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HomeMy WebLinkAboutAgreement - Sharks Ice, LLC - Contract No. 23ADM1274 - Consulting and Reimbursement Agreement (Gilroy Ice Center) - Signed 2022-09-19 -1-4874-8688-0103v1 ALF\04706083 CONSULTING AND REIMBURSEMENT AGREEMENT (Gilroy Ice Center) This CONSULTING AND REIMBURSEMENT AGREEMENT (“Agreement”) is made as of this 19th day of September, 2023 (the “Effective Date”), between the following entities (the “Parties”): “CITY”: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and “CONSULTANT”: Sharks Ice, LLC, having a principal place of business at 525 W. Santa Clara Street, San Jose, California RECITALS A.As of June 20, 2022, CITY and CONSULTANT each approved that certain Non-Binding Term Sheet for an Operating Agreement for Gilroy Ice Center (“Term Sheet”), which sets forth the basic terms and conditions under which the parties expect to work together in good faith to negotiate and draft formal agreements to implement a development project (the “Project”) for the design, permitting, financing, construction and operation of an Ice Center consisting of a 100,000 square foot building with two ice rinks, a restaurant, snack bar, pro shop and ancillary uses; all related FF&E; and a Parking Area with approximately 387 spaces. B.This Agreement constitutes both the Consulting Agreement referenced in Section 6(a) of the Term Sheet and the Reimbursement Agreement referenced in Section 6(b) of the Term Sheet; provided, however, that in the event of any inconsistencies between the Term Sheet and the provisions of this Agreement, the provisions of this Agreement shall control. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on the Effective Date set forth above, and will continue in effect through the completion date of the Project (currently estimated to be June 30, 2026) unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. _______ Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both Parties acknowledge that CONSULTANT is DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -2- 4874-8688-0103v1 ALF\04706083 not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to perform the services assigned to CONSULTANT as described in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Project Schedule”), all as may be modified by the mutual agreement of the Parties. B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above- described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT’S services. C. Employment of Assistants CONSULTANT may, at the CONSULTANT’S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT’S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit “D” (“Payment Schedule”), which provides for a total payment to CONSULTANT in the amount of Two Hundred Seventy Thousand Dollars ($270,000) assuming that the Project proceeds as described in the exhibits to this Agreement. 1. Such total amount shall be subject to reduction in the event of a termination of this Agreement as described in Article 7.F. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -3- 4874-8688-0103v1 ALF\04706083 2. Such total amount may be increased by up to Thirty Thousand Dollars ($30,000), if CONSULTANT and CITY mutually agree to such increased payment in connection with an amendment to this Agreement, subject to Article 9.A and 9.M. B. Invoices CONSULTANT shall submit invoices for all services rendered. CONSULTANT shall also submit to CITY a signed W-9 form certifying CONSULTANT’S Federal Taxpayer Identification Number. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONSULTANT has first provided CITY with a written invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” CITY shall be responsible for all costs and expenses incident to the performance of the tasks assigned to CITY as described in Exhibit “B” (“CITY’S Tasks”). However, if CITY requests and CONSULTANT agrees in writing to provide any technical reports or perform any other of CITY’S Tasks for or on behalf of CITY, then the costs and expenses incident to such work shall be deemed “direct expenses” that are reimbursable by CITY pursuant to Exhibit “A.” ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees (collectively, the “CITY Parties”) from and against any and DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -4- 4874-8688-0103v1 ALF\04706083 all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees (collectively, “Claims”), to the extent arising out of any injury, disability, or death of any of CONSULTANT’S employees. C. Indemnification of Liability, Duty to Defend To the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless the CITY Parties against any and all Claims, to the extent arising or resulting directly or indirectly from any willful or negligent acts or omissions of CONSULTANT or CONSULTANT’S officers, representatives, agents and employees (collectively, the “CONSULTANT Parties,”) including all Claims relating to the injury or death of any person or damage to any property. In no event, however, will CONSULTANT be responsible for any special, incidental, indirect, or consequential damages (including without limitation loss of profits, loss of opportunity, or loss of goodwill) incurred by CITY as a result of CONSULTANT’S actions or omissions. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement, the following types of insurance: 1. Commercial General Liability insurance covering all of the CONSULTANT Parties, for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof, with minimum limits of $2,000,000 each occurrence; and 2. Business Auto insurance covering any owned and non-owned automobiles used in pursuit of performing CONSULTANT’S services, with a minimum combined single limit coverage of $1,000,000 per occurrence. As a condition precedent to CITY’S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Commercial General Liability policy referred to in above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT’S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT’S behalf; DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -5- 4874-8688-0103v1 ALF\04706083 • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers’ compensation insurance on behalf of CONSULTANT. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of CITY CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT’S duties under this Agreement. CITY also agrees perform, at its cost, CITY’S Tasks as set forth in Exhibit “B” within the time periods described in Exhibit “C,” all as may be modified by the mutual agreement of the Parties. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT’S duties or obligations under this Agreement. C. Indemnification of Liability, Duty to Defend To the fullest extent permitted by law, CITY shall defend, through counsel approved by CONSULTANT (which approval shall not be unreasonably withheld), indemnify and hold harmless the CONSULTANT Parties against any and all Claims to the extent arising or resulting directly or indirectly from any willful or negligent acts or omissions of the CITY Parties, including all Claims relating to the injury or death of any person or damage to any property. In no event, however, will CITY be responsible for any special, incidental, indirect, or consequential damages (including without limitation loss of profits, loss of opportunity, or loss of goodwill) incurred by CONSULTANT as a result of CITY’S actions or omissions. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONSULTANT’S Business/ Death of CONSULTANT. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT’S business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit “A,” Subsection V.J., no later than thirty (30) days after CITY’S receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -6- 4874-8688-0103v1 ALF\04706083 B. Termination by CITY for Default of CONSULTANT Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT’S failure to professionally and/or timely perform any of the services contemplated by this Agreement, and CONSULTANT does not take meaningful steps to cure such failure within thirty (30) days of written notice from CITY. 2. CONSULTANT’S breach of any of its representations, warranties or covenants contained in this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Termination for Failure to Complete CITY’S Tasks If (i) CITY fails to perform any of CITY’S Tasks as described in Exhibit “B” and when required pursuant to Exhibit “C” and CITY does not take meaningful steps to cure such failure within thirty (30) days of written notice from CONSULTANT, or (ii) if the City Council does not approve all of the Project Documents by September 30, 2025, or (iii) if for any other reason the Parties mutually determine that the Project will not be constructed, then in any such event either CITY or CONSULTANT, at its option, may terminate this Agreement by giving written notice to the other Party. As used herein, the term “Project Documents” means and includes the following: (i) a design-build contract for the construction of the Project; (ii) a lease agreement between CITY and CONSULTANT for the operation of the completed Ice Center; (iii) all documents required to obtain taxable municipal revenue bond financing to fund the “Project Costs” and “Finance Costs” as defined in Exhibit “E”; and (iv) a Memorandum of Understanding (“MOU”) between CITY and CONSULTANT describing the steps that CITY will take to ensure that funding will be available when needed to provide “Support Services” as defined in Exhibit “E”. E. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT’S duties by any new CONSULTANT hired by the CITY to complete such services. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -7- 4874-8688-0103v1 ALF\04706083 F. Payment after Termination CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of any termination notice given by either Party, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth on Exhibit “D.” ARTICLE 8. REIMBURSEMENT AGREEMENT FOR DESIGN FEES A. Payment of Design Fees As provided in the Term Sheet, and as further described in Paragraph A.1.(c) of Exhibit “B” to this Agreement, CITY will enter into an Architectural Services Agreement (“ASA”) with Perkins + Will (the “Design Architect”) for the preparation of documents that will be used as the basis of design for bidding by design-build contractors on the Project (the “Design Development Documents”). It is anticipated that the fees payable to the Design Architect for such work (the “Design Fees”) will total $225,000, payable at the rate of $45,000 per month for 5 months. CITY and CONSULTANT will each pay 50% of the Design Fees as and when they become due under the ASA, as follows: 1. Following the Effective Date of this Agreement, CITY will send CONSULTANT an invoice for $112,500, which is 50% of the total Design Fees. CONSULTANT will advance said sum to CITY within 30 days following the receipt of such invoice. CITY will hold such amount in a restricted fund, to be used solely for the payment of the Design Fees under the ASA. 2. Following receipt and approval of each monthly invoice from the Design Architect, CITY will pay the full amount of such invoice, drawing 50% of such payment from the CITY’S general fund (or other funding source) and 50% from the restricted fund established by the payment from CONSULTANT. 3. Any architectural fees related to optional additional services (such as transition coordination with the design-build contractor) will not be included in the Design Fees for which CONSULTANT advances funds to CITY. Rather, such additional fees will be paid for solely by CITY out of the proceeds of the bond financing or other funding sources. B. Reimbursement of Design Fees If the Project is constructed, the full amount of the Design Fees paid by the Parties shall be included in the Project Costs and reimbursed to CITY and CONSULTANT (in their proportionate shares) out of the bond proceeds, as part of the first disbursement request. If for any reason this Agreement is terminated pursuant to Article 7.C or Article 7.D above, then CITY shall reimburse CONSULTANT the full amount of the Design Fees advanced by CONSULTANT (i.e., $112,500). Such payment shall be due and payable within thirty (30) days after CITY’S receipt of an invoice for such amount from CONSULTANT. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -8- 4874-8688-0103v1 ALF\04706083 C. Interest If either Party fails to make any payment that is due to the other Party under this Agreement as and when such payment is due, such delinquent payment shall bear interest at the rate of ten percent (10%) per annum, from the due date until payment in full. ARTICLE 9. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both Parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. CONSULTANT also agrees to comply with all DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -9- 4874-8688-0103v1 ALF\04706083 state and local laws regarding payment of prevailing wages, to the extent they may apply. CONSULTANT will defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY from and against any and all claims alleging any violation of state prevailing wage laws related to or arising from CONSULTANT’s services under this Agreement. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.J. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -10- 4874-8688-0103v1 ALF\04706083 K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. M. Approval by CITY Any approval, consent or agreement by the CITY under this Agreement may be given by the CITY Administrator, without the necessity for an action by the City Council, provided that such approval, consent or agreement (i) does not materially increase CITY’S other obligations or liabilities under this Agreement; and (ii) does not materially decrease CITY’S benefits under this Agreement. Notwithstanding the foregoing, the City Administrator may, in his sole and absolute discretion, elect to bring any such approval, consent or agreement to the City Council for action. N. Limitation on Monetary Damages Neither CITY nor CONSULTANT shall be liable to the other Party for any money damages relating to or arising out of any violation or breach of its obligations under this Agreement; provided, however, that CONSULTANT shall have the right to seek money damages against CITY for CITY’S failure to pay any sums that are to be paid or reimbursed to CONSULTANT by CITY under this Agreement. In no event, however, will CITY be responsible for any special, incidental, indirect, or consequential damages (including without limitation loss of profits, loss of opportunity, or loss of goodwill) incurred by CONSULTANT as a result of CITY’S actions or omissions in failing to pay such sums. [Signatures appear on next page.] DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF -11- 4874-8688-0103v1 ALF\04706083 [Signatures to Consulting and Reimbursement Agreement] Executed at Gilroy, California, on the date and year first above written. CONSULTANT: CITY: SHARKS ICE, LLC, a Delaware limited liability company CITY OF GILROY, a Municipal corporation By: By: Name: Jon Gustafson Name: Jimmy Forbis Title: Senior Vice President Title: City Administrator Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF A-1 4874-8688-0103v1 ALF\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign Jon Gustafson, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. CITY acknowledges that CONSULTANT is not a licensed architect, engineer, or contractor, and that the Services do not require that CONSULTANT hold a professional license of any type. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated CITY contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Jimmy Forbis shall be the designated CITY contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.J. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, CITY shall so inform CONSULTANT within this two (2) week period. III. PROJECT SCHEDULE The schedule for performance and completion of the Services will be consistent with the Project Schedule set forth in the attached Exhibit “C” (as may be modified by the mutual agreement of the Parties). IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF A-2 4874-8688-0103v1 ALF\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications and skills necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT’S representations and warranties regarding its skills and qualifications. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by persons engaged in the same type of work on similar projects in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement; provided, however, that CONSULTANT’S review and comments on any plans and specifications, technical reports, public works contract documents, financing documents, or other documents that are prepared by (or under the supervisions of) a licensed professional shall create no responsibility or liability on the part of CONSULTANT for any errors or omissions in connection therewith. CONSULTANT also shall not be responsible for the accuracy of any project or technical information provided by the CITY. C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT for direct expenses in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT for direct expenses, all of which shall be made available to CITY at the CITY’S offices within five (5) business days after CITY’S request. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF A-3 4874-8688-0103v1 ALF\04706083 D. CONFIDENTIALITY OF CERTAIN INFORMATION In connection with the Parties’ dealings with each other under this Agreement, a party (“Discloser”) may disclose to the other Party (“Recipient”) information pertaining to Discloser’s financial affairs, business dealings, intellectual property, private business data or other proprietary information that Discloser identifies as confidential (“Confidential Information”). Recipient may use Confidential Information only in connection with the Project, and for no other purpose. Recipient must use a reasonable degree of care to protect Confidential Information and to prevent any unauthorized use or disclosure of Confidential Information. Recipient may share Confidential Information with its employees, directors, agents or third party contractors who need to know it, provided that they have agreed in writing to keep such information confidential. Confidential Information does not include information that: (a) was known to Recipient without restriction before receipt from Discloser; (b) is publicly available through no fault of Recipient; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; or (d) is independently developed by Recipient. A Recipient may disclose Confidential Information when compelled to do so by law if it provides reasonable prior notice to Discloser, unless a court orders that the Discloser not be given notice. The Parties acknowledge that the CITY is subject to public disclosure laws, including the California Public Records Act, that may require disclosure by the CITY without any court process. E. USE OF NAMES. CONSULTANT shall not use CITY’S name or insignia, or distribute publicity pertaining to this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. CITY shall not use CONSULTANT’S name or insignia, or distribute publicity pertaining to this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CONSULTANT. F. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. All contracts with design professionals, contractors, construction managers, third party inspectors, and other professionals retained for the Project shall be in the name of the CITY and executed by an authorized representative of the CITY following due approval by the CITY. G. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit “A”. CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONSULTANT shall not be responsible for, and CITY shall indemnify CONSULTANT from, damages resulting from the use of said DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF A-4 4874-8688-0103v1 ALF\04706083 material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. H. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. I. COVENANT AGAINST CONTINGENT FEES. CONSULTANT warrants that it has not employed or retained any company or person, other than a bona fide employee working for CONSULTANT, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach o r violation of this warranty, CITY shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. J. NOTICES. Notices are to be sent as follows: CITY: Jimmy Forbis, City Administrator City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Jon Gustafson, Senior Vice President Sharks Ice, LLC 525 W. Santa Clara Street San Jose, CA 95113 DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-1 4874-8688-0103v1 ALF\04706083 EXHIBIT “B” SCOPE OF SERVICES This Exhibit “B” is attached to and made a part of the Consulting and Reimbursement Agreement (“Consulting Agreement”) between the City of Gilroy (“City”) and Sharks Ice, LLC (“Sharks Ice” or “Consultant”). Capitalized terms not defined herein shall have the meanings given in the Consulting Agreement or, if indicated, the Term Sheet referenced in the Consulting Agreement. A. DESIGN DEVELOPMENT DOCUMENTS 1. City is responsible for the following, at its cost except as noted: (a) Prepare an Architectural Services Agreement (“ASA”) between the City and Perkins + Will (the “Design Architect”) for the preparation of concept design, schematic design and design development documents and related performance specifications (collectively, “Design Development Documents”) as needed to enable the City to obtain proposals from Contractors for the construction of the Project on a design- build basis. (i) Per the City’s standard contract provisions, the City will own the Design Development Documents, subject to payment by City as required under the ASA. (ii) Obtain City Council approval for the ASA, after it has been approved by the Design Architect, Sharks Ice and City staff. (b) Provide the Design Architect with any technical reports or information that may be needed by the Design Architect to prepare the Design Development Documents. (i) This will include a topographical survey/site plan, a description of any special requirements for City-owned buildings, and other technical code requirements for this Project (to the extent such requirements differ from standard California Codes). (c) Pay all fees to the Design Architect as and when required under the ASA. (i) It is anticipated that the Design Architect’s work will take approximately 5 months (20 weeks), and fees will be payable at the rate of $45,000 per month for a total of $225,000 in fees (“Design Fees”). (ii) Sharks Ice will advance 50% of the Design Fees to the City, as described below. (iii) Any architectural fees related to optional additional services (such as transition coordination with the Contractor) will not be included in the Design Fees for which Sharks Ice provides a 50% advance; rather, such additional fees will be paid for solely by the City out of the proceeds of the Bond Financing or other sources. (d) Provide comments and other input to Design Architect on a timely basis following City’s receipt of the Design Development Documents at each phase of the work (concept design, schematic design and design development). DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-2 4874-8688-0103v1 ALF\04706083 (i) City will attend meetings with Sharks Ice and Design Architect, as scheduled by Sharks Ice. 2. Sharks Ice is responsible for the following, at its cost except as noted: (a) Coordinate communications between the City and Design Architect as needed to negotiate and finalize the ASA. (b) Receive and address any requests for information from the Design Architect regarding Project requirements and parameters, technical information needed from the City, and the like. (c) Provide the Design Architect with the specifications and requirements for the Ice Center desired by Sharks Ice. (d) Manage applications for payment and other administrative matters under the ASA. (i) As described in Article 8 of the Consulting Agreement, within 30 days following receipt of an invoice from City, Sharks Ice will advance the City $112,500 in cash (50% of the Design Fees). The City’s use of said funds will be restricted to making 50% of each payment as and when it is due under the ASA. (ii) Sharks Ice will review and approve the Design Architect’s applications for payment before they are submitted to the City. (e) Provide comments and other input to Design Architect on a timely basis following receipt by Sharks Ice of the Design Development Documents at each phase of the design work (concept design, schematic design and design development). (i) Sharks Ice will schedule meetings at mutually convenient times (typically by video conference) with the City and Design Architect to discuss comments to the Design Development Documents. (ii) At the request of the City, Sharks Ice will prepare a slide deck of selected Design Development Documents and related information for presentation to the City Council or other public meeting. B. PROCUREMENT OF DESIGN BUILD CONTRACT 1. City is responsible for the following, at its cost except as noted: (a) Prepare and issue a Request for Qualifications (“RFQ”) to short-list design-build entities (“Contractors”) qualified to submit proposals for the Project. (i) City will oversee the process of selection of qualified Contractors. (ii) This process should be completed while the Design Development Documents are being prepared. (b) Prepare a form of Design-Build Contract that includes all of the City’s required terms and conditions, including the City’s conflict of interest policy, bond requirements, insurance requirements, etc. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-3 4874-8688-0103v1 ALF\04706083 (i) This should also be done while the Design Development Documents are being prepared. (c) Prepare and issue a Request for Proposals (“RFP”) to all previously-qualified Contractors once the Design Development Documents have been completed. (i) City will oversee the process of awarding the Design-Build Contract, including obtaining approval from the City Council. (ii) The RFP will specify that the Design-Build Contract will be awarded on the basis of the best value, not the lowest bid. (d) Finalize the Design-Build Contract and issue notices to proceed (“NTP”) as appropriate. (i) The City may (but is not required) to issue a NTP with respect to design, estimating, value engineering and other pre-construction services prior to the closing of the Bond Financing and Lease Agreement, so that the contractor can provide information needed for the Project Budget and can expedite the design phase of its services. (ii) The City may not issue a NTP with respect to on-site construction work until the closing of the Bond Financing and the Lease Agreement (the “Closing”) has occurred. 2. Sharks Ice is responsible for the following, at its cost except as noted: (a) Provide City with sample forms of RFQ’s, contracts and RFP’s that were used for the Sharks Ice San Jose Expansion Project, to assist in City’s preparation of the necessary documents. (i) Identify, for inclusion in the RFQ and RFP, a list of the specific type of Design-Build Subcontractors and other consultants that will need to be part of the Contractor’s Design-Build team, such as ice skid engineering, civil engineering, soils engineering, structural engineering, HVAC, electrical, plumbing, metal building, fire/life safety, LEED, lighting, AV/scoreboard, etc. (b) Review and comment on the RFQ, the form of Design-Build Contract, and the RFP, and actively participate in the selection of short-listed Contractors and the award of the Design-Build Contract. C. BOND FINANCING AND LEASE AGREEMENT 1. City is responsible for the following, at its cost except as noted: (a) Provide input to Sharks Ice as necessary for the preparation of a Project Budget, which will include estimates of the Project Costs as defined in Exhibit “E”. (i) The Project Costs include the services of a third party construction manager (typically someone with a general contractor’s license or other construction expertise), the selection of which will be subject to the reasonable approval of the City. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-4 4874-8688-0103v1 ALF\04706083 (ii) The Project Costs do not include the Support Services as defined in Exhibit “E”, which will be provided by the City at its cost. (b) Develop an overall Finance Plan and budget for the Finance Costs as defined in Exhibit “E”, as well as the projected annual debt service. (c) Work with Sharks Ice on the drafting of a Lease Agreement, consistent with the Term Sheet and the Finance Plan. (d) Create a separate legal parcel for the ice facility (the “Premises” under the Lease Agreement), including all associated parking areas and other site improvements. (i) Obtain and record all necessary easements appurtenant to the Premises for ingress and egress, utilities, drainage, and the like. (e) Obtain City Council approval for the Bond Financing, Lease Agreement and all associated documents, and satisfy all conditions necessary for the Closing of the Bond Financing and Lease Agreement (which should be done concurrently). 2. Sharks Ice is responsible for the following, at its cost except as noted: (a) Develop a Project Budget, in consultation with the City and the selected Contractor (assuming the City has issued a NTP to the Contractor to commence pre- construction services). (b) Provide input to the City on the Finance Plan and the budget for the Finance Costs. (c) Prepare the initial draft of the Lease Agreement (which will be based in large part on the Lease Agreement for Sharks Ice at San Jose) and work with the City to make revisions as necessary to achieve a mutually acceptable agreement. (d) Cooperate with the City’s efforts to obtain approval for the Bond Financing and Lease Agreement, and to achieve a concurrent Closing for the same. D. DESIGN-BUILD WORK 1. City is responsible for the following, at its cost except as noted: (a) Provide the Contractor with all property condition reports as may be required in connection with the preparation of construction drawings and specifications (“Construction Documents”), such as soils reports, topographical and/or title surveys, title report, environmental site assessment, biological survey, etc. (b) Prepare, negotiate and obtain City Council approval of a Construction Management Agreement with a third party construction manager selected by Sharks Ice and approved by the City. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-5 4874-8688-0103v1 ALF\04706083 (c) Appoint a City employee as the City’s representative to attend weekly Project meetings, and provide comments, input and assistance during those meetings as appropriate. (d) Prepare and submit building permit applications (or the equivalent) as may be required for City-owned projects. (e) Perform all necessary plan check and inspection services (except that special testing and inspection services typically performed by third party inspectors shall be paid from the Project Funds as a Project Cost). (f) Submit applications (and pay all fees) necessary to obtain any required development clearances by third party governmental agencies, such as for the Habitat Conservation Plan. (g) Construct any public improvements required by the applicable EIR Mitigation Monitoring and Reporting Program (MMRP), such as traffic signals, traffic lanes, and other street improvements, as specified in a Memorandum of Understanding (MOU) between the Parties to be drafted during and coordinated with the preparation of the Construction Drawings. (h) Make improvements to off-site utility main lines, including any upsizing or extensions that may be needed (also to be specified in the MOU). (i) Promptly process all Applications for Payment under the Design-Build Contract, so as to ensure that the Contractor and its Subcontractors are paid within the timeframes required by prompt payment laws. Funding for such payments will be obtained via disbursements from the Project Fund established by the Bond Financing. (j) Promptly issue a Certificate of Occupancy, Notice of Completion, and other similar documents upon satisfaction of the legal requirements therefor. (k) Participate in review and discussion of all other aspects of the Project, including (but not limited to) all matters listed in Paragraph D.2 below, and perform all functions of the “Owner” in connection therewith. 2. Sharks Ice is responsible for the following, at its cost except as noted: (a) Select a third party construction manager (to be approved by City), and assist in negotiation of a Construction Management Agreement between the City and the construction manager. (b) Advise City regarding additional services by the Design Architect as may be needed to review the RFP and/or coordinate transition of design work to the Contractor. (c) Review and comment on Construction Documents. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-6 4874-8688-0103v1 ALF\04706083 (i) Review by Sharks Ice would be limited to issues regarding overall design and aesthetics, functionality, and operational matters. (ii) Sharks Ice will also arrange for and oversee contracts with third party technical review CONSULTANTs (such as code compliance, ADA, LEED, etc.) (d) Review and comment on the Contractor’s bid packages for key subcontractors, and oversee bidding and bid analysis (i) This will include (but not be limited to) ice rink engineering, structural, soils, M/E/P, lighting, utilities, smoke control, civil engineering, trash, landscaping, signage, audio/video, scoreboard, and security. (e) Review and comment on Guaranteed Maximum Price (“GMP”), and prepare Project Budget updates during the course of construction (i) Sharks Ice will review final Subcontractor line items, as well as General Conditions, Contractor’s Fee, and Contractor’s Insurance costs. (ii) Sharks Ice will also review and comment on Allowances, Contingencies, Alternates, and the like. (f) Review and comment on initial Project Schedule, and prepare Project Schedule updates during the course of construction. (i) Sharks Ice will make recommendations to the City regarding the purchase and procurement of long lead items. (ii) Sharks Ice will work with the construction team to address any delays and ascertain ways to make up time for such delays. (g) Review and comment on certificates of insurance, payment and performance bonds, licenses, employment records, Department of Industrial Relations (DIR) registrations, and other documents required from Contractor and its Subcontractors. (h) Coordinate with the City’s risk manager regarding the purchase (as a Project Cost) of Builder’s Risk insurance for the duration of the Project. (i) Review and comment on the Project’s site logistics plan, safety plan, environmental mitigation plans (such as noise and dust control), etc. (j) Schedule and manage weekly Owner/Architect/Contractor meetings, and ensure that meeting minutes are distributed to all team members and applicable City authorities. (k) Review and comment on contracts between City and third party testing and inspections CONSULTANTs (as outlined in the Construction Documents and as required by the building code). (l) Review and comment on purchase agreements between the City and vendors for the delivery and installation of moveable furniture, supplies and equipment. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF B-7 4874-8688-0103v1 ALF\04706083 (m) Review and comment on requests for Change Orders, and advocate for the Owner’s (City’s) position on any disputes regarding requested increases in costs or time. (n) Review and comment on all Applications for Payment, and follow-up re prompt payment by City. (o) Oversee preparation of punch lists, and monitor completion of all outstanding construction items. (p) Monitor Contractor’s delivery of all guarantees, warranties, lien releases, as-built drawings, and other close-out documents as required by the Contract Documents. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF C-1 4874-8688-0103v1 ALF\04706083 EXHIBIT “C” PROJECT SCHEDULE Month Completion Date Design Development Documents Procurement of Design-Build Contract Bond Financing and Lease Agreement Design-Build Work 1 Sept 2023 Negotiate/Sign Consulting Agreement (with Council Approval) 2 Oct 2023 Negotiate/Sign ASA (with Council Approval) 3 Nov 2023 Concept Design (4 wks) Prepare RFQ (with Council Approval) (4 wks) 4 Dec 2023 Schematic Design (6 wks) Issue RFQ and collect responses (4 wks) 5 Jan 2024 Select short-listed contractors (2 wks) 6 Feb 2024 Design Development and BOD Narrative (8 wks) Prepare preliminary Project Budget and Finance Plan (4 wks) 7 Mar 2024 Refine Design Development Document Package (2 wks) Prepare form of Design-Build Contract (8-12 wks) Prepare form of Lease (8-12 wks) 8 Apr 2024 Prepare and Issue RFP to Qualified Contractors (4 wks) Prepare draft MOU re City’s off-site construction obligations DPW to prepare drawings for off-site improvements (utility work and MMRP traffic mitigation) 9 May 2024 Design Architect to coordinate transition of design work to Contractor Award Contract (with Council Approval) (4 wks); issue NTP for pre-construction work Revise Project Budget and Finance Plan; circulate first drafts of Financing Documents Begin preparation of Construction Drawings 10 June 2024 Circulate first draft of Preliminary Official Statement 11 July 2024 Submit credit package to rating agency and Bond insurers Circulate 25% CD’s (8 wks) 12 Aug 2024 Credit rating presentation Issue bid requests for all major subs (8 wks) 13 Sept 2024 Circulate draft staff report for review and comment Circulate 50% CD’s (8 wks) 14 Oct 2024 Prepare Guaranteed Maximum Price (GMP) amendment to Design-Build Contract Finalize Project Budget, Financing Documents and Lease; post staff report Review bids and select major subs 15 Nov 2024 Obtain Council approval of MOU and GMP, including advance purchase of long-lead equipment Obtain credit rating; price Bonds; Council Approval for Bond Financing and Lease Complete 100% CD’s and submit for permit (8 wks) 16 Dec 2024 Release Final Official Statement; circulate and execute closing documents 17 Jan 2025 Issue NTP for on-site construction work Close of escrow on Bond Financing and Lease Obtain building permit (8 wks) 18 Feb 2025 Begin construction 19 Mar 2024 20 Apr 2025 21 May 2025 DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF C-2 4874-8688-0103v1 ALF\04706083 22 June 2025 23 July 2025 24 Aug 2025 25 Sept 2025 26 Oct 2025 27 Nov 2025 28 Dec 2025 29 Jan 2026 30 Feb 2026 31 Mar 2026 Complete construction (14 months) 32 Apr 2026 33 May 2026 Complete Punchlist and Close-Out (2 months) 34 June 2026 Notice of Completion is recorded DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF D-1 4874-8688-0103v1 ALF\04706083 EXHIBIT “D” PAYMENT SCHEDULE Month Payment Date Amount of Payment 1 Sept 1, 2023 $-0- 2 Oct 1, 2023 $-0- 3 Nov 1, 2023 $15,000 4 Dec 1, 2023 $15,000 5 Jan 1, 2024 $15,000 6 Feb 1, 2024 $15,000 7 Mar 1, 2024 $15,000 8 Apr 1, 2024 $15,000 9 May 1, 2024 $15,000 10 June 1, 2024 $15,000 11 July 1, 2024 $15,000 12 Aug 1, 2024 $15,000 13 Sept 1, 2024 $15,000 14 Oct 1, 2024 $15,000 15 Nov 1, 2024 $15,000 16 Dec 1, 2024 $15,000 17 Jan 1, 2025 $15,000 18 Feb 1, 2025 $15,000 19 Mar 1, 2025 $15,000 20 Apr 1, 2025 $15,000 21 May 1, 2025 $-0- 22 June 1, 2025 $-0- 23 July 1, 2025 $-0- 24 Aug 1, 2025 $-0- 25 Sept 1, 2025 $-0- 26 Oct 1, 2025 $-0- 27 Nov 1, 2025 $-0- 28 Dec 1, 2025 $-0- 29 Jan 1, 2026 $-0- 30 Feb 1, 2026 $-0- 31 Mar 1, 2026 $-0- 32 Apr 1, 2026 $-0- 33 May 1, 2026 $-0- 34 June 1, 2026 $-0- Total Payments $270,000 DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF E-1 4874-8688-0103v1 ALF\04706083 EXHIBIT “E” DEFINED TERMS As used in the foregoing Agreement, the following terms shall have the meanings given below: The term “Project Costs” includes the following costs for the design, permitting and construction/ installation of the Ice Center, FF&E, and Parking Area improvements: (i) Design, engineering, LEED consulting, and other consulting services, including the payments to CONSULTANT and to the Design Architect as described in the Agreement; (ii) Compliance with applicable MMRP conditions set forth in the EIR (air quality control measures for construction activities; LEED Silver building standards; on-site landscaping within stream setback buffer; and storm drainage plan); (iii) Water, sanitary sewer and other utility connection fees; (iv) Third party special testing and inspection services; (v) Grading, utility trenching and installation of utility facilities; (vi) Landscaping and arborist services; (vii) Construction management services; (viii) Premiums for insurance and bonds required by the Contract Documents; (ix) Labor, supervision, materials, supplies, hauling, and temporary facilities; (x) Purchasing and installing furniture, fixtures, and equipment (“FF&E”); and (i) Building and site signage. The term “Finance Costs” includes all costs related to the underwriting, issuance and sale of the revenue bonds, including for the following items: (i) Bond Counsel/Disclosure Counsel fees and expenses; (ii) Municipal advisor fees and expenses; (iii) Rating agency fees; (iv) Trustee fees and expenses; (v) The establishment of a Capitalized Interest Fund; (vi) The establishment of a Debt Service Reserve Fund, if required; and (vii) Underwriter’s discount, if applicable. The term “Support Services” includes all other services and work paid for or provided by CITY related to the Project, such as the following: (i) Planning applications and approvals, including necessary CEQA clearance; (ii) City Charter and Ordinance amendments to allow design-build Project delivery; (iii) Habitat Conservation Plan fees, traffic mitigation fees, in-lieu fees, and other development fees or exactions; (iv) Preparation and bidding of Construction Contract documents; (v) Building permit applications and inspections; (vi) Construction of public improvements required by the MMRP, such as traffic signals, traffic lanes, and other street improvements; (vii) Improvements to off-site utility main lines, including any upsizing or extensions that may be needed; (viii) Economic feasibility studies; and (ix) Survey work to establish the boundary lines of the subject parcel and/or any required utility easements. DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF City of Gilroy Agreement/Contract Tracking Today’s Date: October 11, 2023 Your Name: Bryce Atkins Contract Type: Services over $5k - Consultant Phone Number: (408)846-0210 Contract Effective Date: (Date contract goes into effect) 9/19/2022 Contract Expiration Date: 6/30/2026 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) Sharks Ice, LLC Contract Subject: (no more than 100 characters) Consulting and Reimbursement Agreement Contract Amount: (Total Amount of contract. If no amount, leave blank) $270,000 By submitting this form, I confirm this information is complete:  Date of Contract  Contractor/Consultant name and complete address  Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid)  Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached  Taxpayer ID or Social Security # and Contractors License # if applicable  Contractor/Consultant signer’s name and title  City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation DocuSign Envelope ID: 2B3064C4-9807-48A0-9832-471D170847BF