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HomeMy WebLinkAbout8.6 Fire Service Agmtor 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL June 19, 2012 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #600 -40 SUBJECT: Fire Service Contract Evaluation and Facility Use Agreements Prepared by Chris Foss, Assistant City Manager, Demetrious Shaffer, Interim Fire Chief, Linda Smith, Economic Development Director /Public Information Officer EXECUTIVE SUMMARY: The City of Dublin contracts for Fire Services with the Alameda County Fire Department (ACFD). This report provides a comprehensive evaluation of the services provided and includes a proposed contract extension of twenty years through June 30, 2032. The report also includes facility use agreements for the Alameda County Fire Department's Administrative Offices, as well as the ACFD Maintenance Facility. FINANCIAL IMPACT: The City of Dublin will receive a one -time payment of $3.7 million from ACFD to help offset the costs of constructing a new Maintenance Facility. In addition, the City will receive monthly rent from ACFD for both the administrative offices as well as the maintenance facility for 5 -years and 20- years, respectively. RECOMMENDATION: Staff recommends that the City Council receives the report and take the following actions: 1) Adopt the resolution approving an Agreement between the City of Dublin and the Alameda County Fire Department for Fire and Emergency Response Services; and 2) Adopt a resolution approving facility use agreements for Alameda County Fire Department's Administrative Offices and Maintenance Facility. f' l ✓l jt� ,y' , �. Submitted By Economic Development Director Reviewed By Assistant City Manager Page 1 of 13 ITEM NO. 8.6 DESCRIPTION: Pursuant to City Council policy, contract evaluations are conducted at the end of the contract term. City Staff has evaluated the Fire and Emergency Response Services contract currently provided to the City under contract with the Alameda County Fire Department (ACFD). The current contract has a term of five years and expires on June 30, 2012. City Staff has conducted a comprehensive review of the ACFD contract that included a review and analysis of services from each affected City Department, City Attorney's Office, and review of all pertinent documents and financial data over the past five -year period. ACFD has provided the City with a high level of service since 1993. This report will summarize and highlight certain contract areas over the past five -year period and recommend the adoption of a new 20 -year contract with ACFD. QUALITY OF SERVICES PROVIDED STATION LOCATION AND STAFFING: ACFD operates three fire stations within the City limits. Station 16 is located on Donohue Drive and operates one engine company with a minimum staffing of three personnel. Station 17 is located at 6200 Madigan Road and houses one engine company and one truck company with a minimum staffing of three personnel on each apparatus. Station 18 is located at 4800 Fallon Road and operates one engine company with a minimum staffing of three personnel. ACFD utilizes a constant staff model as a department standard; this means that the appropriate numbers of personnel are available to fill all positions at each station on a daily basis. Each engine and truck company within the City of Dublin is capable of providing paramedic level services. All ACFD apparatus have a minimum of one paramedic and two emergency medical defibrillation capabilities. There is a minimum of four paramedics assigned to the City of Dublin at all times. In addition to the staffing on each apparatus from Stations 16, 17 and 18, the City of Dublin receives services from San Ramon Valley Fire Protection District (SRVFPD) Engine 39 and ACFD Station 7. These resources are built into designated responses and are also utilized on an as needed basis. These units are utilized to ensure that the closest resources are responding in adequate numbers and that established standards of coverage are maintained within the City. RESPONSE TIMES: ACFD has met or exceeded the contract requirement for emergency response times. The response time standard requires that the first fire unit arrive on scene within 5 minutes or less 90% of the time. From July 1, 2007 through November 30, 2011, the first responding ACFD unit arrived on the scene, for all emergencies, within 5 minutes or less 91% of the time. During the five -year contract period, quarterly response time data indicated that response times were below 90% in a few reporting periods. It is felt that, with Fire Stations 16, 17 and 18 staffed in accordance with the City Council approved Fire and Emergency Medical Response Plan, response times will not be an issue for the foreseeable future. Page 2 of 13 Fiscal Year All Emergency Calls < 5 minute response All Calls < 5 minute response 2007 -2008 88% 87% 2008 -2009 88% 86% 2009 -2010 90% 88% 2010 -2011 93% 92% 2011 -2012 Dec YTD 93% 91% Average 91% 89% ACFD met or exceeded the response time standard of 2 engines and 1 truck on scene for first alarm assignments within 10 minutes of dispatch 90% of the time. During the period July 1, 2007 through November 30, 2011, ACFD met the standard 94% of the time. These response times represent calls where each apparatus arrived on scene and the incident was confirmed at the specified location. Fiscal Year First Alarms < 10 minutes First Alarms > 10 minutes Percentage 2007 -2008 25 2 93% 2008 -2009 28 0 100% 2009 -2010 28 1 97% 2010 -2011 26 2 93% 2011 -2012 Dec YTD 11 2 85% Average 24 1.4 93% ADEQUACY OF SERVICES PROVIDED A. Fire Protection /Response Services EMERGENCY MEDICAL RESPONSE: ACFD provides a minimum of one paramedic on all fire apparatus in the City of Dublin at all times. To date, the response times to EMS calls within the City has exceeded the County EMS contractual requirement of 10 minutes or less 90% of the time. In addition, ACFD provides RN oversight and a comprehensive quality improvement program as required in the City's First Responder Advance Life Support (FRALS) Agreement. ACFD has been in compliance with all applicable county and state data and certification /licensure requirements. ACFD has participated in field studies to continually improve the level of emergency care available to Dublin. HAZARDOUS MATERIALS RESPONSE: ACFD has maintained a fully functioning hazardous materials team for the term of the City's contract. The team is equipped and trained to handle a variety of hazardous materials incidents including radiological and biological incidents. The team is classified a Type I as defined by the California Office of Emergency Services Rescue Division. ACFD staffs a minimum of nine hazardous materials Page 3 of 13 specialists daily who are available to respond to the City of Dublin. The team responds and functions from specially equipped hazardous materials response units. ACFD is part of the Alameda County Mutual Aid Plan, which insures the appropriate response to incidents that would otherwise overwhelm the fire resources in Dublin. B. Fire Prevention Services FIRE PREVENTION SERVICES: Staffing for the City of Dublin Fire Prevention Bureau consists of one Deputy Fire Marshal, one Inspector, one Senior Office Assistant (City of Dublin position) and one part -time contract Fire Inspector. The on -site Deputy Fire Marshal provides supervision and coordination of daily activities for Fire Prevention personnel assigned to the City. The Fire Marshal maintains office space at the Dublin Civic Center, attends planning and development meetings as needed and provides global oversight and supervision for the ACFD Fire Prevention activities. Arson Investigation — ACFD provides fire investigation services to determine origin and cause on all fire incidents. Fire Prevention staff conducts fire investigations as follows- When a fire is suspicious in nature; ➢ When injuries or death(s) occur; ➢ A fire resulting in damages exceeding $5,000; and ➢ Any time there is suspicion or question of a fire's origin that exceeded the Company Officer's investigation capabilities. The following chart summarizes investigations and development inspection services that ACFD Fire Prevention Bureau has performed in Dublin since FY 2006 -2007. Fiscal Year Investigations Inspections Permit Revenues 2006 -2007 N/A N/A $46,769.50 2007 -2008 17 1,690 $39,699.65 2008 -2009 33 2,761 $69,678.32 2009 -2010 36 3,242 $65,916.00 2010 -2011 34 2,811 $60,077.00 Plan Submittal Review — The City's Community Development Department reported that plans for new construction and tenant improvements have been submitted and reviewed within the established City standards during the life of the ACFD contract. First submissions have been reviewed within 15 days. Second and subsequent submittals have been completed within 10 days. In addition, the Fire Prevention Bureau has reviewed planning department referrals for plan development, track map, parcel map and conceptual designs. Development Inspection — Development Inspections are performed at a number of stages during development. As buildings are constructed, Fire Prevention Staff Page 4 of 13 inspects the site for access and water supply prior to combustible construction and prior to exterior covering. Fire Prevention personnel inspect the water supply, fire sprinklers, hydrants and alarm systems prior to issuing a temporary or final certificate of occupancy. Fiscal Year Construction Revenue 2006 -2007 $39,5058.50 2007 -2008 $123,674.60 2008 -2009 $94,310.50 2009 -2010 $102,958.30 2010 -2011 $117,749.90 Post Occupancy Inspections — Fire Prevention personnel perform all required inspections relating to permitted occupancies and permitted use. Engine companies perform the required inspections on schools, care facilities, and apartment complexes Weed Abatement — Abatement notices are sent out annually in March to notify individuals of the need for vegetation abatement on their property. Owners who do not notify the Fire Prevention Bureau of compliance within the established time frame will have their property inspected to determine compliance. Individuals not in compliance are sent a notice of violation advising them that a contractor may abate the property and that they are responsible for the associated costs. Fireworks Administration — Fire Prevention personnel administer the permitting of annual fireworks booths throughout the City. Population determines the number of booths allowed within the City. Individual booths are inspected prior to opening and throughout the five days of sales. Each site is inspected following the 4t" of July to assure proper cleanup of all related materials has taken place so a refund of deposits can be approved. Fiscal Year # of Booths Revenue 2006 —2007 13 $3,775 2007 —2008 13 $4,600 2008 —2009 14 $4,325 2009 —2010 14 $4,525 12010-2011 14 $4,800 Fire Prevention Fees and Miscellaneous — The Fire Prevention Bureau performs business license application inspections upon request from the City Administrative Services Department. Inspections occur any time a new business locates within the City or changes operations that requires a new license. The inspections result in the business being added to the permitted occupancies list or put into the self- inspection program. The self- inspection program is organized through the business license application process and requires an on -site fire inspection every three years. Fire Impact Fees — Over the course of the contract term, the City has collected the following fire impact fees based upon development approval. Fiscal Year Fire Impact Fees 2006-2007 $180,620.86 Page 5 of 13 2007- 2008 $ 28,308.65 2008 —2009 $ 58,965.57 2009 —2010 $ 74,539.50 2010 —2011 $ 98,363.63 COMMUNITY EDUCATION: The ACFD Public Education Specialist coordinates community education and outreach services. This individual works out of the Fire Administration Offices. There were a wide variety of education and training programs provided to the City of Dublin. The following is a brief description of the programs offered and a matrix showing the number of offerings of all programs. Station Tours and Engine Visits — Station tour events are conducted when individuals or groups come to the fire station to view the equipment and receive information relating to the Fire Department. The City's engines or truck visit schools, work places, and public events. Engine and truck companies routinely participated in educating the children at local schools on basic fire safety, and ACFD Staff demonstrated the use of specialized fire equipment. The numbers reflected in the matrix below are those scheduled by the public education specialist. Due to the fact that some individuals and groups contacted the fire station directly, the total number of station tours is likely to be higher than reported in the matrix. CPR — CPR classes are offered in the City of Dublin and are advertised in the City's quarterly Recreation Brochure. Classes are conducted quarterly at City facilities. These three -hour classes teach adult and child CPR. The Fire Department does not collect any operational fees for teaching the classes. Classes have been offered to the general public and interested community groups. On occasion, CPR classes have been offered on -site for community groups and City employees; no fees were collected for these specific classes. Fire and Life Safety Instruction — These training programs target audiences in public or private business groups. Programs are customized to the needs of the business and are conducted on -site at the business. These programs include information relating to topics such as fire prevention, fire extinguisher use, 911 utilization and injury and illness prevention. NET — Neighborhood Emergency Training Classes — The NET class is a 16 -hour course that consists of training on basic first aid, CPR, fire extinguishment, rescue techniques, emergency supplies and storage of adequate provisions including techniques for self - protection following a large scale disaster. The training is intended to prepare local residents to work together and become self- sufficient for up to 72 hours until adequate public safety resources can be mobilized. ➢ ACFD has an Emergency Preparedness manager that further enhances disaster preparedness and response within Dublin. This position, along with subordinate staff, provides additional support and resources through collaboration with other ACFD partners as well as the State. Page 6 of 13 Festival Participation — Festival participation has included ACFD personnel staffing booths with EMS personnel, educational supplies and novelty items handed out to the public. The ACFD booths provide community information as well as medical assistance if needed during the event. The booth was augmented by a bicycle medic team consisting of one EMT and one paramedic who can access large crowds in a timely manner should a medical emergency arise. ACFD has actively participated in several of the City's annual sponsored events. Bicycle Licensing — ACFD offers bicycle licensing at all fire stations. This service is advertised in the quarterly Recreation Brochure. To date, there has been very little participation in the program. Juvenile Fire Setter Program — This program is designed to intervene with juveniles exhibiting fire setting behavior. ACFD provides screening, counseling and fire safety education for children in the City of Dublin through trained juvenile fire setter intervention specialists. Dublin Website - The ACFD has been an active participant in the City of Dublin website; the fire services page provides information regarding fire suppression, permits and inspections and information to assist the community with safety. There is also a link from the fire services page to the Alameda County Fire website (www.acgov.org /fire) which provides further details and information related to fire services. Page 7 of 13 Tours or Fire Fiscal Year Engine CPR Classes NET Classes Safety Festivals Visits Classes 2006 -2007 144 3 classes with an 2 classes with an 24 12 average of 15 average of 20 students per class students per class 2007 -2008 144 3 classes with an 3 classes with an 24 12 average of 15 average of 20 students per class students per class 2008 -2009 144 3 classes with an 3 classes with an 24 12 average of 15 average of 20 students per class students per class 2009 -2010 120 3 classes with an 3 classes with an 24 12 average of 15 average of 20 students per class students per class 2010 -2011 144 4 classes with an 3 classes with an 24 12 average of 20 average of 20 students per class students per class Bicycle Licensing — ACFD offers bicycle licensing at all fire stations. This service is advertised in the quarterly Recreation Brochure. To date, there has been very little participation in the program. Juvenile Fire Setter Program — This program is designed to intervene with juveniles exhibiting fire setting behavior. ACFD provides screening, counseling and fire safety education for children in the City of Dublin through trained juvenile fire setter intervention specialists. Dublin Website - The ACFD has been an active participant in the City of Dublin website; the fire services page provides information regarding fire suppression, permits and inspections and information to assist the community with safety. There is also a link from the fire services page to the Alameda County Fire website (www.acgov.org /fire) which provides further details and information related to fire services. Page 7 of 13 COST OF SERVICES The ACFD annual budget submission to the City has followed the internal time lines and deadlines established by the City throughout the life of the contract. The annual budget submission (both narrative and budget data) is prepared in a format that corresponds to the City's budget document. Fire Staff and City Staff have worked cooperatively during each year's budget development process to ensure that all questions and issues are resolved to the satisfaction of the City. The chart below summarizes the ACFD contract and budget variance over the last contract period. ACFD CONTRACT BUDGET VERSUS ACTUAL FOR THE LAST CONTRACT PERIOD Indirect Charge — Annually, in November /December, the Alameda County support agencies /departments of General Services, Human Resources, County Counsel, Auditor - Controller and Risk Management begin the initial process of establishing the next fiscal year's indirect charges, which are allocated to operating agencies /departments, which includes the ACFD. In general, the starting point in establishing the next year's estimated expenditures was an evaluation of the prior year actuals. This information was then augmented based on information provided by the respective agencies /departments concerning any significant changes or modifications in workload that could be anticipated. ACFD Staff has met several times over the past few years with key personnel from the various County agencies /departments concerning its indirect charges and budget methodology and assumptions. The purpose of the meetings is to ensure that the ACFD charges are appropriate and that major changes are documented and validated. This interaction between the ACFD and County support agencies /departments is ongoing and meets the standards set by the ACFD in terms of being able to support and explain annual county indirect changes. This information is shared with the City as part of its budget development process. COST ANALYSIS: As a contract service provider to the City of Dublin, the Alameda County Fire Department (ACFD) realizes the importance to the City of Dublin of insuring services are being delivered in the most cost effective and efficient manner possible. To demonstrate the value of the contract for service between the City of Dublin and the ACFD, two comparisons have been assessed: 1) a comparison to a like size agency, and 2) the Page 8 of 13 FY 2006 -07 FY 2007 -08 FY 2008 -09 FY 2009 -10 FY 2010 -11 Budget $8,905,955 $9,325,955 $9,909,697 $10,250,817 $10,306,184 Actual $8,709,234 $9,199,415 $9,547,158 $10,120,492 $9,934,118 Variance ($196,721) ($126,540) ($362,539) ($130,325) ($372,066) Variance % -2.2% -1.4% -3.7% -1.3% -3.6% Indirect Charge — Annually, in November /December, the Alameda County support agencies /departments of General Services, Human Resources, County Counsel, Auditor - Controller and Risk Management begin the initial process of establishing the next fiscal year's indirect charges, which are allocated to operating agencies /departments, which includes the ACFD. In general, the starting point in establishing the next year's estimated expenditures was an evaluation of the prior year actuals. This information was then augmented based on information provided by the respective agencies /departments concerning any significant changes or modifications in workload that could be anticipated. ACFD Staff has met several times over the past few years with key personnel from the various County agencies /departments concerning its indirect charges and budget methodology and assumptions. The purpose of the meetings is to ensure that the ACFD charges are appropriate and that major changes are documented and validated. This interaction between the ACFD and County support agencies /departments is ongoing and meets the standards set by the ACFD in terms of being able to support and explain annual county indirect changes. This information is shared with the City as part of its budget development process. COST ANALYSIS: As a contract service provider to the City of Dublin, the Alameda County Fire Department (ACFD) realizes the importance to the City of Dublin of insuring services are being delivered in the most cost effective and efficient manner possible. To demonstrate the value of the contract for service between the City of Dublin and the ACFD, two comparisons have been assessed: 1) a comparison to a like size agency, and 2) the Page 8 of 13 development of a model that, in theory, illustrates services being provided in -house by the City of Dublin. Both comparisons demonstrated the benefits of contracting for service with the Alameda County Fire Department. The first evaluation is the comparison of similarity, which is believed to be the most legitimate measure. This assessment compares the budget/cost of a like size agency, within the region, to the City of Dublin. The City of Dublin has three fire engines and one fire truck staffed by ACFD. City of Milpitas was chosen for the comparison because it provides fire services from with three fire engines and one fire truck, and it is assumed to have comparable operating costs. 2011 -2012 Adopted Fire Service Budget $13,357,825 City of Milpitas $10,382,024 City of Dublin $ 2,975,801 Difference This comparison demonstrated that the City of Dublin is saving $2,975,801 over a similar agency. This assessment doesn't consider the enhanced services provided by the ACFD that Milpitas doesn't offer. Enhanced services include a hazardous materials team, urban search and rescue company, bulldozer, water rescue and immediate access to any ACFD resources. The second evaluation considers the City of Dublin creating its own fire department. This assessment compares the personnel cost only of the ACFD to a projected City of Dublin Fire Department. This assessment excluded costs of internal services because actual cost couldn't be accurately determined. Internal service costs include the increased effort that an in -house fire department would create on other city departments such as payroll, human resources and financial services. The ACFD currently provides all of these services on a shared allocation basis (11.43 %) to the City of Dublin. This estimation assumes a basic fire suppression, fire prevention and community outreach standard of service. It was considered cost prohibitive to include enhanced services in a standalone fire department that would serve the City of Dublin. Theoretical Personnel Cost Comparison $ 8,764,079 In -House Fire Department $ 7,554,459 Alameda County $ 1,209,620 Difference While actual cost could only be realized by creating a City of Dublin Fire Department, both comparisons present a strong argument that contracting for service with the Alameda County Fire Department clearly provides superior services in a cost effective manner. This review demonstrates a savings to the City of Dublin of $1,209,620 by contracting to the Alameda County Fire Department. The actual benefit is believed to be much greater. The Alameda County Fire Department is able to provide many resources that a small agency could not provide, such as a hazardous materials team, urban search and rescue company, bulldozer, water rescue and immediate access to any ACFD resources. There Page 9 of 13 would also be significant internal service cost associated with operating an in -house fire department, like the personnel and purchasing functions. The overall cost and resource benefit of the contract clearly demonstrates an advantage to the City of Dublin in contracting with the Alameda County Fire Department. The Alameda County Fire Department provides a unified response to emergency, centralized management of resources, reduction of duplication, "economies of scale" which improve cost containment, the ability to provide specialized services and retention of local control through a well- structured contract. REPORTS AND RECORDS: County Audits — ACFD is independently audited on an annual basis by the Alameda County Auditor - Controller's Office. City Staff has reviewed the most recent ACFD financial audit as part of the contract review. Fire Department Complaints — All complaints received by the ACFD are forwarded to a Deputy Fire Chief. Each complaint is followed up on and documented by the Deputy Chief handling the complaint. During the term of the existing contract, no formal complaints concerning the City of Dublin were received. It is fire department policy that the City Manager would be fully informed about any complaints and subsequent remedies. ACFD Fire Advisory Commission — The ACFD Fire Advisory Commission meets on the third Thursday of each month. The City of Dublin holds a seat on the Commission. The Dublin City Council appoints the representative to the Commission. INVENTORY: In 1997, and after the dissolution of DRFA, the City created a comprehensive inventory listing of those fixed assets being assigned to the City of Dublin. Over the past fifteen year period, the City has tracked the Fire Services inventory through the City's Equipment Internal Service Schedule, the Fire Station Building Replacement Schedule and the City's Fixed Asset System. ACFD has provided the City with complete inventories of each new apparatus purchased during the period of the existing contract. FACILITIES: Buildings and Real Property — Fire Station 16, 17 and 18 are owned and maintained by the City of Dublin. ACFD has worked cooperatively with the City's Public Works Department to establish the annual budget for facility maintenance and capital projects. Day -to -day maintenance is handled by City contract with the MCE Corporation through the Public Works Department. Apparatus and Equipment — Apparatus and equipment within the City is owned by the City of Dublin. Maintenance of fire apparatus is provided by ACFD mechanics and billed to the City of Dublin at a rate of $75.00 per hour plus parts. An inventory of each apparatus, with its associated value, are maintained by ACFD and forwarded to the City of Dublin as described above. Page 10 of 13 MOU Consultation — In 2010, a new agreement was reached between the ACFD and IAFF, Local 55. The new agreement includes no wage increases for three years, a provision for a 50% cost share of potential future increases to be applied to the cost of health care or unfunded liabilities, and the suspension of the employer paid 401(a) plan for three years. The term of the agreement is from July 1, 2011 to June 30, 2015. Payment of Services — The existing contract language specifies that the Department, on a quarterly basis, will provide the City an expenditure breakdown and invoice for current services. Evidence of Insurance — Staff has reviewed the evidence of insurance and self- insurance certificate that reflects the County of Alameda's self- insured liability and workers compensation policy limits. DISPATCH: The Alameda County Regional Emergency Communications Center (ACRECC), a nationally accredited and distinguished Center of Excellence, is managed by the ACFD and has served as the Alameda County regional fire and emergency services (EMS) dispatch center since 2002. County EMS Agency, the Cities of Alameda and Fremont, and Camp Parks are also participants in ACRECC. Effective November 1, 2011, the Alameda County's private ambulance provider, Paramedics Plus, has started to be dispatched out of ACRECC. Dispatching fire, EMS, and ambulance calls from the same center provides for better coordination and quicker response times to emergency incidents. The FY 2011 -12 cost per call is budgeted at $42.12, which is approximately 6% below average for dispatch costs. ACRD will continuously work on integrating other fire departments into ACRECC to ensure providing the City with high quality, cost - effective fire dispatch services, state of the art emergency medical dispatch and excellent customer service. Several enhancements have occurred within ACRECC during the term of the Dublin agreement. Most notably, ACRECC became one of only six regional fire and rescue mutual aid coordination centers for the State of California, the City of Newark joined the dispatch center in May of 2010, and Paramedics Plus Joined in October of 2011. Each of these changes significantly contributed to the services provided to Dublin by ensuring that Dublin (and other partners) have quicker access to state mutual aid resources, private ambulance companies are dispatched more quickly and with complete radio interoperability with Dublin fire units, and greater regional cooperation within the county is realized. The regional dispatch center provides the City of Dublin with high quality cost - effective fire dispatch services, state of the art emergency medical dispatch and excellent customer service. Page 11 of 13 Facility Use Agreements The City of Dublin and the Alameda County Fire Department desire to enter into use agreements which would allow the ACFD Administrative Offices, as well as their Maintenance Facility, to relocate from San Leandro to Dublin beginning in early 2014. Staff is recommending the adoption of two separate facility use agreements: ACFD Administrative Offices: The City of Dublin is proposing to enter into a five -year facility use agreement (Exhibit A to Attachment 2) with ACFD for approximately 14,000 square feet of office space at the City's Public Safety Complex located at 6363 Clark Avenue. Under terms of the Agreement, ACFD will pay a monthly rent to the City based on a Total Project Cost formula outlined in the Agreement. In year one, this monthly rent is estimated to be $1.26 per square foot, triple net. The annual payment in year one is expected to be approximately $211,000. The rent will be adjusted annually by three percent (3 %). Maintenance Facility: The City of Dublin is proposing to enter into a 20 -year facility use agreement (Exhibit B to Attachment 2) with ACFD for approximately 18,500 square feet of space (to be constructed) for use as the ACFD Maintenance Facility. The City of Dublin's current Maintenance Facility on Scarlett Court will be converted into two separate facilities: ACFD Maintenance Facility and City's new Maintenance Facility. The proposed use agreement involves a $3.5 million up -front payment from ACFD to help off- set a portion of the City's construction expenses, and ACFD will also pay the City a monthly rent based on the Total Project Cost formula included in the Agreement. In year one, the monthly triple net rent is expected to be approximately $10,800. The annual payment in year one is expected to be approximately $129,800. The rent will be adjusted every two years at three percent (3 %) per year. As part of that Agreement, ACFD will also make a $200,000 payment to the City as a base rent payment for the temporary use of the Public Safety Complex for approximately 12 -16 months while the new ACFD Maintenance Facility is constructed. RECOMMENDED MODIFICATIONS TO FIRE SERVICES CONTRACT In developing the proposed Fire Contract for the period of 2012 -2032, every City Department was allowed to provide input on recommended improvements for this proposed Fire Contract. The City met with ACFD on several occasions to craft the new Fire Contract language using the following mutually agreed to framing elements: • Ensure that the new Fire Contract has overall clarity in all the sections and captures the lessons learned in the previous five years. • Service Levels to the community, particularly the areas of expansion, are clearly stated. • Implement procedures that increase collaboration between the City and AFCD. ITEMS OF NOTE TO THE CONTRACT The proposed new Fire Contract has been reviewed and approved to form by both the City Attorney and County Counsel. Staff is recommending a 20 -year term. Staff believes Page 12 of 13 the 20 -year term is an important new service delivery standard that increases the predictability /stability of the City /ACFD contract and also assists in long -term planning efforts between the two agencies. The term would also be consistent with the Facility Use Agreement for the Maintenance Facility. The City and ACFD agree to jointly prepare a review /analysis of services provided to the City of Dublin every five (5) years and present it to the City Council by June 30 every fifth year. Staff is of the opinion that ACFD has taken its contractual commitment to the City of Dublin seriously. ACFD has provided the City with a high level of service that demonstrates a commitment to superior customer service. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A copy of this Staff Report was provided to the Alameda County Fire Department. ATTACHMENTS: 1. Resolution Approving an Agreement between the City of Dublin and the Alameda County Fire Department for Fire and Emergency Response Services (with 2012 Fire Services Agreement and related Exhibits to agreement) 2. Resolution Approving Facility Use Agreements for Alameda County Fire Department's Administrative Offices and Maintenance Facility (with Agreements included as Exhibits A and B to the Resolution) Page 13 of 13 RESOLUTION NO. - 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE ALAMEDA COUNTY FIRE DEPARTMENT FOR FIRE AND EMERGENCY RESPONSE SERVICES WHEREAS, the Alameda County Fire Department, a dependent fire district, governed by the Alameda County Board of Supervisors and the City of Dublin entered into an agreement for fire and emergency response services on June 17, 1997; and WHEREAS, the current agreement will expire on June 30, 2012; and WHEREAS, the City of Dublin wishes to continue contracting for fire and emergency response services with the Alameda County Fire Department. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the agreement (attached hereto as Exhibit A) by and between the City of Dublin and the Alameda County Fire Department. PASSED, APPROVED AND ADOPTED this day of , 20127 by the following vote- AYES- NOES- ABSENT- ABSTAIN- ATTEST- City Clerk Mayor AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE ALAMEDA COUNTY FIRE DISTRICT REGARDING FIRE AND EMERGENCY RESPONSE SERVICES THIS AGREEMENT is made and entered into this day of 2012, which date is designated for purposes of reference only, by and between the Alameda County Fire District, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors, hereinafter referred to variously as ALAMEDA COUNTY FIRE DEPARTMENT and ACFD, and the CITY OF DUBLIN ( "City "), a municipal corporation. RECITALS A. Since July 1, 1997, ACFD has provided fire and emergency response services within the City, pursuant to an Agreement between the City of Dublin and the Alameda County Fire District regarding Fire and Emergency Response Services. The current agreement is dated June 28, 2007. The original agreement was dated June 17, 1997 ( "the Existing Agreement "). B. The Existing Agreement expires on June 30, 2012. C. Pursuant to Government Code § 54981 and § 55632, the parties desire to extend their relationship, subject to the terms and conditions set forth in this agreement. AGREEMENT In consideration of the mutual promises contained herein, the parties hereto agree as follows: Section 1. Recitals. The foregoing recitals are true and correct. Section 2. Definitions. As used in this Agreement: a. "ACFD" means the Alameda County Fire District (also known as the Alameda County Fire Department), or any successor organization or successor governmental entity. b. 'Board of Directors" is the Board of Supervisors of the County of Alameda acting in their capacity as the Board of Directors of the ACFD. Agreement Regarding Fire and Emergency Page 1 of 27 Response Services - Dublin /Alameda County June, 2012 C. "City" means the City of Dublin. d. "City Council" means the City Council of the City of Dublin. e. "City Manager" means the City Manager of the City of Dublin. f "County" means the County of Alameda. g. "Fire Chief' means the chief executive officer of the ACFD. h. "Fiscal Year" means the annual period commencing on July 1 and ending June 30. Section 3. Scope of Services. Within the boundaries of the City, ACFD shall provide and be fully responsible for the following services. a. Incident Response. 1. General Service Criteria. A. Response Area. ACFD shall provide all services identified below to all areas within the incorporated limits of the City with the following exceptions. (i) No services will be provided to federally owned property within the City generally identified as the Camp Parks Reserve Forces Training Area and Federal Correctional Institution properties, except as provided for under mutual aid agreement. (ii) No fire prevention related services shall be provided to the County Sheriffs property pursuant to this Agreement. Currently, the City is divided into three major response areas for fire and medical incident response. (See Service Area Map attached as Exhibit 1.) The west, central core and eastern most sections of the City receive service from ACFD Station No. 16, ACFD Station No. 17 or ACFD Station 18, depending on which station is closer. The Agreement Regarding Fire and Emergency Page 2 of 27 Response Services - Dublin /Alameda County June, 2012 City receives augmented responses from San Ramon Valley Fire Protection District (SRVFPD) Station No. 39. The City also receives additional rescue and emergency responses from ACFD Station No. 7. Station 16 will usually cover the portion of the City west of Dougherty Road. Station 17 will generally respond to the area of the City between Dougherty Road and Tassajara Road. Station No. 18 will cover the portion of the City east of Tassajara Road. The City will receive augmented responses from San Ramon Valley Fire Protection District Station (SRVFPD) No. 39 into the northwest portion of the City. The City will also receive additional rescue and emergency responses from ACFD Station No. 7. ACFD shall maintain a reciprocal response agreement with SRVFPD that will ensure response to the northern part of the City identified in the Service Area Map attached as Exhibit 1. If SRVFPD gives notice of cancellation of the reciprocal response agreement, ACFD shall immediately notify City and will work with City to find an alternative for providing response to the northern part of the City. B. Station Location/Staffing. ACFD's current response configuration to the City is based upon 5 stations and 6 engine /truck companies as shown below: Current Response Configuration Dublin Station No. 16 1 Engine Company 3 Personnel (8494 Donohue Drive) Dublin Station No. 17 1 Engine Company 3 Personnel (6200 Madigan Road) 1 Truck Company 3 Personnel Dublin Station No. 18 1 Engine Company 3 Personnel (4800 Fallon Road) ACFD Station No. 7 1 Engine Company 3 Personnel (6901 Villareal Drive) San Ramon Valley Fire Station No. 39 (9399 1 Engine Company 3 Personnel Fircrest Lane) Within the City boundaries, ACFD will maintain a minimum staffing level of 12 personnel (4 companies) per shift. Each company shall Agreement Regarding Fire and Emergency Page 3 of 27 Response Services - Dublin /Alameda County June, 2012 consist of 1 captain, 1 engineer, and 1 firefighter. In the absence of ranked positions, qualified personnel will act in the next higher job classification (e.g., Engineer can act as a Fire Captain if qualified). One member of each company on each shift shall be a licensed paramedic. ACFD will ensure that it provides the City with adequate response capabilities in the event that permanently assigned units are not available for an extended period of time. C. Response Levels. ACFD shall respond to incidents as shown in the ACFD Dublin Response Plan attached as Exhibit 2. ACFD will, at a minimum, provide Advanced Life Support (ALS) response, including a 12 -lead EKG and a mechanical CPR assist device on all three frontline companies. No reduction to this service level will occur without the City Manager's approval. D. Response Time. On a single unit incident, ACFD shall arrive at the scene of an emergency incident within five (5) minutes or less from the time that the Company begins responding for 90% of all incidents. In a multiple unit incidents, the first due company shall arrive at the scene of an emergency incident within five (5) minutes or less from the time that the company begins responding for 90% of all such incidents. The remaining units in the first alarm assignment shall arrive at the scene of the incident within ten (10) minutes or less from the time that the first due company begins responding for 90% of all such incidents. In the event that the Alameda County Fire Department is unable to meet the established response time standards, the Fire Chief and the City Manager shall confer regarding ACFD's ability to meet the above stated performance standards and to ensure such performance standards are met in the future at their regularly scheduled meeting. Data on response times will be provided to the City Manager within 30 days of the calendar quarter in which the responses occur. Agreement Regarding Fire and Emergency Page 4 of 27 Response Services - Dublin /Alameda County June, 2012 E. Chief Officer Coverage. ACFD will provide a Battalion Chief response for all first alarm fire and multiple piece incidents. For incidents of two alarms or greater, ACFD will, in addition, provide a Division Chief (or greater rank) response and sufficient management staff to ensure appropriate management of the emergency. F. Utilization of Contract Services outside of the Citv of Dublin. Automatic Aid Plans, Mutual Aid Plans, Borderless Response Plans, Daily Operational Plans, and any other plans utilizing contract fire services assigned to the City of Dublin outside of the City, will be conveyed in writing to the City Manager prior to implementation. G. Mutual Aid. ACFD shall provide necessary services to meet the City's obligations with respect to mutual aid in accordance with, but not limited to, the Alameda County Fire Mutual Aid Plan, and all appropriate state of California interagency service agreements. ACFD shall work to develop expanded mutual aid, automatic aid and mutual response areas with other fire departments adjacent to the City of Dublin to enhance the capabilities of the Livermore Amador Valley's fire protection system. ACFD may enter into such agreements on behalf of the City only with the consent of the City. 2. Fire Suppression. Fire Suppression services shall be provided in accordance with Section 3(a)(1)(A) -(G) above. 3. Emergency Medical Response. Emergency Medical Response Service shall be provided in accordance with Section 3 (a)(1) (A) -(G) above. In responding to Emergency Medical incidents, each engine company will be staffed, at a minimum, with one (1) paramedic and two (2) EMT -I trained personnel. ACFD shall fulfill City's obligations under the City's First Responder Agreements with the Alameda County Emergency Medical Services (EMS) District. ACFD's duty to fulfill the City's obligations under the latter's First Agreement Regarding Fire and Emergency Page 5 of 27 Response Services - Dublin /Alameda County June, 2012 Responder Agreements with the EMS District shall not affect the City's right to receive all revenue from the EMS District due to the City under the above agreements. ACFD shall provide City all specialized EMS programs and training provided to other ACFD communities and personnel. No reduction to this service level will occur without consultation with the City Manager. 4. Hazardous Materials Response. Response to Hazardous Material incidents shall be in accordance with the provisions of Section 3 (a)(1) (A) -(G) above. ACFD will participate in the Alameda County Mutual Aid Agreement with the goal of fully integrating the ACFD HazMat team with other Livermore Amador Valley Fire Departments. ACFD will provide the same Hazardous Materials specialized apparatus and level of service to the City as provided to other communities served by ACFD. 5. Rescue Services. ACFD shall provide the City with rescue services in accordance with the provisions of Section 3(a)(1)(A) -(G) above. ACFD will provide rescue tools for appropriate number of, but no less than two, companies located in the City. ACFD will provide medium level rescue services in the City as defined by the California Office of Emergency Services Rescue Division. ACFD will provide heavy rescue services to the City as defined by the California Office of Emergency Services Rescue Division. This service is available as needed. ACFD will provide trained personnel to perform confined space rescue operation when required in the City. 6. Response to Mass Casualty Incidents. Agreement Regarding Fire and Emergency Page 6 of 27 Response Services - Dublin /Alameda County June, 2012 ACFD shall respond to mass casualty incidents in the City with the same level of response provided to other areas served by ACFD. 7. Other Calls for Service. ACFD shall respond to all other calls for services in accordance with the provisions of Section 3(a)(1) (A) -(G) above. 8. Homeland Security ACFD will represent the City, and proactively participate on its behalf, in the planning, coordination and development of programs to address homeland security threats. The Department will maintain a state of awareness and readiness to respond to incidents impacting homeland security within the City. 9. Major Disaster Response. In the event of a major disaster (e.g., earthquake, flood, or similar disaster), ACFD will supplement the fire personnel assigned to Dublin by providing additional resources for direct response to an incident or move -up coverage from ACFD Stations outside of the City provided that supplemental resources are available. Upon activation of the City's Emergency Operations Center (EOC), ACFD shall provide sufficient staff to operate assigned functions in the EOC. Release of personnel and resources may occur after evaluation of local conditions and upon mutual agreement by the City Manager and the Fire Chief. ACFD shall provide trained personnel who are members of the Urban Search and Rescue Team (USAR) and command level officers who are members of the Alameda County Incident Command Team (ICT) in the event that such personnel are required during a major disaster. 10. Basic Arson Investigation Service. ACFD fire investigators shall be assigned to determine the cause of every major fire (3rd Alarm), fire fatality or explosion within the City and shall conduct an investigation on every incident in which there is knowledge or Agreement Regarding Fire and Emergency Page 7 of 27 Response Services - Dublin /Alameda County June, 2012 suspicion that the crime of arson may have been committed. Investigators shall work with the Dublin Police Services in the investigation process. b. Dispatch Service. Alameda County Regional Emergency Communication Center (ACRECC) supplies dispatch services at the Lawrence Livermore National Laboratory Consortium Dispatch Center. ACFD may arrange for dispatch service through a different provider with the prior written approval of the City Manager, in which case the cost for such dispatch service shall not exceed the amount charged by the then - current provider at the time of the change. C. Community Education. 1. Fire Prevention and Safety Programs. ACFD will coordinate the planning and development of fire prevention and safety education training programs for schools, businesses, community associations, child care providers and other members of the community. Programs to be provided by ACFD shall be as mutually agreed to by the Fire Chief and the City Manager. Current examples of education programs are as follows: Burn Prevention Fire Safety in the Workplace Smoke Detectors Extinguisher Use Stop, drop & Roll Exit Drills in the Home Partners in Fire Safety Juvenile Firesetters Emergency Preparedness Fire in Health Care Facilities 2. CPR Training. ACFD shall provide CPR training to members of the Dublin Community at no charge to the participant, so long as the amount of training is reasonable. This training shall be provided within the boundaries of the City. 3. Neighborhood Emergency Team Program. ACFD shall offer Neighborhood Emergency Team Program training to members of the Dublin Community. This training shall be coordinated with the City's current disaster preparedness programs. Agreement Regarding Fire and Emergency Page 8 of 27 Response Services - Dublin /Alameda County June, 2012 4. Miscellaneous. ACFD shall reasonably respond to specific requests from the community including, but not limited, to Fire Station Tours and Ride- alongs. ACFD will develop specific bulletins and programs targeted to meet identified needs or hazards within the City. Fire Prevention and Life Safety Programs will be tailored to educate City residents and the business community in order to help preserve life and property. d. Fire Prevention. 1. Office Space. ACFD shall maintain an office in the Dublin Civic Center, or such other location as may be designated by the City, to provide fire prevention services. In the provision of those services, ACFD recognizes the need for business retention and attraction in the City and will make every effort to facilitate this goal while at the same time assuring community safety. 2. Fire Inspection Staffing. ACFD shall provide 1 Fire Marshal, as needed, in accordance with the established shared allocation, 1 Deputy Fire Marshal and 1 Fire Code Compliance Officer. The City Manager and the Fire Chief will mutually agree upon changes in the level of staffing, as may be required due to changes in the amount of construction and development in the City. 3. Pre - development Planning. The Deputy Fire Marshal assigned to the City will participate in pre - development planning with assistance from assigned inspection staff. Pre - development planning will include but not be limited to the following activities: A. Preparation of written comments based upon development /construction submittals made to the City; B. Attendance at scheduled meetings with applicants when requested; Agreement Regarding Fire and Emergency Page g of 27 Response Services - Dublin /Alameda County June, 2012 C. Active participation in the development and implementation of the City's One Stop Permit Center process; and D. Attendance at weekly pre - development meetings as required. 4. Plan Submittal Review. Under the direction of the ACFD Deputy Fire Marshal assigned to the City, ACFD assigned Staff will review proposed construction plans in compliance with the City's adopted Fire Codes. Written comments will be attached to approved plans to inform applicants of Fire Department requirements. All plans submitted for Fire Department review will be reviewed by qualified personnel and such review shall be completed within the timelines established by the City, provided such work can be performed with the staffing levels provided by this Agreement. 5. Development Inspection. ACFD shall provide qualified personnel to perform fire inspection of all construction types. Inspection services shall be provided on all business days which are not designated as City holidays. Off -hour inspections shall be made available by ACFD upon mutual agreement between City Manager and Fire Marshal. Inspection services shall be provided in a timely manner as reasonably determined by the City. Inspection services shall verify compliance with the approved plans and adopted City regulations and policies. 6. Post Occupancy Services. A. ACFD will utilize engine company personnel assigned to the City of Dublin to perform pre -fire planning services. Pre -fire plans will be conducted at multi - family dwellings, educational and large retail/commercial business sites to develop familiarity of fire companies with the site, improve operations and identify hazards. B. ACFD shall provide inspection and permit issuance services in accordance with the City's adopted Fire Code. Qualified Fire Inspectors shall provide inspections. C. ACFD shall administer the Self - Inspection Program for non - residential occupancies in the City. Agreement Regarding Fire and Emergency Page 10 of 2] Response Services - Dublin /Alameda County June, 2012 D. ACFD shall review new business license applications in the City for compliance with the City's Fire Codes. Such review shall be provided in a timely manner. ACFD shall conduct a physical inspection of a new business to confirm that there are no existing fire code violations. 7. Uniform Fire Code Administration. A. Under the direction of the City Manager, ACFD will administer and enforce all City adopted fire codes and ordinances and other applicable State and Federal Codes and regulations. B. ACFD will be responsible for monitoring changes to Fire Codes and providing the City with recommendations regarding proposed changes. ACFD will work with City Staff to complete the code adoption process. 8. Weed Abatement and Wildfire Management. A. ACFD will enforce the provisions of the City's Weed Abatement Ordinance. ACFD will administer all aspects of this program. B. ACFD will administer the provisions of the City's Wildfire Management Program. e. Administration. 1. Contract Administration. ACFD designates the Fire Chief, or his or her designee, to represent ACFD in all matters pertaining to the administration of this Agreement. The City designates the City Manager, or his or her designated representative, to represent the City in all matters pertaining to the administration of this Agreement. The parties desire to work cooperatively to ensure that the City receives the highest level of service possible at the least -cost to both parties. Accordingly, the parties desire to set forth a process for reaching agreement on mutually acceptable alterations to this Agreement with regard to service delivery standards and material changes to the budget. Agreement Regarding Fire and Emergency Page a of 27 Response Services - Dublin /Alameda County June, 2012 The City and AFCD will formally notify one another prior to a service delivery change and /or material budget modification. Said notification shall provide adequate time for the other party to provide comment, express concerns and to allow for agreement on the aforementioned changes and modifications. 2. Fire Chief Desi ng ation. The Fire Chief is hereby designated by City as the City of Dublin Fire Chief and shall have and possess such authority as the Dublin Municipal Code and general laws provide for the Fire Chief. 3. Liaison to City. A. ACFD designates the Fire Chief, or his or her designee, as the direct liaison to the City Manager. Liaison responsibilities shall include but are not limited to: (i) Attendance by the Fire Chief or his designee at Staff, Commission, or City Council meetings when requested by the City Manager; and (ii) Meetings with the City Manager as requested by either the Fire Chief or City Manager to discuss budget, operational or other issues that may arise. B. ACFD will promptly notify the City Manager of the following events occurring within the City. (i) Any fire in excess of two alarms; (ii) Any fire fatality; (iii) Major hazardous materials response; and (iv) Serious response - related injury to any firefighter responding to service within the City. C. The ACFD Fire Marshal shall be responsible for the day -to -day operation of the Fire Prevention Division in the City of Dublin. The Fire Marshal shall be responsible for attending all meetings necessary to meet the City's Fire Prevention needs. In the absence of the Fire Agreement Regarding Fire and Emergency Page 12 of 27 Response Services - Dublin /Alameda County June, 2012 Marshal, ACFD designates a Deputy Fire Marshal to assume the responsibilities in Fire Prevention. 4. Fireworks Administration. ACFD will administer the City's Fireworks Ordinance (Dublin Municipal Code Chapter 5.24), which includes accepting applications from qualified applicants, conducting the drawing for booths, issuing permits, and inspecting and monitoring fireworks sales booths. 5. Community Events. ACFD will participate in the planning and implementation of community activities such as St. Patrick's Day, Chamber of Commerce functions and similar events as reasonably requested by the City Manager. 6. Reports and Records. A. Records related to providing services to the City under the terms of this Agreement shall be the property of the City. B. ACFD will maintain sufficient records to enable the City to meet its reporting obligations and needs as they relate to the provision of services as provided for in this Agreement and as such services relate to performance obligations which are provided for in other agreements which the City has or may enter into (e.g., Annexation Agreement, EMS First Responder Agreement). C. ACFD will maintain sufficient financial records related to the performance of services under this contract to enable the City to seek financial reimbursement for disaster response, hazardous material and other incident response for which the City may be eligible for reimbursement. D. ACFD will provide to City Manager all financial and other reports reasonably requested by the City Manager. E. Upon request by the City Manager, ACFD will make available its records for audit and inspection by the City Manager, or his or her designated representative. Agreement Regarding Fire and Emergency Page 13 of 27 Response Services - Dublin /Alameda County June, 2012 F. ACFD will continue to conduct a yearly independent audit of ACFD's financial performance. ACFD shall provide audit reports to the City Manager within thirty (30) days of their publication. 7. Fire Complaints and Requests for Service. A. ACFD shall inform the City Manager of any and all complaints regarding the provision of services to the City by ACFD. B. ACFD shall reasonably accommodate requests for service from the community. Requests for service, which are not included within the scope of this Agreement, shall be provided by ACFD subject to mutual agreement by Fire Chief and City Manager. C. ACFD will provide a high level of customer service to the City in accordance with the City's Customer Service Policy. 8. Fire System Planning. A. The Fire Chief will support the City in planning the extension of fire services and facilities as the City grows. B. If the City requires additional contract services to provide fire and emergency services to areas not currently served by the City through its contract with ACFD, the Fire Chief and City Manager will negotiate a mutually acceptable amendment to this Agreement to provide such services which shall become effective upon approval by the governing bodies of ACFD and City. C. This paragraph shall not apply to those services provided under mutual aid, automatic and /or other interagency response agreements. 9. Fees and Miscellaneous Revenue Collection. A. ACFD will assist the City in the development of an appropriate fee schedule for fire services rendered in the City by ACFD. ACFD will provide all documentation necessary to support the imposition of fees by the City. Agreement Regarding Fire and Emergency Page 14 of 27 Response Services - Dublin /Alameda County June, 2012 B. All fees and other revenues attributable to the provision of services rendered by resources funded by this Agreement shall be the property of the City. C. All fees and other revenues described in paragraph B above shall be collected by the City with the assistance of ACFD when necessary. 10. ACFD Advisory Commission. The City shall be entitled to have one City representative on the Alameda County Fire Department Advisory Fire Commission. 11. Local Identity. It is important that the Dublin community closely identify with the provision of fire services as a municipally provided service. ACFD shall identify fire facilities and apparatus with the name of Dublin so that such facilities and apparatus are clearly visible to the Dublin community. Such identification shall be as mutually agreed to by the City Manager and the Fire Chief. 12. Executive Management Oversight Committee (EMOC) The City shall be entitled to have one City representative (City Manager or his or her designee) on the Alameda County Fire Department Executive Management Oversight Committee. Further, ACFD agrees that any issues with the potential to increase expenditures to the City (i.e., 2% or more of payroll) or matters of significant importance (e.g., public policy, annual budget, addition or deletion of a contracting agency, appointment or promotion of senior management personnel, etc.) be vetted through a consensus process to be developed by the members of the EMOC. Section 4. Facilities. a. Buildings and Real Property. 1. Use of Fire Station No. 16, 17 and 18. City will provide ACFD use of the City -owned Dublin Fire Station No.s 16 located at 7494 Donohue Drive, Station 17 located at 6200 Madigan Road and Station 18 located at 4800 Fallon Road for performance of services to the City of Dublin under the terms of this Agreement. The ACFD will be Agreement Regarding Fire and Emergency Page 15 of 27 Response Services - Dublin /Alameda County June, 2012 provided use of these facilities at no cost to ACFD. Responsibility for maintenance of the building and grounds are as set forth below. 2. City Responsibility. City shall be responsible for grounds maintenance, building repairs, painting, major carpet /floor cleaning, window cleaning, pest control, water softener, fuel tank maintenance, utilities, phone service, and fire alarm service. The scheduling of repairs shall be coordinated with the ACFD designated Facilities Coordinator. 3. ACFD Responsibility. ACFD shall be responsible for dispatch lines and day -to -day cleaning and light maintenance of the facility. Only those actual and direct costs incurred by the ACFD in maintaining this facility shall be charged to the City. Those costs incurred by the ACFD in performing maintenance and repair responsibilities as provided for in this section shall be identified separately by facility on the ACFD's bill for services to the City and on ACFD's annual budget submittal to the City. ACFD shall have no responsibility for maintaining general liability and property insurance for City -owned Fire Stations. 4. Fire Prevention. The City shall be responsible for providing office space and equipment (including computers) for ACFD Fire Prevention personnel assigned to the City to the extent such space and equipment are available. The City will incur all costs associated with providing office space and equipment related to providing services performed pursuant to this Agreement. In the event ACFD utilizes other City facilities to provide ACFD services, ACFD shall reimburse the City for the cost of providing such facilities /equipment as mutually agreed upon by the City and ACFD. This Agreement shall be amended to reflect any such additional terms and conditions. 5. Return Upon Termination. Upon termination of this Agreement, ACFD will deliver Fire Stations 16, 17 and 18 to the City in serviceable condition, reasonable wear and tear excepted. Agreement Regarding Fire and Emergency Page 16 of 27 Response Services - Dublin /Alameda County June, 2012 b. Apparatus /Equipment. Use of Apparatus and Equipment. The City will provide ACFD use of City -owned apparatus and equipment identified in Exhibit 3 ( "City of Dublin Fire Apparatus /Equipment Inventory ") for performance of services to the City under the terms of this Agreement. The City may purchase new equipment and apparatus, as necessary, in order to maintain adequate service levels and to ensure safe working conditions. The City will be responsible for maintaining registration and licensing of City owned equipment. 2. Maintenance. ACFD shall repair and maintain such apparatus and equipment to appropriate and applicable fire service standards. ACFD shall maintain complete maintenance and repair records on all major pieces of apparatus. ACFD shall have no responsibility for maintaining insurance for such apparatus and equipment. 3. Apparatus Replacement. ACFD shall submit a proposed apparatus replacement schedule to City indicating the anticipated dates for replacement of major pieces of apparatus. ACFD shall provide the City with sufficient advanced notice regarding the need to replace apparatus and equipment. City shall bear all costs to replace apparatus and major equipment and may create such reserves for depreciation as may be necessary and prudent for replacement of apparatus and major equipment. 4. Annual Inventory. ACFD shall assist the City in maintaining an annual inventory of City apparatus and equipment. 5. Deletion or Addition of Apparatus and Equipment. Upon agreement between the Fire Chief and the City Manager, individual pieces of apparatus and equipment specified in Exhibit 3 may be deleted from the inventory available to ACFD for performance of services under this Agreement or new apparatus and equipment may be added to such inventory. Agreement Regarding Fire and Emergency Page 17 of 27 Response Services - Dublin /Alameda County June, 2012 Notwithstanding anything to the contrary in this Agreement, such modifications to this inventory shall not be considered an amendment to this Agreement. 6. Return Upon Termination. Upon termination of this Agreement ACFD will deliver to the City all City owned equipment and apparatus forthwith in good and serviceable condition. Section 5. Cost of Services. a. Fire Budget. 1. Operating Budget. For purposes of budgeting for the cost of services to be provided hereunder the Fire Chief shall prepare and submit a budget for the succeeding fiscal year to the City Manager in accordance with the City's budget instructions and required deadlines. 2. Monitor Indirect Charges. ACFD will evaluate the appropriateness of the County's indirect charges and, where necessary, consult, on behalf of all entities contracting with ACFD, with the County regarding indirect charges. 3. Consultation Re Changes to MOU. ACFD will consult with the City regarding any changes to its existing Memorandum of Understanding (MOU) with Alameda County Firefighters Local 55A and 55B or any new MOU which applies to ACFD employees prior to agreeing to such changes or new MOU. 4. Capital Requirements. The Fire Chief will also recommend any capital needs or modification to services, which the City provides to directly support the provision of ACFD contractual service. These recommendations shall be submitted along with the contract Fire Budget. 5. City Adoption of Budget. Agreement Regarding Fire and Emergency Page 18 of 2] Response Services - Dublin /Alameda County June, 2012 The fire budget, as modified by the City Manager as necessary, shall be included in the City Manager's proposed Annual Budget and Capital Improvement Program. The fire budget shall be reviewed, modified (if necessary) and approved by the City Council at the same time and place as the City's Annual Budget. 6. Management of Budget. In accordance with the expenditures authorized by the fire budget, the Fire Chief shall be responsible for managing the fire budget to keep fire expenditures within the amount budgeted. If, during the year, the Fire Chief believes that the approved fire budget is insufficient in any respect to insure the provision of service at the service levels required by this Agreement, he or she shall immediately inform the City Manager in writing specifying the budgetary deficiency. 7. Form of Budget. The budget shall be submitted to the City in a form acceptable to by the City Manager or his or her designee. b. Retiree Healthcare Plan Unfunded Liability The City acknowledges that ACFD has incurred an obligation to fund a retiree healthcare plan for certain of its employees assigned to provide services in the City since ACFD first began providing services to the City on July 1, 1997. The parties hereby agree to negotiate, in good faith, an agreement establishing a fair and equitable framework whereby the City shall fund its proportionate share of ACFD's obligation to provide a retiree healthcare plan for its employees, both retroactively and to the extent that said obligation continues to accrue during the term of this Agreement. The City shall be responsible for its proportionate share of retiree healthcare plan unfunded liability remaining with the ACFD plan if the contract for fire services with ACFD is terminated. c. Payment for Services. 1. City Payment. The City shall pay ACFD the actual cost incurred by ACFD for providing services under this Agreement, which may be more or less than the amount Agreement Regarding Fire and Emergency Page 19 of 27 Response Services - Dublin /Alameda County June, 2012 included within the budget. 2. Quarterly Expenditure Report. No later than 45 days following the end of each quarter, ACFD shall deliver to the City a report setting forth the actual expenditures during the preceding quarter and the percentage of the budget, which such expenditures represent. 3. Method of Billie and nd Payment. The City will pay ACFD monthly within 30 days of receipt of the monthly invoice from ACFD. The invoice amount for the first two months of each quarter will be based on the average monthly budgeted expenditures for the fiscal year contained in the budget provided to the City pursuant to Section 5.a(1) of this Agreement. The invoice amount for the third month of each quarter will be reconciled utilizing the actual quarterly expenditure report for that quarter. If such monthly payments are not received by ACFD within thirty (30) days after the receipt of the quarterly expense statement and or reconciliation statement, ACFD shall recover interest thereon. Said interest shall be at the rate of one percent (1 %) simple interest per calendar month or any portion thereof calculated from the last day of the month in which the services were performed. 4. Billing Dispute. In the event the City disputes any portion of the monthly invoice submitted by ACFD pursuant to Section 5.b(3), the Fire Chief and the City Manager shall meet in order to attempt to resolve the dispute. If the dispute is not resolved to the satisfaction of the City or ACFD, either party may seek any available legal or equitable remedies. 5. Modifications Affecting Billie and nd Payment In the event that ACFD enters into a contract to provide services to another entity, or terminates an existing contract or a portion of the provision of such services, and in the event that the creation or termination of said other contract or partial termination affects the resources and /or costs allocated by ACFD to the City, ACFD, and the City shall negotiate in good faith on a cost /resource allocation adjustment for the next fiscal year. Agreement Regarding Fire and Emergency Page 20 of 2] Response Services - Dublin /Alameda County June, 2012 Section h Personnel No City Liability The City is not liable for compensating ACFD Employees. The City shall not be liable for the direct payment of any salary, wages, or other compensation to ACFD personnel performing services hereunder for the City, or any liability other than that provided in this Agreement. The City shall not be directly liable for compensation or indemnity to any ACFD employee for injury or sickness arising out of his /her employment, except as part of the City's payment of indirect costs and Risk Management cost to the ACFD. b. Labor Relations The Fire Chief shall consult with and advise the City Manager on all matters pertaining to labor relations between the ACFD and its recognized employee organizations, when such matters and the resolution of them may affect the service levels or the City's costs pursuant to this Agreement. Section 7. Indemnification. Mutual Indemnification. Except as otherwise specifically provided in this Agreement or any attachment hereto ACFD shall defend, indemnify, and hold harmless the City, its elected and appointed officials, officers, and employees free and harmless from any and all claims for damage or injury to persons or property whatsoever kind or nature, including consequential damages, based or asserted upon any act or omission of or purported act of omission of ACFD, their elected or appointed officials, officers or employees in connection with or arising out of the performance by ACFD and its elected or appointed officials, officers and employees of this Agreement and with regard to any alleged illegality or unconstitutionality of a County ordinance. Except as otherwise specifically provided in this Agreement or any attachment hereto, the City shall defend, indemnify, and hold harmless ACFD, their elected and appointed officials, officers, and employees free and harmless from any and all claims for damage or injury to persons or property whatsoever kind of nature, including consequential damages, based or asserted upon any act or omission of or purported act of omission of City, its elected or appointed officials, officers or employees in connection with or arising out of the performance by City and its elected or appointed officials, officers and employees of this Agreement and with regard to any alleged illegality or unconstitutionality of a City ordinance. Agreement Regarding Fire and Emergency Page 21 of 27 Response Services - Dublin /Alameda County June, 2012 b. Mutual Indemnification Obligations Survive Termination. The obligations created by Section 7(a) shall survive the expiration or termination of this Agreement as to activities occurring or being carried out during the term of this Agreement in the performance of this Agreement. Section 8. Insurance. a. General Liability Insurance. ACFD shall maintain general liability insurance for the single combined liability limit of not less than $10 million insuring all liability of County, including ACFD and its authorized representatives arising out of and in connection with the provision of service by ACFD under this Agreement. The City shall be named as an additional insured and the policy shall contain cross liability endorsements. An endorsement shall be provided which states that the County coverage is the primary insurance and that no other insurance affected by the City will be called upon to contribute to a loss under this coverage. ACFD, on its own or through the County, may self - insure to these limits of coverage. In addition, ACFD shall maintains general liability insurance, including bodily injury and property damage, involving vehicles, with a single combined liability limit of not less than $10 million insuring all liability of County, including ACFD and its authorized representatives arising out of and in connection with the provision of service by ACFD under this Agreement. The City shall be named as an additional insured and the policy shall contain cross liability endorsements. An endorsement shall be provided which states that the County coverage is the primary insurance and that no other insurance affected by the City will be called upon to contribute to a loss under this coverage. ACFD, on its own or through the County, may self - insure to these limits of coverage. ACFD shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City's forms provided those endorsements conform to City requirements. All certificates and endorsements are to be received and approved by the City. The City reserves the right to require complete certified copies of all required insurance policies, including endorsements affecting the coverage required by this Agreement at any time. C. Workers' Compensation Insurance. Agreement Regarding Fire and Emergency Page 22 of 2] Response Services - Dublin /Alameda County June, 2012 ACFD shall maintain Workers' Compensation Insurance as required by the State of California in Employers Liability Insurance. Employers Liability Insurance shall have limits of no less than $1 million per accident for bodily injury or disease. The ACFD, on its own or through the County, may self - insure to the limits of coverage. d. Prior Workers' Compensation Claims. In accordance, with Section 8.1 of the "Joint Exercise of Powers Agreement/Dougherty Regional Fire Authority," as amended by the First, Second Amendments and Third Amendments, Dougherty Regional Fire Authority will remain fully responsible for all Workers§ Compensation claims filed or incurred prior to July 1, 1997 with respect to the persons identified in Exhibits 4, 5, and 6. The Authority will retain administrative control for purposes of investigation and resolution of open claims filed or incurred by the Dougherty Regional Fire Authority before July 1, 1997, but not closed as of that date and shall retain jurisdiction over such claims until resolution. Workers Compensation claims filed or incurred by any persons identified in Exhibits 4, 5 and 6 on or after July 1, 1997 shall be the responsibility of the County, except for those claims previously incurred before July 1, 1997, if such claim is determined to be a recurrence of a prior injury. The City will be responsible for payment and administration of such claims on behalf of the Dougherty Regional Fire Authority. The County shall be responsible for any claims filed or incurred after July 1, 1997 pursuant to the terms of this Agreement. e. Industrial Disability Retirement. The County Director of Risk Management or his or her designee shall solely be responsible for making determination of industrial disability retirement for CalPERS retirement application for the employees listed in Exhibit 4. Certinn A N4kre11anernic a. Term. This Agreement is for a term of twenty (20) years. It shall continue in force from 12:00 a.m. on July 1, 2012 until 11:59 p.m. on June 30, 2032, unless sooner terminated in accordance with the provisions herein. The City and ACFD agree to jointly prepare a review and analysis of services provided to the City of Dublin every five (5) years. The report shall be prepared and presented to the City Council by June 30 every five (5) years. b. Termination. This Agreement may be unilaterally terminated effective June 30 of any fiscal year, by Agreement Regarding Fire and Emergency Page 23 of 2] Response Services - Dublin /Alameda County June, 2012 either party, by giving written notice of termination to the other party not later than September 1 of the same fiscal year. Upon termination of this Agreement, the City either directly or through its fire service provider shall offer employment to thirty -eight (38) ACFD employees. The City and ACFD will mutually agree on the numbers of each classification. Such ACFD employees shall meet minimum qualifications based upon industry standards for Fire Captain, Fire Engineer, Firefighter, Firefighter /Paramedic, Deputy Fire Marshal, and Fire Code Compliance Officer. The number of offers of employment to be made by the City shall be reduced by the number of resignations, retirements, and or terminations of ACFD Captains, Engineers, Firefighters, Firefighter /Paramedics, Deputy Fire Marshals and Fire Code Compliance Officers, respectively, occurring between the date of notice of termination and the date of termination. For example if two (2) Captains, two (2) Engineers, and one (1) Fire Code Compliance Officer retire from ACFD between the date of notice of termination and the date of termination, City shall make offers of employment to thirty -three (33) employees of ACFD. If more than one contracting agency exercises the termination clause at the same time then credit for retiring employees will be assigned consistent with the allocation percentage of each agency rounded to the nearest whole number. C. Notices. All notices required or permitted hereunder shall be deemed sufficiently given if delivered by hand or mailed, by United States mail, postage prepaid, certified or registered mail, addressed to the parties at the addresses set forth below or to such other address as may, from time to time to designated in writing. To ACFD: Fire Chief Alameda County Fire Department 835 East 14th Street, Suite 200 San Leandro, CA 94577 To City: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 d. Further Obligations. The parties recognize that this Agreement cannot represent a complete expression of Agreement Regarding Fire and Emergency Page 24 of 2] Response Services - Dublin /Alameda County June, 2012 all issues, which may arise during the performance of the Agreement. Accordingly, ACFD and City agree to meet and confer in good faith over any issue not expressly described herein to the end that the City will obtain the best fire and emergency medical services possible under the most favorable economic terms and that ACFD will be fairly and adequately compensated for the services it provides hereunder. IN WITNESS WHEREOF, the City, by resolution or ordinance duly adopted by its City Council, has approved the execution of this contract by its mayor, and the County, by order of its Board of Directors has ratified the execution of this contract by the President of the Board of Directors of the County of Alameda, this day of , 2012. Approved as to form and content: Donna Ziegler, County Counsel County Counsel ATTEST: CRYSTAL K. HISHIDA Clerk, Board of Directors Alameda County, California CRYSTAL K. HISHIDA Alameda County Fire Department, a dependent special district of the County of Alameda, political subdivision of the State of California , President, Board of Directors I hereby certify under penalty of perjury that the President of the Board of Directors was duly authorized to execute this document on behalf of the Alameda County Fire District by a majority vote of the Board on Date: 012. CRYSTAL K. HISHIDA, Clerk Board of Directors, Alameda County Fire District, State of California ADOPTED BY: CITY OF DUBLIN, A Municipal Corporation Agreement Regarding Fire and Emergency Page 25 of 2] Response Services - Dublin /Alameda County June, 2012 By: Tim Sbranti, Mayor Attest: City Clerk Approved as to form: John Bakker, City Attorney Date: LIST OF EXHIBITS Exhibit 1: Service Area Map Exhibit 2: Alameda County Fire Department Dublin Response Plan Exhibit 3: City of Dublin Fire Apparatus /Equipment Inventory Exhibit 4 Agreement between the City of Dublin, the Alameda County Fire District, the Dougherty Regional Fire Authority, and the International Organization of Firefighters, Local 1885, AFL -CIO Exhibit 5 Agreement between the City of Dublin, the Alameda County Fire District, the Dougherty Regional Fire Authority, and Lorilei Wade Exhibit 6 Agreement between the City of Dublin, the Alameda County Fire District, the Dougherty Regional Fire Authority, and T. J. Welch 1824845.8 ,111 co V ���OR �.':•� � ; LIE � � � =- �•►��1 ICJ ii�W..� r �;I ®lil `' ►� `� II � �.� a ��� '�, •, , �� *.r► � � 1 F LL EXHIBIT 2 Alameda County Fire Department Dublin Response Plan Natutt e HYDRANT PROBLEM - LEAKING ACF Response...for :.Battalion ACF Response , for Code Nature Code Description 2, 3 and 4 Battalion 7 AE AIRCRAFT EMERGENCY 3E, IT, IR, 1 BC 3E, IQ, IR, 1 BC GLO ON LAND I E I E OR I Q ASI ALARM SOUNDING - I E I For 1Q LO RESIDENTIAL 1 E or 1 T or I R 1 E or I Q or I R AS2 ' ALARM SOUNDING - I E& I T I E& IQ OF COMMERCIAL 1E I E OR 1 Q PA ALARM SOUNDING 3E, IT, 1R, I BC 3E, IQ, IR, 1 BC TARGET HAZARD BFD BOAT FIRE DOCKED 1 F& IRB I FOR 1Q & IRB BFO BOAT FIRE OPEN 2 RB & IBC 2 RB & IBC WATER CO CARBON MONOXIDE IT and IF IQ and 1E DETECTOR CA CITIZEN ASSIST I E or IT IF or IQ EM. S. EMS RESPONSE l E or I T or I R l E or 1 Q or I R EMSS'` ` EMS RESPONSE- I For 1 T or I R l E or 1Q or I R STAGING REQUIRED EX EXPLOSION 3E, IT, 1R, 1 BC 3E, IQ, IR, 1 BC FC FIREWORKS I For 1 Tor I R wf law I E or IQ or I R wf law COMPLAINT HM1 HAZ MAT LEVEL I IF I E OR I Q HM2' HAZ MAT LEVEL 2 2E, 1T, IBC, HM12, HM25, 2E, I Q, IBC, HM 12, HM25, C 18, Captain 20 & DC C 18, Captain 20 & DC HYD :. HYDRANT PROBLEM - LEAKING I E or I T I For IQ HYDRANT PROBLEM - SHEARED l For I T I For I Q GLi NATURAL GAS LEAK - INSIDE 3E, IT, IR, I BC 3E, IQ, IR, I BC GLO NATURAL GAS LEAK - OUTSIDE I E I E OR I Q LA LIFT ASSIST 1 E or I T or I R l E or I Q or I R LO LOCK IN /OUT 1 E or 1 T or I R 1 E or I Q or I R O ODOR INVESTIGATION I E or 1 T or I R 1 E or I Q or 1 R OF FIRE OUTSIDE A BUILDING 1E I E OR 1 Q PA PD ASSISI' I T or 1 E or 1 R I Q or I E or I R EXHIBIT 2 Alameda County Fire Department Dublin Response Plan Nature ACF Response. for Battalion ACF Response for Code Nature Code.Description 2,3 and 4 Battalion 7 RI:_ RESCUE LEVEL I IE, 1T, 1R & IBC IE, IQ, IR & IBC R2 RESCUE LEVEL 11 3E, 1T, 1R, IBC, C18, Captain 3E, IQ, 1R, 113C, C18, 20 & DC Captain 20 & DC SI SMOKE INVEST l E I E OR 1 T STRUCTURE RESPONSE - 3E, IT, IR, 2 BC & I RIC 3E, IQ, IR, 2 BC & 1 RIC APARTMENT STC STRUCTURE RESPONSE - 3E, 1T, IR, 2 BC & 1 RIC 3E, IQ, 1R, 2 BC & I RIC COMMERCIAL STR STRUCTURE RESPONSE - 3E, IT, 1R, 2 BC & 1 RIC 3E, IQ, IR, 2 BC & I RIC RESIDENTIAL STRUCTURE - TARGET 3E, 2T, IR, 2 BC & I RIC 3E, 2Q, IR, 2 BC & 1 RIC HAZARD TC ` TRAFFIC COLLISION IE and IT or I R IE and IQ or 1 R TCB. TRAFFIC COLLISION - 3E, IT, 1R, 1 BC 3E, IQ, 1R, I BC BUILDING TCR : TRAFFIC COLLISION 1E and IT or I R IE and IQ or 1 R W /RESCUE TRAFFIC COLLISION - 2E and IT or 1R 2E and IQ or IR FREEWAY V VEHICLE FIRE l E I E or I Q VEHICLE FIRE - 1 E from each direction I E or 1 Q from each FREEWAY direction VEG VEGETATION RESPONSE Winter - I E (Type 1, 3, or 4) Winter - 1 E (Type 1, 3, or 4) Fire Season - 3 E (Type 3,4, or or I Q Fire Season - 3 E 1), 1D, I WT, 1 BC (Type 3,4, or 1), 1D, 1 WT, I BC WD WIRES DOWN I E or 1 T I E or I Q WREM WATER REMOVAL I E or I T or I R I E or I Q or I R WRI WATER RESCUE LEVEL I IBC, 2RB IBC, 2RB WR2 WR LEVEL 11 2 RB, 1R, I BC, C18, Captain 2 RB, IR, 1 BC, C18, 20 & DC Captain 20 & DC WR3 WR LEVEL III 2RB, 3E, 1T, IR, 2HM, 2 BC 2RB, 3E, I Q, IR, 2HM, 2 & ACFSTAFF BC & ACFSTAFF CITY OF DUBLIN OWNED FIRE VEHICLES (As of June 2012) Model License # Vehicle ID Number Year Vehicle Description 288033 4PICA02OXMA000146 1991 Pierce (Type 1 Engine) 1265791 4P1CT02S3WA000331 1998 Pierce (Type 1 Engine Quantwn Custom Pumper) 1158594 4P1CT02HX3AO03050 2003 Pierce (Type 1 Engine) 1208825 4PICUOIH05AO05021 2005 Picrce (Type 1 Engine Quantwn 1500 GPM Pumper) 032422 1HTSEAAR7TH264502 1996 International (Type 3 Engine) 1197323 457AT4192YCO33591 2000 Fire Truck 1143437 1FDAX57F02EC28590 2002 Ford Fire Truck 1158563 1FDAX57P33EB49702 2003 Ford Fire Truck ACFD Retains for Multi Agency Use 1994 Pro -Rata - Shared Reserve Truck 1223500 11FTZR45E15PA87981 2005 Ford Ranger 1075543 1FTZR15EX1PB48477 2001 Ford Ranger EXHIBIT 3 AGREEMENT BETWEEN THE CITY OF DUBLIN, THE ALAMEDA COUNTY' FIRE DISTRICT, THE DOUGHERT`X' REGIONAL FIRE AUTHORITY AND THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1885, AFL -CIO This Agreement is dated fo r. identification this ay .of 19.9.7 and is entered into between the City of Dublin, a municip orporation ( "City "), the Alameda County Fire District, a dependent special district and political subdivision of the State of California ( "County "), the Dougherty Regional Fire Authority, a joint powers agency created by the City of Dublin and the City of San Ramon ( "Authority") and the International Association of Firefighters, Local 1885, AFL -CIO, an unincorporated association ( "Local 1 885 "). RECITALS A. Fire and emergency response services within the City have been provided by the Authority since 1988, Prior to 1988 such services were provided within City by the Dublin San Ramon Services. District. B. The Authority will cease to provide fire and emergency, response services and to employ any persons as of June 30, 1997, C. City has determined to provide fire and emergency response services within City's jurisdictional boundaries as of July 1, 1997 by contracting with County. County has indicated its ability and desire to provide such services to City. D, The geographical area of the City of San Ramon which is served by the Authority will be annexed to the San Ramon Valley Fire Protection District effective July 1, 1997. A number of employees. of Authority will become employees of the San Ramon Valley Fire Protection District, effective July 1, 1997. E. City desires to provide continuity of fire services within its geographical boundaries and, to that end, upon cessation of fire services by the Authority, City will require County to offer employment to 36 of Authority's current employees, 34 of whom are represented by Local. 1885 ("Authority Employees "). F. Local 1885 is the exclusively recognized bargaining agent for the employees of the Authority, with the exception of the Fire Chief, Battalion Chiefs Agreement Between Dublin, Alameda County Page I of 9 Fire District and 1 FF, Local. 1885, AFL -CIO April 30, 1997 and Secretary. G. City and County are parties to an agreement entitled "Agreement Between the City of Dublin and the Alameda County Fire District Regarding Fire Protection and Emergency Medical Services" ( "Master Agreement "). H Pursuant.to the Master Agreement, County will provide fire and emergency response services within the jurisdictional limits of City commencing July 1, 1997. I. County is party to a memorandum of understanding with the International Association of Firefighters Local 55-A for the period January 1, 1997 to December 31, 1998 which is applicable to County's classifications of Firefighter, Engineer, Captain and Fire Inspector ( "County MOU "). J. Although the persons listed on Exhibit A are employees of Authority and are. not and have never been employees of City, in order to provide for a smooth transition of fire and emergency response services for its residents, City desires and County agrees to provide certain differences in wages, hours and terms and conditions of employment from those that will apply to such persons once they. become employees of County. IC. The purpose of this Agreement is to set forth the terms and conditions of employment which County shall provide to Authority Employees which-are different than the terms and conditions of employment which would otherwise be applicable to such employees as County employees subject to the County MOU and any future memoranda of understanding or County rules. AGREEMENT Section 1. Recitals The foregoing Recitals are true and correct.and are made a part hereof. Section 2. Offer of E=loyrnent No later than , 1997, County shall offer employment to the 34 employees of the Authority referred to as "Authority Employees" who are listed on Exhibit A hereto. The offers of employment shall be for the classifications shown Agreement Between Dublin, Alameda County Tage 2 of 9 Fire District and 1A F, Local 1885, AFL -CIO April 30, 1997 on such exhibit.' Such offers shall be for employment effective at 12:01 a.m. on July 1, 1997. Section 3 County NM Authority Employees will be subject to the provisions of the County MOU once they become County employees; except as such MOU is modified or superseded in the future or as otherwise set forth herein. Section 4. Sick Leave Balances Authority Employees' sick leave balances with Authority as of June 30, 1997, if any, which do not exceed a total of 2912 hours shall be carried over to County so that such employees will begin employment with County with sick leave balances. When Authority Employees become employees of County they will be subject to the Countys limits on sick leave balances which limit pay off of unused sick leave to 1800 hours and PERS conversion to 2912 hours. The sick leave balances of Authority Employees to be carried over to County are shown on E ibis B. The balances on Exhibit B reflect accumulated sick leave as of December 31, 1996, sick leave earned from January 1, to June 30, 1997, less sick leave used during such time. Section 5, Earned Authority 'Vacation Balances Authority Employees' vacation balances with Authority as of June 30, 1997, if any, shall be carved over to County so that such employees will begin employment with County with vacation balances. Local 1885 agrees that Authority will have no obligation to pay Authority Employees for such vacation balances upon termination of employment by Authority on June 30, 1997. The vacation balances of Authority Employees to be carried over to County are shown on Exhibit as "Earned Authority Vacation Balance" and include the amount of vacation carved over from 1996 ( 1996 Vacation Carryover ") and the amount of vacation time for 1.997 not.used. The vacation balances shown as "Earned Authority Vacation Balance" do not include vacation which was credited by Authority to Authority Employees for the months of July - December 1997. Section 6. Unearned 1297 Vacation Credit County will grant Authority Employees a vacation Credit in an amount equal to the vacation such persons were credited with by Authority as of January 1, 1997, Agreement Between Dublin, Alameda County Page 3 of 9 Fare District and IAFF, Local 1855, AFL-CIO April 30, 1997 for the months of January to December 1997, less vacation taken from January through June but in no event more than one half of the amount of vacation credited on January 1, 1997. Such amounts are shown on Exhibit C as "Unearned 1997 Vacation Credit." "Unearned 1997 Vacation Credit" shall be used only to take vacation in 1997 and 1998 and shall be subject to the following restrictions. a. Such Credits must be used during calendar years .1997 and 1998. If the Credits are not used by December 31, 1998, the Unearned 1997 Vacation Credits will be lost, County will eliminate any unused Unearned 1997 Vacation Credits from its books as of January 1, 1999. b. Authority Employees who resign, retire or are termnated by County prior to use of the Unearned 1997 Vacation Credits will not be compensated in cash by County, City or Authority for any unused Unearned 1997 Vacation Credits. C. Authority Employees may not convert any unused Unearned 1997 Vacation Credits to additional service time for retirement purposes. Section 7. Unearned I 8 Vacation Credits On December 31, 1997, County will credit Authority. Employees with six months of vacation accrual based on County's accrual rate ( "Uneamed 1998 Vacation Credits ") which can only be used in 1998. Such amounts axe shown on Exhibit C as "Unearned 1998 Vacation Credits ". "Unearned 1998 Vacation Credits." shall be used only to take vacation in 1998 and shall be subject to the following restrictions; a. Such Credits must be used during calendar year 1998. If the Credits are not used by December 31, 1998, the Unearned 1998 Vacation Credits will be lost. County will eliminate any unused Unearned 1998 Vacation Credits from its books as of January 1, 1999. b. Authority Employees -Atho resign, retire or are terminated by County prior to use of the Unearned 1998 Vacation Credits will not be compensated in cash by County, City or Authority for any unused Unearned 1998 Vacation Agreement Between Dublin, Alameda County rage 54 of 9 Fine District and W.F, Local 1885, AFL -CIO April 30. 1997 Credits. C. Authority Employees may not convert any unused Unearned 1998 Vacation Credits to additional service time for retirement purposes. An illustrative example of "Earned Authority Vacation Balance," "Unearned 1997 Vacation Credits" and "Unearned 1998 Vacation Credits" is attached as E&H t D. Section 8. Earned Vacation Accrual Authority Employees will accrue vacation on a monthly basis, as provided in the County MOU, beginning July 1, 1997 but will not be entitled to use such vacation until January 1, 1998. Employment with the Authority and the Dublin Sail Ramon Services District will be counted as employment with County for purposes of vacation accrual. Section 9. Deductions for Vacation Use As Authority Employees use vacation during 1997 and 1998, County will deduct for such use from "Earned Authority Vacation Balance ", "Unearned 1997 Vacation Credits ", "Unearned 1998 Vacation Credits" and "Earned Vacation Accrual" in the following order: a. For 1997 1) From Earned Authority Vacation Balance (not including any 1996 Vacation Carryover), up to the amount of such Balance (less 1996 Vacation Carryover); 2) From Unearned 1997 Vacation Credits; 3) From 1996 Vacation Carryover. b. For 1998 1) From Earned Vacation Accrual for 1997; 2) From Unearned 1998 Vacation Credits; Agreement Between Dublin, Alameda County Page 5 of 9 Fire District and IAFF, Local 1885, AFL -CIO April 30, 1997 l 3) From Earned Authority Vacation Balance (not including any 1996 Vacation Carryover), up to the amount of such Balance (less 1996 Vacation Carryover); 4) From Unearned 1997 Vacation Credits; 5) From 1996 Vacation. Carryover. .Section 10. Vacation_ Scheduling County will honor the vacation times scheduled by Authority Employees, as shown on Exhibit E. Section 11. Vacation Slots County will honor two vacation slots for Authority Employees in 1997. Thereafter, one additional vacation slot will be added to the current seven slots County offers to its employees, Section 12. Rromotional Exams Authority Employees may.compete in County promotional examinations, commencing January 1, 1997, as though such employees were County employees Section 13. Overtime List Authority Employees will be placed on County's overtime list using such employees' hours worked for Authority from January 1, 1997 to June 30, 1997, as shown on Exhibit F. Section l4. Seniority_ Authority Employees will be placed on County's seniority list using such employees' seniority with Authority (which includes employment with the Dublin San Ramon Services District), as shown on Exhibit G. Employment with the Authority and the Dublin San Ramon Services District will be counted as employment with County for purposes of layoffs. Agreement Between Dublin, Alameda County Wage 6 of 9 Fire District and IAFF, Local 1885, AFL -CIO .April 30, 1997 Section 15. Salary Stens Authority Employees will be Mired at the salary steps shown on Exhibit Section 16. Trades County will honor any shift. trades made by Authority Employees prior to July 1, 1997, to occur on or after July 1, 1997, provided such shift trades are identified in writing prior to July 1, 19 9 7. Section 17. Transfer of Files All Personnel Files and Medical Files maintained by Authority for the Authority Employees will be transferred by Authority to County on July 1, 1 997. Notwithstanding the provisions of the Master Agreement, County shall be under no obligation to offer employment to any Authority Employee until such person has signed a Waiver and Consent to transfer of such files to County. Section 18. further Action. City; County and Local 1885 agree to take any further actions that are necessary to implement the provisions of this Agreement. Section 12. Effective Date. This agreement shall be effective when signed by all parties. Section-20. Final Exhibits_. Exhibits R, C, E and F reflect data available as of March, 1997. These exhibits will be replaced with exhibits containing the data as of June 30, 1 997 when such data is available. The Authority shall be responsible for preparing such replacement Exhibits and providing them. to all parties no latex- than August 15, 1997. Agreement Between Dublin, Alameda County Page 7 of 9 Fire District and M& F, Local 1885, AFLrCIO April 30, 1997 Approved as to form and Content: KELVIN H. BOOTY, JR, County Counsel By: o ty Counsel LomNzo F ctjAMgLj5s DIANA FLEMING County Risk Manager By: - County Risk Mana r ATTEST:- C ROT/4 C /�, 1-15 9IPA Clerk, Board of Supervisors Alameda County, California C��sT�c k. N�sNrap�— COUNTY OF AIAMEDA., a political subdivision of the State of California, acting on behalf of the Alameda County Fire District�.i r k'NfHf CAR N, President I hereby certify under penalty of perjury that the President of the Board of Supervisors was duly authorized to execute this document on'behalf of the County of Alameda by a majority vote of the Board on�L;c� —_p , 1997; and that a copy has been delivered to the President as provided by Government Code Section 25103. Date: JUN 2 41997 ,. WW410- C P-1-5,T14 �V I& t115 /DA, Clerk Board of Supervisors, County of Alameda, State of California .Agreement Between Dublln, Alameda County Page 8 of 9 Fire District and UFF, Local 1885, AFL -CIO April 30, 1997 f ADOPTED BY: �M CITY OF DUBLIN, A Municipal Corporation By: _Pz�� 1 4 GUX OUSTON, Mayor Attes 5_� .G I(AY K, &1ty Clerk Approved as to form. ELIZABETH H. SILVER, City Attorney DOJGHERTY' REGIONAL FIRE AUTHORITY By: ' nmey, Ch ers of Board of Directors INTERNATIONAL AS SOCIATION OF FIREFIGHTERS, LOCAL 1885, AFL -CIO By: Its: J :1WPD1MNRSW1114\AGREE \95WF1885. DF3 i;HS :rja ..Date: Date: Date: _ S7—/S--q7 Agreement Between Dublin, Alameda County Page 9 of 9 Fire District and iAFF, Local 1885, AFL -CIO April 30, 1997 LIST OF EXHIBITS Exhibit A - List of Employees Exhibit B - Sick Leave Balances Exhibit C - Earned Authority Vacation Balance and Unearned 1997 and 1998 Vacation. Credits Exhibit D - Earned Authority Vacation Balance? Unearned 1997 and 1998 Vacation Credits - Illustrative Example Exhibit E - Vacation Schedules Exhibit F - Overtime List Exhibit G - Seniority List Exhibit H _ Salary Steps EXMI T A LIST OF EMPLOYEES Names Position 1. Andreasen, John Henry Firefighter 2. Atnip, Steven Edward Firefighter 3. Becker, Michael Alexander Captain - 4. Benfield, Daniel Ray Fire Fighter/Paramedic 5. Bestrop, Peter Allan Fire Fighter/Paramedic 6. Call, Jaynes Wolcott Captain/Paramedic 7. Camacho, John Gordon Engineer 8. Ceizler, Danielle R Fire Fighter/Paramedic 9. Charlberg, Jerome Albert Firefighter 10. Chase, William Edward, Jr. Engineer 11, Clemena, Pablo Castillanes Engineer 12. DeCou, Edward James Engineer 13. Eaton, David Matthew Captain 14. Eaton, Robert Edward Engineer 15. Green, Timothy Firefighter 16. Hall, Richard Charles Jr. Captain 17. Hampel, Christopher Charles Captain 18. Hartwig, Dale James En' neer 19. Horton, Allen Phillip Firefighter 20. Hunter, Steven Hary Captain 21. Johansen, Ronald Joseph Fire Fighter/Paramedic 22. Leen, Terrance Phillip Engineer 23. McClintic, John Robin Fire Fighter/Paramedic 24, Pinto, Marls Edward Engineer 25. Rawson, Gerard Thomas Engineer 26. Reid, Russell J. Fire Inspector 27. ' Schnepp, Joel Robert Fire Fighter/Paramedic 28. Silva, Jeff Bernard Captain 29. Silva, Joseph M. Firefighter 30. Snodgrass, Robert Allen Fire Inspector 31. Stielstra, Scott Owen Fire Fighter/Paramedic 32. Sutterley, Christopher Paul Captain 33. Thomas, Andrew Rex Captain 34. Zoggas, Constantinos (Dino) Captain J:IWPDIMNRS'W1134\AGUE \95WFi 885.EXA Exhibit Page 1 of 1 EMPLOYEE SICK LEAVE BALANCE* Hunter, Steven Nary 1771.3 Johansen, Ronald Joseph 405.1 Leen, 'Terrance Phillip 1104.5 McClintic, John Robin 1486.3 Pinto, Mark Edward 1313.5 Rawson, Gerard Thomas 1739 Reid, Russell J. 277.5 Schnepp, Joel Robert 324.75 Silva, Jeff Bernard 2444.5 Silva, Joseph M. M1.5 Snodgrass, Robert Alien 222.5 Stielstra, Scott Owen 948.75 Sutte- ley, Christopher Paul 2153.8 Thomas, Andrew Rex 2495 Zoggas, Constantinos (Dino) 4106.3 ** * As of 3 -30 -97 ** Cannot exceed 2912 hours. j.%rPD\M NRSW\1 J 4AGRE E195WF 1885.EXB Sick Leave Balance Exhibit B Wage 2 of 2 r EXHIBIT C J -�` - �i19.7U�L�r MUCslllri� - �1 A j/ �'T/°S I�EIY;_�� H1..IJ.,I7ORIJI EPI Y r�(��y J � EM�L4MYE� ; �LCATl�1�1 'i~I 97,= i T 97 E UA AT1 ©1 �. _. I�7�7:i -- VA�i�i iON ACATION ARRY�17`E #d 61T 3fn:6�R 9T ' =tBA1�ANC - `CREDITS =CREDITS .'L5 'C } _ ++!�� -n-i MS�� _- Andreasen, John Henry 102.67 108 -72 138.67 108 120 Atpip, Steven Edward 73.17 108 -168 13,17 108 120 Becker, Michael Alexand+;r 216 108 , -288 36 108 120 Benfield, Daniel Ray 132.91 108 -72 .168.91 1081 120 Bestrop, Peter Allan 24.5 108 0 132.5 108 120 Call, .lames Wolcott 12.23 60 -40 32,23 60 120 1Camacho, John Gordon 68 108 1 -621 114 108 144 RGeizier, Danielle R. 18 72 -40 50 72 $4 arlberg, Jerarne Albert 222.58 108 -48 282.58 108 120 Chase, William Edward, Jr. 216 108 -72 2521 1081 120 Clemena, Pablo Castiilanes 65 108 -58.751 114.25 1081 120 DeCov, Edward James 25.75 120 -24 1- 2 120t 144 Eaton, David Matthew 38.51 108 -131 15.51 108 1201 Eaton, Robert Edward 46.51 108 -168 -13.5 94.5 1441 lGreen, Timothy 55.251 108 -2401 � -76.75 31.25 =Hall, Richard Charles Jr. 231 120 -119 24 120 144 Hampel, Christopher Charles 01 120 -168 -481 1201 144 Hartwig, Dale James 68.58 1 108 -601 117.581 10,91 1441 Horton, Alien Phillip 158.83 1081 01 266.831 108 120 Hunter, Steven Harry 1 0.83 120 -146 - 25.171 .94.83 1 144 Johansen, Ronald Joseph 58.75 108 �3 163,751 108 1441 been, Terrance Phillip 136 108 -72 172 1081 1201 McClintic, John Robin 120.42 108 -63 165.42 108 120 Pinto, Mark Edward 48 120 -721 961 120, 144 Rawson, Gerard Thomas 2401 12Q -361 3241 1201 144! Reid, Russell J. 62.66 40 -161 86.66 ' 40 Schnepp, Joel Robert 57.51 108 01 165.51 1081 .60 841 Silva, Jeff Bernard 149.75 120 -961 173.751 1201 144 Silva, Joseph M. 4.5 108 -'132 1 -19,5 88.51 120 Snodgrass, Robert Allen 9.66 40 -81 41.66 401 601 Stieistra, Scott Owen 149 108 -72] 108 1201 Sutterley, Christopher Paul 97.75 120 -120-1 97.75' 120 144 Thomas, Andrew Rex 17.75 1201 -2381 - 100.25 19.75 144 Zoggas, Constantinos (Dino) 771 1.201 -1681 291 1201 1441 `Reflects vacation scheduled to be taken; to be revised as of 6- 30 -97. - Hours credited on 1 -1 -97, minus vacation taken, but no more than one half of hours credited on 1 -1 -97. *"Based on years with DSRSD & DRFA at County accrual rate of 0-4 years = 7 shifts, 5-14 years 10 shifts, 15+ years = 12 shift j:NwPdlmnrsw1114tagre e1951ia r EXHIBIT E Vacation Schedules Exhibit Page 1 of 6 VACATION EMPLOYEE' Andreasen, John Atnip, Steven Edward Becker, Michael Alexander Benfield, Daniel Ray Bestrop, Peter ,Allan Call, Tames Wolcott Camacho, John Gordon SCHEDULES - VACATION SCHEDULED. Dates 4/3/97 - 4/4!97 Hours 24 6/28197 - 6/30/97 48 7/2/97 - 7/12/97 96 8/3/97 - 8/8/97 5/23/97 - 5/28/97 72 72 8/30/97 - 9/4/97 6/1/97 - 6/15/97 72 144 9/8/97 - 9/22/97 5/1/97 - 5/6/97 144 72 8/6/97 - 8/11197 72 12/1/97 - 12/2/97 24 12/3/97 - 12/4/97 24 12%5/97 - 12/6/97 7110/97 - 7/10/97 5/2/97 - 5/3/97 24 72 24 8/9/97 - 8/14/97 72 11/25/97 - 11/30/97 72 12/13/97 - 12/18/97 72 Vacation Schedules Exhibit Page 1 of 6 EMPLOYEE EE Ceizler, Danielle R Charlberg, Jerome .Albert Chase, William Edward, Jr. Clemena, Pablo Castillanes DeCou, Edward James Eaton, David Matthew Eaton, Robert Edward VACATION SCHEDULED Dates 3/30/97.- 3/31/97 Hours 4 4/26/97 12 6/28/97 - 7/3/97 3/20/97 - 3/21 /97 72 24 3/22/97 - 3/23/97 6/1/97 - 6/3/97 24 48 11/25/97 - 11/30/97 3/21/97 72 5 3/30/97 3.5 7/25/97 - 7/30/97' 72 11/19/97 - 11/24/97 72 12/16/97 - 12/21/97 7/7/97 - 7/12/97 72 72 9/17/97 - 9/22/97 3/27/97 - 3/28/97 72 24 3/29/97 - 3/30/97 24 3/31/97 - 4/1/97 24 4/16197 11 9/5197 - 9/10/97 4/20/97 - 4/21/97 72 24 4/29/97 -4/30/97 24 5/30/97 - 5/31/97 24 6/17/97 - 6/18/97 24 11/27/97 - 11/18/97 24 Vacation SChedtdes 5N it,E Page 2 of 6 Vacation Schedules Exhibit F� Page 3 of 6 EMPLOYEE 'V'ACATION SCHEDULED Dates Hours 719197 - 7/9/97 72 Johansen, Ronald Joseph 9/23/97 - 9/28197 72 10/2/97 - 10/7/97 48 7/28/97 - 812197 72 9/6/97 - 9/7/97 24 Leen, Terrance Phillip 10/17/97 - 10/18/97 24 12/28/97 - 1/2/98 72 McClintic, john Robin 8/12197 - 8117/97 72 10/5197 - 10/10/97 72 5/20/97 - 5125/.97 72 7/31/97 - 8/5/97 72 8127/97 - 9/1197 72 Pinto, Mark Edward 9!7!97 12 9/14197 - 9/17/97 12 1.1/2/97 12 11/9/97 12 1 1/16/97 12 4%19/97 24 6/19/97 12 7120/97 12 Rawson, Gerard Thomas 8/3/97 - 8/4/97 24 8/21/97 - 8/26197 72 11/1/97 12 12/16!97 12 12/25/97 - 12126197 24 Vacation Schedules Exhibit E EMPLOYEE Reid, Russell j . Schnepp, Joel Robert Silva; Jeff Bernard Silva, Joseph M. Snodgrass, Robert Allen Stielstra, Scott Owen Sutterley, Christopher Paula VACATION SCHEDULED Dates' 4/3/97 - 4/6/97 Hogs 16 4/7/97 8 5/29/97 - 5/30/97 16 8/25/97 - 8/29/97 40 11/10/97 7/1/97 - 7/2/97 8 24 7/3197-7/4/97 24 7/5/97 - 7/6/97 4/8/97 - 4113/97 24 72 6114/97 - 6/15/97 24 7/20/97 - 7/21/97 24 11/19/97 - 11/24/97 6/22/97 - 6/27/97 72 72 8/15/97 - 8/20/97 72 12/19/97 - 12/24/97 5/23/97 72 8 11/26/97 8 12/26/97-1 2/29/97 5/20/97 - 5/25/97 4/2/97 - 4/3/97 16 72 24 4/20/97 - 4/21/97 24 4/22/97 - 4123/97 24 4/24/97 - 4/25/97 24 8/6/97 - 8/10/97 72 8/24,197 - 8/25/97 24 Vacation Schedules Exhibit E Authority Employee (until 6- 30 -97) Position 1996 1997 Vacation 6 -30 -97 Authority Vacation Vacation Used 1997: Terminated Vacation Balance Carryover Credited ( Lhru (amount Credit • on 14-97 6-30 -97) would be paid off) 'ire 20 120 120 20 - Vacation Unused igllter Carryover Vacation "aptain 0 120 160 ( -40) EXHIBIT D .Illustrative Example (hi - hours) County Employee (beginnin Earned Uneatned Vacation Vacation Earner Authority 1997 Taken Carryover as Vacatic Vacation Balance Vacation 7197 thru of 1/1/98 Acc€ . Credit • 12/97 7197 t 12/97 1996 1997 Vacation Unused Carryover Vacation 120 140 0 120 20 0 0 0 80m 60 20 12C *240 hours credited on 1 -1 -97, reduced by 120 hours as of 6- 30 -97. -Lost if not used by 12- 31 -98. iiEmployee receives 80 hours, not 120 hours, because he/she had a negative balance of 40 hours on 6- 30 -97. 0 Assumes 240 hours per year from County. Earned Vacation Balance, 1997 Vacation Credits and 1998 Vacation Credits j:1W PD1 MNRSW11141AG1ZER951iAFF1885.EXD EMPLOYEE Thomas, Andrew Rex Zoggas, Constantinos (Dino)2g VACATION SCHEDULED - Dates 419/97 Hours 10 4116/97 10 .4/23/97 - 4124/97 24 4/27/97 - 4/28/97 24 5/4/97 - 5/5/97 24 5/11197 - 5/12/97 24 5/15/97 10 5/29/97 10 6 /16/97 -.6/21/97. 72 7/15/97 4/22/97 - 4124/97 12 48 . /R7 - 5/3197 72 7/28/97 - 8/2/97 72 J.\WPD\MNRSW\l MA ;R- P- M95VAFF1$85,F -XE Vacation Schedules Exhibit E EXHIBIT P OVERTIME LIST EMPLOYEE OVERTIME HOPIS Andreasen, John Henry 202.50. Atnip, Steven Edward 108.0 Becker, Michael Alexander 158.0 Benfield, Daniel Ray 42.75 Bestrop, Peter Allan 49.0 Call, James Wolcott -0- Carnacho, John Gordon 80.0 Ceizler, Danielle R. 42.0 Charlberg, Jerome .Albert 136.0 Chase, William Edward, Jr. 141.50 Clernena, Pablo Castillanes 148.75 DeCou, Edward James 86.0 Eaton, David Matthew 168.0 Eaton, Robert Edward 62.50 Green, Timothy 100.25 Hall., Richard Charles Jr. 237.75 Harnpel, Christopher Charles 129.50 Hartwig, Dale James 133.50 Horton, Allen Phillip 140.25 Exhibit F Page i of 2 EMPLOYEE OVERTIME HOURS Hunter, Steven Hary 144.50 Johansen, Ronald Joseph 88.25 Leen, Terrance Phillip ..1.03.0 McClintic, John Robin 48.0 Pinto, Mark'Edwar;d 138.50 Rawson, Gerard Thomas 107.75 Reid, Russell J. -0- Schnepp, Joel Robert 56.0 Silva, Jeff Bernard 214.75 Silva, Joseph M. 140,0 Snodgrass, Robert Allen -0- Stielstra, Scott Owen 99.0 Sutterley, Christopher Paul 145.0 Thomas, Andrew Rex 177.0 Zoggas, Constantinos (Dino) 115.50 J:`WPDIMNRSW1t t 41AGREEW5VAPPI885IXF Exhibit 1; Page 2 of 2 N ALAMEDA COUNTY FIRE 0WARIMENT Senlality List Name KELLOGG, KYLE Al PRYOR, WILLIAM E GODBIER, THOMAS A. LINDBERG, CLYDE 0 DAADVE Y, NORVEL GHUZA, BRUCE s HOPKEN, DENNIS C DAVICOVICH, STEVEN M ZOGOAS, CONSTANT1N09 JOHNSON, RALPH C MOORE. RAM3ALL J CORDIERE, PATRICK SMITH, WILLIAM C HENDRICKSON, JAMES G HALF JR, EUGENE: V FERGUSON, RICHARD IVEY, 0. NRALPH" CARLSON, GARRY L TIODETS, DAVID K iARSEN, EDWARD B KA110, DARRYL W YOUNG, LARRY W MOLL, NORMAN D STAYSA, DONALD R ANDERSON, flONALRD SOUZA, RODNE_Y J LAKES, JAMES E DUARTE, PAUL L. BRIGGS, STEPHEN P DAILEY, PATRICK W CANDEIARIO, MICHAEL A LANE, JAMES N VALENTINE, BALE A FRANKS, HOLLIS 0 MoUREW, RQDNEY K DAL PIANO, PAUL. R GIiOM STFPHEN A LEMOINE, JAMES D RANK SENIORS i i Page 1 [Sitar Time) Eire Dept] FD only Lay -alt/ Lsy -off Vaa Sol Vac Sal Vao Acrl Vac Acrl 8r1i0flty # 1=D DOH at] Date Emp ID /paq Itari< L�IflmO Da18 1 3/1166 1 311/06 6 CAFE 7/1178 .2 811/611 2 811168 132 CAP -E 9116187 3 711167 3 711167 8 ENG,E 4113171 4 10110/67. 4 10/18167 10 FF -F b 8116188 6 8116188 11 CAVE; 2116190 10/11E18 8 1011168 - 12 CAPE .711187 7 1116169 7 1118189 134 ENG-E 411174 @ 6/6189 8 616169 135 ENG•FIH 111178 a 6/1!89 9 811168 221 CAP -E 611/89 10 115170 10 115170 136 ENG-E 411174 11 3126170 11 3126170 13 CAPE 12 /1 BIB 6 12 - 411170 12 4/1170 137 CAP -E 311177 I3 6/1170 13 Wi170 16 CARE 711187 14 511/70 14 511170 16 CARE 7116186 16 711170 18 711170 18 I_NG•F 211179 16 101100 16 1011170 138 ENG-E 111174 17 1011170 17 10!1170 i 39 ENG-E 111174 18 1111170 18 11/1170 19 CAP-Ir 4116185 19 111171 19 1/1171 22 CAPE ' 11115/136 20 11i171 20 111171 23 CAPE 711/84 21 114171 21 114171 140 CAPE 10/18176 46 813174 22 411/71 156 ENG -E 1011178 22 11/1171 23 11/1171 24 ENG-E 811177 23 11115171 .24 11/16171 25 ENG -E 711183 24 1211171 25 12/1171 26 CAPE 811177 25 6/1172 26 611172 142 CARE 011181 26 811 8/72 27 8/10/72 29 CAPE~ 8116181 66 10/1/7€1 28 711172 .44. rF.E 36 10/1173 28 Rfi8172 147 ENG-E 1011177 27 1211172 30 1211/72 30 CAPEIH 4178180 28 111/73 31 111173 .31 CAP -E 711/87 29 211173 32 211173 32. FF -E 30 2110173 33 2118173 143 ENG-E 1011177 31 &13173 34 613173 33 FP.E 32 7 /6/73 36 715173 34 CAP-15= 4125193 33 7118173 36 7118173 144 CAP -E 811181 34 7116173 37 7116173 140 FF-E 86 1011173 $8 1011173 148 ENG-E 1/1181 Page 1 RANK SENIORITY ALAMEDA COUNTY NRE DEPARTMENT Sonlotity List I Promo Da14 GAPE 9116187 lFrmr Tine) CAP•)± Fire Dept) FP nhly Lay -off/ Lay -off 4/15186 CAPE Vac Sal Vac eel Vac Awl Vac Awl ENG -E Namo Sallotlty # FC DO" # Da1a Emp 00 CENTOM, GARREfT F 37 ID /1175. . 30 1011173 149 JER03, ROBERT M 38 111173 40 1011173 160 SOLOMON, RICHARD F 39 1D11173 '.. 41 1011173 151 1GA5PAR4, WWAM A ...4o .511/74 42 011/74- 37 DA1LE:Y, JOHN G 4.1 if 10174 3 611£ 174 38 WUCHERER, MICHAEL A 42 011/74 44 911174• 39 LIfMM, THOMAS C 43 Z913174 46 913174 152 PLATEN, LARRY H ' 44 !913174 46 013/74 163 OATTONI, FRANK W 46 1013f74 47 813174 164 SKAGGS,-GERALD R 47 19/3174 48 913)74 167 FISHER, GREGORY F 48 1x'12174 49 12f 12J74 40 ILIOOM ROREAT J 48 W21176' 50 9121/75 41 WOOD, JR., WILLIAM 8 93 &118180 51 10111176 181 THOMAS, ANDREW REK so 10116/78 .62 10115176 222 I QVFSINGER, STEPHEN H 61 'L2f1/76 53 1211/76 43 BROWN, RICHARD A 62 - 4/1174 64 411/76 44 BARROW, PAUL, 6 83 1 U16178 55 411178 176 VALLWO, DONALD E 63 1110176 56 6/16/76 45 DFAN, FRE'DER1CK W 142 8/1186 637 616176 83 NELSON, JAMES T 64 4116174 68 8/18/76 169 SALAICI:S, RICK V 55 4118176 Fig 8116178 160 KIELY, JOHN E 67 10/24174 80 10124170 47 SPURS, 9013ERT 9 e4 8/1177 81 2/1/77 161 FARRELLE, STANLEY P 58 311/77 82 711177 48 HAYES JR, KENWARD R 6t3 811177 63 811177 49 PEELER, JOHN L 60 8/1177 04 811177 64 SILVEIRA, KENNETH P' 61 811177 0[1 811177 52 KOLDA, RICHARD J 82 811177 66 811177 63 FE:RNANDEZ, GREGORY J 83 811177 67. 8/1177 64 BANCHER0, JOSEPH as 8118177 98 9/18177 182 SCHULTZ, RONALD L 88 81111177 88 8/18177 183 DAVISON, KE:NWTH W 67 3116177 70 8118177 164 DECOLI, EDWARD JAMES 68 911177 71 911177 221 RAWSON, GERARD THOMAS 88 911/77 72 911177 223 'ENIfMM, MARK T 146 112188 73 9118177 185 80131SON, JAMES E 70 1111781 74 111178 65 SORE:NSEN, PETER C 71 211175 . 75 211179 186 DOTTORP-F, EDWARD 72 211178 76 211178 167 Fags 2 Rank I Promo Da14 GAPE 9116187 FF -E CAP•)± 9/ 10/87 ENG -E 2/1/78 CAP -E 4/15186 CAPE 411130 CAP - E 111186 ENG -E 8/I 6178 FF >; CAP-E 9118/#7 ENG -E 411 &80 CAPE 6JZ9188 CAP -E 9116187 CAP -E 121191$4 ENG -E 1211 8184 CAP -Ells 611183 FF-E CARD 8118186 ENG -E 2116180 FF -!: CAP -E 7/1/84 FF-I= CAT,! 411188 CAPE: 7111186 CAPE: /H 12/16184 FF-E ENG -E; 11/1181 CAP -E 011t91 CAPE 111190 E NG -E 811188 FF -9 CAA.! 1 11160 ENG -J 1 /08 ENO-E }/7193 FP -E CAPE 911 /61a FF -E CAP -E Ei /1l8A RANI{ SENIORITY 1 AIAMWA COUNTY nHE DEPARTME=NT 681110MY List {Frmr TIne) I Flre Dept/ 1=D only La"If1 L8y -oft Vac so) Vac Sal Vaa Acrl •Vac Act1 Name SO-010thy FD DOH 1 080 Emn IDJBdU Y - Rank 1'r0mo 13ato I BENNARDO, MICHAEL 73 2/1178 .77 2/1/78 168 FF -E ARDELI_, 7HA0 A 74 .211178... 78 211/78 tea ENG -E 411188 McKENNA, OMAN M . 76 2/1178 79 211178 170 FF -E . STEPMAN, LYLE: J 78 2!1178 80 • 211!78 171 FF -E KERSiET-TER, KRIS .K 77 211178 81 211178 172 CAP•1r 9116187 TRUJILLO, WILLIAM P 81 1111,6178 82 2116/78 - 67 CAP -E 711100 HALL JR, RICHARD CHARLES 78 . 411178 83 411178 .225 CAPE 12118!€14 SUiT£RLEY, CHRISTOPHER PAUL 79 4/1178 84 411178 228 CAPE 711187 KNIGHT', LUSTER L SO 811/78 8$ 811178 174 FF'•E . HOLIVIG111EN, £RIC S 82 '11/10/78 80 '11118/78 1711 ENG•E 8118183 EENRIGHT, HIC1-IARD F 166 811180 87 4129170 92 FF -E /H CHIMENTO, NICK V 84, 6/1179 88 &11178 89• Fr Inep 3118J:1Ea T.ERZ IAN, TIM 86 911W79 89 9116179 00 ENG•E 211/88 CYSEWSKI, MICHAEL 80 1611179 90 1011179 61 CAPE IofIi, /" BOGGS, JR- THOMAS 87 1111179 91 11/1179 177 ENG•E± 011 /65 CHEW, FI NCIS L 88 1111172' 92. 1111179 178 FFE FRAGO, ROGER A 89 1111179 93 1111179 179 1ENG -E 1111/04. PURCHIO, JAMES J 90 1111/79 94 1111179 180 CAPE 8116187 RAMSEY, JEFFREY J 91 1/18180 !96 1/18180 63 CAP -E 6/1/91 HUNTER, STEVEN HARRY g2 211180 86 211180 227 CAP -E 1 2/1 1318 4 COLLYER, MARK A 114 411184 97 6117180 188 FF-E MILAN, RICHARD L 94 9/10180 98 9118180 182 CAP -E 8118187 BAUMAN, RODGER L 96 9119180 89 9118180 183 ENG-8 8111136 CASTRO, THOMAS M 90 9118180 100 9118180 184 ' ENQ -E 9118187 SILVA, JEFF BERNARD 87 1118180 101 1118180 228 CAf>.E 11114!68 BODNAR, ROBY D 98 12116160 102 12118/86 64 ENG-E 611188 CONOVER, TEE) E 09 10111/31 • 103 10 /1161 as CAP-E 111190. PINTO, MARK EDWARD 100 11/1/81 104 11/1181 229- ENG.E 111163 GAMACHO, JOHN GORDON 101 1/11/82 106 1/11182 230 ENG•E 111163 1-1AMPEL , CHRISTOPHER CHARLES 102 1/111132 108 1111182 231 CAP-!_ 2111F14 HARTWIG, DALE JAMES 103 1111/82 107 1111182 232 - ENQ•E 1!1/93 ALTEMUS, RICHARD A 104 1116182 108 1118182 186 CAPE 1017189 JOHANSEN. RONALD JOSEPH 105 2/11/82 109 2/1182 233 FI~-E DUGAN, RVVIN H 150 8118186 110 311182 20[3 ENG -E 111101 461-EY, JOHN L 106 3118182 111 3116182 86 FF -E EATON, ROBERT EDWARQ• 107 5116182 112 6118182 234 FN6.E 111193 BECERRA, 1MOBERT L 1o8 811182 113 811182 07 ENi1•E 1011188 HERMANSON, CHARLES S 109 8/1182 114 811182 88 CAP,5 1118/$7 • Paga 3 • j RANK SENIORITY ALAMEDA COUNTY NRE DEPARTMENT 1 1 Sen€orE v List J rnv Time) Fro Dept! FD only Ley -oft/ Lay -off Vac 8ef Vac Sal Vac Acrl V &o Antl Name - — seniority # FD DOH # Date Emp iC11Bdq � Protr�o t)ate _ BAILEY, BRIAN S 110 .811182 116 811182 69 _lisn� ENG -e 711!81 LITTLE, PREDS 111 .1011182 116 .1411182 70 ENG-E 9111if87 TEUALDI, DAVID M 112 .1117182 117 11%7182 71 ENG -E 7�1f93 EVANS, ALAN A 148 411 U06 ' ` `118 7121/83 88 Fr-E O'HARA, DANIEL T 1.13 411184 -119 411184 187 CAPE 101;1189 YOUNG, STEVEN M 116 411184- 120 4/1184 -109 FF•E D €LLION, WILLIAM "71M" 116' • 411184 121 411/84 190 rF•E BECKER, FAICHAELALEXANG'ER 117 4/1/84 122 411184 236 CAPE XU03 CHASE JR, WILLIAM EDWARD 119 411/84 123 411154 237 ENG-E 1;1193 LE01, TERRANCE PHILLIP 118 4/1184 124 411/84 236 ENG -E 1:1/93 MOULTON; RAYMOND E 120 4116184 125 4116184 72 FF -E HORTON, ALLEN PHILLIP 121 BIIJ84 126 611184 238 FF.E TOWNS, CHARLES A 122 711/84 127 711184 73 ENGE 91 €6187 $CHORD,11i, ROBERT 149 611a18B 128 711/84 19S ENGE 7118191 CLEMENA, PABLO C/ISTILLANES 123 711184 129 71i/84 239 ENG-E 111lB3 O'BRIEN, JOHN J 124 8116184 134• 8/16184 74 E1VG 1 9/' 8/9i ARGANEIRIGHT, MARK 125 8117184 131 9/17184 191 FF-E , DOAN, SCOTT F1 .128 9117184 132 9117184 182 Fr-E FIGOERA, RONALD 8 127 9111184. 133 9117184 193 CAP -E 6(1181 MURPHEY, PAUL, E 128 1011184 134 1011/84 75 ENO -WH 511/88 WYNN, PRANK 8 129 1011184 136 1011/84 70 ENG-E 9(1 /80 DUNCAN, DONALD J 130 1011184 130 1011/84 77 ENG-E 411180 ATNIP, STEVEN EDWARD 132 12116/84 137 12116/84 241 FF-E BENMELD, DANIEL RAY 131 12110/84 138 12118/84 240 FF-E E EATON, DAVID MATTHEW 133 12110184. ' 139 12/10184 242 GAPE 8%2/84 MCCLINTIC, JOHN R0131H 134 12116184 140 121111/84 243 FF -E SPRAGUE, PAUL 1315 1116/85' 141 .1116/86 78, CAP -E 2!1!93 POT'S, WILLIAM R 138 1116186 142 1116186 79- ENG -Z=• i j1/90 SPARACO, KENNETH J 137 211 /85 . 143 211185 80 5N G -E/II 2!1!80 ANi)REASEN, JOHN HEMY 138 311/86 144 311/85 ' 244 FI✓ -E SILVEIRA, EDWARD C 135 511186 145 611/85 81 CAP -E 1 1 111192 TORRES, JOHN K 140 611185 148 611/85 82 IING -E 9/18191 SKDKAN, III, JOHN J 141 6110186 147 8/10185 194 ENG -E: 8/16190 POWELL. TI-10MAS 0 143 911 /86 148 S11/80 8q ENO-EfH 10116/89 1.0130, DAVIT) A ' 144 112/86 149 112188 .195 CAP -E 01194 PAGANO, ROBERT L 148 112186 160 112/88 197 CAP -E 1116/97 WESTPHAL, DOUGLAS C 147 112186 151 112188 196 ENG -E 711/92 ROARK, MICHAEL G 161 8118186 182 8/16/88 201 FF•E Pape 4 RANK SrNIORITI ALAMEDA COUNTY FIRE DEPARTMENT Sanimily Uot (Frtnr Time) Fire Depil FD only Lay -0ffl Loy -o[f Vac Sol Vac Sol Vac A0rl Vac Acrl Namo Seniority # FD OOH # bate E Rank I Promo data HOPKEN, ROBERT T 152 7110/86 163 7118186 - - -87 EwNG -EiH GAZDIK, STEVEN M 163 7110/86 154 711.8189 89 ENO -E . EVANS, PAUL, J 164 8 /l /80 1561. 811186 80 FF -E RATANE, LEONARD 165 6/1/88 160 8/l/38 81 ' FF -P KNIGHT, STEVEN 0 107 811/86 167 811188 93 FP -F CHAFiWERG, JEROME ALBERT 108 8121180 11358 8121186 240 FF -E SIL.VA, JOSEPH M. 169 2120/87 168 2120187 247 PF -E WALSH III, JOHN T ISO 311187 100 811187 94 CAPE RORIHSON, DAN 161 4127187 161 4/27187 202 PF-E ROCHA, DAVID A 182 4127187 162 4127187 203 CARE: WRIGHT, ERIC E 163 511187 103 6%1187 E36 FF -E SCHMIDT, RONALD G 164 811107 104 6/1187 98 ENG -E (=01.LA, GEORGE 1 166 511187 145 611187 97 rF.E PATTERSON, GARY J lee 611187 166 611187 99 FF -1 THOMPSON, CARY M 167 611187 167 611187 100 PF -1= OURDOUNE;, DENNIS A 108 6 /1187 -198 811187 90'1 FF -E NORTON, KENNETH N 189 10/16187 199 10/15/87 102 FF-E DILLINGHAM, BRYAN R 179 10131198 170 311188 211 ENG -l1. OMIT", PHILLIP 8 170 318188 171 316188 103 ENG -UH JAN3EN, DAVID N 171 4/20188 172 4/20188 104 FF -E McGILL, JOHN "JAY" 172 612188 173 512188 204 FFE HAOTMANN, JOHN 8 173 5/2188 174 612188 206 FF•E ABELE, MICHAEL. J 174 612188 175 512/88 200 1.:F -E; DURANTE, ROBERT P 175 6/2188 178 6/2/88 207 FF -E KRAMM, JEFFREY W 178 512188 177 512188 208 FF -E LYRLL, LARY W 177 .5/2188 178 612188 209 ENG -E RME, DANIEL V 178 10131/88 •179 10131188 210 FF -E FILSON, PAUL A 180 10/31188 180 10131/88 212 - ENG -E MARTIN, V(NCE=NT T 181 iaf11188 181 10131188 213 FF -R JENSEN, BRIAN S 182 111113188 182 11110/88 106 FF -EiEI KLE;VENO, ALVIN A 183 111189 183 11118s 108 FF -P CALL, JAMES WOLCOTT 184 4124189 184 4124189 249 GAP -E ST1EUTE1A, SCOTT OWEN 185 4124189 186 4/24189 249 FF -E O- BRIEN, CHSISTOPHER A 186 811/89 188 811189 107 FF -F ' ANDE=RSON, WALTER E 187 .611/89 187 43/1109 IDS ENG -11 BEGTRaP, PFTER ALLAN 188 6118/89 188 8/18/89 260 FF -E: GREEN, TIMOTHY 188 6119189 189 6119189 261 FF -E= STEW+ART, SCOTIA 190 7131188 100 7131/89 214 FF -E Pogo 5 6119/88 111/95 711198 111 6197 711193 1211184 211195 316186 211 6/95 ALAMEDA COUNTY FIRE DEPARTMENT Seniority Uot Name THOMEY, KENNETH J GRANAM, € NAN L SMITH, REGINALD K HOFF, ROBERT W STORCK, ANDREW J ORTZOW. BfUAN E± HOSKINS; ,LAMES A PATTON, TRACY A GARCIA, MARK S SLOAN JR, STEVEN M ME NCHINI, MICMEL J PALATINO, ROY T CARLIN, KENT A MARTINEZ, RALPH J. IsMAIL, RAMSEY A PAYNE, ROBIN T NEUMBURG, THOMAS N RADECKE, STEPHANIE DEARBORN, MICHAEL t? PETERSEN, ROBERT N 9CHNEPP, JOEL ROBERT DERICKSON, JAMES A PAPPAS, THOMAS L YODE:R, DAVID R RIVERS, DAVID A REID, RUSSELL J. SNODGRASS, ROBERT ALLEN CEiZLER, DANIELLE R. BALDWIN, JOSEPH 0 CARTER, MARK S HINTON, MARC A FELDMAN, LISA A I RAPK SENIORITY Page Q 109 215 11 f) 111 '112 113 114 116 118 117 118 119 120 218 121 122 123 124 126 120 262 127 128 129 130 263 264 265 217 218 219 220 x Rank FF -E FF•E FF -F1H F-E: FF_ ' E FF -E FF -E E:NG -E FF -UH FF -E FF•E FF• E FF F1H FF-E FF -E IH FF-P PP-E FF•E FFE FF -Ei FF -E FF -E: FE=E FF -E FF -P FIRE: IMP FIRE: INSP FF -E F1= -E FF -E F F -E: FF -E Proma Date 2/1 5/86 tFrrnr TMO Frye Dopt1 FD 011ty Lay -off/ Lay -off Vac Sat Vac Sal Vac Aert 'Vac Acrl Seniority ## FD bOH Date E 191 811/89 i.s1 811199 ..192 8114189 192: 0/14.189 103 10/16189 193. 10/16/89 194 10/1080 184 10116/89 196. 10/16/119 196 30 /1fi189 10 a 111190 1.98 111/00 1 R7 1115/90 197 1115/90 198 1121190 198 1121190 • 198 b /1190 189 1311/90 200 711150 200 7111SO 201 711190 201 711190 202 7118190 202 7119180 203 8110/90 203 8118150 204 8120/90 204 4110130 205 711191 206 711191 209 7/1191 208 711191 207 711191 207 711191 208 711191 208 711191 209 11116/91 209 11116191 210 111181 -91 210 1t/16191 211 11118191 211 11118/91 211 2/1193 21Z 2/t/93 213 211193 213 211193 214 211183 214 211193 216 5131193 216 .6131193 218 2128/94 218 2/28194 217 311/94 217 311194 218 12/12194 216 12112194 219 6118/90 219 8118188 220 0/18/99 220 E311 H /99 221 6119196 221 8118/98 222 8118188 222 8/18188 Page Q 109 215 11 f) 111 '112 113 114 116 118 117 118 119 120 218 121 122 123 124 126 120 262 127 128 129 130 263 264 265 217 218 219 220 x Rank FF -E FF•E FF -F1H F-E: FF_ ' E FF -E FF -E E:NG -E FF -UH FF -E FF•E FF• E FF F1H FF-E FF -E IH FF-P PP-E FF•E FFE FF -Ei FF -E FF -E: FE=E FF -E FF -P FIRE: IMP FIRE: INSP FF -E F1= -E FF -E F F -E: FF -E Proma Date 2/1 5/86 EXHIBIT H SALARY STEPS EMPLOYEE SALARY STEPS Aidreasen, John Henry 5th Atrdp, Steven Edward 5th Becker, Michael Alexander 5th. Benfield, Dardei Ray 5th Bestrop, Peter Allan Sth Call, James Wolcott 5th Camacho, John Gordon 5th Ceizlez, Danielle R. 4th Charlberg, Jerome Albert 5th Chase, William Edward, Jr. 5th Clemena, Pablo Castillanes 5th DeCou, Edward James 5th Eaton, David. Matthew 5th Eaton, Robert Edward 5th Green, Timothy 5th Hall, Richard Charles Jr. 5th Hampel, Christopher Charles 5th Plartv��g, Dale James 5th Exhibit H Page i of 2 EMPLOYEE SALARY STEPS Dorton, Allen Phillip 5th Hunter, Steven Dary 5th Johansen, Ronald Joseph 5th . Leen, Terrance Phillip 5th McClintic, John Robin 5th Pinto, Mark Edward 5th Rawson, Gerard 'Thomas 5th Reid, Russell J. 5th Schnepp, Joel Robert 5th Silva, Jeff Bernard 5th Silva, Joseph M. 5th Snodgrass, Robert Allen 5th Stielstra, Scott Owen 5th Sutterley, Christopher Paul 5th Thomas, Andrew Rex 5th Zoggas, Constantinos (Dino) 5th J.NWPD\MNRSW1114\,GRb1145UFF ] 885.ExH Exhibit H Page 2 of 2 AGREEMENT BETWEEN THE CITY OF DUBLIN, THE ALAMEDA. COUNT'S FIRE DIS'T'RICT, THE DOUGHERTY REGIONAL FIRE AUTHORITY AND LORELEI 'Vt1'ADE This. Agreement is dated for identification this &aay of 1997, and is entered .into. between the City of Dublin, a municipal orporation ( "City" ), the Alameda County Fire District, a dependent special district and political subdivision of the State of California ( "County "), the Dougherty Regional Fire Authority, a joint powers agency created by the City of Dublin and the City of San Ramon ( "Authority ") and Lorelei Wade ( "Wade "). RECITALS A. Fire and emergency response services within the City have been provided by the Authority since 1988. Prior to 1988 such services were provided within City by the Dublin San Ramon Services District. -B. The Authority will'cease to provide fire and emergency response services and to employ any persons as of June 30, 1997. C. City has determined to provide fire and emergency response services within City's jurisdictional boundaries upon cessation of such services .by the Authority-by contracting with County. County has indicated its ability and desire to provide such services to City. D. The geographical area of the City of San Ramon which is served by the Authority will be annexed to the San Ramon Valley Fire Protection District effective July 1, 1997. A number of employees of Authority will become employees of the San Ramon Valley Fire Protection District, effective July 1, 1997. E. City desires to provide continuity of fire services within its geographical boundaries and, to that end, upon cessation of fire services by Authority, City will require County to offer employment to 36 of Authority's current employees, one of whom is made. F. City and County are parties to an agreement entitled "Agreement Between the City of Dublin and the Alameda County Fire District Regarding Fire Protection and Emergency Medical Services" ( "Master Agreement "). Agreement Between City of Dublin, Page l of 8 Alameda County Fire District, DRFA and Trade April 30, 1997 ��+" M G: Pursuant to the Master Agreement; County will provide fire and emergency response services within the jurisdictional limits of City commencing July 1, 1997, and County shall offer employment to Wade. The offer of employment shall be for the classification of Secretary 11. H. The County is not a party to a memorandum of understanding applicable to the `classification of Secretary II. The wages, hours and terms and conditions of employment for persons in the classification of Secretary 11 are as shown on Exhibit A hereto as of the Effective Date. 1. Although Wade is an employee of Authority and is not and has never been an employee of City, in order to provide for a smooth transition of.fire. and emergency response services for its residents, City desires and County agrees to provide certain differences in wages, hours and terms and conditions of employment to Wade from those that will apply to persons employed by County as a Secretary 11. J. The purpose of this Agreement is to set forth the terms and conditions of employment which County shall pro -xdde to Wade which are different than the terms and conditions of employment which would otherwise be applicable to employees employed as Secretary Us as County employees as shown on Exhibit and applicable County ordinances, resolutions and regulations. AGREEMENT Section 1. Recitals The foregoing Recitals are true and correct and are made a part hereof. Section 2. Schedule of Benefits Once employed by County, Wade will be subject to the County's salary and benefits as shown on Exhibit A except as modified by County in the future or as otherwise set forth herein. ,Section 3. Sick Leave Balances W ade's sick leave balance with Authority as of June .30, 1997, if any, which does not exceed a total of 2080 hours shall be carried over to County so that Wade will begin employment with County with a sick leave balance, When Wade becomes Agreement Between City of Dublin, Page 2 of 8 Alameda County Fire District, DRFA anc� Wade April 30, 1997 i an employee of County she will be subject to the County's limits on sick leave balances. The sick leave balance of Wade to be carried- over to Countyis shown on Exhibit B. The balances on .Exhibit B reflect accumulated sick leave as of December 31, 1996, sick leave earned from January 1, to June 30, 1997, less sick leave used during such tune. S_ ect Qn 4. f arced Authority Vacation Balances Wade's vacation balance with Authority as of June 30, 1997, if any, shall be carried over to County so that Wade will begin employment with County with a vacation balance. Wade agrees that Authority will have no obligation to pay Wade for such vacation balance upon termination of employment by Authority on June 30, 1997. The vacation balance of Wade to be carried over to County is shown on Exhibit B as "Earned Authority Vacation Balance." The vacation balance shown as "Earned Authority Vacation Balance" does not include vacation which was credited by Authority to Wade for the months of July - December 1 997. Section 5. Unearned 1997 Vacation Credit :County will add to Wade's "Earned Authority Vacation Balances" an amount equal to :the vacation Wade was credited with by Authority as of January 1, 1997, for the morith.s of January to December 1997 less vacation taken from January - June but in no event more than 60 hours. Such amounts are shown on Exhibit B as "Unearned 1997 Vacation Credit." "Unearned 1997 Vacation Credit" shall be used only to take vacation in 1997. and 1998 and shall be subject to the following restrictions: a. The Unearned 1997 Vacation Credits must be used during calendar years 1997 and 1998. If the Unearned 1997 Vacation Credits are not used by December 31, 1998, the Unearned 1997 Vacation Credits will be lost. County will eliminate any unused Unearned 1997 Vacation Credits from its books as of January 1, 1999. b. If Wade resigns, retires or is terminated by County prior to use of the Unearned 1997 Vacation .Credits she will not be compensated in cash by County, City or Authority for any unused Unearned 1997 Vacation Credits. C. Wade may not convert any unused Unearned 1997 Vacation Agreement Between City of Dublin, Page 3 of 8 Alameda County Fire District, DRFA and Wade April 30, 1997 Credits to additional service time for retirement purposes. Section C. Unearned 1998 Vacation Credits On December 31, 1997, County will credit Wade with six months of vacation accrual ( "Unearned 1998 'Vacation Credits ") which can only be used in 1998. Such amount is shown on Exhibit C as 'Unearned 1998 Vacation Credit ". "Unearned 1998 Vacation Credit" shall be used only to take vacation in 1998 and shall be subject to the following restrictions: a. The Unearned 1998 Vacation Credits must be used during calendar year 1998. If the Unearned 1998 Vacation Credits are not used by December 31, 1998, the Unearned 1998 Vacation Credits will be lost. County will eliminate any unused Unearned 1998 Vacation Credits from its books as of January 1, 1999. b. If Wade resigns, retires or is terminated by County prior to use of the Unearned 1998 Vacation Credits she will not be compensated in cash by County, City or Authority for any unused Unearned 1998 Vacation Credits. C. Wade may not convert any unused Unearned 1998 Vacation Credits to additional service time for retirement purposes. An illustrative example of "Earned Authority Vacation Balance," "Unearned 1997 Vacation Credits" and "Unearned 1998 Vacation Credits" is attached as Exhibit C. Section 7. Earned 'Vacation Accrual Wade will also accrue vacation on a monthly basis, as provided on Exhibit beginning July 1, 1997, but will not be entitled to use such vacation until January 1, 1998. . Section 8. 'Vacation Scheduling County Will honor the vacation times scheduled by Wade during 1997, as shown on Exhibit B. Agreement Between City of Dublin, Page 4 of 8 Alameda County Fire District, DRFA and Wade April 30, 1997 Section 11. Salary Steev._,s_ Wade wilt be hired at the salary step shown on Exhibit B. Section 12. Tra 3sfer of Files All. Personnel Files and Medical Files maintained by Authority for Wade will be transferred by Authority to County on July 1, 1997. Notwithstanding the provisions of the Master Agreement, County shall be under no obligation to offer employment to Wade until she has signed a Waiver and Consent to transfer of such files to County. Section 13. Effective Date This agreement shaft be effective when signed by all parties. Section 14. Final Exhibits Exhibit B reflects data available as of March, 1997. This exhibit will be replaced with an exhibit containing the data as of Tune 30, 1997 when such.data is available. The Authority shall be responsible for preparing such replacement exhibit and providing it to all parties no later than August 15, 1997. Section 15. Further Actions All parties agree to take any further actions that are necessary to implement the provisions of this Agreement; Approved as to form and Content: KELVIN H. BOOTY, JR County Counsel Be Cou ourisel �.��zo �. cr�cv���r� Agreement Between City of Dublin, Page b of g Alameda County Fire District, DRFA and Wade April 30, 1997. DIANA FLEMING County Risk Manager County Risk Manager ATTEST: ,�STfL llSf�IOR Clerk, Board of Supervisors Alameda County, California By: COUNTY OF ALAMEDA a political subdivision of the State of California, acting on behalf of the Alameda County lore District B . y: I ITH CARSON, President I hereby certify under penalty of perjury that the President of the Board of Supervisors was duly authorized to execute this document on behalf o the County of Alameda by a majority vote of the Board on J .rt d , 19 and that a copy has been delivered to the President as provided by Government Code Section 25103. JUN 2 4 V97 Date: Clerk Board of Supervisors, County of Alameda, State of California ADOPTED BY: CITY OF DUBLIN, A Municipal Corporation By: Date: GUYSCkOUSTON, Mayor Agreement Between .City of Dublin, Page 7 of 8 Alameda County Fire District, DRFA and Wade April 30, 1997 f Attest: � �4 KAY I zG, t1ty Clerk Approved as to form: ELIZABETH H. SILVER, City Attorney a�feQev a AELET WADE DOUGHERTY REGIONAL FIRE AUTHORITY r' Date: H B Date: Y • Curt Kinney, Chairper n of Board of (Directors J:IWPDIMNRSWI] 141AGREEl951WADE -DFT3 EHS.r a Agreement Between City of Dublin, rage 8 of 8 Alameda County Fire District, DRFA and Wade April 30, 1997 EXHIBIT .B I Sick Leave Balance; Earned Authority Vacation Balance; Unearned 1997 Vacation Credit; Unearned 1998 Vacation Credit; Vacation Schedule; Salary Step Lorelei. Wade Sick Leave Balance 1996 Vacation Carry- over Earned Authority 'Vacation Balance Unearned 1997 Vacation Credit Unearned 1998 Vacation Credit Scheduled Vacation" Salary Step .75 739 128.75 188.75* 60 88 3l2,8/97 5th 80 (8/11/97- 8/29/97) so (12/22/97.- 1 {298 All hours are in hours. *To be reduced by hours taken from 1 -1 -97 to 6- 30 -97. **5 days of this 3 week period will be taken as administrative leave under the County's program. J.\WPD\r4NRSW\114vAcRM95\WAD ~.EXB Authority Employee (until 6- 30 -97) Position 1996 1997 Vacation ..6-30-97 1997 Vacation Vacation Used 1997 Terminated Vacation Carryover Credited ( thru (arnoirnt 7/97 to 12/97 1996 on 1 -1 -97 6- 30 -97) would be Vacation Unused paid off) Secretary 4 5 6 3. (I #.A, 5 6 Secretary 0 5 * 7 ( -2) (I #B 6 6 EXHIBIT C Lorelei 'Wade .illustrative ,Example County Employee (begins Earned Unearned Unearned Earned Authority 1997 1998 Vacation Vacation Balance Vacation Vacation Accrual Credit • Credit b• 7/97 to 12/97 1996 1997 Vacation Unused Carryover Vacation 5 6 6 3 0 0 0 3i 6 6 *10 shifts created on 1 -1 -97, reduced by 5 shifts as of 6- 30 -97. -Lost if not used by 12- 31 -98. "Employee receives 3 shifts, not 5, because she had a negative balance of 2 shirts on 6- 30 -97. o Assumes 12 shifts per year from County. J:1WPDUMNRSW\l MAGREE1951WADi-EX LIST OF EXHIBIT'S Exhibit .A - Secretary iI Benefits List Exhibit B - Sick Leave Balance; Earned .AAtithority Vacation Balance; Unearned 1 997 Vacation Credit; Unearned 1998 Vacation Credit;`` Vacation Schedule; Salary Step Exhibit C _ Illustrative Example AGREEMENT BETWEEN THE CITY OF DUBLIN, THE ALAMEDA COUNTY FIRE DISTRICT, THE DOUGHERTY REGIONAL FIRE AUTHORITY AND T.J. WELCH This Agreement is dated for identification. this day of 1997 and is entered. into between the City of Dublin, a municip corporation ( "City "), the:Alameda County Fire .District, a dependent special district and political subdivision of the State of California ( "County "), the Dougherty Regional Fire Authority, a joint powers agency'created by City of Dublin and the City of San Ramon ( "Authority ") and'T.J. Welch ( "Welch "). RECITALS A.. Fire and emergency response services within the City have been provided by the Authority since 1988. Prior to 1988 such services were provided within City by the Dublin San Ramon Services District, B. The Authority will cease to provide fire and emergency response services and to employ any persons as of June 30; 1997. C. City has determined to provide fire and emergency response services within City's Jurisdictional boundaries upon cessation of such services by the Authority by contracting with County. County has indicated its ability and desire to provide such services to City. D. The geographical area of the City of San Ramon which is served by the Authority will be annexed to the San Ramon Valley Fire Protection District effective July 1, 1997. A number of employees of Authority will become employees of the San Ramon Valley Fire Protection District, effective July 1, 1997, E. City desires to provide continuity of fire services within its geographical boundaries and, to that end, upon cessation of fire services by Authority, City will require County to offer employment to 36 of Authority's current employees, one of whom is Welch. F. City and County are parties to an agreement entitled "Agreement Between the City of Dublin and the Alameda County Fire District regarding Fire Protection and .Emergency Medical Services" ( "Master Agreement "). Agreement Between City of Dublin, rage I of 9 Alameda County Fire District, DRFA and Welch April 3(l, 1997 AGREEMENT BET" EEN TIIE CITY OF DUBLIN, THE ALAMEDA COUNT" FIRE DISTRICT, THE D0UGHEM— REGIONAi, FIRE A.UTI-IOR]fTYAND T .J. WELCH This Agreement is dated for identification thisA day of 1997 and is entered into between the City of Dublin, a rnunicip cororati pon ( „City "), the-Alameda County Fire District, a dependent special district and political subdivision of the State of California ( "County "), the Dougherty Regional Fire Authority, a joint p©wers agency created by City of Dublin and the City of San Ramon ( "Authority ") and 'T.r. 'Welch ( "Welch "). RECITALS A Fire and emergency response services within the City have been provided by the Authority since 1988. Prior to 1988 such services were provided within City by the Dublin San Ramon Services District. B. The Authority will cease to provide fire and emergency response services and to employ any persons as of June 30; 1997. C. City has deterrnined to provide fire and emergency response services within City's jurisdictional boundaries upon cessation of such services by the Authority by contracting with County. County has indicated its ability and desire to provide such services to City. D. The geographical area of the City of San Ramon which is served by the Authority will be annexed to the San Ramon Valley Fire Protection District effective July 1, 1997. A number of employees of Authority will become employees of the San 'Ramon Malley Fire Protection District, effective July 1, 1997. E. City desires to provide continuity of fire services within its geographical boundaries and, to that end, upon cessation of fire services by Authority, City wily require County to offer employment to 36 of Authority's current employees, one of whom is Welch. F. City and County are parties to an agreement entitled "Agreement Between the City of Dublin and the Alameda County Fire District Regarding Fire Protection and Emergency Medical Services" ( "Master Agreement "). Agreement Between City of Dublin, Page I of 9 Alameda County Fire District, DRFA and Welch April 3Q, 1 997 EXHIBIT 6 1 G. Pursuant to the Master Agreement, County will provide fire and emergency response services within the jurisdictional limits of City commencing July 1, 1997, and County shall offer employment to Welch, The offer of employment shall be for the classification of Battalion Chief. H. County is: P arty 'to a`memorandum of understanding with the International Association of Firefighters Local 55 -B Management Unit R -34 for the period January 1, 1995 to December 31, 1996 which is applicable to County's management classifications including the classification of Battalion Chief ("County Management MOU "). I, Although Welch is an employee of Authority and is not and has never been an employee of City, in order to provide for a smooth transition of fire and emergency response services for its residents, City desires and County agrees to provide certain differences in wages, hours and terms and conditions of employment to Welch from those that will apply to persons employed by County as a Battalion Chief. J. The-purpose of this Agreement is to set forth the terms and conditions of employment. which County shall provide to Welch which are different than the terms and conditions of employment which would otherwise be applicable to employees employed as Battalion Chiefs subject to the County Management MOU and applicable County ordinances, resolutions and regulations. AGREEMENT Section 1. Recitals The foregoing Recitals are true and correct and are made a part hereof. Section 2. C_ ourity Management MOU Once employed by County, Welch will be subject to the provisions of the County Management MOU except as such MOU is modified in the future or as otherwise set forth herein. Section 3. Sick Leave Balances Welch's sick leave balance with Authority as of June 34, 1997, if any, which Agreement Between City of Dublin, Page 2 0f.9 Alameda County Fire District, DRFA and Welch April 30, 1997 does not exceed a total of .2080 hours shall be carried over to County so that Welch will begin employment with, County with a sick leave balance. When Welch becomes an employee of County he will be subject to the County's limits on sick leave balances and restrictions on conversion of sick leave balances. The sick leave balance of Welch to be carried over to County is shown on Exhibit A. The balances on Exhibit A reflect accumulated: sick leave as of December 31,19.96,-sick leave earned from January 1 to June 30, 1.997, less sick leave used during such time. Section 4. Earned Authority„ Vacation Balances Welch's vacation balance with .Authority as of June 30, 1997, if any, shall be carried over to County so that Welch will begin employment with County Agth a vacation balance. Welch agrees that Authority will have no obligation to, pay Welch for such vacation balance when he is terminated by Authority on June 30, 1 997. The vacation balance of Welch to be carried over to County is shown on Exhibit as "Earned Authority Vacation Balance." The vacation balances shown as "Earned Authority Vacation Balance" do not include vacation which was credited by Authority to Authority Employees for the months of July - December 1997. Section 5. Unearned 1997 Vacation Credit County will add to Welch's "Earned Authority Vacation Balance" an amount equal to the vacation Welch was credited with by Authority as of January 1, 1997, for the months of January to December 1997 less vacation taken from January - June but in no event more than 60 hours. Such amount is shown on Exhibit A as "Unearned 1997 Vacation Credit." "Unearned 1997 Vacation Credit" shall be used only to take vacation in 1997 and 1998 and shall be subject to the following restrictions: a. The Unearned 1997 Vacation Credits must be used during calendar years 1997 and 1995. If Ehe Unearned 1997 Vacation Credits are not used by December 31, 1998, the Unearned 1997 Vacation Credits will be lost. County will eliminate any unused Unearned 1997 Vacation Credits from its books as of January 1, 1999. b. If Welch resigns, retires or is terminated by County prior to use of the Unearned 1997 Vacation Credits he. will not be compensated in cash by County, City or Authority for any unused Unearned 1997 Vacation Credits. Agreement Between City of Dublin, Page 3 of 9 Alameda County Fire District, DRFA and Welch. April 3Q, 1997 C. Welch may not convert any unused Unearned 1997 Vacation Credits to additional service time for retirement purposes. Section 6. Unearned 1998 Vacation Credit On December 31, 1997, County will credit Welch with.six months of vacation accrual ( "Unearned 1998 Vacation Credit ") which can only be used in 1998. Such amount is shown on Exhibit C as "Unearned 1 998 Vacation Credit ". . "Unearned 1998 Vacation Credit" shall' be used only to take vacation in 1998 and shall be subject to the following restrictions: a. The Unearned 1.998 Vacation Credit must be used during calendar year 1998. if the Unearned. 1998 Vacation Credit are not used by December 31, 1998, the Unearned 1998 Vacation Credit AU be lost. County will eliminate any unused Unearned 1998 Vacation Credit from its books as of January 1, 1999. b. if Welch resigns, retires or is terminated by County prior to use of the Unearned 1998 Vacation Credit he will not be compensated in cash by County, City or Authority for any unused Unearned 1998 Vacation Credit. C. Welch may not convert any unused Unearned 1998 Vacation Credit to additional service time for retirement purposes. An illustrative example of "Earned Authority Vacation Balance," "Unearned 1997 Vacation Credits" and "Unearned 1998 Vacation Credit" is attached as Exhibit B. Section 7. Earned Vacation Accrual Welch will accrue vacation on a monthly basis, as provided in the County Management MOU beginning July 1, 1997, but will not be entitled to use such vacation until January 1, 1998. Employment with the Authority and the Dublin San Ramon Services District will be counted as employment with County for purposes of vacation accrual. Agreement Between City of Dublin, Page 4 of 9 Alameda County Fire District, DRFA and Welch April 30, 1997 Section 8. Deductions for Vacation Use As Welch uses vacation during 1997 and 1998 County will deduct for such use from "Earned Authority Vacation Balance ", "Unearned 1997 Vacation Credits"; "Unearned 1998 Vacation Credits ", and "Earned Vacation Accrual" in the following order. a, For 1997 1) From Earned Authority Vacation Balance (not including any Vacation Carryover), up to the amount of such Balance, (less 1997 Vacation Carryover); 2) From Unearned 1997 Vacation Credits; 3) From the 1996 Vacation Carryover, b. For 1998 1) From Earned Vacation Accrual for 1997; 2) From Unearned 1998 Vacation Credits; 3) From Earned Authority Vacation Balance (not including any 1996 Vacation Carryover), up to the amount of such Balance (less 1997 Vacation Carryover); 4) From Unearned 1997 Vacation Credits; 5) Front the 1996 Vacation Carryover, Section 9. Vacatio Scheduling County will honor the vacation times scheduled by Welch during 1997, as shown on E21ffiit. A Agreement Between City of Dublin, Page 5 of 9 Alameda County Fire District, DRFA and Welch April 30, 1997 Section 10. Promotional Exams Welch may compete in County promotional examinations, commencing July 1, 1997, as though he were a County employee. Section 11. Seniority Welch will be placed on County's seniority list using his seniority with Authority (which includes employment with the Dublin San Ramon Services District), as shown on Exhibit C. Employment with the Authority and the Dublin San Ranson Services District will be counted as employment with County for purposes of layoffs. Section 12. Sala)�Steg Welch will be hired at the salary step shown on Exhibit A. Section_ 13. Transfer of Files All Personnel Files and Medical Files maintained by Authority for the Welch will be transferred by Authority to County on July 1, 1997. Notwithstanding the provisions of the Master Agreement, County shall be under no obligation to offer employment to Welch until he has signed a Waiver and Consent to transfer of such fides to County. Section 14. E fective Date IThis agreement shall be effective when signed by all parties. Section 15. Final Exhibits Exhibit .A reflects data available as of March, 1997. This exhibit will be replaced with exhibit containing the data as of June 30, 1997 when such data is available. The Authority shall be responsible for preparing such replacement exhibit and providing it to all parties no later than August 15, 1 997. Agreement Between City of Dublin, Sage 6 of 9 Alameda County Fire District, DRFA and Welch April 317, 1997 Section 16. Further Actions The parties agree to take any Aurther actions that are necessary to implement the provisions of this Agreement. Approved as to form and Content: KELVIN H. BOOTY, JR. County Counsel B / O COL1Ilse�i�RENZO V, CHAM13LISS DIANA FLEMING County Risk Manager B County 's--k- Manager COUNTY OF ALAMED.A., a political subdivision of the State of California, acting on behalf of the Alameda County Fire District Agreement Between City of Dublin, Alameda County Fire District, DRPA and Welch, T ATTEST: LEI- V,�rRGlSff�l�l;. Clerk, Board of Supervisors Alameda County, California � r T By: 4T1(G-EH 9CALS6 President Page 7 of 9 Apxil 30, 1997 I hereby certify under penalty of perjury that the President of the Boar Supervisors was duly authorized to execute this document on behalf of Pe C Alameda by a majority vote of the Board on jm,, -c 4, 1999, and tha copy has been delivered to the President as provided by Government Code Section 25103. Date: J U -N 2 4 1997 Cp1�5T L 815�1D� r Clerk Board of Supervisors, County of Alameda, State of California ADOPTED BY: CITY OF DUBLIN, A Municipal Corporation 1• By. GUY S. OUSTON, Mayor Approved as toform: ELIZABETH H. SILVER, City Attorney T. J. WELCH Agreement Between City of Dublin, Alameda County Fire Dist-Tict, DRFA and Welch - Date: Date: ,5-- / 6 " 9 7 Wage 8 of 9 April 39, 1997 DOUGHERTY REGIONAL FIRE AUTHORITY By: Crtxrt IGnney; Chairpers n of Board of Directors J.%TD1Tv M SW\) MAGRERMWELCH.DF3 EHS:rja .Agreement Between City of Dublin, Page 9 of 9 Alameda County Fire District, DRFA and Welch April 30, 1997 LIST OF EXHIBITS Exhibit A - Sick Leave Balance; Earned...A.uthority Vacation Balance; Unearned 1997 Vacation Credit, Unearned 1398 Vacation Credit; Vacation.Schedule; Salary.Step . Exhibit B - Illustrative'Example Exhibit C - Seniority List 1 EMI A Sick LP-ave Balance; Earned Vacation Balance; 1997 Vacation Credit; '1998 Vacation Credit; Vacation SchedWe; Salary Step T. J. Welch Sick Lzave 1996 Earned Unearned Unearned Salary Balance Vacation Authority 1997 1998 Scheduled Step Carryover Vacation Vacation Vacation Vacation Balance Credit Credit 306 366* 60 88 None 5th All numbers are in hours. *To be reduced by hours taken from 1 -1 -97 to 6- 30 -97. J:tWPDV&W W114 41AGREEMMELCH.EXA EXHIBIT B , Illustrative Example (in hots s) Authority Employee (until 6- 30 -97) County Employee (beginning Position 1996 1997 Vacation 6 -30 -97 Earned Ustearrted. Vacation Vacation Earned Vacation Vacation Used 1997 Terminated Authority 1997 Taken Carryover as Vaeatior Carryover Credited tbru (amount Vacation Balance Vacation 7197 thru of 1/1198 Accrual on 1.1 -97 6.30.97) would be Paid Credit • 12197 7197 to off) 12197 1996 1997 Vacation Unused 49 60' 30 70 Carryover Vacation Bat. 60 90 40 60 Cult: f ' 30 *120 hours credited on 1 -1 -97, reduced by 60 hours as of 6- 30 -97. -Lost if not used by 12- 31 -98. 0 Assumes 120 hours per year from County. I ).\WPD%MNASW\l I4 AGREE\951WGLCH.EXB A ' Alameda County Eire Department Battalion Chiefs - Seniority by Hank SENIORITY LIST Name FD DOH I Emp IDlBdg # RANK i'ramo fiats ` WADE, DENNIS L 711170 17 BC -E 12/1184 FERDINAND, .TAMES R 811178 35 vc -E 711185 HENTHORN, GARY L. 11.1/71 24, BC -E 7/1185 WELCH JR, TROY STERLING 81.15186 245 BC -E 11114/88 0RR LENNIE. D 8/1177 51 0G-E. 2115190 BROWN, STEVEN D 1011175 42 BC -E 9/1191 SILVA, STANLEY R 4117/72 28 BC -E 911/91 DAVIS, VINCENT P 7116173 145 BC -E 11/10194 LUNDSTROM, ROBERT G 9/3/74 168 BC -E 711195 NAAS, JODY A 2/1178 173 13C -E 1116/97 z ALCO Rare Department Pago 1 RESOLUTION NO. -12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING FACILITY USE AGREEMENTS FOR ALAMEDA COUNTY FIRE DEPARTMENT'S ADMINISTRATIVE OFFICES AND MAINTENANCE FACILITY WHEREAS, since July 1, 1997, ACFD has provided fire and emergency response services within the City pursuant to a separate written agreement; and WHEREAS, City and ACFD are entering into a separate written agreement pursuant to which ACFD will continue to provide fire and emergency response services within the City for another twenty years; and WHEREAS, pursuant to the separate service agreement, ACFD already maintains an office in the Dublin Civic Center (or such other location as may be designated by the City) to provide fire prevention services; and WHEREAS, ACFD has a need for office space for its general administration, as well as temporary and permanent facility maintenance space for the maintenance, repair and testing of vehicles and apparatus; WHEREAS, ACFD and City desire to enter into separate agreements to provide ACFD with the use of a Temporary Maintenance Facility and a Permanent Maintenance Facility, and ACFD Administrative Offices within available City -owned facilities; and WHEREAS, City desires to allow ACFD to use such facility space if ACFD pays rent based on the Total Project Costs included in the facility use agreements; and NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Facility Use Agreement for ACFD's Administrative Offices, attached hereto as Exhibit A and a Facility Use Agreement for the ACFD Maintenance Facility, attached hereto as Exhibit B. BE IT FURTHER RESOLVED that the City Council of the City of Dublin hereby: 1. Authorizes the City Manager to execute the Agreements substantially in the form provided to the City Council with such modifications as may be approved by the City Manager in consultation with the City Attorney. 2. Authorizes the City Manager to execute, deliver, and record, as applicable, the documents appended to the Agreements as exhibits, substantially in the forms provided to the City Council, with such modifications as may be approved by the City Manager in consultation with the City Attorney. 3. Directs the City Manager to negotiate future Memorandums ( "Memorandum ") that will describe the respective rights and responsibilities of City and ACFD pursuant to the Agreements, and authorizes the City Manager to execute such Memorandums in form approved by the City Manager in consultation with the City Attorney. 4. Authorizes the City Manager to execute and deliver such other documents and to take such other actions as necessary to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 19th day of June, 2012, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor OFFICE FACILITY USE AGREEMENT (6363 Clark Avenue) This Office Facility Use Agreement (this "Agreement ") is entered into effective as of July 1, 2012 (the "Effective Date ") by and between the CITY OF DUBLIN, a municipal corporation ( "City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). City and ACFD are hereinafter referred to collectively as the "Parties." RECITALS WHEREAS, since July 1, 1997, ACFD has provided fire and emergency response services within the City pursuant to a separate written agreement; and WHEREAS, City and ACFD are entering into a separate written agreement pursuant to which ACFD will continue to provide fire and emergency response services within the City for another twenty years; and WHEREAS, pursuant to those separate service agreements ACFD already maintains an office in the Dublin Civic Center (or such other location as may be designated by the City) to provide fire prevention services; and WHEREAS, ACFD and City have entered into a separate agreement pursuant to which ACFD will have the use of a Temporary Maintenance Facility and a Permanent Maintenance Facility for the maintenance, repair and testing of vehicles and apparatus; and WHEREAS, ACFD has a need for office space for its general administration; and WHEREAS, City owns available office space that will be suitable for use by ACFD if certain improvements are made, (the "Premises," as defined below); and WHEREAS, City desires to allow ACFD to use such office space if ACFD pays for the Total Project Costs (as defined below); and WHEREAS, ACFD is willing to pay the Total Project Costs for use of the office space. NOW THEREFORE, the City and ACFD agree as follows: ARTICLE I BASIC PROVISIONS 1.1 City's mailing address: City of Dublin, 100 Civic Plaza, Dublin, CA 94568. 1904321.4 1 OFFICE FACILITY USE AGREEMENT 1.2 City's contact: Joni Pattillo, City Manager. Telephone: (925) 833 -6650. 1.3 ACFD's mailing address: 835 East 14'h Street, Suite 200, San Leandro CA 94577, with a copy to ACFD at the Premises. ACFD's mailing address will be the Premises address beginning 10 days after the Commencement Date. 1.4 ACFD's contact: Deputy Chief of Administration, currently Chief Demetrious N. Shaffer. Telephone: (510) 618 -3490. 1.5 Premises address: 6363 Clark Avenue, Suite , Dublin, CA 94568. 1.6 Premises Square Footage and Location: The Premises are located on the first floor of the Building in the area shown in FXh;h;t A -1 Rentable Square Footage: approximately 14,000 square feet. The actual rentable square footage will be specified in the Memorandum Confirming Commencement Date and Total Project Costs. 1.7 Commencement Date: the date upon which City delivers possession of the Premises to ACFD, anticipated to be January 1, 2014. The specific date will be identified in the Memorandum Confirming Commencement Date and Total Project Costs (attached hereto as Exhibit A -2) which will be completed and executed by the Parties when a definitive date and Total Project Costs are determined. 1.8 Term: Five (5) years. 1.9 Expiration Date: The last day of the month in which the fifth (5�h) anniversary of the Commencement Date occurs. 1.10 Option(s) to Extend Term: Five (5) options to extend the Term, for a period of one (1) year each. See Section 3.5. 1.11 Base Rent: As Base Rent for use of the Premises, ACFD will pay the City the following sums: Year Monthly Annual Base Rent Per Base Rent Base Rent Rentable Square Foot Per Month 1 $17,596 $211,156 $1.26 2 $18,124 $217,490 $1.29 1904321.4 2 OFFICE FACILITY USE AGREEMENT 3 $18,668 $224,015 $1.33 4 $19,228 $230,735 $1.37 5 $19,805 $237,658 $1.41 The Base Rent specified in this Section 1.11 is an estimate based upon an anticipated Total Project Cost equal to $3,519,261. The specific formula for determination of the Base Rent is set forth in the attached Exhibit C -2. The Total Project Cost is subject to change as the following line items are estimated amounts and subject to change based on actual costs: Demolition and Prep Improvements If the actual amounts of the above line items are different than that identified in Exhibit C -2, the Base Rent is subject to modification if the actual Total Project Cost differs from such estimate. When the actual Total Project Cost is determined, the Base Rent shall be calculated based thereon, and shall be specified in the Memorandum Confirming Commencement Date and Total Project Costs. Base Rent shall increase at the rate of 3% each year during the initial Term. 1.12 ACFD's Share of Expenses: Twenty -five and one half percent (25.5 %). See Section 4.5.2. ACFD's share of expenses is an estimate based upon the estimated square footage of the Premises. ACFD's actual share of expenses shall be specified in the Memorandum Confirming Commencement Date and Total Project Costs when the square footage of the Premises is determined. 1.13 Security Deposit: None 1.14 Permitted Uses: General office and training purposes only in accordance with Applicable Laws. 1.15 Parking: Parking spaces are unmarked and available for use by ACFD and the public on a first come first served basis. There is no reserved parking. ARTICLE II DEFINITIONS Definitions. As used in this Agreement, the following terms shall have the definitions set forth below. Additional terms are defined in the remainder of the Agreement. 1904321.4 3 OFFICE FACILITY USE AGREEMENT "ACFD Improvements" is defined in Exhibit C. "ACFD Parties" is defined in Section 6.1. "ACFD's Share" is defined in Section 4.5.2. "Additional Rent" means any and all sums other than Base Rent which ACFD is or becomes obligated to pay to City under this Agreement (whether or not specifically called "Additional Rent" in this Agreement). "Alterations" means any alterations, decorations, modifications, additions or improvements made in, on, about, under or contiguous to the Premises by or for the benefit of ACFD (other than the ACFD Improvements) including but not limited to, telecommunications and /or data cabling, lighting, HVAC and electrical fixtures, pipes and conduits, partitions, cabinetwork and carpeting. "Applicable Laws" is defined in Section 5.4. "Base Rent" means for each year during the Term of this Agreement, the monthly amount payable per rentable square foot of the Premises set forth in Section 1.11. "Building" means the office building located at 6363 Clark Avenue, Dublin, California. "Claims" is defined in Section 6.3. "Commencement Date" is the date set forth in Section 1.7 and /or specified in the Memorandum referenced in Section 1.7. "Common Area" means all areas and facilities located on the Land or in the Building, excluding the Premises and all other portions of the Building that are leased (or that will be leased) to other tenants or occupied by City. The Common Area includes, but is not limited to, parking areas, access and perimeter roads, sidewalks, landscaped areas and similar areas and facilities. "Environmental Laws" is defined in Section 6.6. "Hazardous Material" is defined in Section 6.5. "Indemnitees" is defined in Section 8.2. "Memorandum" means the Memorandum Confirming Commencement Date and Total Project Costs to be executed by the Parties substantially in the form attached hereto as Exhibit A -2, and which shall specify the Commencement Date, square footage of the Premises, the Base Rent and ACFD's Share. 1904321.4 4 OFFICE FACILITY USE AGREEMENT "Operating Expenses" is defined in Section 4.5.3. "Premises" means the premises shown on Exhibit A -1 consisting of approximately 14,000 square feet of rentable space on the first floor of the Building. "Project" means demolition and construction work necessary to prepare the Premises for ACFD's occupancy pursuant to this Agreement. "Real Property" means collectively, (i) the Building; (ii) the parcel of real property on which the Building is situated (the "Land "); and (iii) the other improvements on the Land, including, without limitation, a parking lot, driveways, lighting and landscaping. However, the metal building and adjacent parking located on the east side of building is specifically excluded. "Real Property Taxes" is defined in Section 4.6. "Rent" means Base Rent and Additional Rent, collectively. "Rules and Regulations" means the Rules and Regulations set forth in Exhibit B attached hereto as such may be modified or amended from time to time by City. "Term" means the period of time during which ACFD shall be permitted to use the Premises as set forth in Section 1.8, as such may be extended pursuant to the terms hereof. "Total Project Cost" means City's cost to complete the Project, including without limitation, base building cost, demolition and preparation, improvements within the Premises ( "ACFD Improvements "), and a six percent (6 %) return on cost, all as more particularly described in Section 17.2 and Exhibits C and C -2 to this Agreement. ARTICLE III PREMISES AND TERM 3.1 Use of Premises. Subject to and upon the terms and conditions set forth herein, City hereby agrees to allow ACFD the use of the Premises, and ACFD hereby agrees to use the Premises in accordance with the terms of this Agreement. ACFD acknowledges that City has made no representation or warranty regarding the condition of the Premises, the Building or the Real Property except as specifically stated in this Agreement. 3. 1.1 Appurtenant Rights. ACFD is granted the right during the Term to the nonexclusive use of the main lobby of the Building, common corridors and hallways, stairwells, elevators, and public restrooms located in the Building. City has sole discretion to determine the manner in which the public and common areas are maintained 1904321.4 5 OFFICE FACILITY USE AGREEMENT and operated, and the use of such areas shall be subject to the Rules and Regulations. City shall allow public access during regular business hours. 3.2 Term and Commencement. The Term shall commence on the Commencement Date, and unless sooner terminated as provided herein, the Term shall be for the period set forth in Section 1.8 as the same may be extended in accordance with the exercise of any option or options to extend the Term granted herein. 3.3 Delay in Delivery of Premises. If City fails to deliver possession of the Premises to ACFD on or before the anticipated Commencement Date set forth in Section 17, City shall not be subject to any liability for its failure to do so. This failure shall not affect the validity of this Agreement or the obligations of ACFD hereunder, but the Term shall commence on the date upon which City delivers possession of the Premises to ACFD. 3.4 Early Access. ACFD shall not occupy the Premises prior to the Commencement Date except with the express prior written consent of City. Provided that (i) this Agreement has been executed by ACFD and City, and (ii) ACFD, if requested, has provided to City proof of insurance coverage for all insurance that ACFD is required to maintain under this Agreement, ACFD shall be permitted access to the Premises prior to the Commencement Date for the purpose of installing ACFD's furniture and equipment. If ACFD is provided access to the Premises prior to the Commencement Date, all of the terms and provisions of this Agreement shall apply to ACFD's use of the Premises except for the requirement for the payment of Rent, and ACFD shall abide by all of such terms and provisions. 3.5 Option to Extend Term. City grants ACFD five (5) options to extend the Term ( "Extension Options "), each for a period of one (1) year (each an "Extension Term "), subject to the conditions set forth in this Section 3.5. ACFD shall have no other rights to extend the Term. If ACFD enters into a separate agreement with City for use of office space in the Building, ACFD may terminate this agreement with thirty (30) days notice. 3.5.1 Extension Option Conditions. Each Extension Option may be exercised only by written notice delivered by ACFD to City no later than one (1) month prior to the expiration of the Term (as extended pursuant to the previous exercise of one or more Extension Options), and only if as of the date of delivery of the notice, ACFD is not in default under this Agreement. If ACFD properly exercises an Extension Option and is not then in default, the Term shall be extended for the applicable Extension Term. ACFD's failure to exercise an Extension Option in accordance with this Section shall constitute ACFD's election to terminate this Agreement at the end of the Term (as extended pursuant to the previous exercise of one or more Extension Options), and City's acceptance of any Rent subsequent to the expiration of the Term (as extended pursuant to the previous exercise of one or more Extension Options) shall not constitute a waiver by City of the requirement that ACFD timely exercise the Extension Option(s) by delivery of notice pursuant to this Section. 1904321.4 6 OFFICE FACILITY USE AGREEMENT 3.5.2 Extension Term Rent. The Base Rent payable by ACFD during each Extension Term shall be the amount of Base Rent in effect during the last month of the initial Term, increased by 3% each year that the Term is extended. 3.5.3 Amendment to Agreement. If ACFD timely exercises an Extension Option, City and ACFD shall, within thirty (30) days after the Extension Term rent is determined, execute an amendment to this Agreement extending the Term on the terms and conditions set forth in Section 3.5, unless the Alameda County Board of Directors is on recess, and then at the first meeting thereafter. 3.6 Right of First Offer. 3.6.1 Proposal to Use Available Space. Subject to Section 3.6.2, and provided ACFD is not in default under this Agreement beyond any applicable notice and cure periods, whenever City determines that any part of the Building (the "Available Space ") is available for lease or use by other parties, ACFD shall have a right of first offer as set forth herein. Provided ACFD has given City written notice of ACFD's interest in using the Available Space, City shall not, within ninety (90) days after receipt of such notice, enter into or commit to enter into any lease or other agreement for use of the Available Space without first proposing to ACFD a rent and other terms for the Available Space. The Base Rent for the Available Space shall be the Fair Market Rental Value as determined by City in accordance with Section 3.6.5 below (or otherwise agreed upon in writing by the Parties); provided, however, the Base Rent for the Available Space per rentable square foot shall not be less than the Base Rent per rentable square foot payable by ACFD for the Premises initially used and occupied by ACFD hereunder, as the same is adjusted from time to time hereunder. If ACFD's governing board does not approve the terms of such proposal within forty five (45) days after City's delivery thereof, or does not approve execution of an appropriate amendment to this Agreement reflecting such acceptance within forty five (45) days after City's delivery thereof, City shall be free to lease such space to any other person or entity. 3.6.2 Termination of Right. ACFD's rights under this Section 3.6 shall expire on the date ACFD fails to continuously pay rent for and ACFD personally occupies the Premises. Solely for purposes of Section 3.6, Available Space shall not include: (i) space that is subject to a lease, use agreement, or similar agreement that is in effect as of the Effective Date of this Agreement, including renewals or extensions of such agreements, (ii) space that is subject to a sublease, assignment or assignment back right exercisable by the City or by the tenant or other party to any agreement in effect as of the Effective Date, or (iii) space that is the subject of an option to expand or a right of first offer or similar right pursuant to an agreement that is in effect as of the Effective Date of this Agreement, or which is hereafter granted without violation of ACFD's rights under this Section 3.6. 3.6.3 Same Terms and Conditions. As of the date that City delivers actual possession to ACFD of any Available Space, such Available Space shall become part of the Premises, and, except as otherwise provided in this Section 3.6, shall be used 1904321.4 7 OFFICE FACILITY USE AGREEMENT and occupied by ACFD upon the same terms and conditions as apply to the Premises pursuant to this Agreement, unless otherwise agreed to in writing. 3.6.4 Personal Rim ACFD's right to use and occupy Available Space as set forth in this Section 3.6 may not be assigned, transferred or conveyed to any party without the prior written consent of City. 3.6.5 Determination of Fair Market Rental Value. For purposes of this Section "Fair Market Rental Value" shall be the amount that a willing, comparable, new (i.e., non - renewal), non - equity tenant would pay, and that a willing landlord of a comparable space in the vicinity of the Building would accept at arms' length. Appropriate consideration shall be given: (i) the annual rental rate per rentable square foot; (ii) the definition of rentable square feet for purposes of comparing the rate; (iii) location and quality of the Building; (iv) the financial condition (e.g., creditworthiness) of the tenant; (v) escalation (including type, base year and stop) and abatement provisions (if any) reflecting free rent and /or no rent during the period of construction; (vi) brokerage commissions, if any, (vii) length of the lease term; (viii) size of the Premises; (ix) building standard work letter and /or tenant improvement allowance, if any; provided, however, the Fair Market Rental Value shall not include any tenant improvements or any alterations made by ACFD at ACFD's expense; (x) condition of space; (xi) lease takeover / assumptions; (xiii) moving expenses and other concessions (if any); (xii) extent of services to be provided; (xiii) distinctions between "gross" and "net" leases; (xiv) base year figures or expense stops (if any) for escalation purposes for both operating costs and ad valorem / real estate taxes; (xv) the time the particular rental rate under consideration becomes or is to become effective; (xvi) applicable caps (if any) on the amount of real estate taxes and assessments passed through to tenants; and (xvii) other generally applicable conditions of tenancy for the space in question. 3.6.6 Arbitration. If City and ACFD are not able to mutually agree upon the Fair Market Rental Value or otherwise agree upon the Base Rent payable for the Available Space within forty -five (45) days following the date upon which City delivers notice to ACFD regarding the availability of the Available Space (the "Agreement Deadline "), the Fair Market Rental Value will be determined by "baseball arbitration" in accordance with this Subsection 3.6.6. City and ACFD shall each make a separate determination of Fair Market Rental Value and notify the other Party within fifteen (15) days following after the Agreement Deadline. If either Party fails to make a determination of the Fair Market Rental Value within the fifteen (15) day period, that failure shall be conclusively deemed to be that Party's approval of the Fair Market Rental Value submitted within such period by the other Party. If both Parties timely make determinations of Fair Market Rental Value, such determinations shall be submitted to an arbitrator. The determination of the arbitrator shall be limited to the sole issue of determining which of the Party's determinations is closest to the actual Fair Market Rental Value as determined by the arbitrator, taking into consideration the requirements of Section 3.6.5. The arbitrator must be a licensed real estate broker who has been active in the leasing of commercial properties in the greater Dublin area over the immediately prior five -year period. If the Parties are unable to agree upon an arbitrator, then each Party shall appoint one arbitrator within fifteen (15) days following the Agreement 1904321.4 8 OFFICE FACILITY USE AGREEMENT Deadline and shall notify the other Party of such appointment. Within ten (10) days following the appointment of the second arbitrator, the two arbitrators so selected shall agree upon and appoint a third appraiser who shall have the qualifications specified in this paragraph and shall notify the Parties of such appointment. Within 30 days following the appointment of the third arbitrator, the three arbitrators shall decide whether to use City's or ACFD's determination of Fair Market Rental Value and shall notify the parties of their decision. The decision of the majority of the arbitrators shall be binding. If either Party fails to appoint an arbitrator within fifteen (15) days following the Agreement Deadline, then the arbitrator timely appointed shall reach a decision and shall notify City and ACFD of such decision within thirty (30) days after such arbitrator's appointment. The decision of such arbitrator shall be binding on City and ACFD. The cost of the arbitration shall be paid by the losing Party. 3.7 Relocation within Building. City will be making improvements to the Building, including office space that ACFD desires to occupy and that City desires ACFD to occupy (the "New Space "). The Parties shall enter into a Work Letter for the New Space, which will be attached to this Agreement as Exhibit C -3. The Work Letter and any further amendments to the Work Letter, can be executed by the ACFD Chief and by the City Manager. If, prior to the termination of this Agreement, the New Space is completed, the Parties shall amend this Agreement so that ACFD may immediately occupy the New Space. The New Space shall be in a location that is acceptable to ACFD. The New Space shall be the same square footage as the Premises, unless agreed to in writing by ACFD and City. All of the terms and provisions of this Agreement shall apply to the New Space with equal force and effect. ACFD agrees to relocate to such New Space within twenty (20) days following receipt of notice from City that the New Space is available for ACFD's occupancy, and all work has been completed in accordance with the Work Letter for the New Space. Moving expenses shall be paid by ACFD. The New Space shall include improvements comparable to those in the Premises and as set out in Exhibit C. -3 3.8 No Representations. ACFD acknowledges that neither City nor any of City's agents has made any representation or warranty as to the suitability or fitness of the Premises for the conduct of ACFD's business, and that neither City nor any of City's agents has agreed to undertake any alterations or additions or to construct any improvements to the Premises except as expressly provided in this Agreement. ARTICLE IV RENT, OPERATING EXPENSES, TAXES AND SECURITY DEPOSIT 4.1 Monthly Rent. From and after the Commencement Date, ACFD shall pay to City for each calendar month of the Term, the monthly Base Rent set forth in Section 1.11 as the same may be adjusted upon ACFD's exercise of any Extension Option as provided in Section 3.5.2. Each monthly installment of Base Rent shall be due and payable to City in lawful money of the United States, in advance, on the first (1st) day of each calendar month during the Term, without abatement, deduction, claim or offset 1904321.4 9 OFFICE FACILITY USE AGREEMENT (unless the Parties mutually agree to allow an abatement, deduction, claim or offset), and without prior notice, invoice or demand, at City's address set forth in Section 1.1 or such other place as City may designate from time to time. ACFD's payment of Base Rent for the first month of the Term shall be delivered to City on the Commencement Date. 4.2 Prorations. Monthly installments for any fractional calendar month at the beginning or end of the Term shall be prorated based on the number of days in such month. 4.3 Additional Rent. All Additional Rent, including without limitation, ACFD's Share of Operating Expenses and ACFD's Share of Real Property Taxes shall be due and payable to City in lawful money of the United States without abatement, deduction, claim or offset, unless the Parties mutually agree otherwise, within thirty (30) days of receipt of City's invoice or statement for same (or if this Agreement provides another time for the payment of certain items of Additional Rent, then at such other time) at City's address set forth in Section 1.1 or such other place as City may designate from time to time. 4.4 Late Charge. ACFD acknowledges that the late payment of Rent will cause City to incur administrative costs and other damages, the exact amount of which would be impracticable or extremely difficult to ascertain. City and ACFD agree that if City does not receive any such payment within ten (10) calendar days after such payment is due, ACFD shall pay to City as Additional Rent an amount equal to five percent (5 %) of the overdue amount as a late charge for each month or partial month that such amount remains unpaid. The Parties acknowledge that this late charge represents a fair and reasonable estimate of the costs that City will incur by reason of the late payment by ACFD. Acceptance of any late Rent and late charge therefore shall not prevent City from exercising any of the other rights and remedies available to City for any other Event of Default under this Agreement. 4.5 Common Area Charges, Operating Expenses, and Taxes. 4.5.1 ACFD to Pay ACFD's Share of Operating Expenses. ACFD shall pay to City ACFD's Share (as defined in Section 4.5.2) of Operating Expenses as follows: on the Commencement Date (or as soon thereafter as is reasonably practicable) and thereafter prior to the commencement of each calendar year during the Term, City shall give ACFD a written estimate of ACFD's Share of Operating Expenses for the ensuing calendar year. Commencing on the Commencement Date, and continuing thereafter throughout the Term, ACFD shall pay, as an item of Additional Rent, such estimated amount in equal monthly installments, in advance, on or before the first day of each calendar month. If City has not furnished its written estimate by the time set forth above, ACFD shall pay monthly installments of Operating Expenses at the rate established for the prior calendar year, if any; provided that when the new estimate is delivered to ACFD, as applicable, ACFD shall at the next monthly payment date pay City any accrued deficiency based on the new estimate, or City shall credit any accrued overpayment based on such estimate toward ACFD's next installment payment 1904321.4 10 OFFICE FACILITY USE AGREEMENT hereunder. Within a reasonable period of time after the end of each calendar year during the Term (but in no event more than 180 days after the end of each year), City shall furnish ACFD a statement ( "Annual Statement ") showing in reasonable detail ACFD's Share of the actual Operating Expenses incurred for the period in question; provided, however, with respect to the calendar year during which this Agreement expires or sooner terminates, City may, at its election, provide ACFD with an Annual Statement prior to the end of such year based on estimated Operating Expenses, as determined by City. If ACFD's estimated payments are less than ACFD's Share of actual Operating Expenses as shown by the applicable Annual Statement, ACFD shall pay the difference to City within thirty (30) days following delivery of the Annual Statement. If ACFD shall have overpaid City, City shall credit such overpayment toward ACFD's next installment payment hereunder, or if no installment payment is due, shall refund the amount to ACFD within thirty (30) days When the Annual Statement is furnished to ACFD for the calendar year in which this Agreement expires or sooner terminates: (i) ACFD shall, even if this Agreement has expired or terminated, pay to City within thirty (30) days after notice, any additional sum payable by ACFD in excess of the estimate previously provided, and (ii) City shall rebate any overpayment to ACFD within thirty (30) days following delivery of the Annual Statement. If City determines at any time that the estimate of ACFD's Share of Operating Expenses for the current year is or will become inadequate to meet ACFD's Share of all such Operating Expense for any reason, City may, at its election, determine the approximate amount of such inadequacy and issue a supplemental estimate, and ACFD shall pay any increase as reflected by such supplemental estimate. City shall keep or cause to be kept separate and complete books covering all Operating Expenses and showing the method of calculating ACFD's Share of Operating Expenses, and shall preserve for at least twelve (12) months after the close of each year all material documents evidencing such Operating Expenses for that year. For a period of 180 days following ACFD's receipt of an Annual Statement, ACFD, at its sole cost and expense, through a representative designated by ACFD and reasonably approved by City, shall have the right upon written notice to City, during reasonable business hours at City's offices, to examine and /or audit the books and documents evidencing such costs and expenses for the period covered by the applicable Annual Statement, provided that ACFD is not then in default under this Agreement. Any delay or failure by City in delivering any estimate or statement pursuant to this Section shall not constitute a waiver of its right to require ACFD to pay ACFD's Share of Operating Expenses, pursuant hereto. In the event that the Building is not at least ninety -five percent (95 %) occupied during any year during the Term, City shall make an appropriate adjustment of the variable components of Operating Expenses for such year, as reasonably determined by City using sound accounting and management principles, to determine the amount of Operating Expenses that would have been incurred had the Building been ninety -five percent (95 %) occupied during such year. This amount shall be considered to have been the amount of Operating Expenses for that year. For purposes of this Section "variable components" include only those Operating Expense components that are affected by variations in occupancy levels. 1904321.4 11 OFFICE FACILITY USE AGREEMENT 4.5.2 Definition of ACFD's Share. The term "ACFD's Share" means that portion of an Operating Expense or Real Property Tax determined by multiplying the cost of such item by a fraction, the numerator of which is the Rentable Square Footage and the denominator of which is the total square footage of the floor area to be charged with such Operating Expense or Real Property Tax. ACFD acknowledges that the Premises are part of a Building of approximately 55,000 square feet that has or will have other occupants, including City. ACFD's Share of various Operating Expenses shall be determined as a function of the Building square footage, and ACFD's Share of Operating Expenses for all items related to Common Areas shall not exceed the percentage of the Building represented by the Premises, regardless of whether or not the Building is fully occupied. As of the Commencement Date, ACFD's Share of the Building is estimated to be 25.5 %. 4.5.3 Definition of Operating Expenses. The term "Operating Expenses" means all costs and expenses incurred by City or City's agents in connection with the ownership, maintenance, repair, management and operation of the Real Property, including, but not limited to the following: repair and maintenance of the roof, foundation and exterior walls of the Building; periodic painting of the Building; periodic cleaning of the exterior windows of the Building; landscaping services; outside pest control; operation, maintenance and repair of elevators (if any), utility systems, HVAC systems, mechanical and electrical systems and sanitary and storm drain systems through maintenance contracts or otherwise; maintenance services, repairs to and replacement of asphalt paving, bumpers, striping, light bulbs, light standards, monument and directional signs and lighting systems, perimeter walls, retaining walls, sidewalks, planters, landscaping and sprinkler system in planting areas; any and all assessments levied against the Building and /or the Land; water, electrical and other utility services not supplied directly to a tenant or Building occupant; removal of trash, rubbish and other refuse; cleaning and replacement of signs, including relamping and repairs; repair, operation and maintenance of the Common Area including but not limited to payment of all electrical, water and other utility charges or fees for services furnished to the Common Area; obtaining and maintaining liability, property damage and other forms of insurance which City may or is required to maintain in connection with the Building or the Real Property (including the payment of any deductibles thereunder); costs incurred in connection with compliance with any laws or changes in laws applicable to the Building or the Real Property, including without limitation any laws or changes in laws regarding Hazardous Material and /or repair of Common Area improvements, equipment and supplies; employment of such personnel as City may deem reasonably necessary if any to direct parking and police the Common Area and facilities; the cost of any capital improvements (other than improvements for specific tenants or other occupants ) made by or on behalf of City to the Building or the Common Area, to the extent of the amortized amount thereof over the useful life of such capital improvements calculated at a market cost of funds, all as determined by City, for each year of useful life during the Term; depreciation of machinery and equipment used in connection with the maintenance and operation of the Common Area; employment of personnel in connection with any of the foregoing, including payment for unemployment insurance, workers' compensation 1904321.4 12 OFFICE FACILITY USE AGREEMENT insurance and other reasonable costs associated with such personnel; the cost of bookkeeping, accounting and auditing and legal services provided in connection with any of the foregoing; the cost of any environmental consultant or other services used in connection with City's monitoring of the Real Property with respect to Hazardous Material; the cost of any tax, insurance or other consultant utilized in connection with the Real Property; and any other items reasonably necessary from time to time to properly repair, replace, maintain and operate the Building and the Real Property. Operating Expenses shall also include a management fee consistent with comparable projects in the City of Dublin to cover City's management, overhead and administrative expenses or City's payment of professional management fees. If City elects to perform any maintenance or repair in conjunction with properties other than the Building, and if a common maintenance contractor is hired for such purposes, the contract amount allocable to the Building as reasonably determined by City, shall be added to and deemed a part of Operating Expenses hereunder. 4.5.4 Exclusions From Operating Expenses. Despite any other provision of Section 4.5.3, Operating Expenses shall not include: (a) depreciation, interest, or amortization on mortgages or ground lease payments; (b) legal fees incurred in negotiating and enforcing leases or occupancy agreements; (c) real estate brokers' leasing commissions; (d) improvements and alterations made for the benefit of a specific tenant; (e) the cost of providing any service directly to and paid directly by any tenant or other occupant; (f) any costs expressly excluded from Operating Expenses elsewhere in this Agreement; (g) costs of capital improvements, except as otherwise stated herein; and (h) costs of any items for which City receives reimbursement from insurance proceeds or a third party. Insurance proceeds shall be excluded from Operating Expenses in the year in which they are received, except that any deductible amount under any insurance policy shall be included within Operating Expenses. 4.6 Taxes. Both Parties are governmental entities and exempt from payment of most taxes; however for the purpose of this Agreement, the term "Real Property Taxes" means any form of tax, assessment, charge, license, fee, rent tax, levy, penalty (if a result of ACFD's delinquency), real property or other tax (other than City's net income or franchise taxes), now or hereafter imposed with respect to the Building, or the Real Property or any part thereof (including any Alterations), this Agreement or any Rent payable under this Agreement by any authority having the direct or indirect power to tax, or by any city, county, state or federal government or any improvement district or other district or division thereof, whether such tax or any portion thereof (i) is determined by the area of the Building or the Real Property, or any part thereof or the Rent payable under this Agreement by ACFD, including, but not limited to any gross income or excise tax levied by any of the foregoing authorities with respect to receipt of Rent due under this Agreement, (ii) is levied or assessed in lieu of, in substitution for, or in addition to, existing or additional taxes with respect to the Building or the Real Property or any part thereof whether or not now customary or within the contemplation of City or ACFD, or (iii) is based upon any legal or equitable interest of City in the Building or the Real Property or any part thereof. ACFD and City intend that all Real Property Taxes, including without limitation all new and increased assessments, taxes, possessory interest 1904321.4 13 OFFICE FACILITY USE AGREEMENT taxes charged or levied in place of real property taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges shall be included within the definition of "Real Property Taxes" for purposes of this Agreement. 4.6.1 Apportionment of Taxes. If the Building is assessed as part of a larger parcel, then City shall equitably apportion the Real Property Taxes and reasonably determine the Real Property Taxes attributable to the Building. If other buildings exist on the assessed parcel, the Real Property Taxes apportioned to the Building shall be based upon the ratio of the square footage of the Building to the square footage of all buildings on the assessed parcel. 4.6.2 Tax on Improvements. Notwithstanding anything to the contrary set forth in this Agreement, ACFD shall pay prior to delinquency any and all taxes, fees and charges which are levied or assessed against City or ACFD: (a) upon ACFD's equipment, furniture, fixtures, improvements and other personal property located in the Premises, (b) by virtue of any alterations or leasehold improvements made to the Premises by ACFD, and (c) upon this transaction or any document to which ACFD is a party creating or transferring an interest or an estate in the Premises. City shall promptly notify ACFD of any tax, fee, or charge. If any such tax, fee or charge is paid by City, ACFD shall reimburse City for City's payment upon demand. 4.7 Intentionally omitted. ARTICLE V USE OF PREMISES 5.1 Permitted Use. The Premises shall be used solely for the purposes set forth in Section 1.14 and for no other purpose without the written consent of City, which may be granted or withheld in City's sole discretion. ACFD shall not do or suffer or permit anything to be done in or about the Premises, the Building or the Real Property, nor bring or keep anything therein that would in any way subject City to any liability, increase the premium rate of or affect any fire, casualty, rent or other insurance relating to the Real Property or any of the contents of the Building, or cause a cancellation of, or give rise to any defense by the insurer to any claim under, or conflict with, any policies for such insurance. If any act or omission of ACFD results in any such increase in premium rates, ACFD shall pay to City upon demand the amount of such increase. 5.2 Signage. ACFD shall obtain the prior approval of the City, which approval may be withheld in City's reasonable discretion before placing any sign or symbol on doors or windows or elsewhere in or about the Premises so as to be visible from the public areas or exterior of the Building, or upon any other part of the Building or Real Property, including building directories. Any signs or symbols which have been placed without City's approval may be removed by City. Upon expiration or termination of this Agreement, all signs installed by ACFD shall be removed and any damage resulting 1904321.4 14 OFFICE FACILITY USE AGREEMENT therefrom shall be promptly repaired by ACFD, or such removal and repair may be done by City and the cost charged to ACFD as Rent. ACFD shall be provided signage in the lobby of the Building as a part of the Building directory. 5.3 Rules and Regulations. ACFD shall comply with the rules attached hereto as Exhibit B, and any amendments or additions thereto promulgated by City from time to time for the safety, care and cleanliness of the Premises, Building and Real Property (the "Rules and Regulations ") except as stated in Section 5.3.1. ACFD shall not use or permit any person to use the Premises for any purpose that is contrary to the Rules and Regulations, that violates any Applicable Law, that constitutes waste or nuisance, or that would unreasonably annoy or interfere with other occupants of the Building or the occupants of buildings adjacent to the Building. City shall not be responsible to ACFD for the nonperformance or noncompliance by any other occupant of the Building of or with any of the Rules and Regulations. In the event of any conflict between the provisions of this Agreement and the provisions of the Rules and Regulations, the provisions of this Agreement shall control. 5.3.1 Notwithstanding any contrary provision of the Rules and Regulations as such may be amended from time to time, ACFD may use the Premises and Building as follows: a. ACFD may have access to the Premises 24 hours a day every day of the year. b. ACFD may install and shall have control of all electrical devices installed or used in the Premises, including those that have transmissions. c. City shall allow any other exemptions from Rules and Regulations consistent with use of space by a public safety agency and guidelines or requirements of Homeland Security or similar agencies. 5.4 Compliance with Laws. ACFD shall procure and maintain all governmental approvals, licenses and permits required for the proper and lawful conduct of ACFD's permitted use of the Premises. ACFD shall throughout the Term comply with and shall not use the Premises, the Building or the Real Property, or suffer or permit anything to be done in or about the same which would in any way conflict with any of the following (collectively "Applicable Laws "): (i) the provisions of all recorded covenants, conditions and restrictions applicable to the Building or the Real Property, or (ii) any federal, state, county, local or other governmental agency rules, regulations, statutes, ordinances, orders, standards, requirements or laws now in force or hereafter enacted, promulgated or issued which are applicable to the Real Property, Premises, the Building, or the use or occupancy thereof, including without limitation building, zoning, and fire codes and regulations. 1904321.4 15 OFFICE FACILITY USE AGREEMENT 5.5 Repairs and Replacements. ACFD shall repair and maintain the Premises, including the ACFD Improvements, fixtures and furnishings in an order and condition in compliance with Applicable Laws, and ACFD shall, at ACFD's sole expense promptly make all repairs, replacements, alterations, or improvements necessary to comply with all Applicable Laws to the extent that such Applicable Laws are triggered by or relate to (i) ACFD's particular use of the Premises, (ii) the ACFD Improvements, or (iii) any alterations located in the Premises. City shall, at City's sole expense, promptly make all repairs, replacements, alterations, or improvements necessary to comply with all Applicable Laws to the extent that such Applicable Laws relate to the base Building. ARTICLE VI ENVIRONMENTAL MATTERS 6.1 Use of Hazardous Materials. ACFD shall not cause or permit any Hazardous Material to be generated, brought onto, used, stored, or disposed of in or about the Premises, the Building or the Real Property by ACFD or ACFD's agents, employees, contractors, subtenants or invitees (collectively "ACFD Parties "), except for limited quantities of standard office and janitorial supplies. At ACFD's sole cost and expense, ACFD shall use, store and dispose of all such Hazardous Materials in strict compliance with all Environmental Laws, and shall in all other respects comply with all Environmental Laws. 6.2 Notice of Release or Investigation. If during the Term of this Agreement (including any extensions), either Party becomes aware of (a) any actual or threatened release of any Hazardous Material in, on, under, or about the Premises, the Building or the Real Property, or (b) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of Hazardous Material in, on, under, or about the Premises, the Building, or the Real Property, that Party shall give the other Party written notice of the release or investigation within five (5) days after learning of it and shall simultaneously furnish to the other Party copies of any claims, notices of violation, reports, or other writings received by the Party that concern the release or investigation. 6.3 Indemnification. City and ACFD (each an "Indemnifying Party ") shall defend (with counsel reasonably acceptable to the other Party), indemnify and hold harmless the other Party and its elected and appointed officers, officials, employees, agents and representatives (collectively, "Indemnified Parties ") from and against any and 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 expenses, court costs, expert witness fees and post judgment collection costs) (all of the foregoing, collectively "Claims ") resulting or arising from or in connection with any release of any Hazardous Material in or about the Premises, the Building or the Real Property or any other violation of any Environmental Law by the Indemnifying Party or its agents, 1904321.4 16 OFFICE FACILITY USE AGREEMENT assignees, sublessees, contractors, or invitees. This indemnification includes: (i) losses attributable to diminution in the value of the Premises or the Building, (ii) loss or restriction of use of rentable space in the Building, (iii) adverse effect on the marketing of any space in the Building; and (iv) all other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation. The indemnity provided in this Section shall not extend to Claims to the extent the same are caused by the gross negligence or willful misconduct of the Indemnified Parties. The provisions of this Section shall survive the expiration or termination of this Agreement. 6.4 Remediation Obligations. If the presence of any Hazardous Material brought onto the Premises or the Building by either Party or its employees, agents, contractors, or invitees results in contamination of the Premises, the Building or the Real Property, that Party shall promptly take all necessary actions to remove or remediate such Hazardous Materials, whether or not they are present at concentrations exceeding state or federal maximum concentration or action levels, or any governmental agency has issued a cleanup order, at that Party's sole expense, to return the Premises and the Building to the condition that existed before the introduction of such Hazardous Material. ACFD shall first obtain City's approval of the proposed removal or remedial action. This provision does not limit the indemnification obligation set forth in Section 6.3. 6.5 Definition of Hazardous Material. As used in this Agreement, the term "Hazardous Material" means any hazardous or toxic substance, material, or waste at any concentration that is or becomes regulated by the United States, the State of California, or any government authority having jurisdiction over the Building. Hazardous Material includes: (a) any "hazardous substance," as that term is defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 United States Code sections 9601- 9675); (b) "hazardous waste," as that term is defined in the Resource Conservation and Recovery Act of 1976 (RCRA) (42 United States Code sections 6901- 6992k); (c) any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, within the meaning of any other applicable federal, state, or local law, regulation, ordinance, or requirement (including consent decrees and administrative orders imposing liability or standards of conduct concerning any hazardous, dangerous, or toxic waste, substance, or material, now or hereafter in effect); (d) petroleum products; (e) radioactive material, including any source, special nuclear, or byproduct material as defined in 42 United States Code sections 2011- 2297g -4; (f) asbestos in any form or condition; and (g) polychlorinated biphenyls (PCBs) and substances or compounds containing PCBs. 6.6 Definition of Environmental Laws. As used in this Agreement, the term "Environmental Laws" means all federal, state and local laws, ordinances, regulations, rules orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes, and regulations cited in the preceding Section 6.5, as any of the foregoing may be amended from time to time. 1904321.4 17 OFFICE FACILITY USE AGREEMENT ARTICLE VII UTILITIES AND SERVICES 7.1 Building Services. City shall supply the Utility Services and the Maintenance Services described below in accordance with the terms and conditions set forth in this Article. The Utility Services and the Maintenance Services are collectively referred to as the `Building Services." Except as otherwise specifically provided herein, the cost of all Utility Services and Maintenance Services shall be included within the definition of Operating Expenses and shall be paid by ACFD in the manner set forth in Section 4.5. 7.1.1 Utility Services. City shall furnish the utility services listed in this Section ( "Utility Services ") except to the extent that ACFD has separately contracted for the provision of such services. During the hours from 8:00 a.m. to 6:00 p.m., Monday through Friday, excluding federal and state holidays (`Building Standard Hours "), City shall supply. (i) electricity for Building lighting and power suitable for use of the Premises for ordinary general office purposes; (ii) air conditioning and heating as required in City's reasonable judgment for the comfortable use and occupancy of the Premises for ordinary general office purposes; and (iii) water for drinking and lavatory purposes. City may at its option require ACFD to pay as Additional Rent the cost as reasonably determined by City incurred in connection with any extraordinary usage of utilities. In addition, City may install separate meter(s) for the Premises, and ACFD thereafter shall pay all charges of the metered service. If such utilities and services (including without limitation, HVAC service) are requested by ACFD during times other than the Building Standard Hours, City may invoice ACFD for the actual costs incurred and ACFD shall pay City's charges for the actual costs of such utilities and services on demand as Additional Rent. Such charges shall be based on City's actual costs together with such reasonable administration charges as City may impose in connection therewith, with after -hours HVAC services being charged on a per -hour basis at the hourly rate established by City from time to time for the Building (which hourly rate may be based on the cost of utilities, wear and tear on the HVAC systems and City's administration). ACFD shall cooperate with any present or future government conservation requirements and with any reasonable conservation practices established by City. 7.1.2 Maintenance Services. City shall provide all of the following (collectively, "Maintenance Services "): (i) maintenance of all exterior areas of the Building and the Real Property, including without limitation, lighting and landscaping; (ii) cleaning, painting, maintenance and repair of the Building exterior, (iii) maintenance and repair of the Building mechanical, electrical, HVAC and plumbing equipment and systems and the Building structural components including the roof, foundation, floors and walls, (iv) maintenance of all public and common areas of the Building and the Real Property including parking lots, walkways, driveways, fences, utility systems, fire sprinklers, lobbies, stairs, elevators, corridors, restrooms, windows; (v) supply of public area lamp replacement, (vi) provision of exterior window washing with reasonable 1904321.4 18 OFFICE FACILITY USE AGREEMENT frequency, but in no event less than two times per year; and (vii) provision of janitorial services to the common areas ( "Janitorial Services "). ACFD shall be responsible for janitorial service to the Premises and interior window cleaning. ACFD may elect to contract with City's janitorial service company. 7.2 Interruption of Services. ACFD agrees that City shall not be liable for damages, by abatement of Rent or otherwise, for failure to furnish or delay in furnishing any Building Service (including telephone and telecommunication services) or for diminution in the quality or quantity of any service when the failure, delay, or diminution is entirely or partially caused by: (a) breakage, repairs, replacements, or improvements; (b) strike, lockout, or other labor trouble; (c) inability to secure electricity, gas, water, or other fuel at the Building after reasonable effort to do so; (d) accident or casualty, (e) act or default of ACFD or other parties; or (f) any other cause beyond City's reasonable control. Such failure, delay, or diminution shall not be considered to constitute an eviction or a disturbance of ACFD's use and possession of the Premises or relieve ACFD from paying Rent or performing any of its obligations under this Agreement. Without limiting the generality of the foregoing, City shall not be liable under any circumstances for a loss of or injury to property or for injury to or interference with ACFD's business, including loss of profits through, in connection with, or incidental to a failure to furnish any of the utilities or services described in this Article VII. City may comply with mandatory or voluntary controls or guidelines promulgated by any government entity relating to the use or conservation of energy, water, gas, light, or electricity without creating any liability of City to ACFD under this Agreement as long as compliance with voluntary controls or guidelines does not materially and unreasonably interfere with ACFD's use of the Premises. City shall promptly repair any items in the Common Areas that are necessary for use of the Premises. 7.3 ACFD's Maintenance and Repair Obligations. ACFD shall, at all time during the Term of this Agreement, at ACFD's sole expense, keep the Premises (including all ACFD Improvements, Alterations, fixtures and furnishings) in good order, repair and condition at all times during the Term. Subject to City's prior approval and within any reasonable period specified by City, ACFD shall, at ACFD's sole expense, promptly and adequately repair all damage to the Premises and replace or repair all damaged or broken fixtures and other leasehold improvements. If ACFD fails to maintain or keep the Premises in good repair or if such failure results in a nuisance or health or safety risk, at City shall promptly notify ACFD and allow a reasonable time to conduct the maintenance or repair. If ACFD does not conduct the maintenance or repair, City may perform any such required maintenance and repairs, and within thirty (30) days after receipt of City's invoice therefor, ACFD shall pay City's costs incurred in connection with such repairs, plus a percentage of such costs sufficient to reimburse City for all overhead, general conditions, fees and other costs and expenses in connection therewith. 7.4 Intentionally omitted. 1904321.4 19 OFFICE FACILITY USE AGREEMENT 7.5 Compliance with Applicable Laws. City and ACFD shall each comply with (and shall cause their respective employees, agents and contractors to comply with) all Applicable Laws, including without limitation all Environmental Laws, whenever either party undertakes any work of construction, alteration or improvement in the Premises or the Building. ARTICLE VIII ALTERATIONS AND ADDITIONS 8.1 Alterations and Improvements. ACFD may not make any improvements, alterations, additions or changes to the Premises ( "Alterations ") exceeding Five Thousand Dollars ($5,000) in cost without the prior written approval of City. All Alterations shall be done at ACFD's expense, in a good and workmanlike manner conforming in quality and design with the Premises existing as of the Commencement Date, by ACFD, Alameda County GSA, or by licensed contractors, in conformity with plans approved by City, and in compliance with all Applicable Laws. ACFD shall obtain all necessary governmental approvals and permits for such Alterations. ACFD shall give City not less than ten (10) business days' notice prior to the commencement of construction so that City may post a notice of nonresponsibility on the Premises. Notwithstanding any other provisions in this Agreement, unless City otherwise agrees in writing, ACFD shall remove, prior to expiration of the Term and at ACFD's sole cost and expense, any and all wires, cables and related telecommunications devices installed by or on behalf of ACFD, and City may at its option by written notice to ACFD, require that ACFD, upon the expiration or sooner termination of this Agreement, at ACFD's expense, remove any or all other Alterations and return the Premises to its condition as of the Commencement Date, normal wear and tear excepted. In no event shall any Alteration (i) affect the exterior of the Building, (ii) affect any of the structural portions of the Building, including without limitation, the roof, (iii) require any change to the basic floor plan of the Premise or any change to the structural or mechanical components of the Premises, (iv) diminish the value of the Premises, (v) result in an increase in the demand for utilities or services that City is required to provide, (vi) cause an increase in the premiums for hazard or liability insurance carried by City, or (vii) overload the floor load capacity or unduly burden the plumbing, heating, ventilation, air conditioning, electrical or other basic systems that serve the Building. ARTICLE IX INSURANCE AND INDEMNITY 9.1 Indemnity. To the fullest extent permitted by law, ACFD shall defend (with counsel reasonably acceptable to City), indemnify and hold the Indemnitees harmless from and against any and all Claims (including without limitation, Claims for or relating to loss of or damage to property, injury or death of any person, and economic losses and consequential or resulting damage of any kind), including any Claim directly 1904321.4 20 OFFICE FACILITY USE AGREEMENT or indirectly arising from or in connection with or in any way attributable to: (i) the use or occupancy, or manner of use or occupancy of the Premises or the Real Property by ACFD or the ACFD Parties, (ii) any act, error, omission or negligence of ACFD Parties or any invitee, guest or licensee of ACFD in, on or about the Premises or the Real Property, (iii) any Alterations, activity, work, or thing done, omitted, permitted, allowed or suffered by ACFD or ACFD Parties in, at, or about the Premises, or the Real Property, or (iv) any breach or default in performance of any obligation on ACFD's part in the performance of any covenant or agreement to be performed by ACFD under this Agreement, except to the extent caused by the negligence or willful misconduct of City or the Indemnitees. This indemnification does not extend to Claims arising out of Common Areas unless such Claims arise from the negligence or intentional actions of ACFD or the ACFD Parties. To the fullest extent permitted by law, City shall defend (with counsel reasonably acceptable to ACFD), indemnify and hold ACFD and its elected and appointed officers, officials, employees, representative and agents harmless from and against any and all Claims (including without limitation, Claims for or relating to loss of or damage to property, injury or death of any person, and economic losses and consequential or resulting damage of any kind), arising from or in connection with or in any way attributable to: (i) any act, error, omission or negligence of City or any, invitee guest, licensee, employee, agent or contractor of City in, on or about the Building or the Real Property, (iii) any activity, work, or thing done, omitted, permitted, allowed or suffered by the City or any invitee guest, licensee, employee, agent, or contractor of City in, at, or about the Building or the Real Property, or (iv) any breach or default in performance of any obligation on the part of City in the performance of any covenant or agreement to be performed by City under this Agreement, except to the extent caused by the negligence or willful conduct of ACFD or the ACFD Parties. The provisions of this Section shall not be construed or interpreted as in any way restricting, limiting or modifying the insurance obligations of the Parties under this Agreement and are independent of such obligations. Compliance with the insurance requirements set forth in this Agreement shall not in any way restrict, limit or modify the respective indemnification obligations of the Parties hereunder. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. 9.2 ACFD's Insurance. ACFD shall, at its sole expense, procure and maintain throughout the Term (plus such earlier and later periods as ACFD may be in occupancy of the Premises) all of the following: (a) Commercial general liability insurance including contractual liability coverage, written on an "occurrence" policy form, covering bodily injury, property damage and personal injury arising out of or relating (directly or indirectly) to ACFD's operations, conduct, assumed liabilities, or use or occupancy of the Premises, the Building or the Real Property naming the Indemnitees as additional insureds, with minimum coverage in the amount of One Million Dollars ($1,000,000) per occurrence 1904321.4 21 OFFICE FACILITY USE AGREEMENT combined single limit for bodily injury and property damage and Two Million Dollars ($2,000,000) in the aggregate; (b) Property insurance protecting ACFD against loss or damage by fire and such other risks as are insurable under then available standard forms of "all risk" insurance policies, covering ACFD's personal property and trade fixtures in or about the Premises or the Real Property, and any improvements and /or Alterations in the Premises, in an amount not less than one hundred percent (100 %) of their actual replacement cost or highest insurable value; (c) Workers' compensation insurance in at least the statutory amounts; and (d) Comprehensive automobile liability insurance with a minimum coverage of one million dollars ($1,000,000) per occurrence, combined single limit. The foregoing policies shall protect ACFD as an additional named insured, and City and the other Indemnitees as additional insureds, and if subject to deductibles shall provide for deductible amounts not in excess of those approved in advance in writing by City in its reasonable discretion. City reserves the right to increase the foregoing amount of required liability coverage from time to time (but not more often than once each calendar year) to adequately protect Indemnitees and to require that ACFD cause any of its contractors, vendors or other parties conducting activities in or about or occupying the Premises to obtain and maintain insurance as determined by City and as to which the Indemnitees shall be additional insureds. 9.3 Excess Coverage Liability Policy. Nothing in this Article IX shall prevent ACFD from obtaining insurance of the kind and in the amounts provided for under this Section under an excess coverage liability insurance policy covering other properties as well as the Premises; provided, however, that any such policy of excess coverage liability insurance (i) shall specify those amounts of the total insurance allocated to the Premises, which amounts shall not be less than the amounts required by Section 9.2, (ii) such amounts so specified shall be sufficient to prevent any one of the insureds from becoming a co- insurer within the terms of the applicable policy, and (iii) shall, as to the Premises, otherwise comply with the requirements of this Article as to endorsements and coverage. 9.4. Policy Form. ACFD maintains its insurance through the County of Alameda, which is self insured. Other than ACFD's workers' compensation insurance, all coverage shall (i) provide that no act or omission of ACFD shall affect or limit the obligations of the insurer with respect to any other insured; (ii) include all waiver of subrogation rights endorsements necessary to effect the provisions of Section 9.6 and (iii) provide that the coverage shall be primary, and that City, although an additional insured, shall nevertheless be entitled to recovery for any damage to City or the other Indemnitees by reason of acts or omission of ACFD, and that any coverage carried by City shall be noncontributory with respect to coverage carried by ACFD. If requested, 1904321.4 22 OFFICE FACILITY USE AGREEMENT proof of coverage shall be delivered to City by ACFD on or before the Commencement Date. City may at any time, and from time to time, inspect and /or copy any and all insurance coverage required by this Agreement. 9.5 Insurance of ACFD's Contractors and Agents. In addition to any other insurance requirements, ACFD expressly agrees that none of its agents, contractors, workmen, mechanics, suppliers or invitees performing construction or repair work in the Premises shall commence such work unless and until each of them shall furnish ACFD (and City if requested) with satisfactory evidence of insurance coverage, financial responsibility and appropriate written releases of mechanic's or materialmen's lien, or stop notice claims, as necessary. 9.6 Waiver of Subro ag tion. ACFD and City each agree to waive, and as applicable shall cause the insurance companies issuing their respective property (first party) insurance, to waive any subrogation rights that each Party and such companies may have against ACFD or City, respectively, as long as the insurance is not invalidated by the waiver. If the waivers of subrogation are contained in their respective insurance policies, City and ACFD waive any right that either may have against the other on account of any loss or damage to their respective property to the extent that the loss or damage is insured under their respective insurance policies. 9.7 City's Insurance. City shall maintain throughout the Term liability insurance and property damage insurance comparable to or exceeding the coverage and amounts of insurance carried by reasonably prudent municipal/government owners of comparable buildings, and workers' compensation coverage as required by law. ARTICLE X ASSIGNMENT AND SUBLETTING 10.1 City's Consent Required. ACFD shall not assign, mortgage, pledge, encumber or otherwise transfer this Agreement. Except as set forth in this Section, ACFD shall not permit all or any part of the Premises to be used or occupied for any purpose by anyone other than ACFD without the prior written consent of City, which City will not unreasonably withhold. Except as set forth in this section, any assignment or agreement permitting any third party to use or occupy the Premises without City's prior written consent shall, at City's option, be void and shall constitute an Event of Default entitling City to terminate this Agreement and to exercise all other remedies available to City under this Agreement and at law. 10.2 No Release of Obligations. The consent by City to an assignment or agreement for use by others shall not relieve ACFD or any assignee from the requirement of obtaining City's express prior written consent to any other or further assignment or agreement for use by another occupant. No occupant may assign its rights or allow others to use the Premises, without City's prior written consent, which consent may be 1904321.4 23 OFFICE FACILITY USE AGREEMENT not be unreasonably withheld. Neither an assignment nor the collection of rent by City from any person other than ACFD shall be deemed a waiver of any of the provisions of this Article or release ACFD from its obligations to comply with this Agreement, and ACFD shall remain fully and primarily liable for all of ACFD's obligations under this Agreement. 10.3 Recapture. As material consideration for the execution of this Agreement by City, ACFD hereby agrees that whenever it delivers notice to City that it desires approval of a use agreement or assignment which covers the entirety of the Premises, City shall have the right to review the terms and conditions of such proposed use agreement or assignment and shall have a right for a period of fifteen (15) business days, to cancel this Agreement, and enter into a direct agreement with any prospective user or assignee. Such fifteen (15) day period shall commence upon ACFD's delivery to City of written notice of the terms of the proposed assignment or use agreement and financial statements for the proposed assignee or user. If City exercises its right to cancel this Agreement, ACFD shall surrender possession of all of the Premises not later than the date on which the proposed use agreement or assignment term would commence. 10.4 Proceeds of Third Party Use Agreement or Assignment. If ACFD enters into any assignment or use agreement permitting a third party to use or occupy the Premises, City shall be entitled to receive as Additional Rent hereunder, one hundred percent (100 %) of any consideration paid by the assignee or user for the use of occupancy of the Premises in excess of the amount of Base Rent attributable to the space that is the subject of the use or occupancy agreement, except that ACFD may recapture on an amortized basis over the term of the use agreement or assignment, any brokerage commission paid by ACFD in connection with the agreement or assignment (not to exceed the amount of commissions typically paid in the market at the time of such agreement or assignment) and reasonable marketing costs paid by ACFD in connection with the use agreement or assignment. ARTICLE XI DAMAGE AND DESTRUCTION 11.1 Repair and Restoration; Termination Rights. If all or part of the Premises is damaged by fire or other casualty, or if the Building is so damaged that access to or use and occupancy of the Premises is materially impaired, within forty -five (45) days of the date of the damage, City shall notify ACFD of the estimated time, in City's reasonable judgment, required for repair or restoration ( "Repair Period "). If the estimated time is 180 days or less, City shall proceed promptly and diligently to repair or restore the Premises or the portion of the Building necessary for ACFD's occupancy, and this Agreement shall remain in effect, except that for the time unusable, ACFD shall receive a Rent abatement for that part of the Premises rendered unusable in the conduct of ACFD's business. 1904321.4 24 OFFICE FACILITY USE AGREEMENT If the estimated time for repair or restoration is in excess of 180 days from the date of the casualty, City, at its option exercised by written notice to ACFD within sixty (60) days after the date of the casualty, shall either (a) commence to repair the damage, in which case this Agreement shall continue in full force and effect, or (b) terminate this Agreement as of the date specified by City in the notice, which date shall be not less than thirty (30) nor more than sixty (60) days after the date such notice is given, and this Agreement shall terminate on the date specified in the notice. If the time estimated for repair is more than one year and City does not give notice terminating this Agreement, then within thirty (30) days after ACFD receives City's notice providing a Repair Period, ACFD may give notice to City terminating this Agreement as of the date specified in ACFD's termination notice, which date shall not be before the date of such notice or more than thirty (30) days after the date of ACFD's termination notice. If the time estimated for repair is less than one year, or is more than one year and ACFD does not exercise its foregoing termination rights, and in either case City fails to repair the damage by the date that is the later to occur of (i) one year from the date of the damage, or (ii) ninety (90) days after the end of the Repair Period, then ACFD may give notice to City, within ten (10) business days after the end of the Repair Period terminating this Agreement as of the date specified in ACFD's notice, which date shall not be earlier than 45 days after the date of ACFD's termination notice nor more than 60 days after City's receipt of ACFD's termination notice; provided however, if City repairs the damage for which it is responsible within 45 days after receipt of ACFD's termination notice, City may elect to nullify ACFD's termination notice (and thereupon this Agreement shall continue in full force and effect) by City's notice of such repair and election given to ACFD on or prior to the expiration of such 45 -day period. 11.2 Damage Near End of Term. Notwithstanding anything to the contrary set forth in this Article, if the Premises or the Building are damaged during the last twelve (12) months of the Term, City and ACFD shall each have the option to terminate this Agreement by giving written notice to the other of the exercise of that option within thirty (30) days after the damage or destruction, and this Agreement shall terminate as of the date specified in such notice which shall be not before the date of such notice nor more than 30 days after the date of such notice. 11.3 Rent Apportionment. If City or ACFD elects to terminate this Agreement under this Article XI, ACFD shall pay Rent, prorated on a per diem basis and paid up to the date of the casualty. If the Premises are wholly untenantable and this Agreement is not terminated, Rent shall abate on a per diem basis from the date of the casualty or default until the Premises are ready for occupancy by ACFD or the default is cured. If part of the Premises are untenantable, Rent shall be prorated on a per diem basis and abated in proportion to the portion of the Premises which is unusable until the damaged part is ready for ACFD's occupancy. Notwithstanding the foregoing, if any damage was caused by the gross negligence or willful misconduct of ACFD, its employees or agents, then, in such event, ACFD agrees that Rent shall not abate or be diminished. 1904321.4 25 OFFICE FACILITY USE AGREEMENT 11.4 Waiver of Statutory Provisions. The provisions of this Agreement, including those in this Article XI, constitute an express agreement between City and ACFD that applies in the event of any damage to the Premises, Building, or Real Property. ACFD, therefore, fully waives the provisions of any statute or regulation, including California Civil Code sections 1932(2) and 1933(4), relating to any rights or obligations concerning any such casualty. 11.5 Damage Caused by ACFD or ACFD Parties. Notwithstanding any contrary provision of this Article XI, ACFD shall be solely responsible for the repair of any damage to the Premises or the Building resulting from the negligence, willful action or failure to act by ACFD or ACFD Parties, and such repairs shall be undertaken at ACFD's sole expense. ARTICLE XII CONDEMNATION 12.1 Total Taking_ - Termination. If title to the Premises or so much thereof is taken through the exercise of any government power (by legal proceedings or otherwise) by any public or quasi -public authority or by any other party having the right of eminent domain, or by a voluntary sale or transfer either under threat of exercise of eminent domain or while legal proceedings for eminent domain are pending so that reconstruction of the Premises will not result in the Premises being reasonably suitable for ACFD's continued occupancy for the uses and purposes permitted by this Agreement, this Agreement shall terminate as of the date possession of the Premises or part thereof is so taken. 12.2 Partial Taking. If any part of the Premises is taken through the exercise of eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining part is reasonably suitable for ACFD's continued occupancy for the uses and purposes permitted by this Agreement, this Agreement shall as to the part so taken terminate as of the date that possession of such part of the Premises is taken and the Rent shall be reduced in the same proportion that the floor area of the portion of the Premises taken (less any addition thereto by reason of any reconstruction) bears to the original floor area of the Premises as reasonably determined by City or City's architect. City shall, at its own cost and expense, make all necessary repairs or alterations to the Premises so as to make the portion of the Premises not taken a complete unit. 12.3 No Apportionment of Award. All condemnation awards and similar payments shall be paid and belong to City, except for any amounts awarded or paid specifically to ACFD for improvements in the Premises, removal and reinstallation of ACFD's trade fixtures and personal property, ACFD's moving costs and ACFD's goodwill. It is expressly understood and agreed by ACFD that except as otherwise stated in this Section, City shall be entitled to the entire award for any partial or total taking of the Property. 1904321.4 26 OFFICE FACILITY USE AGREEMENT 12.4 Temporary Taking. No temporary taking of the Premises (which shall mean a taking of all or any part of the Premises for 60 days or less) shall terminate this Agreement or give ACFD any right to any abatement of Rent. ACFD may agree to a temporary taking of a longer period of time. Any award made to ACFD by reason of such temporary taking shall belong entirely to ACFD, and City shall not be entitled to share therein. ARTICLE XIII SUBORDINATION AND ESTOPPEL 13.1 Estoppel Certificate. From time to time and within thirty (30) days after request by City, ACFD shall execute and deliver a certificate to any proposed lender or purchaser, or to City, certifying, with any appropriate exceptions, (a) that this Agreement is in full force and effect without modification except as noted, (b) the amount, if any, of prepaid rent and deposits paid by ACFD to City (and not returned to ACFD), (c) the nature and kind of concessions, rental or otherwise, if any, which ACFD has received or is entitled to receive, (d) that City has performed all of its obligations due to be performed under this Agreement and that there are no defenses, counterclaims, deductions or offsets outstanding or other excuses for ACFD's performance under this Agreement as of such date, and (e) any other fact reasonably requested by City or such proposed lender or purchaser. 13.2 Subordination and Attornment. ACFD agrees that this Agreement is subject and subordinate to (i) the lien of any mortgage, deed of trust or other encumbrance of the Building or the Real Property, (ii) all present and future ground or underlying leases of the Building or Real Property now or hereafter in force against the Building or Real Property, and (iii) all renewals, extensions, modifications, consolidations, and replacements of the items described in clauses (i) and (ii). 13.3 Subordination Agreement. The subordination described in this Article XIII is self - operative, and no further instrument of subordination shall be required to make it effective. To confirm this subordination, however, ACFD shall, within thirty (30) days, after City's request (unless the Alameda County Board of Directors is on recess, and then at the first meeting thereafter), execute any further instruments or assurances in recordable form that City reasonably considers necessary to evidence or confirm the subordination of this Agreement to any such encumbrances or underlying leases. ARTICLE XIV SURRENDER OF PREMISES; HOLDING OVER 14.1 Surrender of Premises. On expiration of this Agreement, ACFD shall surrender the Premises in the same condition as when the Term commenced, ordinary wear and tear excepted. Except for furniture, equipment and trade fixtures (other than 1904321.4 27 OFFICE FACILITY USE AGREEMENT those which are affixed to the Premises so that they cannot be removed without material damage to the Premises) all alterations, additions or improvements, whether temporary or permanent in character, made in or upon the Premises, either by City or ACFD, shall be City's property and at the expiration or earlier termination of the Agreement shall remain on the Premises without compensation to ACFD; provided that, upon reasonable written request of City, ACFD shall, at its expense and without delay, remove any alterations, additions or improvements (including, without limitation, all telecommunications equipment and cabling, and all alterations and improvements made by ACFD after the Commencement Date) made to the Premises by ACFD and designated by City to be removed, and shall repair any damage to the Premises or the Building caused by such removal. If ACFD fails to complete such removal or to repair the Premises, City may complete such removal and repair, and ACFD shall reimburse City therefor. If ACFD fails to remove such property as required under this Agreement, City may dispose of such property in its sole discretion without any liability to ACFD, and further may charge the cost of any such disposition to ACFD. 14.2 Hold Over Occupancy. If ACFD remains in possession of the Premises after the expiration or earlier termination of this Agreement with City's written consent, ACFD shall be deemed, at City's option, to occupy the Premises on a month -to -month basis. During such occupancy (and prior to any termination by City), ACFD agrees to pay City, monthly in advance, an amount equal to the greater of (i) the then fair market rental (as reasonably determined by City) for the Premises, or (ii) 103% of Base Rent which would become due the last month of the Term (as such may have been extended pursuant to the exercise of one or more Extension Options, together with all other amounts payable by ACFD to City under this Agreement. If after written notice to ACFD that City does not consent to ACFD continuing to occupy the Premises and ACFD remains in possession of the Premises after the expiration or earlier termination of this Agreement, ACFD's continued possession shall be on the basis of a tenancy at sufferance and ACFD shall pay Rent during the holdover period in an amount equal to the greater of (i) one hundred fifty percent (150 %) of the then fair market rental (as reasonably determined by City) for the Premises, or (ii) two hundred percent (200 %) of all Base Rent which would become due the last month of the Term, together with all other amounts payable by ACFD to City. ARTICLE XV CITY'S RESERVED RIGHTS. 15.1 Rights Reserved to City. Without notice and without liability to ACFD, and without effecting an eviction or disturbance of ACFD's use or possession, City shall have the right to (i) grant utility easements or other easements in, or subdivide or make other changes in the legal status of the Land, the Building or the Real Property as City shall deem appropriate in its sole discretion, provided such changes do not substantially interfere with ACFD's use of the Premises for the Permitted Use; (ii) enter the Premises at reasonable times and with reasonable advance notice (and at any time in the event of 1904321.4 28 OFFICE FACILITY USE AGREEMENT an emergency), to inspect (including inspections by prospective lenders for or buyers of the Real Property), or repair the Premises or the Building and to perform any acts related to the safety, protection, reletting, sale or improvement of the Premises or the Building; (iii) add to or take away from the Real Property any building or portion thereof, in which event (if applicable to this Agreement) the square footage of the Building and ACFD's Share shall be adjusted accordingly, (iv) install and maintain signs on and in the Building and the Real Property; and (v) make such rules and regulations as, in the reasonable judgment of City, may be needed from time to time for the safety of the Building occupants, the care and cleanliness of the Premises, the Building and the Real Property and the preservation of good order therein. City shall at all times retain a key with which to unlock all of the doors in the Premises, except ACFD's vaults and safes. If an emergency necessitates immediate access to the Premises, City may use whatever force is necessary to enter the Premises and any such entry to the Premises shall not constitute a forcible or unlawful entry into the Premises, a detainer of the Premises or an eviction of ACFD from the Premises or any portion thereof. If such entrance is necessary, City shall first contact ACFD Chief or designee, who shall be available 24 hours a day all days of the year. shall: ARTICLE XVI DEFAULT AND REMEDIES 16.1 ACFD's Default. It shall be an "Event of Default" hereunder if ACFD (a) fail to pay when due any monthly installment of Rent (or, if applicable under this Agreement, ACFD's Share of Operating Expenses), or fail to pay any other amount owed by ACFD to City under this Agreement as and when due and such failure continues for thirty (30) days following written notice thereof to ACFD by City; (b) fail to provide any certificate, instrument or assurance as required pursuant to Article IX if the failure continues for fifteen (15) days after written notice of the failure from City to ACFD; (c) make a general assignment for the benefit of its creditors or file a petition for bankruptcy or other reorganization, liquidation, dissolution or similar relief, (d) have a proceeding filed against ACFD seeking any relief mentioned in (c) above which is not discharged within sixty (60) days thereafter; (e) have a trustee, receiver or liquidator appointed for ACFD or a substantial part of its property; 1904321.4 29 OFFICE FACILITY USE AGREEMENT (f) abandon or vacate the Premises for more than three (3) consecutive months; (g) assign this Agreement or allow use of any portion of the Premises in violation of Article X; or (h) fail to comply with any other provision of this Agreement in the manner required hereunder and such failure continues for thirty (30) days after written notice thereof to ACFD by City (or if the noncompliance cannot by its nature be cured within the 30 -day period, if ACFD fails to commence to cure such noncompliance within the 30 -day period and thereafter diligently prosecute such cure to completion). 16.2 Remedies on Default. Upon the occurrence of an Event of Default, City shall have the right to pursue any one or more of the following remedies in addition to any other remedies now or later available to City at law or in equity. These remedies are not exclusive but instead are cumulative. (a) Continue Agreement. City may continue this Agreement in full force and effect. In such case, so long as City does not terminate ACFD's right to possession, the Agreement will continue in effect and City shall have the right to collect Rent when due, and may undertake efforts to relet the Premises, or any part of them, to third parties for ACFD's account. Reletting can be for a period shorter or longer than the remaining term of this Agreement. ACFD shall pay to City the Rent due under this Agreement on the date the Rent is due, less the Rent City receives from any reletting. No act by City allowed by this Section shall terminate this Agreement unless City terminates ACFD's right to possession. After an Event of Default and for as long as City does not terminate ACFD's right to possession of the Premises, if ACFD obtains City's consent, ACFD shall have the right to assign or sublet its interest in this Agreement, but ACFD shall not be released from liability. (b) Terminate Agreement. City may terminate the Agreement and ACFD's right to possession of the Premises at any time following an Event of Default. Acts of maintenance, efforts to relet the Premises or the appointment of a receiver on City's initiative to protect City's interest under this Agreement shall not constitute a termination of ACFD's right to possession. On termination, City shall have the right to recover from ACFD all of the following: (i) The worth at the time of the award, of any unpaid Rent that had been earned at the time of termination of this Agreement; (ii) The worth, at the time of the award, of the amount by which the unpaid Rent that would have been earned after the date of termination 1904321.4 30 OFFICE FACILITY USE AGREEMENT of this Agreement until the time of the award exceeds the amount of the unpaid Rent that ACFD proves could have been reasonably avoided; (iii) The worth at the time of the award of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of unpaid Rent that ACFD proves could have been reasonably avoided; (iv) Any other amount necessary to compensate City for all detriment proximately caused by ACFD's failure to perform obligations under this Agreement, including, without limitation, brokerage commissions, advertising expenses, expenses of remodeling the Premises for a new tenant, and any special concessions made to obtain a new tenant; and (v) Any other amounts, in addition to or in lieu of those listed above that may be permitted by law. "The worth, at the time of the award" as used in clauses (i) and (ii) of this Paragraph (b) is to be computed by allowing interest at the maximum rate allowed by law at that time, or if there is no such maximum, at a rate of ten percent (10 %) per annum. "The worth, at the time of the award," as referred to in clause (iii) of this Paragraph (b) is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1 %). 16.3 City's Default. City's failure to perform any of its obligations under this Agreement shall constitute a City Event of Default hereunder if the failure continues for thirty (30) days after written notice of the failure from ACFD to City. If the required performance cannot be completed within thirty (30) days, City's failure to perform shall not constitute a City Event of Default if City undertakes to cure the failure within such thirty- (30) day period and diligently and continuously attempts to complete the cure as soon as reasonably possible. ARTICLE XVII COMPLETION OF THE PROJECT; PARKING 17.1 Parking. City hereby grants to ACFD a nonexclusive license and right, in common with City and all persons conducting business in the Building and their respective customers, guests, licensees, invitees, employees and agents, to use the parking area located on the Real Property for vehicular parking, such nonexclusive right to be appurtenant to ACFD's interest created by this Agreement. The nonexclusive license and 1904321.4 31 OFFICE FACILITY USE AGREEMENT right granted pursuant to this Section shall be subject to the Rules and Regulations. ACFD may park vehicles overnight. ACFD shall not permit or allow any vehicles that belong to or are controlled by ACFD or ACFD's employees, suppliers, shippers, customers or invitees to be loaded, unloaded, or parked in areas other than those designated by City for such activities. ACFD and City will make arrangements for designating parking required for ACFD use in connection with its use of the Premises pursuant to this Agreement. 17.2 Project Completion. The obligations of City and ACFD, with respect to preparation of the Premises for occupancy and completion of the Project are set forth in the Work Letter attached hereto as Exhibit C, as it may be amended prior to signature. The Work Letter and any further amendments to the Work Letter, can be executed by the ACFD Chief and by the City Manager. It is acknowledged and agreed that all improvements installed by City pursuant to this Agreement are and shall be the property of City from and after their installation. ARTICLE XVIII MISCELLANEOUS 18.1 No Waiver. No receipt and retention by City of any payment tendered by ACFD in connection with this Agreement shall constitute an accord and satisfaction, or a compromise or other settlement, notwithstanding any accompanying statement, instruction or other assertion to the contrary unless City expressly agrees to an accord and satisfaction, or a compromise or other settlement, in a separate writing duly executed by City. City will be entitled to treat any such payments as being received on account of any item or items of Rent, interest, expense or damage due in connection herewith, in such amounts and in such order as City may determine at its sole option. Failure of any party to exercise any right in one or more instance shall not be construed as a waiver of the right to strict performance or as an amendment to or modification of this Agreement. Any waiver of any condition or provision set forth in this Agreement shall not be deemed a waiver of any subsequent breach of such condition or provision or of any other condition or provision, nor shall any such waiver be deemed a continuing waiver. 18.2 Severability. The Parties intend this Agreement to be legally valid and enforceable in accordance with all of its terms to the fullest extent permitted by law. If an arbitrator or a court of competent jurisdiction holds any provision hereof to be invalid or unenforceable in whole or in part for any reason, the validity and enforceability of the remaining clauses, or portions of them, shall not be affected unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provision. 18.3 Governing Law; Construction. This Agreement shall be construed according to the laws of the State of California without regard to principles of conflict of laws. The parties acknowledge that this Agreement is the product of negotiation and 1904321.4 32 OFFICE FACILITY USE AGREEMENT compromise on the part of both parties, and agree that the provisions hereof shall be construed in accordance with their fair meaning and not in accordance with any rule providing for interpretation against the party who causes the uncertainty to exist or against the drafter. The captions used for the Sections and Articles of this Agreement have been inserted for convenience only and shall not be used to alter or interpret the content of this Agreement. 18.4 Binding Effect; Survival. The covenants, conditions, warranties and agreements contained in this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The representations and warranties of City and ACFD and the indemnification obligations of City and ACFD set forth herein shall survive the expiration or termination of this Agreement as shall all other provisions hereof which are intended to survive such expiration or termination. 18.5 Time. Time is of the essence of each provision of this Agreement. 18.6 Entire Agreement; Amendments. This Agreement and Exhibits A through C -3 attached hereto and incorporated herein by this reference, constitutes the final, complete, and exclusive statement of the terms of the agreement between City and ACFD pertaining to ACFD's use and occupancy of space in the Building and supersedes all prior and contemporaneous understandings or agreements of the Parties with respect thereto. This Agreement may not be amended or modified except in a writing signed by both parties. 18.7 Notices. All notices delivered pursuant to this Agreement shall be in writing and delivered to City or ACFD at the applicable address designated in Section 1.1 or to such other address as may hereafter be designated by either party by written notice delivered to the other party in accordance with this Section. Such notices shall be effective on the earlier to occur of actual receipt or: (i) if mailed, three (3) days after posting at a United States post office, (ii) upon receipt if mailed by certified mail with return receipt requested, and (iii) upon delivery if delivered by overnight delivery service and delivery is confirmed by the delivery service. 18.8 Force Majeure. Except as otherwise provided in this Agreement, the time for performance of an obligation other than the payment of money under this Agreement shall be extended for the period during which a party is prevented from performing due to Unavoidable Delay. "Unavoidable delay" shall mean any and all delay beyond the applicable party's reasonable control, including without limitation, delays caused by the other party; governmental restrictions, regulations, controls, preemptions or delays; orders of civil, military or naval authorities; strikes, labor disputes, lock -outs, shortages of labor or materials or reasonable substitutes therefore; Acts of God; fire, earthquake, floods, explosions or other casualties; extreme weather conditions or other actions of the elements; enemy action, civil commotion, riot or insurrection. 18.9 Attorneys' Fees: Prejudgment Interest. If the services of an attorney are required by any party to secure the performance hereof or otherwise upon the breach or 1904321.4 33 OFFICE FACILITY USE AGREEMENT default of the other party, or if any judicial remedy or arbitration is necessary to enforce or interpret any provision of this Agreement, or if the services of an attorney are required upon the bankruptcy of a party to this Agreement to compel or object to assumption or rejection of this Agreement, seek relief from the automatic stay or object to an action to recover a preference or fraudulent transfer, the prevailing party shall be entitled to reasonable attorneys' fees, costs, expert witnesses fees, post judgment collection costs, and other expenses, in addition to any other relief to which such party may be entitled. 18.10 Authority. Each party warrants and represents that it has full authority to enter into this Agreement, that this Agreement constitutes a binding obligation of such party, and that the individual(s) signing on behalf of such party are duly authorized to bind such party hereto. 18.11 Approvals. Whenever the consent or approval of City is required hereunder, such consent or approval may be granted or withheld by the City Manager or his or her designee, unless the City Manager determines in his or her discretion that such matter shall be referred to City's governing body for consideration. 18.12 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by any other party. This Agreement shall take effect when signed by all parties hereto and all parties have written notice of the signature of all the remaining parties. 18.13 Brokers. ACFD and City each represent and warrant to the other that except as stated in this Section, no broker or agent is entitled to a broker's commission or finder's fee in connection with the execution of this Agreement or the consummation of the transaction contemplated hereby, and each party agrees to defend and indemnify the other party against any loss, expense or liability incurred by the other party as a result of a breach of such representation and warranty. The provisions of this Section shall survive the expiration or earlier termination of the Agreement. City shall pay a consulting fee to Colliers International in accordance with a separate agreement. 18.14 Submission of Agreement. Submission of this document for examination or signature by the Parties does not constitute an option or offer to allow ACFD to use or occupy the Premises on the terms in this document or a reservation of the Premises in favor of ACFD. This Agreement is not effective until executed and delivered by both City and ACFD. 18.15 Non - Agency. It is not the intention of City or ACFD to create hereby a relationship of principal and agent, and under no circumstances shall ACFD be considered the agent of City, nor City the agent of ACFD. 1904321.4 34 OFFICE FACILITY USE AGREEMENT SIGNATURES ON FOLLOWING PAGE. 1904321.4 35 OFFICE FACILITY USE AGREEMENT NOW THEREFORE, City and ACFD have executed this Office Facility Use Agreement as of the date first written above. ACFD CITY ALAMEDA COUNTY FIRE DEPARTMENT, CITY OF DUBLIN, a public agency a municipal corporation L-02 Print Name: Title: By: Its: City Manager Attest: City Clerk Approved as to Form: City Attorney 1904321.4 36 OFFICE FACILITY USE AGREEMENT Exhibit A -1 DIAGRAM OF PREMISES This exhibit to be updated in with Memorandum Confirming Commencement Date and Total Project Costs 1904321.4 37 OFFICE FACILITY USE AGREEMENT Exhibit A -2 Memorandum Confirming Commencement Date and Total Project Costs For OFFICE FACILITY USE AGREEMENT (6363 Clark Ave) This Memorandum Confirming Commencement Date and Total Project Costs, entered into as of , 20 ( "Effective Date ") supplements that certain Office Facility Use Agreement ( "Agreement ") entered into effective as of July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation ( "City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). Capitalized terms used without definition herein shall have the meanings ascribed to such terms in the Agreement. City and ACFD hereby agree as follows 1. Commencement Date: The Commencement Date as defined in the Agreement shall be: 20 2. Base Rent: As Base Rent for use of the Premises, ACFD will pay the City as follows: Year Monthly Annual Base Rent Per Base Rent 1 $ 2 $ 3 $ 4 $ 5 $ Base Rent Rentable Square Foot Per Month re $ re $ 3. ACFD's Share of Expenses: ACFD's Share shall be: 1 904321.4 38 percent OFFICE FACILITY USE AGREEMENT 4. Rentable Square Footage: The rentable square footage of the Premises is square feet. 5. In the event of conflict between the terms of this Memorandum and the terms of the Agreement, the terms of this Memorandum shall prevail. IN WITNESS WHEREOF, City and ACFD have executed this Memorandum Confirming Commencement Date and Total Project Costs as of the date first written above. ACFD CITY ALAMEDA COUNTY FIRE DISTRICT CITY OF DUBLIN UOIN Print Name: Title: C Its: City Manager Attest: City Clerk Approved as to Form: Approved as to Form: Donna R. Ziegler, County Counsel By: City Attorney Deputy County Counsel 1904321.4 39 OFFICE FACILITY USE AGREEMENT Exhibit B General Building RULES AND REGULATIONS Except as otherwise provided in any provision of the Agreement, the following Rules and Regulations shall apply: 1. Wherever the word "Occupant" or "Occupants" is used in this Exhibit, it is understood and agreed that such terms mean an individual or entity occupying any part of the Building pursuant to a lease, use agreement, or similar instrument, and shall also mean an Occupant's associates, employees, agents and any other person entering the Building or Premises under the express or implied invitation of Occupants. Occupants shall cooperate with City to assure compliance by all such parties with rules and regulations 2. The sidewalks, entrances, halls, corridors, elevators and stairways of the Building and Real Property shall not be obstructed or used as a waiting or lounging place by Occupants, or their agents, employees, invitees, licensees or visitors. All entrance doors leading from any Premises to the hallways are to be kept closed at all times. 3. City reserves the right to refuse admittance to the Building between the hours of 6:00 p.m. and 8:00 a.m. Monday through Friday and on Saturday, Sunday and holidays to any person not producing both a key to the Premises and /or a pass issued by City. In case of invasion, riot, or other commotion, City also reserves the right to prevent access to the Building during the continuance of same. 4. City will furnish each Occupant with two keys to each door lock on the Premises, and City may make a reasonable charge for any additional keys and access cards requested by any Occupant. No Occupant shall have any keys made for the Premises; nor shall any Occupant alter any lock, or install new or additional locks or bolts on any door without the prior written approval of City. In the event of such alteration or installation approved by City, the Occupant making such alteration shall supply City with a key for any such lock or bolt. Each Occupant, upon the expiration or termination of its tenancy, shall deliver to City all keys and access cards in any such Occupant's possession for all locks and bolts in the Building. 5. No Occupant shall cause any unnecessary labor by reason of such Occupant's carelessness or indifference in the preservation of good order and cleanliness of the Premises. Occupants will use reasonable efforts to see that (i) the windows are closed, (ii) the doors are securely locked, and (iii) all water faucets and other utilities are shut off (so as to prevent waste or damage) each day before leaving the Premises. In the event Occupants must dispose of crates, boxes, etc., which will not fit into office waste paper baskets, it will be the responsibility of Occupants to dispose of same. In no event shall Occupants set such items in public hallways or other areas of the Building or the Real Property excepting the Premises, for disposal. 1904321.4 40 OFFICE FACILITY USE AGREEMENT 6. City reserves the right to reasonably prescribe the date, time, method and conditions that any personal property, equipment, trade fixtures, merchandise and other similar items shall be delivered to or removed from the Building. No iron safe or other heavy or bulky object shall be delivered to or removed from the Building, except by experienced movers or riggers approved in writing by City. All damage done to the Building by the delivery or removal of such items, or by reason of their presence in the Building, shall be paid to City, immediately upon demand, by the Occupant by, through, or under whom such damage was done. There shall not be used in any space, or in the public halls of the Building, either by Occupants or by jobbers or others, in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires. 7. The walls, partitions, skylights, windows, doors and transoms that reflect or admit light into passageways or into any other part of the Building shall not be covered or obstructed by any of the Occupants. 8. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall not be used for any purposes other than for those for which they were constructed or installed, and no sweepings, rubbish, chemicals, or other unsuitable substances shall be thrown or placed therein. The expense of any breakage, stoppage or damage resulting from violation(s) of this rule shall be borne by the Occupant by whom, or by whose agents, employees, invitees, licensees or visitors, such breakage, stoppage or damage shall have been caused. 9. No sign, name, placard, advertisement or notice visible from the exterior of the Premises, shall be inscribed, painted or affixed by the Occupants on any part of the Building or Real Property without the prior written approval of City, which approval may be withheld in City's reasonable discretion. All signs or letterings on doors, or otherwise approved by City shall be inscribed, painted or affixed at the sole cost and expense of the Occupant, by a person approved by City. A directory containing the names of all Occupants in the Building shall be provided by City at an appropriate place on the first floor of the Building. 10. No signaling, telegraphic or telephonic instruments or devices, or other wires, instruments or devices, shall be installed in connection with any Premises without the prior written approval of City. Such installations, and the boring or cutting for wires, shall be made at the sole cost and expense of the Occupants and under control and direction of City. City retains, in all cases, the right to require (i) the installation and use of such electrical protecting devices that prevent the transmission of excessive currents of electricity into or through the Building, (ii) the changing of wires and of their installation and arrangement underground or otherwise as City may direct, and (iii) compliance on the part of all using or seeking access to such wires with such rules as City may establish relating thereto. All such wires used by Occupants must be clearly tagged at the distribution boards and junction boxes and elsewhere in the Building, with (i) the number of the Premises to which said wires lead, (ii) the purpose for which said wires are used, and (iii) the name of the company operating same. 1904321.4 41 OFFICE FACILITY USE AGREEMENT 11. Occupants, their agents and employees, shall not without the consent of City (a) go on the roof of the Building, (b) use any additional method of heating or air conditioning in the Premises, (c) sweep or throw any dirt or other substance from the Premises into any of the halls, corridors, elevators, or stairways of the Building, (d) bring in or keep in or about the Premises any vehicles or animals of any kind (except guide dogs for the disabled), (e) install any radio or television antenna or any other device or item on the roof, exterior walls, windows or window sills of the Building, except that Occupants shall have access to Building common television antennae, (0 place objects against glass partitions, doors or windows which would be unsightly from the interior common area or the exterior of the Building, (g) use any Premises: for lodging or sleeping or for any manufacturing, storage or sale of merchandise or property of any kind except for sale of food and beverages in conjunction with the Permitted Use; and (h) cause or permit unusual or objectionable odor to be produced or permeate from the Premises, including, without limitation, duplicating or printing equipment fumes. Occupant, its agents, and employees, invitees, licensees, or visitors shall not permit the operation of any musical or sound producing instruments or device which may be heard outside Premises, or which may emit electrical waves which will impair radio or television broadcast or reception from or into the Building. 12. Occupants shall not store or use in the Premises any (a) ether, naphtha, phosphorous, benzol, gasoline, benzene, petroleum, crude or refined earth or coal oils, kerosene or camphene, (b) any other flammable, combustible, explosive or illuminating fluid, gas or material of any kind, and (c) any other fluid, gas or material of any kind having an offensive odor, without the prior written consent of City. 13. No canvassing, soliciting, distribution of hand bills or other written material, or peddling shall be permitted in the Building or the Real Property, and Occupants shall reasonably cooperate with City in prevention and elimination of same. 14. Occupants shall give City prompt notice of all accidents to or defects in air conditioning equipment, plumbing, electrical facilities or any part of appurtenances of Premises. 15. If any Premises becomes infested with vermin, the Occupant, at its sole cost and expense, shall cause its premises to be exterminated from time to time to the satisfaction of the City and shall employ such exterminators as shall be approved by City, except in the event such infestation is due to City's negligence or willful misconduct. 16. No curtains, blinds, shades, screens, awnings or other coverings or projections of any nature shall be attached to or hung in, or used in connection with any door, window or wall of the premises of the Building without the prior written consent of the City. 17. City shall have the right to prohibit any advertising by Occupants which, in City's opinion, tends to impair the reputation of City or of the Building, or its 1904321.4 42 OFFICE FACILITY USE AGREEMENT desirability as an office building for existing or prospective Occupants who require the highest standards of integrity and respectability, and upon written notice from City, Occupants shall refrain from or discontinue such advertising. 18. City reserves the right to make reasonable amendments, modifications and additions to the rules and regulations heretofore set forth, and to make additional reasonable rules and regulations, as in City's reasonable judgment may from time to time be needed for the safety, care, cleanliness and preservation of good order of the Building; provided that the same shall be non - discriminatory and applied consistently to all Occupants in the Building. 19. Occupants shall not do anything in the Premises, or bring or keep anything therein, which will in any way increase or tend to increase the risk of Occupants or rate of insurance, or which shall conflict with the regulations of the Fire Department or the fire safety code or with any insurance policy on the Building or any part thereof, or with any rules or ordinances established by any governmental authority with jurisdiction over the Building. 20. Occupant requests shall be delivered to the property manager designated by City. 21. City shall have the right, exercisable without notice and without liability to Occupants, to change the name and the street address of the Building. City will pay for all reasonable costs incurred by Occupants as a result of changing the street address of the Building unless the change is requested by an authorized governmental agency. 22. No Occupant shall obtain for use upon the Premises ice, drinking water, towel or other similar service or accept barbering or bootblacking services on the Premises, except from persons authorized by City and at the hours and under regulations fixed by City. Notwithstanding the foregoing, Occupants shall have the right to provide bottled water, coffee and similar service of its choice. 1904321.4 43 OFFICE FACILITY USE AGREEMENT Exhibit C WORK LETTER THIS WORK LETTER ( "Work Letter ") supplements that certain Office Facility Use Agreement ( "Agreement ") entered into effective as of July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation ( "City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). All capitalized terms not defined herein shall have the same meanings as set forth in the Agreement. 1. Base Building Work. City and ACFD acknowledge and agree that the Building shell and core (collectively the "Base Building Work ") have been completed or shall be completed by City and that Base Rent shall be calculated based upon the inclusion of a percentage of the cost of the Base Building Work being completed on that portion of the Building being used by ACFD pursuant to the Agreement and other costs as set forth in Exhibit C -2. The Base Building Work includes, but is not limited to, the following elements of the Building in areas used by ACFD: (a) concrete floors (without floor coverings); (b) unfinished perimeter walls (including windows, window frames, and doors); (c) unfinished ceilings; (d) finish of the restrooms on ACFD's floor; (e) closets for telephone and electrical systems (but not the systems themselves); (f) Building mechanical, electrical, and plumbing systems within the Building core only, (g) interior core walls; (h) standard fire sprinkler protection on each floor; (i) any code - required items relating to the other elements of the Base Building Work, such as exit signs, speakers, fire doors, and any other life - safety support system for each floor; and 0) dry wall and tape of interior columns. 2. ACFD Improvements. City and ACFD acknowledge and agree that City, through City's contractor, shall construct improvements (the "ACFD Improvements ") in the Premises in accordance with the Final Plans (as hereinafter defined). ACFD understands and agrees that the installation of certain elements of the ACFD Improvements may be performed before or after execution of the Agreement for reasons of economics or convenience. Such elements may include, among other things, the extension of mechanical and electrical distribution systems outside the Building core, wall construction, column enclosures, painting, ceiling hanger wires, and window treatment. 3. Plans. (a) City and ACFD will approve in writing plans for completion of the Project, including the Base Building Work and the ACFD Improvements (collectively, the "Plans ") and an estimate of the Total Project Cost. A copy of the cost estimate is attached to this Work Letter as Exhibit C -2 and incorporated herein by this reference. Upon agreement by City and ACFD on the Plans, a 1904321.4 44 OFFICE FACILITY USE AGREEMENT true and correct copy of the Plans will be incorporated into this Work Letter by execution of a Memorandum of Plans, in form attached hereto as Exhibit C -1 ( "Memorandum of Plans "). For purposes of the inclusion of the Plans only, the Memorandum of Plans, attached hereto as Exhibit C -1, can be executed by the ACFD Chief and by the City Manager. (b) City and ACFD shall cooperate in good faith to finalize the Plans, without delay. ACFD shall fully cooperate by providing City, its architects, engineers, and contractors with timely information and approvals of plans, drawings, and specifications. Any acts by City or ACFD to delay or otherwise act negligently or in bad faith in approving the Plans and /or cooperating with the other in the design and construction of the ACFD Improvements shall result in a Delay (as hereinafter defined) under this Work Letter. (c) City and ACFD acknowledge that the Plans may not depict certain structural elements of the Building and /or various elements of the Building systems that may result in material modifications to the final plans and specifications for the ACFD Improvements (collectively "Structural Modifications "). Furthermore, any final plans and specifications for the construction of the ACFD Improvements may require modification to account for the requirements of building codes and other legal requirements of applicable governmental entities, including, but not limited to, Title 24 and the Americans with Disabilities Act (collectively the `Building Codes "). Within ninety (90) days after the execution date of the Memorandum of Plans, , City shall cause to be prepared final plans and specifications in substantial conformity with the Plans taking into account (i) Structural Modifications, (ii) the requirements of the Building Codes, (iii) other modifications resulting from physical constraints of the Premises, and (iv) modifications requested by ACFD and consented to by City, which consent shall not be unreasonably withheld (the "Final Plans "). ACFD agrees that, in addition to other factors and considerations City may take into account, it shall not be unreasonable for City to withhold its consent to any requested modifications to the Plans (i) if such requested modifications would not comply with the Building Codes, (ii) if such requested modifications would delay the completion of the ACFD Improvements beyond the Scheduled Completion Date, (iii) if such requested modifications would cause an undue burden on the architect, the contractor, the subcontractors, or City's personnel, or (iv) if such requested modifications would unreasonably increase the burden on the Building systems, either during construction or after completion of same. Upon agreement by City and AFCD on the Final Plans, a true and correct copy will be attached to this Work Letter by execution of a second Memorandum of Plans. For purposes of the Final Plans only, or any further amendments to the Final Plans, the Memorandum of Plans, can be executed by the ACFD Chief and by the City Manager. (d) Total Project Cost shall include, without limitation, all architectural and engineering fees and costs incurred in connection with the ACFD Improvements depicted on the Final Plans including architectural plans required to depict accessibility routes for the Building in general. Any and all architectural and engineering fees and costs incurred as a result of changes in the Final Plans requested by ACFD shall be ACFD's sole responsibility and shall be paid by ACFD as Additional Rent within thirty (30) days after 1904321.4 45 OFFICE FACILITY USE AGREEMENT ACFD's receipt of City's invoices accompanied by such other documentation as ACFD may reasonably request showing that such additional fees or costs have been incurred. 4. Delay (a) The Commencement Date shall not be delayed, postponed, or adjusted due to a a Party Delay. No Party Delay or Force Majeure Delay shall be deemed to have occurred unless and until the party claiming such delay has provided written notice to the other party specifying the action or inaction that such notifying party contends constitutes a Party Delay or Force Majeure Delay, as applicable. If such action or inaction is not cured within fifteen (15) days after receipt of such notice, then a Delay, as set forth in such notice, shall be deemed to have occurred commencing as of the date such notice is received and continuing for the number days the design of or completion of the ACFD Improvements was in fact delayed as a direct result of such action or inaction. (b) The term "Party Delay" as used in this Work Letter shall mean any delay that either Party may encounter in the performance of its obligations under this Work Letter because of any of acts or omissions of any nature by the other Party, whether committed willfully, negligently, intentionally, or otherwise, that result in any delay including any: (i) delay attributable to changes in or additions to the Plans, or to the ACFD Improvements requested by ACFD, as well as any delays caused by a change order issued at the other Party's request; (ii) delay attributable to the other Party's failure to timely approve any and all Plans for ACFD Improvements; (iii) delay attributable to a Party's failure to act in good faith in cooperating with the other Party, its architects, engineers, and contractors in approving Plans; (iv) delay attributable to postponement of any ACFD Improvements at the request of a a Party ; (v) delay by a Party in furnishing information or giving any other approvals or authorizations within the time limits set forth in this Work Letter, or if no time is set forth for such performance in this Work Letter, then a reasonable time, time being of the essence; (vi) delay attributable to the failure of a Party to pay, when due, any amounts required to be paid by that Party pursuant to this Work Letter or the Agreement; and (vi) any actual delay in the design and /or completion of ACFD Improvements attributable solely to the acts or failures to act, whether willful, negligent, or otherwise, of a Party, its agents, or contractors, to the extent contrary to the terms hereof. (c) The term "Force Majeure Delay" as used in this Work Letter shall mean any (i) actual delay in the design and /or completion of ACFD Improvements attributable to any strike, lockout, or other labor or industrial disturbance (whether or not on the part of the employees of either party hereto), civil disturbance, further order claiming jurisdiction, act of public enemy, war, riot, terrorism, sabotage, blockade, or embargo; (ii) actual delay in the design and /or completion of ACFD Improvements due to changes in any Laws, including the Americans with Disabilities Act; or (iii) actual delay in the design and /or completion of ACFD Improvements attributable to terrorist act, lightning, earthquakes, fire, storm, hurricane, tornado, flood, washout, explosion, or any other similar industry -wide or Building -wide cause beyond the reasonable control of the party 1904321.4 46 OFFICE FACILITY USE AGREEMENT from whom performance is required, or any of its contractors, or other representatives. Any prevention, delay, or stoppage due to any Force Majeure Delay shall excuse the performance of the party affected for a period of time equal to any such prevention, delay, or stoppage, except the obligations of either party to pay money, including Rent, and all other charges, pursuant to the terms of the Agreement. 5. Changes. ACFD shall not request or make any changes or substitutions to the Final Plans without City's prior written approval, which approval shall not be unreasonably withheld; provided, however, that City may disapprove, in its sole and absolute discretion, any such changes or substitutions that: (i) do not conform to applicable governmental regulations or are disapproved by any governmental agency; (ii) require power consumption and /or Building services beyond the level normally provided to other occupants in the Building; (iii) overload the floors; or (iv) in City's reasonable opinion, are of a nature or quality that is inconsistent with City's objectives concerning the appearance or quality of the Building. Any such requested changes or substitutions shall be subject to the provisions of Paragraph 4 above, and may constitute a ACFD Delay as described in Paragraph 4 above. 6. Total Project Cost. (a) For purposes hereof, "Total Project Cost" shall include, without limitation, the following: (i) all design fees, engineering fees, and consultants' fees incurred by City in connection with the design and engineering of the ACFD Improvements, including the costs of space plans and all plans and specifications; (ii) governmental agency plan check, permit, and other fees; (iii) sales and use taxes; (iv) Title 24 fees; (v) testing and inspection costs; (vi) the cost of materials, labor, and supplies; (vii) the general contractor's overhead and profit; (viii) charges for water, electricity, gas, and HVAC during the construction of the ACFD Improvements; (ix) all other costs expended or to be expended in connection with the construction of the Project, including the cost of the ACFD Improvements and ACFD's allocated share of Base Building Costs and Demolition and Prep work; and (x) City's return on costs equal to six percent (6 %) of the sum of ACFD Improvement Cost and ACFD's allocated share of the Base Building Costs and Demolition and Prep cost, all as more particularly set forth in Exhibit C -2. (b) If ACFD requests any changes or substitutions to the Plans, and City approves such changes or substitutions, and such changes and /or substitutions result in an increase in Total Project Costs, then Base Rent payable under the Agreement shall be adjusted to take into consideration such increased costs. All changes or substitutions shall be made at reasonably competitive prices. (c) City and ACFD acknowledge that the costs set forth in Exhibit C -2 are an estimate. The Parties agree that when Total Project Costs are determined, a revised Exhibit C -2 shall be appended to the Memorandum Confirming Commencement Date and Total Project Costs and shall serve as the basis for determination of Base Rent. 1904321.4 47 OFFICE FACILITY USE AGREEMENT 7. ACFD's Work. Any item or work not shown in the Final Plans, including, for example, telephone and data service or furnishings, for which ACFD contracts separately (hereinafter "ACFD's Work "), shall be conducted in such a way as not to hinder, cause any disharmony with, or delay work of improvement in the Building. ACFD shall cause its suppliers and contractors to engage only labor that is harmonious and compatible with other labor working in the Building. In the event of any labor disturbance caused by persons employed by ACFD or ACFD's contractor, ACFD shall immediately take all actions necessary to eliminate such disturbance. At any time any supplier, contractor, workman, or mechanic performing ACFD's Work hinders or delays any other work of improvement in the Building or performs any work that may or does impair the quality, integrity, or performance of any portion of the Building, ACFD shall cause such supplier, contractor, workman, or mechanic to leave the Building and remove all his tools, equipment, and materials immediately upon written notice delivered to ACFD, and ACFD shall reimburse City for any repairs or corrections of the ACFD Improvements or ACFD's Work or of any portion of the Building caused by or resulting from the work of any supplier, contractor, workman, or mechanic with whom ACFD contracts as Additional Rent under the Agreement. If requested, ACFD shall provide City with adequate proof of that insurance required to be maintained by ACFD pursuant to the terms of the Agreement, prior to commencing any ACFD Work. 8. Completion of ACFD Improvements. ACFD and City shall review and approve the Project construction schedule prior to commencement of work. City shall cause the ACFD Improvements to be constructed in a good and workmanlike manner, free from design, material, and workmanship defects in accordance with the Final Plans and all Applicable Laws. 9. ACFD's Access to the Premises, Inspection and Punchlist. ACFD's representative shall have the right to enter the Premises at all reasonable times for the purpose of inspecting the progress of construction of the ACFD Improvements; provided however, during the period of the construction of the Project, ACFD shall not enter the Premises unless accompanied by an authorized agent of City. City shall notify ACFD when the ACFD Improvements are substantially complete. On receipt of such notice, ACFD's representative, City's representative, and if appropriate contractors, shall promptly inspect the ACFD Improvements and prepare a written list ( "Punchlist ") of any items that are defective, incomplete, or do not conform to the Final Plans, applicable permits or Applicable Laws. 10. Time Periods. All time periods referred to in this Work Letter shall be computed on a business day basis, meaning Monday through Friday, excluding holidays. 11. Party's Representative. Each Party shall designate to the other in writing, upon execution of the Agreement, the name of one individual representative who will work with the other's representatives throughout the period of construction of the ACFD Improvements. In the event of a change in personnel, the other Party shall immediately be 1904321.4 48 OFFICE FACILITY USE AGREEMENT notified of any replacement of a representative. In the event the designated representative will not be available, due to a vacation or any other extended absence from the office, notification shall promptly be given of an interim representative, and the dates that person shall be acting as the interim representative. 12. ACFD's Default. Notwithstanding any provision to the contrary contained in the Agreement, upon the occurrence of an Event of Default on the part of ACFD under the Agreement, or upon a default by ACFD under this Work Letter prior to substantial completion of the Project, then (i) in addition to all other rights and remedies granted to City pursuant to the Agreement, City shall have the right to cause any and all engineers, architects, contractors, and any other persons associated with the design or construction of the Project to cease work thereon; and (ii) all other obligations of City under the Agreement and this Work Letter shall be abated until such time as such default is cured in accordance with the terms of the Agreement, or this Work Letter, as applicable. 13. Authority To Sign. Pursuant to Section 17.2 of the Agreement, this work Letter is executed by the ACFD Chief and by the City Manager 14. Counterparts. This Work Letter may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. SIGNATURES ON FOLLOWING PAGE(S) 1904321.4 49 OFFICE FACILITY USE AGREEMENT IN WITNESS WHEREOF, the parties have executed this Work Letter as of the Effective Date of the Agreement. ACFD CITY ALAMEDA COUNTY FIRE DEPARTMENT, CITY OF DUBLIN, a public agency a municipal corporation LO-A Print Name: Title Alameda County Fire District Chief Approved as to Form: Donna R. Ziegler, County Counsel 0 Deputy County Counsel By: Its: City Manager Attest: City Clerk Approved as to Form: City Attorney Exhibit C -1 MEMORANDUM OF PLANS For OFFICE FACILITY USE AGREEMENT (6363 Clark Avenue) This Memorandum of Plans, executed as of , 20 is a supplement to that certain Office Facility Use Agreement ( "Agreement ") entered into effective as of July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation ( "City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). Capitalized terms used in this Memorandum without definition shall have the meaning ascribed to such terms in the Agreement. City and ACFD hereby agree as follows: 1904321.4 50 OFFICE FACILITY USE AGREEMENT Attached hereto is a true and correct copy of the Plans for the Premises that are the subject of the Agreement. The Plans are hereby incorporated into the Agreement. Pursuant to Section 3 of the Work Letter, attached as Exhibit C to the Agreement, and duly executed by the City and ACFD, this Memorandum of Plans is executed by the ACFD Chief and the City Manager. IN WITNESS WHEREOF, this Memorandum of Plans is hereby executed as of the date first written above. ACFD CITY ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN, By: Print Name: Title Alameda County Fire District Chief C Its: City Manager Attest: City Clerk Approved as to Form: Donna R. Ziegler, County Counsel 0 Deputy County Counsel Approved as to Form: City Attorney 1904321.4 51 OFFICE FACILITY USE AGREEMENT Exhibit C -2 Formula for Determining Base Rate Bldg /Cost Assumptions Total Building Square Feet 55,000 ACFD Office Square Feet 14,000 ACFD Percent of Building 25.45% Project Cost Proforma -ACFD Office Portion of Building Base Building Cost (City Cost Basis) $1,400,000 Demolition and Prep — Direct and Indirect Costs $202,009 Improvements — Direct and Indirect Costs $1,917,252 Cost Per Square Foot Total Project Cost Estimate* $3,519,261 $251.38 Agreement Rate Analysis Cost Return on Cost Annual Rent Monthly Monthly Rent PSF Rent NNN $3,519,261 6.00% $211,156 $17,596 $1.26 Cumulative Rent (3% annual adjustments) Annual Year 1 $211,156 Year 2 $217,490 Year 3 $224,015 Year 4 $230,735 Year 5 $237,658 Total Rent $1,121,054 1904321.4 52 OFFICE FACILITY USE AGREEMENT Exhibit C -3 Reserved for WORK LETTER FOR NEW SPACE 1904321.4 53 OFFICE FACILITY USE AGREEMENT MAINTENANCE FACILITY USE AGREEMENT (Scarlett Court) This Maintenance Facility Use Agreement (this "Agreement ") is entered into effective as of July 1, 2012 (the "Effective Date ") by and between the CITY OF DUBLIN, a municipal corporation (`City "), and ALAMEDA COUNTY FIRE DISTRICT , a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). City and ACED are hereinafter referred to collectively as the "Parties." IND[61IV.11R WHEREAS, since July 1, 1997, ACED has provided fire and emergency response services within the City pursuant to a separate written agreement; and WHEREAS, City and ACED are entering into a separate written agreement pursuant to which ACED will continue to provide fire and emergency response services within the City for another twenty years; and WHEREAS, pursuant to those separate service agreements ACED already maintains an office in the Dublin Civic Center (or such other location as may be designated by the City) to provide fire prevention services; and WHEREAS, ACFD and City have entered into a separate agreement pursuant to which ACFD will have the use of office space for ACFD administrative activities; WHEREAS, ACED has a need for land and building space to conduct maintenance, repair and testing of vehicles and apparatus; and WHEREAS, City owns available land and building space (the "Property" as defined below) that will be suitable for use by ACED for a maintenance facility if certain improvements are made; and WHEREAS, City desires to allow ACED to use such land and building space if ACED pays for the Total Project Costs (as defined below); and WHEREAS, ACED is willing to pay Total Project Costs for use of the land and building. NOW THEREFORE, the City and ACED agree as follows. 1904210.4 1 MAINTENANCE FACILITY USE AGREEMENT ARTICLE I BASIC PROVISIONS 1.1 City's mailing address: City of Dublin, 100 Civic Plaza, Dublin, CA 94568. 1.2 City's contact: Joni Pattillo, City Manager. Telephone: (925) 833 -6650. 1.3 ACFD's mailing address: 835 East 14th Street, Suite 200, San Leandro, CA 94577, with a copy to ACED at the Premises. 1.4 ACFD's contact: Deputy Chief of Administration, currently Chief Demetrious N. Shaffer. Telephone: (510) 618 -3490. 1.5 Permanent Maintenance Facility address: 5777 Scarlett Court, Dublin, CA 94568. 1.6 Temporary Maintenance Facility Address: 6363 Clark Avenue, Dublin, CA 94568. 1.7 Commencement Date: the date upon which City delivers possession of the Premises to ACED, anticipated to be January 2014. The specific date will be identified in the Memorandum Confirming Commencement Date and Total Project Costs (attached hereto as Exhibit A -2) which will be completed and executed by the Parties when a definitive date and Total Project Costs are determined. 1.8 Term: Starting on the Effective Date and continuing until the Expiration Date (defined in the following section). 1.9 Expiration Date: The last day of the month in which the twentieth (20') anniversary of the Commencement Date occurs. 1.10 Option(s) to Extend Term: None. 1.11A Base Rent for Permanent Maintenance Facility: As Base Rent for use of the Premises, ACED will pay the City as follows: Year Estimated Monthly Base Rent 1 -2 $129,821 3 -4 $137,610 5 -6 $145,867 7 -8 $154,619 1904210.4 2 MAINTENANCE FACILITY USE AGREEMENT 9 -10 $163,896 11 -12 $173,730 13 -14 $184,154 15 -16 $195,203 17 -18 $206,915 19 -20 $219,330 The Base Rent specified in this Section 1.11A is an estimate based upon an anticipated Total Project Cost equal to Six Million, Seven Hundred and Forty Five Thousand, Five Hundred and Thirty Dollars ($6,745,530), of which ACED will initially contribute Three Million, Five Hundred Thousand Dollars ($3,500,000) as specified in Section 1.13. The specific formula for determining the Base Rent is set forth in the attached Exhibit B -2. The Total Project Cost is subject to change as the following line items are estimated amounts and subject to change based on actual costs: Building Costs and ACED Improvements Indirect Costs If the actual costs for the above line items differ from the amounts specified in Exhibit B -2, the Base Rent is subject to modification. When the final and actual Total Project Cost is determined, the Base Rent shall be calculated based thereon, and shall be specified in the Memorandum Confirming Commencement Date and Total Project Costs. Every two (2) years during the Term, Base Rent shall increase 6 %, as set forth in Exhibit B -2. 1.11B Base Rent for Temporary Maintenance Facility: Two Hundred Thousand Dollars ($200,000) payable in advance as part of the Initial Payment (see Section 1.13). This shall be the full base rent for use of the Temporary Maintenance Facility by ACED, regardless of the length of use. 1.12 ACFD's Share of Expenses: ACED shall pay 100% of Operating Expenses for the Permanent Maintenance Facility and the Temporary Maintenance Facility. 1.13 ACFD's Initial Payment: ACED shall pay to City the sum of Three Million, Seven Hundred Thousand Dollars ($3,700,000) (the "Initial Payment ") within 60 days following the Effective Date. This Initial Payment includes the sum of Two Hundred Thousand Dollars ($200,000) for the prepaid Base Rent for the use of the Temporary Maintenance Facility (defined below) for the period commencing on the date that City delivers possession of the Temporary Maintenance Facility to ACED, and continuing until ACED relocates its maintenance facility to the Premises. The balance of the Initial Payment 1904210.4 3 MAINTENANCE FACILITY USE AGREEMENT constitutes a portion of the cost to construct the Permanent Maintenance Facility, and is identified on Exhibit B -2 as "ACED Contribution." 1.14 Permitted Uses: Operation of a facility for maintenance, repair and testing of vehicles and apparatus including cars, trucks, fire engines, fire trucks, boats, trailers, heavy equipment, rescue and safety vehicles and other machinery that may be used by ACED or other entities that provide public services (`Apparatus ") and related administration and training activities, all in accordance with Applicable Laws. This includes Apparatus that are maintained and or serviced for other public entities through agreements with ACED. 1.15 Parking: All parking on the Property shall be for the exclusive use of ACED. Parking for the Temporary Maintenance Facility is addressed in Section 3.7 El'A0[a]0aII DEFINITIONS Definitions. As used in this Agreement, the following terms shall have the definitions set forth below. Additional terms are defined in the remainder of the Agreement. "ACFD Improvements" is defined in Exhibit B. "ACFD Parties" is defined in Section 6.1. "ACFD's Share" is defined in Section 4.5.1.1. "Additional Rent" means any and all sums other than Base Rent which ACFD is or becomes obligated to pay to City under this Agreement (whether or not specifically called "Additional Renf'in this Agreement). "Alterations" means any alterations, decorations, modifications, additions or improvements made in, on, about, under or contiguous to the Premises by or for the benefit of ACFD including but not limited to, telecommunications and/or data cabling, lighting, HVAC and electrical fixtures, pipes and conduits, partitions, cabinetwork and carpeting. "Applicable Laws" is defined in Section 5.3. "Base Rent" means for each year during the Term, the monthly amount payable for the Premises as set forth in Section 1.11. "Claims" is defined in Section 6.3. 1904210.4 4 MAINTENANCE FACILITY USE AGREEMENT "Commencement Date" is the date set forth in Section 1.7 as such may be modified as specified in the Memorandum Confirming Commencement Date and Total Project Costs referenced in Section 1.7. "Common Area" means all areas and facilities located on the Property and used by ACED, including sidewalks, landscaped areas and similar areas and facilities that are also shared with others. The Common Areas of the Property will be included and identified in the Plans. "Environmental Laws" is defined in Section 6.6. "Hazardous Material" is defined in Section 6.5. "Improvements" means the Permanent Maintenance Facility and all other improvements constructed or installed on the Property, including, without limitation, a parking lot, driveways, lighting and landscaping. "Indemnitees" is defined in Section 6.3. "Memorandum" means the Memorandum Confirming Commencement Date and Total Project Costs to be executed by the Parties substantially in the form attached hereto as Exhibit B -2, and which shall specify the Commencement Date and the Base Rent. "Operating Expenses" is defined in Section 4.5.1. "Passthrough Expenses" is defined in Section 4.7. "Permanent Maintenance Facility" means the facility to be constructed by City on the Property pursuant to this Agreement. "Plans" is defined in Exhibit B. "Premises" means the Property and the Improvements, including the Permanent Maintenance Facility, and all other Improvements on the Property. "Project" means the development of the Permanent Maintenance Facility on the Property, including without limitation, completion of all related site preparation and construction work necessary to prepare the Permanent Maintenance Facility and the Premises for ACFD's occupancy pursuant to this Agreement. "Property" means the westernmost portion of the real property owned by City and located in the City of Dublin at 5777 Scarlett Court, as depicted in Exhibit A -1 attached hereto and that will be used exclusively by ACED. The Property is a portion of Alameda County Assessor's Parcel No. 941- 0550 -029, and is more particularly described in Exhibit A -1. 1904210.4 5 MAINTENANCE FACILITY USE AGREEMENT "Property Taxes" is defined in Section 4.6. "Rent" means Base Rent and Additional Rent, collectively. "Temporary Maintenance Facility" means the metal building located on the east side of the building located at 6363 Clark Avenue, Dublin, California, and includes only the metal building. "Term" means the term of this Agreement as set forth in Section 1.8 as such may be extended pursuant to the terms hereof. "Total Project Cost" means City's cost to complete the Project, including without limitation, demolition, site preparation, and construction as more particularly described in Exhibit B -2. ARTICLE III PREMISES AND TERM 3.1 Use of Premises. Subject to and upon the terms and conditions set forth herein, City hereby agrees to allow ACED the use of the Premises, and ACED hereby agrees to use the Premises in accordance with the terms of this Agreement. ACED acknowledges that City has made no representation or warranty regarding the condition of the Property, the Improvements, or the Temporary Maintenance Facility except as specifically stated in this Agreement, including all exhibits, or as specified in the Plans as they may be amended and accepted by ACED and City. 3.2 Term and Commencement. The Term of this Agreement shall commence on the Effective Date, and unless sooner terminated as provided herein, the Term shall be for the period set forth in Section 1.8. 3.3 Delay in Delivery of Premises. If City fails to deliver possession of the Premises to ACED on or before the anticipated Commencement Date set forth in Section 1.7, City shall not be subject to any liability for its failure to do so. This failure shall not affect the validity of this Agreement or the obligations of ACED hereunder. Pursuant to Section 3.7, ACED shall be entitled to occupy the Temporary Maintenance Facility until the Premises are delivered to ACED. 3.4 Early Access. ACED shall not occupy the Premises prior to the Commencement Date except with the express prior written consent of City. Provided that (i) this Agreement has been executed by ACED and City, and (ii) ACED, if requested, has provided to City proof of insurance coverage for all insurance that ACED is required to maintain under this Agreement, ACED shall be permitted access to the Premises prior to the Commencement Date for the purpose of installing ACFD's fixtures and equipment, but not for the purpose of performing maintenance of Apparatus on the 1904210.4 6 MAINTENANCE FACILITY USE AGREEMENT Premises. If ACFD is provided access to the Premises prior to the Commencement Date, all of the terms and provisions of this Agreement shall apply to ACFD's use of the Premises except for the requirement for the payment of Rent, and ACFD shall abide by all of such terms and provisions. 3.5 No Representations. ACFD acknowledges that neither City nor any of City's agents has made any representation or warranty as to the suitability or fitness of the Premises or the Temporary Maintenance Facility for the conduct of ACFD's business, and that neither City nor any of City's agents has agreed to undertake any alterations or additions or to construct any improvements to the Premises or the Temporary Maintenance Facility except as expressly provided in this Agreement and the Plans. 3.6 Intentionally omitted. 3.7 Temporary Maintenance Facilit . Subject to and upon the terms and conditions set forth in this Section, City hereby agrees to allow ACFD to use the Temporary Maintenance Facility, and ACFD agrees to use the Temporary Maintenance Facility in accordance with the terms of this Section 3.7. ACFD's right to use the Temporary Maintenance Facility will commence during the first calendar quarter of 2013 when the Temporary Maintenance Facility is available for use, and shall terminate 30 days after the Commencement Date. 3.7.1 The Temporary Maintenance Facility shall include, for the exclusive use of ACFD, secure parking that is adequate for Apparatus in a location that can be locked with restricted public access. 3.7.2 ACFD acknowledges that City has made no representation or warranty regarding the condition of the Temporary Maintenance Facility except as specifically stated in this Agreement. 3.7.3 ACFD shall prepay all rent payable for the Temporary Maintenance Facility as part of the Initial Payment pursuant to and as described in Section 1.13. 3.7.4 ACFD shall use the Temporary Maintenance Facility solely in accordance with the requirements of Article V (Use of Premises). 3.7.5 ACFD shall be responsible for payment of all operating expenses, all utility payments, and all Real Property Taxes associated with the Temporary Maintenance Facility, and all such obligations shall constitute Additional Rent. ACFD shall make all payments of Additional Rent to City in accordance with the procedures described in Section 4.7 and in accordance with Annual Statements for the Temporary Maintenance Facility which City shall provide. In addition, ACFD shall be responsible, at ACFD's sole expense, for maintaining the Temporary Maintenance Facility in good condition and repair. ACFD shall 1904210.4 7 MAINTENANCE FACILITY USE AGREEMENT comply with all Applicable Laws in connection with its activities and occupancy of the Temporary Maintenance Facility. 3.7.6 ACED shall comply with all provisions of Article VI (Environmental Matters) with respect to the Temporary Maintenance Facility, and shall indemnify, defend and hold the Indemnitees harmless from and against all Claims arising in connection with or resulting from ACFD's use of the Temporary Maintenance Facility to the same extent provided in Sections 6.3 and 9.1. Throughout the period that it occupies the Temporary Maintenance Facility, ACED shall maintain all insurance described in Article IX (Insurance and Indemnity) with coverage applicable to the Temporary Maintenance Facility and ACFD's operations therein, and ACED shall comply with all other requirements of Article IX throughout such period. 3.7.7 ACED shall have no right to assign or enter into use agreements permitting any other party to occupy any portion of the Temporary Maintenance Facility, without specific written consent from City. 3.7.8 In addition to the provisions set forth in this Section 3.7, the following provisions of this Agreement shall apply to ACFD's occupancy of the Temporary Maintenance Facility: Article VIII (Alterations), Article XI (Damage and Destruction), Article XII (Condemnation), Article XIII (Subordination and Estoppel), Article XI V (Surrender of Premises; Holding Over), Article XV (City's Reserved Rights), Article XVI (Default and Remedies) and Article XVII (Completion of the Project). 3.7.9 City shall deliver possession of the Temporary Maintenance Facility to ACED vacant and in good repair and with a secure area for parking Apparatus that has restricted access. City shall have no obligation to modify the Temporary Maintenance Facility, it being understood that any such modifications shall be undertaken by ACED at ACFD's expense; provided however, City's prior written consent shall be required prior to commencement of any such modification. 3.7.10 ACED shall vacate the Temporary Maintenance Facility by not later than 30 days after the Commencement Date. ARTICLE IV RENT, OPERATING EXPENSES, TAXES AND SECURITY DEPOSIT 4.1 Monthly. From and after the Commencement Date, ACED shall pay to City for each calendar month of the Term, the monthly Base Rent set forth in Section 1.11. Each monthly installment of Base Rent shall be due and payable to City in lawful money of the United States, in advance, on the first (1st) day of each calendar month 1904210.4 8 MAINTENANCE FACILITY USE AGREEMENT during the Term, without abatement, deduction, claim or offset(unless the Parties mutually agree to allow an abatement, deduction, claim or offset), and without prior notice, invoice or demand, at City's address set forth in Section 1.1 or such other place as City may designate from time to time. ACFD's payment of Base Rent for the first month of the Term shall be delivered to City on the Commencement Date. 4.2 Proration. Monthly installments for any fractional calendar month at the beginning or end of the Term shall be prorated based on the number of days in such month. 4.3 Additional Rent. All Additional Rent, including without limitation, ACFD's Share of Passthrough Expenses (defined below) and ACFD's Share of Property Taxes shall be due and payable to City in lawful money of the United States without abatement, deduction, claim or offset within thirty (30) days of receipt of City's invoice or statement for same (or if this Agreement provides another time for the payment of certain items of Additional Rent, then at such other time) at City's address set forth in Section 1.1 or such other place as City may designate from time to time. 4.4 Late Charge. ACED acknowledges that the late payment of Rent will cause City to incur administrative costs and other damages, the exact amount of which would be impracticable or extremely difficult to ascertain. City and ACED agree that if City does not receive any such payment within ten (10) calendar days after such payment is due, ACED shall pay to City as Additional Rent an amount equal to five percent (5 %) of the overdue amount as a late charge for each month or partial month that such amount remains unpaid. The Parties acknowledge that this late charge represents a fair and reasonable estimate of the costs that City will incur by reason of the late payment by ACED. Acceptance of any late Rent and late charge therefore shall not prevent City from exercising any of the other rights and remedies available to City for any other Event of Default under this Agreement. 4.5 Common Area Charges, Operating Expenses and Taxes. 4.5.1 ACED to Pay all Operating Expenses. ACED shall be solely responsible for payment of all operating expenses associated with the Premises (`Operating Expenses "), including without limitation, all costs associated with the maintenance, repair, management and operation of the Improvements and the Property, including, but not limited to the following: repair and maintenance of the roof, foundation and exterior walls of the Improvements; periodic painting of the Improvements; periodic cleaning of the exterior windows of the Improvements; landscaping services; pest control; operation, maintenance and repair of equipment and elevators (if any), utility systems, HVAC systems, mechanical and electrical systems and sanitary and storm drain systems through maintenance contracts or otherwise; maintenance services, repairs to and replacement of asphalt paving, bumpers, striping, light bulbs, light standards, monument and directional signs and lighting systems, perimeter walls, retaining walls, sidewalks, planters, landscaping and sprinkler system in planting areas; any and all assessments levied against the Improvements and/or the 1904210.4 9 MAINTENANCE FACILITY USE AGREEMENT Property; water, electrical and other utility services; removal of trash, rubbish and other refuse; cleaning and replacement of signs, including relamping and repairs; costs incurred in connection with compliance with any laws or changes in laws applicable to the Improvements or the Property, including without limitation any laws or changes in laws regarding Hazardous Material; subject to Section 4.5.1.2, the cost of capital improvements to the Improvements, to the extent of the amortized amount thereof over the useful life of such capital improvements calculated at a market cost of funds, all as reasonably determined by City, for each year of useful life during the Term; the cost of any environmental consultant or other services used in connection with City's monitoring of the Property with respect to Hazardous Materials, and any other items reasonably necessary from time to time to properly repair, replace, maintain and operate the Improvements and the Property, on no more than an annual basis. If a property manager is hired by City, Operating Expenses shall also include a management fee, of no more than actual costs, consistent with comparable projects in the City of Dublin to cover City's management, overhead and administrative expenses or City's payment of professional management fees. 4.5.1.1 Common Area Maintenance. Tenant shall pay fifty percent (50 %) ( "ACFD's Share ") of the cost to repair and maintain the Common Area, including without limitation, the cost of sidewalk repairs, repaving, and landscape maintenance and irrigation. 4.5.1.2 Capital Improvements. City and ACED agree that they will meet and confer to discuss the extent to which the cost of any particular capital improvement that City proposes to undertake with respect to the Improvements shall be included within Operating Expenses or otherwise paid by ACED. 4.5.2 Exclusions From Operating Expenses. Despite any other provision of Section 4.5.1, Operating Expenses shall not include: (a) depreciation, interest, or amortization on mortgages or ground lease payments; (b) legal fees; (c) real estate brokers' leasing commissions; (d) any costs expressly excluded from Operating Expenses elsewhere in this Agreement (e) costs of capital improvements, except as otherwise stated herein; and (f) costs of any items for which City receives reimbursement from insurance proceeds or a third party. 4.6 Taxes. Both Parties are exempt from payment of most taxes; however, for purpose of this Agreement, the term "Property Taxes" shall mean any form of tax, assessment, charge, license, fee, rent tax, levy, penalty (if a result of ACFD's delinquency), real property or other tax now or hereafter imposed with respect to the Improvements or the Property or any part thereof (including any Alterations), this Agreement or any Rent payable under this Agreement by any authority having the direct or indirect power to tax, or by any city, county, state or federal government or any improvement district or other district or division thereof, whether such tax or any portion thereof (i) is determined by the area of the Improvements or the Property, or any part thereof or the Rent payable under this Agreement by ACED, including, but not limited to any gross income or excise tax levied by any of the foregoing authorities with respect to 1904210.4 10 MAINTENANCE FACILITY USE AGREEMENT receipt of Rent due under this Agreement, (ii) is levied or assessed in lieu of, in substitution for, or in addition to, existing or additional taxes with respect to the Improvements or the Property or any part thereof whether or not now customary or within the contemplation of City or ACED, or (iii) is based upon any legal or equitable interest of City in the Improvements or the Property or any part thereof. ACED and City intend that all Property Taxes, including without limitation all new and increased assessments, taxes, possessory interest taxes charged or levied in place of real property taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges shall be included within the definition of "Property Taxes" for purposes of this Agreement. 4.6.1 Apportionment of Taxes. If the Improvements and the Property are assessed as part of a larger parcel, then City shall equitably apportion the Property Taxes and reasonably determine the Property Taxes attributable to the Improvements. If other buildings exist on the assessed parcel, the Property Taxes apportioned to the Improvements shall be based upon the ratio of the square footage of the Improvements to the square footage of all buildings on the assessed parcel. 4.6.2 Tax on Improvements. Notwithstanding anything to the contrary set forth in this Agreement, ACED shall pay prior to delinquency any and all taxes, fees and charges which are levied or assessed against City or ACED: (a) upon ACFD's equipment, furniture, fixtures, improvements and other personal property located on the Property or in the Improvements, (b) by virtue of any alterations or leasehold improvements made to the Property or Improvements by ACED, and (c) upon this transaction or any document to which ACED is a party creating or transferring an interest or an estate in the Premises. City shall promptly notify ACED of any tax, fee or charge. If any such tax, fee or charge is paid by City, ACED shall reimburse City for City's payment upon demand. 4.7 Payment of Operating Expenses and Taxes. ACED shall pay to City ACFD's Share (as defined in Section 4.5.1) of Common Area Expenses, ACFD's share of Real Property Taxes (as determined pursuant to Section 4.6.1), and all Operating Expenses attributable to the Premises that are not directly billed to ACED (all of the foregoing, collectively "Passthrough Expenses ") as follows: on the Commencement Date (or as soon thereafter as is reasonably practicable) and thereafter prior to the commencement of each calendar year during the Term, City shall give ACED a written estimate of ACFD's Share of Passthough Expenses for the ensuing calendar year. Commencing on the Commencement Date and continuing thereafter throughout the Term, ACED shall pay, as an item of Additional Rent, such estimated amount in equal monthly installments, in advance, on or before the first day of each calendar month. If City has not furnished its written estimate by the time set forth above, ACED shall pay monthly installments of Passthrough Expenses at the rate established for the prior calendar year, if any; provided that when the new estimate is delivered to ACED, as applicable, ACED shall at the next monthly payment date pay City any accrued deficiency based on the new estimate, or City shall credit any accrued overpayment based on such estimate toward ACFD's next installment payment hereunder. Within a reasonable period of time after the end of each 1904210.4 11 MAINTENANCE FACILITY USE AGREEMENT calendar year during the Term (but in no event more than 180 days after the end of each year), City shall furnish ACED a statement (`Annual Statement ") showing in reasonable detail ACFD's Share of the actual Passthrough Expenses incurred for the period in question; provided, however, with respect to the calendar year during which this Agreement expires or sooner terminates, City may, at its election, provide ACED with an Annual Statement prior to the end of such year based on estimated Operating Expenses, as determined by City. If ACFD's estimated payments are less than ACFD's Share of actual Passthrough Expenses as shown by the applicable Annual Statement, ACED shall pay the difference to City within thirty (30) days following delivery of the Annual Statement. If ACED shall have overpaid City, City shall credit such overpayment toward ACFD's next installment payment hereunder or if no installment payment is due, refund the amount to ACED within thirty (30) days. When the Annual Statement is furnished to ACED for the calendar year in which this Agreement expires or sooner terminates: (i) ACED shall, even if this Agreement has expired or terminated, pay to City within thirty (30) days after notice, any additional sum payable by ACED in excess of the estimate previously provided, and (ii) City shall rebate any overpayment to ACED within thirty (30) days following delivery of the Annual Statement. If City determines at any time that the estimate of ACFD's Share of Passthrough Expenses for the current year is or will become inadequate to meet ACFD's Share of all such Passthrough Expenses for any reason, City may, at its election, determine the approximate amount of such inadequacy and issue a supplemental estimate, and ACED shall pay any increase as reflected by such supplemental estimate. City shall keep or cause to be kept separate and complete books covering all Passthrough Expenses and showing the method of calculating ACFD's Share of Passthrough Expenses, and shall preserve for at least twelve (12) months after the close of each year all material documents evidencing such Passthrough Expenses for that year. For a period of 180 days following ACFD's receipt of an Annual Statement, ACED, at its sole cost and expense, through a representative designated by ACED and reasonably approved by City, shall have the right upon written notice to City, during reasonable business hours at City's offices, to examine and/or audit the books and documents evidencing such costs and expenses for the period covered by the applicable Annual Statement, provided that ACED is not then in default under this Agreement. Any delay or failure by City in delivering any estimate or statement pursuant to this Section shall not constitute a waiver of its right to require ACFD to pay ACFD's Share of Passthrough Expenses, pursuant hereto. ARTICLE V [ILI we] 9UN0l►ilf OM 5.1 Permitted Use. The Premises shall be used solely for the purposes set forth in Section 1.14 and for no other purpose without the written consent of City, which may be granted or withheld in City's reasonable discretion. ACED shall not do or suffer or permit anything to be done in or about the Premises nor bring or keep anything therein that would in any way subject City to any liability, increase the premium rate of or affect 1904210.4 12 MAINTENANCE FACILITY USE AGREEMENT any fire, casualty, rent or other insurance relating to the Property or the Improvements, or cause a cancellation of, or give rise to any defense by the insurer to any claim under, or conflict with, any insurance coverage. If any act or omission of ACFD results in any such increase in premium rates, ACFD shall pay to City upon demand the amount of such increase. Other than as specified in the Plans, no underground fuel storage tanks may be located at the Premises without City's prior written approval, and City may condition such approval upon ACFD's provision of proof of adequate insurance coverage for such purpose. ACFD may keep on the Premises receptacles for storage of chemicals including fuel, oil, coolants, fire foams and other fluids associated with the maintenance, repair and testing of Apparatus, provided that all such receptacles are stored, used, transported and maintained in compliance with all Applicable Laws. 5.2 Signage. ACFD shall obtain the prior approval of the City, which approval will not be unreasonably withheld, before placing any sign or symbol on or about the Premises. Upon expiration or termination of this Agreement, all signs installed by ACFD shall be removed and any damage resulting therefrom shall be promptly repaired by ACFD, or such removal and repair may be done by City and the cost charged to ACFD as Rent. 5.3 Compliance with Laws. ACFD shall procure and maintain all governmental approvals, licenses and permits required for the proper and lawful conduct of ACFD's permitted use of the Premises. ACFD shall throughout the Term comply with and shall not use the Premises or suffer or permit anything to be done in or about the same which would in any way conflict with any of the following (collectively "Applicable Laws "): (i) the provisions of all recorded covenants, conditions and restrictions applicable to the Property, or (ii) any federal, state, county, local or other governmental agency rules, regulations, statutes, ordinances, orders, standards, requirements or laws now in force or hereafter enacted, promulgated or issued which are applicable to the Premises, or the use or occupancy thereof, including without limitation building, zoning, and fire codes and regulations. 5.4 Repairs, Replacements and Maintenance. ACFD shall, at ACFD's sole expense, keep the Property and the Improvements in good condition in compliance with Applicable Laws, and ACFD shall, at ACFD's sole expense promptly make all repairs, replacements, alterations, or improvements necessary to comply with all Applicable Laws and/or to maintain the Property and the Improvements in good condition and repair. ARTICLE VI I "WA 1:16100 %1 Mel II1ELVA /rWYDoW 6.1 Use of Hazardous Materials. ACFD shall not cause or permit any Hazardous Material to be generated, brought onto, used, stored, or disposed of in or about the Property or the Improvements by ACFD or ACFD's agents, employees, contractors, or invitees (collectively "ACFD Parties "), except for limited quantities of standard office and janitorial supplies and other standard materials and supplies used in connection 1904210.4 13 MAINTENANCE FACILITY USE AGREEMENT with the maintenance, repair and testing of Apparatus, including gasoline and oil. At ACFD's sole cost and expense, ACED shall use, store and dispose of all such Hazardous Materials in strict compliance with all Environmental Laws, and shall in all other respects comply with all Environmental Laws. 6.2 Notice of Release or Investi ag tion. If during the Term of this Agreement (including any extensions), ACED becomes aware of (a) any actual or threatened unauthorized release of any Hazardous Material in, on, under, or about the Improvements or the Property, or (b) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of Hazardous Material in, on, under, or about the Improvements or the Property, other than routines inspections, ACED shall give City written notice of the release or investigation within five (5) days after learning of it and shall simultaneously furnish to City copies of any claims, notices of violation, reports, or other writings received by ACED that concern the release or investigation. 6.3 Indemnification. ACED shall defend (with counsel acceptable to City), indemnify and hold harmless City and City's elected and appointed officers, officials, employees, agents and representatives (collectively, "Indemnitees ") from and against any and 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 expenses, court costs, expert witness fees and post judgment collection costs) (all of the foregoing, collectively "Claims ") resulting or arising from or in connection with any release of any Hazardous Material in or about the Improvements or the Property or any other violation of any Environmental Law by ACED, or ACFD's agents, assignees, sublessees, contractors, or invitees. This indemnification includes: (i) losses attributable to diminution in the value of the Property or the Improvements, (ii) loss or restriction of use of the Property or the Improvements, and (iii) all other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation. The indemnity provided in this Section shall not extend to Claims to the extent the same are caused by the negligence or willful misconduct of Indemnitees. The provisions of this Section shall survive the expiration or termination of this Agreement. 6.4 Remediation Obligations. If the presence of any Hazardous Material, brought onto the Premises by ACED or ACFD's employees, agents, contractors, or invitees results in contamination of the Property, the Improvements or any part thereof, ACED shall promptly take all necessary actions to remove or remediate such Hazardous Materials, whether or not they are present at concentrations exceeding state or federal maximum concentration or action levels, or any governmental agency has issued a cleanup order, at ACFD's sole expense, to return the Property and the Improvements to the condition that existed before the introduction of such Hazardous Material. ACED shall first obtain City's approval of the proposed removal or remedial action. This 1904210.4 14 MAINTENANCE FACILITY USE AGREEMENT provision does not limit the indemnification obligation set forth in Section 6.3. This Section is not intended to impair ACFD's right to use Hazardous Materials on the Premises consistent with the provisions of this Agreement and in compliance with all Applicable Laws. 6.5 Definition of Hazardous Material. As used in this Agreement, the term "Hazardous Material" means any hazardous or toxic substance, material, or waste at any concentration that is or becomes regulated by the United States, the State of California, or any government authority having jurisdiction over the Property or the Improvements. Hazardous Material includes: (a) any "hazardous substance," as that term is defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 United States Code sections 9601 - 9675); (b) "hazardous waste," as that term is defined in the Resource Conservation and Recovery Act of 1976 (RCRA) (42 United States Code sections 6901- 6992k); (c) any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, within the meaning of any other applicable federal, state, or local law, regulation, ordinance, or requirement (including consent decrees and administrative orders imposing liability or standards of conduct concerning any hazardous, dangerous, or toxic waste, substance, or material, now or hereafter in effect); (d) petroleum products; (e) radioactive material, including any source, special nuclear, or byproduct material as defined in 42 United States Code sections 2011- 2297g -4; (f) asbestos in any form or condition; and (g) polychlorinated biphenyls (PCBs) and substances or compounds containing PCBs. 6.6 Definition of Environmental Laws. As used in this Agreement, the term "Environmental Laws" means all federal, state and local laws, ordinances, regulations, rules orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes, and regulations cited in the preceding Section 6.5, as any of the foregoing may be amended from time to time. ARTICLE VII 11/1110111 OW.1\►11Li /1 lei 111►/l►r1111 7.1 Utilities. ACED shall be solely responsible for payment for all utilities utilized in the Improvements or on the Property, including without limitation all electricity, air conditioning and heating, water, sewer and trash collection. 7.2 Maintenance. ACED shall, at all times during the Term of this Agreement, at ACFD's sole expense, keep the Property and the Improvements in good order, condition and repair, including without limitation (i) maintenance of all exterior areas of the Improvements and the Property, including without limitation, lighting and landscaping; (ii) cleaning, painting, maintenance and repair of the Improvements, (iii) maintenance and repair of mechanical, electrical, HVAC and plumbing equipment and systems and the structural components of the Improvements, including the roof, foundation, floors and walls, and (iv) maintenance and repair of all parking lots, walkways, driveways, fences, utility systems, fire sprinklers, stairs, elevators, corridors, 1904210.4 15 MAINTENANCE FACILITY USE AGREEMENT restrooms, windows. If ACED fails to maintain or keep the Property and Improvements in good repair or if such failure results in a nuisance or health or safety risk, at City's option, and after written notice to ACED , if ACED does not respond to such notice within thirty (30) days (except in the event of nuisance or health and safety risk), City may perform any such required maintenance and repairs, and within thirty (30) days after receipt of City's invoice, ACED shall pay City's costs incurred in connection with such repairs, plus a percentage of such costs sufficient to reimburse City for all overhead, general conditions, fees and other costs and expenses in connection therewith 7.3 Repair Obligations. Except as expressly set forth in this Agreement, (including all attachments and exhibits hereto) or the Plans, City shall have no obligation to repair or maintain the Property, the Improvements, or any equipment installed therein. 7.4 Compliance with Applicable Laws. City and ACED shall each comply with (and shall cause their respective employees, agents and contractors to comply with) all Applicable Laws, including without limitation all Environmental Laws, whenever either party undertakes any work of construction, alteration or improvement with respect to the Property or the Improvements. E\AY[610WAIII ALTERATIONS AND ADDITIONS 8.1 Alterations and Improvements. Other than routine repair of Improvements, ACED may not make any improvements, alterations, additions or changes to the Property or the Improvements (`Alterations ") exceeding Ten Thousand Dollars ($10,000) in cost without the prior written approval of City, which shall not be unreasonably withheld. If ACED desires to make any Alteration costing in excess of $10,000, the Parties will meet and develop an appropriate plan for accomplishing the Alterations. Unless otherwise agreed upon by City in writing, all Alterations shall be done at ACFD's expense, in a good and workmanlike manner, by ACED, Alameda County GSA, or by licensed contractors, in conformity with plans and specifications reviewed and approved by City, and in compliance with all Applicable Laws. ACED shall obtain all necessary governmental approvals and permits for such Alterations. ACED shall give City not less than ten (10) business days' notice prior to the commencement of construction so that City may post a notice of nonresponsibility on the Premises. City may at its option by written notice to ACED, require that ACED, upon the expiration or sooner termination of this Agreement, at ACFD's expense, remove any or all Alterations and return the Premises to its condition as of the Commencement Date, normal wear and tear excepted. 1904210.4 16 MAINTENANCE FACILITY USE AGREEMENT ARTICLE IX INSURANCE AND INDEMNITY 9.1 Mutual Indemnity. To the fullest extent permitted by law, ACFD shall defend (with counsel reasonably acceptable to City), indemnify and hold the Indemnitees harmless from and against any and all Claims arising out of or relating directly or indirectly to this Agreement and ACFD's use of the Premises (including without limitation, Claims for or relating to loss of or damage to property, injury or death of any person, and economic losses and consequential or resulting damage of any kind), including any Claim arising from or in connection with or in any way attributable to: (i) the use or occupancy, or manner of use or occupancy of the Improvements or the Property by ACFD or ACFD Parties, (ii) any act, error, omission or negligence of ACFD Parties or any invitee, guest or licensee of ACFD in, on or about the Premises, (iii) any Alterations, activity, work, or thing done, omitted, permitted, allowed or suffered by ACFD or ACFD Parties in, at, or about the Improvements or the Property, or (iv) any breach or default in performance of any obligation on ACFD's part in the performance of any covenant or agreement to be performed by ACFD under this Agreement, except to the extent caused by the negligence or willful conduct of City or the Indemnitees. This indemnification does not extend to Claims arising out of Common Areas unless such Claims arise from the negligence or intentional actions of ACFD or ACFD Parties. To the fullest extent permitted by law, City shall defend (with counsel reasonably acceptable to ACFD), indemnify and hold ACFD, AFCD Parties and its elected and appointed officers, officials, employees, agents and representatives (collectively "Indemnified Parties ") harmless from and against any and all Claims (including without limitation, Claims for or relating to loss of or damage to property, injury or death of any person, and economic losses and consequential or resulting damage of any kind), including any Claim arising from or in connection with or in any way attributable to: (i) any act, error, omission or negligence of City or any of its contractors, agents, invitees, guests or licensees in, on or about the Property or the Improvements, (ii) any activity, work, or thing done, omitted, permitted, allowed or suffered by the City or its contractors, agents, invitees, guests or licensees in, at, or about the Improvements or the Property, or (iv) any breach or default in performance of any obligation on the part of City in the performance of any covenant or agreement to be performed by City under this Agreement, except to the extent caused by the negligence or willful conduct of ACFD or the ACFD Parties. The provisions of this Section shall not be construed or interpreted as in any way restricting, limiting or modifying the insurance obligations of the Parties under this Agreement and are independent of such obligations. Compliance with the insurance requirements set forth in this Agreement shall not in any way restrict, limit or modify the respective indemnification obligations of the Parties hereunder. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. 1904210.4 17 MAINTENANCE FACILITY USE AGREEMENT 9.2 ACFD's Insurance. ACFD shall, at its sole expense, procure and maintain throughout the Term (plus such earlier and later periods as ACFD may be in occupancy of the Premises) all of the following: (a) Commercial general liability insurance including contractual liability coverage, written on an "occurrence" policy form, covering bodily injury, property damage and personal injury arising out of or relating (directly or indirectly) to ACFD's operations, conduct, assumed liabilities, or use or occupancy of the Premises, naming the Indemnitees as additional insureds, with minimum coverage in the amount of Two Million Dollars ($2,000,000) per occurrence combined single limit for bodily injury and property damage and Five Million Dollars ($5,000,000) in the aggregate. ACFD's liability coverage shall be adequate to provide protection against liability for damage or loss arising in connection with ACFD's work on Apparatus owned by third parties; (b) Property insurance protecting ACFD against loss or damage by fire and such other risks as are insurable under then available standard forms of "all risk" insurance policies, covering ACFD's personal property and trade fixtures in or about the Premises, and any improvements and/or Alterations in the Premises, in an amount not less than one hundred percent (100 %) of their actual replacement cost or highest insurable value; (c) Workers' compensation insurance in at least the statutory amounts; and (d) Comprehensive automobile liability insurance with a minimum coverage of Two Million Dollars ($2,000,000) per occurrence, combined single limit providing coverage for owned, hired and non -owned vehicles. The foregoing policies shall protect ACFD as an additional named insured, and City and the other Indemnitees as additional insureds, and if subject to deductibles shall provide for deductible amounts not in excess of those approved in advance in writing by City in its reasonable discretion. City reserves the right to increase the foregoing amount of required liability coverage from time to time (but not more often than once each calendar year) to adequately protect Indemnitees and to require that ACFD cause any of its contractors, vendors or other parties conducting activities in or about or occupying the Premises to obtain and maintain insurance as determined by City and as to which the Indemnitees shall be additional insureds. 9.3 Excess Coverage Liability. Nothing in this Article IX shall prevent ACFD from obtaining insurance of the kind and in the amounts provided for under this Section under excess coverage liability insurance covering other properties as well as the Premises; provided, however, that any such excess coverage liability insurance (i) shall specify those amounts of the total insurance allocated to the Premises, which amounts shall not be less than the amounts required by Section 9.2, (ii) such amounts so specified shall be sufficient to prevent any one of the insureds from becoming a co- insurer within the terms of the applicable policy, and (iii) shall, as to the Premises, otherwise comply with the requirements of this Article as to endorsements and coverage. 1904210.4 18 MAINTENANCE FACILITY USE AGREEMENT 9.4. Insurance Form. ACED maintains its insurance through the County of Alameda, which is self - insured. Insurance coverage, other than ACFD's workers' compensation insurance /coverage, shall (i) provide that no act or omission of ACED shall affect or limit the obligations of the insurer with respect to any other insured; (ii) include all waiver of subrogation rights endorsement necessary to effect the provisions of Section 9.6, and (iv) provide that the coverage shall be primary, that City, although an additional insured, shall nevertheless be entitled to recovery for any damage to City or the other Indemnitees by reason of acts or omission of ACED, and that any coverage carried by City shall be noncontributory with respect to coverage carried by ACED. If requested, proof of insurance coverage shall be delivered to City by ACED on or before the Commencement Date, and from time to time thereafter upon City's request. City may at any time, and from time to time, inspect and /or copy any and all insurance coverage required by this Agreement. 9.5 Insurance of ACED Contractors and Ate. ACED shall require all of its agents, contractors, workmen, mechanics, suppliers or invitees performing construction or repair work on the Property or in the Improvements to carry adequate property, liability, automobile and workers compensation insurance. 9.6 Waiver of Subro ate. ACED and City each agree to waive, and as applicable shall cause the insurance companies issuing their respective property (first party) insurance to waive any subrogation rights that each Party and such companies may have against ACED or City, respectively, as long as the insurance is not invalidated by the waiver. If the waivers of subrogation are contained in their respective insurance policies, City and ACED waive any right that either may have against the other on account of any loss or damage to their respective property to the extent that the loss or damage is insured under their respective insurance policies. 9.7 City's Insurance. City shall maintain throughout the Term liability insurance and property damage insurance comparable to or exceeding the coverage and amounts of insurance carried by reasonably prudent municipal/government owners of comparable property and workers' compensation coverage as required by law. ARTICLE X ASSIGNMENT AND OCCUPANCY 10.1 City's Consent Required. ACED shall not assign, mortgage, pledge, encumber or otherwise transfer this Agreement. Except as set forth in this Section, ACED shall not permit all or any part of the Premises to be used or occupied for any purpose by anyone other than ACED without the prior written consent of City, which City will not unreasonably withhold. Except as set forth in this section, any assignment or agreement permitting any third party to use or occupy the Premises without City's prior written consent shall, at City's option, be void and shall constitute an Event of Default entitling City to terminate this Agreement and to exercise all other remedies 1904210.4 19 MAINTENANCE FACILITY USE AGREEMENT available to City under this Agreement and at law. Notwithstanding the foregoing, with respect to an aggregate total of not more than twenty -five percent (25 %) of the total square footage of the Premises, ACED may, without City's consent, enter into agreements permitting entities that provide public services (including other fire districts and departments)to use or occupy the Premises. ACED will notify City of any such agreement, and if requested, shall provide copies of such agreements to City. 10.2 No Release of Obligations. Except as permitted pursuant to Section 10.1, the consent by City to an assignment or agreement for use by others shall not relieve ACED or any assignee from the requirement of obtaining City's express prior written consent to any other or further assignment or agreement for use by another occupant. No occupant may assign its rights or allow others to use the Premises, without City's prior written consent, which consent may be not be unreasonably withheld. Neither an assignment nor the collection of rent by City from any person other than ACED shall be deemed a waiver of any of the provisions of this Article or release ACED from its obligations to comply with this Agreement, and ACED shall remain fully and primarily liable for all of ACFD's obligations under this Agreement. 10.3 Recapture. As material consideration for the execution of this Agreement by City, ACED hereby agrees that whenever it delivers notice to City that it desires approval of a use agreement or assignment which covers the entirety of the Premises, City shall have the right to review the terms and conditions of such proposed use agreement or assignment and shall have a right for a period of fifteen (15) business days, to cancel this Agreement, and enter into a direct agreement with any prospective user or assignee. Such fifteen (15) day period shall commence upon ACFD's delivery to City of written notice of the terms of the proposed assignment or use agreement and financial statements for the proposed assignee or user. If City exercises its right to cancel this Agreement, ACED shall surrender possession of all of the Premises not later than the date on which the proposed use agreement or assignment term would commence. 10.4 Proceeds of Third Party Use Agreement or Assignment. Subject to Section 10.5, if ACED enters into any assignment or use agreement permitting a third party to use or occupy the Premises, City shall be entitled to receive as Additional Rent hereunder, one hundred percent (100 %) of any consideration paid by the assignee or user for the use or occupancy of the Premises in excess of the amount of Base Rent attributable to the space that is the subject of the use or occupancy agreement, except that ACED may recapture on an amortized basis over the term of the use agreement or assignment, any brokerage commission paid by ACED in connection with the agreement or assignment (not to exceed the amount of commissions typically paid in the market at the time of such agreement or assignment) and reasonable marketing costs paid by ACED in connection with the use agreement or assignment. 10.5 Rent Proceeds. Notwithstanding the provisions of Section 10.4, ACED shall be entitled to retain the excess rent attributable to payments made by users, assignees or occupants who at any one time occupy or use portions of the Premises equal on an 1904210.4 20 MAINTENANCE FACILITY USE AGREEMENT aggregate basis to no more than twenty -five percent (25 %) of the total square footage of the Premises. I1NI0 lei 00:41 DAMAGE AND DESTRUCTION 11.1 Repair and Restoration; Termination Rights. If all or part of the Improvements or the Property is damaged by fire or other casualty, or if the Improvements are so damaged that access to or use and occupancy of the Premises is materially impaired, within forty -five (45) days of the date of the damage, City shall notify ACFD of the estimated time, in City's reasonable judgment, required for repair or restoration (`Repair Period "). If the estimated time is 180 days or less, City shall proceed promptly and diligently to repair or restore the Premises or the portion of the Improvements necessary for ACFD's occupancy, and this Agreement shall remain in effect, except that for the time unusable, ACFD shall receive a Rent abatement for that part of the Premises rendered unusable in the conduct of ACFD's business. If the estimated time for repair or restoration is in excess of 180 days from the date of the casualty, City, at its option exercised by written notice to ACFD within sixty (60) days after the date of the casualty, shall either (a) commence to repair the damage, in which case this Agreement shall continue in full force and effect, or (b) terminate this Agreement as of the date specified by City in the notice, which date shall be not less than thirty (30) nor more than sixty (60) days after the date such notice is given, and this Agreement shall terminate on the date specified in the notice. If the time estimated for repair is more than one year and City does not give notice terminating this Agreement, then within thirty (30) days after ACFD receives City's notice providing a Repair Period, ACFD may give notice to City terminating this Agreement as of the date specified in ACFD's termination notice, which date shall not be before the date of such notice or more than thirty (30) days after the date of ACFD's termination notice. If the time estimated for repair is less than one year, or is more than one year and ACFD does not exercise its foregoing termination rights, and in either case City fails to repair the damage by the date that is the later to occur of (i) one year from the date of the damage, or (ii) ninety (90) days after the end of the Repair Period, then ACFD may give notice to City, within ten (10) business days after the end of the Repair Period terminating this Agreement as of the date specified in ACFD's notice, which date shall not be earlier than 45 days after the date of ACFD's termination notice nor more than 60 days after City's receipt of ACFD's termination notice; provided however, if City repairs the damage for which it is responsible within 45 days after receipt of ACFD's termination notice, City may elect to nullify ACFD's termination notice (and thereupon this Agreement shall continue in full force and effect) by City's notice of such repair and election given to ACFD on or prior to the expiration of such 45 -day period. 1904210.4 21 MAINTENANCE FACILITY USE AGREEMENT 11.2 Damage Near End of Term. Notwithstanding anything to the contrary set forth in this Article, if the Property or the Improvements are damaged during the last twelve (12) months of the Term, City and ACFD shall each have the option to terminate this Agreement by giving written notice to the other of the exercise of that option within thirty (30) days after the damage or destruction, and this Agreement shall terminate as of the date specified in such notice which shall be not before the date of such notice nor more than 30 days after the date of such notice. 11.3 Rent Apportionment. If City or ACFD elects to terminate this Agreement under this Article XI, ACFD shall pay Rent, prorated on a per diem basis and paid up to the date of the casualty. If the Premises are wholly untenantable and this Agreement is not terminated, Rent shall abate on a per diem basis from the date of the casualty or default until the Premises are ready for occupancy by ACFD or the default is cured. If part of the Premises are untenantable, Rent shall be prorated on a per diem basis and abated in proportion to the portion of the Premises which is unusable until the damaged part is ready for ACFD's occupancy. Notwithstanding the foregoing, if any damage was caused by the gross negligence or willful misconduct of ACFD, its employees or agents, then, in such event, ACFD agrees that Rent shall not abate or be diminished. 11.4 Waiver of Statutory Provisions. The provisions of this Agreement, including those in this Article XI, constitute an express agreement between City and ACFD that applies in the event of any damage to the Improvements or the Property. ACFD, therefore, fully waives the provisions of any statute or regulation, including California Civil Code sections 1932(2) and 1933(4), relating to any rights or obligations concerning any such casualty. 11.5 Damage Caused by ACFD or ACFD Parties. Notwithstanding any contrary provision of this Article XI, ACFD shall be solely responsible for the repair of any damage to the Property or the Improvements resulting from the negligence, willful action or failure to act by ACFD or ACFD Parties, and such repairs shall be undertaken at ACFD's sole expense. ARTICLE XII CONDEMNATION 12.1 Total Taking - Termination. If title to the Premises or so much thereof is taken through the exercise of any government power (by legal proceedings or otherwise) by any public or quasi - public authority or by any other party having the right of eminent domain, or by a voluntary sale or transfer either under threat of exercise of eminent domain or while legal proceedings for eminent domain are pending so that reconstruction of the Premises will not result in the Premises being reasonably suitable for ACFD's continued occupancy for the uses and purposes permitted by this Agreement, this Agreement shall terminate as of the date possession of the Premises or part thereof is so taken. 1904210.4 22 MAINTENANCE FACILITY USE AGREEMENT 12.2 Partial Taking. If any part of the Premises is taken through the exercise of eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining part is reasonably suitable for ACFD's continued occupancy for the uses and purposes permitted by this Agreement, this Agreement shall as to the part so taken terminate as of the date that possession of such part of the Premises is taken and the Rent shall be reduced in the same proportion that the floor area of the portion of the Premises taken (less any addition thereto by reason of any reconstruction) bears to the original floor area of the Premises as reasonably determined by City or City's architect. City shall, at its own cost and expense, make all necessary repairs or alterations to the Premises so as to make the portion of the Premises not taken a complete unit. 12.3 No Apportionment of Award. All condemnation awards and similar payments shall be paid and belong to City, except for any amounts awarded or paid specifically to ACFD for improvements, removal and reinstallation of ACFD's trade fixtures and personal property, ACFD's moving costs and ACFD's goodwill. It is expressly understood and agreed by ACFD that except as otherwise stated in this Section, City shall be entitled to the entire award for any partial or total taking of the Property. 12.4 Temporary Taking No temporary taking of the Premises (which shall mean a taking of all or any part of the Premises for 30 days or less) shall terminate this Agreement or give ACFD any right to any abatement of Rent. ACFD may agree to a temporary taking of a longer period. Any award made to ACFD by reason of such temporary taking shall belong entirely to ACFD, and City shall not be entitled to share therein. ARTICLE XIII SUBORDINATION AND ESTOPPEL; RIGHT OF FIRST OFFER 13.1 Estoppel Certificate. From time to time and within thirty (30) days after request by City, unless the Alameda County Board of Directors is on recess, and then at the first meeting thereafter, ACFD shall execute and deliver a certificate to any proposed lender or purchaser, or to City, certifying, with any appropriate exceptions, (a) that this Agreement is in full force and effect without modification except as noted, (b) the amount, if any, of prepaid rent and Initial Contributions paid by ACFD to City (and not returned to ACFD), (c) the nature and kind of concessions, rental or otherwise, if any, which ACFD has received or is entitled to receive, (d) that City has performed all of its obligations due to be performed under this Agreement and that there are no defenses, counterclaims, deductions or offsets outstanding or other excuses for ACFD's performance under this Agreement as of such date, and (e) any other fact reasonably requested by City or such proposed lender or purchaser. 13.2 Subordination and Attornment. ACFD agrees that this Agreement is subject and subordinate to (i) the lien of any mortgage or deed of trust on the Improvements or the Property, and all renewals, extensions, modifications, consolidations, and replacements of those items. 1904210.4 23 MAINTENANCE FACILITY USE AGREEMENT 13.3 Subordination Agreement. The subordination described in this Article XIII is self - operative, and no further instrument of subordination shall be required to make it effective. To confirm this subordination, however, ACFD shall, within thirty (30) days after City's request (unless the Alameda County Board of Directors is on recess, then at the first meeting thereafter), execute any further instruments or assurances in recordable form that City reasonably considers necessary to evidence or confirm the subordination of this Agreement to any such encumbrances. 13.4 Right of First Offer. Provided that ACFD is not in default under this ( Field Code Changed Agreement beyond any applicable notice and cure periods, if during the Term of this Agreement, City determines to sell the Premises, ACFD shall have a right of first offer as set forth herein. Prior to City's entering into an agreement for the marketing of the Premises or City's solicitation of offers to purchase the Premises from third parties, City shall offer in writing (the "First Offer ") to sell the Premises to ACFD on the same terms and conditions that City would then be willing to offer to a third party. The First Offer shall, at a minimum, include the following information: the purchase price, the method of payment of the purchase price; the amount of any required earnest money deposit; and the timing for the close of escrow. ACFD shall have forty -five (45) days from the date of the First Offer to accept the First Offer (the "Acceptance Period ") by delivering to City its acceptance on or before 5:00 p.m. on the last day of the Acceptance Period. If ACFD fails to accept the First Offer before the Acceptance Period ends, the First Offer shall be deemed rejected. If ACFD responds to the First Offer with anything other than an unequivocal, unconditional acceptance or rejection, the right of first offer shall terminate and the response shall be deemed an offer to purchase the Premises on the terms and conditions in the response (the "Counter Offer "). City shall be entitled to accept or reject the Counter Offer in City's sole discretion, and if City rejects the Counter Offer, the Counter Offer shall be deemed to be a rejection of the First Offer. If ACFD accepts the First Offer, ACFD shall have sixty (60) days following acceptance of the First Offer (`Closing Period ") to obtain from the Alameda County Board of Directors approval to execute a contract to purchase the Premises pursuant to the terms and conditions of the First Offer. If ACFD fails to obtain such approval within the Closing Period, any earnest money paid by ACFD pursuant to the acceptance shall be paid to City as City's liquidated damages, and the agreement to purchase the Premises together ACFD's rights pursuant to this Section 13.4 shall be terminated. After the termination, City shall be free to enter into an agreement for the sale of the Premises with a third party on whatever terms City may choose to offer without further obligation under this Section. If ACFD rejects the First Offer and City subsequently negotiates with a third party and is willing to enter into an agreement with that party on terms less favorable to City or more favorable to the purchaser than those contained in the First Offer, City shall offer to sell the Property to ACFD on those new terms by giving ACFD written notice (`Second Offer "). ACFD shall have twenty (20) business days from receipt of the Second Offer to obtain from the Alameda County Board of Directors approval to accept the new terms; provided however, if the Alameda County Board of Directors is on recess 1904210.4 24 MAINTENANCE FACILITY USE AGREEMENT on the date that such 20 -day period expires, this time period may be extended to the date of the next Board meeting. If ACED fails to accept the new terms or rejects the new terms in writing, City shall be free to consummate the transaction with the third party without any liability to ACFD. If ACED accepts the new terms, ACED shall then consummate the transaction with City on the terms and conditions in the Second Offer on the later of (a) the time for consummation of the Second Offer, (b) sixty (60) days following the date of the Second Offer, or (c) other date agreed upon by the Parties. The rights and obligations of the Parties under this Section 13.4 shall automatically terminate and have no further effect upon the first of the following events to occur: (i) the expiration of the Term of this Agreement, or (ii) ACED rejects a First Offer or a Second Offer and City subsequently consummates a sale of the Premises to a third party. The right of first offer provided pursuant to this Section 13.4 is personal to ACED and may not be assigned by operation of law or otherwise without the express written consent of City. Notwithstanding the foregoing, the right of first offer may be assigned to the County of Alameda, a political subdivision of the State of California ( "County ") provided that the County's intended use for the Premises is the provision of fire protection related services and uses, including the uses permitted under this Agreement. ARTICLE XIV SURRENDER OF PREMISES; HOLDING OVER 14.1 Surrender of Premises. On expiration of this Agreement, ACED shall surrender the Premises in the same condition as when the Term commenced, ordinary wear and tear excepted. Except for furniture, equipment and trade fixtures (other than those which are affixed to the Premises so that they cannot be removed without material damage to the Premises that cannot be repaired) all alterations, additions or improvements, whether temporary or permanent in character, made in or upon the Premises, either by City or ACED, shall be City's property and at the expiration or earlier termination of the Agreement shall remain on the Premises without compensation to ACED- provided that, upon reasonable written request of City, ACED shall, at its expense and without delay, remove any alterations, additions or improvements (including, without limitation, all telecommunications equipment and cabling, and all alterations and improvements made by ACED after the Commencement Date) made to the Premises by ACED and designated by City to be removed, and shall repair any damage to the Property or the Improvements caused by such removal. If ACED fails to complete such removal or to repair the Premises, City may complete such removal and repair, and ACED shall reimburse City therefor. If ACED fails to remove such property as required under this Agreement, City may dispose of such property in its sole discretion without any liability to ACED, and further may charge the cost of any such disposition to ACED. 14.2 Hold Over Use. If ACED remains in possession of the Premises after the expiration or earlier termination of this Agreement with City's written consent, ACED shall be deemed, at City's option, to occupy the Premises on a month -to -month basis. 1904210.4 25 MAINTENANCE FACILITY USE AGREEMENT During such occupancy (and prior to any termination by City), ACED agrees to pay City, monthly in advance, an amount equal to the greater of (i) the then fair market rental (as reasonably determined by City) for the Premises, or (ii) one hundred and six percent (106 %) of all Base Rent which would become due during the last month of the Term, together with all other amounts payable by ACED to City under this Agreement. Except as provided in the preceding sentence, such month -to -month occupancy shall be on the same terms and conditions of this Agreement except that any renewal options, expansion options, rights of first refusal or any other rights or options contained in this Agreement shall be deemed to be terminated and shall be inapplicable thereto. City's acceptance of rent after such holding over with City's written consent shall not result in any other tenancy or in a renewal of the initial term of this Agreement. If after written notice to ACED that City does not consent to ACED continuing to occupy the Premises and ACFD remains in possession of the Premises after the expiration or earlier termination of this Agreement without City's written consent, ACFD's continued possession shall be on the basis of a tenancy at sufferance and ACFD shall pay Rent during the holdover period in an amount equal to the greater of (i) one hundred fifty percent (150 %) of the then fair market rental (as reasonably determined by City) for the Premises, or (ii) two hundred percent (200 %) of all Base Rent which would become due the last month of the Term, together with all other amounts payable by ACFD to City. ARTICLE XV CITY'S RESERVED RIGHTS. 15.1 Rights Reserved to City. Without liability to ACFD, and without effecting an eviction or disturbance of ACFD's use or possession, City shall have the right to (i) grant utility easements or other easements in, or subdivide or make other changes in the legal status of the Property as City shall deem appropriate in its sole discretion, provided such changes do not substantially interfere with ACFD's use of the Premises for the Permitted Use, however, prior to doing so City will notify ACFD allowing sufficient time for ACFD to comment on whether such action will interfere with its use; (ii) enter the Premises at reasonable times and with reasonable advance notice (and at any time in the event of an emergency), to inspect (including inspections by prospective lenders for or buyers of the Property), or repair the Improvements and to perform any acts related to the safety, protection, reletting, sale or improvement of the Property or the Improvements; (iii) install and maintain signs on the Property; and (iv) make such rules and regulations as, in the reasonable judgment of City, may be needed from time to time for, the care and cleanliness of the Property and the Improvements and the preservation of good order therein. If an emergency necessitates immediate access to the Premises, City shall contact the ACFD Chief, or designee, who will be available 24 hours a day all days of the year to allow access to the Property and Improvements at all times. 1904210.4 26 MAINTENANCE FACILITY USE AGREEMENT ARTICLE XVI DEFAULT AND REMEDIES 16.1 ACFD's Default. It shall be an "Event of Default" hereunder if ACED shall: (a) fail to pay when due any monthly installment of Rent (or, if applicable under this Agreement, ACFD's Share of Operating Expenses), or fail to pay any other amount owed by ACED to City under this Agreement as and when due and such failure continues for thirty (30) days following written notice thereof to ACED by City; (b) if requested, fail to provide any certificate, instrument or assurance as required pursuant to Article IX if the failure continues for thirty (30) days after written notice of the failure from City to ACED; (c) make a general assignment for the benefit of its creditors or file a petition for bankruptcy or other reorganization, liquidation, dissolution or similar relief, (d) have a proceeding filed against ACED seeking any relief mentioned in (c) above which is not discharged within sixty (60) days thereafter; (e) have a trustee, receiver or liquidator appointed for ACED or a substantial part of its property; (1) abandon or vacate the Premises for more than three (3) consecutive months; (g) assign this Agreement or sublease any portion of the Premises in violation of Article X; or (h) fail to comply with any other provision of this Agreement in the manner required hereunder and such failure continues for thirty (30) days after written notice thereof to ACED by City (or if the noncompliance cannot by its nature be cured within the 30 -day period, if ACED fails to commence to cure such noncompliance within the 30 -day period and thereafter diligently prosecute such cure to completion). 16.2 Remedies on Default. Upon the occurrence of an Event of Default, and after written notice to ACED that City considers ACED in Default, City shall have the right to pursue any one or more of the following remedies in addition to any other remedies now or later available to City at law or in equity. These remedies are not exclusive but instead are cumulative. 1904210.4 27 MAINTENANCE FACILITY USE AGREEMENT (a) Continue Agreement. City may continue this Agreement in full force and effect. In such case, so long as City does not terminate ACFD's right to possession, the Agreement will continue in effect and City shall have the right to collect Rent when due, and may undertake efforts to relet the Premises, or any part of them, to third parties for ACFD's account. Reletting can be for a period shorter or longer than the remaining term of this Agreement. ACED shall pay to City the Rent due under this Agreement on the date the Rent is due, less the Rent City receives from any reletting. No act by City allowed by this Section shall terminate this Agreement unless City terminates ACFD's right to possession. After an Event of Default and for as long as City does not terminate ACFD's right to possession of the Premises, if ACED obtains City's consent, ACED shall have the right to assign or sublet its interest in this Agreement, but ACED shall not be released from liability. (b) Terminate Agreement. City may terminate the Agreement and ACFD's right to possession of the Premises at any time following an Event of Default. On termination, City shall have the right to recover from ACED all of the following: (i) The worth, at the time of the award, of any unpaid Rent that had been earned at the time of termination of this Agreement; (ii) The worth, at the time of the award, of the amount by which the unpaid Rent that would have been earned after the date of termination of this Agreement until the time of the award exceeds the amount of the unpaid Rent that ACED proves could have been reasonably avoided; (iii) The worth, at the time of the award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of unpaid Rent that ACED proves could have been reasonably avoided; (iv) Any other amount necessary to compensate City for all detriment proximately caused by ACFD's failure to perform obligations under this Agreement, including, without limitation, brokerage commissions, advertising expenses, expenses of remodeling the Premises for a new tenant, and any special concessions made to obtain a new tenant; and (v) Any other amounts, in addition to or in lieu of those listed above that may be permitted by law. "The worth, at the time of the award" as used in clauses (i) and (ii) of this Paragraph (b) is to be computed by allowing interest at the maximum rate allowed by law at that time, or if there is no such maximum, at a rate of ten percent (10 %) per annum. "The worth, at the time of the award," as referred to in clause (iii) of this Paragraph (b) is to be computed by discounting the amount at the discount 1904210.4 28 MAINTENANCE FACILITY USE AGREEMENT rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1 %). 16.3 City's Default. City's failure to perform any of its obligations under this Agreement shall constitute a City Event of Default hereunder if the failure continues for thirty (30) days after written notice of the failure from ACED; provided however, if the failure to perform cannot by its nature be cured within the 30 day period, City's failure to perform shall not constitute a City Event of Default if City undertakes to cure the failure within such thirty (30) day period and diligently and continuously attempts to complete the cure as soon as reasonably possible. 16.4 Access. Full ingress and egress to the Premises by Apparatus is a material term of this Agreement. If at any time access to the Premises is obstructed or blocked, City shall immediately take reasonable action so that full access is restored. If access is impaired, but sufficient to allow ingress and egress of Apparatus, then City shall promptly take reasonable actions to restore full access. If the City's response is not adequate, ACED in its reasonable discretion may correct the problem or arrange for appropriate alternative access. ACED may immediately take action, after verbal notice to City, in any emergency situation. An emergency situation includes any fire, natural or other disaster or instance where Apparatus that is located on the Premises is needed and any time there are insufficient Apparatus available to meet minimum daily deployment requirements. If the obstruction or blockage has resulted from City's negligence or willful action, City shall reimburse ACED for all reasonable costs incurred by ACED in connection with such correction or alternative access within thirty (30) days following ACFD's provision to City of an invoice with documented costs. If access problems reoccur or if ACED reasonably determines that City is not taking appropriate action to restore access consistent with the Section, ACED shall have the option to immediately terminate this Agreement. If any obstruction or blockage has resulted from actions of third parties or natural disasters, the Parties will work together and fully cooperate to obtain reimbursement from third parties, including federal agencies. ARTICLE XVII COMPLETION OF THE PROJECT 17.1 Project Completion. The obligations of City and ACED, with respect to preparation of the Premises for occupancy and completion of the Project are set forth in the Improvement Agreement attached hereto as Exhibit B, as it may be amended prior to signature. The Improvement Plan and any further amendments to the Improvement Plan, can be executed by the ACED Chief and by the City Manager. It is acknowledged and agreed that all improvements constructed by City pursuant to this Agreement are and shall be the property of City from and after their installation. 1904210.4 29 MAINTENANCE FACILITY USE AGREEMENT ARTICLE XVIII MISCELLANEOUS 18.1 No Waiver. No receipt and retention by City of any payment tendered by ACFD in connection with this Agreement shall constitute an accord and satisfaction, or a compromise or other settlement, notwithstanding any accompanying statement, instruction or other assertion to the contrary unless City expressly agrees to an accord and satisfaction, or a compromise or other settlement, in a separate writing duly executed by City. City will be entitled to treat any such payments as being received on account of any item or items of Rent, interest, expense or damage due in connection herewith, in such amounts and in such order as City may determine at its sole option. Failure of any party to exercise any right in one or more instance shall not be construed as a waiver of the right to strict performance or as an amendment to or modification of this Agreement. Any waiver of any condition or provision set forth in this Agreement shall not be deemed a waiver of any subsequent breach of such condition or provision or of any other condition or provision, nor shall any such waiver be deemed a continuing waiver. 18.2 Severability. The Parties intend this Agreement to be legally valid and enforceable in accordance with all of its terms to the fullest extent permitted by law. If an arbitrator or a court of competent jurisdiction holds any provision hereof to be invalid or unenforceable in whole or in part for any reason, the validity and enforceability of the remaining clauses, or portions of them, shall not be affected unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provision. 18.3 Governing Law; Construction. This Agreement shall be construed according to the laws of the State of California without regard to principles of conflict of laws. The parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both parties and agree that the provisions hereof shall be construed in accordance with their fair meaning and not in accordance with any rule providing for interpretation against the party who causes the uncertainty to exist or against the drafter. The captions used for the Sections and Articles of this Agreement have been inserted for convenience only and shall not be used to alter or interpret the content of this Agreement. 18.4 Binding Effect; Survival. The covenants, conditions, warranties and agreements contained in this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The representations and warranties of City and ACFD and the indemnification obligations of City and ACFD set forth herein shall survive the expiration or termination of this Agreement as shall all other provisions hereof which are intended to survive such expiration or termination. 18.5 Time. Time is of the essence of each provision of this Agreement. 18.6 Entire Agreement; Amendments. This Agreement and Exhibits A through B -2 attached hereto and incorporated herein by this reference, constitutes the final, 1904210.4 30 MAINTENANCE FACILITY USE AGREEMENT complete, and exclusive statement of the terms of the agreement between City and ACED pertaining to ACFD's use of the Premises and the Temporary Maintenance Facility, and supersedes all prior and contemporaneous understandings or agreements of the parties with respect thereto. This Agreement may not be amended or modified except in a writing signed by both parties. 18.7 Notices. All notices delivered pursuant to this Agreement shall be in writing and delivered to City or ACED at the applicable address designated in Section 1.1 or to such other address as may hereafter be designated by either party by written notice delivered to the other party in accordance with this Section. Such notices shall be effective on the earlier to occur of actual receipt or: (i) if mailed, five (5) days after posting at a United States post office, (ii) upon receipt if mailed by certified mail with return receipt requested, and (iii) upon delivery if delivered by overnight delivery service and delivery is confirmed by the delivery service. 18.8 Force Majeure. Except as otherwise provided in this Agreement, the time for performance of an obligation other than the payment of money under this Agreement shall be extended for the period during which a party is prevented from performing due to Unavoidable Delay. "Unavoidable delay" shall mean any and all delay beyond the applicable party's reasonable control, including without limitation, delays caused by the other party; governmental restrictions, regulations, controls, preemptions or delays; orders of civil, military or naval authorities; strikes, labor disputes, lock -outs, shortages of labor or materials or reasonable substitutes therefore; Acts of God; fire, earthquake, floods, explosions or other casualties; extreme weather conditions or other actions of the elements; enemy action, civil commotion, riot or insurrection. 18.9 Attorneys' Fees . If the services of an attorney are required by any party to secure the performance hereof or otherwise upon the breach or default of the other party, or if any judicial remedy or arbitration is necessary to enforce or interpret any provision of this Agreement, or if the services of an attorney are required upon the bankruptcy of a party to this Agreement to compel or object to assumption or rejection of this Agreement, seek relief from the automatic stay or object to an action to recover a preference or fraudulent transfer, the prevailing party shall be entitled to reasonable attorneys' fees, costs, expert witnesses fees, post judgment collection costs, and other expenses, in addition to any other relief to which such party may be entitled. 18.10 Authority. Each party warrants and represents that it has full authority to enter into this Agreement, that this Agreement constitutes a binding obligation of such party, and that the individual(s) signing on behalf of such party are duly authorized to bind such party hereto. 18.11 Approvals. Whenever the consent or approval of City is required hereunder, such consent or approval may be granted or withheld by the City Manager or his or her designee, unless the City Manager determines in his or her discretion that such matter shall be referred to City's governing body for consideration. 1904210.4 31 MAINTENANCE FACILITY USE AGREEMENT 18.12 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by any other party. This Agreement shall take effect when signed by all parties hereto and all parties have written notice of the signature of all the remaining parties. 18.13 Brokers. ACFD and City each represent and warrant to the other that except as stated in this Section, no broker or agent is entitled to a broker's commission or finder's fee in connection with the execution of this Agreement or the consummation of the transaction contemplated hereby, and each party agrees to defend and indemnify the other party against any loss, expense or liability incurred by the other party as a result of a breach of such representation and warranty. The provisions of this Section shall survive the expiration or earlier termination of the Agreement. City shall pay a consulting fee to Colliers International in accordance with a separate agreement. 18.14 Submission of Agreement. Submission of this document for examination or signature by the Parties does not constitute an option or offer to allow use the Premises or the Temporary Maintenance Facility on the terms in this document or a reservation of the Premises or Temporary Maintenance Facility in favor of ACFD. This Agreement is not effective until executed and delivered by both City and ACFD. 18.15 Non-Agency. It is not the intention of City or ACFD to create hereby a relationship of principal and agent, and under no circumstances shall ACFD be considered the agent of City, nor City an agent of ACFD. SIGNATURES ON FOLLOWING PAGE. 1904210.4 32 MAINTENANCE FACILITY USE AGREEMENT NOW THEREFORE, City and ACED have executed this Maintenance Facility Use Agreement as of the date first written above. ACFD CITY ALAMEDA COUNTY FIRE DISTRICT CITY OF DUBLIN By: Print Name: Title: By: Its: City Manager Attest: City Clerk Approved as to Form: Approved as to Form: Donna R. Ziegler, County Counsel City Attorney By: Senior Deputy County Counsel 1904210.4 33 MAINTENANCE FACILITY USE AGREEMENT Exhibit A -1 DIAGRAM OF PROPERTY The Property is the area contained within the dark lines shown on the following diagram (identified by numbers 1 -5). 1 F -�F � r + iIPIUIIIIr _. - Q_ 11(1k KAn ' y DUBLIN MAINTENANCE / AI AMFDA COUNTY FIRF MAINTENANCE DALINI CALIFORNIA 1904210.4 34 MAINTENANCE FACILITY USE AGREEMENT Exhibit A -2 Memorandum Confirming Commencement Date and Total Project Costs For MAINTENANCE FACILITY USE AGREEMENT (Scarlett Court) This Memorandum Confirming Commencement Date and Total Project Costs, executed as of , 20_ (`Effective Date ") is a supplement to that certain Maintenance Facility Use Agreement (`Agreement ") entered into effective as of July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation (`City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). Capitalized terms used without definition herein shall have the meanings ascribed to such terms in the Agreement. City and ACED hereby agree as follows: 1. Commencement Date: The Commencement Date as defined in the Agreement shall be: , 20 2. Base Rent: As Base Rent for use of the Premises, ACED will pay the City as follows: Year Monthly Base Rent 1 -2 S 3 -4 S 5 -6 S 7 -8 S 9 -10 S 11 -12 S 13 -14 S 15 -16 S 17 -18 S 19 -20 S 1904210.4 35 MAINTENANCE FACILITY USE AGREEMENT 3. Exhibit 1 "Formula for Determining Base Rent" attached hereto and incorporated into this Memorandum by reference, specifies the final Total Project Costs which are the basis for determining Base Rent. 4. In the event of conflict between the terms of this Memorandum and the terms of the Agreement, the terms of this Memorandum shall prevail. IN WITNESS WHEREOF, City and ACED have executed this Memorandum Confirming Commencement Date and Total Project Costs as of the date first written above. ETV a11 A I Ma ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN, By: Print Name: Title: Its: City Manager Attest: City Clerk Approved as to Form: Approved as to Form: Donna R. Ziegler, County Counsel By: Deputy County Counsel City Attorney 1904210.4 36 MAINTENANCE FACILITY USE AGREEMENT Exhibit B IMPROVEMENT AGREEMENT THIS IMPROVEMENT AGREEMENT (`Improvement Agreement ") supplements the Maintenance Facility Use Agreement (the "Agreement ") executed concurrently herewith by and between the CITY OF DUBLIN, a municipal corporation ('City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). All capitalized terms not defined herein shall have the same meanings as set forth in the Agreement. 1. Determination of Base Rent Based on Costs. City and ACED each acknowledge and agree that except as otherwise specified, the work described in this Improvement Agreement shall be completed by City, and the Base Rent shall be calculated based upon the costs and the formula set forth in Exhibit B -2; provided however, the Base Rent shall be adjusted to reflect actual costs once they have been determined. 2. Scope of Work. City shall undertake the following work (the "Scope of Work ") in accordance with the Final Plans (defined in Section 3 below): (i) Site preparation, including without limitation, removal of existing asphalt; (iii) Construction of an approximate 18,300 square foot facility (the "Building ") and completion of Base Building Work, including: (a) concrete floors (without floor coverings) of tensile strength appropriate for Apparatus; (b) unfinished perimeter walls (including windows, window frames, and doors); (c) unfinished ceilings; (d) finish of the restrooms; (e) closets for telephone and electrical systems (but not the systems themselves); (1) Building mechanical, electrical, and plumbing systems within the Building core only; (g) interior core walls; (h) standard fire sprinkler protection on each floor; (i) any code - required items relating to the other elements of the Base Building Work, such as exit signs, speakers, fire doors, and any other life- safety support system for each floor; and 0) dry wall and tape of interior columns; (iv) Installation of improvements (the "ACFD Improvements ") in the Building in accordance with the Final Plans; (v) Site improvements, including paving and landscaping in accordance with the Final Plans. 3. Plans. (a) City and ACED will approve in writing plans for completion of the Scope of Work (the "Plans ") and an estimate of the Total Project Cost. Upon agreement by City 1904210.4 37 MAINTENANCE FACILITY USE AGREEMENT and ACED on the Plans, a true and correct copy of the Plans will be incorporated into the Agreement by execution of a Memorandum of Plans, substantially in the form attached hereto as Exhibit B -1. The approved Plans shall be attached to the Memorandum of Plans which, for purposes of the inclusion of the Plans only the Memorandum of Plans, attached hereto as Exhibit B -1, can be executed by the ACED Chief and the City Manager. The Total Project Cost estimate is attached to this Improvement Agreement as Exhibit B -2 which is incorporated herein by this reference. (b) City and ACED shall cooperate in good faith to finalize the Plans, without delay. ACED shall fully cooperate by providing City, its architects, engineers, and contractors with timely information and approvals of plans, drawings, and specifications. Any acts by City or ACED to delay or otherwise act negligently or in bad faith in approving the Plans and/or cooperating with each other in the design and construction of the ACED Improvements shall result in a Party Delay (as hereinafter defined) under this Improvement Agreement. (c) City and ACED acknowledge that the Plans may not depict certain structural elements of the Building and/or various elements of the Building systems that may result in material modifications to the final plans and specifications for the ACED Improvements (collectively "Structural Modifications "). Furthermore, any final plans and specifications for the construction of the ACFD Improvements may require modification to account for the requirements of building codes and other legal requirements of applicable governmental entities, including, but not limited to, Title 24 and the Americans with Disabilities Act (collectively the "Building Codes "). Within ninety (90) days after the date that the initial Memorandum of Plans is executed, City shall cause to be prepared final plans and specifications in substantial conformity with the Plans taking into account (i) Structural Modifications, (ii) the requirements of the Building Codes, (iii) other modifications resulting from physical constraints of the Premises, and (iv) modifications requested by ACED and consented to by City, which consent shall not be unreasonably withheld (the "Final Plans "). Upon agreement by City and ACED on the Final Plans, a true and correct copy will be attached to this Improvement Agreement by execution of a second Memorandum of Plans, executed by the ACED Chief and City Manager substantially in the form attached hereto as Exhibit B- 1. ACED agrees that, in addition to other factors and considerations City may take into account, it shall not be unreasonable for City to withhold its consent to any requested modifications to the Plans or the Final Plans (i) if such requested modifications would not comply with the Building Codes, (ii) if such requested modifications would unreasonably delay the completion of the ACED Improvements beyond the Scheduled Completion Date, or (iii) if such requested modifications would cause an undue burden on the architect, the contractor, the subcontractors, or City's personnel. (d) Total Project Cost shall include, without limitation, all architectural and engineering fees and costs incurred in connection with completion of the Scope of Work as depicted on the Final Plans. Total Project Cost shall also include any and all architectural and engineering fees and costs incurred as a result of changes in the Final Plans requested by ACED. 1904210.4 38 MAINTENANCE FACILITY USE AGREEMENT 4. Delay (a). The Commencement Date shall not be delayed, postponed, or adjusted due to a Party Delay. No Party Delay or Force Majeure Delay shall be deemed to have occurred unless and until the Party claiming such delay has provided written notice to the other Party specifying the action or inaction that such notifying party contends constitutes a Party Delay or Force Majeure Delay, as applicable. If such action or inaction is not cured within fifteen (15) days after receipt of such notice, then a City Delay, Force Majeure Delay, or ACFD Delay, as set forth in such notice, shall be deemed to have occurred commencing as of the date such notice is received and continuing for the number days the design of or completion of the ACFD Improvements was in fact delayed as a direct result of such action or inaction. (b) The term "Party Delay" as used in this Improvement Agreement shall mean any delay that either party may encounter in the performance of their obligations under this Improvement Agreement because of the other Party's acts or omissions of any nature, whether committed willfully, negligently, intentionally, or otherwise, that result in any delay including any: (i) delay attributable to changes in or additions to the Plans, or to the ACFD Improvements requested by ACFD, as well as any delays caused by a change order issued at the other Party's request; (ii) delay attributable to failure to timely approve any and all Plans for ACFD Improvements; (iii) delay attributable to failure to act in good faith in cooperating with the other Party, its architects, engineers, and contractors in approving Plans; (iv) delay attributable to postponement of any ACFD Improvements at the request of a Party, (v) delay by a Party in furnishing information or giving any other approvals or authorizations within the time limits set forth in this Improvement Agreement, or if no time is set forth for such performance in this Improvement Agreement, then a reasonable time, time being of the essence; (vi) delay attributable to the failure of a Party to pay, when due, any amounts required to be paid by pursuant to this Improvement Agreement or the (vii) any actual delay in the design and/or completion of the Scope of Work resulting from not responding to requests for authorization or approval within the time period provided for response to such request or, if no such time is stated, beyond a reasonable time therefore; (viii) any actual delay in the design and /or completion of ACFD Improvements attributable solely to the acts or failures to act, whether willful, negligent, or otherwise, of a Party, its agents, or contractors, to the extent contrary to the terms hereof. (c) The term "Force Majeure Delay" as used in this Improvement Agreement shall mean any (i) actual delay in the design and /or completion of the Scope of Work attributable to any strike, lockout, or other labor or industrial disturbance (whether or not on the part of the employees of either party hereto), civil disturbance, further order claiming jurisdiction, act of public enemy, war, riot, terrorism, sabotage, blockade, or embargo; (ii) actual delay in the design and /or completion of ACFD Improvements due to changes in any Laws, including the Americans with Disabilities Act; or (iii) actual delay in the design and /or completion of the Scope of Work attributable to terrorist act, lightning, earthquakes, fire, storm, hurricane, tornado, flood, washout, explosion, or any 1904210.4 39 MAINTENANCE FACILITY USE AGREEMENT other similar industry -wide or Building -wide cause beyond the reasonable control of the party from whom performance is required, or any of its contractors, or other representatives. Any prevention, delay, or stoppage due to any Force Majeure Delay shall excuse the performance of the Party affected for a period of time equal to any such prevention, delay, or stoppage, except the obligations of either Party to pay money, including Rent, and all other charges, pursuant to the terms of the Agreement. 5. Changes. ACED shall not request or make any changes or substitutions to the Final Plans without City's prior written approval, which approval shall not be unreasonably withheld; provided, however, that City may disapprove, in its sole and absolute discretion, any such changes or substitutions that: (i) do not conform to applicable governmental regulations or are disapproved by any governmental agency; (ii) require power consumption and/or Building services beyond the level normally provided to other occupants in the Building; (iii) overload the floors; or (iv) in City's reasonable opinion, are of a nature or quality that is inconsistent with City's objectives concerning the appearance or quality of the Building. Any such requested changes or substitutions shall be subject to the provisions of Paragraph 4 above, and may constitute a Party Delay as described in Paragraph 4 above. 6. Total Project Cost. (a) For purposes hereof, "Total Project Cost" shall include, without limitation, the following: (i) all design fees, engineering fees, and consultants' fees incurred by City in connection with the design and engineering of all components of the Scope of Work, including the costs of space plans and all plans and specifications; (ii) governmental agency plan check, permit, and other fees; (iii) sales and use taxes; (iv) Title 24 fees; (v) testing and inspection costs; (vi) the cost of materials, labor, and supplies; (vii) the general contractor's overhead and profit; (viii) charges for water, electricity, gas, and HVAC during the construction of the Building and the ACED Improvements; (ix) all other costs expended or to be expended in connection with the construction of the Project, including without limitation, demolition costs, site preparation costs, site improvement costs, and the cost of construction of the Building and the ACFD Improvements; (x) City's administrative and construction management fees, and(xi) City's return on costs equal to four percent (4 %) of all Project costs, as more particularly set forth in Exhibit B -2. (b) If ACED requests any changes or substitutions to the Plans, and City approves such changes or substitutions, and such changes and/or substitutions result in an increase in Total Project Cost, then Base Rent payable under the Agreement shall be adjusted to take into consideration such increased costs. All changes or substitutions shall be made at reasonably competitive prices. (c) City and ACED acknowledge that the costs set forth in Exhibit B -2 are an estimate. The Parties agree that when Total Project Cost is determined, a revised Exhibit BB2 shall be appended to the Memorandum Confirming Commencement Date and Total Project Costs and shall serve as the basis for determination of Base Rent. 1904210.4 40 MAINTENANCE FACILITY USE AGREEMENT 7. Standards for Performance of the Work. City shall cause the Improvements to be constructed in a good and workmanlike manner, free from design, material, and workmanship defects in accordance with the Final Plans and all Applicable Laws. 8. Inspection and Punchlist. ACFD's representative shall have the right to enter the Premises at all reasonable times for the purpose of inspecting the progress of construction of the Improvements; provided however, during construction of the Project, ACFD shall not enter the Premises unless accompanied by an authorized agent of City. City shall notify ACFD when the Improvements are substantially complete. On receipt of such notice, ACFD's representative, City's representative, and the architect shall promptly inspect the Improvements and prepare a written list ( "Punchlist") of any items that are defective, incomplete, or do not conform to the Final Plans, applicable permits or Applicable Laws. 9. ACFD's Work. Any item or work not shown in the Final Plans, including, for example, telephone and data service or furnishings, for which ACFD contracts separately (hereinafter "ACFD's Work "), shall be conducted in such a way as not to hinder, cause any disharmony with, or delay work of improvement in the Building. ACFD shall cause its suppliers and contractors to engage only labor that is harmonious and compatible with other labor working on the Project. In the event of any labor disturbance caused by persons employed by ACFD or ACFD's contractor, ACFD shall immediately take all actions necessary to eliminate such disturbance. At any time any supplier, contractor, workman, or mechanic performing ACFD's Work hinders or delays any other work of improvement on the Property or performs any work that may or does impair the quality, integrity, or performance of any portion of the Building, ACFD shall cause such supplier, contractor, workman, or mechanic to leave the Premises and remove all his tools, equipment, and materials immediately upon written notice delivered to ACFD, and ACFD shall reimburse City for any repairs or corrections to the Project caused by or resulting from the work of any supplier, contractor, workman, or mechanic with whom ACFD contracts as Additional Rent under the Agreement. If requested, ACFD shall provide City with adequate proof of insurance required to be maintained by ACFD pursuant to the terms of the Agreement, prior to commencing any ACFD Work. 10. Completion of Scope of Work. ACFD and City shall review and approve the Project construction schedule prior to commencement of work. 11. Party Representatives. I La ACFD has designated Deputy Chief Demetrious Shaffer, or his designee, to work with City's representatives throughout the period of construction of the ACFD Improvements. In the event of a change in personnel, ACFD shall immediately notify City of its replacement representative. In the event the designated ACFD representative will not be available, due to a vacation or any other extended absence from the office, 1904210.4 41 MAINTENANCE FACILITY USE AGREEMENT ACED shall notify City of an interim ACED representative, and the dates such interim representative shall be ACFD's representative. I Lb City has designated Hernia Lichtenstein, Facility Project Manager, to work with ACFD's representatives throughout the period of construction of the Plan and ACED Improvements. In the event of a change in personnel, City shall immediately notify ACED of its replacement representative. In the event the designated City representative will not be available, due to a vacation or any other extended absence from the office, City shall notify ACED of an interim City representative, and the dates such interim representative shall be City's representative. 12. ACFD's Default. Notwithstanding any provision to the contrary contained in the Agreement, upon the occurrence of an Event of Default on the part of ACFD under the Agreement, or upon a default by ACED under this Improvement Agreement prior to substantial completion of the Project, then (i) in addition to all other rights and remedies granted to City pursuant to the Agreement, City shall have the right to cause any and all engineers, architects, contractors, and any other persons associated with the design or construction of the Project to cease work thereon; and (ii) all other obligations of City under the Agreement and this Improvement Agreement shall be abated until such time as such default is cured in accordance with the terms of the Agreement, or this Improvement Agreement, as applicable. 13. Casualty, Risk of Loss. If the Premises or any portion of the Improvements are damaged or destroyed prior to the date that City notifies ACED pursuant to Section 8 that the Improvements are substantially complete, City shall promptly cause the general contractor to restore the Premises and complete the construction of the Improvements. All proceeds of builder's risk insurance applicable to the loss shall be disbursed in accordance with customary practices of institutional construction lenders as the restoration progresses, and all other costs of completing the Improvements shall be factored in to Base Rent in accordance with Section 1 of this Improvement Agreement. 14. Authority To Sign. Pursuant to Section 17.1 of the Agreement, this Improvement Agreement is executed by the ACED Chief and by the City Manama 15. Counterparts. This Improvement Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. SIGNATURES ON FOLLOWING PAGE (S) 1904210.4 42 MAINTENANCE FACILITY USE AGREEMENT IN WITNESS WHEREOF, the parties have executed this Improvement Agreement as of the Effective Date of the Maintenance Facility Use Agreement. ACFD CITY ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN, Print Name: Title: Alameda County Fire District Chief By: Its: City Manager Attest: City Clerk Approved as to Form: Approved as to Form: Donna R. Ziegler, County Counsel City Attorney By: Senior Deputy County Counsel 1904210.4 43 MAINTENANCE FACILITY USE AGREEMENT Exhibit B -1 MEMORANDUM OF PLANS For MAINTENANCE FACILITY USE AGREEMENT (Scarlett Court) This Memorandum of Plans executed as of , 2012, is a supplement to that certain Maintenance Facility Use Agreement (`Agreement ") entered into effective as of July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation (`City "), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and governed by the Alameda County Board of Directors ( "ACFD "). Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Agreement. City and ACED hereby agree as follows: Attached hereto is a true and correct copy of the Plans for the Permanent Maintenance Facility that is the subject of the Agreement. The Plans are hereby incorporated into the Agreement. Pursuant to Section 3 of the Improvement Agreement (Exhibit B to the Agreement), and and Section 17.1 of the Agreement, this Memorandum of Plans is executed by the ACED Chief and by the City Manager. IN WITNESS WHEREOF, this Memorandum of Plans is hereby executed as of the date first written above. ACFD CITY ALAMEDA COUNTY FIRE DISTRICT, CITY OF DUBLIN, Print Name: Its: City Manager Title Alameda County Fire District Chief Attest: City Clerk Approved as to Form: Approved as to Form: Donna R. Ziegler, County Counsel By: City Attorney Deputy County Counsel 1904210.4 44 MAINTENANCE FACILITY USE AGREEMENT Exhibit B -2 Estimated Costs; Formula for Determining Base Rate ACFD Maintenance Facilitv Rent Anal sis Assumptions Total Building size 18,300 Land Value (City costpsfl $20.17 Agreement Term 20 Rental Adjustment 6.00% Adjustment timing (Years) 2 Project Cost Proforma Land (City Cost Basis) $1,757,210 Building Costs and ACFD Improvements $3,902,000 Indirect Costs $1,086,320 Total Project Cost $6,745,530 Less: ACFD Contribution $3,500,000 Net Ci Project Cost $3,245,530 Agreement Rate Analysis Cost Return on Cost $3,245,530 4.00% Rent Overview(with adi Annual ever 2 r Years 1 -2 $129,821 Years 3 -4 $137,610 Years 5 -6 $145,867 Years 7 -8 $154,619 Years 9 -10 $163,896 Years 11 -12 $173,730 Years 13 -14 $184,154 Years 15 -16 $195,203 Years 17 -18 $206,915 Years 19 -20 $219,330 Total Rent 1904210.4 45 MAINTENANCE FACILITY USE AGREEMENT