No. 22-14110, approving a list of qualified firms to provide construction material testing, environmental, hazardous material testing, and geotechnical services on an on-call basis. The agreements for those services expired on April 20, 2024.

On March 28, 2024, staff posted the Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services Request for Qualifications on the City’s website. The City received statement of qualifications (SOQ) from 11 firms prior to the April 23, 2024, deadline.

A sample Consulting Services Agreement is attached to this Staff Report.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
A list of pre-qualified consultants streamlines the process for engaging local firms to provide on-call services for City projects, which prevents unnecessary delays in project completion.

Staff recommends that the four highest scoring firms from the review be approved for the On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List. Duties performed by the selected firms under the on-call construction material testing, environmental, hazardous material testing, and geotechnical services agreement may include, but not be limited to, assisting staff with processing documents, sampling, testing, preparing reports, conducting studies, and processing documents.

The City Manager shall be authorized to enter into an Agreement with each firm listed on the On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List. If approved, the On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List will be valid for two years, and the City Manager shall be authorized to approve up to two one-year extensions of the executed Agreements.

The Public Works Director/City Engineer shall be authorized to execute Task Orders pursuant to the On-Call Agreements.

Each Agreement will set forth a rate schedule established at the time of contract execution.

The City will provide a Task Order, pursuant to the agreement, when a specific task is identified and a consultant is selected from the approved on-call list. The “not to exceed” fee for each Task Order will be negotiated at the time the Task Order is assigned. 165
Multiple task orders may be issued over the specified term of the Agreement, though the City will not be under any obligation to issue any Task Orders or to use any agreement to its limits.

The proposed On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List contains four firms with varying areas of expertise to ensure any anticipated future needs of the City can be met.

ATTACHMENTS: Resolution
On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List
Sample Consulting Services Agreement
Report Prepared By: Gabriel Piña, Associate Engineer
166
Resolution No. 24- Page 1 of 2 July 1, 2024

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Approving a List of On-Call Construction )
Material Testing, Environmental, Hazardous)
Material Testing, And Geotechnical Service)
Firms, Authorizing the City Manager to )
Enter into Agreements with Selected Firms ) RESOLUTION NO. 24- And to Approve up to Two One-Year )
Extensions of the Agreements, and )
Authorizing the Public Works Director/City )
Engineer to Execute Task Orders )
WHEREAS, on June 20, 2022, the City Council adopted Resolution No. 22-14110, approving a list of qualified firms to provide construction material testing, environmental/hazardous material testing, and geotechnical services on an on-call basis.

The previous on-call agreements expired on April 20, 2024; and WHEREAS, the City has a need for continuing construction material testing, environmental, hazardous material testing, and geotechnical services to augment City staff; and
WHEREAS, on March 28, 2024, staff posted the Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services Request for Qualifications on the City’s website; and
WHEREAS, staff received statement of qualifications from 11 firms prior to the April 23, 2024, deadline; and
WHEREAS, staff reviewed and scored the statement of qualifications received and compiled a list of the four most qualified firms; and
WHEREAS, staff recommends that the City Manager be authorized to execute Agreements with firms on the On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services List; and WHEREAS, staff recommends that the City Manager be authorized to approve up to two one-year extensions of the executed Agreements; and WHEREAS, staff recommends that the Public Works Director/City Engineer be authorized to execute Task Orders; and

WHEREAS, staff may issue multiple Task Orders pursuant to the fully executed Agreement over the term of the Agreement; and
167
Resolution No. 24- Page 2 of 2 July 1, 2024 WHEREAS, each On-Call Agreement will have a maximum compensation of $500,000, with no individual Task Order to exceed $150,000, unless amended by City Council; and
WHEREAS, Task Orders will be funded by capital or operational projects or from the City’s adopted budget.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby approves a list of qualified firms for On-Call Construction Material Testing, Environmental, Hazardous Material Testing, and Geotechnical Services, authorizes the City Manager to enter into Agreements with selected firms and to approve up to two one-year extensions of the executed Agreements, and authorizes the Public Works Director/City Engineer to execute Task Orders.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_____________________________
Juan Antonio Banales, Mayor
ATTEST:
____________________________
Alice E. Evenson, City Clerk
168
2024 On-Call Geotech/Materials Testing Services
Firm Name Location
Ninyo & Moore Geotechnical and Environmental Sciences
Consultants Alameda
Geocon Consultants, Inc. Oakland
Terracon Consultants, Inc. Concord
Kleinfelder Pittsburg
169
City of Pittsburg
Exhibit A On-Call Request for Qualifications

Exhibit A
Sample Consulting Services Agreement
170

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ON-CALL CONSTRUCTION MATERIAL TESTING, ENVIRONMENTAL,

HAZARDOUS MATERIAL TESTING, AND GEOTECHNICAL SERVICES

AGREEMENT BETWEEN

THE CITY OF PITTSBURG AND
<NAME OF CONSULTANT>

THIS Agreement (“Agreement”) for consulting services is made by and between
the City of Pittsburg, a municipal corporation (“City”) and <____________>, a <state> <corporation/limited liability company> (“Consultant”) (together referred to as the “Parties”) as of <____________>, 20<___> (the “Effective Date”).

1.1 Scope of Services. Consultant may perform the following services as specified in Task Orders issued during the term of this agreement:

Construction Material Testing Services
a. Obtaining samples and performing lab analysis on soil, asphalt, and concrete to test conformance with project plans and specifications. b. Providing reports and field testing for moisture/density during site grading, backfill, placement of engineered fill, sub-grade preparation, asphalt concrete, and others as identified by the project.
c. Providing continuous and/or periodic field observations of construction activities.
d. Providing special inspections of concrete reinforcement, structural steel construction, shop/field welding, high strength bolting, masonry construction, and others as identified by the project.
e. Preparing testing and observation daily reports.
f. Providing moisture/density curves for site and import materials.

Environmental Services
a. Preparing CEQA documentation.
b. Preparing NEPA documentation.
c. Biological and cultural resources reports.
d. Air and water quality reports.
e. Site investigations.
f. Environmental impact reports.
g. Compliance monitoring.
h. Prepare and process permits for various regulatory agencies. i. Prepare stormwater pollution prevention plans.
j. Provide environmental assessments.
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Hazardous Material Testing Services
a. Preparation of hazardous material lead paint and asbestos abatement reports and recommendations for demolition projects (pre-demolition surveys to include hazardous material summary table, sampling/analytical data, sample locations/site plans, abatement recommendations and requirements, and worker protection recommendations)
b. Obtaining samples and performing lab analysis on soil, building materials, and groundwater
c. Providing estimates of hazardous material quantities d. Prepare hazardous material survey location and site plans e. Providing reports and treatment recommendations for contaminated sites f. Providing field observations of operations related to treatment and abatement of hazardous materials
g. Providing procedural information for hazardous material regulations from local, state, and federal agencies
h. Preparing testing and observation daily reports
i. Review of outside material testing reports to assist with regulatory requirements for disposal and treatment

Geotechnical Services
a. Preparation of soil/geotechnical reports and recommendations for various construction activities.
b. Obtaining samples and performing lab analysis on soil to provide recommendations in design.
c. Preparing testing and observation reports.
d. Review of construction material submittals for conformance with project plans and specifications.
e. Construction monitoring.
f. Shop drawing review.
g. Peer review.

1.2 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on <_______>, 20<__>.

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Performance, Consultant shall, immediately upon receiving City’s request, reassign such persons.

Section 2. COMPENSATION. The Consultant shall be paid for the actual fees, costs and expenses for all time and materials required and expended, pursuant to the rate schedule incorporated in Task Orders issued per this Agreement. A total not-to-exceed amount of compensation will be determined by the Task Order(s) issued. In no event shall total compensation exceed the amount of the Task Order without City’s prior written approval. Unless authorized by amendment to this agreement, executed by the Parties, no Task Order shall exceed $150,000. The total compensation during the term of this agreement shall not exceed $500,000. The not to exceed dollar amount is not a guarantee that the City will issue Task Orders for the full amount to the Consultant, or that City will enter into a Task Order with Consultant but is merely a limit of potential City expenditures pursuant to a Task Order 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.

Separate invoices shall be submitted for each Task Order. Invoices shall contain the following information, unless waived by the City Manager, or his or her designee:

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 An Invoice Summary containing the original Task Order amount, the amount of prior billings, the total due this period, the balance available under the Task Order, and the percentage of completion;  At City’s option, for each work 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 Consultant’s signature;
 Invoices shall be addressed to:

City of Pittsburg
Engineering Division
Attn: Lydia Blakley
65 Civic Avenue
Pittsburg, CA 94565

2.4 Reimbursable Expenses. Reimbursable expenses, if any, are to be specified and included in the total compensation authorized per Task Order. Expenses not listed in the approved Task Order 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.

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4.2 Commercial General and Automobile Liability Insurance.

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:

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a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis.

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 $2,000,000 per occurrence or claim, $4,000,000 aggregate 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.

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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.

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 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.

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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.

Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.

5.1 5.1 General Indemnification. Consistent with California Civil Code Section 2782.8, Consultant shall, to the fullest extent permitted by law, indemnify, protect, defend and hold harmless City, and its employees, officials, and agents, from any and all demands, losses, claims, costs, liabilities, and expenses for any damage, injury, or death, including any and all administrative fines, penalties, or costs imposed as a result of an administrative proceeding, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, employees, agents, contractors, subconsultants, or any persons under its direction or control. If requested by City, Consultant shall defend any such suits at its sole cost and expense. If City elects to provide its own defense, Consultant shall reimburse City for any expenditures, including reasonable attorneys’ fees and costs. Consultants’ obligations under this section exist regardless of concurrent negligence or willful misconduct on the part of City or any other person; provided, however, that Consultant 178

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will not be required to indemnify, including the cost to defend, City for the proportion of liability a court determines does not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, employees, agents, contractors, subconsultants, or any persons under its direction or control. This Section 5.1 shall survive any expiration or termination of this Agreement.

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.

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.

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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. TERMINATION AND MODIFICATION.

8.2 Amendments. The parties may amend this Agreement only by a writing signed by the parties hereto.

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subcontractors noted in the proposal, without prior written approval of the City Manager, or his or her designee.

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 the Task Orders issued during the term of this Agreement not finished by Consultant; or

Section 9. KEEPING AND STATUS OF RECORDS.

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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.

Section 10. MISCELLANEOUS PROVISIONS.

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.

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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.

10.7 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.

Consultant : <__________________>
< __________________>
< __________________>
< __________________>

City: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
ATTN: City Manager

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10.10 Integration. This Agreement, including the scope of work included in any Task Orders issued during the term of this Agreement 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 and Task Orders issued during the term of this Agreement, the Agreement shall control.

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.

10.13 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties hereto, with no intent to benefit any third parties.

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The Parties have executed this Agreement as of the Effective Date.

CITY OF PITTSBURG < CONSULTANT>

____________________________ ______________________________ Garrett Evans, City Manager <Name, Title>

Approved as to Form:

____________________________
Donna Mooney, City Attorney

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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:

186

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 Contract for Temporary Landscape Maintenance Assistance MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
Public Works obtains the assistance of a landscape contractors during the peak growing season to sustain maintenance on high visibility roads and labor-intensive areas throughout the City, allowing these areas to remain safe, beautiful, and maintained. If approved, the resolution would authorize the City Manager to execute a contract with Allied Landscape (Allied) for temporary landscape maintenance assistance in the medians and rights-of-way.

FISCAL IMPACT
No new funds are requested. The landscape maintenance assistance contract with Allied is funded in Landscape Maintenance Master Plan (LMMP) Project No. 1756. This is an appropriate use of these funds.

RECOMMENDATION
City Council adopt the attached Resolution authorizing the City Manager to execute a general services agreement with Allied in the amount of $125,000 for temporary landscape maintenance assistance.

BACKGROUND
The Public Works Department is responsible for the care of City facilities and infrastructure, including routine and emergency maintenance of medians and rights-of-way throughout the City.
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The City’s LMMP was created and presented in 2020 to guide the City’s landscaping maintenance operations and present a cohesive vision for the future. The LMMP was developed by staff and adopted by the City Council as a guide for prioritization of various projects to accomplish community goals for landscaping in parks, medians, and City Rights- of-Way. In the middle of Fiscal Year 2022/23, the Public Works Department received $1,500,000 of General Fund Surplus to implement projects specified in the 2020 Landscape Maintenance Master Plan, including continued landscape maintenance assistance contracts.

Decreased labor force, reduced budgets, and limited weed control techniques are all factors that impacted the City’s maintenance crews during the last several years. In response to the accumulation of these factors, the Public Works department requested funding to assist in getting maintenance schedules proceeding as planned and bringing major landscape areas in the City back to a more desirable state. Funds were allocated to hire outside contractors to supplement the City’s maintenance crews with right-of-way and median maintenance.

Since the initial contract, this has proved to be a beneficial and necessary component to successful maintenance. Staff has continued to retain landscape contractors to assist maintenance crews during peak weed and plant growing season on high visibility roads and labor-intensive areas throughout the City in order to keep these areas safe, beautiful, and maintained. During the rapid growing season, having a landscape contractor also allows City maintenance crews to perform maintenance-reducing projects for long-term savings.

SUBCOMMITTEE FINDINGS
An update to the 2020 LMMP, including projects and planned use of funds, was presented to the Infrastructure and Transportation Subcommittee on December 15, 2023.

STAFF ANALYSIS
Public Works solicited proposals from several qualified landscape contractors through a Request For Proposal (RFP) process. A total of two companies submitted responses to the RFP. New Image was selected for the overall best value of services. However, New Image and City staff have mutually agreed to cancel the agreement for various reasons as of June 10, 2024. Staff recommends entering into an agreement with the second proposer, Allied Landscape, to assume the scope of work. Allied Landscape has worked on several projects with staff and has provided satisfactory landscape services previously for the City.

ATTACHMENTS: Resolution
General Services Agreement
Report Prepared By: Natasha Farmer, Public Works Administrative Analyst II 188

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter Of:

Authorizing Execution of an )
Agreement for Temporary ) RESOLUTION NO. 24-
Landscape Maintenance Assistance )
WHEREAS, the Public Works Department is responsible for the care and maintenance of City facilities and infrastructure, including routine and emergency maintenance of medians and rights-of-way throughout the City; and WHEREAS, staff retains a landscape contractor to assist maintenance crews during peak weed and plant growing season on high visibility roads and labor-intensive areas throughout the City in order to keep these areas safe, beautiful, and in good condition; and WHEREAS, in February 2024, staff solicited and received proposals for temporary landscape assistance services and New Image Landscape was selected; and WHEREAS, the agreement with New Image Landscape was terminated for various reasons as of June 10, 2024; and
WHEREAS, Allied Landscape was the only other proposer and has previously provided satisfactory landscape services; and
WHEREAS, sufficient funds are available within the Project No. 1756 budget.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the City Manager to execute a General Services Agreement for temporary landscape maintenance assistance with Allied Landscape Services for an amount not to exceed $125,000.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_______________________________
Juan Antonio Banales, Mayor
ATTEST:
_______________________________
Alice E. Evenson, City Clerk
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GENERAL SERVICES AGREEMENT BETWEEN

THE CITY OF PITTSBURG AND

ALLIED LANDSCAPE SERVICES, INC
LM70124

THIS Agreement (“Agreement”) for general services is made by and between the City of Pittsburg (“City”) and Allied Landscape Services, Inc., a California Corporation (“Service Provider”) (together referred to as the “Parties”) as of July 1, 2024 (the “Effective Date”).

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Service Provider shall provide to City the services described in the Scope of Services 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 Service Provider 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. Service Provider shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Service Provider is engaged.

1.3 Assignment of Personnel. Service Provider 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 Service Provider performs services in accordance with the Standard of Performance, Service Provider shall, immediately upon receiving City’s request, reassign such persons.

1.4 Time. Service Provider 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 Service Provider’s obligations hereunder.

Section 2. COMPENSATION. City hereby agrees to pay Service Provider a sum not to exceed one hundred twenty five thousand dollars ($125,000.00), 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 190

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guarantee that the City will pay that full amount to the Service Provider, but is merely a limit of potential City expenditures under this Agreement.

Service Provider and City acknowledge and agree that compensation paid by City to Service Provider under this Agreement is based upon Service Provider’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Service Provider. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Service Provider 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. Service Provider 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 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; ▪ At City’s option, for each work 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 Agreement by Service Provider and each employee, agent, and subcontractor of Service Provider performing services hereunder;
▪ The Service Provider’s signature.

2.3 Final Payment. Service Provider shall submit its final invoice within 60 days of completing its services. Service Provider’s failure to submit its final invoice within this 60 day period shall constitute Service Provider’s waiver of any further billings to, or payments from, City.

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2.4 Reimbursable Expenses. Reimbursable expenses, if any, are specified in Exhibit B and included in the total compensation referenced in Section

2. Expenses not listed in Exhibit B are not chargeable to, or reimbursable by, City.

2.5 Payment of Taxes. Service Provider 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 Service Provider 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, Service Provider 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. INSURANCE REQUIREMENTS. Before beginning any services under this Agreement, Service Provider, 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 Service Provider’s bid or proposal. Service Provider shall be fully responsible for the acts and omissions of its subcontractors or other agents.

4.1 Workers’ Compensation. Service Provider 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 Service Provider 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 Service Provider 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. Service Provider, 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.

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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 Service Provider 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 Service Provider, including materials, parts, or equipment furnished in
connection with such work or operations; or automobiles owned, leased, hired, or borrowed by the Service Provider.

Coverage can be provided in the form of an endorsement to the Service Provider’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 Service Provider’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
Service Provider’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. Service Provider 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.

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4.3.1 General requirements. Service Provider, 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 Service Provider’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, Service Provider 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 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. Service Provider 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.

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4.4.3 Deductibles and Self-Insured Retentions. Insurance obtained by the Service Provider 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. Service Provider hereby agrees to waive subrogation which any insurer or contractor may require from Service Provider by virtue of the payment of any loss. Service Provider 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 Service Provider, its employees, agents, and subcontractors.

4.4.6 Subcontractors. Service Provider 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 Service Provider 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 Service Provider maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Service Provider.

4.5 Remedies. In addition to any other remedies City may have if Service Provider 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 Service Provider to stop work under this Agreement and withhold any payment that becomes due to Service Provider hereunder until Service Provider demonstrates compliance with the requirements hereof; and/or 3) terminate this Agreement.

Section 5. INDEMNIFICATION AND SERVICE PROVIDER’S RESPONSIBILITIES.

5.1 General Indemnification. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold City, its officials, officers, 195

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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 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 may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and 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 not 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 Service Provider or any employee, agent, or subcontractor of Service Provider 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, Service Provider shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Service Provider 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 SERVICE PROVIDER.

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6.1 Independent Contractor. At all times during the term of this Agreement, Service Provider shall be an independent contractor and shall not be an employee of City.

6.2 Service Provider Not an Agent. Except as City may specify in writing, Service Provider shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Service Provider shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

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. Service Provider and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Service Provider 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. Service Provider represents and warrants to City that Service Provider 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, Service Provider and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City.

7.4 Nondiscrimination and Equal Opportunity. Service Provider 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 Service Provider under this Agreement. Service Provider 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 Service Provider thereby.

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7.5 Registration and Monitoring. Service Provider shall be currently registered with the Department of Industrial Relations and qualified to perform public work consistent with Labor Code section 1725.5, except in limited circumstances as referenced in Labor Code section 1771.1(a) or the exemption set forth in section 1771.1(n). Additionally, Service Provider is hereby notified that this Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

7.6 Prevailing Wage Rates. In accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit A are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code must be paid to all workers engaged in performing the services described in Exhibit A. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City’s General Services Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit A. Contractor assumes all responsibility for such payments and shall defend, indemnify and hold the City harmless from any and all claims made by any worker, governmental agency or other third party with regard thereto.

The Service Provider and any subcontractors engaged in performance of the services described in Exhibit A shall comply with Labor Code Section 1775, which establishes a penalty per day for each worker engaged in the performance of the services described in Exhibit A that the Service Provider or any subcontractor pays less than the specified prevailing wage.

In accordance with Labor Code Section 1776, the Service Provider and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Such records shall be in kept, maintained and made available in accordance with the requirements of Labor Code Section 1776.

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Section 8. TERMINATION 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 Service Provider. In the event of termination, Service Provider shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Service Provider delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Service Provider or prepared by or for Service Provider 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 Service Provider recognize and agree that this Agreement contemplates personal performance by Service Provider and is based upon a determination of Service Provider’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 Service Provider. Service Provider may not assign this Agreement or any interest therein without the prior written approval of the City Manager, or his or her designee. Service Provider 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 Service Provider, including but not limited to the provisions of Section 5, shall survive the termination of this Agreement.

8.5 Options upon Breach by Service Provider. If Service Provider 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 Service Provider pursuant to this Agreement;

8.5.3 Retain a different service provider to complete the work described in Exhibit A not finished by Service Provider; or
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8.5.4 Charge Service Provider 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 Service Provider pursuant to Section 2 if Service Provider had completed the work.

Section 9. KEEPING AND STATUS OF RECORDS.

9.1 Records Created as Part of Service Provider’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 Service Provider prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City.

Service Provider 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 Service Provider’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 Service Provider 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 Service Provider without prior written approval of City.

9.2 Service Provider’s Books and Records. Service Provider 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 Service Provider 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.

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Section 10 MISCELLANEOUS PROVISIONS.

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. Service Provider may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Service Provider in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.

Service Provider 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. Service Provider 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 201

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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.

Service Provider : Allied Landscape Services, Inc.
7969 Las Positas Road
Livermore, CA 94551
[email protected]

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 Exhibits A and B represents the entire and integrated agreement between City and Service Provider 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 Service Provider’s proposal, the Agreement shall control To the extent there are any inconsistences between the Exhibits and the Service Provider’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 shall constitute one agreement.

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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.

CITY OF PITTSBURG SERVICE PROVIDER

____________________________ ______________________________ Garrett Evans, City Manager Signature

______________________________
Printed Name & Title

Approved as to Form:

____________________________
Donna Mooney, City Attorney

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EXHIBIT A

SCOPE OF SERVICES

Service Provider (also referred to as “Contractor”) shall perform the following : Provide temporary landscape median and right of way maintenance service on a weekly basis for areas as outlined in the maps attached beginning at the end of March through September 2024. There will be approximately 65 total service days during the duration. The project is located on major thoroughfares throughout Pittsburg. The scope of work includes, but is not limited to:
• Provide a 4-man crew approx. 2 to 3 days per week from June through September • Pruning and trimming vegetation/small trees.
• Picking up any and all litter/debris in the respective area. • Applying pre-emergent herbicide in parks, medians and rights-of-way (as directed). • Spreading/replenishing bark.
• Minor irrigation repairs (if directed).
• Planting any missing trees, shrubs, and groundcover (if directed). • Some cleanup of park areas may be included.
• Dumping generated green waste at City contracted transfer station.

A 4-person crew must be present for 90-95% of days in the contract.

Service Provider’s crew shall work as directed in the medians and landscape rights-of-way throughout the City of Pittsburg, including spraying. When spraying, at least one crew member shall be dedicated to spraying herbicide, or an additional crew member shall be added when spraying. Crew member spraying must be label-trained at a minimum.

Contractor shall possess and implement an approved traffic control plan at all times.

Traffic control plan must be approved by City representative prior to beginning work.

Landscape Maintenance Services- Technical Specifications

1) EQUIPMENT & SUPPLIES: Contractor agrees to provide and maintain all equipment required to perform the above services. The contractor’s equipment shall be to be of top quality and in good working order. If the City or its designee requests replacement equipment due to poor quality or performance the Contractor shall replace the equipment at Contractor’s own expense as soon as possible.

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payment or discount shall be at the City’s sole discretion. City may at its discretion terminate the contract early and move to another responsible Proposer if the City is not satisfied with the productivity, efficiency, services or communication of the Contractor. All complaints about services rendered will be evaulated by the Assistant Director of Public Works or designee/s.

5) HOURS OF OPERATION: The Contractor shall have a representative available to meet with City of Pittsburg personnel during the normal City working hours, which are 7:00 a.m. to 3:30 p.m., Monday through Friday, except holidays. Contractor may work on Saturdays with prior permission from City representative. There is no Construction noise prior to 7:00 am is prohibited. Hours may be adjusted based on work locations with prior approval form City.

6) TIME & LOCATIONS: The Contractor shall quote an 8-hour workday. There is 30 minutes allowed for travel time to the site in the morning and leaving the site in the afternoon. Contractor shall keep the City informed of working locations so that the City representative can inspect the work. Productivity and efficiency shall be determined in the sole discretion of the City.

8) CITY WILL PROVIDE:
a) Inspection – The City’s representative will answer questions and inspect work for contract compliance.
b) Direction and Quality Control – The City’s representative will lay out areas of work (see maps) and answer questions as to the type of detailed maintenance/trimming and ground preparation for replanting/irrigations repairs if desired.
c) Plant Material – The City will provide all plant material including soil amendments and bark needed to replace dead or missing plants and trees. d) Irrigation Supplies- City will provide sprinkler heads, sprinklers, irrigation tubing, and risers as needed.
e) Notice – The City shall give a 72-hour notice for the start of work and make commercially reasonable efforts to lay out a schedule so that the contractor may estimate and plan for the length of time the crew will be utilized. f) Disposal Site – The City will provide to the contractor a disposal site in the City of Pittsburg.

CONTRACTOR WILL PROVIDE THE FOLLOWING:

9) CREW
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a) A safe, motivated and skilled minimum 4-person crew capable of productively pruning and trimming vegetation in a highly efficient and productive manner. b) A crew capable of efficiently and professionally planting missing trees, shrubs, and ground cover including any soil preparation and amendments needed prior to planting. c) A crew capable and trained to apply necessary pre-emergent herbicide prior to spreading bark.
d) A crew capable of performing minor irrigation repairs such as changing out sprinkler heads, sprinklers, and minor irrigation tubing repairs. e) Crew to also pick up any and all litter/debris in the respective area unless otherwise directed.
f) Contractor to ensure all state, federal and OSHA safety regulations are met including but not limited to cold drinking water, shade and rest periods.

h) Saturday work is on an as needed basis; availability is required. i) When spraying, one member of the crew on site at a minimum must be label-trained

10) EQUIPMENT – The following equipment shall be used by Contractor performing maintenance:
a) Commercial grade string trimmers or weed whackers.
b) Engine Powered Rear Tine Roto-Tiller 8 hp minimum.
c) Commercial grade gas powered trimmers: pole hedge trimmers and short trimmers.
d) Commercial grade blower.
e) 6-yard (minimum size) dump truck or a truck and 6 cubic yard (minimum size) hydraulic dump trailer in place of a 6 yard (minimum size) dump truck. f) Commercial chainsaws (have onsite and available if needed). g) Rakes, shovels, brooms, etc., as needed to complete the task. h) CalTrans/MUTCD approved arrow boards, traffic signs, etc.

11) HERBICIDE - Contractor shall provide a trained pesticide applicator to apply any necessary pre-emergent herbicide. Contractor shall supply the herbicide and is responsible for the safe application and reporting of any pesticide use to the Contra Costa Department of Agriculture and or California Department of Pesticide Regulation.

Regulation.

12) COMMUNICATION –
a) At least one crew member must be able to communicate with City staff both verbally and in writing and be available via cell phone during working hours. b) Record and submit in writing to City staff amount of green waste removed from job in either weight or volume

13) SAFETY – Contractor is responsible for all onsite safety and traffic control (required). Additionally, items furnished shall meet requirements of the 206

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Occupational Safety and Health Act (OSHA), federal, state and local requirements, in addition to requirements of appropriate safety standard organizations. a) Workers to wear reflective vests at all times.
b) Vehicles must be clearly labeled with company name and vehicles numbers. c) All lane street closures must comply with CalTrans regulations and specifications; including but not limited to signs, taper length and devices.

Unsatisfactory traffic control may be cause for immediate job shutdown or termination of this Agreement.
d) Contractor must possess and implement an approved traffic control plan at all times. Traffic control plan must be approved by City representative prior to beginning work.
e) Minimum of 50 (more may be required) 28-inch cones
f) A qualified traffic control trained employee must be on site when traffic control is necessary

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EXHIBIT B

COMPENSATION SCHEDULE

Contract Period: July 1, 2024 – June 30, 2025
Cost per 8-hour day: $2,010.00
Approximate days of work: 60
Pre-emergent herbicide materials rate per square foot: $0.03 – Dimension & Cheetah Pro

Total cost of all work not to exceed $125,000

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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.

ALLIED LANDSCAPE SERVICES, INC.

By:

Title:

210

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 Contract for Urban Forest Management and Tree Inventory Services
MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
If approved, this resolution will authorize execution of a consulting services agreement for Urban Forest Management Plan (UFMP) and tree inventory services with Davey Resource Group, Inc. (Davey).

FISCAL IMPACT
The UFMP services contract with Davey is funded by the Urban and Community Forestry Grant Program Funds (Project 3091). This is an appropriate use of these funds.

RECOMMENDATION
City Council adopt the attached Resolution authorizing the City Manager to execute a consulting services agreement with Davey Resource Group, Inc. in an amount not to exceed $965,000 for urban forest management program and tree inventory services for the grant period ending in March 2029.

BACKGROUND
In February 2024, the City was the recipient of the U.S. Department of Agriculture, Forest Service’s Urban and Community Forestry Grant for Pittsburg’s Urban Forest Management Launch Program (Project). Award funding includes reimbursement for an Urban Forest Management Plan and Tree Inventory and no matching funds are required. 211
The Project consists of a tree inventory, tree canopy analysis, City tree ordinance review and recommendations, tree care recommendations for removal, replacement, planting and pruning. The plan will require formal adoption from the City Council following its completion.

The goal of completing an Urban Forest Management Plan and Tree Inventory is to provide the Public Works Department with the necessary tools to better manage the City’s urban forest. The tree inventory will evaluate the health of the urban forest and provide a better understanding of the type and distribution of trees within the City. The Project will allow the City to plan for the future and enhance the tree canopy within the City.

In order to implement the Project, staff require the services of a company that specializes in Urban and Community Forestry, Tree Inventory and Software, and Urban Forest Management Plan development.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
In April, staff solicited proposals from qualified firms. A total of five companies submitted responses to the Request for Proposal. Davey was selected through the competitive process, which included comparison of several factors, including price and professional references. Davey offers knowledgeable and skilled staff, affordable inventory software, competitive pricing and has worked on similar projects of this size and scope in nearby cities.

Staff anticipates that over half of the funds will be spent in the first year, primarily on the tree inventory and UFMP research and development. Subsequent years are estimated to incur considerably lower costs, primarily in the form of software subscriptions and other minor expenses.

ATTACHMENTS: Resolution
Consulting Services Agreement
Report Prepared By: Natasha Farmer, Public Works Administrative Analyst II 212

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter Of:

Authorizing the City Manager to )
Execute a Contract for Urban Forest ) RESOLUTION NO. 24- Management and Tree Inventory )
Services )
WHEREAS, the City is the recipient of the U.S. Department of Agriculture, Forest Service’s Urban and Community forestry Grant for Pittsburg’s Urban Forest Management Launch Program; and
WHEREAS, in order to execute the Project, staff requires the services of a company that specializes in Urban and Community Forestry, Tree Inventory and Software, and Urban Forest Management Plan development; and
WHEREAS, in April 2024, staff solicited and received proposals for Urban Forest Management Plan and tree inventory services and Davey Resource Group, Inc. was selected through the competitive process; and
WHEREAS, funding is available through the Urban and Community Forestry Grant Program Funds.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the City Manager to execute the Consulting Services Agreement in an amount not to exceed $965,000 for Urban Forest Management and Tree Inventory Services with Davey Resource Group.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_______________________________
Juan Antonio Banales, Mayor
ATTEST:
_______________________________
Alice E. Evenson, City Clerk
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CONSULTING SERVICES AGREEMENT BETWEEN

THE CITY OF PITTSBURG AND

DAVEY RESOURCE GROUP, INC

THIS Agreement (“Agreement”) for consulting services is made by and between the City of Pittsburg (“City”) and Davey Resource Group, Inc., a California corporation (“Consultant”) (together referred to as the “Parties”) as of July 1, 2024 (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 March 31, 2029, 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. 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 nine hundred sixty-five thousand dollars ($965,000), 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.

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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.

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; ▪ At City’s option, for each work 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 Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
▪ The Consultant’s signature.

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 Reimbursable Expenses. Reimbursable expenses, if any, are specified in Exhibit B and included in the total compensation referenced in Section 215

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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.

4.2 Commercial General and Automobile Liability Insurance.

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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.

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.

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$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.

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).

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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.

4.4.7 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.

Section 5. INDEMNIFICATION AND CONSULTANT’S 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 219

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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.

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.

Section 7. LEGAL REQUIREMENTS.

7.1 Governing Law. The laws of the State of California shall govern this Agreement.

7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have, and 220

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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. TERMINATION AND MODIFICATION.

8.2 Amendments. The parties may amend this Agreement only by a writing signed by the parties hereto.

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subcontractors noted in the proposal, without prior written approval of the City Manager, or his or her designee.

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.

Section 9. KEEPING AND STATUS OF RECORDS.

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 222

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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.

Section 10 MISCELLANEOUS PROVISIONS.

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.

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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.

Consultant : Davey Resource Group
295 S. Water St.

Kent, Ohio 44240

City: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
ATTN: City Manager

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To the extent there are any inconsistencies between this Agreement, the Exhibits, and Consultant’s proposal, the Agreement shall control. To the extent there are any inconsistencies 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 shall constitute one agreement.

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.

CITY OF PITTSBURG DAVEY RESOURCE GROUP, INC.

____________________________ ______________________________ Garrett Evans, City Manager Name, Title

Approved as to Form:

____________________________
Donna Mooney, City Attorney

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EXHIBIT A

SCOPE OF SERVICES

Davey (“Consultant or Contractor”) shall perform the following:

1. Inventory: DRG will conduct a Geographic Information System (GIS)-based inventory of an estimated 60,000 trees, stumps, and planting sites in the street ROWs and maintained areas of parks. The project area will be defined using GIS data layers such as a parcel, street ROW, and parks boundary layers. This component of the project is expected to take 4 months, including post processing quality assurance.

2. TreeKeeper Software®: DRG will provide TreeKeeper®, state-of-the-art leading tree inventory software management tool, while the inventory project is in process. At the conclusion of the project, the City of Pittsburg will receive all of municipal tree data in the TreeKeeper® system, a subscription and training support for the term of this Agreement is included in the project cost.

3. Urban Tree Canopy and Land Cover Assessment: DRG will assess urban tree canopy and land cover to provide comprehensive mapping and analysis of the distribution of tree canopy, impervious surfaces, low-lying vegetation, bare soil, and water within the jurisdiction of Pittsburg.

4. Urban Forest Master Plan: DRG will develop a strategic framework and vision for the management, preservation, and enhancement of Pittsburg's community urban forest. DRG will work with you to set goals, integrating community input, scientific data, and industry best practices, to inform the planning and 40- year management of the City of Pittsburg community urban forest.

Scope of Work - Continued
a. Services shall begin in July 2024. All work on this project must be completed by December 31, 2028.

b. The project area includes the entire City, which covers approximately 18 square miles of land.

c. Consultant shall provide monthly updates on progress made in each aspect of the contract , including a summary of outputs.

d. Consultant shall provide a reproducible color version of the final, City-Council adopted Plan.

Part A: Tree Inventory Services
The City manages an estimated 60,000 trees. Consultant shall perform s pecific tree canopy analysis for City -managed trees in streets, parks, trails, tree wells, medians and right -of-way planting strips . “City -managed tree” may be identified as owned by the City, or particular circumstances where the City has done work on the tree.

The tree inventory data will be used to inform the Urban Forest Management Plan. The plan will assess the current state of the urban forest and identify the most strategic opportunities to protect and enhance the City’s tree resources. The tree inventory da ta will also be used to educate the citizens of the City on the benefits of their urban canopy and help them to take an active stewardship role in the care and enhancement of the urban forest. 226

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a. Consultant shall provide a tree inventory and management software system. The system must provide tree mapping software similar to GIS mapping that has the capability of mapping and prioritizing tree care in Pittsburg for city managed trees. The purpose of the mapping service will be for Public Works staff to utilize the software following the completion of the plan. The software must be available for information updates, such as new trees planted, tree pruning and tree removals. All software must be cloud-based/web- based. Consultant shall coordinate with City staff for installation of all software. GIS integration is preferred. - Software must be able to provide assessment of all city trees to determine the overall structure of the tree population and to calculate carbon sequestration and energy savings. - Provide software training to City Staff
b. The contractor is required to use an ISA certified team to inventory all City managed trees and public planting areas.
c. The inventory shall be conducted to include all trees maintained by the City including:
- Trees located along City right-of-way
- Trees on City facilities
- Trees in City Parks
- Trees on City managed vacant or non-improved public land; d. Develop a complete inventory and health condition analysis of the City’s trees including identification of dead, dying, and/or diseased trees, young trees and current health and maintenance needs. Currently the City has no inventory or tree data. e. Conduct a comprehensive canopy assessment and GIS land cover mapping to address, Historic Change, Ecosystem Services, Priority Planting Plan with Tree Placement Model, Socio-Economic Analysis, Urban Heat Island mapping, Pollution and Relative Tree Health assessment, Climate Vulnerability, Asthma reduction steps, and Stormwater Analysis. The urban heat assessment should incorporate social vulnerability maps such as CalEnviroScreen, Green Zones, and Equity Atlas. Other urban heat data sources should be considered/utilized.
f. Using the criteria from the urban heat assessment and tree inventory data, develop a map of priority tree planting areas.
g. Set targets for tree canopy and shade and the estimated timeline for achieving targets.

Part B: Urban Forest Management Plan
Once the tree inventory has been completed Consultant shall review and analyze the data to assess the current status of the city’s urban forest; determine the health, viability, and condition of the City’s urban forest. Consultant shall provide an outline of a plan to develop the Urban Forest Management Plan. Consultant shall attend p ublic meetings which shall be held virtually or In- person. Consultant shall perform the following:

a. Meet with City staff to review the scope of work, desired deliverables, schedules and identify the criteria for documenting and developing the City’s Urban Forest Management Plan. 227

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b. Build consensus and a vision from all community stakeholders, including homeowners, businesses, schools, City staff and City Council on a desirable, achievable and sustainable future urban forest.
c. Facilitate at a minim two (2) public meetings, one focusing on youth input d. Present at a minimum of (1) Subcommittee Commission meeting. e. Present at a minimum of (1) City Council meeting.
f. Use analysis from tree inventory on areas such as streets, parks, trails, tree wells, medians and right-of-way planting strips to determine the optimal size and species of trees to plant for maximum environmental benefits.
g. Assess the status of the City’s urban forest and identify ecologically sound tree care and maintenance practices, establish regular pruning cycles and pest control, yearly tree mitigation plantings, community involvement opportunities, and policies and procedures. h. Review city tree ordinances, city street tree planting list, city processes, tree care standards, written policies and procedures for consistency with industry best practices. Provide recommendations for updates to the city tree ordinances. The ordinances are at Pittsburg Municipal Code Sections [12.32, 18.84.825-870, 15.88 ]. i. Provide a recommended vision for the City’s tree canopy that can serve as a guide for the next 5-10 years, 20 years and 40 years. This should include establishing long-term goals for the expansion of the tree-canopy by setting achievable tree planting targets. j. Develop a data-informed Early Action and Priority Tree Planting Plan taking into consideration areas that may need irrigation or irrigation repair. k. Integrate the Urban Forest Management Plan with city tree ordinances and the General Plan. l. Provide analysis of the City’s tree canopy with similar cities in California or city’s of similar size.
m. Identify city management team and organizational structure required to effectively implement the Plan; estimate annual city budget needed to effectively achieve annual work plans and goals.
n. Prepare a draft plan for City review and incorporate City comments in the final plan. o. Provide training to the Public Works staff who will be responsible for administering the Urban Forest Management Plan.
p. Best practices established by CAL FIRE are recommended

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TASKS & DELIVERABLES

TREE INVENTORY AND URBAN HEAT ASSESSMENT / CANOPY
Task 1.1 Tree inventory and Software
Task 1.2 Tree data assessments (canopy coverage, urban heat, eco benefits, etc.) Task 1.3 Priority planting areas (1 year, 10 year and beyond) Task 1.4 Goals for tree canopy

OUTREACH AND ENGAGEMENT
Task 2.1 Outreach Plan
Task 2.2 Education/Training Recommendations

IMPLEMENTATION PLAN
Task 3.1 Identify challenges, principles, goals
Task 3.2 Tree species and management recommendations
Task 3.3 Recommended tree infrastructure team
Task 3.4 Budget and revenue for tree work
Task 3.5 Revisions to City ordinances or policy

MAINTENANCE PLAN
Task 4.1 Tree planting implementation
Task 4.2 Tree maintenance implementation
Task 4.3 Managing hazards of declining trees and tree removal Task 4.4 Infrastructure issues
Task 4.5 Maintenance record keeping
Task 4.6 Key performance indicators

Limited Warranty. For a period of 90 days from the date Services are performed (the “Warranty Period”), Davey warrants to Customer that the Services will be performed in a timely, professional, and workmanlike manner by qualified personnel (the “Limited Warranty”). If it is determined that Davey has breached the Limited Warranty, Davey will, in its reasonable discretion, either: (i) re - perform the defective part of the Services or ( ii) credit or refund the fees paid for the defective part of the Services. This remedy will be Customer’s sole and exclusive remedy and Davey’s entire liability for any breach of the Limited Warranty. To the greatest extent permitted by law, except for th e Limited Warranty, Davey makes no warranty whatsoever, including, without limitation, any warranty of merchantability or fitness for a particular purpose, whether express or implied, by law, course of dealing, course of performance, usage of trade or otherwise.

229

Consulting Services Agreement between July 1, 2024
City of Pittsburg and Davey Resource Group, Inc. Page 5 of 7

EXHIBIT B

COMPENSATION SCHEDULE

230

Consulting Services Agreement between July 1, 2024
City of Pittsburg and Davey Resource Group, Inc. Page 6 of 7

Total cost of all work not to exceed $965,000

231

Consulting Services Agreement between July 1, 2024
City of Pittsburg and Davey Resource Group, Inc. Page 7 of 7

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.

DAVEY RESOURCE GROUP, INC.

By:

Title:

232

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 First Amendment to the Consulting Services Agreement with West Yost and Associate, Inc. for Engineering Services During Construction for Project 5067 – Water Treatment Plant Filter Improvements and Hypochlorite Conversion
MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
Project 5067 - Water Treatment Plant Filter Improvements and Hypochlorite Conversion (the “Project”) includes installation of six new water filters, conversion of an existing gaseous chlorine system to liquid hypochlorite (bleach), and upgrades to filter effluent pumping and underground WTP infrastructure. A construction agreement has been approved for the Project. The City desires to retain the services of the design consultant West Yost and Associate, Inc (West Yost) for engineering services during construction.

FISCAL IMPACT
The existing Consultant Services Agreement with West Yost is $2,840,437. The proposed first amendment will increase the agreement amount by $2,307,582 for additional services provided during the design and bidding phases of the project, as well as, adding engineering services during construction. With this amendment, the total agreement amount will be $5,148,019. This amendment is included in the existing project budget and no additional funds are needed.

RECOMMENDATION
City Council adopt the attached resolution authorizing the City Manager to execute the First Amendment to the Consulting Services Agreement with West Yost in the amount of $2,307,582 for a total not to exceed amount of $5,148,019. 233

BACKGROUND
On May 2, 2022, the City Council adopted Resolution No. 22-14084 authorizing the execution and delivery of an Installment Purchase Agreement for the purpose of causing the issuance of not to exceed $50,000,000 aggregate principal amount of water revenue bonds.

On July 12, 2022, the Request for Proposal (RFP) for design services was sent to qualified professional consulting firms. On August 12, 2022, proposals were received from four (4) consultant teams and were all evaluated by staff. West Yost and Associates, Inc. was ranked as the most qualified based on the proposal submitted.

On September 19, 2022, the City Council adopted Resolution No. 22-14175 approving a Consulting Services Agreement between the City and West Yost for design of the Project in the amount of $2,840,437.

On June 19, 2023, the City Council adopted Resolution No. 23-14318 approving the Five- Year Capital Improvement Program for Fiscal Years 2023/24 through 2027/28, and the reallocation of the remaining fund balances from Project 5062-WTP Disinfection Modification and Conversion and Project 5069-WTP Disinfection Modification and Conversion to the Project.

On May 20, 2024, the City Council adopted Resolution No. 24-14474 accepting the plans and specifications, awarding a construction contract with Meyers and Sons Construction LLC. in the amount of $47,068,126, authorizing a construction contingency in the amount of $4,706,813, authorizing the City Engineer to approve contract change orders in an amount not to exceed 50% of the contingency, authorizing the City Manager to approve change orders for an amount not to exceed the approved Project budget, allocating an additional funding amount of $12,312,000 to the Project as follows; $1,926,000 from Water Revenue Bond Proceeds (Fund 500), $5,560,000 from Water Operations (Fund 501), $858,000 from WFR-WTP Expansion (Fund 502), $1,988,000 from WFR-Water Distribution (Fund 503), $745,000 from WFR - SW Hills CIP (Fund 506), $1,083,000 from WFR-WTP Sludge Handling (Fund 509), and $152,000 reallocated from Project 5040-WTP Sludge Handling Facility to the Project.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
West Yost and Associates, Inc. was selected for the design of the Project based on their experience with the design of other water treatment facilities, their staff expertise, and previous history of providing high-quality design services to public entities.

West Yost drafted contract documents consisting of plans, specifications and estimates for the Project. After staff review and a constructability review, West Yost produced design changes to the plans and specifications. The changes included value engineering resulting, in a reduction in construction cost, as well as, additional design elements that the City added to the Project as additional insights into the Project developed. During bidding, more questions than was originally anticipated came in from interested contractors. Additional effort was necessary to respond to contractor questions and to prepare clarifications to the bid contract documents.
234
Due to its complexity, it is essential to have the design engineer be part of the construction management team. After a review of the existing agreement, it was determined that engineering services during construction was not part of the original agreement scope of services. Staff requested a proposal from West Yost to include these services. Staff have reviewed the proposed costs for engineering services during construction, as well as, the additional cost associated with additional design and bid support services and recommend approval of the amendment amount.

ATTACHMENTS: Resolution
First Amendment to the Consultant Service Agreement
Project Budget Summary
Report Prepared By: Dayne Johnson, Assistant City Engineer 235
Exhibit "A"- Budget Summary
Project 5067 - WTP Filtration Improvements & Hypochlorite Conversion Project Funding:

Water Revenue Bond (2022A) $45,800,000
500 Water Revenue Bond Proceeds $1,926,000
501 Water Operations Fund $8,041,188
502 Water Facilities Reserve - WTP Expansion $1,910,000 503 WFR - Water Distribution $1,988,000
506 WFR - SW Hills CIP $745,000
509 Water Facilitie Reserve - WTP Sludge Handling $1,083,000 Funding Total $61,493,188
Project Expenditures:

Design: Consultant Design $3,090,000
(Code 2122) Project Management $462,000
Permitting $40,000
Subtotal $3,592,000
Construction:
(Code 2281) Construction Contract $47,068,126
Construction Contingency $4,706,813
Construction Management $3,535,000
Construction Design Support $2,061,000
Construction Project Management $230,000
Subtotal $57,600,939
Staff Time:
(Code 1101) $150,000
Subtotal $150,000
Admin:
(Code 2372) $150,000
Subtotal $150,000
Estimated Total Expenditures $61,492,939
Staff Costs
Administrative Costs
236

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Authorizing the City Manager to Execute)
A First Amendment to the Consulting )
Services Agreement with West Yost and ) RESOLUTION NO. 24- Associates, Inc. for Engineering Services)
During Construction for Project 5067 – )
Water Treatment Plant Filter )
Improvements Hypochlorite Conversion )
WHEREAS, Project 5067 - Water Treatment Plant (WTP) Filter Improvements and Hypochlorite Conversion (the “Project”), includes installation of six new water filters, conversion of an existing gaseous chlorine system to liquid hypochlorite (bleach), and upgrades to filter effluent pumping and underground WTP infrastructure; and WHEREAS, on September 19, 2022, the City Council adopted Resolution No. 22- 14175 approving a Consulting Services Agreement between the City and West Yost and Associates, Inc. (West Yost) for design of the Project in the amount of $2,840,437; and WHEREAS, the Project required additional design efforts during the final design and bidding process to create a final conformed set of bidding contract documents; and WHEREAS, staff desires to retain the services of the design consultant for the Project for engineering services during construction; and WHEREAS, this resolution will authorize the First Amendment to the Consulting Services Agreement with West Yost for additional design efforts in the amount of $247,184 and engineering services during construction in the amount of $2,060,398; and WHEREAS, the total of the Consulting Services Agreement between the City and West Yost, including the First Amendment, will be $5,148,019, to be provided out of the existing project budget.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the City Manager to execute the First Amendment to the Consulting Services Agreement with West Yost.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_____________________________
Juan Antonio Banales, Mayor
ATTEST:
____________________________
Alice E. Evenson, City Clerk
237

FIRST AMENDMENT TO

CONSULTING SERVICES AGREEMENT BETWEEN

CITY OF PITTSBURG AND
WEST YOST AND ASSOCIATES, INC.

THIS First Amendment to the Principal Agreement made and entered into on September 20, 2022, hereafter referred to as Agreement, between West Yost and Associates, Inc., a California corporation, therein referred to as Consultant, and the City of Pittsburg, a municipal corporation, therein referred to as City, is made and entered into on this 14th day of June 2024.

WHEREAS, the parties entered into an Agreement for engineering design services for Project 5067 Water Treatment Plant Reservoir Control Panel and PLC Replacement; and

WHEREAS, the parties desire to reduce items in the scope and add additional design services to include support during the construction bid phase and the construction phase of the project and increase the compensation amount accordingly.

NOW, THEREFORE, Consultant and City do mutually agree as follows:

1. Compensation. Section 2 of the Agreement is hereby amended to read as follows:

City hereby agrees to pay Consultant a sum not to exceed Five Million One Hundred Forty-Eight Thousand Nineteen Dollars ($5,148,019), 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.

2. Exhibit A Scope of Services. Exhibit A is hereby amended to include Attachment 1 of this First Amendment.

3. Exhibit B Compensation Schedule. Exhibit B is hereby amended to include Attachment 2 of this First Amendment.

4. Integration. This First Amendment contains the entire agreement between the parties with respect to its subject matter and supersedes whatever oral or written understanding they may have had prior to the execution of this First Amendment. This First Amendment shall not be amended or modified except by a written agreement executed by each of the parties. Except as specifically revised herein, all terms and conditions of the Agreement shall remain in full force and effect, and Consultant shall perform all duties, obligations and conditions required under the Agreement.

5. Inconsistencies. In the event of any conflict or inconsistency between the provisions of this First Amendment and the Agreement, the provisions of this First Amendment shall control in all respects.

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 238

6. Ambiguities. The parties have each carefully reviewed this First Amendment and have agreed to each term of this First Amendment. No ambiguity shall be presumed to be construed against either party.

7. Counterparts. This First Amendment may be executed by the parties in one or more counterparts all of which collectively shall constitute one document and agreement.

8. Authority. The person signing this First Amendment for Consultant hereby represents and warrants that he or she is fully authorized to sign this First Amendment on behalf of Consultant.

IN WITNESS WHEREOF, the parties have entered into this First Amendment on the day and year first hereinabove appearing.

CONSULTANT:

WEST YOST AND ASSOCIATES, INC., a
California corporation

By:

Greg Chung, PE, Principal-In-Charge

CITY:

CITY OF PITTSBURG, a municipal
corporation of the State of California

By:

Garrett Evans, City Manager

APPROVED AS TO FORM:

By:

Donna Mooney, City Attorney

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 239
ATTACHMENT [1]

EXHIBIT A

SCOPE OF SERVICES

In support of Project 5067 Water Treatment Plant Reservoir Control Panel and PLC Replacement, Consultant shall provide the following services:

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 240

Task 1. Project Management Services

• Overall management of project scope, schedule, and budget • Coordination and communication with City staff
• Coordination with and management of Consultant’s subconsultants including tracking of submittal reviews and RFI responses
• Quality assurance and quality control (QA/QC) activities • Preparation of monthly progress reports and invoices

Task 1 Deliverables
• Consultant shall provide progress reports and invoices: One (1) electronic copy per month.

Task 2. Conformed Drawings

Consultant shall prepare conformed design drawings and technical specifications that incorporate any changes made by addenda during the bidding period.

Task 2 Deliverables
• Consultant shall provide Conformed Documents – One (1) electronic copy in pdf format.
• Consultant shall provide up to fifteen hard copies to be distributed to City, Construction Manager and Contractor.

Task 3. Pre-construction Meeting

Consultant shall have four team members attend a pre-construction meeting at the Water Treatment Plant. The Construction Manager (CM) shall conduct the meeting and develop meeting notes. Consultant shall prepare up to three slides for the meeting and review meeting notes.

Task 3 Deliverables
• Consultant shall prepare presentation slides.
• Consultants shall prepare meeting summary review comments.

Task 4. SCADA Programming

Consultant shall provide control system programming services to develop, install and commission the control and monitoring application software functionality of the project’s control system improvements. The City approves of Consultant retaining subconsultant TJCAA for the work. Major tasks included in this are pre-programming, programming, coordination and commissioning tasks to provide the PLC, SCADA HMI and Historian DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 241
software configurations required for the project by City. The new application programs will be based on existing City programming standards.

Pre-Programming Tasks - Consultant shall finalize control narratives for the new and updated process systems.

Programming - The programming task will implement the control narratives developed with Consultant by generating PLC hardware configurations and logic and corresponding SCADA HMI graphic screens, historization of real-time data and historical trend reporting. Consultant itself or through its subconsultant shall load the completed applications programs on the hardware provided by the contractor and the existing control system hardware.

Coordination - The Project construction Contractor will provide construction services for the overall project including the control system and networking hardware as well as directing the construction schedule. Consultant itself or through its subconsultant shall provide coordination services with the CM and the Contractor to complete the application programming to meet the construction schedule and ensure compatibility of the application programs with the provided control system hardware and network equipment. All automation software licensing necessary to expand the City’s SCADA HMI and Historian will be provided by the construction Contractor. Consultant itself or through subconsultant shall assist migrating the licensing from the existing to the new.

Testing, Commissioning and Training – Consultant shall provide control system application testing services to validate the functionality of the control system programs.

This includes internal bench testing quality assurance process as well as participating in factory testing to validate control panel functionality. Consultant shall also provide on- site operational readiness testing support as well as functional acceptance testing support – both organized and led by the construction Contractor. Consultant shall provide technical and operational training to City related to the completed control system application programs and related hardware and network configurations.

Consultant shall provide final copies of the programs to City. For budgeting purposes, 38 site visits related to programming tasks were assumed.

Task 4 Deliverables
• Consultant shall provide Control Narratives.
• Consultant shall provide final copies of the programs.

Task 5. Submittal Review

Consultant shall review Contractor submittals (e.g., shop drawings, product data, samples, operations and maintenance (O&M) manuals, etc.), as required by the technical specifications, for work related to our scope of design services. This work will be conducted as follows:

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 242
• Consultant shall review the submittals for the limited purpose of checking for conformance with the design concept and the information expressed in the contract documents.

• Consultant’s review shall not include review of the accuracy or completeness of details, such as quantities, dimensions, weights or gauges, fabrication process, construction means or methods, coordination of the work with other trades, or construction safety precautions; all of which are the sole responsibility of the Contractor.

• Consultant’s review will be conducted with reasonable promptness while allowing sufficient time in our judgment to permit adequate review. Submittal reviews shall be completed within 10 to 15 business days.

• Review of a specific item will not indicate that Consultant has reviewed the entire assembly of which the item is a component.

• Consultant shall not be responsible for any deviations from the contract documents not brought to the attention of us in writing by the Contractor.

• Consultant shall not be required to review partial submissions nor those for which submissions of correlated items have not been received.

The budget assumes that Consultant will provide responses to 360 submittals and resubmittals or up to the budget allocated in the fee spreadsheet.

It is assumed that the submittal review process will be coordinated by the CM. The CM will receive submittals from the Contractor and distribute them to Consultant for review through Procore. The CM will solicit input from City or other parties when needed.

Consultant shall submit written responses through Procore to the CM and the CM will distribute the responses to the Contractor. The CM will be responsible for tracking submittals and keeping an update log of submittals.

Task 5 Deliverables
• Consultant shall provide submittal Review Comments: One (1) electronic copy per submittal.

Task 6. Requests for Information (RFIs) Responses

Consultant shall review requests for information (RFIs) submitted by the Contractor and shall provide written responses to each RFI.

The budget assumes that Consultant shall provide responses to up to 350 RFIs or up to the budget allocated in the fee spreadsheet. It is also assumed that the RFI process will be coordinated by the CM. The CM will receive RFIs from the Contractor and distribute them to Consultant for review through Procore. The CM will solicit input from City staff DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 243
or other parties when needed. Consultant shall submit written responses to the CM through Procore and the CM will distribute the responses to the Contractor. The CM will be responsible for tracking RFIs and keeping an update log of RFIs.

Task 6 Deliverables
• Consultant shall provide RFI Responses: One (1) electronic copy per RFI.

Task 7. Design Clarifications

Consultant shall issue design clarifications when requested by the CM to clarify the intent of the Contract Documents or to communicate a change to the Contract Documents initiated by the Engineer or Owner. Design clarifications may include revised Contract Drawings, and/or revised Contract Specifications. The budget for this task assumes preparation of 20 design clarifications and includes approximately 300 hours for engineering, drafting, Quality Assurance/Quality Control (QA/QC), and administrative activities associated with design clarifications.

Task 7 Deliverables
• Consultant shall provide Design Clarifications: One (1) electronic copy with cover page and amended contract documents per design clarification.

Task 8. Meetings

Consultant shall attend regularly scheduled weekly construction meetings with City, CM, and Contractor. These meetings are assumed to be virtual. A total of 168 meetings are included in this task. Consultant assumes that the CM will conduct the meetings and provide meeting summary notes.

Task 9. Site Visits

Consultant shall conduct 34 site visits. Field notes will be provided with each site visit. administrative activities associated with design clarifications.

Task 9 Deliverables
• Consultant shall provide site visit field notes.

Task 10. Change Orders

Consultant shall provide technical assistance to the CM for up to ten change orders or up to the budget allocated in the fee spreadsheet. The CM has responsibility for change order administration and negotiations.

Task 10 Deliverables
• Consultant shall provide change order comments.

Task 11. Start-up and Testing
DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 244

Consultant shall review the Contractor’s startup and testing plans for each of the three process areas. Consultant shall attend witness equipment start-up for unit process equipment. For budgeting purposes, approximately 60 hours are budgeted for each unit process area.

Task 11 Deliverables
Consultant shall provide Startup and Testing Plan Review Comments.

Task 12. Final Punch List

Consultant shall conduct a final inspection and develop a punch list. The final inspection will occur over one day and up to the budget allocated in the fee spreadsheet. The CM will confirm that final punch list items are completed by the Contractor.

Task 12 Deliverables
• Consultant shall provide Final Punch List.

Task 13. Record Drawings

Upon completion of the Project, Consultant shall provide record drawings for the Project. It is assumed that the Contractor will provide a single set of drawings with red- line markups that indicate the changes that were made through the course of construction. It is assumed that the CM will be responsible for checking that the Contractor is taking necessary steps throughout the course of construction to document record drawing information in the redline markups. It is assumed that all record drawing information will be included in the red-line markups without the need for separate instructions, interpretations, or separate sheets that are attached to the drawings or provided separately of the drawing set.

Task 13 Deliverables
• Consultant shall provide Record Drawings: One (1) copy in AutoCAD format and one (1) copy in PDF format.

Task 14. Permit Assistance and DDW Coordination

Consultant shall assist City with developing applications and documents for State regulatory permits, including the State of California Water Resource Control Board Division of Drinking Water. This task will also include incorporating remaining comments from the Building Department that did not get included in the bid documents. City will pay for all permit fees.

Task 14 Deliverables
• Consultant shall provide application assistance.

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 245
Task 15. Corrosion Control Analysis

Consultant shall evaluate water quality data and assess the likelihood of potential corrosion impacts, recognizing that it is not simply a matter of changing the corrosiveness of the water but also of changes in water quality. The water quality data over the last five (5) years will be evaluated, assessing potential for corrosion impacts using corrosion indicators, and providing a prioritized list of up to three (3) mitigation strategies City to consider along with a recommendation of target WQP changes, if appropriate. City’s corrosion control strategy with respect to the EPA’s Lead and Copper Rule Revisions to determine if any additional actions are necessary will also be evaluated.

Task 15 Deliverables
• Consultant shall provide a Draft and Final Technical Memorandum.

Task 16. Additional Design Effort and Responding to Contractor Questions during the Bid Period

During the detail design effort, City reduced the original scope resulting in a credit and added scope as detailed design requirements developed. Contractor provided additional review and response to pre-bid inquiries during an extended bidding phase.

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 246
ATTACHMENT [2]

EXHIBIT B

DocuSign Envelope ID: 72A8DFD1-8561-4C1C-8D77-7BB7A7D04C63 247

EXECUTIVE SUMMARY
The Public Works Department is responsible for the care and maintenance of City streets, facilities, and infrastructure. Large quantities of supplies are used to carry out responsibilities, including base rock. If approved, the resolution will authorize a purchase agreement with vendor Antioch Building Materials (ABM) in the amount of $100,000.

FISCAL IMPACT
Funds for base rock supplies have been included in the Fiscal Year 2024/25 Public Works Department’s operating budget adopted by the City Council.

RECOMMENDATION
City Council adopt the attached Resolution authorizing the City Manager to execute a purchase agreement with ABM in the amount of $100,000 for base rock.

BACKGROUND
The Public Works Department maintains and performs scheduled and emergency repairs on City streets, facilities, and infrastructure. The purchase of base rock necessary for these repairs is budgeted in the Street Maintenance and Water Operating budgets adopted by the City Council each fiscal year. Over the last year, there was a rise in the number of projects increasing the amount of base rock staff needed to purchase. Staff anticipates an equal or greater number of base rock purchases this year.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.
248

STAFF ANALYSIS
The Public Works Department solicits bids for base rock that will be needed for the upcoming fiscal year. Antioch Building Materials was the only responsive, responsible bidder. The purchase of base rock is budgeted in the Public Works operating budget adopted by the City Council each fiscal year.

ATTACHMENTS: Resolution
Bid Results
Report Prepared By: Natasha Farmer, Public Works Administrative Analyst II 249
City of Pittsburg
Virgin Base Rock
RFQ# BR52824
Bids Received: May 28, 2024

Vendor Bid Comment
Antioch Building Materials $54.08/ton
Brickyard No Response
Rock Transport No Response
Royal Trucking No Response

250

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Awarding a Purchase Agreement for ) RESOLUTION NO. 24-
Base Rock Supply )
WHEREAS, the Public Works Department is responsible for the care and maintenance of City streets, facilities, and infrastructure which may require base rock; and WHEREAS, each fiscal year, the City’s Public Works Department solicits bids for local suppliers of base rock; and
WHEREAS, Antioch Building Materials was the only responsive bidder; and WHEREAS, sufficient funds for base rock supplies have been included in the Fiscal Year 2024/25 Public Works Department’s operating budget.

NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Pittsburg hereby approves and authorizes the City Manager to execute a purchase agreement for base rock supplies to Antioch Building Materials in the amount of $100,000 for purchasing base rock.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:

Juan Antonio Banales, Mayor
ATTEST:

Alice E. Evenson, City Clerk
251

EXECUTIVE SUMMARY
The Public Works Department maintains the City’s public streets and sidewalks. A variety of pavement management techniques utilizing asphalt are implemented to extend the useful life of roadways. If approved, the resolution will authorize Purchase Agreements with a primary supplier and secondary supplier totaling $150,000.

FISCAL IMPACT
None from this action. Sufficient funds are available in the Public Works/Streets ($60,000 in 110-43002-1341) and Water Operations accounts ($90,000 in 521-44101-1341). This is an appropriate use of these funds.

RECOMMENDATION
City Council adopt the attached Resolution authorizing the City Manager to execute a Purchase Agreement with the primary supplier, County Asphalt, LLC (County Asphalt) in the amount of $75,000 and execute a Purchase Agreement with the secondary supplier, Antioch Building Materials (ABM) in the amount of $75,000 for the purchase of asphalt, totaling $150,000.

BACKGROUND
The Public Works Department maintains approximately 130 miles of both improved and unimproved roadways. Staff, in maintaining street pavement, utilize various techniques including pothole patching, crack filling, permanent patch paving, surface sealing, rehabilitation and reconstruction. These techniques require obtaining asphalt from local suppliers.
252
The purchase of asphalt necessary for these repairs is budgeted in the Street Maintenance and Water Operating budgets adopted by the City Council each Fiscal Year. The Public Works Department solicits bids for asphalt and paving supplies that will be needed for the forthcoming Fiscal Year. Over the last year, there was a rise in the number of paving projects, increasing the amount of asphalt staff needed to purchase. Staff anticipates an equal or greater number of asphalt purchases this year.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
The Public Works Department solicited formal bids for asphalt supplies needed for the upcoming Fiscal Year from local vendors within an efficient distance for pickup and/or delivery. County Asphalt was the lowest responsive, responsible bidder and Antioch Building Materials was the only other responsive bidder. Staff recommends the City Council authorize the City Manager to execute a Purchase Agreement with County Asphalt as the primary supplier and ABM as the secondary supplier in an amount not to exceed $75,000 respectively, totaling $150,000, for asphalt supplies.

ATTACHMENTS: Resolution
Bid Summary Sheet
Report Prepared By: Natasha Farmer, Public Works Administrative Analyst II 253
City of Pittsburg
Half Inch Asphalt
RFQ# A52224
Bids Received: May 22, 2024

Vendor Bid Comments
County Asphalt * $94.50/ton
Antioch Building Materials** $97.23/ton

* Primary
** Secondary
254

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Awarding Purchase Agreements for ) RESOLUTION NO. 24-
Asphalt Supplies )
WHEREAS, the Public Works Department maintains approximately 130 miles of roadway using various techniques with asphalt; and
WHEREAS, each fiscal year, the City’s Public Works Department solicits bids for local suppliers of asphalt; and
WHEREAS, the City typically selects and enters into Purchase Agreements with two vendors, a primary and a secondary vendor; and
WHEREAS, County Asphalt was the lowest responsive, responsible bidder and Antioch Building Materials was the only other responsive bidder; and WHEREAS, sufficient funds are available in the Public Works/Streets and Water Operations accounts.

NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Pittsburg hereby approves and authorizes the City Manager to execute Purchase Agreements for asphalt supplies to the primary supplier, County Asphalt, LLC in the amount of $75,000 and to the secondary supplier, Antioch Building Materials in the amount of $75,000 for purchase of asphalt, totaling $150,000.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:

Juan Antonio Banales, Mayor
ATTEST:

Alice E. Evenson, City Clerk
255

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 Lease Agreement Between the City of Pittsburg and Morello Restaurant Solutions LLC at 1005 Center Drive
MEETING DATE: July 1, 2024

EXECUTIVE SUMMARY
The City proposes to enter into a Lease Agreement with Cornelio Balingit dba Morello Restaurant Solutions LLC (Tenant) for the operation of a counter service restaurant at 1005 Center Drive (Premises).

FISCAL IMPACT
The lease term is for five (5) years, starting on April 1, 2024, and ending on March 31, 2029 (Initial Term). The monthly lease payment will be One Thousand Dollars ($1,000) per month and will increase by 3% annually starting April 1, 2026. Additionally, the Tenant will be responsible for paying the common area maintenance (CAM) costs, currently estimated at Forty-Three Dollars ($43) per month. Common Area Maintenance (CAM) charges are set to change in July 2024 when the calculations are completed for the new fiscal year.

RECOMMENDATION
City Council adopt the Resolution authorizing the City Manager to execute the Lease Agreement between the City and Morello Restaurant Solutions LLC for the Premises and take such further action as may be necessary or appropriate regarding the terms of the Lease.
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BACKGROUND
The Pittsburg Public Library, located at 80 Power Avenue, features a café/restaurant with 1,280 square feet of interior space and an additional 910 square feet of outdoor dining area, collectively referred to as the “Premises”. Since 2013, the Premises have been operated by various operators. On January 22, 2019, the City Council adopted Resolution No. 19-13588, authorizing the City Manager to execute a Lease Agreement with Rocky’s Deli, LLC. The proprietor of Rocky’s Deli, LLC is the Tenant, who is also the Executive Chef and Proprietor of The Hideout restaurant in Lafayette, Vic’s Martinez in downtown Martinez and the Library Social Club in Walnut Creek.

The lease agreement between Rocky’s Deli, LLC and the City of Pittsburg came into effect on April 1, 2019 and was set for a period of five years, expiring on March 31, 2024. The Tenant has expressed interest in continuing to lease the Premises but proposes to do so under the corporate name Morello Restaurant Solutions LLC, a California Limited Liability Company of which he serves as the Chief Executive Officer. This company also encompasses his other business ventures, ensuring consistency and streamlined operations across his enterprises.

SUBCOMMITTEE FINDINGS
This item was not discussed at a subcommittee meeting.

STAFF ANALYSIS
The location at 1005 Center Drive has established itself as a prime location for a restaurant, offering a versatile dining experience with options for both takeout and dine-in services.

Situated within close proximity to the Civic Center, the restaurant provides a convenient dining option for Civic Center employees, jurors, and visitors alike, all within walking distance.

The recent opening of the Starbucks café and the imminent opening of the Courtyard by Marriott, both located just a few feet away, further enhance the appeal of this space. These developments are expected to significantly increase foot traffic in the area, presenting a lucrative opportunity for the restaurant to attract new customers and expand its business.

The plan is to renovate and redecorate the interior space, aiming to create a welcoming and modern ambiance for patrons. This renovation will involve updating the furnishings, lighting, and overall layout of the restaurant to enhance the dining experience. The goal is to create a comfortable and inviting atmosphere that complements the new menu offerings and extends the restaurant's appeal to a broader audience.

Furthermore, the Tenant plans to introduce a QR code ordering system, allowing hotel patrons to easily access the menu and place orders directly from their mobile devices. This innovative approach aims to streamline the ordering process, enhancing convenience for guests and improving overall efficiency.

Given the Tenant’s successful track record and commitment to maintaining the high standards of his establishments, this transition to Morello Restaurant Solutions LLC is anticipated to bring continued excellence to the restaurant at the Pittsburg Public Library. 257
The proposed lease renewal under the new corporate entity reflects his ongoing dedication to serving the community while leveraging his extensive experience in the culinary industry.

The combination of the Tenant’s expertise and the strategic location of the Premises positions the restaurant for significant growth, transforming the space into a bustling culinary destination, benefiting from the synergy of nearby businesses and the thriving community around the Civic Center.

ATTACHMENTS: City Council Resolution
Lease Agreement
Report Prepared By: Ishani Rasanayagam, Administrative Analyst II 258
Resolution No. 24- Page 1 of 2 July 1, 2024

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG
In the Matter of:

Authorizing the City Manager to Execute a )
Lease Agreement between the City of )
Pittsburg and Morello Restaurant Solutions LLC) RESOLUTION NO. 24- At 1005 Center Drive )
WHEREAS, the City of Pittsburg, a municipal corporation, owns certain real property located at 80 Power Avenue (Building) of which the Pittsburg branch of the Contra Costa Library is a Tenant; and
WHEREAS, the Building includes a restaurant located at 1005 Center Drive (Premises) consisting of 1,280 square feet of interior space plus an additional 910 square feet of outdoor patio area with private access to the restaurant; and WHEREAS, Cornelio Balingit (Tenant), operating as Rocky’s Deli, LLC, a California Limited Liability Company, and serving as the Executive Chef and Proprietor of the Hideout Café in Lafayette, Vic’s Martinez in downtown Martinez, and the Library Social Club in Walnut Creek, entered into a Lease Agreement with the City in April 2019 to lease the Premises for operating a restaurant; and
WHEREAS, the Lease Agreement was initially set for a period of five years. Upon its expiration on March 31, 2024, the Tenant expressed interest in continuing to lease the Premises under the corporate name of Morello Restaurant Solutions LLC, a California Limited Liability Company of which he is the Chief Executive Officer. This decision aims to ensure consistency and streamline operations across his enterprises; and WHEREAS, given the Tenant’s successful track record and his commitment to maintaining the highest standards in his establishments, the transition to Morello Restaurant Solutions LLC is expected to bring continued excellence to this restaurant; and WHEREAS, the negotiated lease rate for the new Lease is set at One Thousand Dollars ($1,000) per month for the initial year, with an annual increase of 3% starting in April 1, 2026. Additionally, the tenant will be responsible for paying the common area maintenance costs, currently estimated at Forty-Three Dollars ($43) per month. These costs are subject to change in July 2024 when the calculations are completed for the new fiscal year; and
WHEREAS, the Tenant recognizes the potential for increased business due to the recent opening of the Starbucks café and the upcoming opening of the Courtyard by Marriott.

In response, the Tenant is updating the décor to complement the new menu offerings and extending the hours of operation to cater to the anticipated rise in customer demand.

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Resolution No. 24- Page 2 of 2 July 1, 2024
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the City Manager to execute the Lease Agreement between the City and the Tenant and take such further action as maybe necessary or appropriate regarding the terms of the Lease.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 1st day of July 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:

Juan Antonio Banales, Mayor
ATTEST:

Alice E. Evenson, City Clerk
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LEASE AGREEMENT
By and between

THE CITY OF PITTSBURG
And

MORELLO RESTAURANT SOLUTIONS LLC
This Lease ("Agreement") is entered into as of the date set forth in Article I by and between the City of Pittsburg, a municipal corporation ("Landlord" and "City" used interchangeably) and Morello Restaurant Solutions LLC, a California limited liability company ("Tenant").

Landlord and Tenant are collectively referred to in this Agreement as the "Parties".

ARTICLE I

FUNDAMENTAL LEASE PROVISIONS

1.1 Date of Execution April 1, 2024

1.2 Tenant Morello Restaurant Solutions LLC
1005 Center Drive
Pittsburg, CA 94565

1.3 Landlord City of Pittsburg, a municipal corporation 65 Civic Avenue
Pittsburg, CA 94565

1.4 Premises The Premises will consist of one thousand two hundred eighty (1,280) rentable square feet at 1005
Center Drive located on the ground floor of the
Pittsburg branch of the Contra Costa Library located
at 80 Power Avenue ("Building") (Exhibit A), plus
additional outdoor patio area ("Outdoor Patio Area")
with private access to gate, as detailed in the Site
Plan (Exhibit B), attached and incorporated herein.
"Library" means the portions of the Building that are
not the Premises.

1.5 Tenant's Trade Name Morello Restaurant Solutions LLC, or such other name as may be proposed by Tenant and
approved by Landlord in writing.

1.6 Initial Lease Term The initial Term (as defined in Section 3.1) of five (5) years shall commence upon April 1, 2024 as
provided in Section 1.1.

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1.7 Rental Rate The rent shall be One Thousand ($1,000) per month for the initial year and increasing by
3% per annum in Year 2.

1.8 Rent Commencement Date The obligation to pay Rent shall occur on May 1 2024.

1.9 Renewal Option Tenant shall have one (1) five (5) year option to renew the lease.

1.10 Parking Tenant shall be allowed use of public parking stalls.

1.11 Security Deposit The Tenant is credited
with Two Thousand Dollars $2,000.00) paid by
Rocky’s Restaurants, LLC

1.12 Use Tenant shall operate a cafe, which shall
provide food and beverage items that Tenant deems
appropriate, may include beer and wine, but not
hard liquor, and may offer catering from the
Premises.

1.13 Assignment Prior to any assignment, Tenant must obtain Landlord's written consent, which shall not be
unreasonably withheld in light of, among other
factors, assignee's ability to abide by the terms of
the Agreement, creditworthiness and experience in
the restaurant business.

1.14 Access Tenant shall have reasonable access to the Premises, as well as parking and common areas,
twenty-four (24) hours per day, seven (7) days a
week.

1.15 Tenant Maintenance Tenant shall be responsible for all maintenance and repair of all equipment, including
fixtures and grease trap on, within, and serving the
premises.

1.16 Broker Commissions Landlord and Tenant hereby represent that they have not engaged any real estate broker and no
commission or finder's fees are due.

1.17 Addresses for Notices and Payments
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LANDLORD TENANT
City Manager Cornelio Balingit
City of Pittsburg Morello Restaurant Solutions LLC
65 Civic Avenue 3400 Mt. Diablo Blvd., Suite 1
Pittsburg, CA 94565 Lafayette, CA 94549

Article 1 is intended to supplement and/or summarize the provisions set forth in the balance of this Agreement. If there is any conflict between any provisions contained in this Article 1 and the balance of this Agreement, the balance of the Agreement shall control.

ARTICLE II - PREMISES

2.1 LEASE OF PREMISES. Landlord hereby leases the Premises to Tenant. The term "Premises", as used in this Agreement shall mean all areas designated on Exhibit B.

ARTICLE Ill - TERM

3.1 TERM. Subject to provisions of this Agreement, the term of this Agreement shall commence on May 1, 2024 and shall continue, unless sooner terminated in accordance with the provisions of this Agreement, for the period of five (5) years (the "Initial Term").

References to the "Term" of this Agreement shall include the Initial Term and the Option Periods (as defined in Section 3.2), if exercised, in accordance with the terms and provisions of Section 3.2.

3.2 OPTIONS. In addition to the Initial Term, Tenant shall have one (1) five (5) year option to extend this Agreement (the "Option Period") following expiration of the Initial Term. In the event that Tenant wishes to exercise an Option Period, Tenant shall give written notice of its interest to Landlord at least six (6) months but not more than one (1) year before expiration of the Initial Term. Notwithstanding the foregoing, if Tenant is in default, as defined in Article XIII, on either (a) the date occurring six (6) months prior to the expiration of the term in question or (b) the date of the Option Period is to commence, the Option Period in question shall not commence, and this Agreement shall expire at the end of the Initial Term or the Option Period. During the Option Period, all terms and conditions of this Agreement shall remain the same, provided that Rent during the Option Period shall be as set forth in Section 1.9.

3.2.1 Rent during Option of Lease Extension Term. If Tenant elects to extend the Term in accordance with Section 3.2, Base Rent for the first year of the first Option Period of the Lease Extension Term will be determined based on the fair market value for similar leasable space in downtown Pittsburg (Option Period Rent) for the period commencing on May 1, 2029, increasing by three percent (3%) per annum over the Option Period Rent.

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ARTICLE IV - RENTAL

4.1 RENT COMMENCEMENT DATE. Tenant's obligation to pay Rent commences on May 1, 2024 ("Rent Commencement Date").

4.2 RENT. Tenant covenants and agrees to pay Rent in advance, on or before the first (1st) day of each month, without prior demand, offset or deduction (except as otherwise permitted by the terms of this Agreement), commencing on the Rent Commencement Date.

On the first (1st) anniversary of the Rent Commencement Date and each anniversary of the Commencement Date (the "Anniversary Date") thereafter Rent will increase by three percent (3%). Tenant shall have the option, at its discretion, to prepay the rent for the entire year in full, which shall include the calculation of the annual three percent (3%) increase of the Rent .

The Rent includes all subscription charges for removal of recyclables (glass, aluminum, paper, and cardboard) and non-recyclable refuse (recyclable and non-recyclable refuse collectively termed "Waste"). The cost of electricity, gas, internet, water, sewer, telephone services, and any other utilities needed by Tenant are not covered by Landlord and must be subscribed and maintained by Teant. "Utilities" shall refer to all the services covered by Landlord under this Section.

4.2.1 PAYMENT OF UTILITIES. Landlord shall subscribe to and pay for only the removal of recyclables and non-recyclable refuse from Premises. However, in the event that Tenant fails to pay Rent in full and continues in default for sixty (60) days, Landlord may discontinue payment of Utilities.

4.2.2 WAIVER OF UTILITY LIABILITY. Landlord shall not be liable in damages for any failure or interruption of any Utilities, either subscribed by and paid for by Landlord or Tenant. However, if any Utility to the Premises should become unavailable for a period in excess of seventy-two (72) consecutive hours and such unavailability is directly caused by the willful act or negligence of Landlord, Rent charge shall abate until Utility service to the Premises is restored. However, if any Utility to the Premises should become unavailable for a period in excess of seventy-two (72) consecutive hours and such unavailability is directly caused by the willful act or negligence of Tenant, Tenant will be required to take the necessary actions to restore the Utility service to the Premises. Should Tenant fail to restore the Utility service, Landlord may but is not obligated, take the necessary actions to restore the Utility service at the sole cost of the Tenant.

4.2.3 LATE FEES. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and personnel costs. Accordingly, if any Rent due from the Tenant is not received by the date on which Rent is due, Tenant shall pay a late charge equal to ten percent (10%) of such overdue Rent. Landlord and Tenant hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord shall incur by reason of late payment by Tenant. Acceptance of such late charge by Tenant shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor 264

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prevent Landlord from exercising any of the other rights and remedies granted hereunder.

4.3 COMMON AREA MAINTENANCE CHARGES. Tenant's Share of Operating Costs. In addition to all other sums due under this lease, Tenant shall pay to Landlord, in the manner and at the times set forth in this Section, Tenant's Share of Operating Costs (as defined in Section 4.3.3) for each Lease Year or other fiscal year that may be established by Lessor during the Term.

4.3.1 The phrase "Operating Costs" means the sum of Building and Common Area costs.

4.3.2 The term "Building and Common Area Costs" means all costs and expenses of every kind and nature whatsoever as may be paid or incurred by Landlord, related entities, or third parties in operating, managing, insuring, repairing and maintaining the Buildings and/or the Common areas in the Library Building, computed in accordance with generally accepted accounting principles consistently applied or such other method of accounting as may be adopted by Lessor. Building and Common Area Costs include, but are not limited to costs and expenses incurred with respect to the items enumerated in Exhibit C.

4.3.3 "Tenant's Share of Operating Costs" will be determined by multiplying total Operating Costs by the fraction calculated by dividing total square feet of the Premises by the total square feet of the Building.

4.3.4 Tenant shall pay to Landlord, on the first day of each month during the Term, an amount equal to Tenant 's estimated Share of Operating Costs for the Lease Year in question, divided by the number of months (full or partial) in such Lease Year ("Tenant's Monthly Operating Costs Payment"). Payment of Tenant's Monthly Operating Costs will commence on May 1, 2024. The Initial Tenant's Monthly Operating Costs payment is Forty Three Dollars ($43.00) per month which is Three Cents ($0.03) per square foot, which will be revised when CAM is calculated at the beginning of the fiscal year 2024-2025.

Annual Adjustments. Within ninety (90) days following the end of each Lease Year, or within a reasonable time thereafter, Landlord shall prepare and deliver to Tenant a statement setting forth the calculation of Tenant's actual Share of Operating Costs for the previous Lease Year. Within thirty (30) days after receipt of the statement of Tenant's actual Share of Operating Costs, Tenant shall pay to Landlord, or Landlord shall credit against the next Monthly Operating Costs Payment due from Tenant, as the case may be, the difference between Tenant's actual Share of Operating Costs for the preceding Lease year and the amount of Tenant's Monthly Operating Costs Payments paid by Tenant during such Lease Year; except, Landlord shall pay Tenant any excess at the time Lessor furnishes the statement to Tenant in connection with the final adjustment of Operating Costs for the last Lease Year, provided Tenant is not in default under any provisions of this Lease.

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ARTICLE V - USE OF PREMISES

5.1 USES BY TENANT. Following Delivery, Tenant is permitted to use the Premises for a cafe serving food and beverages, which may include wine and beer, subject to appropriate licenses, but not hard liquor. Items may be sold for consumption on and off the Premises.

Every part of Premises shall be kept by Tenant in a clean and wholesome condition, free of any objectionable noises, odor or nuisances, and that all health and police regulations shall, in all respects and at all times, be fully complied with by Tenant. Tenant further covenants and agrees that during the term hereof the Outside Patio Area designated on Exhibit B, and incorporated herein, and every part thereof, shall be kept by Tenant in a clean and wholesome condition, free of any objectionable noises, odor or nuisances, and that all health and police regulations shall, in all respects and at all times, be fully complied with by Tenant.

Tenant shall not use or suffer or permit any person or persons to use the Premises in any manner that will tend to create waste, odor, or nuisance and shall not unreasonably disturb library operations or the use of the Building by its patrons, provided nothing herein shall prohibit Tenant from conducting normal business activities in the Premises.

5.1.1 ODORS. Tenant shall not permit foul or offensive odor to emanate from any garbage or trash containers within the Premises and shall immediately take steps to abate any such odor. Nothing shall be prepared, manufactured or mixed in the Premises which emit any odors into the Building.

5.2 USES BY LANDLORD. Landlord reserves the right to use the exterior floor, walls and roof above the Premises for the installation, maintenance, use and replacement of pipes, ducts, conduits, wires, alarm lines, heating, ventilating and air conditioning lines, fire protection lines and systems, electric power, telephone and communication lines and systems, elements serving the Building, provided the Premises and the business conducted therein are not adversely affected or aesthetically altered thereby, and provided further that Landlord's exercise of such rights does not materially impair or interfere with Tenant's use of the Premises as provided in this Article.

5.3 WASTE. Tenant agrees to cause all Waste from the Premises to be deposited within receptacles in the designated Waste enclosure area provided by the Waste hauler on at least a daily basis. In the event Tenant fails to dispose of all Waste in the receptacles provided by the Waste hauler, Tenant shall be liable to Landlord for all reasonable costs to facilitate removal and maintenance of a neat and clean Waste enclosure area, to the extent such costs are incurred as a result of Tenant's failure to comply with the provisions of this Section or polices of the Waste hauler.

5.4 OUTDOOR DISPLAY. Except as expressly provided in this Agreement, Tenant may not display or sell merchandise or allow portable signs, devices or any other objects to be stored or remain outside the exterior walls and permanent doorways of the Premises.

5.5 DELIVERIES. All deliveries to the Premises shall be made from the parking lot area nearest Premises. Tenant shall advise its concessionaires, agents, employees, vendors, suppliers and independent contractors of this restriction.

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5.6 PARKING. The parking lot abutting the Building and the parking lot serving City Hall are parking lots for public parking that require official parking permits. City shall supply Tenant with the appropriate parking permit for Tenant's staff.

5.7 MAINTENANCE AND INSPECTION OF THE PREMISES.

5.7.1 TENANT'S MAINTENANCE. At the Tenant's sole cost and expense, Tenant shall operate, maintain, repair and manage the Premises throughout the Term, including without limitation, the following: (a) interior surfaces of walls, ceilings, and floors; (b) wall and floor coverings; (c) all windows and plate glass; (d) doors; (e) locks or closing devices; (f) plumbing and electrical systems (including grease traps and the heating, ventilation , and air conditioning systems) within/serving the Premises; (g) signs; (h) Outside Patio Area and (i) all equipment, including FF&Es, thereon in good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and federal laws, statutes and regulations relating to the use, occupancy or operation of the Premises. Tenant shall promptly, at the sole cost and expense of Tenant, make all necessary repairs, including replacements or renewals when necessary, and all such repairs shall be at least equal in quality to the original work, reasonable wear and tear accepted. FF&Es replaced by Tenant due to depreciation and shall remain the property of Tenant. Tenant shall keep and maintain all portions of the Premises in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti. The failure of Tenant to maintain the Premises in accordance with this Agreement shall be grounds for termination of this Agreement pursuant to Article XIII.

5.7.2 LANDLORD'S MAINTENANCE. Landlord shall maintain: (a) roofs (excluding interior ceilings), foundations, and exterior walls at the Premises (excluding all doors, plate glass, storefronts, display and other windows) and (b) exterior plumbing, pipes and conduits serving the common area, (c) landscaping and its maintenance.

On demand, Tenant shall reimburse Landlord for all costs and expenses incurred by Landlord to make any repair to the Premises in connection with or resulting from (i) any alteration or modification to the Premises performed by, for or because of Tenant after the Delivery Date, (ii) the installation, use or operation of Tenant's property, fixtures and equipment, (iii) the moving of Tenant's property into or out of the Premises or in and about the Premises, (iv) Tenant's use or occupancy of the Premises in violation of this Lease Agreement or in violation of Applicable Law or (v) acts or omissions of Tenant or Tenant's invitees and/or licensees.

5.7.3 LANDLORD INSPECTION. At any time during the Term, upon reasonable advance notice and during normal business hours, except in the event of an emergency, the Landlord may conduct interior and/or exterior inspections of the Premises to confirm that it is being properly maintained as required herein. Following its inspection, the Landlord may deliver to Tenant written notification of any portions of the Premises which the Landlord has determined are not being properly maintained, and Tenant shall promptly prepare and deliver to the Landlord the proposed plan for remedying the indicated deficiencies of Tenant. The failure of Tenant to deliver a remedial plan and to complete remedial work within one year from the date of notice as determined by the Landlord in its reasonable discretion shall be a default under this Agreement pursuant to Article XIII. The failure of the Landlord to inspect or to notify 267

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Tenant of any deficiency shall not be a waiver of default or of the Landlord's right to enforce the maintenance and repair obligations of Tenant.

5.8 LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS. If Tenant fails to perform its obligations to maintain the Premises or perform any obligation in accordance with the standards set forth in this Agreement, the Landlord shall have the right, but not the obligation, to perform such work or make any payment upon delivery of written notice to Tenant. Any payment or cost of performance (together with interest thereon at the Default Rate from the respective dates of the Landlord's making of each such payment) shall constitute additional Rent payable by Tenant under this Agreement and shall be paid by Tenant to the Landlord on demand. The "Default Rate" shall mean interest calculated at an annual rate equal to the lesser of twelve percent (12%) or the maximum rate of interest permitted by law. The Landlord's election to undertake such obligation shall not operate as a waiver of any other right or remedy the Landlord may have pursuant to this Agreement.

5.9 LANDLORD NOT OBLIGATED TO PERFORM REPAIRS. Notwithstanding any contrary provision herein, the Landlord shall not be obligated to make any repairs, alterations, additions, improvements or betterments to the Premises during the term of this Agreement nor shall the Landlord be obligated to maintain or operate the Premises.

5.10 COMPLIANCE WITH LAWS. Tenant, at its sole cost and expense, shall comply with all applicable federal , state and local laws and regulations, including permits, pertaining to the use, operation, and management of the Premises ("Applicable Laws").

Tenant shall not itself use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Building or the Premises which would result in a nuisance or a violation of Applicable Law. Tenant shall use its best efforts to not permit any permitees, licensees, guests or invitees to use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Building or the Premises which would result in a nuisance or a violation of Applicable Law.

Tenant further agrees to notify Landlord in writing within ten (10) days of its receipt of service or notice in any administrative or judicial proceeding in which Tenant is named as a party that is related to the occupation or use of the Premises.

5.10.1 IMPOSITIONS. Throughout the Term, the Tenant shall pay prior to delinquency, all real property taxes, possessory interest, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the Premises or part thereof, including, but not limited to
any assessment, levy, imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public improvements, or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Premises or any part thereof, (b) the rent or income received by Tenant, (c) any use or occupancy of the Premises or part thereof , or (d) this transaction or any document to which Tenant is party creating or transferring an estate or interest in the Premises or part thereof. All the foregoing are hereinafter referred to as "Impositions".

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5.11 TENANT'S RIGHT TO CONTEST LAW. Tenant shall have the right to contest by appropriate proceedings, in the name of Tenant, and without cost or expense to the Landlord, the validity or application of any Applicable Law. If compliance with any Applicable Law may legally be delayed pending the prosecution of any such proceeding without the incurrence of any lien, charge or liability against the Premises or the interest of Tenant therein, and without subjecting Tenant or the Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant may delay compliance therewith until the final determination of such proceeding. Tenant shall indemnify, defend (with counsel approved by the Landlord), protect and hold the lndemnitees harmless from and against all Claims arising in connection with any such contest brought by Tenant. The foregoing indemnity obligation shall survive the expiration or earlier termination of this Agreement.

ARTICLE VI - CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS

6.1 CONDITION OF THE PREMISES.

6.1.1 AS-IS CONDITION. Tenant will lease the Premises in its "AS IS" condition as such condition exists.

6.1.2 NO REPRESENTATIONS. Tenant acknowledges that except as expressly set forth herein, Landlord makes no representations or warranties expressed or implied regarding the condition of the Premises or the fitness or suitability thereof for the purposes of Tenant, including but not limited to, the condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and no patent or latent defect or deficiency in the condition of the Premises shall affect the rights of Tenant or the Landlord hereunder. Tenant shall rely solely on its own independent investigation and judgment as to all matters relating to the Land. Tenant acknowledges and agrees that prior to the Date of Execution it has made such investigations of the Premises, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as Tenant deemed necessary to determine the condition of the Premises, and has approved all such characteristics and conditions and shall lease the Premises in its condition, subject to the rights in Article VII, as of the Date of Execution "AS-IS" "WHERE-IS" AND WITH ALL FAULTS. Tenant further acknowledges that the Landlord has made available all data and information on the Premises available to the Landlord, but without warranty or representation by the Landlord as to the completeness, correctness or validity of such data and information, except as otherwise set forth in this Agreement.

6.2 TENANT'S COVENANTS. Tenant hereby covenants and agrees that throughout the Term:

(a) The Premises, and the use and operation thereof, shall be in compliance with all Hazardous Materials Laws, and Tenant shall not cause or permit the Premises or any portion thereof to be in violation of any Hazardous Materials Laws.

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(b) Tenant shall not permit the Premises or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials nor shall Tenant permit the presence or release of Hazardous Materials in, on, under, about or from the Premises with the exception of materials customarily used in construction , operation, use or maintenance of Business facilities , provided such materials are used, stored and disposed of in compliance with Hazardous Materials Laws.

(c) Upon receiving knowledge of the same, Tenant shall immediately advise Landlord in writing of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Tenant , the Premises or the Building pursuant to any applicable Hazardous Materials Laws; (ii) any and all complaints, claims, citations , demands, inquiries, reports, or notices made or threatened by any third party against Tenant, the Premises relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials; (iii) the presence or release of any Hazardous Materials in, on, under, about or from the Premises or the Building; or (iv) the discovery of any occurrence or condition, by Tenant, on any real property adjoining or in the vicinity of the Building classified as "Border Zone Property" California Health and Safety Code, former Sections 25220 et seq., or any regulation adopted in connection therewith, that may in any way affect the Premises pursuant to any Hazardous Materials Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as "Hazardous Materials Claims." Landlord shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claim, and to have its reasonable attorney's fees in connection therewith paid by Tenant.

(d) Without Landlord's prior written consent, which shall not be unreasonably withheld, Tenant shall not take any remedial action in response to the presence of any Hazardous Materials in, on, under, or about the Premises or the Building (other than in emergency situations or as required by governmental agencies having jurisdiction in which case the Landlord agrees to provide its consent), nor enter into any settlement agreement, consent decree, or other compromise with respect to any Hazardous Materials Claim.

(e) If the presence of any Hazardous Material on the Premises results in any contamination of the Building in violation of Hazardous Materials Laws, except to the extent such contamination is caused by Landlord, Tenant shall promptly take all actions at its sole expense as are necessary to remediate the Premises as required by law; provided that Tenant first obtains Landlord approval of such actions, which approval may be withheld in the Landlord's reasonable discretion. All costs and expenses of any Remedial Work shall be paid by Tenant, it being understood that the Landlord shall incur no cost, expense or liability in connection with any Remedial Work. The Landlord shall have the right, but no obligation, to join and participate in, as a party if it so elects at the Landlord's cost, any legal proceedings or actions initiated in connection with any Hazardous Material Claims. For purposes of this Agreement , "Remedial Work" means all investigation, testing, analysis, monitoring, restoration, 270

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abatement , detoxification, containment , handling, treatment, removal, storage, decontamination, clean-up, transport, disposal or other ameliorative work or response action required by (i) any Hazardous Materials Laws, (ii) any order or request of any federal, state or local governmental agency, or (iii) any judgment, consent decree, settlement or compromise with respect to any and all enforcement , clean-up, removal, remedial or other governmental or regulatory actions or agreements or orders threatened, instituted, or completed pursuant to any Hazardous Materials Laws or any actions, proceedings or claims by such entities or third parties relating to or arising out of the breach of any Hazardous Materials Laws or the presence or release of any Hazardous Material in, on, under or from the Premises or the Building.

6.3 RELEASE OF CLAIMS. Tenant hereby waives, releases and discharges forever the lndemnitees from all present and future Claims Tenant may have arising directly or indirectly from the presence or alleged presence of Hazardous Materials on, under, in or about the Premises.

Tenant is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES

NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

As such relates to this Section 6.3, Tenant hereby waives and relinquishes all rights and be fits which it may have under Section 1542 of the California Civil Code.

___________
Tenant Initials

6.4 ENVIR NMENTAL INDEMNITY. Tenant shall indemnify, defend (with counsel reasonably acceptable to Landlord) and hold the lndemnitees harmless from and against all Claims arising during the Term and resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation , discharge, transport, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from the Premises during the Term, (ii) the failure of Tenant, or the employees, agents, contractors, subcontractors , licensees, permittees, or any person acting on behalf of any of Tenant to comply with Hazardous Materials Laws, or (iii) the breach by Tenant of any of its covenants contained in this Article VI. The foregoing indemnity shall further apply to any residual contamination in, on, under or about the Premises or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws and shall include, without limitation, any Claims arising in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work ordered by a court or required by any federal, 271

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state, or local governmental agency or political subdivision . This Section 6.4 shall survive the expiration or earlier termination of this Agreement.

6.5 DEFINITIONS.

6.5.1 Hazardous Materials. As used herein, "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local, state or federal authority, agency or governmental body, including any material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317);
defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.

6.5.2 Hazardous Materials Laws. As used herein "Hazardous Materials Laws" means all federal, state and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the preceding Section 6.5.1, as any of the foregoing may be amended from time to time.

ARTICLE VII - ALTERATIONS

7.1 INSTALLATION OF FIXTURES, FINISHES AND EQUIPMENT. If odors, as described in Section 5.1.1 of this Agreement, become a disruption to the operations of the Library, the Tenant must install or cause the installation of a pollution control unit to abate the odors.

7.2 & 7.3 TENANT'S DUTY TO INSPECT PREMISES. Prior to the Date of Execution, Tenant shall inspect Premises and all FF&Es and provide Landlord a certificate stating that the Premises is ready for Tenant's business . Following the Date of Execution, Landlord shall have no responsibility for FF&Es.

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7.4 SIGNAGE. Consistent with all Applicable Law, including City zoning rules and procedures, Tenant may construct and/or install a sign or signs for its business on the interior and on the exterior of the Building (collectively "Signage").

7.5 CHANGES AND ALTERATIONS. Except for as provided in Section 7.1, during the Term of this Agreement, Tenant shall not make any change, alteration or addition to the Premises (collectively, the "Improvements") that would materially alter the function or exterior appearance of the Premises, without the prior written consent of the Landlord. All Improvements, including those pursuant to Sections 7.1, must comply with all of the following:

(a) The Improvements must not materially impair the value or structural integrity of the Premises.

(b) The Improvements must be necessary for the operation of the business.

(c) No Improvements may be undertaken until Tenant has obtained all required permits and authorizations under Applicable Law.

(d) The Improvements must be made in a good and workmanlike manner and in accordance with all applicable permits and Applicable Laws. All repairs and Improvements to the Premises must be performed by licensed and bonded contractors .

(e) During the construction of any Improvements in, to or of, the Premises, or the permitted demolition or new construction or any restoration, Tenant shall comply with the insurance requirements set forth in Section 8.2, which policy or policies by endorsement thereto, if not then covered, will also insure any change, alteration or addition or new construction, including all materials and equipment incorporated in, on or about the Premises.

(f) Prior to commencement of any construction , change, alteration or repair, Tenant shall deliver to the City not later than ten (10) business days written notice of the proposed work, a general description of the proposed work and sufficient information to permit the City to post a notice of non-responsibility on the Premises.

7.6 NO RIGHT TO DEMOLISH. Tenant shall have no right to demolish any Improvements, once built, unless Tenant shall have received the prior written approval of the Landlord.

7.7 FIXTURES. Tenant shall have the right to place and install personal property, such as trade fixtures, equipment and other temporary installments in and upon the Premises. During the Term, Tenant shall have the right to remove all personal property installed by Tenant, provided that all damage to the Premises caused by such removal is repaired by the Tenant at the Tenant's expense. FF&Es installed pursuant to Sections 7.1 shall remain the property of Landlord and may not be removed by Tenant without Landlord's written consent excluding depreciated assets after which Tenant shall purchase, replace and retain ownership of the replaced FF&E.

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7.8 LIENS ON PREMISES. Subject to the right to contest the same prior to payment, Tenant agrees to keep the Premises free and clear of all mechanics' liens, stop notices and other liens or claims on account of work done by or for a Party.

7.9 PREVAILING WAGES. To the extent required by Applicable Laws, Tenant and its contractors and agents shall comply with California Labor Code Section 1720 et seq., as may be amended, and are responsible for carrying out the requirements of such provisions.

ARTICLE VIII - INDEMNITY AND INSURANCE

8.1 INDEMNITY. To the fullest extent permitted by law, Tenant shall indemnify, defend (with counsel reasonably acceptable to the Landlord) and hold the Landlord and its elected and appointed officers, officials, employees, agents and representatives (all of the foregoing, collectively the "lndemnitees") harmless from and against all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or administrative proceedings, judgments, costs and expenses (including without limitation reasonable attorneys' fees and court costs) (all of the foregoing, collectively "Claims") arising from or in connection with any of the following, which occurred during the Term: (i) the operation or management of the Premises, (ii) any work or thing done on or in the Premises, (iii) any condition of any alteration or addition constructed by Tenant on the Premises, including FF&Es, (iv) any breach or default by Tenant in the performance of any covenant or agreement to be performed by Tenant pursuant to the terms of this Agreement, (v) any negligence of Tenant, or any of its agents, contractors, subcontractors, employees, or licensees, (vi) any accident, injury or damage caused to any person in or on the Premises and (vii) any failure to comply with Applicable Law. In the event any such action or proceeding is brought against the Landlord by reason of any such Claim, Tenant, upon notice from the Landlord, covenants to defend such action or proceeding by counsel reasonably satisfactory to the Landlord. If an insurer under insurance required to be maintained by Tenant hereunder shall undertake to defend the Landlord under a reservation of rights with respect to ultimate coverage and the Landlord shall reasonably deem it necessary to retain independent counsel with respect to such matter, Tenant shall pay the reasonable fees of such counsel. The obligations of Tenant under this Article VIII do not apply to any Claim or other matter to the extent such arises as a result of the gross negligence or willful misconduct of the lndemnitees. This Section shall survive the expiration or earlier termination of this Agreement.

8.2 INSURANCE REQUIREMENTS. Tenant shall procure, at its sole expense, and maintain in full force and effect during the Term, the following insurance naming the Landlord as additional insured and/or loss payee and endorsements specifying that the Landlord's insurance is excess and non-contributing and that Tenant's insurance is primary:

(a) Comprehensive General Liability insurance against claims for bodily and personal injury, death and property damage caused by or occurring in conjunction with the operation of the Premises and the Business with a policy limit of at least two million dollars ($2,000,000) per occurrence.

(b) Property insurance covering all risks of loss including floor (if required) for one hundred percent (100%) of the replacement value of the Premises and any Improvements, naming Landlord as loss payee as its interests may appear. 274

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(c) Workers' compensation insurance that complies with the statutory requirements of the State of California must be identified by Tenant and must be in an amount satisfactory to the City.

8.2.1 CONTRACTORS. If Tenant undertakes the construction of the Improvements pursuant to Article VII, Tenant shall ensure that its general contractor carries liability, property damage, workers' compensation , and builder's risk insurance throughout construction of the Improvements, naming the lndemnitees as additional insureds and otherwise in compliance with all requirements set forth in this Section 8.2.

8.3 CERTIFICATES OF INSURANCE. Prior to the Date of Execution, Tenant shall furnish Landlord with certificates of insurance and endorsements evidencing the insurance coverage required by this Article. Tenant shall give notice in writing of any cancellation , termination or nonrenewal of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation, termination or nonrenewal.

ARTICLE IX - [RESERVED]

ARTICLE X - [RESERVED]

ARTICLE XI - DAMAGE AND DESTRUCTION

11.1 DAMAGE OR DESTRUCTION. In the event of any damage to or destruction of the Premises during the Term, the Landlord shall elect by written notice delivered to Tenant within sixty (60) days following the date of the occurrence of the damage to either remove the Premises or restore and rebuild the Premises as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in any Applicable Law. If the Landlord elects to restore the Premises, the Landlord shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible and shall commence reconstruction of the Premises within the earlier of ninety (90) days following the date of occurrence of the damage or the date upon which insurance proceeds are made available for such work. Upon the occurrence of damage or destruction, all insurance proceeds paid in respect of such damage or destruction shall be applied to the payment of the costs of the restoration and rebuilding required to be performed by the Landlord pursuant to this Agreement. If the Landlord does not elect to restore the Premises and the Landlord does not exercise its right to terminate this Agreement pursuant to Section 13.3 within one hundred twenty (120) days following the date of the occurrence of the damage, then at the Landlord's option this Agreement will terminate upon delivery of written notice to Tenant. If the Landlord elects to restore the Premises, the Landlord shall confer with Tenant regarding the design and plans for such restoration of the Premises.

11.2 NOTICE REQUIRED. In the event of material damage to or destruction of the Premises, or any part thereof, Tenant shall promptly give the Landlord notice of such occurrence and take all actions reasonably required to protect against hazards caused by such damage or destruction. For purposes of this Article, damage or destruction shall be 275

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deemed to be material if the estimated cost to repair equals or exceeds Fifty Thousand Dollars ($50,000).

11.3 LANDLORD'S RIGHT TO TERMINATE. Notwithstanding any contrary provision of this Article XI, the Landlord has the option to terminate this Agreement and be relieved of the obligation to restore the Premises where all or substantially all of the Premises are substantially damaged or destroyed and such damage or destruction resulted from a cause not insured against by Tenant.

ARTICLE XII - ASSIGNMENT, TRANSFER, SUBLETTING

12.1 RESTRICTIONS ON TRANSFER, ASSIGNMENT AND ENCUMBRANCE. Tenant has no right to sell, transfer, sublet, assign, encumber, mortgage, hypothecate or otherwise convey ("Transfer") its leasehold interest hereunder or any portion of its interest in the Premises, the fixtures, any Improvements or this Agreement voluntarily, involuntarily, by operation of law, or otherwise, except with Landlord's written permission, which shall not be unreasonably withheld in light of, among other factors, assignee's ability to abide by the terms of the Agreement, creditworthiness and experience in the restaurant business.

12.2 NO INVOLUNTARY TRANSFERS. No interest of Tenant in this Agreement, the Premises or part thereof is assignable or transferable: (i) pursuant to any voluntary or involuntary proceeding under federal or state bankruptcy or insolvency law; (ii) pursuant to any assignment of the assets of Tenant for the benefit of its creditors; or (iii) pursuant to any order of attachment, garnishment, receivership, or similar action. Any transfer described in this Section 12.2 constitutes an Event of Default under this Agreement by Tenant, and Landlord has the right to terminate this Agreement pursuant to Article XIII as a result of any such transfer taking place, in which case this Agreement shall not be treated as an asset of l:enant.

ARTICLE XIII - DEFAULT, REMEDIES AND TERMINATION

13.1 EVENT OF DEFAULT. Tenant will be in default under this Agreement upon the occurrence of any of the following events of default (each, an "Event of Default"):

(a) MONETARY OBLIGATIONS. Tenant at any time is in default hereunder as to any monetary obligation, and such default continues for thirty (30) days after the date upon which the Landlord shall have given Tenant a Notice of Default (as defined in Section 13.2.1);

(b) INSURANCE. Tenant fails to obtain and maintain any insurance required pursuant to Section 8.2 of this Agreement, and Tenant fails to cure such default within ten (10) days following receipt of Notice of Default;

(c) ABANDONMENT. Tenant abandons the Premises and ceases to use it for the purposes authorized hereby for a period of ninety (90) days or more or as established pursuant to Section 1951.3 of the California Civil Code except when prevented by Force Majeure;

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(d) TRANSFER. A voluntary or involuntary Transfer of all or any portion of the Tenant hold interest of Tenant in this Agreement without Landlord consent occurs in violation of the provisions of Article XII;

(e) NON-MONETARY OBLIGATIONS. Tenant defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 13.1, and unless a shorter cure period is specified for such default, the default continues for thirty (30) days after the date upon which the Landlord has given written notice of the default to Tenant; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an

Event of Default shall not arise hereunder if Tenant commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than one hundred and eighty (180) days after receipt of a Notice of Default;

(f) BANKRUPTCY. Tenant files a voluntary petition in bankruptcy or files any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of Tenant or of all or any substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or makes any general assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due;

(g) REORGANIZATION. A court of competent jurisdiction enters an order, judgment or decree approving a petition filed against Tenant seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree remains unvacated and unstayed for an aggregate of sixty (60) days from the first date of entry thereof, or any trustee receiver or liquidator of Tenant or of all or any substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed without the consent or acquiescence of Tenant and such appointment remains unvacated and unstayed for an aggregate of sixty (60) days, such sixty (60) day period to be extended in all cases during any period of a bona fide appeal diligently pursued by Tenant;

(h) ATTACHMENT. A writ of execution or attachment or any similar process is issued or levied against all or any part of the interest of Tenant in the Premises and such execution, attachment or similar process is not released, bonded, satisfied, or vacated or stayed within sixty (60) days after its entry or levy, such sixty (60) day period to be extended during any period of a bona fide appeal diligently pursued by Tenant;

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(i) LIENS. A lien is recorded or stop notice filed, and Tenant does not, within twenty (20) days, cause the lien or notice to be removed by bonding or otherwise.

13.2 NOTICE AND OPPORTUNITY TO CURE.

13.2.1 NOTICE OF DEFAULT. Upon the occurrence of a default hereunder, the non- defaulting party shall deliver a notice to the nonperforming party (the "Notice of Default"), stating the nature of the obligation which such nonperforming party has failed to perform, and stating the applicable period of time, if any, permitted to cure the default.

13.2.2 FAILURE TO GIVE NOTICE; NO WAIVER. Failure to give, or delay in giving, the Notice of Default shall not constitute a waiver of any obligation, requirement or covenant required to be performed hereunder. No failure or delay by either party in asserting any rights and remedies as to any breach shall operate as a waiver of any breach or of any such rights or remedies. Delay by either party in asserting any of its rights and remedies shall not deprive such party of the right to institute and maintain any action or proceeding which it may deem appropriate to protect, assert or enforce any such rights or remedies.

13.3 REMEDIES UPON DEFAULT.

13.3.1 LANDLORD'S REMEDIES. Upon the occurrence of any Event of Default and in addition to any and all other rights or remedies of the Landlord hereunder and/or provided by law, the Landlord has the right to terminate this Agreement and the possessory rights of Tenant hereunder, in accordance with applicable law to re-enter the Premises and take possession of the Premises and of the fixtures and any Improvements, and except as otherwise provided herein, to remove all persons and property therefrom, and to store such property at the risk of Tenant and for the account of Tenant, and Tenant shall have no further claim thereon or hereunder. The Landlord's re-entry or taking of possession of the Premises may not be construed as an election on the Landlord's part to terminate this Agreement unless the Landlord has given written notice of such intention to Tenant. In no event shall this Agreement be treated as an asset of Tenant after any final adjudication in bankruptcy except at the Landlord's option so to treat the same but no trustee, receiver, or liquidator of Tenant shall have any right to disaffirm this Agreement.

13.3.2 REMEDIES UPON ABANDONMENT. If Tenant should default under this Agreement and abandon the Premises, the Landlord may, at its option, enforce all of its rights and remedies under this Agreement, including the right to recover the rent as it becomes due hereunder. Additionally, the Landlord is entitled to recover from Tenant all costs of maintenance and preservation of the Premises, and all costs, including attorneys' and receiver's fees incurred in connection with the appointment of and performance by a receiver to protect the Premises and the Landlord's interest under this Agreement.

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13.3.3 LANDLORD'S RIGHT TO CONTINUE LEASE. In the event of any default under this Agreement by Tenant (and regardless of whether or not Tenant has abandoned the Premises), this Agreement does not terminate (except by an exercise of the Landlord's right to terminate under Section 13.3.1) unless the Landlord makes such election by the giving of any notice (including, without limitation, any notice preliminary or prerequisite to the bringing of legal proceedings in unlawful detainer) to terminate the right to possession held by Tenant. For so long as this Agreement continues in effect, the Landlord may enforce all of the Landlord's rights and remedies under this Agreement, including, without limitation, the right to recover all rent and other monetary payments as they become due hereunder. For the purposes of this Agreement, the following shall not constitute termination of the right to possession held by Tenant: (a) acts of maintenance or preservation or efforts to relet the Premises; or (b) the appointment of a receiver upon initiative of the Landlord to protect the Landlord interest under this Agreement.

13.3.4 RIGHT TO INJUNCTION; SPECIFIC PERFORMANCE. In the event of a default by Tenant under this Agreement, the Landlord shall have the right to commence an action against Tenant for damages, injunction and/or specific performance. The failure, for any reason, of Tenant to comply with a court-ordered injunction or order for specific performance shall constitute a breach under this Agreement.

13.3.5 RIGHT TO RECEIVER. Following the occurrence of an Event of Default, if Tenant fails after receipt of a Notice of Default to cure the default within the time period set forth in this Agreement, the Landlord, at its option, may have a receiver appointed to take possession of the interest of Tenant in the Premises with power in the receiver (a) to administer the interest in the Premises held by Tenant, (b) to collect all funds available in connection with the operation of the Premises, and (c) to perform all other acts consistent with the obligations of Tenant under this Agreement, as the court deems proper.

13.4 REMEDIES CUMULATIVE. No remedy specified in this Article XIII shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy provided hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy provided by this Agreement may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, subject to any limitations set forth herein.

13.5 NO ELECTION OF REMEDIES. The rights given in this Article XIII to receive, collect or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and conditions of this Agreement, or to prevent the breach or nonobservance thereof, or the exercise of any such right or of any other right or remedy hereunder or otherwise granted or arising, shall not in any way affect or impair or toll the right or power of the Landlord upon the conditions and subject to the provisions in this Agreement to terminate the right of possession held by Tenant because of any default in or breach of any of the covenants, provisions or conditions of this Agreement beyond the applicable cure period.

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13.6 SURVIVAL OF OBLIGATIONS. Nothing herein shall be deemed to affect the right of the Landlord under Agreement to indemnification for liability arising prior to the termination of this Agreement for personal injuries or property damage, nor shall anything herein be deemed to affect the right of the Landlord to equitable relief where such relief is appropriate.

No expiration or termination of the Term by operation of law, or otherwise, and no repossession of the Improvements or any part thereof shall relieve Tenant of its previously accrued liabilities and obligations hereunder, all of which shall survive such expiration, termination or repossession.

ARTICLE XIV - GENERAL PROVISIONS

14.1 FORCE MAJEURE; EXTENSION OF TIMES OF PERFORMANCE. Subject to the limitations set forth below, performance by either Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, acts or omissions of the other Party, acts or failures to act of any public or governmental agency or entity (other than the Parties which shall not excuse delay in performance), or any other cause beyond the affected Party's reasonable control (all of the foregoing "Force Majeure"). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within ten (10) days of the commencement of the cause and such extension is not rejected in writing by the other Party within ten (10) days of receipt of the notice. Neither Party shall unreasonably withhold consent to an extension of time pursuant to this Section.

Times of performance under this Agreement may also be extended in writing by the mutual agreement of Tenant and the Landlord (acting in the discretion of its City Manager unless he or she determines in his or her discretion to refer such matter to the City Council). Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Date of Execution.

14.2 PAYMENT FOR CITY SERVICES. Tenant shall reimburse City for any costs incurred by City to provide additional personnel or services (including, but not limited to, police services, and public works services) that are, in City's sole discretion, (i) directly related to Tenant's use of the Premises and (ii) beyond the number of City personnel or type of service normally provided by City. The charge for such reimbursement will be calculated based on the cost City charges for provision of additional personnel or

services for special events requiring a City Special Event permit, whether or not the personnel or services are related to activities or event that require the City Special Events permit.

14.3 MISCELLANEOUS.

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14.3.1 SEVERABILITY. If any term or prov1s1on of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement , or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

14.3.2 NOTICES. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by one of the following methods: (i) personal delivery, in which case notice is effective upon delivery;

(i) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt;

(ii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or

(iii) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery , or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day.

Landlord: City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
Attention : City Manager
Telephone: (925) 252-4850
Facsimile: (925) 252-4851

Tenant: Morello Restaurant Solutions LLC
3400 Mt. Diablo Blvd., Suite 1
Lafayette, CA 94549
Attention: Cornelio Balingit
Telephone: (925) 300-8318

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14.3.3 CAPTIONS; CONSTRUCTION. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree that since both Parties have participated in the negotiation and drafting of this Agreement with the advice of counsel, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

14.3.4 SUCCESSORS AND ASSIGNS. Subject to the restrictions on transfer set forth in Article XII, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement as if in every case so expressed.

14.3.5 SHORT FORM OF LEASE. A memorandum of Agreement will be executed by the Parties and recorded in the Official Records of Contra Costa County upon the request of either Party.

14.3.6 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Contra Costa County, California or in the Federal District Court for the Northern District of California.

14.3.7 ATTORNEY'S FEES. If either Party commences an action against the other to enforce any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined by the court having jurisdiction over the action.

14.3.8 NO THIRD-PARTY BENEFICIARIES; DISCLAIMER OF PARTNERSHIP, LENDER/TENANT RELATIONSHIP. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties any rights or remedies hereunder. The relationship of the Parties under this

Agreement is solely that of landlord and tenant, and it is expressly understood and agreed that the Landlord does not as a result of this Agreement in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of business or otherwise by Tenant. This Agreement is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or association as between the Landlord and Tenant.

14.3.9 ENTIRE AGREEMENT. This Agreement, together with Exhibits A and B, which by this reference are hereby incorporated herein, contains the entire agreement between the Parties relative to the transactions covered hereby. All previous correspondence, communications, discussions, agreements, understandings or proposals and acceptances thereof between the Parties or their representatives, 282

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Pittsburg City CouncilJuly 1, 2024

Pittsburg City Council
July 1, 2024