Agenda packet — Pittsburg City Council, August 19, 2024 (part 3 of 3)

FUNDING AGREEMENT NO. 648

BETWEEN

THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND

THE CITY OF PITTSBURG

FOR COST SHARING COMMITMENTS TO DESIGN AND CONSTRUCT THE

COUNTYWIDE SMART SIGNALS PROJECT
This Agreement is made and entered into on June 21, 2023 by the City of Pittsburg hereinafter
referred to as ("CITY") and the CONTRA COSTA TRANSPORTATION AUTHORITY hereinafter referred to as ("AUTHORITY"). CITY and AUTHORITY are collectively referred to herein as the “Parties” and each individually as a “Party.”

RECITALS

1. AUTHORITY
is the project sponsor and designated lead agency for implementing the Countywide Smart Signals Project within Contra Costa County, hereinafter referred to as “PROJECT”, which is a program to install signal system and intelligent transportation system (ITS) equipment upgrades to key identified intersections within Contra Costa County cities with the objective to coordinate and synchronize the timing of the signals.

2. AUTHORITY
is the recipient of the Metropolitan Transportation Commission’s (MTC’s) One Bay Area Cycle 3 (OBAG 3) funds for design, construction, and deployment of the PROJECT.

3. CITY
and AUTHORITY have identified 30 intersections to recommend for signal system and intelligent transportation system (ITS) equipment upgrades for inclusion in the PROJECT estimated at $1,332,724 (See Exhibit A)

4. CITY
agrees to provide AUTHORITY with the minimum 11.47% local matching funds to the OBAG 3 funds in the amount of $152,834 in Fiscal Year 2023-24 to pay for the design and installation of upgraded equipment located within CITY’s right-of-way and cost of construction as part of the PROJECT.

5. CITY
and AUTHORITY agree that the final matching funds requirements may be adjusted accordingly based on the final actual design and construction costs incurred and will be reconciled at the completion of the PROJECT as defined in paragraph 6 below.

NOW, THEREFORE, in consideration of the foregoing, the
AUTHORITY and CITY do
hereby agree as follows:
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SECTION I

CITY AGREES:

1. To provide AUTHORITY matching funds for upgrading equipment and construction cost for the City’s portion of the PROJECT in an amount of $152,834, which represents 11.47% of the OBAG3 funds of $1,332,724, no later than 30 days from receiving an invoice from AUTHORITY.

2. To work collaboratively with AUTHORITY to implement the PROJECT.

SECTION II

AUTHORITY AGREES:

1. To lead the development process including planning, design, construction, and deployment of the PROJECT, as described in Exhibit A and the Operations and Maintenance Agreement to be negotiated by the CITY and AUTHORITY following execution of this Agreement.

2. To submit an invoice to CITY for an amount of $152,834 prior to December 31, 2023.

3. To work collaboratively with CITY to implement the PROJECT.

SECTION III

IT IS MUTUALLY AGREED:

(b) If AUTHORITY determines that the match amount provided by CITY exceeded the amount needed to complete the PROJECT then AUTHORITY will refund CITY the balance of the original match amount provided by CITY and indicated in paragraph 1 of Section I.

2. Term: This Agreement will remain in effect through December 31, 2028, or at the completion of the PROJECT, whichever occurs first, or until discharged as provided in Paragraph 3 below or as a result of paragraph 12 below.

3. Discharge: This Agreement shall be subject to discharge as follows:
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a. Either Party may terminate this Agreement at any time until construction of the PROJECT begins, other than for breach. Either Party may terminate by giving written notice of termination to the other Party which shall specify both the cause and the effective date of termination.

b. This Agreement may be canceled by a Party for breach of any obligation, covenant, or condition hereof by the other Party, upon notice to the breaching Party. With respect to any breach which is reasonably capable of being cured, the breaching Party shall have 30 days from the date of the notice to initiate steps to cure. If the breaching party diligently pursues cure, such party shall be allowed a reasonable time to cure, not to exceed sixty (60) days from the date of the initial notice, unless a further extension is granted by the non-breaching Party. On cancellation, the non-breaching party retains the same rights as a Party exercising its right to terminate under the provisions of paragraph 3(a), except that the canceling Party also retains any remedy for breach of the whole contract or any unperformed balance.

c. By mutual consent of both PARTIES, this Agreement may be terminated at any time.

d. In the event of termination, AUTHORITY shall reimburse CITY, if AUTHORITY deems necessary, for overpayment by CITY based on the difference between actual cost share and estimated cost share, which such difference shall be determined in AUTHORITY’s sole discretion.

In no event shall the maximum expenditure allowed under this Agreement, as it may be adjusted by a written amendment signed by both parties, be exceeded.

4. Indemnity: It is mutually understood and agreed, relative to the reciprocal indemnification of AUTHORITY and CITY:

a. That neither AUTHORITY, nor any officer or employee thereof, shall be responsible for, and CITY shall fully indemnify and hold harmless AUTHORITY against, any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction by CITY under the Agreement. It is also understood and agreed that pursuant to Government Code Section 895.4, CITY shall fully indemnify and hold the AUTHORITY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by CITY under this Agreement or in connection with any work, authority, or jurisdiction delegated to CITY under this Agreement.

b. That neither CITY, nor any officer or employee thereof, shall be responsible for, and AUTHORITY shall fully indemnify and hold harmless CITY against any damage or liability occurring by reason of anything done or omitted to be done by AUTHORITY under or in connection with any work, authority, or jurisdiction by AUTHORITY under the Agreement. It is also understood and agreed that pursuant to Government Code Section 895.4, AUTHORITY shall fully indemnify and hold the CITY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by 549

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AUTHORITY under this Agreement or in connection with any work, authority, or jurisdiction delegated to AUTHORITY under this Agreement.

5. Notices: Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal service, or by certified or registered mail, return receipt requested, to the addresses set forth below, or to such addresses which may be specified in writing to the parties hereto.

Garrett Evans
City Manager
65 Civic Avenue
Pittsburg, CA 94565

Timothy Haile
Executive Director
Contra Costa Transportation Authority
2999 Oak Road, Suite 100
Walnut Creek, CA 94597

6. Additional Acts and Documents: Each Party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this Agreement.

7. Integration: This Agreement represents the entire Agreement of the Parties with respect to the subject matter hereof. No representations, warranties, inducements or oral agreements have been made by any of the Parties except as expressly set forth herein, or in other contemporaneous written agreements.

8. Amendment: This Agreement may not be changed, modified or rescinded except in writing, signed by all Parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.

9. Independent Agency: AUTHORITY renders its services under this Agreement as an independent agency. None of the AUTHORITY’s agents or employees shall be agents or employees of the CITY.

10. Assignment: This Agreement may not be assigned, transferred, hypothecated, or pledged by any Party without the express written consent of the other Party.

11. Binding on Successors, etc .: This Agreement shall be binding upon the successor(s), assignee(s) or transferee(s) of the AUTHORITY or CITY as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Agreement other than as provided above.

12. Severability: Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either Party to enter into or carry out, such determination shall not 550

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affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the Parties.

13. Limitation: All obligations of AUTHORITY under the terms of this Agreement are expressly subject to the AUTHORITY's continued authorization to collect and expend the sales tax proceeds provided by MEASURE C and MEASURE J. If for any reason the AUTHORITY's right to collect or expend such sales tax proceeds is terminated or suspended in whole or part, the AUTHORITY shall promptly notify CITY, and the PARTIES shall consult on a course of action to determine how to accomplish the PROJECT or if this Agreement should be terminated. If, after sixty (60) working days of the termination or suspension of sales tax proceeds authority, a course of action is not agreed upon by the PARTIES, this Agreement shall be deemed terminated by mutual or joint consent; provided, that any obligation to fund from the date of the notice shall be expressly limited by and subject to (i) the lawful ability of the AUTHORITY to expend sales tax proceeds for the purposes of the Agreement; and (ii) the availability, taking into consideration all the obligations of the AUTHORITY under all outstanding contracts, agreements to other obligations of the AUTHORITY, of funds for such purposes.

14. No Third Party Beneficiaries : This Agreement is not for the benefit of any person or entity other than the parties.

15. Dispute Resolution: The Parties shall work together in the spirit of good faith and cooperation to successfully implement this Agreement. Should a substantive disagreement arise between the Parties, the disagreement shall immediately be raised between the Parties. Prior to initiating any legal action, the Parties agree to meet in good faith to attempt to resolve any dispute, including but limited to meetings between executive management and participating in mediation.

The Parties shall jointly select and engage the effort of a mediator to help resolve the dispute. The Parties shall equally share the costs of the mediator. If the issue is still unresolved, either Party may bring a legal action seeking resolution of the disagreement. However, any and all legal actions may only be brought if the preceding dispute resolution process has been satisfied.

16. Venue: This Agreement and all work performed thereunder shall be interpreted under and pursuant to the laws of the State of California. The Parties agree that the jurisdiction and venue of any dispute arising under this Agreement shall be the Superior Court of Contra Costa County.

17. Counterparts: This Agreement may be executed in any number of original counterpart signature pages, and each counterpart signature page shall be attached to and incorporated into this original Agreement.

Signatures on the following page.

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CONTRA COSTA TRANSPORTATION

CITY OF PITTSBURG AUTHORITY

By: By:

Garrett Evans, City Manager Federal Glover, Chair

ATTEST:

By: By:

Alice Evenson, City Clerk Tarienne Grover, Clerk of the Board

APPROVED as to form:

By: By:

Donna Mooney, City Attorney Fennemore Wendel , Legal Counsel

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1 FUNDING AGREEMENT NO. 648
between
The Contra Costa Transportation Authority
and
The City of Pittsburg

EXHIBIT A

DESCRIPTION OF THE PROJECT

BACKGROUND

The Smart Signals project in Contra Costa County is a CCTA led countywide project to upgrade traffic signal system and communication systems throughout its 19 cities and unincorporated communities.

Contra Costa County is home to 19 cities/towns and the County, which includes numerous unincorporated communities. There are approximately 1400 traffic signals within the County, Caltrans-owned and various city-owned. Most of these traffic signals are located either along major arterials, including State Routes, identified as Routes of Regional Significance (RSS) or other major and minor arterials in the cities/towns.

The project will develop, manage, and implement Intelligent Transportation System (ITS) initiatives such as upgrading the existing legacy systems, providing interconnectivity throughout Contra Costa County signal systems and enhance the sharing of real-time information between agencies and the public.

The existing traffic signal systems in most jurisdictions located within Contra Costa County are legacy systems and are outdated or antiquated compared to newer traffic signal systems. These signal systems currently lack the communication infrastructure such as fiber and cellular/wireless-based communication, which makes it difficult to implement traffic signal synchronization and coordination between traffic signals along an arterial. Most corridors do not currently include Signal Control and Prioritization (SCP) technologies to promote transit usage to reduce delay and travel times for transit vehicles and reduce response time for emergency vehicles.

These deficiencies result in severe traffic congestion within the cities/towns and may result in spillover onto freeways and cause a chain reaction of congestion along local arterials. The current system contributes to overall commuter travel times and delays, increases greenhouse gas emissions and fuel consumption, as well as incidents and collisions. These deficiencies were documented following extensive discussions with the cities and towns regarding traffic signal operation within the Contra Costa County.

CCTA and the project Stakeholders have initially identified these deficiencies, which are translated as the following project goals: 1) Improve safety and minimize crashes, injuries, and fatalities between motorists, bicyclists, and pedestrians; 2) Optimize mobility along major corridors and RRS; and 3) Advance to Smart City and Internet of Things (IOT) solutions. 553

2 PROJECT ELEMENTS
The Smart Signals project will develop, manage, and implement ITS initiatives that improve the safety and efficiency of multimodal mobility, maximize highway and arterial system throughput, and improve operational efficiency, safety, and reduce environmental impact throughout the county. By upgrading the existing legacy systems and providing interconnectivity throughout Contra Costa County signal systems, the county’s traffic signal systems can be prepared for future emerging technologies including connected and/or autonomous vehicles, big data, integrated corridor management (ICM), enable implementation of incident management strategies and Smart Cities initiatives. This solution can enhance the sharing of real-time information between agencies and the public using existing and next generation ITS technologies.

The upgraded traffic signal systems and signal interconnect will help smooth traffic flow and ease recurring traffic congestion by expanding mode choice options and reducing travel time on local streets and roads. Upgraded traffic signals will benefit pedestrians and transit commuters by reducing wait times at intersections, improving total travel time for all modes while making transit and pedestrian more viable transportation options. The Smart Signal systems would also improve the safety of pedestrians, bicyclists, vulnerable road users, and people with disabilities by deployment of detection systems.

To accomplish these goals, CCTA is applying a Smart Signal approach that will include the implementation of ITS equipment including upgraded traffic signal controllers and cabinets, upgraded Advanced Traffic Management System (ATMS) for each agency to provide remote command and control from a centralized Traffic Management Center (TMC) or Traffic Operations Center (TOC) location, Closed-circuit Television (CCTV) cameras, SCP for transit and emergency vehicles, and vehicle detection systems deployed on predefined designated arterials and state routes.

These improvements will provide local cities and Caltrans day-to-day county-wide traffic management capabilities in addressing recurrent traffic congestion as well as provide CCTA capabilities for managing the system during non-recurring traffic congestion caused by diverted traffic due to major incidents on the freeway or during any evacuation efforts.

3 • Allowing shared control and operation, improving cross jurisdictional traffic management • Allowing cities/CCTA access to monitor all CCTV cameras and traffic signals for the purpose of optimizing day-to-day operations
Deployment of the Smart Signals Project is expected to result in operational and safety improvements for all modes of transportation, such as:
• Decrease in travel time,
• Decrease in total delay,
• Reduction in number of stops
• Reduction in secondary accidents
• Decrease in fuel consumption and greenhouse gas emissions • Promotion of transit ridership
• Reduction of response time for emergency vehicles
When operating together, these enhancements increase safety and reliability, and support environmental sustainability, economic development, and equitable access for all travelers.

CITY OF PITTSBURG ELEMENTS

The signals located at the following intersection are included in the Project and are proposed to receive Smart Signal upgrades. (See Table 1 and Figure 1 below)

Table 1: City of Pittsburg PROJECT Intersections

LIST OF INTERSECTIONS

Signal No. Primary Street Secondary Street
1 Bailey Road W Leland Rd
2 Buchanan Rd Harbor St
3 Buchanan Rd Suzanne Dr
4 Buchanan Rd Loveridge Rd
5 Buchanan Rd Ventura Dr
6 Buchanan Rd Meadows Ave
7 W. Leland Rd San Marco Blvd
8 W. Leland Rd Alves Ranch Rd
9 W. Leland Rd Woodhill Dr
10 W. Leland Rd Southwood Dr / Bart Exit
11 W. Leland Rd Bart Entrance
12 W. Leland Rd Oak Hills Dr
13 W. Leland Rd Chestnut Dr
14 W. Leland Rd Jacqueline Dr
15 W. Leland Rd Montevideo Dr
16 W. Leland Rd Golf Club Rd/ Range Rd
17 W. Leland Rd Dover Way
555

4 18 W. Leland Rd Burton Ave
19 W. Leland Rd Crestview Dr
20 Railroad Ave Buchanan Rd
21 Railroad Ave Marks Blvd / Sierra Dr
22 Railroad Ave Linscheid Dr
23 Railroad Ave Yosemite Dr
24 Railroad Ave Alturas Ave/Mariposa Dr
25 Railroad Ave Atlantic Ave
26 Railroad Ave Alvarado Ave
27 Railroad Ave Leland Rd
28 Railroad Ave Civic Ave / Oak Pl
29 Railroad Ave Central Ave
30 Railroad Ave E 10th St

The recommended upgrades for signals located in Pittsburg include:
• Signal controller firmware updates
• Video/Radar detection
• An Advanced Traffic Management System (ATMS)
• Traffic signal synchronization
• Emergency Vehicle Preemption (EVP)
• Transit Signal Priority (TSP), and
• Video Analytics.

Based on preliminary estimates, the upgraded equipment, including cost of construction, is shown below. The City is responsible to provide the minimum 11.47% match. • Total Number of Signals – 30
• Local funding – $1,332,724
• Local match required – $152,834 (11.47%)

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Authority Board STAFF REPORT
Meeting Date: June 21, 2023
Subject NEW ITEM: Authorization to Execute Funding Agreements with Contra Costa County Jurisdictions and Contra Costa County to Provide Authority Local Match for the Contra Costa
Countywide Smart Signals Project (Project)
Summary of Issues The Authority, as the lead agency for the Project, applied for and was awarded One Bay Area Grant Cycle 3 (OBAG 3)
funding in the amount of $26,555,000 for the design and construction phases of the Project. This federal grant requires a minimum 11.47% local match, which will be provided by the 20 jurisdictions.

Recommendations Staff seeks authorization for the Chair to execute 20 individual funding agreements with each of the 19 jurisdictions and Contra Costa County, in the aggregated total amount of
$3,529,142, to be provided as the 11.47% local match to the $26,555,000 in One Bay Area Grant Cycle 3 funding, to be applied towards the Project, and to allow the Executive Director or designee to make any non-substantive changes to the language of the individual funding agreements as needed.

Staff Contact John Hoang
Financial Implications OBAG 3: $26,555,000; Local Match from Jurisdictions:
$3,529,142; Additional Authority Match: $690,280; Total Project Cost: $30,774,422
Options The Authority Board could elect to not approve these Funding Agreements.

Attachments A. Local Match Breakdown by Jurisdiction
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June 21, 2023

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B. Draft Funding Agreement
Changes from Committee N/A
Background
The Authority is the lead agency and project sponsor for the Project, working with and coordinating with the 19 cities/towns and unincorporated Contra Costa County, referred to as the 20 Jurisdictions. The Project addresses safety, operational improvements, and traffic management enhancements, which will upgrade existing traffic signal systems, including controllers and communication systems, to provide interconnectivity throughout Contra Costa County. The existing traffic signal systems in Contra Costa County are mostly legacy systems and are outdated. The Project will upgrade the signal system countywide, upgrading traffic signals at approximately 328 intersections throughout Contra Costa County and will provide capabilities to enhance the sharing of real-time information and data between agencies. Having a unified signal system and other technologies will provide the ability to implement video analytics, transit priority lanes, improve bicycle signals/phases, and signal control prioritization technologies to promote transit use by reducing delay and travel times for transit vehicles.

At the May 17, 2023 Authority Board meeting, the Authority Board received an update of the Project. The Project is currently in the planning stages followed by the project development phase and design phase in 2024 with construction beginning in late 2025.

The Authority applied for and received $26,555,000 in OBAG 3 federal funds for the Project design and construction phases. In addition, the local minimum 11.47% match to the federal funds, totaling $3,529,142, will be provided by the 20 jurisdictions. The breakdown of the local match by jurisdiction is included in Attachment A and a Draft Agreement is included in Attachment B. The Authority is also asking that the jurisdictions provide the local match during the Fiscal Year 2023-24. In addition to the OBAG 3 grant and local match from the jurisdictions, the Authority is also contributing the amount of $690,280 for a total amount of $30,774,422, which is programmed and available to design and construct the Project.

Staff seeks authorization for the Chair to execute 20 individual funding agreements with each of the 19 jurisdictions and Contra Costa County, in the aggregated total amount of $3,529,142, to be provided as the 11.47% local match to the $26,555,000 in One Bay Area Grant Cycle 3 funding, to be applied towards the Project, and to allow the Executive 558
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June 21, 2023

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Director or designee to make any non-substantive changes to the language of the individual funding agreements as needed.
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7 CONTRA COSTA COUNTYWIDE SMART SIGNALS PROJECT
LOCAL MATCH TO ONE BAY AREA GRANT CYCLE 3 (OBAG 3) GRANT

FOR DESIGN AND CONSTRUCTION
Jurisdiction
(11.47%) Measure J
Antioch 334,175$ 65,363$ 2,514,497$ 2,914,035$ Brentwood 228,393$ 44,672$ 1,718,538$ 1,991,603$ Clayton 55,804$ 10,915$ 419,898$ 486,618$ Concord 499,173$ 97,635$ 3,756,021$ 4,352,829$ County 285,535$ 55,849$ 2,148,503$ 2,489,886$ Danville 119,972$ 23,466$ 902,725$ 1,046,162$ El Cerrito 100,792$ 19,714$ 758,409$ 878,915$ Hercules 65,091$ 12,731$ 489,775$ 567,597$ Lafayette 149,747$ 29,290$ 1,126,767$ 1,305,803$ Martinez 73,362$ 14,349$ 552,011$ 639,722$ Moraga 71,390$ 13,964$ 537,175$ 622,528$ Oakley 169,234$ 33,101$ 1,273,396$ 1,475,731$ Orinda 87,063$ 17,029$ 655,101$ 759,193$ Pinole 154,302$ 30,181$ 1,161,045$ 1,345,527$ Pittsburg 152,834$ 29,893$ 1,149,997$ 1,332,725$ Pleasant Hill 152,780$ 29,883$ 1,149,595$ 1,332,258$ Richmond 182,336$ 35,664$ 1,371,985$ 1,589,985$ San Pablo 217,877$ 42,615$ 1,639,411$ 1,899,903$ San Ramon 248,126$ 48,532$ 1,867,025$ 2,163,684$ Walnut Creek 181,159$ 35,434$ 1,363,126$ 1,579,719$ TOTAL 3,529,142$ 690,280$ 26,555,000$ 30,774,422$ Total OBAG 3
(88.53%)Jurisdiction
Local Match

ATTACHMENT A
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FUNDING AGREEMENT No. XX
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2 FUNDING AGREEMENT NO. XX

BETWEEN

THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND

AGENCY NAME HERE

FOR COST SHARING COMMITMENTS TO DESIGN AND CONSTRUCT THE

COUNTYWIDE SMART SIGNALS PROJECT
This Agreement is made and entered into on ______________, 2023 by the AGENCY NAME hereinafter referred to as ("CITY/TOWN/ OR COUNTY") and the CONTRA COSTA TRANSPORTATION AUTHORITY hereinafter referred to as ("AUTHORITY").

CITY/TOWN/ OR COUNTY and AUTHORITY are collectively referred to herein as the “Parties” and each individually as a “Party.”

RECITALS

1. AUTHORITY is the project sponsor and designated lead agency for implementing the Countywide Smart Signals Project within Contra Costa County, hereinafter referred to as “PROJECT”, which is a program to install signal system and intelligent transportation system (ITS) equipment upgrades to key identified intersections within Contra Costa County cities with the objective to coordinate and synchronize the timing of the signals.

2. AUTHORITY is the recipient of the Metropolitan Transportation Commission’s (MTC’s) One Bay Area Cycle 3 (OBAG 3) funds for design, construction, and deployment of the PROJECT.

3. CITY/TOWN/ OR COUNTY and AUTHORITY have identified 18 intersections to recommend for signal system and intelligent transportation system (ITS) equipment upgrades for inclusion in the PROJECT estimated at $XXXX (See Exhibit A)

4. CITY/TOWN/ OR COUNTY agrees to provide AUTHORITY with the minimum 11.47% local matching funds to the OBAG 3 funds in the amount of $XXXX in Fiscal Year 2023-24 to pay for the design and installation of upgraded equipment located within CITY/TOWN/ OR COUNTY right-of-way and cost of construction as part of the PROJECT.

5. CITY/TOWN/ OR COUNTY and AUTHORITY agree that the final matching funds requirements may be adjusted accordingly based on the final actual design and construction costs incurred and will be reconciled at the completion of the PROJECT.

NOW, THEREFORE, in consideration of the foregoing, the AUTHORITY and CITY/TOWN/ OR COUNTY do hereby agree as follows:

SECTION I
CITY/TOWN/ OR COUNTY AGREES:

ATTACHMENT B
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2 1. To provide AUTHORITY matching funds for upgrading equipment and construction cost for the City’s/Town’s or County’s portion of the PROJECT in an amount of $XXXX, which represents 11.47% of the OBAG3 funds of $XXXX, no later than 30 days from receiving an invoice from AUTHORITY.

2. To work collaboratively with AUTHORITY to implement the PROJECT.

SECTION II
AUTHORITY AGREES:

1. To lead the development process including planning, design, construction, and deployment of the PROJECT, as described in Exhibit A and the Operations and Maintenance Agreement to be negotiated by the CITY/TOWN/ OR COUNTY and AUTHORITY following execution of this Agreement.

2. To submit an invoice to CITY/TOWN/ OR COUNTY for an amount of $XXXX prior to December 31, 2023.

3. To work collaboratively with CITY/TOWN/ OR COUNTY to implement the PROJECT.

SECTION III
IT IS MUTUALLY AGREED:

1. (a) That the cost to complete PROJECT is only an estimate and may require adjustments depending on the final cost. At the completion of the PROJECT, and if AUTHORITY determines that the match amount provided by CITY/TOWN/ OR COUNTY is exceeded, it will notify and seek approval of CITY/TOWN/ OR COUNTY to provide additional matching funds. Completion of the Project is defined as when AUTHORITY accepts and certifies that all phases of the PROJECT construction–including but not limited to installation, deployment, and activation of equipment–are completed.
(b) If AUTHORITY determines that the match amount provided by CITY/TOWN/ OR COUNTY exceeded the amount needed to complete the PROJECT then AUTHORITY will refund CITY/TOWN/ OR COUNTY the balance of the original match amount provided by CITY/TOWN/ OR COUNTY and indicated in paragraph 1 of Section I.

3. Discharge: This Agreement shall be subject to discharge as follows:
a. Either Party may terminate this Agreement at any time until construction of the 564
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2 PROJECT begins, other than for breach. Either Party may terminate by giving written notice of termination to the other Party which shall specify both the cause and the effective date of termination.

Notice of termination under this provision shall be given at least ninety (90) days before the effective date of such termination. Once construction of the PROJECT begins, neither party may terminate this Agreement unless there is a breach as addressed in paragraph 3(b) below. b. This Agreement may be canceled by a Party for breach of any obligation, covenant, or condition hereof by the other Party, upon notice to the breaching Party. With respect to any breach which is reasonably capable of being cured, the breaching Party shall have 30 days from the date of the notice to initiate steps to cure. If the breaching party diligently pursues cure, such party shall be allowed a reasonable time to cure, not to exceed sixty (60) days from the date of the initial notice, unless a further extension is granted by the non-breaching Party. On cancellation, the non-breaching party retains the same rights as a Party exercising its right to terminate under the provisions of paragraph 3(a), except that the canceling Party also retains any remedy for breach of the whole contract or any unperformed balance.
c. By mutual consent of both PARTIES, this Agreement may be terminated at any time. d. In the event of termination, AUTHORITY shall reimburse CITY/TOWN/ OR COUNTY if AUTHORITY deems necessary, for overpayment by CITY/TOWN/ OR COUNTY based on the difference between actual cost share and estimated cost share, which such difference shall be determined in AUTHORITY’s sole discretion. In no event shall the maximum expenditure allowed under this Agreement, as it may be adjusted by a written amendment signed by both parties, be exceeded.

4. Indemnity: It is mutually understood and agreed, relative to the reciprocal indemnification of AUTHORITY and CITY/TOWN/ OR COUNTY:
a. That neither AUTHORITY, nor any officer or employee thereof, shall be responsible for, and CITY/TOWN/ OR COUNTY shall fully indemnify and hold harmless AUTHORITY against, any damage or liability occurring by reason of anything done or omitted to be done by TOWN under or in connection with any work, authority or jurisdiction by CITY/TOWN/ OR COUNTY under the Agreement. It is also understood and agreed that pursuant to Government Code Section 895.4, CITY/TOWN/ OR COUNTY shall fully indemnify and hold the AUTHORITY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by CITY/TOWN/ OR COUNTY under this Agreement or in connection with any work, authority, or jurisdiction delegated to TOWN under this Agreement.
b. That neither CITY/TOWN/ OR COUNTY, nor any officer or employee thereof, shall be responsible for, and AUTHORITY shall fully indemnify and hold harmless CITY/TOWN/ OR COUNTY against any damage or liability occurring by reason of anything done or omitted to be done by AUTHORITY under or in connection with any work, authority, or jurisdiction by AUTHORITY under the Agreement. It is also understood and agreed that pursuant to Government Code Section 895.4, AUTHORITY shall fully indemnify and hold the CITY/TOWN/ OR COUNTY harmless from any liability imposed for injury as defined by Government Code Section 810.8 occurring by reason of anything done or omitted to be done by AUTHORITY under this 565
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2 Agreement or in connection with any work, authority, or jurisdiction delegated to AUTHORITY under this Agreement.

NAME
TITLE

STREET ADDRESS

CITY, STATE ZIP
Timothy Haile
Executive Director
Contra Costa Transportation Authority
2999 Oak Road, Suite 100
Walnut Creek, CA 94597

9. Independent Agency: AUTHORITY renders its services under this Agreement as an independent agency. None of the AUTHORITY’s agents or employees shall be agents or employees of the TOWN.

10. Assignment: This Agreement may not be assigned, transferred, hypothecated, or pledged by any Party without the express written consent of the other Party.

11. Binding on Successors, etc.: This Agreement shall be binding upon the successor(s), assignee(s) or transferee(s) of the AUTHORITY or CITY/TOWN/ OR COUNTY as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Agreement other than as provided above.

12. Severability: Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either Party to enter into or carry out, such determination shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; 566
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8 5
2 provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the Parties.

13. Limitation: All obligations of AUTHORITY under the terms of this Agreement are expressly subject to the AUTHORITY's continued authorization to collect and expend the sales tax proceeds provided by MEASURE C and MEASURE J. If for any reason the AUTHORITY's right to collect or expend such sales tax proceeds is terminated or suspended in whole or part, the AUTHORITY shall promptly notify CITY/TOWN/ OR COUNTY, and the PARTIES shall consult on a course of action to determine how to accomplish the PROJECT or if this Agreement should be terminated. If, after sixty (60) working days of the termination or suspension of sales tax proceeds authority, a course of action is not agreed upon by the PARTIES, this Agreement shall be deemed terminated by mutual or joint consent; provided, that any obligation to fund from the date of the notice shall be expressly limited by and subject to (i) the lawful ability of the AUTHORITY to expend sales tax proceeds for the purposes of the Agreement; and (ii) the availability, taking into consideration all the obligations of the AUTHORITY under all outstanding contracts, agreements to other obligations of the AUTHORITY, of funds for such purposes.

14. No Third Party Beneficiaries: This Agreement is not for the benefit of any person or entity other than the parties.

Signatures on the following page.
567
FUNDING AGREEMENT No. XX
Countywide Smart Signals Design and Construction Phases

Page 6 of 6 ends

1 9
8 5
2 CONTRA COSTA TRANSPORTATION

NAME OFAGENCY AUTHORITY
By: By:

NAME, TITLE Federal Glover, Chair
ATTEST:

By: By:

NAME, TITLE Tarienne Grover, Clerk of the Board
APPROVED as to form:

By: By:

NAME, TITLE Fennemore Wendel, Authority Counsel 568
Exhibit A Page 1 of 4
FUNDING AGREEMENT NO. XX
between
The Contra Costa Transportation Authority
and
Agency Name

EXHIBIT A

DESCRIPTION OF THE PROJECT

BACKGROUND
The Smart Signals project in Contra Costa County is a CCTA led countywide project to upgrade traffic signal system and communication systems throughout its 19 cities and unincorporated communities.

Contra Costa County is home to 19 cities/towns and the County, which includes numerous unincorporated communities. There are approximately 1400 traffic signals within the County, Caltrans-owned and various City/Town-owned. Most of these traffic signals are located either along major arterials, including State Routes, identified as Routes of Regional Significance (RSS) or other major and minor arterials in the cities/towns.

PROJECT ELEMENTS
The Smart Signals project will develop, manage, and implement ITS initiatives that improve the safety and efficiency of multimodal mobility, maximize highway and arterial system throughput, and improve operational efficiency, safety, and reduce environmental impact throughout the county. By upgrading the existing legacy systems and providing interconnectivity throughout Contra Costa County signal systems, the county’s traffic signal systems can be prepared for future emerging technologies including connected and/or autonomous vehicles, big data, integrated corridor management (ICM), enable implementation of incident management strategies and Smart Cities initiatives. This solution can enhance the sharing of real-time information between agencies and the public using existing and next generation ITS technologies.

The PROJECT’s key features and benefits include but are not limited to some of the following:
• Providing infrastructure for a countywide traffic management system • Upgrading local signal controllers and signal system hardware, software, and firmware • Deploying bicycle and pedestrian detection software for vulnerable road user protection • Providing SCP, including Transit Signal Priority (TSP) and Emergency Vehicle Preemption (EVP) capabilities
• Enabling local event management signal timing options • Taking a proactive approach to safety by identifying “near miss” situations for analysis • Enabling cities and CCTA to proactively manage day-to-day traffic • Enabling cities to proactively manage traffic on local streets that has diverted off the freeway due to a major freeway incident
• Identifying alternative routes with timing optimized for incident management • Allowing shared control and operation, improving cross jurisdictional traffic management 570
Exhibit A Page 3 of 4
• Allowing CITY/TOWN/ OR COUNTY/CCTA access to monitor all CCTV cameras and traffic signals for the purpose of optimizing day-to-day operations Deployment of the Smart Signals Project is expected to result in operational and safety improvements for all modes of transportation, such as:
• Decrease in travel time,
• Decrease in total delay,
• Reduction in number of stops
• Reduction in secondary accidents
• Decrease in fuel consumption and greenhouse gas emissions • Promotion of transit ridership
• Reduction of response time for emergency vehicles
When operating together, these enhancements increase safety and reliability, and support environmental sustainability, economic development, and equitable access for all travelers.

CITY/TOWN/ OR COUNTY ELEMENTS
The signals located at the following intersection are included in the Project and is proposed to receive Smart Signal upgrades. (See Table 1 below)
Table 1: AGENCY PROJECT Intersections

LIST OF INTERSECTIONS
Signal No. Primary Street Secondary Street
1 2
3 4
5 6
7 8
9 10
11 12
13 14
The recommended upgrades for signals located in AGENCY NAME include:
• xxxxx
• xxxxx
• xxxxx
571
Exhibit A Page 4 of 4
Based on preliminary estimates, the upgraded equipment, including cost of construction, is shown below. The CITY/TOWN/ OR COUNTY is responsible to provide the minimum 11.47% match. • Total Number of Signals – XX
• Total funding – $XX
• Local match required – $XX (11.47%)
572

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 Allocating Additional Funds, Accepting the Plans and Specifications, and Awarding Project 5704- Central Harbor Park and Boat Launch Facilities
MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
Project 5704-Central Harbor Park and Boat Launch Facilities (Project) will improve the infrastructure at the Boat Launch Ramp, Central Harbor Park, and nearby parking lots as part of a greater effort to revitalize the waterfront. If approved, this Resolution will allocate additional funding, accept the contract plans and specifications, and award a construction contract with NTK Construction, Inc.

FISCAL IMPACT
The construction bid proposal from NTK Construction, Inc. for the Base Bid is $2,755,035.05, for Bid Alternative 1 is $30,299 and for Bid Alternative 3 is $100,000 for a total amount of $2,885,334.05 for the Project.

Funding will be provided by $3,544,395 Sacramento-San Joaquin Delta Conservancy (Conservancy) Climate Access and Restoration Grant (CAR 22 Grant) received in 2023.

This resolution will allocate additional funding from the following sources. • $400,000 US EPA Grant Fund 541
• $100,000 Waterfront Fund 540
• $100,000 Solid Waste Fund 210
If approved, the total Project budget will be $4,144,395. 573

RECOMMENDATION
City Council adopt the attached Resolution allocating an additional funding amount of $600,000 to the Project as follows; $400,000 from US EPA Grant (Fund 541), $100,000 from Waterfront (Fund 540), $100,000 from Solid Waste (Fund 210), accepting the plans and specifications and authorizing the City Manager to execute a construction contract for the Project with NTK Construction, Inc. for the Base Bid of $2,755,035.05, Bid Alternative 1 of $30,299.00, and Bid Alternative 3 of $100,000.00 for a total amount of $2,885,334.05 for the Project.

Staff recommends that the City Council allocate a construction contingency in the amount of $288,533 for unanticipated costs and contract change orders.

Staff further recommends that the City Engineer be authorized to approve contract change orders in an amount not to exceed 50% of the construction contingency, and the City Manager be authorized to approve change orders in an amount not to exceed the approved Project budget.

BACKGROUND
On September 20, 2021, by Resolution 21-13995, the City entered into a $145,621 engineering design agreement with R.E.Y. Engineers for the design of the Project. On March 20, 2023, by Resolution 23-14259, City Council authorized an application for a CAR 22 Grant and to receive $3,544,395 to implement the Project.

On November 6, 2023, by Resolution 23-15398, the City amended the engineering design agreement with R.E.Y. to include Project Management, Construction Engineering Support, and development of as-built drawings to the scope of work and added $124,548 to the original contract amount totaling a total contract amount of $270,169.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
The City of Pittsburg’s Central Harbor Park and Boat Launch has been an established attraction for residents seeking recreation. Improvements to this facility and adjacent areas will increase safety, promote leisure services, and enrich surrounding neighborhoods. The Project will also contribute to the City’s overall goal of revitalizing the waterfront, increasing sustainability for all residents and visitors.

On June 24, 2024, staff advertised the Project for construction with a bid due date of July 30th. On July 30, 2024, six (6) bids for construction of the Project were received. The low bid was checked for arithmetical errors, completeness, and conformance with the bid requirements and NTK Construction, Inc. was the lowest responsive, responsible bidder with a base bid in the amount of Base Bid of $2,755,035.05 for the Project. 574
After reviewing the bid amounts for the three (3) bid alternatives, staff recommends awarding the construction contract to NTK Construction, Inc. with a base bid in the amount of $2,755,035.05, Bid Alternative 1 of $30,299 (additional driveway and parking lot repairs), and Bid Alternative 3 of $100,000.00 (ingress and egress access gates at the boat launch area) for a total amount of $2,885,334.05 for the Project. Bid Alternate 2 (storm drain pump station) is not recommended due to budgetary constraints. Staff will further study the storm drain system to determine if there is an alternative design that can improve the performance of the storm drain system.

ATTACHMENTS: Resolution
Project Budget Summary
Report Prepared By: Dayne Johnson, Assistant City Engineer 575
Resolution No. 24- Page 1 of 2 August 19, 2024

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

Allocating Additional Funds, Accepting )
The Plans and Specifications, And )
Awarding Project 5704- Central ) RESOLUTION NO. 24-
Harbor Park and Boat Launch Facilities )
WHEREAS, Project 5704-Central Harbor Park and Boat Launch Facilities (the “Project”), is for the improvement of the City of Pittsburg Boat Launch Ramp, Central Harbor Park, nearby parking lots, and surrounding areas; and WHEREAS, on March 20, 2023, by Resolution 23-14259, City Council authorized an application for a Climate, Access and Restoration (CAR) 22 Grant and received $3,544,395 to implement the Project; and
WHEREAS, on June 24, 2024, staff advertised the Project for bids; and WHEREAS, on July 30, 2024, six (6) bids for construction of the Project were received; and
WHEREAS, NTK Construction, Inc. was ranked as the most responsive, responsible bidder based on the selection criteria with a base bid in the amount of $2,755,035.05; and
WHEREAS, staff recommends that the City Council allocate $400,000 from US EPA Grant (Fund 541), $100,000 from Waterfront (Fund 540), $100,000 from Solid Waste (Fund 210) to the Project; and
WHEREAS, staff recommends that the City Council accept the plans and specifications; and
WHEREAS, staff recommends that the City Council award a construction contract with NTK Construction, Inc. for the Base Bid of $2,755,035.05, Bid Alternative 1 of $30,299, and Bid Alternative 3 of $100,000 for a total amount of $2,885,334.05 for the Project; and
WHEREAS, staff recommends establishing a contingency in an amount of $288,533 for unanticipated costs and contract change orders; and WHEREAS, staff further recommends that the City Engineer be authorized to approve contract change orders in an amount not to exceed 50% of the construction contingency, and the City Manager be authorized to approve change orders in an amount not to exceed the approved Project budget.
576
Resolution No. 24- Page 2 of 2 August 19, 2024 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby accepts the plans and specifications, awards a construction contract with NTK Construction, Inc. for the Base Bid of $2,755,035.05 and Bid Alternative 1 of $30,299 and Bid Alternative 3 of $100,000 for a total amount of $2,885,334.05, authorizes a construction contingency in the amount of $288,533, authorizes the City Engineer to approve contract change orders in an amount not to exceed 50% of the contingency, and authorizes the City Manager to approve change orders for an amount not to exceed the approved Project budget.

BE IT FURTHER RESOLVED, that the City Council of the City of Pittsburg allocates an additional funding amount of $600,000 to the Project as follows: $400,000 from US EPA Grant (Fund 541), $100,000 from Waterfront (Fund 540), and $100,000 from Solid Waste (Fund 210).

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 19th day of August 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:

_____________________________
Juan Antonio Banales, Mayor
ATTEST:
_______________________________
Alice E. Evenson, City Clerk
577
Central Harbor Park and Boat Launch Facilities
Project 5704
Date: August 2024
Project Funding:
$3,544,395
US EPA Grant (Fund 541) $400,000
Waterfront (Fund 540) $100,000
Solid Waste (Fund 210) $100,000
Funding Total $4,144,395
Project Expenditures:

Miscellaneous: Misc. Services & Supplies $5,000
(Code 1399) Subtotal $5,000
Advertising: Advertising $2,500
(Code 2203) Subtotal $2,500
Construction: Construction $2,885,334
(Code 2281) Construction Contingency (10%) $288,533
Construction Support $125,008
Material Testing $40,000
Permitting $95,000
City Furnished Substation Modular $86,500
City Furnished Restrooms $536,500
Subtotal $4,056,875
Staff Time: Staff $40,000
(Code 1101) Subtotal $40,000
Admin: Admin Overhead $40,000
(Code 2372) Subtotal $40,000
Expenditures Total $4,144,375

PROJECT BUDGET SUMMARY
Climate Access and Restoration Grant (CAR 22 Grant)
578

OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of a City Council Resolution to Renew and Execute and Agreement with The 100 Companies LLC for the East Bay 100 MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
On May 6, 2019, the City Council approved a five year agreement with The 100 Companies LLC for a digital media platform that came to be called 'The East Bay 100'. This platform provides the City with an opportunity to create and share content as it pertains to the economic development news and events in Pittsburg and the greater region. Throughout the lifetime of the contract, the City has utilized this resource to share content to a targeted regional database of Contra Costa and Alameda County business professionals and has seen a steady growth in engagement of the newsletter content. Staff believes that this can continue to be a valuable resource to outreach and promote our City and surrounding region to a greater audience. Staff is seeking approval to renew the City's agreement, by resolution, with The 100 Companies LLC for an additional five years to continue exclusive partnership in the publishing of The East Bay 100 newsletter.

FISCAL IMPACT
The agreement is for five years for a total of $187,443 over the lifespan of the contract.

Those costs include the annual membership fees, plus a $1,000 per month fee for content production. The agreement allows for the City to publish up to 24 issues of The East Bay 100 Newsletter per year. The total amount of the agreement will be funded by the Economic Development fund (Fund 202).

RECOMMENDATION
By Resolution, approve the renewal of the membership agreement with The 100 Companies LLC and authorize the City Manager to complete any additional tasks required to carry out the obligations of the Resolution and execute additional documents as may be necessary. 579

BACKGROUND
On May 6th, 2019, the City entered into an agreement with The 100 Companies LLC to develop and publish a digital media platform called “The East Bay 100”. This built off the momentum at the time to market the City of Pittsburg to potential businesses, industries, and site selectors. The content marketing platforms for The 100 Companies LLC all together reach 500,000 worldwide subscribers. They provide users with the opportunity to create marketing content on a wide variety of topics, no longer than 100 words per article or 100 seconds per video. This gives the users the opportunity to easily engage with interesting content and for the City to augment its digital presence across the region. The City brought this platform and territorial rights for Contra Costa and Alameda Counties for the purpose of marketing the business and industrial community in the East Bay, with the goal of bring in other cities in the East Bay region to provide content that promotes business and industrial activity across the region. The 100 Companies LLC compiled an initial database of 20,000 contacts in Contra Costa and Alameda Counties that met the following criteria:
• Profiles are ages 35 to 65 with college degrees
• Profiles are managers, directors, VPs and C-Levels
• Company sizes are 5 or more employees
The newsletter is also available for local subscription by users through a simple sign-up form.

SUBCOMMITTEE FINDINGS
This item was not presented to a subcommittee.

STAFF ANALYSIS
Staff conducted analysis in coordination with The 100 Companies LLC to assess if the newsletter experienced growth and engagement over the lifespan of the initial agreement.

Analysis of the figures shows that over the five-year period of the agreement, there was consistent growth in key metrics such as average emails opened per campaign, average open rates, and opener click-through rates. This growth occurred despite differing amounts of email campaigns sent out annually during the lifespan of the initial agreement. These figures show that subscribers were consistently more and more engaged with the content, which in turn provides more exposure for the City of Pittsburg and the greater regional market. Staff came to the recommendation that it would like to continue to build off this momentum and continue to use The East Bay 100 as a tool to market and promote our economic region. With this renewal, staff is also making the commitment to ensuring that the content remains expanded to promote the greater East Bay region as well. Staff intends to achieve this goal by both making efforts to search for news content across the region, and to reach out to other cities across the region asking for content to be considered for placement in The East Bay 100 newsletter.

ATTACHMENTS: Attachment A – Resolution Approving the Renewal of Agreement with The 100 Companies LLC
Attachment B – Agreement with The 100 Companies LLC
Report Prepared By: Robert Carrera, Economic Development Manager 580

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

Adoption of a City Council Resolution to Authorize )
And Execute a Renewal Agreement with the 100 ) RESOLUTION NO. 24- Companies LLC for The East Bay 100 )
WHEREAS, the City of Pittsburg sought innovative and engaging ways to market to potential businesses, industries, and site selectors; and WHEREAS, on May 6, 2019, the City signed a five-year agreement with The 100 Companies LLC to create the regional, digital media platform ‘The East Bay 100’; and WHEREAS, over the five-year period of the initial agreement, the City and The 100 Companies LLC worked to create and publish email campaigns and content that promoted the economic vitality of the City and the greater East Bay region; and WHEREAS, data over the five-year period shows that there was consistent growth in key metrics that pertain to the engagement with the content of The East Bay 100 newsletter; and
WHEREAS, the City has come to the conclusion that based on the data and its continued goals to market and promote the City and greater region, it would like to continue the momentum in growth that it has experienced in its partnership with The 100 Companies LLC.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby approves a five-year agreement with The 100 Companies LLC for a total of $187,443 to continue the digital media platform ‘The East Bay 100’.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 19th day of August 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_____________________________
Juan Antonio Banales, Mayor
ATTEST:
_______________________
Alice E. Evenson, City Clerk
581

Membership Agreement

This Membership Agreement (together with all exhibits, the “Agreement”) is by and between The 100 Companies LLC (“THE 100”) and the following:

Member: City of Pittsburg (“Member”)

Effective Date: July 1, 2024 (“Effective Date”)

Protected Territory: (check one)
☒ Protected Geography Issues per Year: 12-24

Describe: Contra Costa County, CA (the “Protected Territory”).

The term Member shall include any entity which, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with Member, including without limitation, any newly formed entity to conduct the Local Business. THE 100 and Member are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.” All of the terms and conditions set forth herein, including those contained in the attached Terms and Conditions, attach ed hereto as Exhibit A (the “Terms”) and the Operations Document, attached hereto as Exhibit B (the “Document”), are hereby incorporated by reference and made a part of the Agreement, binding and enforceable between the Parties as of the Effective Date. In case of conflict or inconsistency, the terms of the Agreement shall govern. Capitalized terms used but not otherwise defined in the Agreement shall have the same meanings ascribed to them in the Terms.

WHEREAS, THE 100 developed and manages a network of member entities and individuals, as indicated on Exhibit C (and others as may be added or removed by THE 100 from time to time in its sole discretion without notice) (collectively, the “Members” or the “Membership”), that publishes and circulates electronic newsletters, websites and social media channels (the “Content”) comprised of 100 - word stories and 100 -second videos about news, trends, strategies, interviews and events (the “Format”), using THE 100’s Marks and Methods (the “Business”);

WHEREAS, Member desires to become a member of THE 100 and operate a local franchise of the Business within the Protected Territory (the “Local Business”), and THE 100 desires to grant Member a license to operate the Local Business;

NOW, THEREFORE, in consideration of the mutual covenants and promises of the Parties and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:

A. Name. The Business will be named The East Bay 100.

B. License. Subject to the terms and conditions of the Agreement, including without limitation Section 5 of the Terms, THE 100 hereby grants to Member a non - exclusive license to use the Marks and Methods for the sole purpose of operating the Local Business in accordance with the Agreement and the Document.

C. Exclusive in Protected Territory. Subject to Section 4, provided that Member is in full compliance with the Agreement, during the Term THE 100 shall not grant another party rights, within the Protected Territory to: (i) operate a competing Local Business using the Marks, Methods or Format s (the “Licensed Property”), or (ii) publish content substantially similar to the Business .

D. Fees. Member shall pay the following fees (“Membership Fees”) during the applicable term, plus a $1,000 per month fee for content production, if preferred :

Period Amount
Initial Term Membership Fee: $24,000
Year 2 Membership Fee $24,000
Year 3 Membership Fee $25,200
Year 4 Membership Fee $26,460
Year 5 Membership Fee $27,783

E. Term. The Agreement is for an initial, non -cancelable term of twelve (12) months from the Effective Date (the “Initial Term”) and shall automatically renew for successive one (1) year periods (each an “Extension”), (together, the “Term”), unless either party pr ovides the other party written notice of its desire to terminate at least ninety (90) days prior to the end of the then -current Term.

F. Email Lists. THE100 developed an existing database of email addresses (the “Email List”) to receive the electronic newsletter (the “Local Newsletter”) within the Protected Territory, which may be supplemented by additional subscribers to the Local Newsletter or the Lo cal Business’ website (the “Local Website”). The Member may supplement additional jointly developed lists to the current database if desired at the cost of The Member. The Email List shall be owned and administered by THE 100 and THE 100 gra nts Member a non -exclusive, royalty free license to use the Email List during the Term. Email addresses provided by Member of its own clients or contacts contained within the Email List shall remain owned by Member, subject to THE100’s license rights in Section 3(f) of the Terms.

G. Copyrights. Subject to Section 6 of the Terms, Member shall create, develop, publish, and circulate articles using THE 100’s Format that are related to the Protected Territory (“Local Content”). Any present or future rights, including all copyrights, relating to the Local Website, Local Newsletter, Local Content and any other content created by THE 100 or Member for the Local Business belong solely and exclusively to THE 100 and Member hereby transfers and assigns any such rights to THE 100. Notwithstanding the foregoing, Member may repurpose its own Local Content elsewhere during the Term so long as Member does not represent that such material is original.

H. Miscellaneous. The Agreement and any Exhibits herein set forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of any kind, and every nature between them. The A greement may not be modified or amended except in a writing signed by a duly authorized representative of each Party; no other act, document, usage or custom shall be deemed to amend or modify the Agreement. The Agreement shall be interpreted and enforced in accordance with the laws of the State of Georgia, without regard to principles of conflicts of law.

Any claim or controversy that arises out of or relates to the Agreement, other than for Member’s non-payment, will be settled by arbitration in Atlanta, Georgia, in accordance with the American Arbitration Association rules and each Party hereby consents to jurisdiction in Atlanta Georgia. Judgment upon the award rendered may be entered in Cobb County Superior Court. Each Party waives any objection which it may have to venue of any such arbitration proceeding and agrees that Georgia is the most convenient forum for any such arbitration, suit, action, or legal proceeding.

Claims regarding unpaid accounts may be referred to a collection agency or attorney for collection and may be brought in state or Federal courts located within Cobb County, Georgia. All costs of collection, including reasonable attorney fees, shall be paid by Member to THE 100 in addition to all other amounts due.

MEMBER INFORMATION: BILLING INFORMATION (if different from Member Information ) Company Name: City of Pittsburg
Address: 65 Civic Avenue Address:

Contact: Robert Carrera Contact:

E-mail Address: [email protected] E-mail Address:

IN WITNESS HEREOF, the Parties hereto have caused this Membership Agreement to be executed and delivered as of the Effective Date indicated abov e.

THE 100 COMPANIES, LLC MEMBER
By: By:

Name: Name:

Title: Title:

Date: Date:
582

Page 2 of 5 ends

Exhibit A
Terms and Conditions

This Exhibit A is an integral part of the Membership Agreement (the “Agreement”) by and between THE 100 and Member and is incorporated by reference into the Agreement. In case of conflict or inconsistency, the terms of the Agreement shall govern over this Exhibit A. Capitalized terms used but not otherwise defined in this Exhibit A shall have the same meanings ascribed to them in the Agreement.

1. Purpose. The purpose of the Local Business is to create, develop, publish, and deliver to recipients in accordance with the Document, the electronic Local Newsletter, Local Website and social media channels comprised of a combination of 9 -12 100- word stories and 10 0-second videos about news, trends, lifestyle and events issues in the Protected Territory created, developed, and submitted by the Members and THE 100 in accordance with the Document.

2. Membership Fees. THE 100 will invoice Member, via email, on or about the 15th day prior to each applicable month. Member will pay all fees payable under the Agreement within fifteen (15) days of the invoice date. If Member fails to pay any amounts when due under the Agreement, Member shall pay to THE 100 interest on such past due a mounts from the date due until paid at the rate of one and one half percent (1 ½%) of the unpaid balance per month or, where a lower rate is prescribed by law, the highest rate the reby permitted. In the event of such nonpayment, subject to Member’s five (5) business day right to cure, THE 100 may at its option and in addition to any other right that it has under the Agreement at law or in equity, terminate the Agreement.

3. Early Termination.

a. Mutual Termination for Breach. Notwithstanding Section E of the Agreement, either Party may terminate the Agreement immediately upon providing written notice thereof to the other party, if the other party materially breaches the Agreement or the Document and fails to cure such breach within thirty (30) days after receiving written notice from the non - breaching Party (except that the cure period shall be five (5) calendar days with respect to any breach involving failure by Member to pay amounts due and payable under the terms of the Agreement.

b. Bankruptcy or Insolvency. Notwithstanding Section 3(a), THE 100 may terminate the Agreement immediately if Member: (A) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law; (B) becomes subject to any involuntary proceeding or petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquid ation or similar law, which proceeding or petition is not stayed or dismissed within ninety (90) days after commencement or filing; (C) applies for, or consents to, the appointment of a receiver, trustee, custodian, sequestrator, or similar official for such Party or for a substantial part of its property or assets; (D) makes a general assignment for the benefit of creditors; (E) takes corporate action for the purpose of effecting any of the foregoing; or (F) liquidates, winds up, or ceases its business ope rations, for any reason.

c. No Refunds; Acceleration of Fees . If Member breaches the Agreement, there shall be no refund, in whole or in part, of any payments already made, and Member shall make all payments due prior to the date of termination.

Member acknowledges that THE 100 will make significant investments of time and money in Member throughout the duration of the Agreement to meet the needs of Member and which are not charged directly to Member but are recouped in fees paid during the Agreement. Accordingly, in the event that the Agreement is terminated prior to the end of the Term due to Member’s breach, Member shall pay a fee for termination (“Termination Fee”) equal to the average monthly Membership Fee prior to termination multiplied by the number of remaining months in the T erm or six (6) months, whichever is longer. The Termination Fee shall be liquidated damages, a non -exclusive remedy, and not a penalty. THE 100 shall be entitled to recover any costs of collection, including reasonable attorney’s fees and costs, incurred i n collection of the Termination Fee. Member acknowledges that Member shall have no right to withhold any payment due as a set off against claims against THE 100 and hereby waives any such claim as a defense to termination by THE 100.

d. Rights Terminated . Upon termination of the Agreement pursuant to this Section 3, (i) the rights granted to Member hereunder shall immediately terminate, (ii) Member shall immediately take all action required to cancel all assumed names, corporate names or equivalents relating to the use of the Marks by Member, and (iii) Member shall not, directly or indirectly, in any manner, identify itself or any individual connected with it as “THE 100” or as otherwise having been associated with THE 100. Member acknowle dges that Member’s failure to abide by the provisions of this Section 3(d) will result in irreparable harm to THE 100, and that THE 100’s remedy at law for damages will be inadequate. Accordingly, THE 100 shall be entitled to injunctive relief (including the remedy of specific performance) in addition to any other remedies available at law or in equity, without posting any bond.

e. Other Remedies. Termination of the Agreement shall be in addition to any other right or remedy which the terminating party may have either at law or in equity or under the Agreement. The right of termination granted hereby is in addition to, and not in lieu of, any and all other rights and remedies available to each party at law, in equity or otherwise, all of which are cumulative.

f. Rights to Protected Territory . Upon expiration or termination of the Agreement, THE 100 shall, in its sole discretion, be entitled to: (i) operate the Local Business within the Protected Territory using the Licensed Property and the Email List, or (ii) grant to any third -party rights to operate the Local Business within the Protected Territory using the Licensed Property and Email List.

4. Protected Territory.

a. Location Selection and Protection. Member is solely responsible to independently assess the geographic location and size of the Protected Territory. Nothing contained in the Agreement shall constitute a representation or warranty of any kind as to the appropriateness of and the potential s uccess or profitability of the Local Business in the Protected Territory.

b. Types. Members have either protected geographic territories, which may vary in size from a city, state or other geographic area (each, a “Protected Geography”) or protected subject matter issues (each, a “Protected Field”) which may overlap with a Protected Geo graphy (Protected Geographies and Protected Fields are referred to collectively as “Protected Territories”), and Members are prohibited from actively soliciting subscribers or advertisers outside of their respective Protected Territories. THE 100 has granted licenses and intends to grant additional licenses in the future to new Members outside of Member’s Protected Geography or Protected Field, as applicable.

c. Protected Fields . To the extent that Member is granted a Protected Field, the exclusivity granted in Section C of the Agreement shall not be construed as an absolute ban prohibiting THE 100 or other Members from publishing any content related to the subject matter of the Protected Field whatsoever. THE 100 and other Members may occasionally publish content relating to the Protected Field, provided that it is de minimis (less than 10% of all content published over a one - year period). Members with Protected F ields acknowledge that they have no exclusive rights to any geographic territory

d. Protected Geographies . To the extent that Member is granted a Protected Geography, the exclusivity granted in Section C of the Agreement shall not be construed as an absolute ban prohibiting Members with Protected Fields from publishing content related to Member’s Protected Ge ography, from circulating its newsletter to recipients within Member’s Protected Geography, or from promoting its website or soliciting subscribers from within Member’s Protected Geography. Members with Protected Geographies acknowledg e that they have no exclusive rights to any specific subject matter.

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e. Reservation of Rights.

i. Except as expressly limited by Section C, THE 100 retains all rights with respect to the Marks, Methods, Formats, all content, social media, Internet, industries, subject matter, and geographic territories and any other products, services, communications o r content, anywhere in the world, including, without limitation, the right, and the right to grant others licenses, to create, develop, publish, circulate, commercialize, exploit, market or otherwise disseminate any content or provide any product or service outside of a Protected Territory through any channel, whether or not using the Marks.

ii. THE 100 reserves all rights to operate or grant others the right to operate other Protected Geographies and other Protected Fields as THE 100 in its sole discretion, deems appropriate.

iii. Member shall not attempt to exclude, control, or impose conditions on: (1) the location in which THE 100 or its Members (current and future) operate, (2) the development of other licenses using the Marks, Methods or Formats, or (3) any other products, services, activities, communications or content of THE 100, except for those that may result in a direct breach of the Agreement.

5. License.

a. No Ownership . The non- exclusive license provided in Section B does not grant to Member any ownership interest in the Licensed Property. Member acknowledges and agrees that THE 100 owns all right, title, and interest in the Licensed Property and Member shall not contes t, directly or indirectly, THE 100’s ownership, title, right or interest in or to, or the validity of, the Marks, or any trade secrets, methods or procedures that are part of the Methods or any copyrights, or contest THE 100’s sole right to reg ister, use or license others to use the Marks, copyrights, trade secrets, methods or procedures or any other mark or name which incorporates the words “The 100” or any similar words. Any copy, modification, revision, enhancement, adaptation, translation, o r derivative work of or created from the Licensed Property made by or at the direction of Member shall be owned solely and exclusively by THE 100. In addition, all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights, worldwide, in the same shall be owned solely and exclusively by THE 100.

b. Use; Cooperation . Member shall use the Marks only for the operation of the Local Business. Member shall comply, at THE 100’s reasonable expense, with THE 100’s instructions in filing and maintaining trade name or fictitious name registrations and shall execute all documents required by THE 100 to obtain protection for the Marks or to maintain their continued validity and enforceability. All provisions of the Agreement applicable to the Marks shall apply to any other trade names, trademarks, service marks or other commercial symbols licensed to Member by THE 100.

c. Termination. Upon the expiration or termination of the Agreement for any reason, all rights of Member to use the Marks shall automatically revert to THE 100 without cost and without the execution or delivery of any document. Upon THE 100’s request, Member shall execu te all documents required by THE 100 to confirm such reversion.

6. Member Responsibilities.

a. Operations Document . Member agrees to abide by the rules, procedures, standards, specifications, and requirements described in the Document.

Member acknowledges that before Member executed the Agreement, THE 100 provided Member with sufficient time to (i) review the Document and Member has reviewed the Document, and (ii) consult with Member’s own counsel about the Document.

b. Amendment of Document . If at least 14 days before the effective date of an amendment, modification, or change to the Document, THE 100 (i) notifies Member in writing of its intent to amend, modify, or change the Document and the effective date thereof and (ii) provides to Memb er copies of the same, then that amendment, modification, or change to the Document, will become effective on the effective date specified therein.

c. Copyrights. Subject to Section G, THE 100 shall have, and Member hereby irrevocably assigns and quitclaims to THE 100 the exclusive right, in THE 100’s sole discretion, to bring an action for infringement of copyrights in any copyrightable property of THE 100. All r ights to the Local Business, Local Website, Local Newsletter, Local Content and any other Content are hereby transferred and assigned to THE 100 and THE 100 grants to Member and Member accepts a non-exclusive, royalty-free license for the life of such copyrights transferred and assigned to THE 100 relating to the Local Business, Local Website, Local Newsletter, Local Content and other Content for purpose of all activities allowed or authorized by 17 USCS Sec. 106, et seq. THE 100 shall have the so le and exclusive right to prosecute, settle or compromise any and all actions for infringement of any and all copyrights, and THE 100 shall be entitled to retain any and all proceeds, damages and other sums, including attorneys’ fees, recovered by or owed to THE 100 or its respective affiliates by reason of or in connection with any such infringement or action for infringement. Registration and other protection of copyrights, if any, shall be in the sole and absolute discretion of THE 100, and at THE 100’s expense. Member shall execute and deliver to THE 100, its respective successors and assigns, any assignments, documents and instruments as THE 100 may reasonably request from time to time for the purposes of establishing, registering, evidencing, enforcing or defending THE 100’s complete, exclusive, perpetual and worldwide ownership of all rights, titles and interests in THE 100’s copyrights. If THE 100 decides, in its reasonable discretion, that Member should modify or discontinue using any of THE 100’s copyrights, Member shall do so, provided that the parties shall use their reasonable efforts to discuss and agree upon any such proposed modification or discontinuance.

d. Proprietary Information. Member acknowledges that at any time before or during the term of the Agreement, THE 100 may disclose to Member, either orally or in writing, certain trade secrets, know -how and confidential information (collectively, “Proprietary Information”) relating to the management, operation, financial condition, business plans, strategies; marketing or promotion of the Local Business. Without limiting the generality of the foregoing, Proprietary Information shall also include (1) Methods, te chniques, equipment, specifications, standards, policies, procedures, information, concepts and systems relating to and knowledge of and experience in the development, operation and licensing of the Local Business, and (2) the Document. Proprietary Information does not include information general known to the public, or in the public domain at no fault of the Member or developed or created by the Member. Member shall not, nor shall Member permit any unauthorized individual or entity to, use or disclose any Proprietary Information to any other unauthorized individual or entity; provided, however, that Member may use and disclose Proprietary Information to the extent necessary for Member’s employees and independent contractors to perform their functions in the operation of the Local Business. Member shall take reasonable precautions to protect Proprietary Information from unauthorized use or disclosure, including without limitation conducting orientation and training programs for Member’s employees and independ ent contractors to inform such employees of Member’s obligation to protect all Proprietary Information from unauthorized use or disclosure, and such employees’ responsibilities and obligations therefor. Member shall be liable to THE 100 for all unlawful disclosures of Proprietary Information by any individual or entity to whom Member has directly or indirectly disclosed such information.

7. Representations and Warranties .

a. By Member. Member represents, warrants and agrees as follows:

i. The Agreement has been duly authorized and executed by or on behalf of Member and constitutes the valid and binding obligation of Member, enforceable in accordance with its terms.
ii. Member has reviewed the Agreement and has had sufficient time to consult with and ask questions of THE 100’s representatives and consult with Member’s own legal and other advisors about the potential risks and benefits of the Agreement.
iii. None of THE 100, its affiliates, officers, directors, managers, members, employees or agents has made any representation to Member about the anticipated revenues, earnings or profitability of the Local Business. In entering into the Agreement, the only inf ormation furnished by or on behalf of THE 100 on which Member is relying is contained herein. iv. Member shall devote adequate time and continuously exert its best efforts to operate, promote, and enhance the Local Business. 584

Page 4 of 5 ends

b. By THE 100 . THE 100 represents, warrants and agrees that the Agreement has been duly authorized and executed by or on behalf of THE 100 and constitutes the valid and binding obligation of THE 100, enforceable in accordance with its terms.

8. Restrictive Covenants.

a. Non-Competition. For purposes of this Agreement, “Competitive Publication” means publishing Content similar to or using a format similar to THE 100’s Format. For a continuous, uninterrupted period beginning immediately upon termination of this Agreement for any reason and continuing for two years thereafter, except as otherwise approved in writing by THE 100, Member shall not, directly or indirectly, for themselves or through, on behalf of, or in conjunction with any individual or entity:

i. own, have any record or beneficial interest in, manage, engage in, participate in or act as an agent for, whether as a director, officer, manager, employee, consultant, representative, instructor, advisory, coordinator, agent, or otherwise to any Competiti ve Publication;

ii. perform services as a director, officer, manager, employee, consultant, representative, instructor, advisory, coordinator, agent, or otherwise for any Competitive Publication;

iii. divert or attempt to divert any business or any customers to any Competitive Publication;

iv. communicate, divulge or use for its benefit or the benefit of any other person or entity, any trade secrets or other Proprietary Information.

v. perform any other act injurious or prejudicial to the goodwill associated with the Marks and THE 100’s system;

vi. without THE 100’s prior written consent, solicit for employment or as an independent contractor any person who is at that time or was at any time within the immediate past 36 months employed by THE 100, Member, another licensed or any of their respective a ffiliates. Likewise, THE 100 shall not directly or indirectly hire any of the Member’s employees without Member’s prior written consent within 36 months of the expiration or termination of this Agreement.

Nothing contained in this Section 8(a) shall be construed to prohibit Member from operating its current business (which includes emailed and online news) or from normal and customary business operations of a marketing and social media firm, including its p osting of email and online news and entertainment content.

b. Non-Disparagement. For the duration of this Agreement and for two years after its termination for any reason, Member shall not damage or destroy the goodwill and esteem of THE 100, or impair or interfere with the relationships of THE 100 with any of its members, instructor s, employees, customers, and any individuals or entities that may have or have had business relations with THE 100.

c. Scope. Member acknowledges that (1) the time, location, and scope of the provisions of this Section 8 are reasonable and necessary to protect THE 100’s legitimate business interests, (2) Member has received sufficient and valid consideration in exchange for the same, (3) enforcement of the same would not impose undue hardship on Member, and (4) the period of protection provided to THE 100 by this Section 8 will not be reduced by any period of time during which Member is in violation of the provisions of thi s Section 8 or any period of time required for enforcement of this Section 8.

d. Blue Pencil. If any part or parts of this Section 8 is held to be unenforceable or invalid, the parties desire that a court of competent jurisdiction modify those provisions to the extent necessary to cause those provisions to be reasonable, enforceable, and valid and, in the alternative, that the court should sever the remaining parts thereof so that they will continue to be valid and enforceable as though the invalid portion or portions were not a part hereof.

If any of the provisions of this Section 8 relating to the periods or geographic area of restriction shall be deemed to exceed the maximum periods of time or area which a court of competent jurisdiction would deem enforceable, the times and area shall, for the purposes of this Section 8, be deemed to be the maximum time periods and area which a court of competent jurisdiction would deem valid and enforceable in any state in which such court of competent jurisdiction shall be convene d.

e. Violation. Member acknowledges that the existence of any claim it may have against THE 100, whether or not arising from this Agreement, is not a defense to the enforcement this Section 8. The Parties acknowledge that compliance with the provisions of the foregoing paragraphs are necessary to protect their businesses and goodwill and that any actual or prospective breach will irreparably cause damage to them, for which money damages may not be adequate. Therefore, the Parties agree that if Member breaches, o r attempts to breach, the obligations set forth herein, THE 100 shall be entitled to obtain temporary, preliminary and/or permanent equitable relief, without bond, to restrain such breach, together with any and all other legal and equitable remedies available under applicable law or as set forth herein.

9. Limitation of Liability. IN NO EVENT SHALL ANY PARTY BE

LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL,

SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT

LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA OR

COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN

CONNECTION WIT H ANY AGREEMENT BETWEEN THE PARTIES OR

SERVICES PROVIDED TO MEMBER UNDER ANY THEORY OF

LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN ADDITION, THE 100 SHALL ONLY BE LIABLE TO

MEMBER FOR ANY DIRECT DAMAGES IN AMOUNT EQUAL TO (A)
ACTUAL DAMAGES OR (B) $500, WHICHEVER IS LESS.

10. Disclaimer of Warranties. ALL RIGHTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE 100 EXPRESSLY DISCLAIMS

ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR

OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED

WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE, AND WARRANTIES AS TO ACCURACY, OR
COMPLETENESS.

11. Mutual Indemnification.

a. Indemnification. Each Party (each, an “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its affiliates, and their respective investors, officers, directors, managers, members, employees, contractors, successors, and assigns (“Indemni fied Parties”) from and against any and all losses, liabilities, costs, damages, claims, demands, judgments, proceedings, lawsuits, settlements, fines, fees, and penalties assessed by any governmental or regulatory authority, or expenses (including reasona ble attorneys' fees and expenses) (collectively, “Losses”) incurred by the Indemnified Party arising out of or related to any actual or alleged:

i. breach by the Indemnifying Party of any of its representations, warranties, covenants, or obligations under the Agreement or the Document;
ii. negligence, fraud, or willful misconduct on the part of the Indemnifying Party or its officers, directors, employees, agents, or representatives; or
iii. failure of the Indemnifying Party to comply with applicable law in the performance of its obligations related to the Agreement.

b. Member Indemnification . Without limiting the generality of Section 11(a), Member shall also indemnify, defend and hold harmless THE 100’s Indemnified Parties from and against any and all Losses arising out of or related to any actual or alleged:

i. any dispute between Member and its affiliated entities and their respective customers, vendors, employees, independent contractors or other third-parties;
ii. any act, omission or breach by Member or other person engaged on Member’s behalf related to the Local Business or arising as a result of Member’s operation of the Local Business, regardless of the reason or legal theory used to impose any such liability on any Indemnifying Party (including, without limitation, as a result of operation of law, application of any law, statute, regulations, court 585

Page 5 of 5 ends

or administrative decision, or other legal doctrine such as de facto partnership, de facto franchise, or successor liability); or iii. any infringement or misappropriation of THE 100’s Marks, Methods, Format, Content owned by THE 100, copyrights or other intellectual property rights.

c. Process. The foregoing indemnity obligation is contingent upon the Indemnified Party providing the Indemnifying Party prompt written notice of any matters in respect of which the foregoing indemnity may apply and of which the Indemnified Party has knowledge, and giving the Indemnifying Party the opportunity to control the response thereto and the defense thereof; provided, however, that the Indemnified Party shall have the right to participate in any legal proceeding to contest and defend a claim for indemn ification involving a third party and to be represented by its own attorneys, all at the Indemnified Party’s cost and expense; and provided further, however, that no settlement or compromise of an asserted third party claim may be made without the prior written consent of the Indemnified Party.

d. THE 100’s Intellectual Property . In the event that THE 100 believes that any intellectual property claims may be made or intellectual property claims are made which may materially impact Member or its rights to use content, THE 100 may, at THE 100’s option and at no additional cost to M ember, either: (i) procure for Member the right to continue using the affected content subject to such intellectual property claims; or (ii) replace or modify the affected content so that it is no longer subject to any such i ntellectual property claims. If THE 100 cannot, after exercising commercially reasonable efforts, perform under subsection (i) or (ii) of the previous sentence, Member must stop all publication using the affected content and THE 100 will, at its option, provide Member with replacement content. THE REMEDIES SET FORTH IN THIS SECTION 14(d) ESTABLISH THE 100’S ENTIRE

OBLIGATION IN REGARD TO INTELLECTUAL PROPERTY
CLAIMS.

12. Miscellaneous.

a. Survival of Representations . All representations, warranties, stipulations, covenants, and agreements made by each party shall survive the execution of this Agreement and the consummation of the transactions contemplated hereby.

b. Assignability. The Agreement may not be assigned by either party without the written consent of the other party.

c. Severability. Any provision of the Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof, and any unenforceability in any jurisdicti on shall not render unenforceable such provision in any other jurisdiction.

d. No Third -Party Beneficiary Right. Nothing in the Agreement, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.

IN WITNESS WHEREOF, each party is signing these Terms and Conditions as of the Effective Date.

THE 100 COMPANIES, LLC

____
Name:_________________________________________________________ Title: __________________________________________________________

MEMBER

____
Name:___ _____________________________________________________ Title: __________________________________________________________ Telephone No. __________________________________________________ 586

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 Applications for Various Funding Opportunities and Acceptance of Awarded Funds MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
In 2024, the Environmental Services Division is pursuing a variety of sustainable community funding opportunities ranging from zero emission fuels projects to climate resiliency projects. As required by each granting organization, adoption of this Resolution would authorize staff to apply for and receive any funds awarded for grant applications submitted in 2024.

FISCAL IMPACT
This item will have no impact on the General Fund. Approximate award ranges per funding opportunities are as follows:
• US Department of Transportation (USDOT) Charging and Fueling Infrastructure (CFI) Grant: $500,000 - $15,000,000
• California Transportation Commission’s Local Transportation Climate Adaptation Program (LTCAP) Grant: $50,000,000 maximum
• San Francisco Bay Restoration Authority (SFBRA) Measure AA Grant: $600,000 – $6,000,000
• United States Environmental Protection Agency (USEPA) Water Infrastructure Community Grant: $959,752
• California Ocean Protection Council (Council) Senate Bill 1 Technical Assistance (SB 1 TA) Program: $200,000 - $10,000,000
Future projects funded by grant funds received will be presented to the City Council when the projects are awarded.
587

RECOMMENDATION
Staff recommends that the City Council adopt the attached Resolution authorizing the applications for various funding opportunities in 2024 and acceptance of awarded funds.

BACKGROUND
Pittsburg’s waterfront infrastructure is aging and has endured significant weathering brought on by climate change and sea level rise. In 2021 and 2022 respectively, the City commissioned a Conditions Assessment Report of the City’s industrial wharf and a Marina Breakwater and Rip Rap Shore Protection Routine Above and Below Water Inspection Report (collectively referred to as the “Reports”) to determine condition and approximate cost of eventual waterfront infrastructure maintenance. The Reports concluded that the wharf would cost $8.7 million to repair and $21.3 million to replace while full repair of Marina breakwaters would cost at least $11.5 million. The City has pursued and received all permits required to begin repairs of Basin III breakwaters.

Hydrogen fuel, when used in fuel cells, is a zero-emission fuel and viable alternative to fossil fuels in the industrial sector. The City requested and was selected for a nearly $1 million federal earmark from the Interior, Environment, and Related Agencies Appropriations Act for Fiscal Year 2024 to establish a hydrogen fuel cell at the City’s Water Treatment Plant. The City must access this funding through the USEPA Water Infrastructure Community Grant program.

Hydrogen fuel is also a viable alternative to fossil fuels in the transportation sector, and some vehicle manufacturers like Honda, Hyundai, and Toyota produce consumer hydrogen vehicles.

SUBCOMMITTEE FINDINGS
This item was presented to the Finance Management Subcommittee August 16, 2024.

STAFF ANALYSIS
The Pittsburg Marina is an economic development driver, important local and regional recreational establishment, and part of Pittsburg’s identity. Annual Marina revenues grow slower than operational costs and are not sufficient for major capital costs like dock, shed, office, and breakwater repairs and replacements. Repairs and replacements of Marina infrastructure would foster climate resiliency related to sea level rise caused by global climate change. Building resiliency, especially in severely disadvantaged communities like the one adjacent to the Marina, is a tenet of the City’s Sustainability Plan.

Likewise, the City’s industrial wharf is an asset with potential to provide economic development or recreational benefits. As grantee of Pittsburg’s submerged sovereign tidelands through SB 551 statutes of 2011, the City is required to operate granted tidelands according to the Public Trust Doctrine and is allowed to generate revenues from tidelands for additional investment in the Pittsburg waterfront.
588
Staff has identified the LTCAP, SFBRA Measure AA, and Council SB 1 TA grants as potential funding opportunities to build climate resilient infrastructure and communities on the waterfront. The primary objective of California Transportation Commission’s LTCAP is to provide competitive grants to local agencies for the development and implementation of capital projects adapting local transportation infrastructure to climate changes, including port and marine transportation. The SFBRA’s Measure AA Grant prioritizes three areas including projects that improve recreational amenities that facilitate public access to the waterfront.

The Council SB 1 TA grants provide funding to local and regional governments for sea level rise planning and implementing adaptation projects to build resilience along the coast and shoreline of the San Francisco Bay.

Hydrogen fuel has the potential to decarbonize energy systems, contribute to energy security, and sustainably modernize the transportation and industrial sectors. Powering the Water Treatment Plant with a hydrogen fuel cell contributes to local emission reductions and provides financial protection to the Pittsburg community from skyrocketing energy rates.

Furthermore, the City’s Sustainability Plan aims to “increase zero-emission vehicle and equipment use by increasing passenger zero-emission vehicle adoption from 2.3% in 2010 to 15% by 2030 and 100% by 2045.” Providing public hydrogen fueling stations propel the City toward achievement of this goal and can also facilitate adoption of zero emissions vehicles in a financially impacted community like Pittsburg.

Staff has identified the USDOT CFI grant, which provides funding to strategically deploy publicly accessible electric vehicle charging infrastructure and other alternative fueling infrastructure, as potential funding opportunity for working toward Pittsburg Sustainability Plan emissions reduction goals.

Should one of the abovementioned grants require a match by the City, staff will return to the City Council with a recommendation for source funds and authorization.

ATTACHMENTS: Resolution
Report Prepared By: Sara Bellafronte, Assistant to the City Manager 589

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

Authorizing the Applications for Various )
Funding Opportunities and Acceptance of ) RESOLUTION NO. 24- Awarded Funds )
WHEREAS, in 2024 the Environmental Services Division is pursuing a variety of sustainable community funding opportunities ranging from zero emission fuels projects to climate resiliency projects; and
WHEREAS, potential funding opportunities include but are not limited to: 1) the United States Department of Transportation (USDOT) Charging and Fueling Infrastructure (CFI) Grant, 2) the California Transportation Commission’s Local Transportation Climate Adaptation Program (LTCAP) Grant, 3) the San Francisco Bay Restoration Authority (SFBRA) Measure AA Grant, 4) the United States Environmental Protection Agency (USEPA) Water Infrastructure Community Grant, and 5) the California Ocean Protection Council (Council) Senate Bill 1 Technical Assistance (SB 1 TA) Program; and WHEREAS, each of the potential funding opportunities align with the City’s Sustainability Plan for achieving local climate resiliency or emissions reductions.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Pittsburg hereby authorizes the applications for various funding sources in 2024 including the DOT CFI Grant, the California Transportation Commission’s LTCAP Grant, the SFBRA Measure AA Grant, the USEPA Water Infrastructure Community Grant, and the Council SB 1 TA Program.

BE IT FURTHER RESOLVED that the City Council authorizes staff to submit for each grant and if a matching amount is required from the City, it will return to the City Council for authorization.

BE IT FURTHER RESOLVED that the City Council authorizes the City Manager or his designee to execute all necessary forms for the purposes of securing payments, implementing and carrying out the purpose of the grants, and authorizes the Director of Finance to receive all awarded grants funds for the purpose of administering each program.

PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 19th day of August 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
_____________________________
Juan Antonio Banales, Mayor
ATTEST:
___________________________
Alice E. Evenson, City Clerk
590

OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor and Council Members
FROM: Garrett Evans, City Manager
SUBJECT: Adoption of a City Council Resolution to Approve a Lease Agreement by and between the City of Pittsburg and Taco & Company, LLC MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
The City proposes to enter into a Lease Agreement (Agreement) with Taco & Company, LLC 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 September 1, 2024 and expiring on August 31, 2029 (Initial Term). The monthly lease payment will be One Thousand Dollars ($1,000) per month, commencing October 1, 2024, and will increase by 3% annually starting in Year

2. Additionally, the tenant will be responsible for paying the common area maintenance costs (CAM), which is currently estimated at Forty-Three Dollars ($43) per month.

Tenant shall have one (1) five (5) year option to extend the lease. If the option to extend is exercised, rent will be set at the market rate as determined by a reasonable method selected by the City Manager.

RECOMMENDATION
City Council adopt the Resolution approving the Lease Agreement with Taco & Company, LLC.

BACKGROUND
The Pittsburg Public Library is located at 80 Power Avenue, Assessor’s Parcel Number 086- 100-042 (Property). Within the Property is a 1,280 square feet of leasable interior space and an additional 910 square feet of outdoor dining area with an address of 1005 Center Drive. 591
On January 22, 2019, the City Council adopted Resolution 19-13588, authorizing the City Manager to execute a Lease Agreement with Rocky’s Deli, LLC. The proprietor of Rocky’s Deli, LLC subsequently subleased the Premises to Taco & Company, LLC. The lease with Rocky’s Deli, LLC expired on March 31, 2024.

During the term of the sublease, Taco & Company, LLC has proven to be a valued operator, contributing to the local community. Given the successful tenure of Taco & Company, LLC under the sublease arrangement, the City is providing Taco & Company LLC an opportunity to lease directly from the City.

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

STAFF ANALYSIS
The Premises is located within the Civic Center, a close proximity to City Hall, the Pittsburg Unified School District Administration Building, Pittsburg Library, Richard E. Arnason Justice Center, and the soon-to-open Courtyard by Marriott Hotel, making the restaurant a prime location within walking distance to the City and school district employees, jurors, library patrons and hotel guest.

The recent opening of the Starbucks café further enhanced the appeal of this Premises. The Starbucks café and Courtyard by Marriott Hotel are anticipated to significantly increase foot traffic in the area, presenting an opportunity for the restaurant to attract new customers and expand its business.

Taco & Company, LLC has become a popular dining option within the community, attracting a steady stream of customers and contributing positively to the local economy.

By directly leasing to Taco & Company, LLC, the City will benefit from simplified property management arrangement and ability to maintain a direct relationship with the tenant. This will ensure clearer communication and more efficient resolution to any issues that may arise. The success of Taco & Company, LLC at this location underscores the potential for continued growth and community engagement, making it a valuable tenant for the City.

ATTACHMENTS: Resolution
Lease Agreement
Report Prepared By: Ishani Rasanayagam, Administrative Analyst II 592

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

Approving a Lease Agreement by and )
Between the City of Pittsburg and ) RESOLUTION NO. 24-
Taco & Company, LLC )
WHEREAS, the City of Pittsburg, a municipal corporation, owns certain real property located at 80 Power Avenue, Assessor’s Parcel Number 086-100-042 (Property). Within the Property is a 1,280 square feet of leasable interior space and an additional 910 square feet of outdoor dining area with an address of 1005 Center Drive (Premises); and WHEREAS, Rocky’s Deli, LLC, a California Limited Liability Company, entered into a lease agreement with the City in April 2019 to lease the Premises for operating a restaurant and who then subsequently leased the Premises to Taco & Company, LLC; and WHEREAS, the lease agreement with Rocky’s Deli, LLC was set for a period of five years and expired on March 31, 2024, thereby also terminating the sublease with Taco & Company, LLC; and
WHEREAS, Taco & Company, LLC has become a popular and convenient dining option for employees working for the City, Pittsburg Unified School District, and the Richard E. Arneson Justice Center, as well as jurors and visitors alike, all within walking distance; and,
WHEREAS, upon the expiration of the lease agreement with Rocky’s Deli, LLC, Taco & Company, LLC negotiated a lease agreement directly with the City; and WHEREAS, the proposed lease rate is One Thousand Dollars ($1,000) per month for the initial year, with an annual increase of 3% starting on September 1, 2025. Additionally, the tenant will be responsible for paying the common area maintenance costs, currently estimated at Forty-Three Dollars ($43) per month.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pittsburg hereby approves the lease agreement by and between the City and Taco & Company, LLC and authorize the City Manager to 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 19th day of August 2024 by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:

Juan Antonio Banales, Mayor
ATTEST:

Alice E. Evenson, City Clerk
593

LEASE AGREEMENT
By and between

THE CITY OF PITTSBURG
And

TACO & COMPANY
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 Taco & Company, LLC , a California limited liability company ("Tenant"). Landlord and Tenant are collectively referred to in this Agreement as the "Parties" .

1.1 1.2

1.3 1.4

1.5 1.6
Date of Execution
Tenant
Landlord
Premises

ARTICLE I

FUNDAMENTAL LEASE PROVISIONS
August 20, 2024
Taco & Co
8021 Crestview Drive
Pittsburg, CA 94565
City of Pittsburg, a municipal corporation
65 Civic Avenue
Pittsburg, CA 94565
The Premises will consist of one thousand two
hundred eighty (1,280) of indoor rentable square
feet at 1005 Center Drive located on a portion of
property with a situs address of 80 Power Avenue,
Assessor's Parcel Number 086-100-042. The
Premises shares the building where the Pittsburg
branch of the Contra Costa Library ("Library") is
located as shown in Exhibit A. The Premises
includes additional outdoor patio area ("Outdoor
Patio Area") with private access to a gate, as
detailed in Exhibit B, attached and incorporated
herein.

Tenant's Trade Name Taco & Company, LLC
Initial Lease Term The initial Term (as defined in Section 3.1) of

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1. 7 Rental Rate

1.8 Rent Commencement Date

1.9 Option to Extend

1.10 Parking

1.11 Security Deposit

1.12 Use

1.13 Assignment

1.14 Access

1.15 Tenant Maintenance

1.16 Broker Commissions
five (5) years shall commence upon September 1,
2024 as provided in Section 1.1 .

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

Rent will be at market rate as established by a
reasonable method selected by the City Manager if
the option to extend is exercised.

The obligation to pay rent shall occur on October
1, 2024.

Tenant shall have one (1) five (5) year option to
extend the lease.

Tenant shall be allowed use of public parking
stalls.

The Tenant shall pay Two Thousand Dollars
($2,000.00) security deposit.

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.

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 .

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.

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

Landlord and Tenant hereby represent that they

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have not engaged any real estate broker and no
commission or finder's fees are due.

1.17 Addresses for Notices and Payments

LANDLORD
City Manager
City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
TENANT
Israel Castro Cortez
Taco & Company, LLC
8021 Crestview Drive
Pittsburg, CA 94565
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 111- TERM

3.1 TERM. Subject to provisions of this Agreement, the term of this Agreement shall commence on September 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 to Extend (as defined in Section 3.2), if exercised, in accordance with the terms and provisions of Section 3.2.

3.2 OPTION TO EXTEND. 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. The Option Period would commence September 1, 2029 and expire August 31, 2034.

In the event that Tenant wishes to exercise the 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

1.7. 3.2.1 Rent during Option of Lease Extension Term. If Tenant elects to extend the Term in accordance with Section 3.2, rent for the first year of the Option Period will be fair market value as established by a reasonable method selected

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by the City Manager. Rent during the Option Period commences on September 1, 2029, increasing by three percent (3%) per annum during the Option Period.

ARTICLE IV - RENTAL

4.1 RENT COMMENCEMENT DATE. Tenant's obligation to pay rent commences on October 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, 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 Tenant.

4.2.1 PAYMENT OF UTILITIES. Landlord shall subscribe to and pay for only the removal of Waste 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 Waste removal service.

The cost of electricity, gas, internet, water, sewer, telephone services, and any other utilities are the Tenant's responsibility as described in Section 4.2.

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 rent payment by Tenant to Landlord 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 Page4of 27
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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 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 Landlord 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 Landlord. 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 October 1, 2024. The 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 2025-2026.

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 Landlord 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 Outdoor 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 permit any person or persons to use the Premises in any manner that will 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 the Premises, or 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) roof (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 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

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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 to perform such work 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 use the Premises for any unlawful purpose or perform or permit 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 or permit 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".

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,

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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 FAUL TS. 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. (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

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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 Hazarqous 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, 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,

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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 SETILEMENT WITH THE DEBTOR.

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

Tenant Initials

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

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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.

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

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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 from 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.

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.

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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 VI 11 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. (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

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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 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.

Not related to damage or destruction, City, in its sole discretion, may terminate this

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Agreement with at least 180 days' notice to Tenant. Tenant will not be entitled to relocation benefits. The City may, but is not obligated to, assist the Tenant in seeking a new location. No City funds will be expended in the efforts related to seeking a replacement location.

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 Tenant.

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;
(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;

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(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;
(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.

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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.

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

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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.

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.

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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 events that require the City Special Events permit.

14.3 MISCELLANEOUS.

14.3.1 SEVERABILITY. If any term or provision 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.

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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) electronic mail or 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 electronic mail or 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:

Tenant:

City of Pittsburg
65 Civic Avenue
Pittsburg, CA 94565
Attention : City Manager
Telephone: (925) 252-4850
Facsimile: (925) 252-4851
Taco & Company, LLC
8021 Crestview Drive
Pittsburg, CA 94565
Telephone: (925)-812-4858

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.

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14.3.5 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.

14.3.6 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.

14.3.7 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 between the Landlord and Tenant.

14.3.8 ENTIRE AGREEMENT. This Agreement, together with Exhibits A, 8 and C, 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, whether oral or written, are deemed to have been integrated into and superseded by this Agreement and are of no further force and effect except as expressly provided in this Agreement.

14.3.9 WAIVER; MODIFICATION. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties.

The City Manager, in his/her sole discretion, may make minor amendments to this Agreement. A minor amendment shall be any modification that does not make a substantive change, modification or deviation in the terms this Agreement or any Exhibits or Schedules attached hereto ("Minor Amendment"). Minor Amendments shall include, but are not limited to, the times for performance, square footage available for lease; changes in maintenance responsibilities, and improvements to the Premises.

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Minor Amendments may be approved by the prior written consent of the City Manager.

The City Manager's determination as to the status of any Minor Amendment is final.

The City Manager also may, at his/her discretion, determine that a Minor Amendment shall be reviewed and acted upon by the City Council and not by the City Manager. No provision of this Lease may be amended except by a mutual agreement in writing signed by the parties hereto or their respective successors in interest.

14.3.10 TIME IS OF THE ESSENCE. Time is of the essence of this Agreement and of each provision hereof.

14.3.11 COUNTERPARTS. This Agreement may be executed in one or more counterparts , each of which shall be an original and all of which together shall constitute one and the same instrument.

14.3.12 ACTION BY THE PARTIES. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City in its capacity as Landlord hereunder is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the City Council unless the City Manager determines in his or her discretion that such matter requires consideration by the City Council.

14.3.13 NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS. No member, official, employee or agent of the City shall be personally liable to Tenant or its successors in interest in the event of any default or breach by the City or for any amount which may become due to Tenant or the permitted successors in interest of Tenant pursuant to this Agreement.
[Signatures on Following Page]

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives in the City of Pittsburg, State of California, as of the date first written above.

LANDLORD, CITY OF PITTSBURG, a municipal corporation
By:

Garrett D. Evans, City Manager

APPROVED AS TO FORM
By:

Donna Mooney, City Attorney
Taco & Company, LLC.:i a Cal"fornia limited liability company By:

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I
.~
...
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Exhibit A
Building
,.,,. 1'
. . .. "' .~
/•
..

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Exhibit B
Premises
.......... - ~·--1 ~. ..
\
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Building - 10,476 sf
Space - 1,280 sf (12%)
Roof
Roof Repatch
Exterior Paint
Exhibit C
Building and Common Area Costs
Exterior Paint Touchup as Needed
Exterior Cleaning
Landscaping

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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 Execution of a Consulting Services Agreement with Chambers Group Inc. for contract Planning Services related to the Blue Planet Global Innovation Center Project.

MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
The proposed item would authorize the City Manager to execute a Consulting Services Agreement with Chambers Group Inc. in an amount not to exceed One Hundred and Sixteen Thousand, Seven Hundred and Eighty-Seven dollars and Eighty-Five cents ($116,787.85) for CEQA Consultant Fees and would allocate Seventy-Five Thousand, Three Hundred and Forty- Seven dollars ($75,347) for the consultant budget for contract planning services related to the Blue Planet Global Innovation Center Project located at 895 East 3rd Street.

FISCAL IMPACT
Staff is requesting the City Council allocate to the project review budget, the sum of $116,787.85 to cover consultant costs related to the processing of the proposed application.

The requested budget would cover the $75,347 cost for CEQA services by Chambers Group to prepare an Initial Study/Mitigated Negative Declaration (IS/MND), as well as $22,604.10 for the 30% City Environmental Review services fees in accordance with the City’s Master Fee Schedule effective January 1, 2024, and approximately $18,836.75 as 25% refundable contingency reserve funds.

Prior to execution of any consultant contracts, the developer, Blue Planet Systems, Inc. would be required to execute a reimbursement agreement with the City and provide funds to cover the base cost. As such, there is no fiscal impact to the City.

RECOMMENDATION
Staff recommends the City Council adopt the Resolution authorizing the City Manager to execute the Consulting Services Agreement with RCH Group, Planning & Environmental Consulting, Inc. for preparation of CEQA Analysis and related services for the Blue Planet Global Innovation Center Project.
621

BACKGROUND
San Francisco Bay Aggregates, LLC (SFBA) is a wholly owned subsidiary of Blue Planet Systems, Inc. (Blue Planet), a cleantech start-up company founded in 2012 by Brent R.

Constantz, Ph.D., and headquartered in Los Gatos, California. Blue Planet is developing technology, products and services related to economically sustainable carbon capture. The company created SFBA in 2017 with the intent to develop a project in Pittsburg to demonstrate its carbon capture and mineralization process, which uses carbon dioxide gas (CO2) and waste concrete as raw materials to produce ‘upcycled’ and carbon-sequestered rocks for use in fresh concrete. SFBA intends to sell these rock products to Bay Area businesses, governments and consumers for use in a wide range of low carbon and high- performance concrete applications. It is anticipated that the successful development of SFBA by Blue Planet will allow Pittsburg and the greater Bay Area to be a world leader in sustainable construction materials.

On September 10, 2019, the Planning Commission adopted Resolution No. 10130 to approve a use permit that would allow the applicant, San Francisco Bay Aggregates, LLC to operate a small, temporary carbon capture and mineralization facility at 895 East 3rd Street.

On September 20, 2019, Charlie Davidson and Joanne Fanucchi filed a joint appeal of the Commission’s decision. The appeal expressed concerns regarding potential environmental impacts that could occur if a larger, permanent facility were to be built at the project site.

The appeal did not oppose any of the findings that were made by the Planning Commission in approving the use permit for the proposed project.

On November 4, 2019, the City Council held a duly noticed public hearing on the appeal request, considered testimony, and voted 4-1 to adopt Resolution No. 19-13713, upholding Planning Commission Resolution No. 10130, approving a mitigated negative declaration, mitigation monitoring and reporting program, and use permit for the project, subject to conditions.

On August 20, 2021, Jacob Schneider, on behalf of SFBA, filed Use Permit Application No. 21-1590, requesting approval of a use permit amendment in order to construct and operate an 880-foot pipeline transporting flue gas from the Los Medanos Energy Center to the previously approved temporary carbon capture and mineralization facility (the “Project”) site.

The use of flue gas is part of the proof of concept for the temporary facility, to extract CO2 from the flue gas and mix with recycled cement to produce upscaled rock product.

On November 9, 2021, the Planning Commission adopted Resolution No. 10179 to approve the Mitigated Negative Declaration Addendum (#1) and Use Permit to construct and operate an 880-foot pipeline to a Temporary Carbon Capture and Mineralization Facility located at 895 East 3rd Street, for “SFBA Carbon Capture & Mineralization Facility Pilot Project Addendum (#1), AP-21-1590 (UP).”
On April 3, 2024, Blue Planet, filed a development application for a Use Permit and Design Review to permanently establish a Blue Planet Global Innovation Center Project located at 895 East 3rd Street.
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SUBCOMMITTEE FINDINGS
The item was not presented to a sub-committee.

STAFF ANALYSIS
Staff has determined that the IS/MND to be prepared by Chambers Group Inc., pursuant to CEQA are necessary for the continued processing of the application due to the complexity of the Project. Prior to entering into any contract, the City will require a fully executed reimbursement agreement submitted by the applicant.

ATTACHMENTS:

1. Resolution

2. Contract and Services Agreement Chambers Group Inc. with Exhibits Report Prepared By: Maurice Brenyah-Addow, Senior Planner 623
Resolution No. 24- Page 1 of 2 August 19, 2024

BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG

In the Matter Of:

Authorizing City Manager to Execute )
Consulting Services Agreement with )
Chambers Group, Inc. for Environmental) RESOLUTION NO. 24- Review Services and Allocating Budget )
AP-24-0067 )

WHEREAS, on April 3, 2024, Antonio Richmond of Blue Planet Systems (“Developer”), a company that operates a pilot carbon sequestration technology plant at 895 East 3rd Street, filed Planning Application No. AP-24-0067 for a Use Permit, Design Review and height Variance to establish a permanent carbon sequestration plant at the subject site; and
WHEREAS, the City intends to enter into contract with Chamber Group Inc., a CEQA Consulting company for environmental review services pursuant to the California Environmental Quality Act (CEQA) (“Consultant”); and

WHEREAS, Developer will be required to deposit the sum of One Hundred and Sixteen Thousand, Seven Hundred and Eighty-Seven dollars and Eighty-Five cents ($116,787.85) with the City, as Initial Deposit for the City to use for the cost of project management and environmental review services provided by Chambers Group, Planning & Environmental Consulting, Inc. with the following breakdown:
a) Seventy-Five Thousand, Three Hundred and Forty-Seven dollars ($75,347) for CEQA Consultant fees,
b) Twenty-Two Thousand, Six Hundred and Four dollars and Ten cents ($22,604.10) for City Environmental Review services fees in accordance with the City’s Master Fee Schedule effective January 1, 2024, and
c) Eighteen Thousand, Eight Hundred and Thirty-Six dollars and Seventy-Five cents ($18,836.75) as refundable contingency reserve funds.

NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the City Manager to execute a Consulting Services Agreement with Chambers Group, Inc. in an amount not to exceed $116,787.85 upon completion of a reimbursement agreement with the Developer and allocates $75,347 to the consultant budget, $22,604.10 for City Environmental Review services along with $18,836.75 for refundable contingency reserve funds.
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Resolution No. 24- Page 2 of 2 August 19, 2024
PASSED AND ADOPTED by the City Council of the City of Pittsburg at a regular meeting on the 19th day of August 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
CHAMBERS GROUP INC.

THIS Agreement (“Agreement”) for consulting services is made by and between the City of Pittsburg , a municipal corporation (“City”) and Chambers Group Inc, a California corporation (“Consultant”) (together referred to as the “Parties”) as of August 19, 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 August 19, 2026, or the date the Consultant completes the services specified in Exhibit A, whichever occurs first, unless the term of the Agreement is otherwise terminated or extended, as referenced herein.

1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.

1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. 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 Ninety-Four Thousand, One Hundred and Eighty -Three dollars and Seventy-Five cents ($94,183.75), 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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This dollar amount is not a guarantee that the City will pay that full amount to the Consultant, but is merely a limit of potential City expenditures under this Agreement.

Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.

2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date.

Invoices shall contain the following information, unless waived by the City Manager, or his or her designee:

 Serial 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.

2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall pay undisputed invoices that comply with the above requirements within 30 days from the receipt of the invoice.

2.3 Final Payment. Consultant shall submit its final invoice within 60 days of completing its services. 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.

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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. 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 req uirement 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.

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4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis.

Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Consultant has no owned autos, hired (code 8) and non- owned autos (Code 9). No endorsement shall be attached limiting the coverage.

4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:

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

b. City, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Consultant, including 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.

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4.3 Professional Liability Insurance.

4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 per occurrence or claim covering the Consultant’s errors and omissions.

4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:

a. The retroactive date of the policy must be shown and must be before the date of the Agreement.

b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work.

c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must 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.

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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.

The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents, and subcontractors.

4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, and Consultant shall ensure that City, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.

4.4.7 Excess Insurance. If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.

4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option:
1) obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; 2) order Consultant to stop work under this Agreement and withhold any payment that becomes due to Consultant hereunder until Consultant demonstrat es compliance with the requirements hereof; and/or 3) terminate this Agreement.

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Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.

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 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.

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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 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.

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 633

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or prepared by or for Consultant or the City in connection with this Agreement.

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

8.3 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.

Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.

Consultant may not assign this Agreement or any interest therein without the prior written approval of the City Manager, or his or her designee.

Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the City Manager, or his or her designee.

8.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant, including but not limited to the provisions of Section 5, shall survive the termination of this Agreement.

8.5 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:

8.5.1 Immediately terminate the Agreement;

8.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;

8.5.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or

8.5.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.

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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 thi s 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: Chambers Group, Inc.

ATTN: Mike McEntee, President
3151 Airway Avenue, Suite F208,
Costa Mesa, CA 92626

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

10.9 Professional Seal. Where applicable in the determination of the City Manager, or his or her designee, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility.”

10.10 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A and B represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. To the extent there are any inconsistences between this Agreement, the Exhibits, and Consultant’s proposal, the Agreement shall control. To the extent there are any inconsistences between the Exhibits and the Consultant’s Proposal, the Exhibits shall control.

Exhibit A Scope of Services
Exhibit B Compensation Schedule

10.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together 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 Mike McEntee, President

Approved as to Form:

____________________________
Donna Mooney, City Attorney

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EXHIBIT A

SCOPE OF SERVICES

Consultant shall perform the following services:

Prepare CEQA analysis for the Global Innovation Center. The appropriate CEQA documentation for the Project will be determined through the preparation of an IS Checklist :

Consultant shall:
• Assist with determining the level of documentation (e.g. IS) required based on the scope noted above, • Prepare all CEQA documentation according to all applicable State and Local requirements, • Coordinate and supervise of any sub-consultant specialists as required, • Coordinate and collaborate with City staff, a subconsultant, and Blue Planet as required, • Complete biological resource desk top studies,
• Attend a public meeting as needed, and
• Assist City staff with preparation and filing of notices with the County and State Clearing House.

Consultant shall include City staff in all communications with Blue Planet. Consultant shall begin work upon receipt of written notice to proceed (NTP). Consultant shall perform the following tasks:

Task 1: Project Initiation

Task 1A: Initial Meeting and Data Acquisition
After receiving NTP, the Chambers Group Project Manager shall be prepared to meet with representatives from the City and Blue Planet at a Project Initiation/Kick -Off Meeting to discuss the project description, specific project issues, and CEQA schedule; as well as receive any pertinent project information reports in addition to the Blue Planet’s Project description. The Chambers Group Project Manager shall be available to survey the project site and the immediate surrounding area and make a photographic record to document the existing conditions.

Chambers Group shall review all available project -related data and reports provided by Blue Planet.

Consultant is not responsible for the accuracy of any existing technical reports not authored by Consultant. Following the review of existing data, Consultant shall provide identify gaps in the data, and provide recommendations for correcting the gaps, in a memorandum to the City. Chambers Group shall work closely with the City to determine what additional data must be collected in support of the CEQA document being prepared. Chambers Group may use these documents in the analysis of the Project.

Task 1B: Project Description
Chambers Group will develop a comprehensive description of the Proposed Project that will form the basis for the analysis of the potential impacts on the environment, based on the information provided by Blue Planet. The Project description shall include a narrative and graphical presentation of the Proposed Project, including components, location and boundaries, regional and vicinity maps, and a statement of the Project goals and objectives.
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Chambers Group assumes that Blue Planet will provide Project details necessary to develop the Project description, including but not limited to site maps, construction equipment, quantities of materials imported or exported, schedule, and site plans. Consultant assumes Blue Planet will ensure stability and accuracy of the technical details to be used in the impact analysis conducted on behalf of the City.

Deliverables: Kickoff Meeting Notes, one data gap memorandum, if necessary, and one electronic Word and PDF copy of the Project description for City and Blue Planet review. One electronic copy of the final Project description.

Task 2: Technical Studies
Based on the Proposed Project improvements, Consultant shall deliver the technical studies below to supplement the analysis in the appropriate CEQA document.

Task 2A: Air/GHG/Energy
Consultant shall retain Tamura and ensure completion of the Air, GHG, and energy analysis of the IS.

The latest version of CAPCOA’s CalEEMod® software will be used to estimate emissions from construction and commercial operations/road traffic, but it is assumed that off -model calculations will likely be needed to estimate emissions from activities such as the yet -unspecified research projects, industrial activity, and (potentially) any marine/rail operations associated with the project. For the energy portion of the IS/MND Consultant shall answer the checklist questions and provide supporting text similar in detail to the 2019 MND.

The schedule is dependent on the speed with which Tamura receives responses to information requests, and the level of effort needed to estimate emissions from unusual sources. Assuming that the research projects are relatively few in number and relatively benign with regard to emissions estimation efforts, Consultant shall complete draft documentation within three work weeks after receiving those responses.

Deliverables: One electronic draft report to be included as an appendix to the MND. Consultant shall ensure Tamura will incorporate one round of comments into one final electronic report.

Task 2B: Biological Resources Desktop Analysis
According to the Biological Resource Assessment report prepared for the Pilot Project in 2019 by Wood Biological Consulting (BRA), aside from the small shoreline area, the Project site is developed with areas of non-native vegetation. In addition, the report and project description state that there will be no in-water work. Therefore, the scope of work includes a desktop analysis of biological resources including an updated literature review.

Prior to commencing the desktop analysis, Chambers Group will conduct a literature review. This task will include a review of the California Department of Fish and Wildlife’s (CDFW) California Natural Diversity Database (CNDDB) and the California Native Plant Society’s Electronic Inventory (CNPSEI) for the latest records of reported occurrences of federal - or state -listed endangered or threatened species, California Species of Concern (SSC), or otherwise special status species or habitats that may occur within or in the immediate vicinity (within 5 miles) of the Project site. A Trust Resource Report will be generated through the United States Fish and Wildlife (USFWS) Information for Planning and 640

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Conservation (IPaC) planning tool for species occurrences and critical habitat that may occur within or in the immediate vicinity (within 5 miles) of the Project site. The United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) soil survey will be reviewed to identify soils that occur within the Project site. In addition, the USFWS National Wetlands Inventory (NWI) maps, Google Earth, and historical aerial photographs of the Project area will be reviewed for hydrological features within the Project site that may fall under the regulatory jurisdiction of the US Army Corps of Engineers (USACE) pursuant to Section 404 of the Clean Water Act, Regional Water Quality Control Board (RWQCB) jurisdiction pursuant to Section 401 of the Clean Water Act, and CDFW jurisdiction pursuant to Section 1602 of the Fish and Game Code. This task will also include a review of the BRA.

After completing the desktop assessment, Chambers Group will prepare a brief letter report summarizing the results of the literature review. The report will either state that based on the existing site conditions and the updated literature review, no changes or new potential impacts to biological resources have occurred or exist on the Project site or will list changes that may have occurred to adequately address impacts to biological resources. The report will contain approximately 15 pages of text with attachments including literature review reports. The report will include one electronic draft report to be included as an appendix to the MND. Chambers Group will incorporate one round of comments into one final electronic report.

Deliverables: The Biological Resources letter report will contain approximately 15 pages of text with attachments including literature review reports. The report will include one electronic draft report to be included as an appendix to the MND. Chambers Group will incorporate one round of comments into one final electronic report.

Task 2C: Cultural Resources Report

Literature Review
Chambers Group will conduct a literature review, including a review of the findings of a records search through the California Historical Resources Information System (CHRIS) database at the appropriate Information Center (IC). The records search will be conducted by IC staff and review relevant previously recorded cultural resources and previous investigations completed for the half -mile search radius surrounding the project site. Information to be reviewed will include location maps for all previously recorded cultural resources, previously conducted investigation boundaries, National Archaeological Database (NADB) citations and copies for associated reports, historic maps, and historic addresses.

Chambers Group will also review properties listed on/as the California Points of Historical Interest (CPHI), California Historical Landmarks (CHL), Caltrans Historic Highway Bridge Inventory, California Historical Resources Inventory, local city and county registries of historic properties, the California Register of Historic Resources (CRHR), and the National Register of Historic Places (NRHP).

Additional sources of information that may be reviewed include but are not limited to Certified Local Government annual reports and other data, HABS/HAER records, the National Register Information System, the on-line database for National Register sites, Calisphere Digital Resources, Online Archive of California, General Land Office Plat Maps, Sanborn Fire Insurance Maps, local historical societies and libraries, as well as inventory files and data on- file with other agencies that control property near the area. The task will also include a search for potential prehistoric and/or historic burials (human 641

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remains) evident in previous site records and/or historical maps (i.e., Sanborn Fire Insurance Maps, General Land Office Plat Maps).

I Consultant shall request review of the sacred land files (SLF) of the Native American Heritage Commission (NAHC) to identify if any resources important to Native Americans have been recorded within the project area and surrounding vicinity. The NAHC will provide the results and a list of affiliated tribal representatives to contact for additional information. Chambers Group will provide the results of the NAHC SLF search and list of tribes in the desktop cultural resources letter report. Chambers Group shall conduct informal Native American outreach in the form of NAHC Scoping notification emails and follow up phone calls to all NAHC- listed points of contact provided with the SLF results. Chambers Group shall assist in coordinating AB 52 consultation requirements.

Assumptions:
• City will provide Chambers Group with confirmation on the Project footprint at the time of authorization or NTP. It is assumed that this information will not change once Chambers Group has initiated the tasks above.
• All required records searches will be submitted within one week of receipt of NTP. • Fees incurred by the IC and Museum to conduct the record searches, estimated at $1,200, are included as part of this task. Consultant will bill the actual amount the institutions charge without a markup.
• Currently, the IC estimates 4 to 6 weeks from the date of request to provide results for a records search. Currently, the NAHC estimates 6 to 8 weeks from the date of request to provide results for the SLF request.
• This task does include the issuance of NAHC Scoping Notification Letters to NAHC -listed points of contact to request information regarding the proposed Project site. • This task assumes that no previously documented cultural resources are recorded within the Project site. If the records search data reveals that potentially significant cultural resources are documented within the Project site and/or surrounding half -mile radius study area that may be affected by the Project, further research and updated documentation may be required, at additional cost. • This task does not include cultural resources survey, testing, data recovery, analysis, monitoring, or similar programs.

Field Survey
Chambers Group shall complete a field survey of a portion of the Project site (APN 073- 020-019-3).

Considering that most of the Project site is fully developed with concrete surface throughout the existing facility, the survey will focus on the area just outside the existing facility along the E. 3rd Street Road alignment to address the proposed underground utility work associated with the Project. The cultural resources survey will be conducted in accordance with the professional standards as described by the National Parks Service, Secretary of Interior’s Standards and Guidelines, as amended, for Archaeology and Historic Preservation. Chambers Group cultural resources specialist will survey the Project area for the presence of:

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• Historic artifacts (e.g., metal, glass, ceramics),
• Sediment discoloration (ex. midden, hearth features), • Depressions and other features indicative of the former presence of structures or buildings (e.g., post holes, foundations),
• Historic ruins, buildings, structures, and/or objects.

Based on available data, this task scope and cost estimate assumes no cultural resources will be identified during the survey. Should cultural resources be identified, a revised scope of work and cost may be necessary.

Assumptions:
• This task assumes that the City will provide Chambers Group with confirmation of the Project footprint at the time of authorization or NTP. It is assumed that this information will not change once Chambers Group has initiated the tasks above.
• This cost estimate assumes that Chambers Group will not be accompanied by a tribal monitor while conducting survey of the Project site. If a tribal monitor is required, it is assumed that the City will address the associated cost, or a revised scope of work and cost will be necessary • This task assumes no cultural resources will be encountered during the field survey. If any resources are identified during the survey, these findings will require in- field and post -field documentation and need to be discussed in the report and DPR forms (archaeological site records) will need to be prepared and included as a confidential appendix. If cultural resources are identified, and pending approval to record such items, a change order will be required.

Cultural Resources Report
Chambers Group will prepare a Cultural Resources Report deliverable. The Cultural Resources Report will be prepared according to Archaeological Resource Management Report (ARMR) Guidelines and California State Historic Preservation Office (SHPO) Guidelines, detail the methods used, and describe the results of the records search, survey, all additional research and literature review, and any related recommendations. The report will include results from an on- ground survey of the proposed Project site. The report is assumed to contain up to 30 pages of text, graphics, and appendices. The report will also discuss the paleontological records search results and the basic geologic context of the Project site, to support any related recommendations regarding paleontology, as well as addressing the results of the NAHC SLF records search and related informal NAHC-listed Native American outreach.

Assumptions:
• Chambers Group will provide a draft report to the City for review within six weeks after the survey is completed.
• This task cost estimate assumes that only one round of consolidated report comments from the City will be received to be incorporated into the final document within two weeks after draft review. If additional comments are received, a revised scope of work and cost for additional review may be necessary.
• This task assumes that no previously documented cultural resources are recorded within the Project site, and no newly identified cultural resources will be identified during the survey. If the records search 643

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data reveals that cultural resources are documented within the Project site, or if resources are identified during the survey, a revised scope of work may be necessary. • This task does not include cultural resources testing, data recovery, analysis, monitoring, or similar programs.
• This task does not include survey and analysis of historic -period built environment resources. It is assumed that no such resources are located within the Project site or adjacent right -of-way (publicly accessible surface streets). If historic -period built environment infrastructure are identified within the Project right-of-way, and may be affected by the Project, these resources would need to be evaluated for eligibility for listing on the National Register of Historic Places, the California Register of Historical Resources, and/or a local register. If historic -period built environment resources that may be affected by the Proposed Project are identified, a separate scope and cost will be required to assess these resources.
• The report associated with this task will focus on the known areas of direct impact as illustrated in associated documents provided by the Applicant. Laydown, storage, or utility yards, or the like, have not been identified, and are therefore not part of this study proposal.

Deliverables: Records search requests, email NAHC scoping letters, sending, tracking, and follow up calls to conduct informal Native American outreach, pedestrian field survey, and Cultural Resources Report

Task 3: Prepare an IS
Once the project description has been approved, Chambers Group will prepare an IS Checklist to confirm the preparation of an appropriate CEQA Documentation for the Proposed Project. The IS will be prepared using the most recent revision of the IS Environmental Checklist Form suggested in the CEQA Guidelines Appendix G. In compliance with CEQA Section 15063, the IS will contain the following, in brief form:

• A description of the project, including the location of the Project; • An identification of the environmental setting;
• A preliminary identification of environmental effects by use of a checklist, matrix, or other method, with some evidence to support the entries; and
• A preliminary discussion of the ways to mitigate the significant effects identified; if any.

The environmental factors outlined in the CEQA
checklist include:

• Aesthetics
• Agricultural and Forestry Resources
• Air Quality
• Biological Resources
• Cultural Resources
• Energy
• Geology and Soils
• Greenhouse Gas Emissions

• Mandatory Findings of Significance
• Mineral Resources
• Noise
• Population and Housing
• Public Services
• Recreation
• Transportation
• Tribal Cultural Resources
• Utilities and Service Systems
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• Hazards and Hazardous Materials
• Hydrology and Water Quality
• Wildfire
• Land Use and Planning

Deliverables: One electronic copy of the Administrative IS for City review.

Task 4: CEQA Documentation
After completion of the draft IS, Chambers Group will provide a recommendation for the appropriate level of CEQA documentation. The IS will be used as a guide in the decision as to the appropriate environmental documentation to prepare for the Project. Based on coordination with the City and results of the analysis within the IS including the technical studies, Chambers Group will prepare an ND or MND CEQA Documentation for City adoption. If it is determined that an Environmental Impact Report (EIR) would be the appropriate CEQA document, an amendment to this Agreement would be required to complete the CEQA process. After the amendment is executed, the IS would be finalized to develop a focused EIR addressing resource areas with impacts.

This scope is for an ND or an MND. The process for preparing a ND is the same as an MND with the exception that a MMRP is not required under an ND. Therefore, only the MND process is described below.

Task 4A: Prepare Administrative Draft MND
After receipt of one set of integrated comments on the draft IS from the City, Chambers Group will revise the IS accordingly. If one or more significant impacts are identified during the IS process, including the results from the (Biological, Air, Energy, and GHG studies), CEQA allows the preparation of an MND when those impacts can be mitigated to a less than significant level.

The following is a list of the required contents of an MND:

• a brief description of the project;
• the location of the project (preferably shown on a map); • the name of the project proponent;
• a finding that the project will not have a significant effect on the environment; • mitigation measures included in the project to avoid potentially significant effects; and • a copy of the IS.

For each CEQA environmental checklist discipline item, the existing environmental setting of the project site and surroundings will be characterized from the existing literature base. An environmental impacts analysis will be prepared for each checklist en try. Based on CEQA -defined significance criteria, Chambers Group will determine the potential for any adverse or significant adverse impacts and present mitigation measures to reduce any such impacts to a level below significance.

Deliverables: One electronic copy of the Administrative Draft MND for City review.

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Task 4B: Prepare/Distribute the Public Review MND
After receipt of one set of integrated comments on the Administrative Draft MND from the City, Chambers Group will then revise the MND accordingly. Chambers Group will prepare and distribute copies of the Draft MND to the City and State Clearinghouse.

If the City allows for external submittal to the OPR, Chambers Group will draft a Notice of Intent (NOI), Notice of Completion (NOC), Summary Form, and the Public Review Draft MND with associated appendices to be submitted electronically on behalf of the City. The City must approve Chambers Group as a submitter on the OPR CEQANet Web portal. For submittal to the County Clerk, documents will be submitted directly to the County offices by the Project Manager. It is assumed that the City will distribute the NOI through at least one of the following methods:

• Publication at least one time in a newspaper of general circulation in the area affected by the Project.

• Posting of the notice on and off-site in the area where the Project is located. • Direct mailing to the owners and occupants of property contiguous to the Project.

Chambers Group will support the City in developing notices to be published in public newspapers, on websites, and at the Project site. Fees associated with coordinating and publishing in public newspapers, on websites, or posting of a physical notice at the Project are not included in this scope and associated fees for newspaper postings vary.

Deliverables: One electronic copy of the Public Draft MND and technical reports as appendices for Public Review Distribution by the City. For OPR submittal, one electronic copy of the NOC, one electronic copy of the Summary Form, one electronic copy of the NOI, electronic copies of the Public Draft MND and technical reports, and one electronic copy of the Summary Form.

Task 4C: Prepare Final MND with Response to Comments
Final MND with Response to Comments . Based upon comments received from public review, responses to the comments will be prepared. A draft of these responses will be provided to the City.

Upon receipt of one complete set of comments from the City on the responses, a Final MND will be prepared. This document combined with the Draft MND will constitute the Final MND to be used by the City when considering approval of the project.

It is assumed that Chambers Group would coordinate with the City and Blue Planet to address public comments received and comments would be addressed based on available data. We anticipate no more than 6 comment letters with an average of 5 comments each (30 different comments total) will be received and addressed. The cost estimate for this task assumes that no new technical analysis would be required in response to the public comments. If more comments than assumed are received or more analysis will be req uired to respond to comments, Chambers Group will coordinate with the City to identify comments to be addressed by the Chambers Group team and/or provide these services under a separate scope and fee.

Deliverables: One electronic PDF copy of the Final MND for the City.

Prepare Mitigation Monitoring and Reporting Plan. Following preparation of the MND, Chambers Group will prepare a Draft Mitigation Monitoring and Reporting Plan (MMRP) as required by CEQA for 646

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review by the City. The Final MMRP incorporating the City’s comments will be incorporated into the Final MND.

Deliverables: MMRP incorporated into Final MND.

Notice of Determination. The Notice of Determination (NOD) is filed following the City’s decision to carry out or approve the project for which the MND has been prepared. Chambers Group will prepare the NOD and will file the NOD with the State Clearinghouse and the Contra Costa County Clerk.

Chambers will not be responsible for Fish and Game filing fees.

Deliverables: One electronic copy of the NOD for the City. One NOD to be filed with the State Clearinghouse and the Contra Costa County Clerk.

Task 5: Meetings/Public Hearings
Chambers Group’s Project Manager and key technical personnel will attend 6 bi -monthly progress meetings (2 per month for 3 months) with the City. Consultant shall attend one public hearing. The Chambers Group will coordinate with City staff to plan and support the City’s presentation of the CEQA document at the public hearings. It is assumed that internal progress meetings will take no more than one hour (if there are 30- minute meetings, then we are available for 12 meetings), and the public meeting will take no more than three hours. Chambers Group will attend any other additional meetings requested by the City on a time and materials basis.

Assumptions:
• This scope assumes that the magnitude and nature of the emissions generated by the Project will not be substantial enough to necessitate dispersion modeling or a quantitative health risk assessment (HRA).
• This scope assumes no ground disturbance and native soils would be disturbed to the extent that a cultural resource data request and associated report would be required. If unanticipated soil disturbance is required, an amendment to this Agreement would be necessary to produce a Cultural Resources Desktop Study Letter Report for completion of the CEQA analysis. • This scope assumes that the amount of traffic generated by the Project would not trigger a full VMT analysis. If the traffic generated is higher volume than anticipated an amendment to this Agreement would be necessary to complete a traffic impact assessment. • Kickoff Meeting is in Task 1 and not included with the 6 progress meetings in Task 5. • If the CEQA documentation requires an EIR the scope and budget will need to be revisited to complete CEQA requirements for an EIR.
• This scope assumes the City will create a distribution list of agencies and interested parties to receive notification required for the CEQA process and mail the notices to the distribution list. • This scope assumes all hard copies will be produced by the City.

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EXHIBIT B

COMPENSATION SCHEDULE

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COMPENSATION SCHEDULE

PROJECT COST ESTIMATE

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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:
652

OFFICE OF THE CITY MANAGER/EXECUTIVE DIRECTOR
65 Civic Avenue
Pittsburg, CA 94565
TO: Mayor/Chair and Council/Governing Board Members
FROM: Garrett Evans, Executive Director/City Manager
SUBJECT: Adoption of a Pittsburg Power Company Resolution Approving the Fiscal Year 2024/25 Consultant Agreement with Open Opportunities Incorporated
MEETING DATE: August 19, 2024

EXECUTIVE SUMMARY
Pittsburg Power Company (PPC) is seeking approval for the fiscal year (FY) 2024/25 consultant agreement (Agreement) with Open Opportunities Incorporated (OOI) in the amount of $415,000 for the case management and day to day program supervision of the Future Build Program.

FISCAL IMPACT
The Agreement between PPC and OOI will be for the amount of $415,000. PPC, through Contract Number 18-466-3, will be receiving a grant from Workforce Development Board (WDB) up to the amount of $300,000 in FY 2024/25 which will reimburse PPC’s budget. The difference of $115,000 will come from grants from the Environmental Protection Agency and California Workforce Trades Initiative, and revenue from other sources that have been previously received and accepted by PPC and have been placed in PPC’s Fund Balance.

No City General Fund, including Measure M, are used to operate Future Build in Fiscal Year 2024/25.

RECOMMENDATION
The Governing Board of PPC approve the Agreement. It is recommended that the PPC Board authorize the Executive Director or his designee to amend future agreements and budgets as required by subsequent contracts and amendments from external funding sources. The Executive Director is authorized to execute other documents and take such further actions as may be necessary or appropriate to ensure that funds are utilized appropriately by Future Build.
653

BACKGROUND
Future Build is a partnership of the PPC, WDB, Pittsburg Adult Education Center (PAEC), Environmental Protection Agency (EPA), Contra Costa Building and Construction Trades Council, GRID Alternatives, Northern California Laborers Training, California Workforce Trades Initiative, and Open Opportunities, Inc. (OOI) to provide low-income East County residents with 16+ weeks of pre-apprenticeship training in the building trades and solar theory, construction, and installation. Each training session is referred to as a cohort.

Future Build’s managing partner and fiscal agent is the PPC. OOI provides case management, solar training, and day to day program supervision and administration of the skill-based instructional staff. PAEC provides general academic and life skills instruction.

Northern California Laborers provide EPA required trainings. The Contra Costa Building and Construction Trades Council provides tools and instruction from its member trade unions as well as general orientations into the construction related trades. GRID Alternatives provides solar installation training while providing local lower income area residents with free solar panels.

PPC and WDB executed the initial contract in April 2012, and WDB executed subsequent contracts in the following years, continuing the funding for the Future Build Program.

SUBCOMMITTEE FINDINGS
This item was not discussed in a subcommittee.

STAFF ANALYSIS
PPC entered into Contract Number 18-466-3 with WDB for Cohort 26 and 27 for July 1, 2024 to June 30, 2025. The Agreement will allow OOI to continue providing the Future Build Program with case management and day to day program supervision and administration of the skill-based instructional staff.

Future Build provides a life-changing experience for the trainees that leads to reengagement in the workforce and post-secondary educational opportunities. Pre- apprenticeship training, classroom and laboratory are combined in practical applications in the field. The practical applications can also be referred to as “community benefit projects”.

Community benefit projects are where the trainees exercise what they have learned by improving facilities in public housing projects, solar installations of homes for low-income residents, schools, and public recreational facilities such as parks. Some of Future Build’s efforts includes the completion of the rehabilitation at the Pittsburg Police Department shooting range facility, solar installations, in partnership with GRID alternatives, of area residences, Small World Park repairs and improvements, and the rehabilitation of Buchanan Park picnic area.

ATTACHMENTS: Resolution
Contract for Services
Report Prepared By: Candace Hatch, Administrative Analyst I 654
Resolution No. 24- Page 1 of 2 August 19, 2024

BEFORE THE GOVERNING BOARD OF THE PITTSBURG POWER COMPANY

OF THE CITY OF PITTSBURG
In the Matter of:

Approving the FY 2024/25 Consultant )
Agreement with Open Opportunities ) RESOLUTION NO. 24-
Incorporated )
WHEREAS, the Pittsburg Power Company (PPC) is seeking approval of the Fiscal Year 2024/25 consultant agreement (Agreement) with Open Opportunities Incorporated (OOI) for the Future Build Program; and
WHEREAS, the Future Build Program is a partnership of the PPC, Workforce Development Board (WDB), OOI, Pittsburg Adult Education Center (PAEC), Contra Costa Building and Construction Trades Council, GRID Alternatives, and Northern California Laborers Training to provide low-income East County residents with 16+ weeks of pre- apprenticeship training in the building trades and solar theory, construction, and installation. Each training session is referred to as a cohort; and WHEREAS, Future Build’s managing partner and fiscal agent is the PPC. OOI provides case management, solar training, and day to day program supervision and administration of the skill-based instructional staff. PAEC provides general academic and life skills instruction. Northern California Laborers provide EPA required trainings. The Contra Costa Building and Construction Trades Council provides tools and instruction from its member trade unions as well as general orientations into the construction related trades. GRID Alternatives provides solar installation training while providing local lower income area residents with free solar panels; and
WHEREAS, PPC and WDB executed the initial contract in April 2012 and PPC and WDB executed subsequent contracts in the following years, continuing the funding for the Future Build Program; and
WHEREAS, the Agreement between PPC and OOI will be for the amount of $415,000; and
WHEREAS, PPC entered into Contract Number 18-466-3 with WDB for Cohort 26 and 27 for July 1, 2024 to June 30, 2025; and
WHEREAS, PPC will be receiving a grant from WDB of up to the amount of $300,000 in Fiscal Year 2024/25. In addition to the WDB grant, Future Build receives grants from the Environmental Protection Agency, California Workforce Trades Initiative, and revenues from other sources that have been previously received and accepted by PPC and have been placed in PPC’s Fund Balance; and
WHEREAS, no City General Fund, including Measure M, are used to operate Future Build in Fiscal Year 2024/25.
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Resolution No. 24- Page 2 of 2 August 19, 2024
NOW, THEREFORE BE IT RESOLVED that the Governing Board of the Pittsburg Power Company hereby approves the Agreement with OOI for FY 2024/25 for the amount of $415,000.

PASSED AND ADOPTED by the Governing Board of the Pittsburg Power Company of the City of Pittsburg at a regular meeting on the 19th day of August 2024, by the following vote:

AYES:

NOES:

ABSTAINED:

ABSENT:
___________________________
Juan Antonio Banales, Chair
ATTEST:
________________________________
Garrett Evans, Executive Secretary
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CONSULTING SERVICES AGREEMENT BETWEEN

PITTSBURG POWER COMPANY AND
OPEN OPPORTUNITIES, INC.

THIS CONTRACT is made on July 1, 2024, between the Pittsburg Power Company (PPC) and Open Opportunities, Incorporated, a California 501c3 Non-Profit Corporation (Consultant).

WHEREAS, the PPC operates the program known as Future Build as memorialized in 2012 by Contract No. 18-290-0 with the Contra Costa County Workforce Development Board (WDB) and its successor amendments including the current contract 18-466-3; and
WHEREAS, the Future Build program will train Workforce Innovation and Opportunity Act (WIOA) eligible people in the construction trades to the pre-apprentice level and in green energy efficient trades; allowing them to gain valuable experience in the industry through a 16-week training program that is recognized by the Multi-Craft Core Curriculum (MC3); and
WHEREAS, a goal of the Future Build program is to provide job training within the City and to include energy efficiency retrofit components to existing buildings or work with local employers to hire trainees and graduates to work on new and retrofitted buildings that will incorporate alternative energy upgrades and to provide trained works for alternative energy projects and area of manufacturing opportunities; and WHEREAS, the PPC, a municipal utility, is the Fiscal Agent and administrator of Future Build and has the overall management responsibility for its operation. This includes activities prior to training, during training, and after training; and WHEREAS, the Consultant is the daily onsite supervisor of Future Build, taking those actions necessary to ensure an effective operation of Future Build as described in WDB’s Contract No. 18-466-3 the current successor amendment with the PPC.

NOW, THEREFORE, the Parties hereto mutually agree as follows:

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to PPC the services described in the Scope of Work attached as Exhibit A, and incorporated herein, at the time and place and in the manner specified therein.

1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2025 or the date the Consultant completes the services specified in Exhibit A, whichever occurs first, 657
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unless the term of the Agreement is otherwise terminated or extended, as referenced herein.

1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that PPC, 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 PPC’s request, reassign such persons.

Section 2. COMPENSATION. PPC hereby agrees to pay Consultant a sum not to exceed Four Hundred Fifteen Thousand Dollars ($415,000), 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 PPC will pay that full amount to the Consultant but is merely a limit of potential PPC expenditures under this Agreement.

Consultant and PPC acknowledge and agree that compensation paid by PPC 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. PPC therefore has no responsibility for such contributions beyond compensation required under this Agreement.

Invoices shall contain the following information, unless waived by the Executive Director, 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; 658
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 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 PPC’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.

2.2 Monthly Payment. PPC shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. PPC shall pay undisputed invoices that comply with the above requirements within 30 days from the receipt of the invoice.

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, PPC.

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.

Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide equipment that may be necessary to perform the services required by this Agreement. Consultant shall make modifications or alterations to the city owned facility at 2555 Harbor Street without the expressed pre- approval of the City.
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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 PPC 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.

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. PPC, 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, 660
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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 PPC, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by PPC, 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 PPC before coverage is canceled or modified as to scope or amount.

4.3 Professional Liability Insurance.

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.
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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 PPC 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 PPC 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 PPC 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 PPC for all work performed by the Consultant, its employees, agents, and subcontractors.

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herein, and Consultant shall ensure that PPC, 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, PPC shall be entitled to coverage for the higher limits maintained by the Consultant.

4.5 Remedies. In addition to any other remedies PPC may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, PPC 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. To the fullest extent permitted by law, Consultant shall indemnify, defend with counsel acceptable to PPC, and hold harmless PPC and its officers, officials, employees, agents and volunteers (collectively, “Indemnitees”) from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, costs and fees of litigation, (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services under this Agreement, or its failure to comply with any of its obligations contained in this Agreement, or its failure to comply with any applicable law or regulation, except such Liability caused by the sole negligence or willful misconduct of PPC.

Acceptance by PPC 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.

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 PPC, Consultant shall indemnify, defend, and hold harmless PPC for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its 663
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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 PPC.

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 PPC.

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

6.3 Independent Investigation. Consultant agrees it has satisfied by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Contract is based on such independent investigation and research.

6.5 Non-Profit. Consultant certifies that it is a California 501(c)(3) Non-Profit Corporation in good standing and has not been disbarred, suspended or found to have disallowed costs.

6.4 Subrecipient. Consultant agrees that it is a subrecipient as defined by CFR 200.331 and the attached executed subrecipient agreement as set forth in Exhibit “C” and further understands that all requirements placed on the PPC by the WDV are also requirements placed on the Consultant.

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 PPC that Consultant and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, 664
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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 PPC.

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, PPC 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; PPC, however, may condition payment of such compensation upon Consultant delivering to PPC any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or PPC 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. PPC and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.

Moreover, a substantial inducement to PPC 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 Executive Director, or his or her designee. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the 665
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subcontractors noted in the proposal, without prior written approval of the Executive Director, 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 PPC 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, PPC’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 PPC 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. PPC’s failure or delay in exercising any remedy shall not constitute a waiver of such remedy or preclude the further exercise of PPC’s rights.

Section 9. KEEPING AND STATUS OF RECORDS.

Consultant hereby agrees to deliver those documents to PPC upon termination of the Agreement, and PPC 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 PPC and are not necessarily 666
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suitable for any future or other use. PPC and Consultant agree that, until final approval by PPC, 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 PPC.

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 PPC 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 PPC. 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.

10.4 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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10.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of PPC 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 PPC official in the work performed pursuant to this Agreement. No officer or employee of PPC 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.

Consultant : Open Opportunities, Incorporated
P.O. Box 8251
Pittsburg, CA 94565
ATTN: Debbie Neely
Board Chair
PPC: Pittsburg Power Company
65 Civic Avenue
Pittsburg, CA 94565
ATTN: Donna Mooney
General Counsel

10.9 Professional Seal. Where applicable in the determination of the Executive Director, or his or her designee, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility.”

10.10 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A and B represents the entire and 668
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integrated agreement between PPC and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.

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 Work Program
Exhibit B Budget and Payment Plan
Exhibit C Subaward Agreement – Workforce Development Board

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.

PITTSBURG POWER COMPANY OPEN OPPORTUNITIES, INC.
____________________________ ______________________________ Garrett Evans, Executive Director Debbie Neely, Board Chair Approved as to Form:
____________________________
Donna Mooney, General Counsel
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EXHIBIT A

WORK PROGRAM
I
Roles

1. The PPC, a municipal utility, is the Fiscal Agent and administrator of Future Build and has the overall management responsibility for its operation. This includes activities prior to training, during draining, and after training.

2. Open Opportunities, Incorporated, a California 501(c)(3) a Non-profit Corporation (“OOI”), is the daily onsite supervisor of Future Build taking those actions necessary to ensure an effective operation of Future Build as described in the RFP 1176 and the subsequent contractor and any successor amendments with the County. The contract number for Fiscal Year 2024-2025 is 18- 466-3.

3. The parties agree that the PPC is the administrator of Future Build. The administrator is the final authority on Future Build revenues, expenditures, operations, fiscal records, participant records, chart of accounts, accounting procedures, leases, rents, participant supportive services, any subcontractors, subcontractor expenditures, records retention, communication wit funding sources, or any other activities necessary to ensure the administration and continued operation of Future Build. This authority is restricted to Future Build and does not apply to other activities that the PPC or OOI may be involved in the furtherance of their respective missions, roles and responsibilities.

4. The PPC enters into this agreement with OOI to utilizes OOI’s resource and abilities in community building, community resources, participant outreach, participant-referral to community resources, daily operational coordination of Future Build activities, daily on-site supervision of Future Build activities, contributing to the development of participant Individualized Employment Plans (IEP), gathering information and data necessary for entry into the Management Information System (MIS) administered by the Workforce Development Board (WDB). OOI is responsible for completing any required reports that are based on the data and accurately entering into the CalJobs and ACRES reporting system.

OOI is responsible for the daily site and participant supervision of Future Build in the absence of the administrator. OOI assures that whenever trainees are in the training facility using equipment there will be a minimum of one OOI staff member supervising the training facility.

OOI and PPC will jointly conduct the follow up activities for Future Build graduates as described in the RFP 1176 and the subsequent contract and as amended in Contract No. 18-466-3 its successor amendment.

5. The parties agree that the respective roles of the PPC and OOI are also outlined in a chronological fashion in the Program Timeline section of RFP 1176, the provisions of which are incorporated herein by reference.
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6. The parties agree that Future Build is a training endeavor that involves several agencies, as described in RFP 1176 and Contract No. 18-466-3 and that great care must be exercised to respect the rights and roles of the various entities to promote the effectiveness of Future Build.

The parties agree that if correction action is required with any of the entities involved with Future Build’s effectiveness that it will be the PPC that determines what form that action takes.

II
Responsibilities

1. The parties agree that the PPC is the fiscal agent for Future Build and is responsible for submitting funding applications, establishing accounts to receive funds, establishing accounts for expenditures, and performing accounting tasks that track revenue and expenditures using generally approved accounting practices.

2. The parties agree that OOI, a nonprofit corporation, and may receive funds dedicated to the Future Build program and that those funds will be deposited into an account maintained by OOI.

When this occurs, OOI is to secure these funds and insure that they are solely for the benefit of Future Build as determined by the Future Build administrator. To maintain the integrity of Future Build’s accounting, OOI will provide the PPC with at timely accounting of such funds when required.

3. The parties agree that the funds referred to in this Section 2 are funds not anticipated at this time and are more commonly knowns as donations made for the specific benefit of Future Build.

The parties further agree that the OOI may charge a reasonable administrative fee for maintaining and accounting for these dedicated donations not to exceed 2% of the donated cash amount.

4. The parties agree that the PPC is responsible for any audits of Future Build and any audit responses, and that OOI will supply the PPC with any and all information it has to meet this responsibility. The PPC and OOI will fully cooperate with any authorized internal and external auditors.

5. The parties agree that Future Build’s success is dependent upon their close coordination of activities, establishment of priorities and timeframes for accomplishing tasks. Should either party know of an issue effecting Future Build’s success it is to be immediately communicated, preferably via email, the issues to the other party.

III
Property
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IV
Operational Notifications

1. The parties agree that all daily operational notices that are necessary, shall be given by one party to the other writing, via email

2. The email addresses for all operational communiques to the PPC shall be the following:
i. Candace Hatch, [email protected]
ii. Jordan Davis, [email protected]
iii. Gerry Dunbar, [email protected]

3. The email addresses for all operational communiques to OOI shall be [email protected].
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EXHIBIT B
Future Build
Budget and Payment Plan
Open Opportunities, Incorporated
OOI shall deliver on the Contract and attached Work Plan as directed and provide PPC a monthly status report. OOI agrees to invoice the PPC on a monthly basis subject to Section 2 of this contract. OOI may also invoice in advance to address costs associated with the Work Plan.

In the event that no charges or expenses are disputed by the PPC, then the invoice shall be approved and paid within thirty (30) days of receipt of OOI’s invoice. In the even any charges or expenses are disputed by the PPC, the invoice shall be returned by the PPC to OOI for correction and resubmission.

Payment to OOI for the work performed pursuant to this contract for services shall not be deemed to waive any defects in work performed by OOI.

Project Budget
Object Class Categories Budgeted Amount
Personnel: Instructors, Case Manager $295,000.00
Operating Expenses: Utilities, Rent, Supplies $11,500.00 Participant Cost: Training Supplies, Materials, etc. $43,500.00 Other – Participant Cost: Safety equipment, tools, supportive services. $65,000.00 Total Direct Charges $415,000.00
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EXHIBIT C
Subaward Agreement
Workforce Development Board
(Next Page)
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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.

OPEN OPPORTUNITIES, INC.

By:

Title:
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Subaward Agreement Workforce Development Board (WDB) July 1, 2024 City of Pittsburg and Open Opportunities, Inc. Page 1 of 2 Subaward Agreement
Workforce Development Board (WDB)

Article 1. Subaward Agreement between the Pittsburg Power and Open Opportunities, Incorporated, a non-profit corporation, for the purpose of providing services that improve and enhance the employability of Future Build enrollees and graduates.

Article 2. Specific services to be provided by Open Opportunities, Inc. including but are not limited to:
 Program Management and Recording Keeping
 Employment Counseling otherwise known as “Job Coaching”  Follow-up Services on graduates
 All services outlined in the contract between the Pittsburg Power Company and Contra Costa County, Contract No. 18-466-3
Article 3. Unique Entity Identification for Open Opportunities, Inc. is 036694799 (DUNS number)
Article 4. County Contract No. 18-466-3
Article 5. Contract Commencement Date: July 1, 2024
Article 6. Subaward Period of Performance, i.e. approximate start and end date for performance utilizing these grant funds: July 1, 2024 to June 30, 2025 Article 7. Total amount of Federal funds obligated by the action: Two Hundred Seventy- Two Thousand Three Hundred and Sixty Dollars ($272,360).

Article 8. Total amount of Federal Funds awarded to the Pittsburg Power Company; Three Hundred Thousand Dollard ($300,000).

Article 9. Award project description: This project provides funding for the Pittsburg Power Company/Future Build to recruit, train, and place unemployed and underemployed residents of East Contra Costa County with skills needed to qualify for entry level construction related occupations, as well as appropriate training in solar panel technology and installation.

Article 10. Awarding Agency: Workforce Development Board (WDB) of Contra Costa County.

WDB Contact: Ms. Verneda Clapp
[email protected]
Pass Through Entity: Pittsburg Power Company (PPC)
PPC Contact: Candace Hatch
[email protected]
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Subaward Agreement Workforce Development Board (WDB) July 1, 2024 City of Pittsburg and Open Opportunities, Inc. Page 2 of 2 Article 11. This subaward agreement is not for research and development.

Article 12. There are no indirect costs associated with this subaward, all costs are direct.

Article 13. Incorporated into this subaward agreement by reference is the attached Contract No. 18-466-3 which outlines administrative requirements of the Pittsburg Power Company and Open Opportunities, Inc., when accepting Federal funds distributed by the Department of Labor.

Specifically see Exhibit A the “SPECIAL CONDITIONS Federal Subaward Conditions”.

IN WITHNESS WHEREOF, the parties have executed this agreement as of the date first shown in Article 6 above.

CITY OF PITTSBURG, CALIFORNIA OPEN OPPORTUNITIES, INC.
____________________________ ______________________________ Candace Hatch Debbie Neely
Future Build Administrator Board Chair
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EXHIBIT A

SPECIAL CONDITIONS
Federal Subaward Conditions
18-466-3
678

Pittsburg City CouncilAugust 19, 2024

Pittsburg City Council
August 19, 2024