Agenda packet — Concord City Council, May 24, 2022 (part 1 of 3)

1 COUNCILMEMBERS
Dominic D. Aliano, Mayor
Laura M. Hoffmeister, Vice Mayor
Edi E. Birsan
Timothy A. McGallian
Carlyn S. Obringer
Civic Center
1950 Parkside Drive
Concord, CA 94519
www.cityofconcord.org
Regular Meeting of the
Concord City Council/City
Council Sitting as the
Local Reuse Authority
Tuesday,
May 24, 2022
6:30 p.m. - Open Session Council Chamber
1950 Parkside Drive
and Various
telephonic/electronic
locations
NOTICE: Members of the City Council, City staff/consultants, and the public will be able to participate either in-person or remotely via Zoom.

Pursuant to AB 361, the City is authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public. Tonight’s meeting will be conducted both in-person and remotely via Zoom.

How to Watch the Meeting:
Watch on TV on Comcast Channel 28, Wave Channel 29, and U-verse Channel 99 Watch the TV broadcast through the City’s website by following THIS LINK Watching Live Streaming of the meeting by following THIS LINK Join the Zoom webinar by following THIS LINK
How to Submit Public Comments:

Please note that emailed comments will not be read aloud by staff.

Written: All comments received before 3:00 pm the day of the meeting will be posted on the City’s website as “Correspondence” under the relevant agenda item and provided to the City Councilmembers prior to the meeting.
2 Email comments to [email protected].
If you are commenting on a particular item on the agenda, please identify the agenda item number and letter.
If you are commenting on an item not listed on the agenda, please identify your comment as a General Public Comment.

To Participate in Public Comment During the Meeting:

Please note that emailed comments will not be read aloud by staff.

In-Person Comments: Blue Speaker Identification Cards are located near the Council Chamber entrance. Please complete a Speaker Card and give it to the City Clerk prior to the agenda item you wish to speak on and preferably prior to the Council meeting. When the Mayor opens a public comment period, the City Clerk will call speakers to provide comment in the order the Speaker Cards are received. Should you have any questions after consulting the Speaker Identification Card, please contact the City Clerk prior to the start of the Council meeting.

Live Remote Public Comments: Members of the public may submit a live remote public comment via Zoom video conferencing. Download the Zoom mobile app from the Apple Appstore or Google Play. If you are using a desktop computer, you can test your connection to Zoom by clicking here. Zoom also allows you to join the meeting by phone.
Join the meeting at any point, but be sure you are in the meeting prior to the City Council consideration of the item on which you would like to provide comments.

From a PC, Mac, iPad, iPhone or Android:
https://cityofconcord.zoom.us/j/88337868675?pwd=WUhhQ0RqUmpPOFlpMUh3SFlQT1A4Zz09 oWebinar ID: 883 3786 8675
oPasscode: 397207
oBy phone: US: +1 669 900 6833 or +1 346 348 7799 or 1 253 215 8782 Speakers will be asked to provide their name and city of residence, although providing this is not required for participation.
Each speaker will be afforded up to 3 minutes to speak. Speakers will be muted until their opportunity to provide public comment. When called upon to speak, speakers will be promoted to panelists so they have the ability to turn on their cameras so they are visible to the Council and public.

When the Mayor opens a public comment period on the item on which you would like to comment, please use the “raise hand” feature (or press *9 if connecting via telephone) which will alert staff that you have a comment to provide.
3 OPEN SESSION

1. OPENING
Roll Call
Pledge of Allegiance – Councilmember Birsan

2. PUBLIC COMMENT PERIOD
This is a 15-minute Public Comment Period for items within the City Council’s subject matter jurisdiction that are not on this agenda. Each speaker will be limited to approximately three minutes.

State law prohibits the City Council from acting at this meeting on any matter raised during the Public Comment Period. Please see “How to Submit Public Comments” above.

3. CITY COUNCIL CONSENT CALENDAR
The public is entitled to address the City Council on items appearing on the Consent Calendar before or during the City Council’s consideration of the Consent Calendar. Adoption of the Consent Calendar may be made by one motion of the City Council, provided that any Councilmember, individual or organization may request removal of an item from the Consent Calendar for separate consideration.

If a request for removal of an item from the Consent Calendar has been received, the Mayor may defer action on the particular item and place the same on the regular agenda for consideration in any order s/he deems appropriate. Please see “How to Submit Public Comments” above. a. Considering – approval of the minutes from the Meeting of April 12, 2022.

Recommended by the City Clerk.
b. Considering – adoption of Ordinance No. 22-8 entitled, "An Ordinance Amending Concord Municipal Code, Title 12 (Streets & Sidewalks), Chapter

12.15, Street Encroachments, to Add a Moratorium on and Required Enhanced Restoration for Certain Street Cuts within a Five Year Period." Ordinance No. 22-8 was introduced on April 26, 2022, by reading of the title only and waiving further reading. Recommended by the City Clerk.

CEQA: Not a project/exempt under CEQA Guidelines Sections 15060(c)(2), 15061(b)(3), 15378, 15301, 15302, 15303, and/or 15304.
c. Considering – approval of Task Order #2 for LCC Engineering and Surveying, Inc. in the not-to-exceed amount of $90,451 (base agreement of $78,653 plus staff authority to spent up to a contingency of $11,795) for design engineering and related services for Newhall Park Water Quality Improvement (Project No. 2353), and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney. Recommended by the Director of Community Development.

CEQA: Not a project/exempt per and Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2), 15378 and/or 15061(b)(3). 4 d. Considering – the following for Grant Street/East Street Pavement Rehabilitation Project, Project No. 2525: (1) award a construction contract in the amount $5,527,965 to Bay Cities Paving & Grading, Inc.; authorize staff to utilize the available project contingency for contract change orders that become necessary up to 10% of the contract amount; and authorize the Mayor to execute the contract in a form acceptable to the City Attorney. (2) approval of an Agreement for Professional Services with Swinerton Management and Consulting, Inc. in the not-to-exceed amount of $551,091 (base agreement of $500,992 plus staff authority to spend up to a 10% contingency of $50,099) to provide construction management, inspection, and materials testing services; and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney. Recommended by the Director of Community Development.

CEQA: Not a project/exempt per CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061(b)(3), 15273, 15282(j), 15378, 15301, 15302, 15303, 15304, Public Resources Code Section 21065, and/or 21080.19. e. Considering – adoption of a Resolution amending Policy & Procedure 37.4 - Employment of Relatives. Recommended by the Director of Human Resources.

CEQA: Not a project/exempt per Public Resources Code Section 21065, 14 Cal Code Regs. Sections 15060(c)(2), 15060(c)(3), 15378, 15061(b)(2), 15061(b)(3) and/or 15378(b)(4).
f. Considering – the award of a Construction Contract in the amount of $2,102,247 to St. Francis Electric LLC for the Citywide Traffic System Upgrade Project [Project No. 2493] and authorizing Staff to utilize the available project contingency for contract change orders up to 10% of the contract amount; and approving a related budget transfer of $700,000 from Arterial Pavement Holding Account (Project No. 2157), Pavement Maintenance Zone 5J (Project No. 2526), and Off-Site Street Improvement Program (OSIP) Update (Project No. 2541) (Federal HSIP, Gas Tax, OSIP, and Measure V Funds) Recommended by the Director of Community Development.

NEPA: Categorical exclusion per Section 23 CFR 771.117(c)(8).

1. Award of a Construction Contract in the amount of $4,049,949.25 to Redgewick Construction Co. for the Monument Boulevard Class 1 Path [Project No. 2455] and authorizing staff to utilize the available project contingency for contract change orders up to 10% of the contract amount; and authorizing the Mayor to execute the contract in a form acceptable to the City Attorney;

2. Approval of a Professional Services Agreement with Park Engineering in the not-to-exceed amount of $258.424 (base agreement of $234,930.81 plus staff authority to spend up to a 10% contingency of $23,493.19) for construction management, inspection, and materials testing services; and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney; and

3. Approval of a budget transfer in the amount of $300,000from Pavement Maintenance Zone 5J (Project No. 2526) to the Monument Boulevard Class 1 Path (Project No. 2455) to provide for the staff authorized 10% construction contingency. (Federal OBAG 2, Measure V, and Measure J Local Funds) Recommended by the Director of Community Development.

NEPA: Categorical exclusion per Section 23 CFR 771.117(c)(3).

CEQA: Not a project/exempt per CEQA Guidelines Section15060(c), 15061(b)(2), 15061(b)3, 15273, 15282(j), 15378, 15301, 150302, 15303, 15304, Public Resources Code Sections 21065, and/or 21080.19. h. Considering – approval of a lease agreement between the City of Concord and BART for BART’s use of two City-owned parcels located at Sunset Avenue and Sinclair Avenue; and authorizing the City Manager to execute the lease in a form acceptable to the City Attorney. Recommended by the Assistant City Manager.

CEQA: Not a project/exempt per CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061(b)(3), 15273,, 15378, 15301, 15302, 15303, 15304, and/or Public Resources Code Section 21065.

4. CITY COUNCIL/LOCAL REUSE AUTHORITY (LRA) CONSIDERATION ITEMS The public is entitled to address the City Council on items appearing on the agenda before or during the City Council’s consideration of that item. Each speaker will be limited to approximately three minutes. Please see “How to Submit Public Comments” above.

City Council Consideration Item
a. Considering – adoption of a resolution to declare surplus lands and issue Notices of Availability for Town Center II Property (an approximately 3-acre property located at 1765 Galindo Street and bounded by Galindo Street, Concord Boulevard, and Clayton Road) and the Oak Street Project Property (an approximately 4.2-acre property composed of two parcels separated by 6 Mt. Diablo Street and bounded by Galindo Street, Oak Street, and Laguna Street.

CEQA: Not a project/exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c), 15378 and/or 15061(b)(3).

Local Reuse Authority Consideration Item
b. Considering – a requested First Amendment and timeline extension to the Exclusive Agreement to Negotiate (ENA) between the Local Reuse Authority (LRA) and Concord First Partners, LLC regarding the disposition and development of the former Concord Naval Weapons Station (CNWS) and either: (1) denying the request, or (2) granting an ENA extension until June 29, 2022, and directing staff to negotiate an ENA amendment for Council consideration on June 28, 2022.

CEQA: Not a project/exempt under Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c), 15061(b)(3), and/or 15378.

5. CORRESPONDENCE
Correspondence received at the City Council meeting will be listed here on the Annotated Agenda. a. Letter to Senator Min RE: Oppose SB 881 (Min) - May 6, 2022 b. Letter to Assembly Member Holden RE: AB 2170 (Grayson): Residential real property: foreclosure sales - SUPPORT - May 9, 2022

6. REPORTS AND ANNOUNCEMENTS
Closed Session Announcements
City Manager or Staff Reports
Council Reports

7. ADJOURNMENT
Next Meeting: Regular Meeting
Date: 6/7/2022 6:30 PM

NOTICE TO THE PUBLIC
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders which require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you challenge an action taken by the City Council in court, you may be limited by California law to raising only those issues you or someone else 7 raised in the hearing or in a written correspondence delivered to the City Council prior to or at the hearing.

In accordance with the Americans with Disabilities Act and California Law, it is the policy of the City of Concord to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including those with disabilities. If you are disabled and require a copy of a public hearing notice, or an agenda and/or agenda packet in an appropriate alternative format; or if you require other accommodation, please contact the ADA Coordinator Tianjun Cao at (925) 671-3243 or [email protected], at least 24 hours in advance of the meeting. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility.
1 REGULAR MEETING OF THE

CONCORD CITY COUNCIL/CITY COUNCIL

SITTING AS THE LOCAL REUSE

AUTHORITY/CITY COUNCIL SITTING AS THE

CONCORD-PLEASANT HILL HEALTH CARE

DISTRICT

COUNCIL CHAMBER AND VARIOUS

ELECTRONIC LOCATIONS
TUESDAY, APRIL 12, 2022
The Concord City Council met in a regular meeting via various electronic locations at 6:30 p.m. on Tuesday, April 12, 2022, with Mayor Aliano presiding. The pledge of allegiance was led by Vice Mayor Hoffmeister. Minutes follow in abbreviated form per Resolution 3361 and Council Minutes of September 26, 1966.

ROLL CALL

COUNCILMEMBERS PRESENT VIA
VARIOUS ELECTRONIC LOCATIONS: Edi Birsan, Laura Hoffmeister, Tim McGallian, Carlyn Obringer, Dominic Aliano

STAFF PRESENT VIA VARIOUS
ELECTRONIC LOCATIONS: Valerie Barone, City Manager; Susanne Brown, City Attorney; Justin Ezell, Assistant City Manager; Joelle Fockler, City Clerk; Greg Taylor, Director of Information Technology; Kevin Marstall, Director of Community Development; Mark Bustillos, Chief of Police; Karan Reid, Director of Finance; Steve Voorhies, Director of Parks and Recreation; Jasmin Loi, Director of Human
Resources; James Nakayama, Captain; Abhishek Parikh,
Deputy Director of Public Works – Transportation; Bruce Davis, Interim City Engineer; Mindy Gentry, Planning Manager; Bernard Enrile, CIP Manager; Bob Hardie, Facilities Maintenance Manager; Kevin Wheat, Associate Civil Engineer

MEMBERS OF THE PUBLIC
WHO ADDRESSED THE COUNCIL: Elaine Schroth, Visit Concord; Amaya Wooding, Concord Tobacco Free Coalition; Brian Davis, Contra Costa County Tobacco Prevention Coalition; Jen Grand-Lejano, American Cancer Society; Blythe Young, American Heart Association; Jimmy Ansera, Contra Costa Tobacco Prevention Coalition; Ady; Mike McDermott, Concord; Martin Wesley, CoCo Farms; Tim Carr; Cora Mitchell; Laura Nakamura

PUBLIC COMMENT PERIOD
Elaine Schroth, Visit Concord, spoke about Creative Concord, a celebration of arts and culture being held June 11-26, 2022.

The following people spoke in favor of the City Council putting flavored tobacco as a Tier 1 Priority:

Amaya Wooding, Concord Tobacco Free Coalition
Brian Davis, Contra Costa County Tobacco Prevention Coalition Jen Grand-Lejano, American Cancer Society
Blythe Young, American Heart Association

3.a

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City Council Minutes April 12, 2022
Jimmy Ansera, Contra Costa County Tobacco Prevention Coalition Ady spoke of her outreach to the unhoused and stated that there are not enough services for the needs of the unhoused.

PRESENTATION

POLICE DEPARTMENT UPDATE
Mayor Aliano introduced Chief of Police Mark Bustillos, who gave an update on the Police Department.

Following questions from the City Council, Mayor Aliano opened a public comment period.

Mike McDermott, Concord, requested that carjacking, home invasion robberies, and armed robberies be called out in the presentation.

Mayor Aliano closed the public comment period.

CITY COUNCIL CONSENT CALENDAR
Mayor Aliano opened a public comment period, and upon receiving no public comment, closed the public comment period.

FUNDING REQUEST – 4th of July 2022 Parade and Fireworks Events This item was removed from the Consent Calendar by the Mayor. Councilmembers McGallian and Obringer recused themselves due to their affiliation with the Todos Santos Business Association and the 4th of July activities and left the dais.

A motion was made by Hoffmeister and seconded by Birsan to approve a request from the Todos Santos Business Association Arts Foundation for $50,000 funding and in-kind City services to support the July 4, 2022, parade and fireworks events; and finding that authorizing such funding provides demonstrable benefit to the citizens of Concord by reversing certain negative impacts of COVID-19 and strengthening community connectivity. The motion passed by the following vote of the Council:

AYES: Birsan, Hoffmeister, Aliano NOES: None ABSENT: McGallian, Obringer Councilmembers McGallian and Obringer returned to the dais.

REJECTION OF BIDS – Network Rewire of Police Department Headquarters, RFB #2467 A motion was made by Obringer and seconded by Birsan to reject all bids for RFB #2467, Network Rewire of PD Headquarters, and direct staff to revise the bid documents and re-advertise the project for bids. The motion passed by unanimous vote of the Council.

REJECTION OF BIDS – Diablo Creek Golf Course Maintenance Building, RFB #2466 A motion was made by Obringer and seconded by Birsan to reject all bids for RFB #2466, Diablo Creek Golf Course Maintenance Building, and direct staff to revise the bid documents and re-advertise the project for bids. The motion passed by unanimous vote of the Council.

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City Council Minutes April 12, 2022
ADOPTION OF RESOLUTION NO. 22-19 – Pleasant Hill Landscaping and Lighting Assessment District #20
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-19 entitled, “A Resolution Approving the Request of the City of Pleasant Hill to Allow Sunvalley Mall and Certain Other City of Concord Commercial Properties to be Included in Pleasant Hill Landscaping and Lighting Assessment District #20, Commercial Area Landscaping and Lighting.” The motion passed by unanimous vote of the Council.

ADOPTION OF RESOLUTION NO. 22-20 – Accepting Preliminary Engineer’s Report - Downtown Landscape Maintenance District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-20 entitled, “A Resolution Accepting the Preliminary Engineer’s Report for the Downtown Landscape Maintenance District.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-21 – Accepting Preliminary Engineer’s Report - Pine Hollow Landscape and Lighting Maintenance District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-21 entitled, “A Resolution Accepting the Preliminary Engineer’s Report for the Pine Hollow Landscape and Lighting Maintenance District.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-22 – Accepting Preliminary Engineer’s Report - Landscape and Lighting Assessment District No. 3
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-22 entitled, “A Resolution Accepting the Preliminary Engineer’s Report for the Landscape and Lighting Assessment District No. 3.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-23 – Accepting Preliminary Engineer’s Report - Citywide Street Lighting Assessment District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-23 entitled, “A Resolution Accepting the Preliminary Engineer’s Report for the Concord Citywide Street Lighting Assessment District.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-24 – Resolution of Intention to Order Improvements and Set Public Hearing - Downtown Landscape Maintenance District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-24 entitled, “A Resolution of Intention to Order Improvements and set a Public Hearing for the Downtown Landscape Maintenance District.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-25 – Resolution of Intention to Order Improvements and Set Public Hearing - Pine Hollow Landscape and Lighting Maintenance District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-25 entitled, “A Resolution of Intention to Order Improvements and set a Public Hearing for the Pine Hollow Landscape and Lighting Maintenance District.” The motion passed by unanimous vote of the Council.Page 3 of 7 City Council Minutes April 12, 2022
RESOLUTION NO. 22-26 – Resolution of Intention to Order Improvements and Set Public Hearing - Landscaping and Lighting Assessment District No. 3
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-26 entitled, “A Resolution of Intention to Order Improvements and set a Public Hearing for the Landscaping and Lighting Assessment District No. 3.” The motion passed by unanimous vote of the Council.

RESOLUTION NO. 22-27 – Resolution of Intention to Order Improvements and Set Public Hearing - Citywide Street Lighting Assessment District
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-27 entitled, “A Resolution of Intention to Order Improvements and set a Public Hearing for the Citywide Street Lighting Assessment District.” The motion passed by unanimous vote of the Council.

APPROVAL OF PURCHASES OF STORMWATER GREEN INFRASTRUCTURE CONSTRUCTION MATERIALS – Hillcrest Park Regional Green Infrastructure Project (Project No. 2512) A motion was made by Obringer and seconded by Birsan to approve purchases of stormwater green infrastructure construction materials in the not-to-exceed amount of $822,604.80 (includes original quotes total of $747,822.55 plus staff authority to spend up to a 10 percent contingency of $74,782.25) for the Hillcrest Park Regional Green Infrastructure Project (Project No. 2512). The motion passed by unanimous vote of the Council.

CITY COUNCIL/CITY COUNCIL SITTING AS THE LOCAL REUSE AUTHORITY/CITY COUNCIL

SITTING AS THE CONCORD-PLEASANT HILL HEALTH CARE DISTRICT CONSENT CALENDAR ADOPTION OF CITY COUNCIL RESOLUTION NO. 22-28, LOCAL REUSE AUTHORITY RESOLUTION NO. 22-37, CONCORD-PLEASANT HILL HEALTH CARE DISTRICT RESOLUTION NO. 22-029 – Continue Meetings Remotely, AB 361
A motion was made by Obringer and seconded by Birsan to adopt Resolution No. 22-37, Local Reuse Authority Resolution No. 22-37, and Concord/Pleasant Hill Health Care District Resolution No. 22- 029 entitled, “A Resolution Declaring the ability of the City Council, Local Reuse Authority, Concord/Pleasant Hill Health Care District, Standing City Council Subcommittees, and all City Boards, Commissions, and Committees to Continue to Meet Remotely Pursuant to AB 361.” The motion passed by unanimous vote of the Council.

CITY COUNCIL PUBLIC HEARINGS
ADOPTION OF RESOLUTION NO. 22-29 APPROVING A USE PERMIT, VARIANCE, ADMINISTRATIVE PERMIT, AND DESIGN AND SITE REVIEW AND INTRODUCTION OF ORDINANCE NO. 22-5 APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT – Kolaboration Concord LLC Principal Planner Frank Abjeo presented the report, explaining that the City Council was being requested to consider a Use Permit, Variance, Administrative Permit, Design and Site Review, and introduction of an ordinance for a Development Agreement with Kolaboration Concord, LLC (dba “CoCo Farms”) to establish a cannabis microbusiness with a storefront retail component at 2366 Stanwell Circle.

Following questions from the City Council, Mayor Aliano opened a public comment period.

Mike McDermott asked about the Development Agreement term and the future use of cannabis vaping.

Martin Wesley, CoCo Farms, spoke of CoCo Cares in Antioch and all CoCo Farms philanthropic efforts being voluntary.

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City Council Minutes April 12, 2022
Tim Carr spoke of using solar panels in the parking lot.

Mayor Aliano closed the public comment period.

Following discussion by the City Council, a motion was made by Birsan and seconded by Hoffmeister to adopt Resolution No. 22-29 entitled, “A Resolution Approving a Use Permit, Variance, Administrative Permit, and Design and Site Review for a cannabis microbusiness with storefront retail for Kolaboration Concord LLC at 2366 Stanwell Circle, APN 112-252-021, -022, and -006 (PL21109 – UP, AP, VA, DR, DA)” with the addition of Condition #38 - The chain link gates proposed for the trash enclosure shall be replaced with solid decorative gates, and the trash enclosure shall be sized appropriately to ensure compliance with Senate Bill 1383 (SB 1383), subject to review and approval by City staff prior to issuance of a building permit for the trash enclosure. The motion passed by unanimous vote of the Council.

A motion was made by Birsan and seconded by Obringer to introduce Ordinance No. 22-5 entitled, “An Ordinance Approving and Adopting a Development Agreement by and between the City of Concord and Kolaboration Concord, LLC, Regarding the Development of a Cannabis Microbusiness with a Storefront Retail Component Located at 2366 Stanwell Circle, Assessor’s Parcels Numbers: 112-252- 021, -022, and -006 (PL21109 – DA, UP, VA, DR)” by reading of the title only and waiving further reading.

The motion passed by unanimous vote of the Council.

Mayor Aliano recessed the meeting at 9:35 p.m. The meeting resumed at 9:46 p.m.

INTRODUCTION OF ORDINANCE NO. 22-6 (UNCODIFIED ORDINANCE) – Concord Police Department Policy 706, Military Equipment Use Policy, in Compliance with AB 481 Provisional Lieutenant Kevin Halm presented the staff report explaining that California Assembly Bill No. 481 was approved by the Governor in September 2021 and took effect on January 1, 2022. He reported that AB 481 requires a law enforcement agency to obtain approval from the applicable governing body, via adoption of a Military Equipment Use Policy by ordinance, prior to the agency funding, acquiring, or using military equipment, and the approval shall commence prior to May 1, 2022.

Following questions from the City Council, Mayor Aliano opened a public comment period.

Ady spoke of her concern over militarizing the policy.

Cora Mitchell spoke of the need for a GARE assessment.

Mayor Aliano closed the public comment period.

Following discussion by the City Council, a motion was made by Hoffmeister and seconded by McGallian to introduce Ordinance No. 22-6 entitled, “An Uncodified Ordinance of the City Council of the City of Concord Adopting and Approving Concord Police Department Policy 706, Military Equipment Use Policy, in Compliance with California Assembly Bill No. 481 (AB 481)” by reading of the title only and waving further reading. The motion passed by unanimous vote of the Council.

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City Council Minutes April 12, 2022
ADOPTION OF RESOLUTION NO. 22-4753, A RESOLUTION OF INTENTION TO APPROVE AN AMENDMENT TO THE CONTRACT WITH THE CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM AND INTRODUCTION OF ORDINANCE NO. 22-7 APPROVING AN AMENDMENT TO THE CONTRACT WITH THE CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM – Amend Provisions Pursuant to Government Code Section 205165 (Employees Sharing Additional Cost) for all classic members in the Concord Police Association and Concord Police Association-Managers’ Representation Unit
Director of Human Resources Jasmin Loi presented the staff report, explaining that in 2020 City staff worked with bargaining groups on concessions to address the anticipated budget shortfall. The City, the Concord Police Association, and the Concord Police Association-Managers’ Representation Unit agreed to amend the City’s contract with the California Public Employees’ Retirement System regarding employees sharing additional cost, and that adopting a Resolution of Intention and Ordinance are the last actions necessary to implement the agreed to side letters.

Following questions from the City Council, Mayor Aliano opened a public comment period.

Cora Mitchell spoke of the commitment the Council made regarding GARE assessments, and stated her surprise that GARE assessments were no longer being used.

Mayor Aliano closed the public comment period.

Following comments by the City Council, a motion was made by Hoffmeister and seconded by Obringer to adopt Resolution No. 22-4753 entitled, “A Resolution of Intention to Approve an Amendment to the Contract between the Board of Administration California Public Employees’ Retirement System and the City Council of the City of Concord to Amend Provisions Pursuant to Government Code Section 20516 (Employees Sharing Additional Cost) for All Classic Members in the Concord Police Association and the Concord Police Association-Managers’ Representation Unit.” The motion passed by unanimous vote of the Council.

A motion was made by Hoffmeister and seconded by Obringer to introduce Ordinance No. 22-7 entitled, “An Ordinance of the City Council of the City of Concord, California, Authorizing an Amendment to the Contract between the Board of Administration of the California Public Employees’ Retirement System and the City Council of the City of Concord to Amend Provisions Pursuant to Government Code Section 20516 (Employees Sharing Additional Cost) for all Classic Members in the Concord Police Association and the Concord Police Association-Managers’ Representation Unit” by reading of the title only and waiving further reading. The motion passed by unanimous vote of the Council.

CORRESPONDENCE
a. Letter to Senators Feinstein and Padilla RE: Support for Community Project Funding Proposal – Citywide LED Streetlight Conversion – April 1, 2022
b. Letter to Senator Padilla RE: Local Support for Just Transition Economic Revitalization Plan Phase II Congressionally Directed Spending Request from Contra Costa County – April 1, 2022 c. Letter to Senators Feinstein and Padilla RE: Support for Community Project Funding Proposal – Fiber Along Monument Corridor – April 1, 2022
d. Letter to Assembly Member Wicks RE: Support of Assembly Bill 2547 (Nazarian) – April 6, 2022 e. Written Public Comment, Agenda Item No. 2.a
f. Benched Correspondence, Agenda Item No. 3.a – Chief’s Update g. PowerPoint Presentation, Agenda Item No. 3.a – Chief’s Update h. Benched Correspondence, Agenda Item No. 4.a – Fourth of July Fireworks i. Benched Exhibit A to Attachment 1, Agenda Item No. 5.a – Kolaboration j. Staff PowerPoint Presentation, Agenda Item No. 5.a – Kolaboration k. Applicant PowerPoint Presentation, Agenda Item No. 5.a – Kolaboration l. PowerPoint Presentation, Agenda Item No. 5.b – AB 481 m. PowerPoint Presentation, Agenda Item No. 5.c – AB 481

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City Council Minutes April 12, 2022

COUNCIL REPORTS
Councilmembers shared information on events and activities in which they had participated since the last meeting and commented on items of interest.

Mayor Aliano opened a public comment period.

Laura Nakamura spoke of the need for a racial equity lens.

Cora Mitchell spoke of the need for a racial equity lens.

ADJOURNMENT
By order of the Mayor, the meeting was adjourned on April 12, 2022, at 10:26 p.m. in memory of Carlo Zocchi.

DOMINIC ALIANO
MAYOR

JOELLE FOCKLER, MMC

CITY CLERK

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Ord. No. 22-XX 1
ORDINANCE NO. 22-8
AN ORDINANCE AMENDING CONCORD MUNICIPAL CODE, TITLE 12
(STREETS & SIDEWALKS), CHAPTER 12.15, STREET ENCROACHMENTS,

TO ADD A MORATORIUM ON AND REQUIRE ENHANCED RESTORATION FOR CERTAIN STREET CUTS WITHIN A FIVE YEAR PERIOD_

WHEREAS, Government Code Section 65800 et seq. provides for the amendment of any and all adopted City of Concord (“City”) zoning laws, ordinances, rules and regulations; and WHEREAS, in preparation of the March 2018 City of Concord Broadband Master Plan, the City and its consultant identified the recommendation to adopt street moratorium language into the Concord Municipal Code; and
WHEREAS, on January 27, 2021, the City Council Committee on Infrastructure & Franchise (hereafter referred to as “Committee”) approved the draft language and directed staff to prepare an Ordinance update to Chapter 12.15 of Title 12 (Streets & Sidewalks Code); and WHEREAS, the amendments collectively are shown in the form of the proposed Chapter

12.15 Street Encroachments code section, attached hereto as Exhibit A (hereafter referred to as “Amendment”) and incorporated by reference; and
WHEREAS, the City Council, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public hearing on April 26, 2022, on the proposed Amendment; and
WHEREAS, at such public hearing, the City Council considered all oral and written information, testimony, and comments received during the public review process, including the oral report from City staff, the written report from City staff dated April 26, 2022, materials, exhibits presented, the Streets & Sidewalks Code, and all other information that constitutes the record of proceedings relating to the proposed Amendment, which are maintained at the offices of the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord, CA (collectively, “Amendment Information”); and
THE CITY COUNCIL OF THE CITY OF CONCORD DOES ORDAIN AS FOLLOWS:

Section 1. All the facts set forth in the Recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

3.b3.b3.b

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Ord. No. 22-XX 2
Section 2. The City Council has reviewed, considered, and evaluated all of the Amendment Information, all other pertinent plans, documents and testimony prior to acting upon Ordinance.

Section 3. The documents and other materials that constitute the record of proceedings upon which the City Council has based its decision are located in and may be obtained from the City of Concord Clerk’s Office, 1950 Parkside Drive, Concord, CA 94519.

Section 4. In accordance with CEQA Guidelines Sections 15060(c)(2) and 15378, the approval of Ordinance language establishing Street Moratoria is not an activity that constitutes a “project”, if this were determined to be a “project” for CEQA analysis, this activity falls within either the “Common Sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3) or is Categorically Exempt from the requirement for preparation of an environmental document as provided for in CEQA Guidelines Sections 15301 - 15304. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgement and analysis.

Section 5. The Amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City because the Amendment concerns codifying street moratorium language which existed as part of the City standard drawing for trench restoration.

Section 6. Concord Municipal Code, Title 12 (Streets & Sidewalks Code), Chapter 12.15, Street Encroachments, is hereby amended as set forth in Exhibit A attached hereto and made a part hereof.

Section 7. Severability. If any section, subsection, clause, or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, or its application to any other person or circumstance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause, or phrase be declared invalid.

Section 8. This ordinance shall become effective thirty (30) days following passage and adoption. In the event a summary of said Ordinance is published in lieu of the entire Ordinance, a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least

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Ord. No. 22-XX 3
five (5) days prior to its adoption and within fifteen (15) days after its adoption, including the vote of the Councilmembers. Additionally, a summary prepared by the City Attorney’s Office shall be published once at least five (5) days prior to the date of adoption of this Ordinance and once within fifteen (15) days after its passage and adoption, including the vote of the Councilmembers, in the East Bay Times, a newspaper of general circulation in the City of Concord.

Dominic Aliano
Mayor
ATTEST:

Joelle Fockl
City Clerk
(Seal)

Ordinance No. 22-XX was duly and regularly introduced at a regular meeting of the City Council of the City of Concord held on April 26, 2022, and was thereafter duly and regularly passed and adopted at a regular meeting of the City Council held on May 24, 2022, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing is a true and correct copy of an ordinance duly and regularly introduced, passed, and adopted by the City Council of the City of Concord, California.

By:

Joelle Fockler
City Clerk

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Ord. No. 22-XX 4
Attachment: Exhibit A: Amended Title 12 (Streets & Sidewalks Code), Chapter 12.15 Street Encroachments

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Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019.

Chapter 12.15

STREET ENCROACHMENTS
Sections:

Article I. General

12.15.010 Definitions.

12.15.020 Exemptions.

12.15.030 Restriction of use.

12.15.040 Permit required and encroachment agreement required.

12.15.050 Prohibited encroachments.

12.15.055 Street cut moratorium.

12.15.060 Emergency work.

12.15.070 Painting of paved surfaces.

12.15.080 Appeal.

Article II. Permits and Fees

12.15.090 Authority to issue permits and approve encroachment agreements.

12.15.100 Application for permit; issuance.

12.15.110 Form of encroachment agreement; form of permit; term; display; transfer; changes in permit or work.

12.15.120 Fees.

12.15.130 Bonds; insurance.

Article III. Standards for Work

12.15.140 Liability; indemnification of city.

12.15.150 Public safety requirements.

12.15.160 Facilitation of traffic flow.

12.15.170 Notices.

12.15.180 Care of drainage.

12.15.190 Specific standards.

Article I. General

12.15.010 Definitions.

For the purpose of this article, the following words and phrases shall have the meanings ascribed to them as follows:

City. The City of Concord, a municipal corporation.

City Engineer. Any references to “Superintendent of Streets” as stated in this Chapter shall also refer to “City Engineer,” as defined by section 2.10.150.

Encroach or encroachment. Going over, upon, under, or using any right-of-way or watercourse in such a manner as to prevent, obstruct, or interfere with its normal use, including the performance thereon of any of the following acts:
(1) excavating, filling, or disturbing the right-of-way or watercourse; (2) erecting or maintaining any flag, banner, decoration, post, sign, pole, fence, guardrail, wall, loading platform, mailbox, pipe, conduit, wire, or other structure on, over, or under a right-of-way or watercourse; (3) planting any tree, shrub, grass or other growing thing within a right-of-way or watercourse; (4) placing or leaving on a right-of-way or watercourse any rubbish, brush, earth, or other material of any nature whatsoever; (5) constructing, placing, or maintaining on, over, under, or within the right-of-way any pathway, sidewalk, driveway, curb, gutter, paving, or other surface or subsurface drainage structure or facility, any pipe, conduit, wire, or cable; (6) traveling on the right-of-way by any vehicle or combination of vehicles or object of dimension, weight, or other characteristic prohibited by law without a permit; (7) lighting or building a fire; (8) constructing, placing, planting, or maintaining any structure, embankment, Exhibit A

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. excavation, tree, or other object adjacent to a right-of-way or watercourse which causes or will cause an encroachment.

Encroachment agreement. An agreement between the permittee and the City for the installation, construction, creation, revision, operation, and maintenance of encroachment, including the removal of such encroachment.

Moratorium Street. Any block that has been reconstructed, repaved, or resurfaced by the City of Concord or any other owner or person in the preceding five year period, or slurry sealed in the preceding two year period.

Permittee. Any person, firm, or corporation that proposes to do work or encroach upon a right-of-way or watercourse as herein defined and has been issued a permit for such encroachment by the Director of Public Works.

Private contract. A contract between two or more parties for the installation, construction, revision, operation, or creation of an encroachment, to which contract the city is not a party.

Public street. The full width of the right-of-way of any road, street, highway, alley, lane, or pedestrian walkway used by or for the general public, whether or not said road, street, highway, alley, lane, or pedestrian right-of-way has been improved or accepted for maintenance by the city, except streets and highways forming part of the state highway system.

Right-of-way. Land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for and dedicated to the general public for street, highway, alley, public utility, or pedestrian walkway purposes.

Superintendent of Streets. The City Engineer, Public Works Director, or his authorized agent.

Watercourse. A channel for the carrying of stormwater, including both natural and artificial watercourses. (Code 1965, § 7200; Code 2002, § 90-201. Ord. No. 687; Ord. No. 02-8) Cross references: Definitions generally, § 1.05.100.

12.15.020 Exemptions.

This article shall not apply to officers or employees of the city acting in the discharge of their official duties or to any work being performed by any person, firm, or corporation pursuant to a contract with the city. (Code 1965, § 7201; Code 2002, § 90-202. Ord. No. 687)

12.15.030 Restriction of use.

All permits granted subject to this article shall be subject to the right of the city, and any person or persons entitled thereto, to use any part of a public right-of-way for any purpose for which it may be lawfully used, and no part of a right-of-way may be unduly obstructed at any time.
(Code 1965, § 7202; Code 2002, § 90-203. Ord. No. 687)

12.15.040 Permit required and encroachment agreement required. (a) Permits. No person shall encroach or cause to be made any encroachment of any nature whatever within, upon, over, or under the limits of any right-of-way or watercourse; or make or cause to be made any alteration of any nature within, upon, over, or under such right-of-way or watercourse; or construct, put upon, maintain or leave thereon, or cause to be constructed, put on, maintained or left thereon, any obstruction or impediment of any nature whatsoever; or remove, cut, or trim trees thereon; or set a fire thereon; or place on, over, or under such right-of-way any pipeline, conduit, or other fixtures; or move over or cause to be moved over the surface of any right-of-way or over any bridge, viaduct, or other structure maintained by the City any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the right-of- way; or place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment in such a way as to endanger the normal usage of the right-of-way or watercourse without having first obtained a permit as required by this article.

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. (b) Encroachment agreements. No applicant shall be granted a permit for an encroachment that is planned to continue for an indefinite period of time without first entering into an encroachment agreement with the City. No encroachment agreement shall be considered or approved if the applicant has an application for a discretionary permit, license or other entitlement pending before an approving body of the City until final action on the application has been taken by the approving body.
(Code 1965, § 7203; Code 2002, § 90-204. Ord. No. 687; Ord. No. 02-8)

12.15.050 Prohibited encroachments.

The following encroachments are specifically prohibited and no applications will be accepted nor permits issued therefor:
(1) Construction or maintenance of a loading dock on or in a public right-of-way; (2) Erection or maintenance of a post, pole, column, or structure for the support of advertising signs; (3) Installation or maintenance of underground tanks, vaults, or elevators, except that underground vaults may be permitted as a part of facilities owned by public utilities; (4) Erection, installation, or maintenance of posts, poles, or columns for the purpose of carrying lights intended primarily for lighting of abutting private property;
(5) Installation or maintenance of signs bearing flashing or moving lights, except for temporary warning signs, barricades, or flashers required for protection of the public during construction operations; (6) Construction or placement of any fill, wall, pipe, column, pole, fence, tree, shrub or any other thing which would constrict and reduce the capacity of any watercourse to carry stormwater. (Code 1965, § 7204; Code 2002, § 90-205. Ord. No. 687; Ord. No. 932)

12.15.055 Street cut moratorium
(a) Temporary moratorium after paving, construction, or reconstruction of public streets. On any paved, constructed or reconstructed public street, the pavement surface shall not be cut or otherwise opened for any encroachment for a five (5) year period after such pavement, construction or reconstruction is completed. On a slurry sealed street, the pavement surface shall not be cut or otherwise opened for any encroachment for a two (2) year period after such pavement, construction or reconstruction is completed.
(b) Exceptions. Upon a written request by an applicant, the City Engineer may grant an exception to the moratorium imposed on any public street under this section based a determination by the City Engineer of any of the following:
(1) For emergencies that endanger life or property;
(2) For work necessary to prevent essential utility service interruptions or restore such services after an interruption;
(3) For any work mandated by any federal, state or City legislation; (4) For situations in which the applicant has no other feasible means to provide utility service to a building; (5) Or for any other situation in which the City Engineer deems an exception to be in the City’s and the residents’ best interests.
(c) Conditions may be imposed. The City Engineer may impose conditions on any exception granted under this section that, in the City Engineer’s determination, are necessary or appropriate to rapidly and completely restore the street and/or pavement surface, which may include, without limitation, base and sub-base repairs, curb replacement and/or restoration, repainting and/or restoring street markings and repaving the street over its full width and/or to any other natural breakpoint in the pavement surface. All such restoration work shall be: (1) performed at the applicant’s sole cost and expense; (2) performed in accordance with all applicable provisions in Title 12 and the

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City’s Standard Specifications for public improvements; and, (3) completed within 90 days after the applicant completes the work for which the exception was granted.

12.15.060 Emergency work.

This article shall not prevent any person from maintaining any pipe or conduit lawfully on or under any public street, or from making excavation as may be necessary for the preservation of life or property or for the restoration of interrupted service when an urgent necessity therefor arises during the hours the offices of the city are closed, except that the person making an emergency use or encroachment on a public street shall apply for a permit therefor within one calendar day after the offices of the city are again opened. (Code 1965, § 7205; Code 2002, § 90-206. Ord. No. 687)

12.15.070 Painting of paved surfaces.

It shall be unlawful for any person to apply paint or other permanent marking substance to any paved surface or curbs, except for official traffic markings made by the city or its agents and markings of underground facilities in connection with construction or maintenance work; provided, however, that home street numbers may be painted or applied to city curbs if the applicant shall first procure an encroachment permit as set forth in this article. (Code 1965, § 7206; Code 2002, § 90-207. Ord. No. 932)

12.15.080 Appeal.

Any person aggrieved by the actions of any administrative official of the city may appeal said decision to the City Council. Such appeal shall be in accordance with section 2.05.050 of this Code. The City Council may affirm, modify, or reverse the action of the administrative official. (Code 1965, § 7230; Code 2002, § 90-208. Ord. No. 845)
Article II. Permits and Fees

12.15.090 Authority to issue permits and approve encroachment agreements.

The written permits required by this article shall be issued by the superintendent of streets, subject to the provisions of this article and other applicable laws.

Encroachment agreements required by this article may be approved by the City Manager. (Code 1965, § 7210; Code 2002, § 90-231. Ord. No. 687; Ord. No. 02-8)

12.15.100 Application for permit; issuance.
(a) Application form. The Superintendent of Streets shall prescribe and provide a regular form of applications for the use of applicants for permits required by this article. The application shall show such information and details as the Superintendent of Streets may deem necessary to establish the exact location, nature, dimensions, duration, and purpose of the proposed use or encroachment.
(b) Exhibits. When required by the Superintendent of Streets, the application shall be accompanied by maps, sketches, diagrams, or similar exhibits to the size and in the quantity as the Superintendent of Streets may prescribe, sufficient to clearly illustrate the location, dimensions, nature, and purpose of the proposed encroachment and its relation to existing and proposed facilities in the right-of-way or watercourse. (c) Consent of public agencies required. The applicant shall also enclose with, attach, or add to the application the written order or consent to any work thereunder which may be required by law to be obtained. A permit shall not be issued until and unless such order or consent is first obtained and evidence thereof filed with the Superintendent of Streets. The permittee shall keep himself adequately informed of all state and federal laws and local ordinances and regulations which in any manner affect the permit. The applicant shall at all times comply with and shall cause all his agents and employees to comply with all such laws, ordinances, regulations, decisions, and court and similar authoritative orders.
(d) Action on application; issuance of permit. Applications may be approved, conditionally approved, or denied.

Where the Superintendent of Streets finds that the application is in accordance with the requirements of this article,

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. he shall issue a permit for the use or encroachment, attaching such conditions as he may deem necessary for the health, safety, and welfare of the public and for the protection of the city. If the Superintendent of Streets finds the application is in conflict with the provisions of this article, he shall deny the permit, giving in writing the reasons for said denial.
(Code 1965, § 7211; Code 2002, § 90-232. Ord. No. 687)

12.15.110 Form of encroachment agreement; form of permit; term; display; transfer; changes in permit or work.
(a) Form and validity. Permits must be written on a form prescribed by the Superintendent of Streets. No permit shall be valid unless signed by the Superintendent of Streets or his authorized representative. Encroachment agreements shall be in a form acceptable to the City Attorney and shall be recorded in the Office of the County Recorder.
(b) Time limit for beginning work. The permittee shall begin the work or use authorized by a permit issued pursuant to this article within 90 days from date of issuance, unless a different period is stated in the permit. If the work or use is not begun accordingly, then the permit shall become void. (c) Time limit for completion of work. The permittee shall complete the work or use authorized by a permit issued pursuant to this article within the time specified in the permit. If at any time the Superintendent of Streets finds that the delay in the prosecution of completion of the work or use authorized is due to lack of diligence on the part of the permittee, he may cancel the permit and restore the right-of-way or watercourse to its former condition. The permittee shall reimburse the city for all expenses by the Superintendent of Streets in restoring the right-of-way or watercourse.
(d) Display of permit.
(1) The permittee shall keep any permit issued pursuant to this article at the site of work or in the cab of a vehicle when movement thereof on a public street is involved, and the permit must be shown to any authorized representative of the Superintendent of Streets or law enforcement officer on demand. (2) A permit issued for continued use or maintenance of an encroachment may be kept at the place of business of the permittee or otherwise safeguarded during the term of validity, but shall be made available to an authorized representative of the Superintendent of Streets or law enforcement officer within a reasonable time after demand therefor is made.
(e) Nonassignment of permits. Permits shall be issued only to the person, firm, or corporation making application therefor and may not be assigned to another person by the permittee. If any permittee assigns his permit to another, the permit shall become void.
(f) Changes in permit or work. No changes may be made in the location, dimension, character, or duration of the encroachment or use as granted by the permit, except upon written authorization of the Superintendent of Streets; however, the location of underground pipes or conduits smaller than six inches in diameter shall be exempt from this requirement. No permit shall be required for the continuing use or maintenance of encroachments installed by public utilities or for changes therein or thereto where such changes or additions require no excavation of the right-of-way. (Code 1965, § 7212; Code 2002, § 90-233. Ord. No. 687; Ord. No. 02-8)

12.15.120 Fees.
(a) The schedule of fees will be those recommended by the Superintendent of Streets and established and adopted by the City Council from time to time by resolution. Before a permit is issued, the applicant shall deposit, with the city, cash or check in a sufficient sum to cover the fee for issuance of the permit, charges for field investigation, and the fee for necessary inspection, all in accordance with schedule established and adopted by the City Council. (b) Public utilities may, at the Superintendent of Streets’ option, make payment for the above charges as billed by the city instead of advance deposit as required above.
(Code 1965, § 7213; Code 2002, § 90-234. Ord. No. 687; Ord. No. 850)

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12.15.130 Bonds; insurance.
(a) Cash deposits. Unless this part is waived in the permit and before a permit is effective, the permittee shall deposit with the Superintendent of Streets, or agent authorized by resolution of the City Council, cash or a certified or cashier’s check, in the sum to be fixed by the Superintendent of Streets as sufficient to reimburse the city for costs of restoring the right-of-way or watercourse to its former condition, based on the schedules, if any, adopted by resolution of the City Council; provided, however, that the permittee may file a cash deposit on an annual basis in a sum estimated by the Superintendent of Streets as sufficient to cover his activities during any 12-month period. (b) Bond in lieu of cash deposit. In lieu of the cash deposit prescribed by subsection (a) above, the permittee may, upon approval by the Superintendent of Streets, file a cash deposit in the minimum sum established by the schedule, if any, adopted by the City Council and in effect at the time of application for a permit, and the balance of the sum fixed by the Superintendent of Streets as sufficient to reimburse the city expenses incurred in restoring the right-of- way or watercourse to its former condition may be filed in the form of an approved surety bond issued by a company authorized to do a general surety business in the state. (c) Annual bond. In lieu of a cash deposit, the permittee may, upon approval of the Superintendent of Streets, annually file with the Superintendent of Streets an approved surety bond issued by a company authorized to do a general surety business in the state, in a sum fixed by the Superintendent of Streets as sufficient to reimburse the city for expenses to be incurred in restoring the right-of-way or watercourse to its former condition, subject to the schedules, if any, adopted by resolution of the City Council. (d) Bond for continuing use. An applicant for a permit for a use or encroachment, which is to continue or remain within, under, or upon a watercourse or right-of-way of a public highway beyond the time authorized for construction or installation, shall file with the City Clerk a cash deposit or surety bond issued by a company authorized to do a general surety business in the state in a penal sum to be fixed by the Superintendent of Streets as sufficient to reimburse the city for all expenses incurred by the Superintendent of Streets in making the watercourse available for flow of stormwater or in making the right-of-way safe and convenient for the travel of the general public, subject to the schedules, if any, adopted by resolution of the City Council and in effect at the time of application for a permit.
(e) Additional bond or cash deposit. The Superintendent of Streets may require an additional bond or cash deposit at any time when in his opinion the amount of the bond or cash deposit previously made is insufficient, subject to the schedules, if any, adopted for that purpose by the City Council and in effect at the time of application for a permit. (f) Condition of bond and cash deposit. The condition of any bond or cash deposit made pursuant to this division shall be that the permittee will diligently and with good faith comply with this article and the terms and conditions of the permit.
(g) Bond payable to city. Any bond or cash deposit required by the Superintendent of Streets pursuant to this article shall be payable to the city. Upon satisfactory completion of all work authorized in the permit and fulfillment of all conditions of the permit, the bond or cash deposit will be released. (h) Exclusions. Cash deposits or bonds will not be required of any public utility or public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any public street or right-of-way. (i) Insurance. Each person or entity prior to the granting of an encroachment permit shall furnish to the city a certificate showing that such person or entity has then in force a policy of commercial general liability insurance naming the city as an additional insured in an amount of not less than $1,000,000.00 per person or per occurrence combined single limit or some other amount as shall be determined to be acceptable by the Director of Public Works and/or the City Attorney. The permittee shall keep in full force and provide evidence of such policy of insurance to the Director of Public Works during such time as the permittee is performing work in the public right-of-way for which the encroachment permit was issued.
(Code 1965, § 7214; Code 2002, § 90-235. Ord. No. 17; Ord. No. 687)

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Article III. Standards for Work

12.15.140 Liability; indemnification of city.

The permittee shall be responsible for all liability imposed by law for personal injury or property damage proximately caused by work permitted and done by the permittee under permit or proximately caused by failure on the permittee’s part to perform his obligations under said permit in respect to maintenance. If any claim of such liability is made against the city, its officers, or employees, the permittee shall defend, indemnify, and hold them, and each of them, harmless from such claim insofar as permitted by law. (Code 1965, § 7220; Code 2002, § 90-251. Ord. No. 687)

12.15.150 Public safety requirements.
(a) The permittee, in the conduct of the work, use, or maintenance of an encroachment authorized by a permit issued pursuant to this article, shall provide, erect, and/or maintain such lights, barriers, warning signs, patrols, watchguards, and other safeguards as are necessary to protect the traveling public. Any omission on the part of the Superintendent of Streets to specify in the permit what lights, barriers, or other protective measures or devices [are required] shall not excuse the permittee from complying with all requirements of law and appropriate regulations and ordinances for adequately protecting the safety of those using public streets. If, at any time, the Superintendent of Streets finds that suitable safeguards are not being provided, the city may provide, erect, maintain, relocate, or remove such safeguards as are deemed necessary or may cancel the permit and restore the right-of-way to its former condition, all at the expense of the permittee.
(b) A permittee making any excavation or erecting or leaving any obstruction within, under, or upon the right-of- way, or causing the same to be made, erected, or left, shall place and maintain lights at each end of the excavation or obstruction at no more than 50-foot intervals along the excavation or obstruction, from one-half hour before sunset of each day to one-half hour after sunrise of the next day, until the excavation is entirely refilled or the obstruction removed and the right-of-way made safe for use. Reflectorized warning signs conforming to the requirements of the state Division of Highways shall be placed 100 feet in advance of any obstruction or excavation within the traveled way in such a position as to adequately warn vehicular traffic; also, on major streets, additional similar signs shall be placed 400 feet in advance.
(c) Pursuant to the provisions of Government Code § 50022.1 et seq., there is hereby adopted, by reference, as if set forth in full, the United States Department of Transportation’s Work Zone Traffic Control Standards and Guidelines, a copy of which is on file with the Clerk of Council. All warning signs, lights, and other safety devices shall conform to the requirements of the California Vehicle Code and the aforementioned standards and guidelines. (Code 1965, § 7221; Code 2002, § 90-252. Ord. No. 687; Ord. No. 855; Ord. No. 913; Ord. No. 970; Ord. No. 87- 22)

12.15.160 Facilitation of traffic flow.
(a) General standards. The permittee shall give particular attention to facilitating the flow of vehicular and pedestrian traffic. Unless prior written approval is obtained from the Superintendent of Streets, the permittee may not: (1) obstruct more than one-half of the area used by vehicles; (2) obstruct a driveway approach on a developed property, except that, with permission of the occupant of the affected property, a driveway approach may be obstructed when the permittee’s construction personnel are present within 400 feet of the obstructed driveway; and (3) obstruct the area between the curb (or the shoulder if there is no curb) and the right-of-way line in such a way as to create a hazardous path for pedestrians. The use of flagpersons is mandatory (1) where the two-way vehicular traffic has less than 20 feet in which to pass; or (2) where vehicular traffic must pass to the left of dividing islands in passing the site of the encroachment. The permittee may be required to remove excavated material from the site of the encroachment as it is excavated rather than stockpiling it on the street when such removal is necessary to permit traffic to pass freely and safely.
(b) Limited operations areas. The City Council may, from time to time, designate, by resolution, certain public streets to be limited operations areas. The following acts are prohibited in limited operations areas: (1) to conduct construction operations between the hours of 7:00 a.m. and 9:00 a.m. and between the hours of 3:30 p.m. and 6:00 p.m.; and (2) to obstruct more than one traffic lane between the hours of 7:00 a.m. and 10:00 p.m., provided that in the event of emergency the Superintendent of Streets may give permission to vary the requirements of this section.

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12.15.170 Notices.
(a) Notices to city. All notices required by this division to be given by the permittees to the Superintendent of Streets shall be given at his office at the City Hall.
(b) Notices to permittee. Any notice to be given to the permittee shall be deemed to have been received by him upon mailing by certified mail to the address shown on the permit. (c) Notification of beginning of work. Before beginning any work which is or includes excavation, construction of concrete sidewalks, curbs, gutters, or driveway approaches; planting, trimming, or removing trees; or making, placing, or causing an obstruction in the watercourse or traveled way, the permittee shall notify the Superintendent of Streets.
(d) Notification of completion of work. The permittee shall, upon completion of all work authorized in the permit, notify the Superintendent of Streets. No work shall be deemed to be completed until notification of completion is given pursuant to this section and the work is accepted by the Superintendent of Streets. (Code 1965, § 7223; Code 2002, § 90-254. Ord. No. 687)

12.15.180 Care of drainage.

If the work, use, or encroachment authorized in the permit issued pursuant to this article shall interfere with the established drainage, the permittee shall provide for proper drainage as directed by the Superintendent of Streets.

Should the permittee fail to properly care for drainage, the Superintendent of Streets shall notify the permittee to take corrective action; if the permittee fails to complete such corrective action immediately upon receiving said notice, the Superintendent of Streets shall take such action as may be necessary to correct the drainage at the expense of the permittee.
(Code 1965, § 7224; Code 2002, § 90-255. Ord. No. 687)

12.15.190 Specific standards.
(a) Inconvenience to public and property owners to be minimized. It shall be incumbent upon the permittee to plan and execute the work or use so as to cause the least inconvenience to the general public and abutting property owners.
(b) Restoring of street. Upon completion of the work, acts, or things for which the permit was issued, or when required by the Superintendent of Streets, the permittee shall replace, repair, or restore the right-of-way or watercourse at the place of work to the same condition existing prior thereto, unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, materials, or rubbish caused or placed within or upon the watercourse or the right-of-way of the public street under the permit, and shall do any other work or perform any act necessary to restore the watercourse or right-of-way to a safe and usable condition. (c) Maintenance of encroachment. After completion of all work, the permittee shall exercise reasonable care in inspecting and maintaining the area affected by the encroachment. For a period of one year after the completion of the work, the permittee shall repair and make good any injury or damage to any portion of the street which occurs as the result of work done under the permit, including any and all injury or damage to the street which would not have occurred had such work not been done. By the acceptance of the permit, the permittee agrees to comply with the above. The permittee shall, upon notice from the Superintendent of Streets, immediately repair any injury, damage, or nuisance in any portion of the right-of-way or watercourse, resulting from the work done under the permit. In the event that the permittee fails to act promptly or should the exigencies of the injury or damage require repairs or replacement to be made before the permittee can be notified or can respond to the notifications, the city may, at its option, make the necessary repairs or replacement or perform the necessary work, and the permittee shall be charged with all the expenses incurred in the performance of the work. (d) Relocation or removal of encroachment. When any encroachment authorized hereunder is found to be in conflict with existing or proposed facilities or improvements owned, maintained, or operated by the city, such encroachment shall, upon written demand of the Superintendent of Streets, be relocated in such a way as to eliminate the conflict,

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Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. said relocation to be at the sole expense of the permittee. Should the permittee fail to comply with said written demand within a reasonable period of time, the city may cause such relocation of the encroachment at the expense of the permittee; provided, however, that this section shall become inoperative when any right-of-way shall become a freeway and thus cease to be used for the usual street purposes. Provided, further, that this section shall not apply to any public utility possessing a franchise from the city, which franchise, either by express provision or by statute, imposes a relocation obligation upon said public utility. (e) Standards and specifications. The Superintendent of Streets shall establish such standards and specifications as he may deem necessary for the proper construction, use, and maintenance of encroachments. Any work or use done under such permit issued under provisions of this article shall conform to said standards and specifications. In the absence of specific standards and specifications, recognized standards of construction or approved practices shall govern the work or use.
(f) Supervision and inspection of work. The Superintendent of Streets is authorized to make such inspections in person, or through authorized subordinates, as he may deem necessary in connection with permits issued under this article. All work done or uses under such permits shall be under the supervision of, and to the satisfaction of, the Superintendent of Streets.
(g) Storage of materials. Unless otherwise approved by the Superintendent of Streets, no material shall be stored within the traveled way or on any sidewalk; excess earth materials from trenching or other operations shall be removed from the pavement, traveled way, or shoulder as the trench is backfilled or other work carried forward. (h) Installation of pipes and conduits under paved surfaces. Pipes or rigid conduits 2 1/2 inches or less in diameter shall be jacked or otherwise forced underneath paved surfaces, unless otherwise specifically authorized in the permit. Under no circumstances will tunneling be permitted. (i) Minimum cover over pipes. The minimum cover over any and all pipes larger than 2 1/2 inches installed within the right-of-way shall be 36 inches of earth or imported materials measured from the top of curb; where curbs are not level with respect to each other at any section drawn perpendicular to the centerline of the pavement, cover shall be measured from a straight line drawn between the curbs at the section in question. Top-of-curb elevations shall be established by the Superintendent of Streets. Where the above specified cover cannot be maintained due to topography, existing structures, or engineering necessity, the Superintendent of Streets may permit a reduced cover, attaching such additional requirements as he may deem necessary for protection of facilities or improvements in the right-of-way.
(j) Backfill. Backfilling of an excavation shall be in accordance with specifications established by the Superintendent of Streets or as otherwise required by him, both as to material and method; and backfill shall not be placed in any excavation with compaction of the material used therein, the degree and method thereof to be to the satisfaction of the Superintendent of Streets.
(k) Poles and transmission line carriers.
(1) Clearances and types in the construction of poles and transmission line carriers shall be in accordance with rules, regulations, and orders of the Public Utilities Commission and other public agencies having jurisdiction. (2) No guy wires are to be attached to trees without specific authorization to do so in the permit, and in no event shall guy wires be so attached as to girdle the tree or interfere with its growth. Guy wires shall not be below the minimum elevation above the ground prescribed in the rules, orders, and regulations of the Public Utilities Commission.
(3) When a pole, brace, stub, or similar timber is removed and not replaced, the entire length thereof shall be removed from the ground and the hole backfilled and compacted. Where such pole, brace, stub, or similar timber was located in an area paved with concrete, asphalt, or other permanent surfacing, the area occupied shall be trimmed and resurfaced in kind to the satisfaction of the Superintendent of Streets. (l) Cutting exposed concrete pavement. Any cuts made in exposed concrete sidewalk, curb, gutter, driveway, or paving shall be defined by a saw cut to a depth of not less than one-sixth the thickness of said concrete, to a

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Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. maximum of 1 1/2 inches. All cuts in concrete shall be made to the nearest score line, unless otherwise permitted by the Superintendent of Streets. Cuts in asphalt paving shall be kept as straight and uniform as practicable. The Superintendent of Streets may require removal of additional concrete or asphalt when necessary to present a suitable appearance upon restoration.
(m) Aids to visibility. When the location or position of a pole or other obstruction makes accentuation of its visibility to vehicular traffic necessary, the Superintendent of Streets may require that the pole or other obstruction be painted or equipped with reflectors or other aids to visibility prescribed or authorized by the Public Utilities Commission or the state Department of Public Works at the expense of the permittee. (n) Moving vehicles or objects.
(1) Before a vehicle or combination of vehicles or object of weight or dimension or characteristic prohibited by law without a permit is moved on any public right-of-way, a permit to do so must first be granted by the Superintendent of Streets, as set forth in specifications established by the Superintendent of Streets, or as otherwise required by him.
(2) When authorized by a permit issued pursuant to this article to move a vehicle or combination of vehicles or load of dimension or weight in excess of that permitted by law, the permittee shall comply with the general law regulating traffic over a public street, including posted signs or notices which limit speed or direction of travel, or weight which may be placed upon a structure, or the width or height that may be moved thereon or thereover, or otherwise restrict or control travel on a public street. The permittee shall at all times conform to and abide by the practice and procedure necessary to make safe and convenient the travel of the general public and to keep safe and preserve the public highway over and on which movement is being made. Any violation of this section shall cancel the permit issued to the permittee. (3) Prior to commencing any move for which a permit is granted pursuant to this article and section, the permittee shall give at least 48 hours’ written notice to all Police and Fire Department authorities having jurisdiction.
(o) Mailboxes. All mailboxes must be placed in accordance with the rules and regulations of the United States Post Office Department, but no box shall be so placed within the road right-of-way as to endanger the life or safety of the traveling public. A permit is not required for the placing of mailboxes. (p) Hedges, fences, or shrubbery.
(1) Planting or erection.
a. No hedge, fence, shrub, or similar structure shall be planted, erected, or maintained in a watercourse or right-of-way without a permit.
b. No hedge, shrub, or other planting whatever, fence, or similar structure shall be maintained across any existing walkway in a sidewalk area or shoulder. The intent of this restriction is to keep free a walkway for pedestrian or other lawful public travel without interference by or with vehicular travel. No encroachment of any nature will be permitted or maintained which impedes, obstructs, or denies such pedestrian or other lawful travel within the limits of the right-of-way of a public street, or which impairs adequate sight distance for safe pedestrian or vehicular traffic.
(2) Maintenance. The permittee, or the owner of the adjacent property, shall maintain the hedges, shrubs, walls, fences, or similar structures erected for landscaping purposes in a neat and orderly condition at all times. If the encroachment is not maintained as specified in this article, the Superintendent of Streets may direct the permittee or property owner to remove the encroachment and restore the right-of-way or watercourse to its former condition at the expense of the permittee or property owner. (3) Lawns. Notwithstanding anything contained herein to the contrary, any person may plant and maintain a lawn of any grass or type not prohibited by other law, within the right-of-way of a public street, without a

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Concord Municipal Code
Chapter 12.15 STREET ENCROACHMENTS

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The Concord Municipal Code is current through Ordinance 18-9, passed January 8, 2019. written permit. However, the lawn shall not extend into the traveled way of the public street nor into the drainage ditches, gutters, or other drainage facilities.

The general public may not be denied the use of the planted area for pedestrian or other lawful travel. The city may use the planted area for any purpose whatever, and may issue a permit to any applicant to go thereon to perform work or otherwise encroach pursuant to this article. If the lawn is damaged or disturbed in the course of an authorized encroachment, it will be removed and replaced by the permittee unless the permit specifically states otherwise.
(q) Irrigation systems. No portion of any irrigation system shall extend above the level of the surrounding ground or pavement. No irrigation system shall be installed in such a way as to direct sprays or streams of water onto or over adjacent street, sidewalk, or driveway areas.
(r) Preservation of monuments. Any monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any public street or right-of-way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed without first obtaining permission from the Superintendent of Streets to do so, said permission to be granted in conformance with requirements as set forth in specifications established by the Superintendent of Streets. Replacement of removed or disturbed monument will be at the expense of the permittee. (s) Maps of underground facilities. Each permittee installing, constructing, or maintaining underground facilities, such as pipes, wires, conduits, or similar structures, under permit granted pursuant to this article shall maintain accurate and complete maps of location, depth, size, and character of such facilities and shall furnish, at no cost to the city, copies of said map to the Superintendent of Streets upon his demand. (t) Public service directional signs. Public service directional signs for churches, hospitals, and similar places of public use may not be erected, placed, maintained without first obtaining a permit hereunder. The City Council may, from time to time, adopt, by resolution, special regulations and fee schedules pertaining to encroachment by such signs.
(Code 1965, § 7225; Code 2002, § 90-256. Ord. No. 687)

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From: Ronnie Smith <[email protected]>
Sent: Saturday, May 21, 2022 10:49 PM
To: City Clerk <[email protected]>
Subject: City Council Meeting, agenda item 3b

My comment relates to item 3b the Grant/East street paving project.

I live off Solano on Courtland Drive and have been using Grant and East street for a while to get to Bart and Todos Santos Plaza, among many other destinations.

I tend to drive but would prefer to take my bike or electric skateboard, and have done so probably 100 times at least, but, even as a more risk averse rider, this street is incredibly unsafe and I almost exclusively ride on the sidewalk.

The plan put forth does a lot for cars but very little for everyone else.

A class 2 bike lane will not make anyone feel safer on these roads, the cars move too fast and there are too many collision points at intersections for paint on the ground to be sufficient.

This will be virtually identical to the current class 3 bike lane as very few people park on the street so you almost have a lane already it is just not painted as one.

Even with that extra space it is not a pleasant ride at all.

I think a class 4 bikeway is the only safe option for all bike riders that could ride to school, the park or todos santos plaza.

The staff report for this item mentioned the bike council reviewed the plan, but after reading the bike council report they mention they had suggestions that were not taken into account which is a little weird to me but I don't know.

This is my first time writing into any sort of council, so thank you.

- Ronnie Smith.

Benched Correspondence
Agenda Item No. 3.b
May 24, 2022

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CEQA: Not a project/exempt per and Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2), 15378 and/or 15061(b)(3).

Report in Brief
Newhall Park Water Quality Improvement (Project No. 2353) will improve the water quality at two ponds in Newhall Park by dredging out accumulated sediment.

Engineering design services are needed to initiate project design and to develop plans, specifications, and a construction cost estimate. Staff recommends LCC Engineering and Surveying, Inc. (LCC) to design and prepare bid documents.

Recommended Action
Approve of Task Order #2 for LCC Engineering and Surveying, Inc. in the not-to-exceed amount of $90,451 (base agreement of $78,653 plus staff authority to spent up to a

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City Council Agenda Report
Agenda Item No. 3.c
May 24, 2022
contingency of $11,795) for design engineering and related services for Newhall Park Water Quality Improvement (Project No. 2353) and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney.

Background
This project will improve the water quality at the ponds at Newhall Park which serves as irrigation water storage. Staff and park visitors have observed reports of poor water quality at the two ponds in Newhall Park including foul odors and discoloration. Poor water quality conditions have potential negative health impacts to wildlife. Sediment infill at the irrigation inlets may affect the ability to irrigate parks. The vicinity map for the project is shown as Attachment 1.

City Council adopted the CIP Budget for Fiscal Years 2015-16 and 2016-17, which included funding for preliminary studies, the environmental and permit, phase for Project No. 2353. A total of $750,000 was allocated with $425,000 for FY 2015-16 and $325,000 for FY 2016-17.

In Fiscal Year 2015-16, staff evaluated the water quality conditions, developed recommendations, and began the permitting process. On April 26, 2019, an Agreement for Professional Services was issued to Nomad Ecology, LCC to acquire regulatory permits from the United States Army Corps of Engineers, California Department of Fish and Wildlife, and the San Francisco Bay Regional Water Quality Control Board. Permits for dredging were acquired in 2021.

Analysis
Engineering design services are needed to initiate project design, and develop project plans, specifications, and final construction cost estimates.

The preliminary schedule calls for design to begin in June 2022 and to be completed in December 2022. Following design, staff will advertise for construction bids. Construction is anticipated for summer 2023.

Procurement Process
On March 18, 2022, in conformance with the City’s purchasing policies, staff contacted and issued an informal Request for Proposals (RFP) for Consultants under the Master Service Agreement (MSA) for Civil Engineering/Design to provide design and related services for Newhall Park Water Quality Improvement (Project No. 2353). The proposals were received and reviewed by City staff.

Based on analysis of the proposals, LCC Engineering and Surveying, Inc. (LCC) was selected as the most qualified firm to provide design and related services for the Newhall Park Water Quality Improvement (Project No. 2353). City Staff and LCC negotiated the scope of work and cost for the services and agreed upon $78,653 as fair

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City Council Agenda Report
Agenda Item No. 3.c
May 24, 2022
and reasonable compensation for the services needed to complete the design phase of the project. As the Task Order is over $75,000, Council approval is required.

LCC has extensive experience in the design of similar civil engineering projects in the bay area. They are on the City’s on-call list for civil engineering design services and have experience in designing various projects for the City of Concord, including the Monument Blvd Class 1 Path (Project No. 2455) and Pavement Maintenance Zone 5J (Project No. 2526) projects.

Financial Impact
The current project budget includes Measure Q funds (Fund 401). Based on the estimated cost, sufficient funds exist in the current budget to fully fund the design.

Environmental Determination
This design activity does not constitute a “project” within the meaning of Public Resources Code Section 21065, CEQA Guidelines Section 15060(c)(2) and/or CEQA Guidelines Section 15378 because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment. Even if the activity does comprise a project for CEQA analysis, it falls within the “common sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3), excluding projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgment and analysis. Individual projects will undergo CEQA analysis as necessary.

Public Contact
The City Council Agenda was posted.

Attachment

1. Location Map

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Attachment 1
Project Location Map
Newhall Park Water Quality Improvement – Project No. 2353

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Staff Report
Date: May 24, 2022
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Kevin Marstall, PE, Director of Community Development Bruce Davis, PE, Interim City Engineer
Bernard Enrile, PE, CIP Manager
Prepared by: Aldrich Bautista, PE, Associate Civil Engineer [email protected]
(925) 671-3028
Subject: Considering the following for Grant Street/East Street Pavement Rehabilitation Project, Project No. 2525: (1) award a construction contract in the amount $5,527,965 to Bay Cities Paving & Grading, Inc.; authorize staff to utilize the available project contingency for contract change orders that become necessary up to 10% of the contract amount; and authorize the Mayor to execute the contract in a form acceptable to the City Attorney. (2) approval of an Agreement for Professional Services with Swinerton Management and Consulting, Inc. in the not-to-exceed amount of $551,091 (base agreement of $500,992 plus staff authority to spend up to a 10% contingency of $50,099) to provide construction management, inspection, and materials testing services; and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney.

CEQA: Not a project/exempt per CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061(b)(3), 15273, 15282(j), 15378, 15301, 15302, 15303, 15304, Public Resources Code Section 21065, and/or 21080.19.

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City Council Agenda Report
Agenda Item No. 3.d
May 24, 2022
Report in Brief
The Grant Street/East Street Pavement Rehabilitation Project (Project No. 2525) consists of pavement rehabilitation from Broadmoor Avenue to Salvio Street. Work will include installation of Class II bike lanes, fiber optic installation, adjusting utilities to grade, and striping and signage. See attached location map (attachment 1).

The project has been designed and competitively bid; and is at the point of construction contract award. If award is approved by the City Council, project construction in the field is expected to begin in July 2022 and be completed by December 2022, weather permitting.

Construction management, inspection, and materials testing services are needed to ensure work during construction by the contractor is performed and completed in a manner satisfactory to the project contract documents and the City.

Recommended Action

1. Award the construction contract in the amount $5,527,965 to Bay Cities Paving & Grading, Inc. for the Grant Street/East Street Pavement Rehabilitation Project (Project No. 2525); authorize Staff to utilize the available project contingency for contract change orders that become necessary up to 10% of the contract amount; and authorize the Mayor to execute the contract in a form acceptable to the City Attorney.

2. Approval of an Agreement for Professional Services with Swinerton Management and Consulting, Inc. in the not-to-exceed amount of $551,091 (base agreement of $500,992 plus staff authority to spend up to a 10% contingency of $50,099) to provide construction management, inspection, and materials testing services for the Grant Street/East Street Pavement Rehabilitation Project (Project No. 2525); and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney.

Background
The Grant Street/East Street Pavement Rehabilitation, Project No. 2525 will involve pavement rehabilitation on Grant Street from Broadmoor Avenue to High School Avenue, and East Street from High School Avenue to Salvio Street. See attached location map (attachment 1).

Work will also include the installation/upgrades of curb ramps at intersections, minor concrete repairs, adjustment of utilities, replacement of traffic signal loops with vehicle detection cameras, adjustment of pedestrian push buttons to meet accessibility standards, restriping, and installation of high visibility crosswalks.

The scope of this project assists in implementing the City’s Complete Streets policy which considers the needs of the various roadway users and the City’s 2016 Bicycle, Pedestrian, and Safe Routes to Transit Plan. The plan lists Grant Street from

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City Council Agenda Report
Agenda Item No. 3.d
May 24, 2022
Broadmoor Avenue to Gill Drive as a “complete streets study" section. The Bicycle and Pedestrian Advisory Committee (BPAC) reviewed the plan at their September 9, 2021, meeting and provided comments.

The project will incorporate a connection of the existing Class III bike route on Solano Way to Mount Diablo High School with a Class II bike facility on Grant Street. A Class II bikeway will be added only to the northbound section of East Street due to limited roadway width. A Class II bikeways provide on-street lanes with an exclusive space for bicyclists. A combination of pavement markings, signage, and other traffic calming measures is utilized to safely guide bicycles to their destination.

The project falls within the City of Concord Broadband Master Plan. Both Grant Street and East Street are designated as part of “Phase 2 -- Enhance Traffic System Infrastructure.” The project includes the install fiber optic conduits along the project corridor to interconnect the traffic signals.

On June 2, 2020, City Council adopted the CIP Budget for Fiscal Years 2020-21 and 2021-22, which included initial funding for Project No. 2525. City Council on June 8, 2021, added $4,900,000 of Measure V to the project via the Two-Year CIP Mid-Cycle Update.

On July 21, 2021, a virtual public meeting was held to present the project scope of work and construction impacts to residents in the project area. A dozen members of the public attended the meeting.

On September 13, 2016, the City Council approved a Citywide Project Stabilization Agreement with the Contra Costa Building & Construction Trades Council for projects with a construction contract valued at over $750,000. This project includes this provision.

Procurement Process
Construction Contract
The project was advertised for construction bids as required by State law and City policy. The Engineer’s Estimate for the Total Bid is $6,200,000. Bids were opened on March 24, 2022. Four (4) bids were received in the amount ranging from $5,527,545 to $6,538,729.40. The basis of award for this project is the Base Bid. The lowest bid was received from Bay Cities Paving and Grading, Inc. (Bay Cities) of Concord, CA. A summary of the four bids is as follows:

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City Council Agenda Report
Agenda Item No. 3.d
May 24, 2022
BID

SCHEDULE
Engineer's
Estimate
Bay Cities
Paving &
Grading, Inc.

McGuire and
Hester
Ghilotti
Brothers,
Inc.

Granite Rock
Company
Base Bid $ 5,520,000 $5,077,354.62 $5,676,328.40 $5,626,414.40 $6,089,737.40 Bid
Alternative
$ 680,000 $ 50,610.38 $ 539,976.00 $ 704,575.00 $ 448,992.00 Total Bid $ 6,200,000 $5,527,965.00 $6,216,304.40 $6,330,989.40 $6,538,729.40 Bay Cities was the low bidder and submitted a responsive and responsible bid. Bay Cities has an appropriate and valid contractor’s license and satisfactory work references.

Staff completed analysis of Bay Cities’ bid, determining that this firm along with its subcontractors possess appropriate and valid licenses, are not on any debarred lists, and agreed to be bound by the Citywide Project Stabilization Agreement. Bay Cities is registered with the Department of Industrial Relations as required by SB 854.

The City reserved the right to include any combination of the additive bids to the project at its own discretion. Staff has determined there are sufficient funds to award the Base Bid and all Bid Alternatives.

Construction Management
Staff issued a Request for Proposal (RFP) to select a consultant to provide construction management, inspection, and materials testing services on February 24, 2022. The RFP was advertised in the local newspaper and on the City’s Procurement Website.

Four (4) proposals were received, which were reviewed and ranked by the selection committee.

Based on the analysis of the proposals, interviews, and references, Swinerton Management and Consulting, Inc. (Swinerton) of Concord, CA was selected as the most qualified firm to provide construction management, inspection, and materials testing services for the Grant Street/East Street Pavement Rehabilitation Project (Project No. 2525). City Staff and Swinerton negotiated the scope of work, and cost for the services, and agreed upon $500,992 as a fair and reasonable compensation for the services needed to complete the construction phase of this project. City staff has included a 10% contingency of $50,099 bringing the total potential contact amount to $551,091 should the full contingency be necessary.

Financial Impact
The current total budget for this project is $7,646,011.53 and is funded by State Gas Tax (Fund 260), Measure V (Fund 401 and Fund 490) and Measure J Local (Fund 475).

There are sufficient funds to award the construction contract, provide for construction

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City Council Agenda Report
Agenda Item No. 3.d
May 24, 2022
management, inspection and materials testing services, staff oversight, and an approximate construction contingency of 10 percent.

Environmental Determination
Pursuant to CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061(b)(3), 15273, 15282(j), 15378, Public Resources Code Sections 21065 and/or 21080.19, award of this contract is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, as it will not result in a direct or reasonably foreseeable indirect physical change in the environment. In the alternative, award of this contract is exempt under CEQA Guidelines Sections 15301 – Existing Facilities, 15302 – Replacement and Reconstruction, 15303 – New Construction or Conversion of Small Structures, and/or 15304 – Minor Alterations to Land, as it involves maintenance on existing streets including pavement work, traffic signal modifications, signage, striping, and adjusting utilities to grade. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 applies. This determination reflects the City’s independent judgement and analysis. The Notice of Exemption will be filed with the County Clerk’s office following the Council award of the construction contract.

Public Contact
The City Council Agenda was posted.

Attachments

1. Location Map

2. Bid Summary

3. Professional Services Agreement – Swinerton Management & Consulting

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Attachment 1
Project Location Map
Grant Street/East Street Pavement Rehabilitation – Project No. 2525

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City of Concord
Bid Sheet
PROJECT #2525 Bid Opening:

Grant Street/East Street Pavement
Rehabilitation Project
Thursday,
April 7, 2022
2:00 p.m.

City Manager’s Conference Room
Engineer’s Estimate: $5,000,000 $6,200,000
(Revised by Addendum #2)
To be awarded:

COMPANY TOTAL BID
Bay Cities Paving & Grading
1450 Civic Ct., Bldg B, #400
Concord, CA 94520
$5,077,354.62
$5,527,965.00*
Ghilotti Bros, Inc.
525 Jacoby Street
San Rafael, CA 94901
$5,626,414.40
$6,330,989.40*
McGuire & Hester
2810 Harbor Bay Parkway
Alameda, CA 94502
$5,676,328.40
$6,216,304.40*
Graniterock
5225 Hellyer Ave. Ste 220
San Jose, CA 95138
$6,547,729.40
* Totals Revised to Total Bid. Bidders at time of
bid entered in Base Bid.

Contact: Aldrich Bautista x3028
Attachment 2

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AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT ("Agreement") is entered into on May 24, 2022 between the City of Concord ("CITY") and Swinerton Management & Consulting, Construction management and materials testing services, 2001 Clayton Road 6th Floor, Concord, Ca 94520 (“CONSULTANT”).

THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:

The CITY desires to contract with CONSULTANT to provide the professional services described in Section 2 of this Agreement, upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:

1. TERM. This Agreement shall commence on May 24th, 2022 and expire on June 30th, 2023.

2. SCOPE OF SERVICES. Subject to such policy direction and approvals provided by the CITY's Authorized Representative, CONSULTANT shall perform the services described in detail in Exhibit A, Scope of Services. CITY retains all rights of approval and discretion with respect to the projects and undertakings contemplated by this Agreement.

3. PAYMENT. The compensation to be paid to CONSULTANT including payment for professional services and reimbursable expenses, shall be at the rate and schedules in detail in Exhibit A. However, in no event shall the amount CITY pays CONSULTANT exceed five hundred fifty-one thousand ninety-one dollars ($551,091.00) for the term of this Agreement. The total includes the sum of the base contract of five hundred thousand nine hundred ninety-two dollars ($500,992) and a 10% contingency of fifty thousand ninety-nine dollars ($50,099). Any Amendment to this Agreement that includes an increase to this compensation amount shall be made in accordance with Section 5 below.

CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period. It is intended that CITY review such statement and pay CONSULTANT for services rendered within 30 days of receipt of a statement that meets all requirements of this Agreement. Payment by CITY shall not be deemed a waiver of unsatisfactory work, even if such defects were known to the CITY at the time of

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payment.

4. AUTHORIZED REPRESENTATIVES. Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’s authorized representative is Bruce Davis, Interim City Engineer of the Community Development Department. The CONSULTANT’s authorized representative is Jeffrey S. Gee, Vice President.

5. AMENDMENT TO AGREEMENT. This Agreement may be amended in writing, subject to approval by both parties. If additional services are requested by CITY other than as described in the above Scope of Services, this Agreement may be amended, modified, or changed by the parties subject to mutual consent and in accordance with the CITY’s Municipal Code by execution of an Amendment by authorized representatives of both parties setting forth the additional scope of services to be performed, the performance time schedule, and the compensation for such services.

A. Amendment for Additional Compensation. CITY’s Authorized Representative is authorized to execute amendments to the Agreement on behalf of CITY, including amendments providing for additional compensation to CONSULTANT not to exceed the Minimum Threshold, including the base contract amount, throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section

3.10.040(a). The Minimum Threshold for Fiscal Year 2021-22 is $75,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Any additional compensation to CONSULTANT that is greater than the Minimum Threshold, including the base contract amount, must be approved by City Council.

CONSULTANT’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Services shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.

6. INDEPENDENT CONTRACTOR. Both parties understand and acknowledge that CONSULTANT, its officers, agents, employees, volunteers and subcontractors are and shall at all times

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remain as to the CITY wholly independent contractors. Neither the CITY nor any of its officers, officials, agents, employees or volunteers shall have any control over the manner by which the CONSULTANT performs this Agreement and shall only dictate the results of the performance.

CONSULTANT shall not represent that CONSULTANT or its officers, agents, employees, volunteers or subcontractors are agents or employees of the CITY, and CONSULTANT shall have no authority, express or implied, to act on behalf of the CITY in any capacity whatsoever as an agent, and shall have no authority, express or implied, to bind the CITY to any obligation whatsoever, unless otherwise provided in this Agreement.

As an independent contractor, CONSULTANT shall not be eligible for any benefits, which the City may provide to its employees and all persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall receive no premium or enhanced pay for work normally understood as overtime, i.e., hours that exceed forty (40) hours per work week, or work performed during non- standard business hours, such as in the evenings or on weekends. CONSULTANT shall not receive a premium or enhanced pay for work performed on a recognized holiday. CONSULTANT shall not receive paid time off for days not worked, whether it be in the form of sick leave, administrative leave, or for any other form of absence. CONSULTANT shall pay all taxes, assessments and premiums under the federal Social Security Act, any applicable unemployment insurance contributions, Workers Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or other taxes or assessments now or hereafter in effect and payable by reason of or in connection with the services to be performed by CONSULTANT.

7. STANDARD OF PERFORMANCE. CONSULTANT represents and warrants to CITY that CONSULTANT is skilled and able to provide such services described in the Scope of Services and that such services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted professional standards prevailing at the time work is performed.

8. PERFORMANCE BY CONSULTANT. CONSULTANT shall not employ other

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consultants, subconsultants, experts, or contractors without the prior written approval of the CITY.

Notwithstanding the foregoing, CITY shall not be obligated or liable for payment hereunder to any party other than the CONSULTANT. CONSULTANT hereby designates the CONSULTANT’S representative as the person primarily responsible for the day-to-day performance of CONSULTANT'S work under this Agreement. CONSULTANT shall not change the CONSULTANT’S representative without the prior written consent of the CITY. Unless otherwise expressly agreed by the CITY, CONSULTANT'S representative shall remain responsible for the quality and timeliness of performance of the services, notwithstanding any permitted or approved delegation hereunder.

9. OWNERSHIP AND MAINTENANCE OF DOCUMENTS. All documents furnished by CONSULTANT pursuant to this Agreement are instruments of CONSULTANT’s services in respect to this project. They are not intended nor are represented to be suitable for reuse by others except CITY on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.

CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY.

10. INDEMNIFICATION.

A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.

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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, agents, employees and volunteers) from and against all claims, demands, actions, losses, damages, injuries, and liability (including all attorney’s fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’s part shall not apply to the demands, actions, losses, damages, injuries, and liability arising out of the sole negligence or willful misconduct on the part of the CITY.

11. INSURANCE. CONSULTANT shall, at its own expense, procure and maintain in full force at all times during the term of this Agreement the following insurance:

A. Commercial General Liability Coverage. CONSULTANT shall maintain commercial general liability insurance with limits of no less than one million dollars ($1,000,000) combined single limit per occurrence or two million dollars ($2,000,000) aggregate limit for bodily injury, personal injury, and property damage.

B. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.

C. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.

D. Compliance with State Workers' Compensation Requirements.

CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq. CONSULTANT shall, at all times, upon demand of the City, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and

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volunteers for losses arising from work performed by CONSULTANT for CITY. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.

E. Other Insurance Provisions. The policies are to contain, or be endorsed to contain the following provisions:
(1) Additional Insured. CITY, its officers, officials, agents, employees and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees or volunteers.

Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer. (2) Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
(3) Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees or volunteers.
(4) Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement.

The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to

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require complete certified copies of all required insurance policies at any time.

12. TIME OF PERFORMANCE. The time of performance of the services under this Agreement is of the essence, and all time deadlines identified in this Agreement or Scope of Services shall be strictly construed.

13. SUSPENSION OF WORK. CITY may, at any time, by ten (10) days’ written notice, suspend further performance by CONSULTANT. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services, or expenses, except for reasonable administration expenses, incurred by CONSULTANT by reason of such suspension.

14. TERMINATION. CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.

15. COMPLIANCE WITH CIVIL RIGHTS. During the performance of this contract, CONSULTANT agrees as follows:

A. Equal Employment Opportunity. In connection with the execution of this Agreement, CONSULTANT shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.

B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.

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C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this Agreement and the regulations relative to nondiscrimination on the grounds of race, religion, color, sex, or national origin.

16. CONFLICT OF INTEREST.

A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, official, agent, employee or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.

B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)

17. COMPLIANCE WITH LAWS. CONSULTANT shall comply with all applicable Federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses, including a business license with the City of Concord, and permits for the conduct of its business and the performance of the services. CONSULTANT shall ensure that all of its officers, officials, agents, employees and subcontractors who: (i) enter CITY premises in connection with the services to be performed by CONSULTANT hereunder, and/or (ii) have in-person contact with CITY

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officers, officials, agents, employees, subcontractors and volunteers, and/or members of the public in connection with the services to be performed by CONSULTANT hereunder, comply with all applicable Federal, State of California, Contra Costa County, and local laws, rules, and regulations, whichever is the most restrictive, regarding COVID-19 or similar public health matters, including regarding vaccinations, testing, reporting, social distancing, social gathering, mask wearing, and associated requirements.

18. CHOICE OF LAW. This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.

19. NON-WAIVER. The waiver by either party of any breach of any term, covenant, or condition contained in the Agreement, or any default in their performance of any obligations under the Agreement shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.

20. ENFORCEABILITY; INTERPRETATION. In the event that any of the provisions or portions of application of any of the provisions of the Agreement are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the Agreement with a view toward affecting the purpose of the Agreement. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the Agreement shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the Agreement. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.

21. INTEGRATION. All exhibits identified in this Agreement are attached hereto and incorporated herein by reference. The Agreement contains the entire agreement and understanding between the parties as to the subject matter of this Agreement. It merges and supersedes all prior or

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contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.

22. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE. CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.

23. FINANCIAL RECORDS. Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this Agreement will be kept on a generally recognized accounting basis and made available to CITY if and when required.

24. NOTICES. All notices required hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.

To CITY: Bruce Davis, Interim City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519-2578
Phone: (925) 671-3470
Email: [email protected]
To CONSULTANT: Jeffrey S. Gee, Vice President
Swinerton Management & Consulting
2001 Clayton Road 6th Floor
Concord, Ca94520
Phone: (650)483-7412
Email: [email protected]

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25. NON-LIABILITY. No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.

26. EXECUTION . Each individual or entity executing this Agreement on behalf of Applicant represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of Applicant and that such execution is binding upon Applicant.

This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

27. PROJECT STABILIZATION AGREEMENT. On November 15, 2016 the City of Concord, and the Contra Costa Building and Construction Trades Council and its affiliated Unions, entered into a Project Stabilization Agreement (“PSA”) for City construction projects funded in whole or in part with City of Concord funds where the engineer’s estimate or bid amount exceeds $750,000.00 (“Project”). Among other things, the PSA includes requirements for local hire, apprentices, and the veteran Helmets to Hardhats program. Some or all of the work under this Agreement may constitute Covered Work under the PSA, and the PSA requires that Contractor/Employers who enter into a City Construction Contract for any Project sign an “Agreement to be Bound” (Addendum A to the PSA).

Therefore, as a condition of this Agreement, CONSULTANT must (i) sign the Agreement to be Bound, and (ii) require and ensure that affected contractors and subcontractors at any tiers sign the Agreement to be Bound. CONSULTANT acknowledges that it has received copy of the PSA, and has read, understood, and had the opportunity to consult with an attorney regarding the PSA. Capitalized terms in this provision are defined in the PSA; a copy of the PSA is attached hereto as Exhibit B; the original PSA is lodged with the Concord City Clerk, 1950 Parkside Drive, Concord, CA; and additional copies of the PSA may be obtained based on City’s actual costs.

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IN WITNESS WHEREOF, the parties have executed this Agreement in one (1) or more copies as of the date and year first written above.

CONSULTANT CITY OF CONCORD, a Municipal
Corporation
By:_________________________________ By:______________________________ Name: Jeffrey S. Gee Name: Valerie J. Barone
Title: Vice President Title City Manager
Address: 2001 Clayton Road 6 th Floor Address: 1950 Parkside Drive Concord,Ca 94520 Concord, CA 94519
Telephone: (650)483-7412 Telephone: (925) 671-3150
Email: [email protected]
APPROVED AS TO FORM: ATTEST:

Susanne Brown Joelle Fockler, MMC
City Attorney City Clerk
FINANCE DIRECTOR'S CERTIFICATION:

Concord, California
Date:

I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.

THE SUM OF $551,091.00. Account Code 475-9500-C999-74250/ 475-2525-117-74250.

Finance Director's Signature

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1. Review Contract Documentation 2 $460 4 $804 4 $532 4 $656 4 $500 $2,952

2. Conduct Pre-construction Conference, agenda & minutes 2 $460 2 $402 4 $532 2 $328 2 $250 $1,972

3. Photo Inventory of Project Site Pre- and Post-Construction 0 $0 0 $0 4 $532 2 $328 2 $250 $1,110

4. Schedule & Conduct Weekly Progress Meetings / Prepare Minutes 20 $4,600 8 $1,608 44 $5,852 22 $3,608 22 $2,750 $18,418

5. Attend Meetings w/ City / Management Oversight 8 $1,840 8 $1,608 8 $1,064 2 $328 2 $250 $5,090

6. Coordinate with other City's Adjacent Projects 0 $0 0 $0 4 $532 4 $656 4 $500 $1,688

7. Monitor Contractor's Progress Schedule & Phasing 0 $0 8 $1,608 32 $4,256 20 $3,280 32 $4,000 $13,144

8. Monitor the Project's Construction Budget 0 $0 8 $1,608 24 $3,192 16 $2,624 20 $2,500 $9,924

9. Monitor the Contractor's Progress 0 $0 8 $1,608 24 $3,192 24 $3,936 32 $4,000 $12,736

10. Review / Verify Contractor Quantities / Track Bid Items 0 $0 0 $0 24 $3,192 20 $3,280 32 $4,000 $10,472

11. Maintain Project Docs / Records per City / Caltrans Standards 4 $920 0 $0 16 $2,128 16 $2,624 20 $2,500 $8,172

12. Prepare Observation Dailies / Weekly Statements of Work Days 0 $0 0 $0 16 $2,128 30 $4,920 50 $6,250 $13,298

13. Process / Track Submittals 0 $0 0 $0 24 $3,192 16 $2,624 16 $2,000 $7,816

14. Review Submittals (Work Plan, Traffic Control Plan, etc) 0 $0 0 $0 24 $3,192 16 $2,624 16 $2,000 $7,816

15. Process / Track RFI's 0 $0 0 $0 24 $3,192 12 $1,968 12 $1,500 $6,660

16. Process, Negotiate & Issue Change Orders / Cost Proposals 4 $920 0 $0 20 $2,660 8 $1,312 8 $1,000 $5,892

17. Recommend Corrective Action for Unforeseen Issues 0 $0 4 $804 8 $1,064 4 $656 4 $500 $3,024

18. Review / Resolve Notices of Potential Claims 2 $460 4 $804 10 $1,330 4 $656 4 $500 $3,750

19. Prepare Contract Amendment(s), as needed 4 $920 0 $0 10 $1,330 0 $0 0 $0 $2,250

20. Monitor Onsite Unforeseen Conditions / Make Recommendations 4 $920 0 $0 10 $1,330 16 $2,624 24 $3,000 $7,874

21. Review and Process Monthly Progress Payments 0 $0 4 $804 32 $4,256 16 $2,624 20 $2,500 $10,184

22. Labor Compliance Field Interviews per Caltrans 0 $0 0 $0 2 $266 2 $328 8 $1,000 $1,594

23. Review Certified Payroll Reports 0 $0 0 $0 4 $532 0 $0 4 $500 $1,032

24. Monitor SWPPP / WPCP / BMP's Compliance 0 $0 0 $0 8 $1,064 12 $1,968 16 $2,000 $5,032

25. Compile / Maintain As-Built Record Drawings 0 $0 0 $0 8 $1,064 8 $1,312 16 $2,000 $4,376

26. Perform Final Inspection & Punch Lists w/ City, Contractor & EOR 0 $0 0 $0 8 $1,064 16 $2,624 16 $2,000 $5,688 Quality Assurance, Inspection and Material Testing

27. Provide Daily On-Site Observation / Inspection Services 0 $0 32 $6,432 100 $13,300 276 $45,264 362 $45,250 $110,246

28. Maintain Daily Inspection Logs 0 $0 0 $0 16 $2,128 8 $1,312 24 $3,000 $6,440

29. Provide Project Photo Progress Reports 0 $0 0 $0 16 $2,128 12 $1,968 20 $2,500 $6,596

30. Monitor Project for Conformance with the TCP, Plans + Specs 0 $0 4 $804 20 $2,660 24 $3,936 40 $5,000 $12,400

31. Issue & Respond to Non-Compliance Issues / Accept or Reject Work, as necessary 0 $0 4 $804 8 $1,064 10 $1,640 10 $1,250 $4,758

32. Coordinate the Materials Sampling, Testing and Special Inspection 0 $0 0 $0 16 $2,128 16 $2,624 16 $2,000 $6,752

33. Observe Contractor's Final Testing and Commissioning of Utilities 0 $0 0 $0 12 $1,596 16 $2,624 16 $2,000 $6,220

34. Review and Monitor Contractor's On-site Safety 0 $0 0 $0 10 $1,330 12 $1,968 12 $1,500 $4,798

35. Monitor the Quality Control / Quality Assurance Program 0 $0 8 $1,608 20 $2,660 24 $3,936 24 $3,000 $11,204 Jeff Neuenburg -
Construction Inspector SMC
CITY OF CONCORD - Grant Street / East Street Pavement Rehabilitation Project (PJ2525) Matrix of CM Tasks and Fee Proposal for Construction Management Services - (110 Working Days Construction) Robert Addiego -
Project Executive SMC
Oscar Zhao, PE -
Assistant Resident Engineer
Project Manager SMC
Jonathan Haworth -
Sr. Construction Inspector SMC
Greg Armendariz, PE -
Sr. Resident Engineer SMC
Exhibit A to Attachment 3

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REVISED 04/21/2022
SWINERTON MANAGEMENT & CONSULTING Hours per Task Rate/Hour Hours per Task Rate/Hour Hours per Task Rate/Hour Hours per Task Rate/Hour Hours per Task Rate/Hour Rates are for work performed in 2022 $230 $201 $133 $164 $125 Total Cost Task Subtotal Per Task Subtotal Per Task Subtotal Per Task Subtotal Per Task Subtotal Per Task Per Task Jeff Neuenburg -
Construction Inspector SMC
CITY OF CONCORD - Grant Street / East Street Pavement Rehabilitation Project (PJ2525) Matrix of CM Tasks and Fee Proposal for Construction Management Services - (110 Working Days Construction) Robert Addiego -
Project Executive SMC
Oscar Zhao, PE -
Assistant Resident Engineer
Project Manager SMC
Jonathan Haworth -
Sr. Construction Inspector SMC
Greg Armendariz, PE -
Sr. Resident Engineer SMC
Public and Community Relations

36. Ensure Contractor Compliance with Public Notifications 4 $920 8 $1,608 36 $4,788 8 $1,312 10 $1,250 $9,878

37. Coordinate with Residents, Businesses, etc during Construction 4 $920 8 $1,608 48 $6,384 8 $1,312 10 $1,250 $11,474

38. Coordinate with Property Owners, Contractor, Utility Companies 4 $920 8 $1,608 48 $6,384 8 $1,312 10 $1,250 $11,474

39. Outreach - City Staff, Agencies, Consultants for Construction Notices 4 $920 8 $1,608 48 $6,384 8 $1,312 10 $1,250 $11,474

40. Facilitate Necessary Utility Coord w/ Utility Companies, City, Designer & Contractor 4 $920 8 $1,608 16 $2,128 8 $1,312 10 $1,250 $7,218 Post Construction Services

41. Review Close-out Documents (i.e. Record Dwgs, PSA, Warranty) 0 $0 0 $0 4 $532 2 $328 2 $250 $1,110

42. Prepare Close-out Documents / Package 0 $0 0 $0 4 $532 2 $328 2 $250 $1,110

43. Maintain Electronic & Hard Copy Project Files 0 $0 0 $0 4 $532 2 $328 2 $250 $1,110

44. Perform Post Construction Review and Prepare Lessons Learned 2 $460 2 $402 4 $532 2 $328 2 $250 $1,972

45. Prepare Final Estimate & Payment 0 $0 0 $0 4 $532 0 $0 0 $0 $532

46. Perform Claim Resolution / Detailed Schedule Analysis (if needed) 4 $920 4 $804 4 $532 4 $656 4 $500 $3,412

47. One-year Warranty Review / Observe Repairs 4 $920 4 $804 8 $1,064 8 $1,312 8 $1,000 $5,100 Subtotal Hours 80 156 842 750 980
Subtotal Cost per Consultant Individual $18,400 $31,356 $111,986 $123,000 $122,500 Consultant Subtotal $407,242
Allowance for Special Inspection and Materials Testing
Ninyo & Moore $93,500 $93,500
Additional Cost-Reproduction, Photos, Misc Office Supplies $250 $250 Additional Cost-Allowance Subtotal $93,750 $93,750
GRAND TOTAL $500,992
Assumptions:

1. Allowance for Ninyo & Moore equals $85,000 plus 10% for insurance and mark-up. The actual costs will be dependent on the Contractor's schedule and efficiency in completing the work.

2. Ninyo & Moore allowance includes union fees and dues in order to comply with the City's Project Stabilization Agreement.

3. Actual costs for Ninyo & Moore will be billed through Swinerton's contract to the City. Actual costs for Ninyo & Moore will be dependent on the number of inspections.

4. The cost above does not include performing any Night Work (if needed). If Overtime, Night or Weekend work is needed, SMC will provide an Amendment Request to the City for that effort.

5. The Cost Estimate is based on awarding both the Base Bid work and the Bid Alternatives work as shown in the Bid Schedule and project plans.

6. The Cost Estimate is based on the Sr RE and RE being available for approximately 35 hours per week (combined) during the Preconstruction, Construction, and Post-Construction phases.

7. The Cost Estimate is based on the Sr. Construction Inspector being available for 30 hours per week during the Construction Phase, and 10 hours per week during the Post-Construction Phase.

8. The Cost Estimate is based on the Construction Inspector being available for 40 hours per week during the Construction Phase, and 10 hours per week during the Post-Construction Phase.

9. Hours are also alloted to the Project Executive to support to the RE / Project Team as needed.

10. The Cost Estimate is a not-to-exceed amount based on 10 work days of Preconstruction support, 110 work days of Field Construction, and 30 calendar days of Post-Construction / Closeout.

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PROJECT STABILIZATION AGREEMENT

FOR THE CITY OF CONCORD

INTRODUCTION/FINDINGS A
This Project Stabilization Agreement is entered into this /!; day of ~I} ~eµ 2016, by and between the City of Concord (hereinafter, the "City"), together with contractors and subcontractors of all tiers, who shall become signatory to this Agreement by signing the "Agreement To Be Bound" (Addendum A) ( all of whom are referred to herein as "Contractors/Employers"), and the Contra Costa County Building & Construction Trades Council ("Council") and its affiliated local Unions that have executed this Agreement (all of whom are referred to collectively as "Union" or "Unions").

The purpose of this Agreement is to promote the efficiency of construction operations for the City of Concord through the use of skilled labor resulting in quality construction outcomes, and to provide for peaceful settlement of labor disputes and grievances without strikes or lockouts, thereby promoting the public interest in assuring the timely and economical completion of the Project.

WHEREAS, the timely and successful completion of the Project is of the utmost importance to the City to avoid increased costs resulting from delays in construction; and WHEREAS, large numbers of workers of various skills will be required in the performance of the construction work, including those to be represented by the Unions signatory to this Agreement and employed by contractors and subcontractors who are signatory to this Agreement; and
WHEREAS, the use of skilled labor on construction work increases the safety of construction projects as well as the quality of completed work; and WHEREAS, it is recognized that on a Project of this magnitude with multiple contractors and bargaining units on the job site at the same time over an extended period of time, the 11/16/16 cc: CCC Building & Construction Trades
Council, File AA-2733 & MOU
City of Concord Project Stabilization Agreement

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---
Exhibit B to Attachment 3

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potential for work disruption is substantial without an overriding commitment to maintain continuity of work; and
WHEREAS, the interests of the general public, the City, the Unions and the Contractor/Employers would be best served if the construction work proceeded in an orderly manner without disruption because of strikes, sympathy strikes, work stoppages, picketing, lockouts, slowdowns or other interferences with work; and WHEREAS, the Contractor/Employers and the Unions desire to mutually establish and stabilize wages, hours and working conditions for the workers employed on the Project to the end that a satisfactory, continuous and harmonious relationship will exist among the parties to this Agreement; and
WHEREAS, the parties agree that one of the primary purposes of this agreement is to avoid the tensions that might arise on the Project if Union and nonunion workers of different employers were to work side by side on the Project, thereby leading to labor disputes that could delay completion of the Project; and
WHEREAS, this Agreement is not intended to replace, interfere with, abrogate, diminish or modify existing local or national collective bargaining agreements in effect during the duration of the Project, insofar as a legally binding agreement exists between the Contractor/Employer(s) and the affected Union(s), except to the extent that the provisions of this Agreement are inconsistent with said collective bargaining agreements, in which event, the provisions of this Agreement shall prevail; and
WHEREAS, the contracts for the construction of the Project will be awarded in accordance with the applicable provisions of the California State Public Contract Code and state, local and federal laws; and
WHEREAS, the City has the absolute right to select the lowest responsive and responsible bidder for the award of construction contracts on the Project; and WHEREAS, the City places high priority upon the development of comprehensive programs for the recruitment, training and employment of local area residents and military City of Concord Project Stabilization Agreement

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veterans, and recognizing the ability of local apprenticeship programs to provide meaningful and sustainable careers in the building and construction industry; and WHEREAS, the parties signatory to this Agreement pledge their full good faith and trust to work towards mutually satisfactory completion of the Project;

NOW, THEREFORE, IT IS AGREED BETWEEN AND AMONG THE PARTIES HERETO, AS FOLLOWS:

ARTICLE I

DEFINITIONS

1.1 "Agreement" means this Project Stabilization Agreement ("PSA").

1.2 "Agreement to be Bound" means the agreement (attached hereto and incorporated herein as Addendum A) which shall be executed by each and every Contractor(s)/Employer(s) as a condition of performing Project Work.

1.3 "City" means the City of Concord and its public employees, including managerial personnel.

1.4 "Completion" means that point at which there is Final Acceptance by the City of a Construction Contract. For this definition of "Completion," "Final Acceptance" shall mean that point in time at which the City has determined upon final inspection that the work on a Construction Contract has been completed in all respects and all required contract documents, contract drawings, warranties, certificates, manuals and data have been submitted and training completed in accordance with the contract documents and the City has executed a written acceptance of the work.

1.5 "Construction Contract" means the public works or improvement contract( s) awarded by the City (including by design bid, design build, lease leaseback or other means) that are necessary to complete a Project.

1.6 "Contractor/Employer(s)" or "Contractor(s)" or "Employer(s)" means any individual, firm, partnership or corporation, or combination thereof, including joint ventures, that is an independent business enterprise, and their successors and assigns, that enters into a City of Concord Project Stabilization Agreement

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contract with the City (whether by design bid, design build, lease leaseback or other means), with respect to the construction of any part of the Project under contract terms and conditions approved by the City and which incorporate this Agreement, and any of its contractors or subcontractors of any tier.

1. 7 "Council" means the Contra Costa County Building & Construction Trades Council.

1.8 "Master Agreement" or "Schedule A" or "Master Labor Agreement" means the Master Collective Bargaining Agreement of each craft Union signatory hereto, copies of which shall be made available to the City upon request.

1.9 "Project" means a City construction project funded in whole or in part with City of Concord funds where the engineer's estimate or bid amount exceeds seven hundred fifty thousand dollars ($750,000.00). The City and the Council may mutually agree in writing to add additional components to the Project's Scope of Work to be covered under this PSA.

1.10 "Project Manager" means the person or business entity designated by the City to oversee all phases of construction on the Project.

1.11 "Union" or "Unions" means the Contra Costa Building and Construction Trades Council, AFL-CIO ("the Council") and its affiliated Unions signatory to this Agreement, acting in their own behalf and on behalf of their respective affiliates and member organizations whose names are subscribed hereto and who have through their officers executed this Agreement.

ARTICLE II

SCOPE OF AGREEMENT

2.1 Parties: This Agreement shall apply and is limited to all Contractors/Employers performing Construction Contracts on the Project (including subcontractors at any tier), the City, the Council and its affiliated Unions signatory to this Agreement.

2.2 Applicability: The Agreement shall govern all Construction Contracts awarded on City Projects. For the purposes of this Agreement, the Construction Contract shall be considered City of Concord Project Stabilization Agreement

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complete as set forth in Section 1.4, except when the City's authorized representative directs a Contractor to engage in repairs, warranty work, or modifications as required under the original Construction Contract with the City.

2.3 Covered Work: This Agreement covers, without limitation, all on-site site preparation, surveying, construction, alteration, demolition, installation, improvement, painting or repair of buildings, structures and other works, and related activities for the Project that is within the craft jurisdiction of one of the Unions and which is directly or indirectly part of the Project, including, without limitation to the following examples, geotechnical and exploratory drilling, temporary HVAC, landscaping and temporary fencing, pipelines (including those in linear corridors built to serve the project), pumps, pump stations, and modular furniture installation. On-site work includes work done solely for the Project in temporary yards, dedicated sites, or areas adjacent to the Project, and at any on-site or off-site batch plant constructed solely to supply materials to the Project. This scope of work includes all soils and materials testing and inspection where such testing and inspection is a classification in which a prevailing wage determination has been published.

2.3.1 This Agreement shall apply to any start-up, calibration, commissioning performance testing, repair, maintenance, and operational revisions to systems and/or subsystems for a Project that are part of the original Construction Contract, including when performed after Completion, unless it is performed by City employees.

2.3.2 This Agreement covers all on-site fabrication work over which the City, Contractor(s) or subcontractor(s) possess the right of control (including work done for the Project in any temporary yard or area established for the Project). Additionally, this Agreement covers any off-site work, including fabrication, necessary for the Project defined herein, that is covered by a current Schedule A Agreement or local addenda to a National Agreement of the applicable Union(s) that is in effect as of the execution date of this Agreement.

2.3.3 The furnishing of supplies, equipment or materials which are stockpiled for later use shall not be covered by this Agreement. However, construction trucking work, such as the City of Concord Project Stabilization Agreement

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delivery of ready-mix, asphalt, aggregate, sand, or other fill or material which are incorporated into the construction process as well as the off-hauling of debris and excess fill, material and/or mud, shall be covered by the terms and conditions of this Agreement to the fullest extent allowed by law and by the prevailing wage determinations of the California Department of Industrial Relations. Contractor/Employer(s ), including brokers, of persons providing construction trucking work shall provide certified payroll records to the City within ten (10) calendar days of written request or as required by bid specifications.

2.3.4 Work covered by this Agreement within the following craft jurisdictions shall be performed under the terms of their National Agreements as follows: the National Transient Lodge (NTL) Articles of Agreement, the National Stack/Chimney Agreement, the National Cooling Tower Agreement, and the National Agreement of Elevator Constructors, and any instrument calibration work and loop checking shall be performed under the terms of the UNIBEW Joint National Agreement for Instrument and Control Technicians, with the exception that Articles IV, XIV and XV of this Agreement shall apply to such work.

2.4 Exclusions
(1) The Agreement is not intended to, and shall not affect or govern the award of public works contracts by the City which are not included in the Project. (2) The Agreement shall not apply to a Contractor/Employer's non-construction craft employees, including but not limited to executives, managerial employees, engineering employees and supervisors above the level of General Foreman ( except those covered by existing Master Collective Bargaining Agreements), staff engineers or other professional engineers, administrative, management, office and clerical employees. (3) This Agreement shall not apply to any non-Project work performed on or near or leading to the site of work covered by this Agreement that is undertaken by state, county, city or other governmental bodies or their contractors; or by public or private utilities or their contractors;
(4) The Agreement shall not apply to off-site maintenance of leased equipment City of Concord Project Stabilization Agreement

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and on-site supervision of such work; and
(5) Any construction project not bid by the City and performed jointly with another public entity.

2.5 Award of Contracts: It is understood and agreed that the City has the absolute right to select any qualified bidder for the award of Construction Contracts under this Agreement. The bidder need only be willing, ready and able to execute and comply with this Agreement. It is further agreed that this Agreement shall be included in all invitations to bid or solicitations for proposals from contractors or subcontractors for work on the Project that are issued on and after the effective date of this Agreement. A copy of all invitations to bid shall be provided at time of issuance to the Council.

ARTICLE III

EFFECT OF AGREEMENT

3.1 By executing the Agreement, the Unions and the City agree to be bound by each and all of the provisions of the Agreement.

3.2 By accepting the award of a construction contract for the Project, whether as contractor or subcontractor thereunder, the Contractor/Employer agrees to be bound by each and every provision of the Agreement and agrees that it will evidence its acceptance prior to the commencement of work by executing the Agreement to be Bound in the form attached hereto as Addendum A.

3.3 At the time that any Contractor/Employer enters into a subcontract with any subcontractor providing for the performance of a construction contract, the Contractor/Employer shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor as a precondition of accepting an award of a construction subcontract to agree in writing, by executing the Agreement to be Bound, to be bound by each and every provision of this Agreement prior to the commencement of work. The obligations of a contractor may not be evaded by subcontracting.

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3.4 This Agreement shall only be binding on the signatory parties hereto, and their successors and assigns, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such party. Each Contractor shall alone be liable and responsible for its own individual acts and conduct and for any breach or alleged breach of this Agreement. Any dispute between the Union(s) and the Contractor(s) respecting compliance with the terms of the Agreement, shall not affect the rights, liabilities, obligations and duties between the signatory Union(s) and other Contractor(s) party to this Agreement.

3.5 It is mutually agreed by the parties that any liability by a signatory Union to this Agreement shall be several and not joint. Any alleged breach of this Agreement by a signatory Union shall not affect the rights, liabilities, obligations and duties between the signatory Contractor(s) and the other Union(s) party to this Agreement.

3.6 The provisions of this Agreement, including Schedules A's, which are incorporated herein by reference and which are the local Master Agreements of the Signatory Unions having jurisdiction over the work on the Project, shall apply to the work covered by this Agreement, notwithstanding the provisions of any other local, area and/or national agreements which may conflict with or differ from the terms of this Agreement. Where a subject covered by the provisions of this Agreement is also covered by a Schedule A, the provisions of this Agreement shall prevail. Where a subject is covered by the provisions of a Schedule A and is not covered by this Agreement, the provisions of the Schedule A shall prevail.

ARTICLE IV

WORK STOPPAGES, STRIKES, SYMPATHY STRIKES AND LOCKOUTS

4.1 The Unions, City and Contractor(s)/Employer(s) covered by the Agreement agree that for the duration of the Project:

4.1.1 There shall be no strikes, sympathy strikes, work stoppages, picketing, handbilling or otherwise advising the public that a labor dispute exists, or slowdowns of any kind, for any reason, by the Unions or employees employed on the Project, at the job site of the Project or at any City of Concord Project Stabilization Agreement

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other facility of City because of a dispute on the Project. Disputes arising between the Unions and Contractor(s)/ Employer(s) on other City projects are not governed by the terms of the Agreement or this Article.

4.1.2 There shall be no lockout of any kind by a Contractor/Employer of workers employed on the Project.

4.1.3 If a Master Agreement expires before the Contractor/Employer completes the performance of work under the Construction Contract and the Union or Contractor/Employer gives notice of demands for a new or modified Master Agreement, the Union agrees that it will not strike on work covered under this Agreement and the Union and the Contractor/Employer agree that the expired Master Agreement shall continue in full force and effect for work covered under this Agreement until a new or modified Master Agreement is reached. If the new or modified Master Agreement provides that any terms of the Master Agreement shall be retroactive, the Contractor/ Employer agrees to comply with any retroactive terms of the new or modified Master Agreement which are applicable to employees who were employed on the projects during the interim, with retroactive payment due within seven (7) days of the effective date of the modified Master Agreement.

4.1.4 In the case of nonpayment of wages or trust fund contributions on the Project, the Union shall give the City and the Contractor/Employer(s) three (3) business days' notice when nonpayment of trust fund contributions has occurred and one (1) business days' notice when nonpayment of wages has occurred or when paychecks being tendered to a financial institution normally recognized to honor such paychecks will not honor such paycheck as a result of insufficient funds, of the intent to withhold labor from the Contractor/Employer(s )' or their subcontractor's workforce, during which time the Contractor/Employer shall have the opportunity to correct the default. In this instance, a Union's withholding of labor (but not picketing) from an Contractor/Employer who has failed to pay its fringe benefit contributions or failed to meet its weekly payroll shall not be considered a violation of this Article.

4.1.5 If the City contends that any Union has violated this Article, it will notify in writing City of Concord Project Stabilization Agreement

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(including email) the Senior Executive of the Council and the Senior Executive of the Union, setting forth the facts alleged to violate the Article, prior to instituting the expedited arbitration procedure set forth below. The Council will immediately use his/her best efforts to cause the cessation of any violation of this Article. The leadership of the Union will immediately inform the membership of their obligations under this Article. A Union complying with this obligation shall not be held responsible for unauthorized acts of employees it represents.

4.2 Expedited Arbitration: Any party to this Agreement shall institute the following procedure, prior to initiating any other action at law or equity, when a breach of this Article is alleged to have occurred:

4.2.1 A party invoking this procedure shall notify Robert Hirsch, as the permanent arbitrator, or Barry Winograd, as the alternate arbitrator under this procedure. In the event that the permanent arbitrator is unavailable at any time, the alternate will be contacted. If neither is available, then a selection shall be made from the list of arbitrators in Section 14.2. Notice to the arbitrator shall be by the most expeditious means available, with notices by facsimile, email or telephone to the City and the party alleged to be in violation, and to the Council and involved local Union if a Union is alleged to be in violation.

4.2.2 Upon receipt of said notice, the City will contact the designated arbitrator named above or his alternate who will attempt to convene a hearing within twenty-four (24) hours if it is contended that the violation still exists.

4.2.3 The arbitrator shall notify the parties by facsimile, email or telephone of the place and time for the hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator's discretion, shall not exceed twenty-four (24) hours unless otherwise agreed upon by all parties. A failure of any party to attend said hearings shall not delay the hearing of evidence or the issuance of an award by the arbitrator.

4.2.4 The sole issue at the hearing shall be whether or not a violation of Article IV, Section 4.1 of the Agreement has occurred. The arbitrator shall have no authority to consider any matter of justification, explanation or mitigation of such violation or to award damages, which City of Concord Project Stabilization Agreement

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issue is reserved for court proceedings, if any. The award shall be issued in writing within three (3) hours after the close of the hearing, and may be issued without a written opinion. If any party desires a written opinion, one shall be issued within fifteen (15) calendar days, _but its issuance shall not delay compliance with or enforcement of the award. The arbitrator may order cessation of the violation of this Article and other appropriate relief and such award shall be served on all parties by hand or registered mail upon issuance. Should a party found in violation of this Article fail to comply with an Arbitrator's award to cease the violation, the party in violation shall pay to the affected party (the City for a strike violation, the applicable Union(s) and trust fund(s) on behalf of the affected workers for a lockout violation) as liquidated damages the sum of ten thousand dollars ($10,000.00) per shift for which it failed to comply, or portion thereof, until such violation is ceased. The Arbitrator shall retain jurisdiction to resolve any disputes regarding the liquidated damages claimed under this section.

4.2.5 Such award may be enforced by any Court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to above in the following manner.

Written notice of the filing of such enforcement proceedings shall be given to the other party. In the proceeding to obtain a temporary order enforcing the arbitrator's award as issued under Section

4.2.4 of this Article, all parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any party's right to participate in a hearing for a final order or enforcement. The Court's order or orders enforcing the arbitrator's award shall be served on all parties by hand or delivered by certified mail.

4.2.6 Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure, or which interfere with compliance, are waived by the parties.

4.2.7 The fees and expenses of the arbitrator shall be divided equally between the party instituting the arbitration proceedings and the party alleged to be in breach of its obligation under this Article.

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ARTICLEV

PRE-CONSTRUCTION CONFERENCE

5.1 Timing: The Project Manager shall convene and conduct a pre-job conference with representatives of all involved Contractors/Employers, who shall be prepared to announce craft assignments and to discuss in detail the scope of work and other issues as set forth below, and the Unions, at a location mutually agreeable to the parties at least twenty-one (21) calendar days prior to:
(a) The commencement of any Project Work, and
(b) The commencement of Project Work on each subsequently awarded construction contract or phase.
5 .2 The conference shall be attended by a representative of each participating Contractor and each affected Union and the Council and City may attend at their discretion.

5.3 Pre-Job Conference. The pre-job conference will consist of:
(a) A listing of each Contractor's scope of work;
(b) The craft assignments;
( c) The estimated number of craft workers required to perform the work; ( d) Transportation arrangements;
( e) The estimated start and completion dates of the work; and ( f) Discussion of pre-fabricated materials.
5 .4 Review Meetings: In order to ensure the terms of the PLA are being fulfilled and all concerns pertaining to the City, the Unions, and the Contractors are addressed, the Project Manager, General Contractor and CEO of the Council or designated representatives thereof shall meet on a periodic basis during the term of construction of a Project.

ARTICLE VI

NO DISCRIMINATION

6.1 The Contractor/Employers and Unions agree to comply with all anti- City of Concord Project Stabilization Agreement

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discrimination provisions of federal, state and local law, to protect employees and applicants for employment, on the Project.

ARTICLE VII

UNION SECURITY

7.1 The Contractor/Employers recognize the Union(s) as the sole bargaining representative of all craft employees working within the scope of this Agreement.

7.2 All employees who are employed by the Contractor/Employer(s) shall, as a condition of employment, on or before the eighth (8th) day of consecutive or cumulative employment on a construction contract subject to this Agreement, be responsible for the payment of the applicable monthly working dues and any associated fees uniformly required for Union membership in the applicable local Union which is signatory to this Agreement and shall stay current with such working dues and fees for the duration of work on the Project. Further, there is nothing in this Agreement that would prevent non-union employees from joining the local Union.

7.3 Authorized representatives of the Unions shall have access to the Projects whenever work covered by this Agreement is being, has been, or will be performed on the Project.

ARTICLE VIII

REFERRAL

8.1 Contractor/Employers performing construction work on the Project described in the Agreement shall, in filling craft job requirements, utilize and be bound by the registration facilities and referral systems established or authorized by the Unions signatory hereto. The Contractor/Employer(s) shall have the right to reject any applicant referred by the Union(s), in accordance with the applicable Master Agreement.

8.2 The Contractor(s) shall have the unqualified right to select and hire directly all supervisors above general foreman it considers necessary and desirable, without such persons being referred by the Union(s), (unless covered by an existing Master Agreement).

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8.3 In the event that referral facilities maintained by the Union(s) are unable to fill the requisition of a Contractor/Employer for employees within a forty-eight ( 48) hour period (Saturdays, Sundays and Holidays excluded) after such requisition is made by the Contractor/Employer(s), the Contractor/Employer(s) shall be free to obtain work persons from any source. A Contractor who hires any personnel to perform covered work on the Project pursuant to this Section shall immediately provide the appropriate Union with the name and address of such employee(s) and shall immediately refer such employee(s) to the appropriate Union to satisfy the requirements of Article VII of this Agreement.

8.4 Local Hire: It is in the interest of the parties to this Agreement to facilitate employment of City of Concord and Local Area residents and to use resources in the Local Area in construction of the Project. The "Local Area" shall be defined as the communities of Concord and Contra Costa County to be served by the Project. It is the objective of the parties that not less than twenty-five percent (25%) of all hours worked on the Project, on a craft by craft basis, be worked by residents of the Local Area. The Unions will exert their utmost efforts to recruit sufficient numbers of skilled craft persons to fulfill the requirements of the contractor. The Parties to this Agreement support the development of increased numbers of skilled construction workers from the Local Area. To the extent allowed by law, and consistent with the Local Union's hiring hall provisions, and as long as they possess the requisite skills and qualifications, residents of the Local Area, including journeymen and apprentices, shall be referred for Project work covered by this Agreement.

ARTICLE IX

WAGES AND BENEFITS

9.1 All Contractor/Employers agree to pay contributions to the established vacation, pension and other form of deferred compensation plan, apprenticeship, worker protection and assistance, and health benefit funds established by the applicable Master Agreement for each hour worked on the Project in the amounts designated in the Master Agreements of the appropriate signatory Unions.

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9 .2 By signing this Agreement, the Contractor/Employers adopt and agree to be bound by the written terms of the legally established Trust Agreements, as described in Section

9.1, which may from time to time be amended, specifying the detailed basis on which payments are to be made into, and benefits paid out of, such Trust Funds. The Contractors authorize the parties to such local trust agreements to appoint trustees and successor trustees to administer the trust funds and hereby ratify and accept the trustees so appointed as if made by the Contractor(s).

The Contractors/Employers agree to execute a separate Subscription Agreement(s) for Trust Funds when such Trust Fund( s) requires such document( s ).

9.3 Wages, Hours, Terms and Conditions of Employment: The wages, hours and other terms and conditions of employment on the Project shall be governed by the Master Agreement of the respective crafts, to the extent such Master Agreement is not inconsistent with this Agreement. Where a subject is covered by the Master Agreement and not covered by this Agreement, the Master Agreement will prevail. When a subject is covered by both the Master Agreement and this Agreement, to the extent there is any inconsistency, this Agreement will prevail.
9 .4 Holidays: Holidays shall be m compliance with the applicable Master Agreement.

ARTICLEX

APPRENTICES

10.1 Recognizing the need to develop adequate numbers of competent workers in the construction industry, the Contractor/Employer(s) shall employ apprentices of a California State approved Joint Apprenticeship Training Program in the respective crafts to perform such work as is within their capabilities and which is customarily performed by the craft in which they are indentured.

10.2 The apprentice ratios will be in compliance with the applicable provisions of the · California Labor Code and Prevailing Wage Rate Determination.

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10.3 It is an objective of the parties to the Agreement that twenty-five percent (25%) of craftworkers, including apprentices, shall be Local Area residents. The Contractors shall reach this goal through utilization of the normal hiring hall procedures. The Unions are committed to working with the Contractors to achieve these goals. All apprentices referred to Contractors under this Agreement shall be emolled in State of California approved Joint Apprentice Training Programs.

10.4 Consistent with the Master Agreements and state law, there shall be no restriction on the utilization of apprentices in performing the work of their craft provided they are properly supervised.

ARTICLE XI

HELMETS TO HARDHATS

11.1 The Contractor/Employer(s) and the Unions recognize a desire to facilitate the entry into the building and construction trades of veterans who are interested in careers in the building and construction industry. The Contractor(s)/Employer(s) and Unions agree to utilize the services of the Center for Military Recruitment, Assessment and Veterans Employment (hereinafter "Center), a joint Labor-Management Cooperation Trust Fund, established under the authority of Section 6(b) of the Labor-Management Cooperation Act of 1978, 29 U.S.C. Section 175(a), and Section 302(c)(9) of the Labor-Management Relations Act, 29 U.S.C. Section 186(c)(9), and a charitable tax exempt organization under Section 501(c)(3) of the Internal Revenue Code, and the Center's "Helmets to Hardhats" program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the parties.

11.2 The Unions and Contractor(s)/Employer(s) agree(s) to coordinate with the Center to participate in an integrated database of veterans and members of the National Guard and Reserves interested in working on the Project and of apprenticeship and employment City of Concord Project Stabilization Agreement

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opportunities for this Project. To the extent permitted by law, the Unions will give credit to such veterans and members of the National Guard and Reserves for bona fide, provable past experience.

ARTICLE XII

COMPLIANCE

12.1 It shall be the responsibility of the Contractor(s)/Employer(s) and Unions to investigate and monitor compliance with the provisions of the Agreement contained in Article IX. Nothing in this agreement shall be construed to interfere with or supersede the usual and customary legal remedies available to the Unions and/or employee benefit Trust Funds to collect delinquent Trust Fund contributions from Contractor(s)/Employer(s) on the Project.

The City shall monitor and enforce compliance with prevailing wage requirements of the state only to the extent required by law, and Contractors/Employers' compliance with this Agreement.

ARTICLE XIII

EMPLOYEE GRIEVANCE PROCEDURE

13.1 All disputes involving discipline and/or discharge of employees working on the Project shall be resolved through the grievance and arbitration provision contained in the Master Agreement for the craft of the affected employee. No employee working on the Project shall be disciplined or dismissed without just cause.

ARTICLE XIV

GRIEVANCE ARBITRATION PROCEDURE

14.1 Project Labor Disputes: All project labor disputes involving the application or interpretation of the Master Agreement to which a signatory Contractor/Employer and a signatory Union are parties shall be resolved pursuant to the resolution procedures of that Master City of Concord Project Stabilization Agreement

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Agreement. All disputes relating to the interpretation or application of this Agreement shall be subject to resolution by the grievance arbitration procedures set forth herein.

14.2 No grievance shall be recognized unless the grieving party (Local Union or District Council on its own behalf, or on behalf of an employee whom it represents, or a Contractor/Employer on its own behalf) provides notice in writing to the party with whom it has a dispute within five (5) business days after becoming aware of the dispute but in no event more than thirty (30) business days after it reasonably should have become aware of the event giving rise to the dispute. Time limits may be extended by mutual written agreement of the parties.

Step 1: Within five (5) business days after the receipt of the written notice of the grievance, the Business Representative of the involved Local Union or District Council, or his/her designee, or the representative of the employee, and the representative of the involved Contractor/Employer shall confer and attempt to resolve the grievance.

Step 2: In the event that the representatives are unable to resolve the dispute within the five (5) business days of the Step 1 meeting, within five (5) business days thereafter, the alleged grievance may be referred in writing by either involved party to the Business Manager(s) of the affected Union(s) involved and the Manager of Labor Relations of the Employer(s) or the Manager's designated representative, for discussion and resolution.

Regardless of which party has initiated the grievance proceeding, prior to a Step 2 meeting, the Union(s) shall notify its International Union representative(s), which shall advise both parties if it intends on participating in a Step 2 meeting. The Project Manager and the Council shall have the right to participate in any efforts to resolve the dispute at Step 2.

Step 3: If the grievance is not settled in Step 2, within five (5) business days of the Step 2 meeting, either party may request the dispute be submitted to arbitration or the time may be extended by mutual consent of both parties. Within five (5) business days after referral of a dispute to Step 3, the representatives shall choose a mutually agreed upon arbitrator for final and binding arbitration. The parties agree that if the permanent arbitrator or his alternate is not available, an arbitrator shall be selected by the alternate striking method from the City of Concord Project Stabilization Agreement

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list of three (3) below. The order of striking names from the list of arbitrators shall be determined by a coin toss, the winner of which shall decide whether they wish to strike first or second.

1. William Riker

2. William Engler

3. Morris Davis
The decision of the Arbitrator shall be final and binding on all parties. The Arbitrator shall have no authority to change, amend, add to or detract from any of the provisions of the Agreement.

The expense of the Arbitrator shall be borne equally by both parties. The Arbitrator shall arrange for a hearing on the earliest available date from the date of his/her selection. A decision shall be given to the parties within five (5) calendar days after completion of the hearing unless such time is extended by mutual agreement. A written opinion may be requested by a party from the presiding arbitrator.

The time limits specified in any step of the Grievance Procedure set forth in Section 14.2 may be extended by mutual agreement of the parties. However, failure to process a grievance, or failure to respond in writing within the time limits provided above, without an agreed upon extension of time, shall be deemed a waiver of such grievance without prejudice, or without precedent to the processing of and/or resolution of like or similar grievances or disputes.

In order to encourage the resolution of disputes and grievances at Steps 1 and 2 of this Grievance Procedure, the parties agree that such settlements shall not be precedent setting.

14.3 Retention: At the time a grievance is submitted under this Agreement or any Master Agreement, the Union(s) may request that the City withhold and retain an amount from what is due and owing to the Contractor(s) against whom the grievance is filed, sufficient to cover the damages alleged in the grievance, should the Union( s) prevail. The amount shall be retained by the City until such time as the underlying grievance giving rise to the retention is withdrawn, settled, or otherwise resolved, and the retained amount shall be paid to whomever the parties to the grievance shall decide, or to whomever an Arbitrator shall so order.

City of Concord Project Stabilization Agreement

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14.4 Should any of the arbitrators listed in this Article or Article IV no longer work as a labor arbitrator, the City and the Council shall mutually agree to a replacement.

ARTICLE XV
WORK ASSIGNMENTS AND ,JURISDICTIONAL DISPUTES:
15 .1 The assignment of Covered Work will be solely the responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of the Jurisdictional Disputes in the Construction Industry (the "Plan") or any successor Plan.

15.2 All jurisdictional disputes on this Project between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement.

15.3 If a dispute arising under this Article involves the Northern California Carpenters Regional Council or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, and the Arbitrator's hearing on the dispute shall be held at the offices of the California State Building and Construction Trades Council in Sacramento, California, within fourteen (14) calendar days of the selection of the Arbitrator. All other procedures shall be as specified in the Plan.
15 .4 All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Employer's assignment shall be adhered to until the dispute is resolved. Individual employees violating this section shall be subject to immediate discharge. Each Employer will conduct a pre-job conference with the Council prior to commencing work. The Project Manager and City will be advised in advance of all such City of Concord Project Stabilization Agreement

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conferences and may participate if they wish. Pre-job conferences for different Employers may be held together.

ARTICLE XVI

MANAGEMENT RIGHTS

16.1 The Contractor/Employer(s) shall retain full and exclusive authority for the management of their operations, including the right to direct their work force in their sole discretion. No rules, customs or practices shall be permitted or observed which limit or restrict production, or limit or restrict the working efforts of employees, except that lawful manning provisions in the Master Agreement shall be recognized.

ARTICLE XVII

DRUG & ALCOHOL TESTING

17.1 The use, sale, transfer, purchase and/or possession of a controlled substance, alcohol and/or firearms at any time during the work day is prohibited. 17 .2 Drug and alcohol testing shall be conducted in accordance with the Substance Abuse Prevention Policies set forth in each applicable Schedule A.

ARTICLE XVIII

SAVINGS CLAUSE

18.1 The parties agree that in the event any article, provision, clause, sentence or word of the Agreement is determined to be illegal or void as being in contravention of any applicable law, by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect. The parties further agree that if any article, provision, clause, sentence or word of the Agreement is determined to be illegal or void, by a court of competent jurisdiction, the parties shall substitute, by mutual agreement, in its place and stead, an article, provision, clause, sentence or word which will meet the objections to its validity and which will be in accordance with the intent and purpose of the article, provision, clause, sentence or word in question.

City of Concord Project Stabilization Agreement

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18.2 The parties also agree that in the event that a decision of a court of competent jurisdiction materially alters the terms of the Agreement such that the intent of the parties is defeated, then the entire Agreement shall be null and void.

18.3 If a court of competent jurisdiction determines that all or part of the Agreement is invalid and/or enjoins the City from complying with all or part of its provisions and the City accordingly determines that the Agreement will not be required as part of an award to a Contractor/Employer, the Unions will no longer be bound by the provisions of Article IV.

ARTICLE XIX

AMENDMENT/COUNTERPARTS/AUTHORITY

19.1 Any substantive modification of any provision or addendum to this Agreement must be reduced to writing and signed by the City, Council and Unions to be effective.

19.2 This Agreement may be executed in counterparts, such that original signatures may appear on separate pages, and when bound together all necessary signatures shall constitute an original. Facsimile or scanned signature pages transmitted to other parties to this Agreement shall be deemed equivalent to original signatures.
19 .3 Each of the persons signing this Agreement represents and warrants that such person has been duly authorized to sign this Agreement on behalf of the party indicated and each of the parties by signing this Agreement warrants and represents that such party is legally authorized and entitled to enter into this Agreement.

ARTICLE XX
TERM

20.1 The Agreement shall be included as a condition of the award of construction contracts for the Project.

City of Concord Project Stabilization Agreement

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20.2 This Agreement shall become effective on the day it is executed by the City and by the Council.

20.3 This Agreement shall remain in full force and effect for a period of five (5) years from the date it becomes effective. Prior to the expiration of the term of this Agreement, the City and the Council agree to meet and confer regarding the status of and experience with Projects covered by the Agreement. Any mutually agreed to substantive changes to the Agreement shall not be effective unless and until approved by the City Council. Absent substantive changes, the Agreement will roll over for an additional period of five (5) years.

Date---=-}_{-_/ ~---+-(_..__h __ _

CONTRA COSTA BUILDING AND

CONSTRUCTI N TRAD OUNCIL, AFL-CIO (COUNCIL)
APPROVED AS TO FORM:
~Lt.J~ ty Attorney
Date \Q-\~ - \<a.

City of Concord Project Stabilization Agreement
Page23 of25

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SIGNATURE BLOCKS FOR UNIONS
~L·~
Boilcrmak~rs Local #549
d~ BnckhiJ;ilf ca1 #3 . . . •.. ···· ...
orthern California Carpenters Regional
Council for itself and 011, behalf of
its affiliated "local Unions
~·~ . ratingEngineers Local #3
Teamsters Local #315
Iwn Work
( -\ ' ( ...
~ '-- ~\ L"' ...t ~
Northern California District Council
Of Laborers for itself and on behalf of
lts affiliated local Unions
Electrical Workers. Local #302
United Association Local #159
City of Concord Project Stabilization Agreement

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Addendum A

CITY OF CONCORD

PROJECT STABILIZATION AGREEMENT

AGREEMENT TO BE BOUND
[Addressee]
[Address]
[City and State]
Re: City of Concord Project Labor Agreement.

Dear Mr. /Ms. _____ _
The undersigned party confirms that it agrees to be a party to and bound by the City of Concord Project Stabilization Agreement as such Agreement may, from time to time, be amended by the parties or interpreted pursuant to its terms.

By executing this Agreement to Be Bound, the undersigned party subscribes to, adopts and agrees to be bound by the written terms of the legally established trust agreements as set forth in Article 9.1, as they may from time to time be amended, specifying the detailed basis upon which contributions are to be made into, and benefits made out of, such trust funds and ratifies and accepts the trustees appointed by the parties to such trust funds.

Such obligation to be a party to and bound by this Agreement shall extend to all work covered by the City of Concord Project Stabilization Agreement undertaken by the undersigned party. The undersigned party shall require all of its subcontractors, of whatever tier, to become similarly bound for all their work within the scope of this Agreement by signing an identical Agreement to Be Bound.

This letter shall constitute a subscription agreement, to the extent of the terms of the letter. However, the undersigned agrees to execute a separate Subscription Agreement(s) for Trust Funds when such Trust Fund(s) so requires.

CONTRACTOR/SUBCONTRACTOR:

Project Contract Number:

California State License Number:
or Motor Carrier (CA) Permit Number
Name and Signature of Authorized Person:
(Print Name)
(Title)
State Public Works Registration Number: ------------------ City of Concord Project Stabilization Agreement

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Staff Report
Date: May 24, 2022
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Jasmin Loi, Director of Human Resources
Prepared by: James Peavey, Human Resources Manager
[email protected]
(925) 671-3397
Subject: Considering adoption of a Resolution amending Policy & Procedure 37.4-Employment of Relatives.

CEQA: Not a project/exempt per Public Resources Code
Section 21065, 14 Cal Code Regs. Sections 15060(c)(2),
15060(c)(3), 15378, 15061(b)(2), 15061(b)(3) and/or 15378(b)(4).

Report in Brief
The City of Concord’s (“City”) approach to maintaining a professional work environment free of conflicts of interest, nepotism and favoritism is documented in its Policy & Procedure 37.4-Employment of Relatives (“Policy”). The Policy covers elected officials, appointed officials, Executive Team members and all employees. However, via Municipal Code §2.10.140(3)-City Manager Duties, Council delegated authority over all employees to the City Manager. Therefore, to conform to the Municipal Code, the Policy will be amended to remove coverage of employees.1 Employees will be covered by a City Manager issued Administrative Directive.

Recommended Action
Adopt a resolution (“Resolution”) amending Policy & Procedure 37.4-Employment of Relatives, a copy of which is found as Attachment 1.
1 The City Manager, City Attorney, and Councilmembers will remain covered by the Policy.

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City Council Agenda Report
Agenda Item No. 3.e
May 24, 2022
Background
The City is committed to maintaining a professional work environment free of conflicts of interest, nepotism and favoritism. A workplace where employees maintain clear boundaries between family, personal and work relationships leads to an environment that is fair, equitable and safe; promotes high employee morale; and ensures trust in the City’s merit based employment system.

With over 400 full time employees, it is probable that members of the same family and people in romantic relationships may work for the City. Ordinarily, these relationships do not pose workplace problems. The purpose of a Policy and Procedure is to explain when family and/or romantic2 relationships may cause problems—or the appearance or perception of problems—related to nepotism, 3 favoritism or conflicts of interest at work and to establish standards and disclosure requirements to prevent those problems from occurring.

Staff periodically discovers discrepancies within Policies and Procedures regarding the Municipal Code and presents these items to Council so they can be addressed. These updates are considered housekeeping changes as they allow the City to comply with the Municipal Code and/or do not change the Municipal Code’s intent.

In the spring of 2022, staff discovered the Policy was partially inconsistent with the Municipal Code because its broad language covering all employees infringes on the City Manager’s authority to exercise control of employees.4 A copy of the current Policy is found as Attachment 3, and a copy of Municipal Code §2.10.140(3)-City Manager Duties, is found at Attachment 4.

Analysis
Per the Municipal Code, as the administrative head of the City government, the City Manager exercises control over all departments and divisions of City government and over all appointive officers and employees. Therefore, the rules concerning employees’ family and romantic relationships at work should originate from the City Manager via a new Administrative Directive.5 The City Manager shall issue such an Administrative Directive, after first discussing with union representatives, within days after Council’s action on the Policy before it on May 24, 2022.
2 Romantic relationships between supervisors and subordinate employees may raise issues of conflict of interest, abuse of authority and/or favoritism. These relationships also have the potential to adversely impact other employees. Moreover, the real or perceived power imbalance that may exist between a supervisor and a subordinate may raise questions about mutual consent. 3 Nepotism occurs when family members favor other family members in employment decisions. Nepotism does not align with the City’s practice of making employment decisions based solely on City needs, merit based processes and individual qualifications, skills, knowledge, abilities and performance.
4 Staff will continue to review Policy and Procedures and—when appropriate—ask Council to amend a Policy and Procedure to ensure conformity with the Municipal Code and/or other laws, rules or regulations. 5 With the exception of the City Manager and the City Attorney, the administrative directive will apply to all City employees (e.g., contract, permanent civil service, exempt, temporary, full time, part time and provisional), interns and volunteers. These individuals will be referred to collectively as “employees” solely for purposes of the administrative directive.

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City Council Agenda Report
Agenda Item No. 3.e
May 24, 2022
The City Manager’s Administrative Directive will continue the benefits of having clear expectations around employment of relatives such that the workplace maintains clear boundaries between family, personal and work relationships and leads to an environment that is fair, equitable and safe; promotes high employee morale; and ensures trust in the City’s merit based employment system. The City Manager will also be creating additional flexibility in the new Administrative Directive for relatives to be hired within the same department when the department is large enough to be structured to keep relatives out of the direct chain of command. This step is anticipated to help with recruitment, particularly with the summer help in the Parks & Recreation Department and in general within the Police Department.

Financial Impact
There is not a financial impact. This is a policy update.

Environmental Determination
None of the activities addressed herein constitute a “project” within the meaning of Public Resources Code Section 21065, 14 Cal Code Regs. Section 15060(c)(2), 15060(c)(3), or 15378 because none of the activities has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, even if any activity was a project under CEQA, each is exempt under 14 Cal. Code Regs. Sections 15061(b)(2), 15061(b)(3), and 15378(b)(4).

Public Contact
The City Council Agenda was posted.

Attachments

1. Resolution amending Policy & Procedure 37.4-Employment of Relatives Exhibit A: Policy & Procedure 37.4-Employment of Relatives (amended version, revised May 24, 2022)

2. Policy & Procedure 37.4-Employment of Relatives (redline version)

3. Municipal Code §2.10.140-City Manager Duties

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Res. No. 22-XX 1

BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD

COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
A Resolution Amending Policy & Procedure 37.4-
Employment of Relatives
Resolution No. 22-XX
/
WHEREAS, per Municipal Code §2.10.140(3)-City Manager Duties, Council delegated authority over all employees to the City Manager; and
WHEREAS, on February 10, 2004, Council adopted a resolution creating Policy & Procedure

37.4-Employment of Relatives; and
WHEREAS, on July 10, 2012, Council adopted a resolution revising Policy & Procedure

37.4-Employment of Relatives; and
WHEREAS, in the spring of 2022, City staff discovered that certain sections of Policy & Procedure 37.4-Employment of Relatives, were inconsistent with the Municipal Code §2.10.140(3)- City Manager Duties, because of its broad language covering all employees infringes on the City Manager’s authority to exercise control of employees; and WHEREAS, Council, after giving all public notices required by State law and Concord Municipal Code, held a duly noticed public hearing on May 24, 2022, to consider this action; and WHEREAS, at such public hearing, Council considered all oral and written testimony, materials and information received, including oral and written responses from City staff given on or dated May 24, 2022, all attachments thereto, any correspondence presented, and all other pertinent testimony, other materials and information, which are maintained at the offices of the City of Concord, City Clerk, 1950 Parkside Drive, Concord, CA 94519; and WHEREAS, on May 24, 2022, the Council, after consideration thereof, moved to approve the recommendation of staff and adopt Resolution No. 22-XX. //
//
//
//
Attachment 1

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Res. No. 22-XX 2

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD DOES RESOLVE AS FOLLOWS:

Section 1. None of the activities addressed herein constitute a “project” within the meaning of Public Resources Code Section 21065, 14 Cal Code Regs. Section 15060(c)(2), 15060(c)(3), or 15378 because none of the activities has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, even if any activity was a project under CEQA, each is exempt under 14 Cal. Code Regs. Sections 15061(b)(2), 15061(b)(3), and 15378(b)(4).

Section 2. The City Council amends to make changes to update City policies, as shown in Exhibit A. This resolution shall become effective immediately upon its passage and adoption.

PASSED AND ADOPTED by the City Council of the City of Concord on May 24, 2022, by the following vote:

AYES: Councilmembers -
NOES: Councilmembers -
ABSTAIN: Councilmembers -
ABSENT: Councilmembers -
I HEREBY CERTIFY that the foregoing Resolution No. 22-XX was duly and regularly adopted at a regular meeting of the City Council of the City of Concord on May 24, 2022.

Joelle Fockler, MMC
City Clerk
APPROVED AS TO FORM:

Susanne Meyer Brown
City Attorney
Attachment: Exhibit A: Policy & Procedure 37.4-Employment of Relatives (revised May 24, 2022)

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POLICY & PROCEDURE No. 37.4

CITY OF CONCORD

EMPLOYMENT OF RELATIVES

1. POLICY STATEMENT
Number:

Authority:

Effective:

Revised:

Reviewed:

Initiating Dept.:

37.4 Council Motion
02-10-04
05-24-22
2012
HR

1.1 To avoid the potential for creating an adverse impact on supervision, safety, security or morale, actual
or perceived conflicts of interest, and the potential for nepotism and/or favoritism, the City of Concord ("City") giall not appoint any person to a position in any department, division or facility, whenever that person has a relationship to an elected City official, the City Manager or the City Attorney.

2. PURPOSE

2.1 The purpose of this Policy & Procedure is to ensure appointments and advancements are made on the basis of merit. This Policy & Procedure also is adopted to avoid the potential for creating an adverse impact on supervision, safety, security or morale, actual or perceived conflicts of interest, and the potential for nepotism or favoritism.

3. DEFINITIONS

3.1 Relationship: As used in this policy, refers to the affiliation between individuals who are related by blood, or adoption including the following: child, step-child, parent, step-parent, grandparent, grand child, brother, sister, half-brother, half-sister, aunt, uncle, niece, nephew, parent-in-law, daughter-in law, son-in-law, brother-in-law and sister-in-law.
3 .2. Spouse means a partner in marriage as defined in California Civil Code 4100.

3.3 Marital Status is an individual's state of marriage, non-marriage, divorce or dissolution, separation, annulment or other marital state.

3.4 Domestic Partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring, as defined in California Family Code Section 297.

3.5 Elected City Official is a person as defined in the City Municipal Code.

4. POLICY

4.1 While the City does not discriminate in its employment and personnel actions with respect to its employees, prospective employees, and applicants on the basis of marital status (Government Code 12940), the City shall not appoint any person whenever that person has a relationship to any elected City official, the City Manager or the City Attorney.

4.2 In implementing this policy, it is lawful to ask an applicant to state whether he/she has a relationship to an elected City official, the City Manager or the City Attorney, but such information may not be used as a basis for an employment decision except as stated herein.

4.3 Individuals who become related persons during City employment or while on a re-employment list must promptly disclose the relationship to the Human Resources Director. 1 Exhibit A to Attachment 1

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Attachment 2

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2.10.140 Duties.

The City Manager shall be the administrative head of the city government under the direction and control of the Council, except as otherwise provided for by ordinance. He shall be responsible to the City Council for the efficient administration of the affairs of the city which are under his control. In addition to the City Manager’s general powers as administrative head, and not as a limitation thereon, he shall have the following duties:
(1) To see that all laws and ordinances are duly enforced; (2) To employ, discipline, or remove all heads of departments and all subordinate officers and employees of the city, to transfer employees from one department to another, and to consolidate or combine offices, designate departments and department head titles, and positions under his jurisdiction, with the approval of the City Council in each instance; however, nothing herein contained shall apply to the City Treasurer or the City Attorney; provided further the authority given the City Manager under the terms of this paragraph shall be subject to any civil service or personnel system now or hereafter established by ordinance; (3) To exercise control over all departments and divisions of the city government and over all appointive officers and employees thereof subject to the approval of the City Council; (4) To attend all meetings of the Council, except when his removal is under consideration, unless excused therefrom by the Council;
(5) To recommend to the Council such measures and ordinances as he deems necessary or proper;
(6) To serve as Purchasing Officer of the city and have the responsibility as such to make all purchases. The City Manager may delegate the duties of Purchasing Officer to other city employees;
(7) To serve as Personnel Director under the personnel merit system in the absence of the Personnel Director or, if both the City Manager and Personnel Director are absent, the City Manager may delegate the functions of the Director to a city employee; (8) To approve all warrants drawn upon the city treasury before they are presented to the City Council;
(9) To serve as Director of Civil Defense;
(10) To consolidate departmental budget requests and prepare budgets for Council review and adoption; to be responsible for administration of the government of the city; (11) To investigate all complaints in relation to all matters concerning the administration of the government of the city;
(12) To investigate all complaints made to the city with regard to services maintained by public utilities in the city, to ensure that the provisions of franchises, permits, privileges, and contracts granted by the city are faithfully observed;
Attachment 3

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(13) To perform such other duties as may from time to time be delegated to him by the Council;
(14) To prepare and recommend to the City Council a salary plan for appointive department heads;
(15) To prepare and submit to the City Council an organization chart showing the organizational plan for all departments of the city government; (16) To devote his entire time to the duties and interests of the city.

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Staff Report
Date: May 24, 2022
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Kevin Marstall, PE, Director of Community Development Bruce Davis, PE, Interim City Engineer
Bernard Enrile, PE, CIP Manager
Prepared by: Tianjun Cao, PE, Associate Civil Engineer
[email protected]
(925) 671-3243
Subject: Considering the award of a Construction Contract in the amount of $2,102,247 to St. Francis Electric LLC for the Citywide Traffic System Upgrade Project [Project No. 2493] and authorizing Staff to utilize the available project
contingency for contract change orders up to 10% of the contract amount; and approving a related budget transfer of $700,000 from Arterial Pavement Holding Account (Project No. 2157), Pavement Maintenance Zone 5J (Project No. 2526), and Off-Site Street Improvement Program (OSIP) Update (Project No. 2541) (Federal HSIP, Gas Tax, OSIP, and Measure V
Funds)
NEPA: Categorical exclusion per Section 23 CFR 771.117(c)(8).

CEQA: Not a project/exempt per CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061 (b)(3), 15273, 15282(j), 15378, 15301, 15302, 15303, 15304, Public Resources Code Sections 21065 and/or 21080.19.

Report in Brief
The Citywide Traffic System Upgrade Project (Project No. 2493) proposes to upgrade traffic signal equipment at 52 intersections Citywide; specific equipment upgrades include signal cabinets, signal controllers, pedestrian signal heads, pedestrian push buttons, signal head back plates, and battery backup systems. The project will also

3.f3.f3.f

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City Council Agenda Report
Agenda Item No. 3.f
May 24, 2022
program leading pedestrian intervals for select intersections. See attached location map (Attachment 1). The Federal project number is HSIPL-5135(049).

The project has been designed and competitively bid; and is at the point of construction contract award. If award is approved by the City Council, project construction in the field is expected to begin in September 2022 and be completed by January 2023, subject to weather and supply chain delays related to material procurement.

Recommended Action

1. Award the construction contract in the amount $2,102,247 to St. Francis Electric LLC for the Citywide Traffic System Upgrade Project (Project No. 2493); and authorize Staff to utilize the available project contingency for contract change orders up to 10% of the contract amount; and authorize the Mayor to execute the contract in a form acceptable to the City Attorney.

2. Approve a related budget transfer in the amount of $700,000 from Arterial Pavement Holding Account (Project No. 2157), Pavement Maintenance Zone 5J (Project No. 2526), and Off-Site Street Improvement Program (OSIP) Update (Project No. 2541) to the Citywide Traffic System Upgrade Project (Project No. 2493).

Background
On August 15, 2018, the City of Concord (City) applied for Highway Safety Improvement Program (HSIP) grant funding for Fiscal Years 2019-2022 for the Citywide Traffic System Upgrade Project (Project No. 2493). On January 7, 2019, the California Department of Transportation (Caltrans) notified the City that the HSIP grant application was approved by the Federal Highway Administration (FHWA). On February 26, 2019, as part of the Mid-Year budget adjustment, City Council approved the budget transfer in the amount of $73,824 in Lease Revenue Bond Funds (Fund 408) to be used as the local match for the approved HSIP grant funds.

On October 21, 2019, Caltrans approved the authorization of the use of federal funding for the preliminary engineering (PE) phase of the project in the amount of $407,400. On November 12, 2019, City Council accepted the grant funds for the project in the amount of $2,386,976. On February 14, 2022, Caltrans approved the authorization of the use of federal funding for the construction (CON) phase of the project in the amount of $1,979,576.

Although the construction total for the project exceeds $750,000, this project was agreed to be exempted from the Citywide Project Stabilization Agreement (PSA) by the City and Contra Costa Building & Construction Trades Council (Trades Council).

Caltrans and the FHWA approved the City’s exemption request in November 2021. The exemption was requested because of the added delay to the City’s construction funding request to Caltrans. There are several City projects that are dependent on this project to

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City Council Agenda Report
Agenda Item No. 3.f
May 24, 2022
be completed first. As with all public works construction projects, this project will still require prevailing wages.

In order to account for the supply chain delays related to material procurement and to save costs, the City previously placed an order in the amount of $552,701 with Cubic/TrafficWare for the City-furnished traffic signal cabinets and controllers for the project. The order was placed through an existing agreement between the City and Cubic/TrafficWare that was awarded by City Council on June 1, 2021. The installation of these City-furnished materials will be performed as part of the contract bid documents for the project.

Procurement Process
The project was advertised for construction bids as required by State law and City policy. The Engineer’s Estimate for the Total Bid is $1,450,000. Bids were opened on April 14, 2022. Five (5) bids were received in the amount ranging from $2,102,247 to $3,863,620. The basis of award for this project is the Total Bid (Base Bid plus Additive Bid #1). The lowest bid was received from St. Francis Electric LLC (St. Francis) of San Leandro, CA. A summary of the three lowest responsive bids is as follows:

BID

SCHEDULE
Engineer's
Estimate
St. Francis
Electric LLC
Bear Electric
Solutions Inc.

Ray’s Electric
Base Bid $ 1,260,000 $1,838,069 $1,892,380 $1,945,384
Additive
Bid #1 $190,000 $264,178 $265,000 $267,210
Total Bid $ 1,450,000 $2,102,247 $2,157,380 $2,297,184
St. Francis was the low bidder and submitted a responsive and responsible bid.

However, their bid did have a discrepancy in one bid item but it did not affect their standing as the low bidder. St. Francis has an appropriate and valid contractor’s license and satisfactory work references. The apparent third lowest bidder, W. Bradley Electric Inc. submitted an incomplete bid package and was deemed a non-responsive bidder.

Staff completed analysis of St. Francis’s bid, determining that this firm along with its subcontractors possess appropriate and valid licenses, and are not on any debarred lists. St. Francis is registered with the Department of Industrial Relations as required by SB 854.

A Disadvantaged Business Enterprise (DBE) Goal of 13% was established for this construction contract. St. Francis was able to exceed this goal, with a DBE participation rate of 16.29% of the project cost allocated to qualified DBE subcontractors.

Page 3 of 6 ends

City Council Agenda Report
Agenda Item No. 3.f
May 24, 2022
Staff recommends awarding the base bid and Additive Bid #1 for the project.

Financial Impact
The current total budget for this project is $2,955,973 and is funded by federal Highway Safety Improvements Program (HSIP) funds (Fund 402), Measure V funds (Fund 401 and Fund 407). There are sufficient funds to award the construction contract. However, a budget transfer in the amount of $700,000 is needed to account for construction management and inspection services, staff oversight, Additive Bid #1, and the staff authorized 10% construction contingency. The budget transfer will occur from Arterial Pavement Holding Account (Project No. 2157) in the amount of $200,000 (Fund 262), Pavement Maintenance Zone 5J (Project No. 2526) in the amount of $330,000 (Fund 490), and Off-Site Street Improvement Program (OSIP) Update (Project No. 2541) in the amount of $170,000 (Fund 420).

Environmental Determination
The project is Categorically Excluded from preparation of an environmental review in accordance with Section 23 CFR 771.117(c): activity (c)(8) of the National Environmental Policy Act (NEPA).

Pursuant to CEQA Guidelines Sections 15060(c), 15061(b)(2), 15061(b)(3), 15273, 15282(j), 15378, Public Resources Code Sections 21065 and/or 21080.19, award of this contract is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, as it will not result in a direct or reasonably foreseeable indirect physical change in the environment. In the alternative, award of this contract is exempt under CEQA Guidelines Sections 15301 – Existing Facilities, 15302 – Replacement and Reconstruction, 15303 – New Construction or Conversion of Small Structures, and/or 15304 – Minor Alterations to Land, as it involves constructing concrete sidewalk, landscaping, traffic signal equipment, striping, and paving work. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 applies. This determination reflects the City’s independent judgement and analysis. The Notice of Exemption will be filed with the County Clerk’s office following the Council award of the construction contract.

Public Contact
The City Council Agenda was posted.

Attachments

1. Location Map

2. Bid Summary

Page 4 of 6 ends

Willow Pass Rd
Port Chicago HwyE Olivera Rd
Salvio St
East St
Bonifacio St
Concord Ave
Galaxy Wy
Diamond Blvd
Market St
Galindo St
Detroit Ave
Meadow Ln
Monument Blvd
Oak Grove Rd
Clayton Rd
Clayton Rd
Cowell Rd
Concord Blvd
Farm Bureau Rd
Treat Blvd
Bailey Rd
Ygnacio Valley Rd
Kirker Pass Rd
Ayers Rd
Alberta Wy
Pine Hollow Rd
Victory Ln
Willow Pass Rd
N Sixth St
Mendocino Dr
Thornwood Dr
Grant St
Attachment 1
Citywide Traffic System Upgrade Project
City Project No. 2493

Page 5 of 6 ends

City of Concord
Bid Sheet
PROJECT #2493 Bid Opening:

Citywide Traffic System Upgrade Project Thursday,
April 14, 2022
2:00 p.m.

Garden Conference Room
Engineer’s Estimate: $1,450,000 To be awarded:

COMPANY TOTAL BID
St. Francis Electric, LLC
975 Carden Street
San Leandro, CA 94577
$2,093,287.00
$2,102,247.00
Bear Electrical Solutions
P.O. Box 924
Alviso, CA 95002
$2,157,380.00
WBE (W. Bradley Electric)
90 Hill Road
Novato, CA 94945
$2,217,306.00
(Non-responsive bidder)
Ray’s Electric
411 Pendleton Way Suite B
Oakland, CA 94621
$2,297,184.00
Tennyson Electric Inc.
7275 National Drive Ste. A2
Livermore, CA 94550
$3,863,620.00
Con
tact: Tianjun Cao x3243
Attachment 2

Page 6 of 6 ends

1. Award of a Construction Contract in the amount of
$4,049,949.25 to Redgewick Construction Co. for the
Monument Boulevard Class 1 Path [Project No. 2455] and
authorizing staff to utilize the available project contingency for contract change orders up to 10% of the contract
amount; and authorizing the Mayor to execute the contract in a form acceptable to the City Attorney;

2. Approval of a Professional Services Agreement with Park Engineering in the not-to-exceed amount of $258.424 (base agreement of $234,930.81 plus staff authority to spend up to a 10% contingency of $23,493.19) for construction
management, inspection, and materials testing services; and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney; and

3. Approval of a budget transfer in the amount of
$300,000from Pavement Maintenance Zone 5J (Project No.
2526) to the Monument Boulevard Class 1 Path (Project No. 2455) to provide for the staff authorized 10% construction contingency. (Federal OBAG 2, Measure V, and Measure J
Local Funds)
NEPA: Categorical exclusion per Section 23 CFR 771.117(c)(3).

3.g3.g3.g3.g3.g

Page 1 of 59 ends

City Council Agenda Report
Agenda Item No. 3.g
May 24, 2022
CEQA: Not a project/exempt per CEQA Guidelines
Section15060(c), 15061(b)(2), 15061(b)3, 15273, 15282(j), 15378, 15301, 150302, 15303, 15304, Public Resources Code Sections 21065, and/or 21080.19.

Report in Brief
The Monument Boulevard Class 1 Path (Project No. 2455) proposes to construct a shared-use path along the east side of Monument Boulevard between Cowell Road/Oakmead Drive and Systron Drive/Walters Way, intersection improvements at Monument Blvd/Cowell Rd, Monument Blvd/Systron Dr, along with pervious pavement, bio-retention, and landscaping improvements within the project limits. See attached location map (Attachment 1). The Federal project number is CML-5135(059).

Recommended Action

1. Award the construction contract in the amount $4,049,949.25 to Redgwick Construction Co. for the Monument Boulevard Class 1 Path (Project No. 2455); authorize Staff to utilize the available project contingency for contract change orders that become necessary up to 10% of the contract amount; and authorize the Mayor to execute the contract in a form acceptable to the City Attorney.

2. Approval of a Professional Services Agreement with Park Engineering in the not- to-exceed amount of $258,424 (base agreement of $234,930.81 plus staff authority to spend up to a 10% contingency of $23,493.19) to provide construction management, inspection, and materials testing services for the Monument Boulevard Class 1 Path (Project No. 2455); and authorize the City Manager to execute the agreement in a form acceptable to the City Attorney.

Page 2 of 59 ends

City Council Agenda Report
Agenda Item No. 3.g
May 24, 2022
Background
In December 2016 the City submitted six grant applications to the Contra Costa Transportation Authority (CCTA), one of which was for the Monument Boulevard Class 1 Path. On June 21, 2017 CCTA notified the City that the OBAG 2 grant application was approved for fiscal years 2020 to 2022. On July 25, 2017, City Council approved the budget transfers in the amount of $961,000 in Measure V (Fund 401) and Measure J Local (Fund 475) Funds to be used as the local match for the approved OBAG 2 grant funds.

Although the grant application was administered by CCTA, the OBAG 2 funding is considered federal funds, which means that the fund allocation comes from Caltrans.

On May 1, 2020, Caltrans approved the authorization of the use of federal funding for the preliminary engineering (PE) phase of the project in the amount of $653,000. On February 14, 2022, Caltrans approved the authorization of the use of federal funding for the construction (CON) phase of the project in the amount of $3,715,000.

Two virtual public meetings were held to present the project scope of work and construction impacts to Concord residents and those in the surrounding project area.

The two meetings were held on March 31, 2021 and July 29, 2021. Eighteen members of the public attended the March meeting and two members attended the July meeting.

The City also presented the project to the City’s Bicycle and Pedestrian Advisory Committee (BPAC) on June 9, 2021.

On September 13, 2016, City Council approved a Citywide Project Stabilization Agreement with the Contra Costa Building & Trades Council for projects with a construction contract valued at over $750,000. Project 2455 will be subject to the requirements of the Project Stabilization Agreement (PSA). The prospective bidders for this project were made aware of this requirement as part of the bid documents. Caltrans and the Federal Highway Administration (FHWA) approved the City’s use of the PSA for this project on January 12, 2022. The two agencies refer to the PSA as a Project Labor Agreement (PLA).

Procurement Process
The project was advertised for construction bids as required by State law and City policy. The Engineer’s Estimate for the Total Bid is $3,725,000. Bids were opened on March 31, 2022. Three (3) bids were received in the amount ranging from $4,049,949.25 to $4,693,085.88. The basis of award for this project is the Total Bid (Base Bid plus Additive Bid #1). The lowest bid was received from Redgwick Construction Co. (Redgwick) of Oakland, CA. A summary of the three lowest bids is as follows:

Page 3 of 59 ends

City Council Agenda Report
Agenda Item No. 3.g
May 24, 2022
BID

SCHEDULE
Engineer's
Estimate
Redgwick
Construction
Co.

Ghilotti Bros
Inc.

Ray’s Electric
Base Bid $ 3,700,000 $4,030,792.25 $4,667,697.80 $4,663,373.88 Additive
Bid #1 $25,000 $19,157 $17,920 $29,712
Total Bid $ 3,725,000 $4,049,949.25 $4,685,617.80 $4,693,085.88 Redgwick was the low bidder and submitted a responsive and responsible bid.

Redgwick has an appropriate and valid contractor’s license and satisfactory work references.

Staff completed analysis of Redgwick’s bid, determining that this firm along with its subcontractors possess appropriate and valid licenses, and are not on any debarred lists. Redgwick is registered with the Department of Industrial Relations as required by SB 854. Redgwick and their subcontractors have submitted the required agreement to be bound to the Citywide Project Stabilization Agreement.

A Disadvantaged Business Enterprise (DBE) Goal of 19% was established for this construction contract. Redgwick was able to exceed this goal, with a DBE participation rate of 31% of the project cost allocated to qualified DBE subcontractors.

Construction Management Consultant Procurement
Staff issued a Request for Proposal (RFP) to select a consultant to provide construction management, inspection, and materials testing services on February 24, 2022. The RFP was advertised in the local newspaper and on the City’s Procurement Website.

Three (3) proposals were received, which were reviewed and ranked by the selection committee.

Based on the analysis of the proposals, interviews, and references, Park Engineering (Park) of Orinda, CA was selected as the most qualified firm to provide construction management, inspection, and materials testing services for the Monument Boulevard Class 1 Path (Project No. 2455). City Staff and Park negotiated the scope of work and cost for the services, and agreed upon $234,930.81 as a fair and reasonable compensation for the services needed to complete the design phase of this project.

Park’s material testing sub-consultant, Applied Materials and Engineering, has agreed to be bound to the Citywide Project Stabilization Agreement.

Page 4 of 59 ends

City Council Agenda Report
Agenda Item No. 3.g
May 24, 2022
A Disadvantaged Business Enterprise (DBE) Goal of 15% was established for this consultant contract. Park was able to exceed this goal, with a DBE participation rate of 80% of the project cost, due to being a certified DBE firm.

Financial Impact
The current total budget for this project is $5,329,000 and is funded by federal One Bay Area Grant (OBAG 2) funds (Fund 402), Measure V (Fund 401), and Measure J Local funds (Fund 475). There are sufficient funds to award the construction contract, provide for construction management, inspection and materials testing services, and staff oversight. However, a budget transfer in the amount of $300,000 is needed to account for the 10% staff authorized construction contingency. The budget transfer will occur from Pavement Maintenance Zone 5J, Project 2526 (Fund 490), as this account has funds beyond the project need within it.

Environmental Determination
The project is Categorically Excluded from preparation of an environmental review in accordance with Section 23 CFR 771.117(c): activity (c)(3) of the National Environmental Policy Act (NEPA).

Public Contact
The City Council Agenda was posted.

Attachments

1. Vicinity Map

2. Bid Summary

3. Professional Services Agreement – Park Engineering

Page 5 of 59 ends

VICINITY MAP
Monument Boulevard Class 1 Path
City of Concord Project 2455
Project Boundary

Page 6 of 59 ends

City of Concord
Bid Sheet
PROJECT P-2455 Bid Opening:

Monument Boulevard Class 1 Path Thursday,
March 31, 2022
2:00 p.m.

ZOOM
Engineer’s Estimate: $3,725,000 To be awarded:

COMPANY TOTAL BID
Redgwick Construction Co.
21 Hegenberger Ct.

Oakland, CA 94621
$4,049,949.25
Ghilotti Bros., Inc.
525 Jacoby Street
San Rafael, CA 94901
$4,685,617.80
Ray’s Electric
411 Pendleton Way Suite B
Oakland, CA 94621
$4,693,175.88
$4,693,085.88
Conta
ct: Tianjun Cao x3243
Attachment 2

Page 7 of 59 ends

ARTICLE I INTRODUCTION
This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:

The name of the “CONSULTANT” is as follows:

Park Engineering
Incorporated in the State of California
The name of the “LOCAL AGENCY” is as follows:

City of Concord
The Contract Administrator for LOCAL AGENCY will be Tianjun Cao B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated 4/15/2022. The approved CONSULTANT’s Cost Proposal is attached hereto (Attachment #1) and incorporated by reference.

If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.

C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.

D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.

E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.

F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.

G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the Local AGENCY. However, claims for money due or which become Attachment 3

Page 8 of 59 ends

due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.

H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.

I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.

J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.

ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.

B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.

ARTICLE III STATEMENT OF WORK
A. CONSULTANT Services
N/A
Environmental documents are not considered complete until a Caltrans District Senior Environmental Planner signs the Categorical Exclusion, a Caltrans Deputy District Director signs the Finding of No Significant Impact, or the Caltrans District Director signs the Record of Decision (see LAPM Chapter 6: Environmental Procedures, and the Standard Environmental Reference).

B. Right of Way
N/A
C. Surveys
N/A
D. Subsurface Investigations
N/A
E. Local Agency Obligations
LOCAL AGENCY will provide CONSULTANT with as-built record drawings and GIS right of way information depending on availability of these documents.

F. Conferences, Site Visits, Inspection of Work

Page 9 of 59 ends

This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the LOCAL AGENCY, State, and/or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in the fee.

G. Checking Shop Drawings
N/A
H. CONSULTANT Services During Construction
CONSULTANT Services During Construction detailed scope of work is shown in Attachment #1.

ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on May 24, 2022, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on June 30, 2023, unless extended by AGREEMENT amendment.

B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.

ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this AGREEMENT will be based on actual cost plus a fixed fee. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT’S Cost Proposal, unless additional reimbursement is provided for by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY’s approved overhead rate set forth in the Cost Proposal. In the event, that LOCAL AGENCY determines that a change to the work from that specified in the Cost Proposal and AGREEMENT is required, the AGREEMENT time or actual costs reimbursable by LOCAL AGENCY shall be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by AGREEMENT amendment.

B. The indirect cost rate established for this AGREEMENT is extended through the duration of this specific AGREEMENT. CONSULTANT’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.

C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $18,630.07. The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.

D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.

E. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.

F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly

Page 10 of 59 ends

progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.

G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.

H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:

City of Concord Engineering Services
1950 Parkside Drive MS/40, Concord, CA 94519
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $258,424 (base fee of $234,930.81 and 10% contingency of $23,493.19).

J. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.

ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.

B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.

C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.

D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.

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ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.

B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.

D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.

ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSUTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.

ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.

B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.

C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.

D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations.

In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and

Page 12 of 59 ends

ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.

E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.

1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.

Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.

2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.

3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.

4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL

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AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.

ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.

B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.

C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.

D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.

E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.

ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.

B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.

C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:

1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at

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CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.

2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.

ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.

B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (
https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.

C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov.

D. Payroll Records

1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.

2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representative’s at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.

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b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.

3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.

4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.

5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.

6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.

Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.

E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.

F. Penalty

1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.

2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under

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the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.

3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.

4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.

5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.

6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.

G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.

H. Employment of Apprentices

1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all

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applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.

2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements.

Penalties are specified in Labor Code §1777.7.

ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.

B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.

C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.

D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist.

An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.

ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.

For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS

FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:

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1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.

C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.

ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.

B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.

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D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.

E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.

G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.

H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally- assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.

ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;

2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;

3. Does not have a proposed debarment pending; and

4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.

B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.

C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S.

General Services Administration are to be determined by FHWA.

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ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.

B. The goal for DBE participation for this AGREEMENT is 15%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10-O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.

D. DBEs and other small businesses, as defined in 49 CFR Part 26 are encouraged to participate in the performance of AGREEMENTs financed in whole or in part with federal funds. The LOCAL AGENCY, CONSULTANT or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONSULTANT shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTLANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the LOCAL AGENCY deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible E. A DBE firm may be terminated only with prior written approval from LOCAL AGENCY and only for the reasons specified in 49 CFR §26.53(f). Prior to requesting LOCAL AGENCY consent for the termination, CONSULTANT must meet the procedural requirements specified in 49 CFR §26.53(f).

If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

F. Consultant shall not be entitled to any payment for such work or material unless it is performed or supplied by the listed DBE or by other forces (including those of Consultant) pursuant to prior written authorization of the LOCAL AGENCY’s Contract Administrator.

G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the

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amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the AGREEMENT is commensurate with the work it is actually performing, and other relevant factors.

H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.

I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.

J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.

The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.

K. Upon completion of the AGREEMENT, a summary of these records shall be prepared and submitted on the form entitled, Exhibit 17-F: Final Report-Utilization of Disadvantaged Business Enterprise (DBE) First-Tier Subconsultants, certified correct by CONSULTANT or CONSULTANT’s authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to CONSULTANT when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the Contract Administrator.

L. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.

M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.

ARTICLE XIX INSURANCE
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.

B. The Certificate of Insurance will provide:

1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.

2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.

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3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.

C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.

ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.

B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.

C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.

D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.

ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.

B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.

C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.

ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion

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to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.

ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.

A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and Capital Improvement Program Manager, who may consider written or verbal information submitted by CONSULTANT.

B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.

C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.

ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.

ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.

CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.

B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.

ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.

Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s

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possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.

B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.

C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.

Any reuse by City for another project or project location shall be at City’s sole risk.

D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal- aid contracts).

E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.

ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.

B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.

C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.

ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.

B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.

C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff,

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Concord City CouncilMay 24, 2022

Concord City Council
May 24, 2022