Agenda packet — Milpitas City Council, April 2, 2024 (part 2 of 2)

38077.00180\29167975.12 C2
5 which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. c. The Consultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non-appropriation is a part of the consideration for the Agreement. This section controls against any and all other provisions of the Agreement.

17. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

18. Organization
Consultant shall assign Ashley Hardesty as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: City Manager
CONSULTANT:

CivicPlus, LLC
302 S. 4th Street, Ste. 500
Manhattan, KS 66502
Attn: Ashley Hardesty, Account Manager
and shall be effective upon receipt thereof.

21. Third Party Rights

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6 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

22. Equal Opportunity Employment.

Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

23. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

24. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

25. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

26. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

27. Time of Essence
Time is of the essence for each and every provision of this Agreement.

28. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

29. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other

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7 consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

30. Wage Theft Prevention
a. Consultant, and any subconsultant it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.
b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR

ALTERNATIVE PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY

AND THAT CONSULTANT OR ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.
c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Consultant or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order.

Consultant or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order.

If the Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.
d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

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8 f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.
[SIGNATURES ON FOLLOWING PAGE]

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9 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF MILPITAS

AND CIVICPLUS
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

Ned Thomas, City Manager
Date
Approved As To Form:

Michael Mutalipassi, City Attorney
Approved:

Gabrielle Tsang, Acting
Finance Director/Risk Manager

Approved As To Content:

Christian Di Renzo, Public Works Director

CIVICPLUS, LLC
Signature
Name
Title
Date

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10 EXHIBIT A
Scope of Services
Consultant will provide hosting services for the SeeClickFix software.

QTY Product Name DESCRIPTION

1.00 SeeClickFix Connector for Lucity (SR +
WO) Renewal
SeeClickFix-hosted integration with Lucity (CentralSquare Technologies), for service requests and/or work orders. Requires Lucity Citizen Portal REST API.

1.00 Connect Importer Annual Renewal SeeClickFix-hosted integration with Lucity (CentralSquare Technologies), for service requests. Requires Lucity Citizen Portal REST API.

1.00 Marketplace App Annual Renewal Marketplace Mobile - Annual

1.00 Request Annual Renewal Unlimited gov user licenses for service request management tool to intake citizen submissions via mobile app. Assign requests internally, resolve issues and measure request performance.

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11 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on an annual basis. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials Agreement.

In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Hundred Twenty-One Thousand Forty-Eight Dollars and Twenty-Four Cents ($121,048.24).

Annual Recurring Services - Initial Term USD 22,799.99
Annual Recurring Services – Year 2 USD 23,483.99
Annual Recurring Services – Year 3 USD 24,188.51
Annual Recurring Services – Year 4 USD 24,914.16
Annual Recurring Services – Year 5 USD 25,661.59

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12 EXHIBIT C
Activity Schedule
[RESERVED]

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13 EXHIBIT D

INSURANCE REQUIREMENTS
Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s or Consultant’s Agreement.

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.

Contractor or Consultant shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

Commercial General Liability (CGL):
___ Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. _X__ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:
_X__ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage. ___ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single limit for bodily injury and property damage.

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14 ___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. ___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate
Workers’ Compensation Insurance:
_X__ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees) The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):
___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment.

The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:
___ Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance
_X__ Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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15 Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor or Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:
____ Bid Bond
____ Performance Bond
____ Payment Bond
The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:
_X__ Additional Insured Status and Primary/Non-Contributory Language:

Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its elected and appointed officials, officers, attorneys, agents employees and volunteers as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
___ Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)
Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear. _X__ Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

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16 _X__ Waiver of Subrogation:

Contractor or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor or Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.
___ Completed Operations
For Construction Agreements, Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS
Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full-certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

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17 2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Contractor or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the sub- subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Contractor or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

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18 Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution to Approve Project Plans and Specifications, Award Construction Contract to McKim Corporation for Street Resurfacing 2024 Project No. 4283, 4304, 4305; and Approve Budget Change Form (Staff Contact: Matt Cano, Assistant City Manager 408-586-3012, Roberto Alonzo, PW Division Manager - Engineering, 408-586-3316)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 4/2/2024
Recommendation: Adopt a resolution to approve project plans & specifications; Award the construction contract to the lowest responsible, and responsive bidder, McKim Corporation, in the amount of $3,328,125.94 for the Street Resurfacing 2024 Project No. 4283, 4304, 4305; Authorize the City Manager to execute the construction contract with McKim Corporation; Authorize the City Engineer to negotiate and execute Contract Change Order(s) in an aggregate amount not to exceed $499,218.90 for the project; and Approve the Budget Change Form to appropriate funding for CIP 4304 and CP 4305.

BACKGROUND:

Project No. 4283, 4304, 4305, Street Resurfacing Project 2024 is in the City Council approved 2024-2028 Capital Improvement Program. The Project provides for the design and construction of localized repair of asphalt concrete pavement, resurface asphalt concrete pavement, install Americans with Disabilities Act (ADA) compliant curb ramps, repair damaged concrete sidewalk, curb & gutter, minor improvements at signalized intersections, install class II bike lanes, and reinstall pavement delineation.

Project No’s. 4283, 4304, 4305 provide funding for the design of the 2024 Street Resurfacing Project, and the Plans and Specifications for construction are complete and now ready for City Council approval. The following streets were approved by the City Council for the Street Resurfacing Project 2024 as part of the June 2023 adoption of the 2024-2028 Capital Improvement Program budget and will receive pavement and concrete repairs during the Spring/Summer 2024 construction season:
▪Great Mall Parkway from I880 to McCandless Drive; and
▪Entire lengths of Thompson Street and Thompson Court
The Engineer’s Construction Estimate for the project was approximately $4,322,948.00, and the Project Plan title sheet (Attachment 1) is included in the Council’s agenda packet. The complete full-size set of plans and specifications are available for review in the office of the Acting City Engineer.

ANALYSIS:

The City has a Pavement Condition Index (PCI) rating of 71, “Good Condition”. The project streets are selected based on the recommendations from the Metropolitan Transportation Commission (MTC) Pavement Management Program to maintain and improve the overall city pavement condition. The resurfacing will address failed roadways with PCI’s ranging as low as 32 and 33 from I880 to South Abel and South Main Street to McCandless Drive respectively, up to 45 and 46 in Thompson Court and Thompson Street, respectively.

The project was advertised on February 9, 2024, and February 16, 2024, in the Milpitas Post and on digital construction trade publications. Bid opening was on March 6, 2024, and 7 sealed bid proposals were received.

The basis for awarding a contract is on the Total Base Bid.

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The lowest responsible and responsive bidder based on Total Base Bid is MCKIM CORPORATION, in the amount of $3,328,125.94. No bid protests were filed with the City regarding this project.

The Engineer’s Estimate for the Project was approximately $4,322,948.00 and the following is a tabulation of bidders and bids received. The bid result tabulation is included as (Attachment 3).

Bidder Base Bid
MCKIM CORPORATION $3,328,125.94
RADIUS EARTHWORK, INC. $3,379,063.60
DESILVA GATES CONSTRUCTION LLC $3,532,532.00
TIECHERT CONSTRUCTION $3,708,698.85
JOSEPH J. ALBANESE, INC. $3,878,163.00
BAY CITIES PAVING & GRADING, INC. $4,233,575.00
O’GRADY PAVING, INC. $4,607,368.90
The total bid pricing received varied considerably when compared to the Engineer’s Estimate. The range of variation in bid pricing from the Engineer’s Estimate is likely due to the current construction market where contractors are hungry for work due to recovery from the pandemic.

The MCKIM CORPORATION, is deemed the lowest responsible and responsive bidder. Staff recommends City Council adopt a Resolution (Attachment 2) to award a construction contract for a total contract amount of $3,328,125.94. Staff recommends a construction contingency amount of $499,218.90 (15%) of the awarded amount. The construction contingency will allow for a timely completion of the Project, while addressing the need to respond swiftly to construction conditions and approve necessary change orders in order to limit potential claims or risks to the City. Staff also recommends authorizing the Acting City Engineer to negotiate and execute any contract change orders in an aggregate amount not to exceed $499,218.90. The change order authority will not exceed this amount, and the Project would not require additional appropriation.

Budget Change
California State Bill 1 Road Maintenance and Rehabilitation Account (SB1 RMRA) Funding SB1 RMRA was signed into law in April 2017 to address statewide transportation infrastructure maintenance funding shortfalls. The distribution of SB1 RMRA funds to local jurisdictions for road maintenance is based on a population formula. The City received an increase in the allocated amount for California State Bill 1 Road Maintenance and Rehabilitation Account (SB1 RMRA) funds, and staff requests budget appropriation of these funds for projects.

The currently adopted fiscal year 2022-2023 SB1 funding for CIP 4304 is $1,778,739.00. The actual SB1 funding received for fiscal year 2022-2023 was $1,855,314.29 with interest accrued of $24,965.98. Staff is requesting a budget appropriation of $76,575.29 in SB1 funding of CIP 4304 to account for the $51,609.31 difference in projected allocation compared to the actual allocation received, and the $24,965.98 interest accrued to CIP 4304 to capture all available funding for project expenditures. The current SB1 funding estimate for fiscal year 2023-2024 is $1,963,551.00 while the adopted budget is $1,500,000. Staff is requesting a budget appropriation of $463,551.00 to CIP 4305 to capture all eligible expenditures that may be used towards these funds.

The current VRF funding estimate for fiscal year 2023-2024 is $2,017,862.27 while the adopted budget is $1,700,000.00. Staff is requesting a budget appropriation of $317,862.27 to CIP 4305 to capture all eligible expenditures that may be used towards these funds.

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for the (33,850.00) difference in projected allocation compared to the actual allocation received. The current VRF funding estimate for fiscal year 2023-2024 is $600,705.00 while the adopted budget is $500,000.00. Staff is requesting a budget appropriation of $100,705.00 to CIP 4305 to capture all eligible expenditures that may be used towards these funds.

The approval of a Budget Change (Attachment 4) amending the budgets for Project No.’s 4304 and 4305 to match the SB1 allocations received is recommended. The alignment of Project budgets showing the actual grant funding received is required for use of the funding and in order to qualify all Project expenditures for reimbursement.

The following is a summary of the requested Budget Appropriations for the Project:

Project No. 4304 Current Adopted
Budget
Proposed Budget
Increase/(Decrease)
Proposed Budget Total
SB1 RMRA $1,778,739 $76,575.29 $1,855,314.29
Measure B $1,677,560 - $1,677,560
Vehicle Registration
Fee
$500,000 ($33,850) $466,150
Gas Tax $378,026 - $378,026
Total $4,334,325 $42,725.29 $4,377,050.29
Project No. 4305 Current Adopted
Budget
Proposed Budget
Increase/(Decrease)
Proposed Budget Total
SB1 RMRA $1,500,000 $463,551 $1,963,551
Measure B $1,700,000 $317,862.27 $2,017,862.27
Vehicle Registration
Fee
$500,000 $100,705 $600,705
Gas Tax $300,000 - $300,000
Total $4,000,000 $882,118.27 $4,882,118.27
POLICY ALTERNATIVE(S):

Alternative 1:

Deny approval of project plans and specifications, award of the construction contract, of the requested budget change
Pros: None.

Cons: A denial would cause delay in awarding this Project and in completing the needed annual repairs and rehabilitation of the City’s roadways.

Reason for Not Recommending: A delay in the award this construction contract will delay project completion, prolong construction activities into rainy season and may potentially results in higher total construction cost, and loss of grant funding.

FISCAL IMPACT:

Adequate funds are available in each funding source (listed on the summary table above) to construct Project No.’s 4283, 4304, and 4305. The approval of a Budget Change (Attachment 4) amending the budgets for Project No.’s 4304 and 4305 to match the SB1 allocations received is recommended. The alignment of Project budgets showing the actual grant funding received is required for use of the funding and in order to qualify all Project expenditures for reimbursement.

As of 03/20/24, the available funding balance for the Project upon approval of attached budget change and resolution:

Project No. 4283 $400,375.74
Project No. 4304 $2,328,721.78
Project No. 4305 $3,995,188.04
Total Balance Available $6,724,285.56

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Summary of Estimated Construction Cost:

Total Base Bid Amount $3,328,125.94
15% Contingency $499,218.90
City Administration and Inspection $200,000.00
Total $4,027,344.84
With the street resurfacing remaining balance, the City’s plan is to set it aside to fund the Dempsey Road resurfacing project scheduled for the summer of 2025 as part of the construction of the new Dempsey Road 12-inch Water Main replacement project.

We are also exploring the possibility of using funds for resurfacing work along two locations on East Calaveras Blvd. One between I680 and North Park Victoria and the other between Gadsden Drive and Evans Road, following the completion of the roadway improvement work by the MUSD Innovation Campus Project next summer.

California Environmental Quality Act (CEQA):

The project is exempt under Section 15301 (Existing Facilities) of the CEQA guidelines. A Notice of Exemption (NOE) was filed with the County of Santa Clara on January 09, 2024.

RECOMMENDATION:

Adopt a resolution to:

1. Approve Project Plans and Specifications;

2. Award a Construction Contract to the Lowest Responsible, and Responsive Bidder, MCKIM CORPORATION, in the amount of $3,328,125.94 for the Street Resurfacing 2024 Project, Project No.’s 4283, 4304, and 4305.

3. Authorize the City Manager to Execute the Construction Contract with MCKIM CORPORATION.

4. Authorize the Interim City Engineer to Negotiate and Execute Contract Change Order(s) in an Aggregate Amount Not to Exceed $499,218.90 for the project.

5. Approve the Budget Change Form to Appropriate Funding for CP 4304 and 4305.

Attachment(s):

Attachment 1 – Project Plan Title Sheet
Attachment 2 – Resolution
Attachment 3 – Bid Tabulation
Attachment 4 – Budget Change Form
Attachment 5 – Construction Change Order Policy

Page 120 of 196 ends

RevisionsSTREET RESURFACING 2024PROJECT NO. 4283, 4304, 4305Record Drawings4283, 4304, 4305CALIFORNIAJANUARY 26, 1954OFTYCIINCORPORATEDITASLMIP 02/29/24Matt CanoDigitally signed by Matt Cano Date: 2024.02.29 13:28:04 -08'00'

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RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING THE

PROJECT PLANS AND SPECIFICATIONS, AWARDING THE CONSTRUCTION CONTRACT

TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER, MCKIM CORPORATION, IN THE AMOUNT OF $3,328,125.94 FOR THE STREET RESURFACING PROJECT 2024, CITY PROJECT NO. 4283, 4304 & 4305; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONSTRUCTION CONTRACT WITH MCKIM CORPORATION;

AUTHORIZING THE CITY ENGINEER TO NEGOTIATE AND EXECUTE CONTRACT CHANGE ORDER(S) IN AN AGGREGATE AMOUNT NOT TO EXCEED $499,218.90 FOR THE PROJECT; AND APPROVE THE BUDGET CHANGE FORM TO APPROPRIATE FUNDING FOR CP 4304 AND 4305
WHEREAS, Street Resurfacing Project 2024, City Project No. 4283, 4304, 4305 (collectively referred to herein as the “Project”), which will include localized repair of asphalt concrete pavement, resurface asphalt concrete pavement, install ADA compliant curb ramps, repair damaged concrete sidewalk, repair curb & gutter, install class II bike lanes, and reinstall pavement delineation:
▪Great Mall Parkway from I880 to McCandless Drive; and
▪the entire lengths of Thompson Street and Thompson Court WHEREAS, the Engineer’s Estimate for the base bid Project work is $4,322,948.00; and WHEREAS, on March 06, 2024, 7 sealed bid proposals were received. The bid pricing ranged from $3,328,125.94 to $4,607,368.90. The lowest responsible bidder submitting a responsive bid is MCKIM Corporation, in the amount of $3,328,125.94; and
WHEREAS, no bid protest was filed with the City within five (5) days of the bid opening as set forth in the Project specifications; and
WHEREAS, sufficient funds to award the Project are available in the Project budget; and WHEREAS, staff recommends the City Council approve the project plans and specifications; and WHEREAS, staff recommends the City Council award a construction contract to MCKIM Corporation, the lowest responsible and responsive bidder for the Project, and authorize the City Manager to execute a contract in the amount of $3,328,125.94 for the Street Resurfacing Project 2024, Project No. 4283, 4304 & 4305; and
WHEREAS, staff recommends the City Council authorize the City Engineer to negotiate and execute change order(s) in an amount not to exceed $499,218.90, fifteen percent (15%) of the total contract value, for the Project’s timely completion and staff’s capability to respond swiftly to unanticipated construction conditions to limit potential claims or risk to the City; and WHEREAS, staff recommends the City Council approve the budget change form to appropriate funding for CP 4304 and 4305.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

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2 Resolution No. ____

1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2. The City Council hereby approves the projects plans and specifications.

3. The City Council hereby awards the construction contract to and authorizes the City Manager to execute the contract and related documents with the lowest responsible and responsive bidder, MCKIM Corporation, in the amount of $3,328,125.94 for the Street Resurfacing Project 2024, Project No. 4283, 4304 & 4305.

4. The City Manager is hereby authorized to execute the construction contract with MCKIM Corporation for the Project.

5. The Director of Engineering/City Engineer is hereby authorized to negotiate and execute contract change order(s) in an aggregate amount not to exceed $434,894.96 for the Project.

6. The City Council hereby approves the budget change form to appropriate funding for CP 4303 & 4304.

PASSED AND ADOPTED this ____ day of April, 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
_____________________________ __________________________ Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
_____________________________
Michael Mutalipassi, City Attorney

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STREET RESURFACING 2024, CITY PROJECT NO. 4283 & 4304 &4305 Bid Results from 03/06/2024 Bid Opening @ 2:00pm
TOTALS
ITEM NO ITEM DESCRIPTION UNIT TOTAL QUANTITY Unit Price Total Unit Price Total Unit Price Total Unit Price Total Unit Price Total Unit Price Total Unit Price Total 1 Mobilization (10% Maximum) LS 1 15,000.00$ 15,000.00$ 135,000.00$ 135,000.00$ 350,000.00$ 350,000.00$ 370,000.00$ 370,000.00$ 278,000.00$ 278,000.00$ 423,600.00$ 423,600.00$ 440,000.00$ 440,000.00$ 2 Neighborhood Notification LS 1 15,000.00$ 15,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 25,000.00$ 25,000.00$ 5,400.00$ 5,400.00$ 26,519.45$ 26,519.45$ 20,000.00$ 20,000.00$ 3 Traffic Control LS 1 618,000.00$ 618,000.00$ 210,000.00$ 210,000.00$ 530,451.80$ 530,451.80$ 469,863.00$ 469,863.00$ 369,864.50$ 369,864.50$ 633,000.00$ 633,000.00$ 500,000.00$ 500,000.00$ 4 Monument Referencing (incl. Pre-Construction and Post Construction) LS 1 23,600.00$ 23,600.00$ 12,500.00$ 12,500.00$ 12,000.00$ 12,000.00$ 52,600.00$ 52,600.00$ 12,000.00$ 12,000.00$ 5,000.00$ 5,000.00$ 20,000.00$ 20,000.00$ 5 Water Pollution Control Program LS 1 10,000.00$ 10,000.00$ 6,500.00$ 6,500.00$ 10,000.00$ 10,000.00$ 17,500.00$ 17,500.00$ 11,300.00$ 11,300.00$ 55,874.17$ 55,874.17$ 20,000.00$ 20,000.00$ 6 Permitting LS 1 30,380.00$ 30,380.00$ 2,500.00$ 2,500.00$ 10,000.00$ 10,000.00$ 39,500.00$ 39,500.00$ 26,500.00$ 26,500.00$ 26,968.44$ 26,968.44$ 10,000.00$ 10,000.00$ 7 Hot Mix Asphalt (Type A) TON 10607 122.45$ 1,298,827.15$ 135.00$ 1,431,945.00$ 110.00$ 1,166,770.00$ 129.00$ 1,368,303.00$ 140.00$ 1,484,980.00$ 120.00$ 1,272,840.00$ 165.00$ 1,750,155.00$ 8 Base Repair (3" Thick) SF 54958 4.57$ 251,158.06$ 4.40$ 241,815.20$ 4.00$ 219,832.00$ 3.70$ 203,344.60$ 5.50$ 302,269.00$ 6.25$ 343,487.50$ 5.00$ 274,790.00$ 9 Asphalt Concrete Grinding (2") SY 11066 4.16$ 46,034.56$ 5.00$ 55,330.00$ 4.00$ 44,264.00$ 3.50$ 38,731.00$ 6.00$ 66,396.00$ 6.25$ 69,162.50$ 5.75$ 63,629.50$ 10 Asphalt Concrete Grinding (3") SY 55482 5.06$ 280,738.92$ 7.75$ 429,985.50$ 6.00$ 332,892.00$ 5.00$ 277,410.00$ 7.00$ 388,374.00$ 8.00$ 443,856.00$ 10.40$ 577,012.80$ 11 Sidewalk Removal and Replacement SF 3362 17.50$ 58,835.00$ 36.00$ 121,032.00$ 25.00$ 84,050.00$ 25.00$ 84,050.00$ 35.00$ 117,670.00$ 34.86$ 117,199.32$ 30.00$ 100,860.00$ 12 Curb & Gutter Removal and Replacement (Beyond Ramp Limits) LF 75 200.00$ 15,000.00$ 180.00$ 13,500.00$ 200.00$ 15,000.00$ 200.00$ 15,000.00$ 260.00$ 19,500.00$ 277.75$ 20,831.25$ 220.00$ 16,500.00$ 13 Install Curb Ramp (Per Caltrans Standard Drawings) EA 15 8,500.00$ 127,500.00$ 8,400.00$ 126,000.00$ 11,000.00$ 165,000.00$ 11,000.00$ 165,000.00$ 14,000.00$ 210,000.00$ 16,492.12$ 247,381.80$ 12,000.00$ 180,000.00$ 14 Wet Set Detectable Warning Surface in Pedestrian Passageway EA 4 1,800.00$ 7,200.00$ 807.00$ 3,228.00$ 4,000.00$ 16,000.00$ 4,000.00$ 16,000.00$ 1,500.00$ 6,000.00$ 1,114.33$ 4,457.32$ 5,000.00$ 20,000.00$ 15 Adjust Monument Cover to Grade EA 16 925.00$ 14,800.00$ 1,010.00$ 16,160.00$ 950.00$ 15,200.00$ 925.00$ 14,800.00$ 1,040.00$ 16,640.00$ 925.00$ 14,800.00$ 800.00$ 12,800.00$ 16 Adjust Water Valve Cover to Grade EA 73 925.00$ 67,525.00$ 785.00$ 57,305.00$ 950.00$ 69,350.00$ 925.00$ 67,525.00$ 1,040.00$ 75,920.00$ 925.00$ 67,525.00$ 800.00$ 58,400.00$ 17 Adjust Storm Sewer Manhole to Grade EA 19 1,250.00$ 23,750.00$ 1,350.00$ 25,650.00$ 1,250.00$ 23,750.00$ 1,250.00$ 23,750.00$ 1,400.00$ 26,600.00$ 1,250.00$ 23,750.00$ 1,200.00$ 22,800.00$ 18 Adjust Storm Drain Manhole to Grade EA 6 1,250.00$ 7,500.00$ 1,350.00$ 8,100.00$ 1,250.00$ 7,500.00$ 1,250.00$ 7,500.00$ 1,400.00$ 8,400.00$ 1,250.00$ 7,500.00$ 1,200.00$ 7,200.00$ 19 Adjust Storm Drain Drainage Inlet to Grade EA 1 2,000.00$ 2,000.00$ 5,700.00$ 5,700.00$ 1,600.00$ 1,600.00$ 5,000.00$ 5,000.00$ 1,325.00$ 1,325.00$ 4,000.00$ 4,000.00$ 4,000.00$ 4,000.00$ 20 Traffic Line (Detail 9) LF 15002 1.25$ 18,752.50$ 1.35$ 20,252.70$ 1.30$ 19,502.60$ 1.25$ 18,752.50$ 1.50$ 22,503.00$ 1.25$ 18,752.50$ 1.50$ 22,503.00$ 21 Traffic Line (Detail 22) LF 1290 2.75$ 3,547.50$ 2.90$ 3,741.00$ 2.80$ 3,612.00$ 2.75$ 3,547.50$ 3.00$ 3,870.00$ 2.75$ 3,547.50$ 3.00$ 3,870.00$ 22 Traffic Line (Detail 25) LF 7284 1.50$ 10,926.00$ 1.60$ 11,654.40$ 1.50$ 10,926.00$ 1.50$ 10,926.00$ 1.50$ 10,926.00$ 1.50$ 10,926.00$ 2.00$ 14,568.00$ 23 Traffic Line (Detail 27B) LF 290 1.25$ 362.50$ 1.30$ 377.00$ 1.30$ 377.00$ 1.25$ 362.50$ 1.50$ 435.00$ 1.25$ 362.50$ 1.50$ 435.00$ 24 Traffic Line (Detail 29) LF 1511 5.25$ 7,932.75$ 5.50$ 8,310.50$ 5.20$ 7,857.20$ 5.25$ 7,932.75$ 6.00$ 9,066.00$ 5.25$ 7,932.75$ 6.00$ 9,066.00$ 25 Traffic Line (Detail 38) LF 3468 2.00$ 6,936.00$ 2.10$ 7,282.80$ 2.00$ 6,936.00$ 2.00$ 6,936.00$ 2.00$ 6,936.00$ 2.00$ 6,936.00$ 2.20$ 7,629.60$ 26 Traffic Line (Detail 38A) LF 682 1.75$ 1,193.50$ 1.85$ 1,261.70$ 1.80$ 1,227.60$ 1.75$ 1,193.50$ 2.00$ 1,364.00$ 1.75$ 1,193.50$ 2.00$ 1,364.00$ 27 Traffic Line (Detail 39) LF 12970 1.25$ 16,212.50$ 1.30$ 16,861.00$ 1.30$ 16,861.00$ 1.25$ 16,212.50$ 1.25$ 16,212.50$ 1.25$ 16,212.50$ 1.50$ 19,455.00$ 28 Traffic Line (Detail 39A) LF 1891 1.25$ 2,363.75$ 1.30$ 2,458.30$ 1.30$ 2,458.30$ 1.25$ 2,363.75$ 1.50$ 2,836.50$ 1.25$ 2,363.75$ 1.50$ 2,836.50$ 29 Traffic Line (Detail 40) LF 1714 1.25$ 2,142.50$ 1.30$ 2,228.20$ 1.30$ 2,228.20$ 1.25$ 2,142.50$ 1.50$ 2,571.00$ 1.25$ 2,142.50$ 1.50$ 2,571.00$ 30 Traffic Line (Detail 41) LF 901 1.25$ 1,126.25$ 1.30$ 1,171.30$ 1.30$ 1,171.30$ 1.25$ 1,126.25$ 1.50$ 1,351.50$ 1.25$ 1,126.25$ 1.50$ 1,351.50$ 31 Traffic Line (12" White Diagonal) LF 1148 8.00$ 9,184.00$ 8.50$ 9,758.00$ 8.00$ 9,184.00$ 8.00$ 9,184.00$ 9.00$ 10,332.00$ 8.00$ 9,184.00$ 9.00$ 10,332.00$ 32 Traffic Line (12" White Crosswalk Line) LF 3220 8.00$ 25,760.00$ 8.50$ 27,370.00$ 8.00$ 25,760.00$ 8.00$ 25,760.00$ 9.00$ 28,980.00$ 8.00$ 25,760.00$ 9.00$ 28,980.00$ 33 Traffic Line (24" White Crosswalk Ladder Line) LF 923 16.00$ 14,768.00$ 16.80$ 15,506.40$ 16.00$ 14,768.00$ 16.00$ 14,768.00$ 15.00$ 13,845.00$ 16.00$ 14,768.00$ 17.00$ 15,691.00$ 34 Pavement Marking (Type IV Arrow) EA 21 125.00$ 2,625.00$ 131.00$ 2,751.00$ 130.00$ 2,730.00$ 125.00$ 2,625.00$ 140.00$ 2,940.00$ 125.00$ 2,625.00$ 150.00$ 3,150.00$ 35 Pavement Marking (Type III Arrow) EA 17 350.00$ 5,950.00$ 367.00$ 6,239.00$ 350.00$ 5,950.00$ 350.00$ 5,950.00$ 390.00$ 6,630.00$ 350.00$ 5,950.00$ 400.00$ 6,800.00$ 36 Pavement Marking (Bike Symbol with Arrow) EA 18 125.00$ 2,250.00$ 131.00$ 2,358.00$ 130.00$ 2,340.00$ 125.00$ 2,250.00$ 140.00$ 2,520.00$ 125.00$ 2,250.00$ 150.00$ 2,700.00$ 37 Pavement Marking (Railroad Crossing Symbol) EA 12 565.00$ 6,780.00$ 595.00$ 7,140.00$ 560.00$ 6,720.00$ 565.00$ 6,780.00$ 600.00$ 7,200.00$ 565.00$ 6,780.00$ 600.00$ 7,200.00$ 38 Traffic Line (24" White) LF 895 16.00$ 14,320.00$ 17.00$ 15,215.00$ 16.00$ 14,320.00$ 16.00$ 14,320.00$ 15.00$ 13,425.00$ 16.00$ 14,320.00$ 17.00$ 15,215.00$ 39 Pavement Marking (Green) SF 6081 12.00$ 72,972.00$ 12.60$ 76,620.60$ 12.00$ 72,972.00$ 12.00$ 72,972.00$ 13.00$ 79,053.00$ 12.00$ 72,972.00$ 13.00$ 79,053.00$ 40 Pavement Marking (Keep Clear) EA 1 420.00$ 420.00$ 440.00$ 440.00$ 420.00$ 420.00$ 420.00$ 420.00$ 450.00$ 450.00$ 420.00$ 420.00$ 500.00$ 500.00$ 41 Pavement Marking (Stop Marking) EA 2 180.00$ 360.00$ 190.00$ 380.00$ 180.00$ 360.00$ 180.00$ 360.00$ 200.00$ 400.00$ 180.00$ 360.00$ 200.00$ 400.00$ 42 Traffic Line (Traffic Chevron) LF 187 12.50$ 2,337.50$ 13.00$ 2,431.00$ 13.00$ 2,431.00$ 12.50$ 2,337.50$ 14.00$ 2,618.00$ 12.50$ 2,337.50$ 13.00$ 2,431.00$ 43 Pavement Marking (Type II Arrow) EA 3 385.00$ 1,155.00$ 405.00$ 1,215.00$ 380.00$ 1,140.00$ 385.00$ 1,155.00$ 400.00$ 1,200.00$ 385.00$ 1,155.00$ 400.00$ 1,200.00$ 44 Remove and Replace Sign on Existing Post EA 26 200.00$ 5,200.00$ 210.00$ 5,460.00$ 180.00$ 4,680.00$ 200.00$ 5,200.00$ 200.00$ 5,200.00$ 200.00$ 5,200.00$ 220.00$ 5,720.00$ 45 Install New Sign and Post EA 2 300.00$ 600.00$ 315.00$ 630.00$ 270.00$ 540.00$ 300.00$ 600.00$ 330.00$ 660.00$ 300.00$ 600.00$ 350.00$ 700.00$ 46 Remove and Replace Brick Pavers In Kind EA 3 1,700.00$ 5,100.00$ 10,500.00$ 31,500.00$ 800.00$ 2,400.00$ 875.00$ 2,625.00$ 2,500.00$ 7,500.00$ 6,976.00$ 20,928.00$ 2,500.00$ 7,500.00$ 47 NOT USED _ 0 -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ 48 Traffic Signal Modification - TS-01/02 GMP-I880 LS 1 78,000.00$ 78,000.00$ 79,000.00$ 79,000.00$ 79,000.00$ 79,000.00$ 47,880.00$ 47,880.00$ 85,000.00$ 85,000.00$ 64,850.00$ 64,850.00$ 60,000.00$ 60,000.00$ 49 Traffic Signal Modification - TS-03/04 GMP-Main LS 1 81,000.00$ 81,000.00$ 88,000.00$ 88,000.00$ 100,000.00$ 100,000.00$ 101,140.00$ 101,140.00$ 90,000.00$ 90,000.00$ 83,500.00$ 83,500.00$ 110,000.00$ 110,000.00$ 50 Portable Changeable Message Signs EA 6 2,500.00$ 15,000.00$ 3,200.00$ 19,200.00$ 5,000.00$ 30,000.00$ 10,000.00$ 60,000.00$ 2,500.00$ 15,000.00$ 3,394.50$ 20,367.00$ 11,000.00$ 66,000.00$ 1 Adjust AT&T manhole to Grade EA 2 1,680.00$ 3,360.00$ 5,000.00$ 10,000.00$ 1,700.00$ 3,400.00$ 1,680.00$ 3,360.00$ 1,950.00$ 3,900.00$ 1,680.00$ 3,360.00$ 3,000.00$ 6,000.00$ Note: Asterick (*) mark shows submitted Bid proposal was Mathematically corrected by City Staff.

Utility Adjustments
Per Specs, Sec 9. Subcontractors-"The successful bidder will be required to self-perform at least 50% of the work' Pg 8. Striping/Signage Traffic Signal Work
Monument Survey
Concrete
Grinding
Crack Seal
Tack Oil
% of Work Performed
by Subcontractors

CITY OF MILPITAS
N/A
MH Engineering 1% N/A N/A N/A

N/A N/A N/A N/A
Chrisp Company 12% Chrisp Company 12% Chrisp Company 10.35% Anrak 2.6%
Graham Contractor Inc. 1.5% Graham Contractor Inc. 0.95% N/A N/A Pavement Recycling Sys. 22.35%
N/A
Chrisp Company 11.4%
Gremelli Industries 4.75%
Cunha Survey 0.3%
Jalos Construction 4%

23.05% 32.25% 51.72% 17.90%
Chrisp Company 10%
N/A
N/A
Anrak 2.65% N/A
3,379,063.60$ 3,532,532.00$ 3,708,698.85$ 3,878,163.00$ ADD ALTERNATIVE 1
JCC, Inc. 4% JCC, Inc. 3.74% Johnson Construction 3.7%

25.00%

N/A N/A
N/A
N/A Spencon Construction 10.5% Spencon Construction 9.87% N/A JJR Construction 8.87% Spencon Construction 8% Bear Electrical 5% Columbia Electric Inc. 4.7% Columbia Electric Inc. 4.46% Bear Electrical 4.2% N/A
Joseph J. Albanese, Inc.Radius Earthwork Inc. Bay Cities Paving & Grading, Inc. O'Grady Paving, Inc.* 4,233,575.00$ 4,607,368.90$ JCC, Inc. 7%
Total Base Bid Amount: 3,328,125.94$
DeSilva Gates Construction LLC Teichert Construction
Subcontractors
BID ITEMS MCKIM CORP.*
Lowest Apparrent
N/A
Chrisp Company 9.07% Chrisp Company 9% Columbia Electric Inc. 3.90% Columbia Electric Inc. 4% JCC, Inc. 3.46%
Austin Enterprise 0.61% N/A
Pacific Northwest Oil 1.04% N/A

29.60% 21.00%

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ATTACHMENT 5
Construction Change Order Policy for Street Resurfacing Project 2024, CP 4283, 4304, and 4305 2007 City Council Approved Construction Change Order Policy Construction Award Individual Administrative Cumulative Award Amount Change Order Authority Change Order Authority Under $50,000 $5,000 $7,500
Over $50,000 10% of Award or $25,000 15% of Award or $100,000 whichever is smaller whichever is smaller
Street Resurfacing Project Street Resurfacing Project 2024, CP 4283, 4304, and 43053 Contract Award Individual Administrative Cumulative
Amount_______ Change Order Authority Change Order Authority

$3,328,125.94 N/A $499,218.90 (15%)

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City of Milpitas, California

BUDGET CHANGE FORM
From (Credit) To (Debit)
Type of Change
Account Amount Account Amount
Check one:
Budget
Appropriation
Budget Transfer
311 951 4304 15 3849
225 2909
311 951 4304 7 4800
314 3899
311 951 4304 15 3899
225 2909
311 951 4305 15 3565
311 951 4305 15 3899
314 2909
$76,575.29
$76,575.29
$33,850.00
$33,850.00
$463,551.00
$463,551.00
$317,862.27
$100,705.00
$100,705.00
311 951 4304 7 4800
225 3939
311 951 4305 15 3999
314 2909
311 951 4305 7 4800
225 3939
311 951 4305 7 4800
311 951 4305 7 4800
314 3999
$76,575.29
$76,575.29
$33,850.00
$33,850.00
$463,551.00
$463,551.00
$317,862.27
$100,705.00
$100,705.00
Recommendation: Adopt a resolution to approve project plans & specifications; Award the construction contract to the lowest responsible, and responsive bidder, McKim Corporation, in the amount of $3,328,125.94 for the Street Resurfacing 2024 Project No. 4283, 4304, 4305; Authorize the City Manager to execute the construction contract with McKim Corporation; Authorize the City Engineer to negotiate and execute Contract Change Order(s) in an aggregate amount not to exceed $499,218.90 for the project; and Approve the Budget Change Form to appropriate funding for CIP 4304 and CP 4305.

BACKGROUND:

Project No’s. 4283, 4304, 4305 provide funding for the design of the 2024 Street Resurfacing Project, and the Plans and Specifications for construction are complete and now ready for City Council approval. The following streets were approved by the City Council for the Street Resurfacing Project 2024 as part of the June 2023 adoption of the 2024- 2028 Capital Improvement Program budget and will receive pavement and concrete repairs during the Spring/Summer 2024 construction season:
▪Great Mall Parkway from I880 to McCandless Drive; and
▪Entire lengths of Thompson Street and Thompson Court
The Engineer’s Construction Estimate for the project was approximately $4,322,948.00, and the Project Plan title sheet (Attachment 1) is included in the Council’s agenda packet. The complete full-size set of plans and specifications are available for review in the office of the Acting City Engineer.

ANALYSIS:

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The lowest responsible and responsive bidder based on Total Base Bid is MCKIM CORPORATION, in the amount of $3,328,125.94. No bid protests were filed with the City regarding this project.

The Engineer’s Estimate for the Project was approximately $4,322,948.00 and the following is a tabulation of bidders and bids received. The bid result tabulation is included as (Attachment 3).

The current adopted fiscal year 2022-2023 Vehicle Registration Fee (VRF) funding for CIP 4304 is $500,000.00. The actual VRF funding received for fiscal year 2022-2023 was $466,150.00 with a decreased of ($33,850.00). Staff is requesting a budget amendment of ($33,850.00) in VRF funding of CIP 4304 to account for the (33,850.00) difference in projected allocation compared to the actual allocation received. The current VRF funding estimate for fiscal year 2023-

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2024 is $600,705.00 while the adopted budget is $500,000.00. Staff is requesting a budget appropriation of $100,705.00 to CIP 4305 to capture all eligible expenditures that may be used towards these funds.

The following is a summary of the requested Budget Appropriations for the Project:

Alternative 1:

Deny approval of project plans and specifications, award of the construction contract, of the requested budget change Pros: None.

Cons: A denial would cause delay in awarding this Project and in completing the needed annual repairs and rehabilitation of the City’s roadways.

FISCAL IMPACT:

As of 03/20/24, the available funding balance for the Project upon approval of attached budget change and resolution:

Project No. 4283 $400,375.74
Project No. 4304 $2,328,721.78
Project No. 4305 $3,995,188.04
Total Balance Available $6,724,285.56
Summary of Estimated Construction Cost:

Total Base Bid Amount $3,328,125.94
15% Contingency $499,218.90
City Administration and Inspection $200,000.00
Total $4,027,344.84

Page 128 of 196 ends

With the street resurfacing remaining balance, the City’s plan is to set it aside to fund the Dempsey Road resurfacing project scheduled for the summer of 2025 as part of the construction of the new Dempsey Road 12-inch Water Main replacement project.

We are also exploring the possibility of using funds for resurfacing work along two locations on East Calaveras Blvd.

One between I680 and North Park Victoria and the other between Gadsden Drive and Evans Road, following the completion of the roadway improvement work by the MUSD Innovation Campus Project next summer.

California Environmental Quality Act (CEQA):

The project is exempt under Section 15301 (Existing Facilities) of the CEQA guidelines. A Notice of Exemption (NOE) was filed with the County of Santa Clara on January 09, 2024.

RECOMMENDATION:

Adopt a resolution to:

1. Approve Project Plans and Specifications;

3. Authorize the City Manager to Execute the Construction Contract with MCKIM CORPORATION.

4. Authorize the Interim City Engineer to Negotiate and Execute Contract Change Order(s) in an Aggregate Amount Not to Exceed $499,218.90 for the project.

5. Approve the Budget Change Form to Appropriate Funding for CP 4304 and 4305.

Attachment(s):

Attachment 1 – Project Plan Title Sheet
Attachment 2 – Resolution
Attachment 3 – Bid Tabulation
Attachment 4 – Budget Change Form
Attachment 5 – Construction Change Order Policy
Check if City Council Approval required. Meeting: April 2, 2024 Requested by: Department Head: Matt Cano Date: April 2, 2024 Reviewed by: Interim Finance Director: Gabrielle Tsang Date: April 2, 2024 Approved by: City Manager: Ned Thomas Date: April 2, 2024 Date approved by City Council, if required: Confirmed by:

FI/24786/V Form 30-222 (Rev. 1/92)

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Granting Acceptance of the Street Resurfacing 2023 Project, Project No. 4283, 4303, & 4304, Authorizing the City Engineer to file a Notice of Completion and Issue a Notice of Final Acceptance after the One-Year Warranty (Staff Contact: Michael Silveira, Public Works Engineer Division Manager 408- 586-3303; and Matt Cano, Assistant City Manager 408-586-3012) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 4/2/2024
Recommendation: Adopt a resolution granting acceptance of the Street Resurfacing 2023 Project, Project No. 4283, 4303, & 4304, authorizing the City Engineer to file a Notice of Completion and issue a Notice of Final Acceptance after the one-year warranty BACKGROUND:

On June 6, 2023, the City Council awarded a construction contract to Joseph J. Albanese Inc. for the Street Resurfacing 2023 Project, Project No. 4283, 4303, & 4304 (“Project”) in the amount of $2,899,299.75. The Project provided for the construction of localized repair of asphalt concrete pavement, resurfacing asphalt concrete pavement, installation of Americans with Disabilities Act (ADA) compliant curb ramps, repair of damaged concrete sidewalk, driveways, or curb & gutter, installation of Class II bike lanes, and reinstallation of pavement delineation. The following street segments were repaired under this Project:
▪North Park Victoria Drive from Bolton Drive to Jacklin Road ▪Kennedy Drive from North Park Victoria Drive to Fanyon Street ▪Mt Shasta Avenue from Dempsey Road to S Park Victoria Drive ▪Edsel Drive from Dempsey Road to South Park Victoria Drive ▪Entire lengths of: Bolton Drive, Churchill Drive, Wellington Drive, Stratford Drive, Devon Place, Sussex Place, Kirkwall Place, Stirling Drive, London Drive, Hastings Drive, Inverness Drive, Berkshire Place, Baron Place, Wessex Place, Canterbury Place, Cardiff Place, Ann Place, Princess Place, Hampton Court, Carson Way, El Camion Higuera, Zamora Court, Nicklaus Avenue, Berg Court, Ranklin Drive, Creed Street, Selwyn Drive, and Shirley Drive.

ANALYSIS:

The Project has been successfully completed within budget. Staff recommends the City Council adopt a Resolution (Attachment 1) granting acceptance of the Project and authorize the City Engineer to file a Notice of Completion in accordance with the provisions of Section 9204 of the Civil Code. Staff also recommends the City Council authorize the City Engineer to issue a notice of final acceptance after the one-year warranty period without further City Council action, provided that all warranty work is completed to the satisfaction of the City Engineer.

POLICY ALTERNATIVE(S):

Alternative 1: Do not adopt Resolution and deny Project acceptance and deny filling the Notice of Completion and not begin the one-year warranty.

Pros: None.

Cons: A denial would result in the City being unable to accept the completed improvements in accordance with the City’s contract with the Contractor.

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Reason not Recommended: The Contractor has completed the Project in accordance with the approved Contract Documents. A denial to accept the Project could be considered a breach of contract and risk claim by the Contractor.

FISCAL IMPACT:

None. The Project has been completed within the approved budget. Adequate funding remains in the Project Budget to complete close-out activities. As of March 26, 2024, the balances are $400,376 in CIP 4283, $76,534 in CIP 4303, and $2,328,000 in CIP 4304.

California Environmental Quality Act (CEQA):

The project is exempt under Section 15301 (Existing Facilities) of the CEQA guidelines. A Notice of Exemption (NOE) was filed with the County of Santa Clara on January 31, 2023.

RECOMMENDATION:

Adopt a resolution to grant acceptance of Project No. CP 4283, 4303, & 4304, Street Resurfacing 2023 Project; and authorize the City Engineer to file a Notice of Completion and to issue a Notice of Final Acceptance after the one-year warranty.

Attachment(s):

Resolution and Notice of Completion

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RESOLUTION NO. ___________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING ACCEPTANCE OF STREET RESURFACING 2023, PROJECT NO. 4283, 4303, & 4304 WHEREAS, the City of Milpitas has heretofore entered into a contract with Joseph J. Albanese Inc., for the Street Resurfacing 2023 Project (“Project”), Project No. 4283, 4303, & 4304 in the amount of $2,899,299.75, and the City Engineer of the City of Milpitas has recommended acceptance of said improvement as completed in accordance with plans, specifications and approved change orders and correction lists, and in accordance with the final inspection of said City Engineer.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

2. The City of Milpitas does hereby accept the Project as completed on this 2nd day of April, 2024, and does hereby authorize and direct the City Engineer of the City of Milpitas to file a Notice of Completion in accordance with the provisions of Section 9204 of the Civil Code of the State of California, and does hereby authorize and direct the City Engineer to file a Certificate of Completion in accordance with the provisions of Section 4005 of the Government Code of the State of California, if said work was by day’s labor or force account.

PASSED AND ADOPTED this ___________ day of ___________ 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
____________________________ _________________________
Mary Lavelle, City Clerk Suzanne Guzzetta, City Clerk Carmen Montano, Mayor APPROVED AS TO FORM:
____________________________
Michael Mutalipassi, City Attorney

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2 Resolution No. ____
Recording Requested by and
When Recorded Mail to:

City of Milpitas
455 East Calaveras Boulevard
Milpitas, CA 95035
Attention: City Clerk
Record without fee under
Section 6103 - Government Code
State of California

CITY OF MILPITAS

NOTICE OF COMPLETION
(Civil Code Section 9204)
NOTICE IS HEREBY GIVEN:

1.On or about April 2, 2024, the City Council of the City of Milpitas, a municipal corporation of the State of California, whose address is City Hall, 455 East Calaveras Boulevard, Milpitas, California, 95035 (as owner) entered into a contract for work of: Street Resurfacing 2023 Project, Project No. 4283, 4303, & 4304.

2. A description of the site of which the City is co-owner for said work of improvement is: Portions of N Park Victoria Drive, Kennedy Drive, Mt. Shasta Avenue, Edsel Drive, Bolton Drive, Churchill Drive, Wellington Drive, Stratford Drive, Devon Place, Sussex Place, Kirkwall Place, Stirling Drive, London Drive, Hastings Drive, Inverness Drive, Berkshire Place, Baron Place, Wessex Place, Canterbury Place, Cardiff Place, Ann Place, Princess Place, Hampton Court, Carson Way, El Camion Higuera, Zamora Court, Nicklaus Avenue, Berg Court, Ranklin Drive, Creed Street, Selwyn Drive, and Shirley Drive in the City of Milpitas, Santa Clara County, California, more particularly described on the plans.

3. The name and address of the direct contractor is: Joseph J. Albanese Inc, 851 Martin Avenue, Santa Clara, CA, 95050

4. A general statement of the kind of work done or materials furnished to the City is as follows:
construction of asphalt concrete street repairs, micro-surfacing seal coat, installation of Americans with Disabilities Act (ADA) compliant curb ramps, concrete sidewalk repair, curb & gutter repair, class II bike lanes, and pavement delineation.

5. Said work of improvement was accepted by the Milpitas City Council as complete on April 2, 2024. ************************************************************************************* I, the undersigned, declare that I am the Assistant City Manager of the City of Milpitas and am authorized to execute the foregoing Notice of Completion and this Verification thereof. I have read the foregoing Notice of Completion. I declare under penalty of perjury that the foregoing Notice of Completion is true and correct. Executed on _____________________, 2024 at Milpitas, California. _______________________________________
Matt Cano, Assistant City Manager,
City of Milpitas
_____________________________________________________________________________________ NOTE: RECORD WITHIN 15 DAYS OF ACCEPTANCE WITH COUNTY RECORDER OF SANTA CLARA COUNTY

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution to Approve Project Plans & Specifications, Award the Construction Contract with Mark Lee and Yong Kay, Inc., Dba Bay Construction Co., Authorize Design Services Agreement Amendment No. 1 with Callander Associates Landscape Architecture, Inc. for ARPA Parks Rehabilitation, Project Nos. 3500, 3501, 5110 (Staff: Christian Di Renzo, Public Works Director, 408.586.2602, Michael Silveira, PW Division Manager-Engineering, 408.586.3303) Category: Consent Calendar-Community Development
Meeting Date: 4/2/2024
Recommendation: (1) Adopt a resolution to approve project plans & specifications; (2) award the construction contract to the lowest responsible bidder submitting a responsive bid, Mark Lee and Yong Kay Inc, Dba Bay Construction Co., in a total amount of $2,532,000; (3) authorize the City Manager to execute the construction contract with Mark Lee and Yong Kay Inc, Dba Bay Construction Co., (4) authorize the Public Works Director to negotiate and execute contract change order(s) in an aggregate amount not to exceed $380,000; and (5) approve and authorize the City Manager to execute Amendment No. 1 to the Design Services Agreement with Callander Associates Landscape Architecture, Inc. for Sinnott Park Playground design in the amount of $75,000 for ARPA Parks Rehabilitation Phase 2, Project Nos. 3500, 3501, 5110.

BACKGROUND:

On August 9, 2021, City Council approved an allocation of $4,386,815 of American Rescue Plan Act (ARPA) funding to address immediate health and safety repairs and short-term improvements of parks in critical and poor condition at 20 parks as identified in the Parks and Recreation Master Plan adopted in December 2021.

On December 6, 2022, City Council awarded a construction contract to G&G Builders, Inc. to address immediate health and safety repairs at nine (9) parks for ARPA Park Rehabilitation Phase 1, Project No. 3500.

Phase 1 work was aimed at addressing failed pour-in-place play surfaces, replacing sand with engineered wood fiber, and replacing aging playground equipment components. The work was completed in December of 2023 at Cerano, John McDermott, O’Toole Elm, Parc Metro Central, Parc Metro East, Pinewood, Selwyn, Sunnyhills Albert Augustine Jr. Memorial and Tom Evatt parks in the approximate amount of $1,116,000.

ARPA Park Rehabilitation Phase 2, Project Nos. 3500, 350, 5110 (“Project”) is included in the adopted 2024- 2028 Capital Improvement Program. The Project provides for the design and construction to address health and safety repairs and short-term improvements of parks in critical and poor condition at 13 parks, namely Ben Rogers, Foothill, Hidden Lake, Murphy, Oliver Jones, Parc Metro West, Robert E. Browne, Sandalwood, Sinnott, Strickroth, Starlite, Sunnyhills Albert Augustine Jr. Memorial, and Tom Evatt. Phase 2 work will focus on ADA compliance, where feasible, replacing aging site furnishings, improving and repairing picnic areas and pathways, improving fitness station and playground areas, and upgrading restroom fixtures to comply with current 2022 Building Codes.

On October 12, 2022, staff issued an RFP seeking a landscape architect firm to provide design and construction support services for the Project and received proposals from Gates and Associates, and Callander Associate Landscape Architecture, Inc. (CALA). The proposals were reviewed and evaluated based on the project team, project understanding, management approach, similar past project experiences, and cost estimate of services. Staff deemed CALA to be the most qualified firm based on the overall evaluation criteria.

On December 6, 2022, the City entered into a Design Service Agreement with CALA in the amount not to exceed $386,814.

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The Engineer’s Construction Estimate for the Project’s base bid was $1,995,000 with 6 bid alternates amounting to $456,000 for a total of $2,451,000. The Project Plan title sheet (Attachment 2) is included in the Council’s agenda packet and the complete full-size set of plans and specifications are available electronically upon request to the City Engineer.

ANALYSIS:

The Project was advertised on digital construction trade publications on January 12, 2024, and in the Milpitas Post on January 12 and 19, 2024, in accordance with the bidding requirements of the Uniform Public Construction Cost Accounting Act. A bid opening was held on February 29, 2024, and four sealed bids were received which ranged in base bid prices from $2,065,093.22 to $2,518,000.00. The apparent lowest bidder was Calico California Constructores, Inc. (Calico) submitting a base bid in the amount of $2,065,093.22 and bid alternatives in the amount of $280,118.00. The bid tabulation is listed below and included in the agenda (Attachment 3).

Bidder Location Base Bid
Total of
Alternate Bid
Items (1-6)
Total Bid (Base
+ Alternate
Bids)
Engineer's Construction Estimate - $1,995,000.00 $456,000.00 $2,451,000.00 Calico California Constructores, Inc. San Pablo, CA $2,065,093.22 $280,118.00 $2,345,210.62 Bay Construction Co. Oakland, CA $2,280,000.00 $252,000.00 $2,532,000.00 Redwood Engineering Construction, Inc. Redwood City, CA $2,420,000.00 $320,000.00 $2,740,000.00 Suarez & Munoz Construction, Inc. Hayward, CA $2,518,000.00 $390,000.00 $2,908,000.00 The bid pricing submitted varies between 0% to 26% over the Engineer’s Construction Estimate. The range of variation in bid pricing is likely due to the current construction market which has been impacted by the economic inflation.

Staff has reviewed Calico’s bid package and determined it is non-responsive. Calico did not follow instructions to submit their bid proposal on the revised bid forms provided in Addendum #3, register for a Unique Entity Identifier (UEI) with the federal government prior to submitting the bid, and failed to provide proof of good faith effort to comply with Disadvantaged Business Entity specifications. Staff informed Calico in writing of their non- responsive bid and Calico issued a letter of acknowledging their bid was non-responsive (Attachment 6).

Also, a bid protest was filed by Mark Lee and Yong Kay Inc, Dba Bay Construction Co. (Bay Construction), on March 05, 2024, with the City in regards to this Project.

Staff reviewed the bid proposal submitted by Bay Construction, the apparent second lowest bidder, and found their bid proposal to be responsive. Staff recommends awarding a construction contract in the base bid amount of $2,280,000 plus alternate bid items 1-6 in the amount of $252,000 in the total amount of $2,532,000 to Bay Construction, the lowest responsible bidder submitting a responsive bid. There is sufficient funding available in the Project budget to award this contract and no additional funding appropriation is required.

The construction contingency established for this Project is $380,000 (15% of contract value) to address any unforeseen conditions that arise during construction. As previously approved for the successful completion of recent projects with tight completion schedules, staff is requesting the use of the same change order policy used for previous projects (Attachment 4). This policy allows for a timely completion of the Project, while addressing the need to respond swiftly to construction conditions and approve necessary change orders to limit potential claims or risks to the City. The change order authority will not be exceeded without prior City Council approval.

During the presentation of the proposed 2025-2029 Capital Improvement Program at the City Council Study Session on February 22, 2024, staff recommended adding a new project with a budget appropriation of $100,000 for conceptual design options to address the aging condition of the playground area at Sinnott Park.

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Currently, there is $75,000 remaining in the project budget after award of construction contract for this Project that can be allocated towards the design of the playground at Sinnott Park. Combined with the $100,000 in the proposed 2025-2029 Capital Improvement Program presented at City Council Study Session on February 22, 2024, the design budget would increase to $175,000 which should be sufficient to complete the design of the improvements. Staff is recommending approving Amendment No. 1 to the Design Services Agreement with CALA (Attachment 5) to expedite the schedule of the planning and design phase to determine the project needs and budget, and program the construction into the next capital budget cycle. Staff has negotiated a scope and fee for Amendment No. 1 for a price not to exceed $75,000 which will increase the agreement from $386,814 to $461,814. No additional funding appropriation is required for Amendment No. 1. Upon approval of the conceptual design for the playground area at Sinnott Park, staff will amend the Design Services Agreement with CALA to complete the Contract Documents for construction through the new CIP project which will be available starting on July 1, 2024.

POLICY ALTERNATIVES:

Alternative 1: Deny approval of Project’s plans and specifications and not award the construction contract to Bay Construction.

Pros: None.

Cons: A denial would cause delay in awarding this Project and risk losing the allocated ARPA federal funding if not obligated by the end of the 2024 calendar year.

Reason not Recommended: Delaying the repairs and short-term improvements of parks in poor condition will continue to result in additional degradation of these facilities. Addressing these needed deficiencies should improve the overall condition of the City Park system.

Alternative 2: Deny approval of Amendment No. 1 to the Design Services Agreement with CALA.

Pros: None.

Cons: A denial would cause delay in starting the planning and design phase to address the aging condition of the playground area at Sinnott Park.

Reason not Recommended: The postponement will prolong the schedule and prevent staff from understanding the project needs and budget before the start of the next Capital Improvement Program budget cycle to program funding, if available, for construction.

FISCAL IMPACT:

Adequate funds are available in the Project budget and no additional funding appropriation is required.

As of 03/20/2024, the uncommitted balance of the Project is as follows:

CIP 3501 $ 2,770,957
CIP 3500 $ 120,913
CIP 5110 $ 235,653
Total $ 3,127,523
Summary of Estimated Construction Cost:

Base Bid + Alternate Bids 1-6 $ 2,532,000
15% Construction Contingency $ 380,000
Administration and Inspection $ 137,000
Design Service Agreement-Amendment No.1 $ 75,000
Total $ 3,125,000

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CALIFORNIA ENVIRONMENTAL QUALITY ACT:

The project entails replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure being replaced and will have substantially the same purpose and capacity as the structure replaced and therefore exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15302.

RECOMMENDATION:
(1) Adopt a resolution to approve project plans & specifications; (2) award the construction contract to the lowest responsible bidder submitting a responsive bid, Mark Lee and Yong Kay Inc, Dba Bay Construction Co., in a total amount of $2,532,000; (3) authorize the City Manager to execute the construction contract with Mark Lee and Yong Kay Inc, Dba Bay Construction Co., (4) authorize the Public Works Director to negotiate and execute contract change order(s) in an aggregate amount not to exceed $380,000; and (5) approve and authorize the City Manager to execute Amendment No. 1 to the Design Services Agreement with Callander Associates Landscape Architecture, Inc. in the amount of $75,000 for ARPA Parks Rehabilitation Phase 2, Project No. 3500, 3501, 5110.

ATTACHMENTS:
(1) Resolution
(2) Title Sheet & Location Map
(3) Bid Summary
(4) Change Order Policy
(5) CALA Amendment No. 1
(6) Calico Non-Responsive Letter

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Attachment 1
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING PROJECT PLANS & SPECIFICATIONS; AWARD THE CONSTRUCTION CONTRACT TO

THE LOWEST RESPONSIBLE BIDDER SUBMITTING A RESPONSIVE BID, MARK LEE AND YONG KAY INC, DBA BAY CONSTRUCTION CO., IN A TOTAL AMOUNT OF $2,532,000;

AUTHORIZE THE CITY MANAGER TO EXECUTE THE CONSTRUCTION CONTRACT WITH MARK LEE AND YONG KAY INC, DBA BAY CONSTRUCTION CO., AUTHORIZE THE

CITY ENGINEER TO NEGOTIATE AND EXECUTE CONTRACT CHANGE ORDER(S) IN AN AGGREGATE AMOUNT NOT TO EXCEED $380,000; AND APPROVE AND AUTHORIZE THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE DESIGN SERVICES AGREEMENT WITH CALLANDER ASSOCIATES LANDSCAPE ARCHITECTURE, INC. IN THE AMOUNT OF $75,000 FOR ARPA PARKS REHABILITATION PHASE 2, PROJECT NOS. 3500, 3501, 5110.

WHEREAS, the ARPA Parks Rehabilitation Phase 2, City Project No. 3500, 3501, 5110 (“Project”), is in the approved 2024-2028 Capital Improvement Program; and provides rehabilitation effort to renew parks in poor conditions; and
WHEREAS, the Project consists of works including ADA compliance where feasible, replacing aging site furnishings, improving and repairing picnic areas and pathways, improving fitness station and playground areas, and upgrading restroom fixtures to comply with current Building Codes; and WHEREAS, The Project was advertised on digital construction trade publications on January 12, 2024, and in the Milpitas Post on January 12 and 19, 2024, in accordance with the bidding requirements of the Uniform Public Construction Cost Accounting Act; and WHEREAS, the Engineer’s Estimate for the Project base bid items is $1,995,000, and $456,000 for the alternate bids; and
WHEREAS, on February 29, 2024, four sealed bid proposals were received. The base bid pricing ranged from $2,065,093.22 to $2,518,000; and
WHEREAS, Calico California Constructores, Inc. bid proposals were deemed non-responsive because the bids did not meet requirements set forth in the Project bid documents; and WHEREAS, the lowest responsible bidder submitting a responsive bid is Mark Lee and Yong Kay Inc, Dba Bay Construction Co, in the base bid amount of $2,280,000; and WHEREAS, a bid protest was filed by Mark Lee and Yong Kay Inc, Dba Bay Construction Co, with the City within five (5) days of the bid opening as set forth in the Project specifications and found to have merit; and
WHEREAS, staff recommends the City Council award a construction contract to Mark Lee and Yong Kay Inc, Dba Bay Construction Co., the lowest responsible bidder submitting a responsive bid for the Project, and authorize the City Manager to execute a contract for base bid and Alternate Bid Items 1-6 in the amount of $2,532,000 in accordance with State law; and WHEREAS, sufficient funds are available in the Project budget to award the Bay Construction Co. in in the total amounts of $2,532,000; and

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2 Resolution No. ____
WHEREAS, staff recommends the City Council authorize the Public Works Director to negotiate and execute change order(s) in an amount not to exceed $380,000; fifteen percent (15%) of the total contract value, due to the Project’s tight completion schedule and staff’s capability to respond swiftly to unanticipated construction conditions to limit potential claims or risk to the City; and WHEREAS, staff recommends the City Council authorize the City Manager to execute Amendment No. 1 to the Design Services Agreement with Callander Associates Landscape Architecture, Inc. in the amount not to exceed $75,000; NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

2. The City Council hereby approves the Project Plans and Specifications.

3. The City Council hereby awards the construction contract to and authorizes the City Manager to execute the contract and related documents with the lowest responsible bidder submitting a responsive bid, Bay Construction Co., in the amount of $2,532,000 for the Project.

4. The City Engineer is hereby authorized to negotiate and execute contract change order(s) in an aggregate amount not to exceed $380,000 for the Project.

5. The City Manager is hereby authorized to execute Amendment No. 1 to the design services agreement with Callander Associates Landscape Architecture, Inc. for the amount not to exceed $75,000.

PASSED AND ADOPTED this day of , 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
_____________________________ __________________________ Suzanne Guzzetta , City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

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3 Resolution No. ____
_____________________________
Michael Mutalipassi, City Attorney

Page 140 of 196 ends

PROJECT SCOPEVICINITY MAP©

CITY OF MILPITAS

SHEET SCHEDULEPROJECT DIRECTORY
COVER SHEETL0.0DEFERRED SUBMITTALS·····
12/15/2312/15/2312/15/23MWMMMMCALIFORNIAJANUARY 26, 1954OFRevisionsTYCIINCORPORATEDITASLMIPARPA PARKS REHABILITATIONDesigner Stamp:2-####Res. No.Utility/Facility Dept. Head:Date:Date:Date:Date:Designer:Project Engineer:Record DrawingsPublic Works Inspector:the City Council on:Public Improvements Initially Accepted byCITY OF MILPITASENGINEERING DIVISIONAS SHOWN3501, 5110, 3500942025 Gateway Place, Suite 285San Jose, CA 95110T 408.275.0565www.callanderassociates.com FOR BID ALTERNATE SCHEDULE - SEE SHEET L1.1
1 PROJECT NO. 3501, 5110, 3500
RECOMMENDED FOR BIDDING BY:________________________ DATE: _________MICHAEL SILVEIRA, P.E., PUBLIC WORKS - ENGINEERING DIVISION MANAGERRECOMMENDED FORAPPROVAL FOR BIDDING BY:________________________ DATE: _________MATT CANO, P.E., ASSISTANT CITY MANAGER/ACTING CITY ENGINEERMichael Silveira1/8/2024Matt CanoDigitally signed by Matt Cano Date: 2024.01.09 07:17:05 -08'00'

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CITY OF MILPITAS

ENGINEERING DIVISION

BID SUMMARY
Project Name: ARPA Parks Rehabilitation Project
Project No.: 3501,5110,3500
Bid Date: 2/29/2024
Apparent Low Bidder
Lowest; Responsive Bidder
Engineer's Estimate
Calico
Bay Construction
Redwood
Suarez and Munoz
Item
Cost
Cost
Cost
Cost
Cost
1 Mobilization
LS
$92,971.61
$100,300.00
$200,000.00
$100,000.00
$115,000.00
2 Traffic Control
LS
$55,398.89
$54,870.00
$200,000.00
$10,000.00
$35,000.00
3 Ben Rodgers Park
3A
Site Furnishings Replacement
LS
$71,580.00
$50,386.00
$15,000.00
$60,000.00
$120,000.00
4 Foothill Park
4A
Site Furnishings Replacement
LS
$41,150.00
$27,376.00
$30,000.00
$40,000.00
$80,000.00
4B
Asphalt Paving Improvements
LS
$83,595.00
$58,646.00
$30,000.00
$70,000.00
$65,000.00
4C
Restroom Renovation and Electrical Improvements
LS
$47,270.00
$147,500.00
$60,000.00
$100,000.00
$85,000.00
4D
Storm Drain Improvements
LS
$1,500.00
$19,942.00
$15,000.00
$10,000.00
$8,000.00
5 Hidden Lake Park
5A
Site Furnishings Replacement
LS
$67,182.00
$32,096.00
$30,000.00
$60,000.00
$33,000.00
5B
ADA Curb Ramp Improvement
LS
$14,350.00
$29,028.00
$65,000.00
$60,000.00
$41,000.00
6 Murphy Park
6A
Site Furnishings Replacement
LS
$61,800.00
$41,536.00
$145,000.00
$50,000.00
$100,000.00
6B
Fitness Station Installation
LS
$44,400.00
$37,170.00
$30,000.00
$30,000.00
$10,000.00
6C
DG Paving Improvement for Picnic Area and Fitness Station LS
$32,820.00
$18,762.00
$125,000.00
$40,000.00
$25,000.00
6D
Restroom Renovations and Electrical Improvements
LS
$21,080.00
$159,300.00
$60,000.00
$70,000.00
$48,000.00
6E
Concrete Improvement at Restroom
LS
$58,980.00
$94,282.00
$30,000.00
$75,000.00
$51,000.00
7 Oliver W. Jones Memorial Park
7A
Site Furnishings Replacement
LS
$36,292.00
$27,376.00
$60,000.00
$30,000.00
$45,000.00
7B
ADA Curb Ramp Improvement
LS
$14,960.00
$37,170.00
$40,000.00
$15,000.00
$20,000.00
8 Parc Metro West
8A
Site Furnishings Replacement
LS
$85,880.00
$32,096.00
$45,000.00
$100,000.00
$140,000.00
8B
Playground Improvements
LS
$163,010.00
$84,370.00
$200,000.00
$155,000.00
$200,000.00
8C
Storm Drain Improvements
LS
$5,000.00
$43,070.00
$15,000.00
$10,000.00
$5,000.00
9 Robert E. Browne Park
9A
Site Furnishings Replacement
LS
$47,800.00
$24,634.86
$80,000.00
$20,000.00
$84,000.00
9B
Fitness Station Installation
LS
$26,000.00
$21,358.00
$20,000.00
$50,000.00
$8,000.00
9C
DG Paving Improvement for Picnic Area and Fitness Station LS
$18,738.00
$19,470.00
$30,000.00
$25,000.00
$12,000.00
10 Sandalwood Park
10A
Site Furnishings Replacement
LS
$99,460.00
$28,343.00
$55,000.00
$90,000.00
$120,000.00
10B
DG Paving Improvement for Pathway
LS
$33,312.50
$23,010.00
$25,000.00
$35,000.00
$30,000.00
10C
Playground Fencing Improvement
LS
$6,700.00
$8,067.66
$25,000.00
$25,000.00
$55,000.00
11 Sinnott Park
11A
Site Furnishings Replacement
LS
$31,300.00
$32,096.00
$30,000.00
$50,000.00
$57,000.00
11C
Fitness Station Installation
LS
$29,565.00
$40,238.00
$30,000.00
$45,000.00
$8,000.00
11D
DG Paving Improvement for Pathway, Picnic Area, and Fitness Station LS
$55,230.00
$17,180.80
$30,000.00
$75,000.00
$80,000.00
11F
Restroom Renovations
LS
$9,720.00
$148,208.00
$15,000.00
$60,000.00
$15,000.00
11G
ADA Curb Ramp Improvement
LS
$22,800.00
$34,102.00
$15,000.00
$15,000.00
$26,000.00
12 Starlite Park
12A
Site Furnishings Replacement
LS
$57,300.00
$33,040.00
$30,000.00
$70,000.00
$62,000.00
12B
ADA Curb Ramp and DG Paving Improvement for Pathway
LS
$58,620.00
$32,922.00
$15,000.00
$55,000.00
$91,000.00
12C
Playground Improvements
LS
$257,030.00
$173,460.00
$250,000.00
$350,000.00
$330,000.00
12D
Restroom Renovations
LS
$18,120.00
$147,500.00
$15,000.00
$60,000.00
$16,000.00
12E
Storm Drain Improvements
LS
$20,400.00
$17,110.00
$15,000.00
$50,000.00
$30,000.00
13 Strickroth Park
13A
Site Furnishings Replacement
LS
$28,450.00
$28,320.00
$60,000.00
$30,000.00
$32,000.00
13B
ADA Curb Ramp Improvement
LS
$16,970.00
$21,004.00
$15,000.00
$15,000.00
$33,000.00
13C
DG Paving Improvement for Picnic Area
LS
$25,595.00
$17,110.00
$15,000.00
$25,000.00
$22,000.00
13D
Tunnel Features Refurbishment
LS
$20,280.00
$15,912.30
$40,000.00
$20,000.00
$62,000.00
14 Sunnyhills Albert Augustine Jr. Park
14A
Site Furnishings Replacement
LS
$63,900.00
$28,320.00
$30,000.00
$55,000.00
$52,000.00
14B
DG Paving Improvement for Picnic Area
LS
$31,810.00
$10,502.00
$15,000.00
$50,000.00
$45,000.00
14C
Restroom Renovations
LS
$10,680.00
$17,700.00
$15,000.00
$60,000.00
$15,000.00
15 Tom Evatt Park

DESCRIPTION
1

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15A
Site Furnishings Replacement
LS
$6,000.00
$30,208.00
$15,000.00
$5,000.00
$7,000.00
$1,995,000.00
$2,065,092.62
$2,280,000.00
$2,420,000.00
$2,518,000.00
Item
Bid Alternate
1 Ben Rodgers Park: DG Paving Improvements for Pathway and Picnic Area; ADA Curb Ramp and Driveway Improvements
$137,890.00
$52,790.00
$120,000.00
$100,000.00
$120,000.00
2 Foothill Park: DG Paving Improvements for Pathway; ADA Curb Ramp Improvements
$117,520.00
$81,000.00
$60,000.00
$90,000.00
$120,000.00
3 Murphy Park: DG Paving Improvements for Small Picnic Areas $24,270.00
$29,900.00
$12,000.00
$20,000.00
$30,000.00
4 Oliver W. Jones Memorial Park: DG Paving Improvements for Picnic Areas $75,320.00
$42,500.00
$20,000.00
$50,000.00
$40,000.00
5 Sinnott Park: DG Paving Improvements for Pathway
$87,000.00
$34,228.00
$20,000.00
$45,000.00
$45,000.00
6 Additioinal Site Furnishing: Provide additional seven (7) benches $14,000.00
$39,700.00
$20,000.00
$15,000.00
$35,000.00

BID ALTERNATE CONTRACT WORK
$456,000.00
$280,118.00
$252,000.00
$320,000.00
$390,000.00
TOTAL BASE + BID ALTERNATE
$2,451,000.00
$2,345,210.62
$2,532,000.00
$2,740,000.00
$2,908,000.00
Calico
Bay Construction
Redwood
Suarez and Munoz
Belmonte's Concrete Services
Belmonte's Concrete Services
Joe Vera
Gremelli
Gremelli
Yancon Energy Services, Inc
Robertson Recreational
Surfaces
Ross Recreation Equipment
Co
SpectraTurf
Playgrounds Unlimited
James Breneman
James Breneman
James Breneman
Playgrounds Unlimited
Kier and Wright
Construction Survey
All Steel Fence Inc
All Steel Fence Inc
AAA Fence
Survey
Fence
List of Sub-Contractors
Description
Concrete
Electrical
Rubber Surfacing
Play Equipment Installation

BASE CONTRACT WORK
2

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Attachment 4
Construction Change Order Policy for ARPA Parks Rehabilitation Phase 2, Project No. 3500, 3501, 5110.
2021 City Council Approved Construction Change Order Policy Construction Award Individual Administrative Cumulative Award Amount Change Order Authority Change Order Authority Less than $100,000 $10,000 $15,000
Over $100,000 10% of Award or $20,000 15% of Award or $40,000 whichever is less whichever is smaller
ARPA Parks Rehabilitation Project Change Order Policy
Construction Award Individual Administrative Cumulative Award Amount Change Order Authority Change Order Authority $2,532,000 N/A $380,000

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Amendment No. 1 Page 1 of 3
Attachment 5

Project No.: CP 3501
Project Name: ARPA Park Rehabilitation Project

AMENDMENT NO. 1

TO THE DESIGN SERVICES AGREEMENT BETWEEN CITY OF MILPITAS AND CALLANDER ASSOCIATES LANDSCAPE ARCHITECTURE, INC.

This Amendment is entered into this 2nd day of April 20 24 by and between the City of Milpitas, a municipal corporation of the State of California (hereafter referred to as "CITY") and Callander Associates Landscape Architecture, inc., a California Corporation (hereafter referred to as " CONSULTANT "). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Amendment No. 1.

RECITALS

WHEREAS, on December 6, 2022 , the parties entered into an Agreement entitled “ Design Services Agreement between the City of Milpitas and Callander Associates Landscape Architecture, Inc. ” (“Agreement”) for design services in the total amount of $ 386,814.00; and

WHEREAS, the parties now desire to amend the Agreement to increase the compensation by $ 75,000.00 to allow CONSULTANT to provide additional design services for the conceptual design options of the playground area at Sinnott Park playground as described in Exhibit A -1, attached hereto, for a new total amount of $461,814.00; and

NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, the parties agree to amend the Agreement as follows:

1. Section 3.10.1 , entitled “ Designer’s Compensation for Basic Services ,” the first line is hereby amended to read as follows:

“City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not -to -exceed amount of Four Hundred Sixty -One T housand Eight Hundred Fourteen Dollars ($ 461,814.00) (Total Compensation).

2. Exhibit A -1 , attached hereto and incorporated herein by this reference, are hereby added to the Agreement.

3. The Consultant agrees to maintain and pay for all insurance policies as stated in Section 3.3.3, entitled "Standards and Insurance" of the Agreement dated October 2, 20 23 . The Consultant shall provide the City with renewal certificates of the current policies upon the expiration of the current policies.

4. Except as amended by this Amendment No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 1 , whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.

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Amendment No. 1 Page 2 of 3

5. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1.

6. If any provision of this Amendment No. 1 shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Amendment No. 1 unless elimination of such provision materially alters the rights and obligations set forth herein.

[SIGNATURES ON FOLLOWING PAGE]

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Amendment No. 1 Page 3 of 3
SIGNATURE PAGE FOR AMENDMENT NO. 1

TO DESIGN SERVICES AGREME NT BETWEEN THE CITY OF MILPITAS AND CALLANDER ASSOCIATES LANDSCAPE ARCHITECTURE, INC.

This Amendment No. 1 is executed as of the date first written above.

APPROVED BY:

CITY OF MILPITAS CONSULTANT

CALLANDER ASSOCIATES

LANDSCAPE ARCHITECTURE,
INC.

APPROVED BY:

__________________________________ By:______________________ Ned Thomas , City Manager Marie Mai, Principal

__________________________________ _____________________ Date Date

APPROVED AS TO FORM:

_______________________________
Michael Mutalipassi , City Attorney

APPROVED

________________________________
Gabrielle Tsang, Interim Finance Director /Interim Risk Manager

APPROVED AS TO CONTENT:

_______________________________
Matt Cano, Assistant City Manager /Interim City Engineer

Page 147 of 196 ends

www.callanderassociates.com

BURLINGAME GOLD RIVER SAN JOSE
1633 Bayshore Highway, Suite 133 12150 Tributary Point Drive, Suite 140 2025 Gateway Place, Suite 285 Burlingame, CA 94010 Gold River, CA 95670 San Jose, CA 95110 650.375.1313 916.985.4366 408.275.0565

23003_ASA#3_SinnottPlaygroundDesign.doc

Recreate
Educate
Live+Work
Connect
Sustain

March 18, 2024

ADDITIONAL SERVICES AUTHORIZATION #3

TO: Tony Cao
City of Milpitas
455 E. Calaveras Blvd
Milpitas, CA 95035
Email: [email protected]

RE: ARPA PARK REHABILITATION/Sinnott Park playground design services

The City would like to conduct a feasibility study and initiate design services to replace the existing play equipment and resilient surfacing at Sinnott Park. The playground area is approximately 11,700 square feet. This additional services work is not included in our original contract. The work will be provided on this project in accordance with our agreement dated December 6, 2022 and are considered an amendment thereto:

Assumptions

 Existing play area curb to remain. Existing play equipment will be removed; therefore, no safety inspection of the existing equipment will be required.  Existing sand surfacing is to be replaced with a combination of resilient rubber surfacing and engineered wood fiber surfacing to allow the play area to be defined as a self-treating area, for stormwater management purposes.  Community meetings and Commission/Council presentations are excluded.  Foundation design for play equipment footings will be provided by the contractor as a deferred submittal.
 Construction and post-construction period support services are excluded.

Scope

1. Topographic Survey: Prepare a supplemental topographic survey of the existing play area and associated path to show the location and elevation of the play area curb, structures, hardscape, grade elevations, and visible utilities within the survey area.

Measure inverts of accessible and unobstructed visible area drains.

2. Site Reconnaissance: Visit the site with City staff to confirm the presence of existing drainage inlets.

3. Preliminary Conceptual Alternatives: Prepare two preliminary conceptual design alternatives to show play equipment options, including play components, color, layout, and cost. Submittal will include 3-D perspective views of the play equipment options and proposed resilient surfacing layout

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Additional Services Authorization #3
RE: ARPA PARK REHABILITATION/Sinnott Park playground design services March 18, 2024

Page 2 of 3 ends

23003_ASA#3_SinnottPlaygroundDesign.doc
© copyrighted 2024 Callander Associates
Landscape Architecture, Inc.

4. Preferred Conceptual Plan: Based on City input, prepare single preferred conceptual plan and cost estimate. Prepare updated 3-D perspective views of the play equipment.

5. 50% Design Development Submittal: Prepare a design development submittal to a 50% level of completion at 1’=10’-0” scale. Prepare a memorandum summarizing regulatory approval requirements (C.3, ADA, NPDES). Submittal to include:

a. Cover sheet
b. Demolition and erosion control plan
c. Grading and drainage plan
d. Site construction plan
e. Play equipment layout plan
f. Construction Details
g. Estimate of probable construction costs
h. Technical specifications

6. Review Meetings: Allow for up to six (3) meetings with the City to coordinate the design and review City comments on submittals.
.

7. 95% PS&E Submittal: Based on city comments on the DD submittal, prepare 95% complete PS&Es based on City of Milpitas standards. Prepare responses to City comments.

8. 100% PS&E Submittal: Based on city comments on the 90% submittal, prepare 100% complete PS&Es. Prepare responses to City comments.

9. Bid Support Services: On an as-requested basis, assist the City construction management team with tasks including: responding to bidder RFIs and preparing addenda as required.

Compensation

Playground Design Serv ices (lump sum) ................................................ $72,000 Reimbursables (allowance) ....................................................................... $3,000

Total Additional Compensation ........................................................................... $75,000

Schedule
Callander Associates will proceed to commence the above services upon receipt of a signed copy of this authorization or executed contract amendment.

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Additional Services Authorization #3
RE: ARPA PARK REHABILITATION/Sinnott Park playground design services March 18, 2024

Page 3 of 3 ends

23003_ASA#3_SinnottPlaygroundDesign.doc
© copyrighted 2024 Callander Associates
Landscape Architecture, Inc.

Signatures

Callander Associates Landscape
Architecture, Inc.

Agreed and authorized to proceed for:

City of Milpitas
3/18/24

Marie Mai, ASLA
Principal | Landscape Architect CA #5369
Signature date Name & Title
Attachment: Standard Schedule of Compensation dated SJ BG 2024 Notice: Landscape architects are licensed by the State of California.

Terms and conditions are subject to change after ninety days.

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w
ww.callanderassociates.com

GOLD RIVER
12150 Tributary Point Drive, Suite 140
Gold River, CA 95670

BURLINGAME
1633 Bayshore Highway, Suite 133
Burlingame, CA 94010
T 650.375.1313 T 916.985.4366

SAN JOSE
2025 Gateway Place, Suite 285
San Jose, CA 95110
T 408.275.0565
Recreate
Educate
Live+Work
Connect
Sustain
Standard Schedule of Compensation 2024 San Jose & Burlingame G
ENERAL
The following list of fees and reimbursable expense items shall be used in the provision of services described in the agreement. These amounts shall be adjusted in January, upon issuance of an updated Standard Schedule of Compensation:

Hourly Rates
Reimbursable Expenses Rates
Expenses cost + 15%
p rinting and reproductions, postage and
delivery, mileage, travel expenses (hotel /
food), testing and outside services, and other
project related expenses
Communications and Insurance Surcharge 2.5% of total fees Subconsultant Administration 10% of Subconsultant Costs P

AYMENTS
Payments are due within ten days after monthly billing. Callander Associates reserves the right to suspend services for non-payment if payment is not received within a period of 60 days after invoice date. Additionally invoices 60 days past due are subject to a 1.5% per month interest charge. Retainer amounts, if indicated, are due upon signing the agreement and shall be applied to the final invoice for the project.

Principal $250/hour
Senior Associate $227/hour
Associate $216/hour
Arborist/Construction Manager $190/hour
Senior Project Manager $196/hour
Project Manager 1 $187/hour
Project Manager 2 $178/hour
Job Captain $164/hour
Designer 1 $154/hour
Designer 2 $140/hour
Assistant Designer $125/hour
Accounting $189/hour
Senior Project Administrator $144/hour
Project Administrator $128/hour

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1220 Marin Ave San Pablo, CA 94806

Phone: 510
-
932
-
9899 Fax: 510
-
296
-
5473

[email protected]

californiaconstru
ctores.com

City

0 3/13/2024

A
tt: Huy Cao

Associate Civil Engineer

455 E Calaveras Blvd

City of M
i
lpitas

Re
:

Bay Construction
Protest Letter

Arp
a Parks
Rehabilitation

Project

Please consider this letter as our official respond to t he Bay Construction Pro
test
.

We didn
’
t do a good process to present a Go
od Faith Effort
. We
recognize

that. And this
is the only reason because we are agree

to be consider

as
non
-
responsive
.

All other points presented in the letter for Bay Construction are not valid.

Thank

you
.

Carla Del
Carpio

C
arla Del Carpio

CEO CALICO
California

Constructores

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Conduct a Public Hearing to Adopt a Resolution for the Summary Vacation of a Portion of the Existing Public Right-of-Way on Houret Court for the Benefit of an Approved Multi-family Residential Project located at 1752 Houret Court (Staff Contact: Matt Cano, Assistant City Manager 408-586-3012, and Roberto Alonzo, PW Division Manager - Engineering, 408-586-3316)
Category: Public Hearings-Community Development
Meeting Date: 3/19/2024
Recommendation: Conduct a public hearing; and adopt a resolution for the summary vacation of a portion of the existing Public Right-of-Way on Houret Court.

BACKGROUND:

On May 17, 2022, the City Council approved Site Development Permit No. SD21-0012, Conditional Use Permit No. UP21-0006, Vesting Tentative Map No. MT21-0002, and Environmental Assessment No. EA21-0004 to allow development of a 56-unit townhome-style condominium subdivision with 24 ground-floor accessory dwelling units (ADUs) comprised of eight multi-family buildings, up to 48 feet in height (three to four stories), with 84 vehicle parking spaces and associated site improvements, located on a 1.95-acre site at 1752 Houret Court. This project is known as Pinnacle, and the developer is City Ventures Homebuilding, LLC (Developer).

On February 6, 2024, the City Council approved the Subdivision Improvement Agreement (SIA) and Final Tract Map No. 10591 for the Project to guarantee completion of public improvements including installation of asphalt concrete pavement, signing and striping, curb and gutter, sidewalk, driveway approach, utility mains and services, extension of the 8” recycled water main along the project’s Montague Expressway frontage, street lights, landscaping, and other miscellaneous items of work identified on the improvement plans.

ANALYSIS:

The Planning Commission recommended approval of the Project Vesting Tentative Map (Attachment 1) and Conditions of Approval (COA) (Attachment 2) Commission on April 22, 2022, and the City Council approved both items on May 27, 2022. The COA includes Condition No. 38 requiring the Developer to dedicate a new Public Service and Utility Easement along Houret Court and Condition No. 40 to vacate a portion of the existing public right-of-way on Houret Court. These actions would occur once the Developer relocated or removed all existing public utilities within that portion of public right-of-way that will not be part of the new Public Service and Utility Easement. The Developer has dedicated the required right-of-way for public service purposes, including street, sidewalk, storm, sewer, water, gas, electric, telephone and television facilities.

In accordance with Condition No. 38, the approved Subdivison Improvement Agreement (SIA) and the approved Final Tract Map No. 10591, the Developer has dedicated a new Public Service and Utility Easement on Houret Court. The appropriate utility companies have confirmed that they do not have any existing dry utilities within the public right-of-way to be vacated or outside of the new Public Service and Utility Easement on Houret Court. Thus, the utility companies do not object to the proposed public right-of-way vacation.

The Project will result in a reduction in the portion of Houret Court used for street purposes. The City considers that portion of the public right-of-way to be vacated as excess right-of-way not required for street or highway purposes or public use and recommends approval of the proposed vacation. Staff supports the public right-of- way vacation because its location is not compatible with construction of the new development as previously approved by the City Council. The Plat Map and Legal Description (Attachment 3) show the details of the two portions of the public right-of-way, totaling 871 square feet, that is recommended for vacation.

Pursuant to California Streets and Highways Code Sections 8330 and 8334, the City Council may summarily vacate public rights-of-way that are considered excess and not required for street or highway purposes,

Page 153 of 196 ends

provided that an appropriate public service easement is provided and dedicated. Once the Resolution of Summary Vacation (Attachment 4) including Exhibits A and B is adopted by the City Council and recorded with the County of Santa Clara Recorder’s Office, the existing public right-of-way will be vacated.

POLICY ALTERNATIVE(S):

Alternative 1:

Not approve resolution for the summary vacation of a portion of the existing Public Right-of-Way on Houret Court.

Pros: None
Cons: City staff has determined that this portion of the existing public right-of-way is no longer required for public use. The approved project COA No. 40 requires the Developer to vacate this public right-of-way prior to the issuance of the encroachment permit for the construction of the Project’s offsite improvements. The location of the existing public right-of-way is not compatible with the proposed development as approved by the City Council. Not approving the vacation would require the project to be redesigned around the Public Right-of- Way and would require the project entitlement be amended, and the scope of the project would be reduced to work around the existing public right-of-way.

Reason for Not Recommending: To allow the development to be constructed as entitled by the City, staff recommends proceeding with the vacation process to allow the development to move forward.

FISCAL IMPACT:

The Developer reimbursed the city for costs associated with plan review, permitting and construction inspection for off-site public improvements constructed by the Developer. The Developer is funding the construction of the project, including private improvements within the to-be-vacated public right-of-way.

California Environmental Quality Act (CEQA):

On May 17, 2022, the Planning Commission approved Resolution No. 9157 stating that the City, acting as Lead Agency, conducted an initial environmental assessment (P-EA21-0004) of the project in accordance with the California Environmental Quality Act (CEQA). The assessment concluded that none of the circumstances necessitating preparation of a subsequent or supplemental EIR are associated with the Project. The assessment also concluded that an Addendum to the TASP EIR is the appropriate document to address these modifications rather than a subsequent EIR. The Addendum fully addressed all potential impacts associated with this project, and no material changes have been made to the project that would alter the conclusions of the Addendum.

As separate and independent bases, the project is exempt from further CEQA review pursuant to CEQA Guidelines Sections 15182 (Project Consistent with a Specific Plan), 15183 (Project Consistent with the General Plan), and 15168 (Projects Consistent with a Program EIR).

RECOMMENDATION:

Conduct a public hearing; and adopt a resolution for the summary vacation of a portion of the existing Public Right-of-Way on Houret Court.

Attachment(s):
(a) Approved Vesting Tentative Map
(b) Resolution 9157 Conditions of Approval
(c) Exhibits A and B – Street Vacation
(d) Resolution of Summary Vacation

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RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS SUMMARILY

VACATING A PORTION OF THE EXISTING PUBLIC RIGHT-OF-WAY ON HOURET COURT
WHEREAS, California Streets and Highways Code Sections 8330 and 8334 authorizes the City Council to summarily vacate public rights-of-way that has been superseded by relocation, or determined to be excess by the right of way holder, and there are no other public facilities located within the areas not reserved from the vacation as easements for public utility facilities; and WHEREAS, California Streets and Highways Code Sections 8340 authorizes the City to reserve from the vacation easements for public utility facilities; and WHEREAS, there is an existing public service and utility easement located at 1752 Houret Court that was dedicated as part of the approved Final Tract Map No. 10591; and WHEREAS, City staff have determined that ultimate right of way for Houret Court has been dedicated, this aforementioned public service and utility easement will be reserved for future utilities and no utilities exist within the area of the to-be-vacated public right-of-way outside of this public service and utility easement; and
WHEREAS, the City Council intends to summarily vacate the portion of the public right-of-way as described and depicted on Exhibit A attached to this Resolution, pursuant to California Streets and Highways Code Sections 8330(a) & (b), 8334 and 8335.

NOW THERFORE, the City Council of the City of Milpitas hereby finds, determines and resolves as follows:

1. The existing public right-of-way described and depicted in Exhibit A has been superceded by relocation, or determined to be excess by the City, and there are no other public facilties located within areas not reserved from the vacation as easements for public utility facilities.

2. The City Council does hereby order the summary vacation of the exisitng public right-of- way as described and depicted in Exhibit A, in accordance with California Streets and Highways Code Sections 8330(a) & (b), 8334 and 8335. From and after the date this resolution is recorded, the street, highway, or public service easement vacated no longer constitutes a street, highway, or public service easement.

3. The City Clerk is hereby directed to record a certified copy of this Resolution, including Exhibit A hereto, attested by the City Clerk under seal, with the County of Santa Clara Recorder’s Office.

4. From and after the date this Resolution is recorded, the exisitng public right-of-way vacated herein as described and depicted in Exhibit A will no longer constitute public right-of- way.

PASSED AND ADOPTED this day of , 2024, by the following vote:

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Resolution No. ___2
AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Introduce Ordinance 314, Adding Chapter 15 (“Residential Trespass, Canvassing and Solicitation”) to Title V (“Public Health, Safety and Welfare”) of the Milpitas Municipal Code (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3040)
Category: Leadership and Support Services
Meeting Date: 4/2/2024
Recommendation: (1) Following the City Attorney reading aloud the title, move to waive the reading beyond the title and introduce Ordinance 314, which would add Chapter 15 to Title V of the Milpitas Municipal Code to prohibit the trespass of canvassers, solicitors and others on residential property; and (2) Make findings of exemption from environmental review pursuant to CEQA Guidelines Sections 15061(b)(3), 15183, 15305, and 15378.

BACKGROUND:

On October 3, 2023, Councilmember Barbadillo proposed that the City explore an ordinance to address unwanted solicitations on residential property to promote community safety. Councilmember Barbadillo pointed out the legitimacy of some home solicitations but also recent, troubling reports from members of the community who feared for their safety or felt intimidated or trespassed upon after being accosted in their homes by uninvited strangers. The City Council voted unanimously to bring this item back for prioritization.

On November 14, 2024, the City Council prioritized this ordinance as a Group 2 item requiring less than four hours of staff work and directed staff to review options and provide Councilmembers with briefings.

On February 20, 2024, the City Council accepted staff’s recommendation to prioritize this as a Group 2 item with the City Attorneys’ Office to bring forward an ordinance for the Council’s consideration in the spring.

Staff surveyed ordinances through the Bay Area and California to craft its recommendation. Courts have generally held that door-to-door solicitation and canvassing is protected speech or association under the First Amendment and have therefore struck down as unconstitutional many types of regulation in this area. In doing so, courts, including the United States Supreme Court, have consistently held that ordinances may enforce a resident’s choice to refuse entry to door-to-door solicitors or canvassers.

ANALYSIS:

The proposed ordinance utilizes a sign-based approach that protects a resident’s right to choose by allowing them to post three different signs depending on who they want to allow onto their property:
- A “No Solicitors” sign would prohibit solicitors offering a good or service or seeking contributions - A “No Canvassers” sign would prohibit canvassers distributing news, information, or views - A “No Trespassing” sign would prohibit any uninvited stranger, including both solicitors and canvassers Regardless of which sign is posted, residents may add exceptions or conditions to the sign to further specify exactly who they are willing to allow on their property. For instance, some residents may be willing to engage with candidates for public office going door-to-door while being unwilling to engage with salespersons. The proposed ordinance is therefore different from other jurisdictions that apply a one-size-fits-all approach where residents can prohibit all uninvited visitors or none. This ordinance is tailored to each resident’s choice.

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Besides entering the property or knocking on a resident’s door, the ordinance also prohibits other acts in violation of a resident’s expressed wishes, such as hawking, depositing literature, or otherwise trespassing upon the property or causing or conveying an unwanted act of canvasing or solicitation.

The proposed ordinance clearly describes where signs should be posted – so canvassers or solicitors can look for them – and requires the signs to be conspicuous, visible, and unobstructed. If a sign is not visible from the sidewalk, then individuals are allowed to approach until the sign becomes visible, and then they must leave.

Even if a resident does not post a sign, the proposed ordinance would allow a resident to order uninvited visitors to leave their property. Similarly, even if residents post a sign, they can always give permission for anyone to come on their property. Residents can also withdraw this consent to enter at any time.

To prevent unintended results, the proposed ordinance sets a series of exemptions, including for other residents, neighbors, mail and shipping services, and government entities. These exemptions also apply to anyone entering the property under legal right, such as for service of legal process or a court order, or as part of a dispute where the parties have effective civil remedies, such as landlord-tenant or contractor disputes.

The ordinance treats all solicitors, canvassers, or other trespassers equally and does not discriminate based upon the nature or content of any message an uninvited stranger may wish to deliver at the property.

The ordinance also encourages sponsoring persons or organizations to make those going door-to-door on their behalf aware of the proposed law and – unless they are wholly ignorant that the door-to-door activity is occurring – holds them accountable for any violation if they fail to provide this information.

Ultimately, the proposed ordinance leaves to each resident the right to decide who they will allow on their property. Besides City enforcement, residents can also sue violators who refuse to abide by their posted signs or other expressions of their choice.

POLICY ALTERNATIVE(S):

Alternative 1: Permit-Based Approach
Pros: More effective for combating fraudulent activity, violence, or other misconduct.

Cons: Legal risk, significant cost and investment of staff and program resources.

Reason for Not Recommending: So far, the City has not received the kinds of widespread and consistent misconduct reports that would justify the cost of implementing a permit-based system. Courts have also repeatedly struck down solicitation permits as unlawful prior restrains of free speech and free association.

Alternative 2: Standards-Based Approach
Pros: Can address specific collateral community impacts from canvassing or solicitation.

Cons: Legal risk, redundant with other laws.

Reason for Not Recommending: To the extent the City has received specific reports of misconduct by canvassers and solicitors, which solicitation conduct standards could address, the City already has in place laws that prohibit fraud, disturbing the peace, and other unlawful activity. It is therefore not necessary to adopt regulations limited just to individuals going door-to-door, and courts have repeatedly struck down laws that single out solicitors and canvassers for such treatment.

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Alternative 3: Categorical Approach
Pros: Effective for addressing acute, documented issues limited to specific types of solicitors or canvassers.

Cons: Legal risk, not broadly applicable, can undermine resident’s right to choose.

Reason for Not Recommending: Courts have repeatedly struck down categorical prohibitions because of the risk that these laws might be used to discriminate based on viewpoint. The better practice is to allow residents to choose who they will and will not allow onto their property.

FISCAL IMPACT:

There is no cost to adopt the ordinance beyond incidental publication costs and staff time. There will, however, be minor costs associated with the enforcement of the amended ordinance. That cost will be offset by the private right of enforcement, which will allow residents to control their property and vindicate their rights without the City having to unnecessarily expend limited enforcement resources.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

This ordinance is not a project and is not subject to CEQA review because it does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change, particularly in that it does not alter the use of land or at most does not do so inconsistently with uses already authorized, prohibited, or regulated by law. (Cal. Code Regs., tit. 14, § 15378.) This ordinance also is not a project because it amounts to general policy and procedure making that does not relate to the enactment or amendment of zoning ordinances or the other activities identified as potential “projects.” (Cal. Code Regs., tit. 14, § 15378(b)(2).) Furthermore, even if considered a project, this amending ordinance is categorically exempt from CEQA review in that it comprises of non-land use regulations or at most minor alterations in land use limitations that do not result in any changes in land use or density (Cal. Code Regs., tit. 14, § 15305, 15378(a)(1)) and by common sense can be seen with certainly that there is no possibility that the activity in question may have a significant effect on the environment particularly in consideration of the activities already permitted, prohibited, or regulated by law (Cal. Code Regs., tit. 14, § 15061(b)(3)). This amending ordinance is also exempt because it does not affect development density established by existing zoning and the City’s General Plan, for which an Environmental Impact Report was already certified, and does not have any project- specific significant environmental effects peculiar to the project or any site. (Cal. Code Regs., tit. 14, § 15183.) RECOMMENDATION:

Following the City Attorney reading aloud the title, move to waive the reading beyond the title and introduce Ordinance 314, which would add Chapter 15 to Title V of the Milpitas Municipal Code to prohibit the trespass of canvassers, solicitors and others on residential property.

Make findings of exemption from environmental review pursuant to CEQA Guidelines Sections 15061(b)(3), 15183, 15305, and 15378.

ATTACHMENT(S):
(a) [Proposed] Ordinance 314, an Ordinance of the City Council of the City of Milpitas Adding Chapter 15 (“Residential Trespass, Canvassing and Solicitation”) to Title V (“Public Health, Safety and Welfare”) of the Milpitas Municipal Code

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Ordinance No. 3141

REGULAR
NUMBER: 314
TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS ADDING CHAPTER 15 (“RESIDENTIAL TRESPASS, CANVASSING AND SOLICITATION”) TO TITLE V (“PUBLIC HEALTH, SAFETY AND
WELFARE”) OF THE MILPITAS MUNICIPAL CODE, RELATING TO THE

TRESPASS OF CANVASERS, SOLICITORS, AND OTHERS ON RESIDENTIAL

PROPERTY
HISTORY:This Ordinance was introduced (first reading) by the City Council at its meeting of ____________________, upon motion by_________________________ and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
________________________________ __________________________ Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
________________________________
Michael Mutalipassi, City Attorney

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Ordinance No. 3142
RECITALS AND FINDINGS:

WHEREAS, persons and entities have been visiting and continue to visit private residential properties for various uninvited purposes, including peddling goods, wares, merchandise, or services, canvassing for support, polls, volunteers, or other purposes, soliciting for orders, donations, or alms, or preaching, proselytizing, or otherwise discussing or distributing news, information, or views; and WHEREAS, residents are concerned that some of these uninvited visitors are going door-to-door to gather information and scrutinize their homes for future burglaries or other crimes; and WHEREAS, residents complain that they have been harassed, intimidated, threatened, or scared while in their own homes by some canvassers and/or solicitors going door-to-door; and WHEREAS, uninvited door-to-door canvassing and solicitation of unwilling residents for any purpose jeopardizes the right of residents in the city to enjoy the privacy of their homes in tranquility and security; and
WHEREAS, property owners and occupants have the right to reasonably control and peacefully enjoy their residential property, including by preventing unlawful trespass upon that property; and WHEREAS, the interests of residents in the privacy and the quiet enjoyment of residential premises are protected by reasonable regulation of unwanted and uninvited door-to-door visitors; and WHEREAS, the City has the power and legitimate interest to secure to residents their ability to self-determine and control the ability of trespassers to intrude upon their residential property, including by prohibiting unwanted canvassers and solicitors; and
WHEREAS, the distribution of canvassing or solicitation materials upon residential property in the city creates a serious police problem and a threat to public safety and welfare including that residential property can become cluttered with an accumulation of such material or otherwise or in addition inadvertently advertise the absence of the owner or occupant and increase the likelihood of criminal activities on the property; and
WHEREAS, such practices, if not in compliance with the reasonable regulation thereof, are injurious and inimical to the public health, safety, and welfare of residents of the city, create a public nuisance, and should therefore be regulated by the city; and WHEREAS, the City has limited resources and staff with which to remedy violations of this Chapter, and that the enforcement of this Chapter will be enhanced—and the public peace, health and safety will be protected—if the owner, occupant, or other person in charge of or lawfully in possession of the property is given a civil remedy against parties violating this Chapter.

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:

SECTION 1. RECORD AND BASIS FOR ACTION
The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

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Ordinance No. 3143
SECTION 2. ENACTMENT OF MILPITAS MUNICIPAL CODE TITLE V (“PUBLIC HEALTH, SAFETY AND WELFARE”), CHAPTER 15 (“RESIDENTIAL
TRESPASS, CANVASSING AND SOLICITATION”)
Title V (“Public Health, Safety and Welfare”), Chapter 15 (“Residential Trespass, Canvassing and Solicitation”) of the Milpitas Municipal Code is hereby added to read as follows:

Chapter 15 – RESIDENTIAL TRESPASS, CANVASSING AND SOLICITATION Section 1 – Legislative Findings and Declaration of Intent V-15.1.01
The City finds and declares that persons and entities have been visiting and continue to visit private residential properties for various uninvited purposes, including peddling goods, wares, merchandise, or services, canvassing for support, polls, volunteers, or other purposes, soliciting for orders, donations, or alms, or preaching, proselytizing, or otherwise discussing or distributing news, information, or views. The City recognizes the traditional use of such door-to-door visitations for the purpose of communication and commercial pursuits, particularly among grassroot or community organizations and small or local businesses. The City also recognizes that property owners and occupants have the right to control and peacefully enjoy their residential property, and some residents find these activities to be intrusive upon their quiet and privacy. As such, the City enacts this Chapter for the purpose of securing to residents the power to self-determine and choose whether to allow such unsolicited visitors upon their property, including by posting appropriate signs. This Chapter is not intended to prevent or limit entry upon residential property for lawful and legitimate purposes as opposed to permissive entries that a resident may legally choose to limit or refuse.

Section 2 – Definitions
For the purpose of this Chapter only, and not for the purpose of construing any other part of this Code, the following words and phrases shall have the meaning respectively ascribed to them by this Section.

V-15-2.01 – Canvas, Canvasing, and Canvasser
“Canvas” or “Canvasing” shall mean the act of entering or otherwise intruding upon residential property in the city for the purpose of acquiring or disseminating news, information, writings, or views, whether for profit or not, including polling, surveying, preaching, proselytizing, or seeking support for or opposition to any person, cause, organization, philosophy, or venture. A “Canvasser” shall mean any person engaged in or attempting or assisting in canvasing.

V-15-2.02 – Resident
“Resident” shall mean the owner, occupant, or other person in lawful possession of a residential property, in whole or in part, jointly or severally. “Residents” include tenants, lessees, trustees, administrators, property managers, and any person lawfully residing at the property.

V-15-2.03 – Residential Property
“Residential Property” shall mean private property upon which a residential structure is located. “Residential Property” includes the entirety of the private property but does not include any public right of way or access easement over that property. For the purpose of multi-family properties with separately

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Ordinance No. 3144
habitable units, each unit shall be separately considered its own residential property and common areas shall not be considered residential property.

V-15-2.04 – Sign
“Sign” shall mean any form of signage otherwise meeting the requirements of Section V-15-3.05, including any placard, decal, sticker, banner, or graphic.

V-15-2.05 – Solicit, Solicitation, and Solicitor
“Solicit” or “Solicitation” shall mean the act entering or otherwise intruding upon residential property in the city for the purpose of offering or acquiring a good, service, investment, or venture, or seeking contributions, gifts, donations, or any other thing of value or compensation of any kind, for whatever purpose or cause whether for profit or not. A “Solicitor” shall mean any person engaged in or attempting or assisting in solicitation.

Section 3 – No Trespass Upon Residential Property
V-15-3.01 – Trespass on Residential Property Prohibited Unless exempt pursuant to Section V-15-3.06, no person shall enter or remain upon any residential property after being notified by a resident to stay away or leave. No person shall enter or reenter residential property they have been so asked to stay away from or leave without receiving express permission to enter from a resident.

V-15-3.02 – Solicitation on Posted Residential Property Prohibited No person shall solicit upon any residential property posted with a “No Soliciting” or other similar sign unless exempt pursuant to Section V-15-3.06.

V-15-3.03 – Canvasing on Posted Residential Property Prohibited No person shall canvass upon any residential property posted with a “No Canvassing” or other similar sign unless exempt pursuant to Section V-15-3.06.

V-15-3.04 – Trespass on Posted Residential Property Prohibited No person shall enter or remain upon any residential property posted with a “No Trespassing” or other similar sign, including for the purpose of soliciting or canvassing therein, unless exempt pursuant to Section V-15-3.06.

V-15-3.05 – Sign Placement and Standards
a. For Sections V-15-3.02, V-15-3.03, or V-15-3.04 to apply, the residential property must be posted with at least one sign with letters at least two-inches in height stating “No Soliciting,” “No Canvassing,” “No Trespassing,” or other words to similar effect, as prescribed by the applicable section, conspicuously posted, visible, and unobstructed at one or more of the following locations:

1. Upon or within five feet of any door or other entrance to any residential unit, structure, vestibule, or enclosed curtilage on the property;

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Ordinance No. 3145

2. At or within five feet of the beginning of the walk, driveway, or other path of travel into the property;

3. If the property is enclosed by a fence, upon or within five feet of any gate or other opening in the fence through which people or vehicles could enter; or

4. Upon the mailbox or mailbox post or holder for the property, if the mailbox is detached from the primary residence and located adjacent to the sidewalk. b. The sign may provide conditions to entry or exceptions to any prohibition against entry. c. If at least one such sign is not visible from the sidewalk or other public way adjacent to the property, then without violating Sections V-15-3.02, V-15-3.03, or V-15-3.04, a person otherwise permitted upon the property may enter and directly follow the path of ordinary travel until such time as the sign would become visible and then immediately and without delay leave. In no event may a person so enter the property if he or she knows or reasonably should have known that the property is posted in substantial compliance with Sections V-15-3.02, V-15-3.03, or V-15-3.04. d. A sign posted in substantial compliance with this Section shall be sufficient to sustain a violation.

Where a sign does not strictly comply with this Section, however, there shall be no violation if a defendant can prove by a preponderance of the evidence they neither knew nor reasonable should have known that the property was posted in attempted compliance with Sections V-15-3.02, V-15-

3.03, or V-15-3.04.

V-15-3.06 – Authorization of Police Department to Act
By posting a sign stating “No Soliciting,” “No Canvassing,” “No Trespassing,” or other words to similar effect, the residents of the property shall have authorized any law enforcement officer authorized to enforce a violation of this Chapter to act as their agent for the purpose of enforcement, including warning and forbiting persons from trespassing upon the residential property.

V-15-3.07 – Exception for Residents, Tenants, Occupants, Invitees, Licensees, and Others with Legal Right to Enter
The following persons or entities are exempt from violations of this Chapter:
a. Any resident of the property.
b. A neighbor who enters upon the residential property of another neighbor on an intermittent and infrequent basis for purposes common in the community.
c. Persons delivering mail and shipments through a governmental, common, or private carrier. d. Any person who has express permission to enter or remain upon the property from any resident of the property. The resident who gave this permission may revoke this permission and tell the individual to leave in conformity with Section V-15-3.01 at any time. This exception includes:
i. Deliveries including newspaper deliveries a resident has requested. ii. Good or service providers a resident has requested. iii. Neighbors, relatives, and other persons who have been invited to the property, including on an open or standing basis.
e. The City of Milpitas, or any other government entity, including any governmental employee, officer, official, agent, contractor, volunteer, or other person or entity acting on a government entity’s behalf.
f. Any person who is upon another’s residential property under claim or color of legal right.

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Ordinance No. 3146
g. Any person who is upon another’s residential property pertaining to a dispute with a resident of the property where the participants have available to them practical and effective civil remedies, including the following situations:
i. Marital and post-marital disputes;
ii. Child custody or visitation disputes;
iii. Disputes regarding title to or rights in real property; iv. Landlord-tenant disputes;
v. Disputes between members of the same family or between persons residing upon the property concerned up until the time of the dispute;
vi. Employer-employee or contractor-contractee disputes; vii. Business disputes, including between business partners; viii. Debtor-creditor disputes;
ix. Service of legal process; and
x. Instances wherein the person has a bona fide claim of right to be present pursuant to an order, decree, or process of any court or any executive, administrative, judicial, or quasi- judicial official or body.

V-15-3.08 – Calling on to Property, Knocking, Disturbing Peace Also Trespass Even if they do not physically enter upon the property, a person or entity shall have trespassed, canvassed, or solicited in violation of Sections V-15-3.01, V-15-3.02, V-15-3.03, and V-15-3.04 if they otherwise intrude upon the quiet enjoyment of the property in violation of the relevant notification or sign, including by hawking or otherwise making noise, depositing a writing, or otherwise trespassing upon the property or causing or conveying an unwanted act of canvasing or solicitation upon the property.

V-15-3.09 – Sponsoring Person or Entity Liable
In addition to the principal violator, a person or entity on whose behalf an act of trespass, canvassing, or solicitation in violation of this Chapter is done shall be jointly and severally liable for each such violation unless the person or entity can prove by clear and convincing evidence either:
a. The person or entity had no actual or constructive knowledge that the principal violator would be going door-to-door on their behalf; or
b. The person or entity provided the principal violator with a written advisement about the requirements of this Chapter, including a copy of this Chapter, which the principle violator signed acknowledging receipt prior to going door-to-door.

For the purpose of the affirmative defense in Section V-15-3.09(a), there shall be a rebuttable presumption that a person or entity has actual or constructive knowledge of all actions of their employees, agents, officials, contractors, and assigns. The affirmative defense in Section V-15-3.09(b) shall not be available if the person or entity cannot produce a genuine original or copy of the signed written advisement.

V-15-3.10 – Enforcement
a. In addition to all other remedies and actions allowed by law, any violation of this Chapter may be enforced by administrative citation, pursuant to Title I, Chapter 21 of this Code, or criminal prosecution, pursuant to Section I-1-4.09 of this Code. b. At the City Attorney’s discretion, violations of this Chapter may be charged as a misdemeanor, punished by a fine not to exceed the sum of five hundred dollars ($500) or by imprisonment in the County Jail not to exceed six (6) months or by both such fine and imprisonment, or an infraction, punished by a fine not exceeding one hundred dollars ($100) for a first violation, a fine not exceeding two hundred dollars ($200) for a second violation within one year, or a fine not exceeding five hundred dollars ($500) for each additional violation within one year.

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Ordinance No. 3147
V-15-3.11 – Private Right of Action Permitted
a. In addition to all other remedies and actions allowed by law, any resident of a property upon which an act of trespass, solicitation, or canvasing has occurred in violation of this Chapter may bring a civil action against any person or entity that has violated Sections V-15-3.01, V-15-3.02, V-15-

3.03, V-15-3.04, and/or V-15-3.09.
b. If the resident prevails in that action, the Court shall award:
a. Injunctive relief sufficient to prevent the defendant(s) from violating this Chapter or engaging in acts that aid, abet, operate, conceal, or allow violations of this Chapter; b. Disgorgement of profits or other monies or value unlawfully obtained in violation of this Chapter;
c. Compensatory damages;
d. A statutory penalty up to one thousand dollars ($1,000.00) per violation; e. Treble damages and/or treble penalties for a second or subsequent violation in any two- year period; and
f. Reasonable attorney’s fees and costs of suit and investigation. c. No award of attorney’s fees against the resident shall be allowed in that action unless the Court determines, upon a duly noticed motion, that the action was not brought in good faith and with reasonable cause.
d. The remedies described in this Section are in addition to any other remedy available at law and do not limit, preclude, or restrict any other right, remedy, or action otherwise available.

SECTION 3. CALIFORNIA ENVIROMENTAL QUALITY ACT (CEQA)
The City Council finds and determines that the adoption of this ordinance is not a project and is not subject to CEQA review because it does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change, particularly in that it does not alter the use of land or does a most does not do so inconsistently with uses already authorized, prohibited, or regulated by law. (Cal. Code Regs., tit. 14, § 15378.) This ordinance also is not a project because it amounts to general policy and procedure making that does not relate to the enactment or amendment of zoning ordinances or the other activities identified as potential “projects.” (Cal. Code Regs., tit. 14, § 15378(b)(2).) Furthermore, even if considered a project, this amending ordinance is categorically exempt from CEQA review in that it comprises of non-land use regulations or at most minor alterations in land use limitations that do not result in any changes in land use or density (Cal. Code Regs., tit. 14, § 15305, 15378(a)(1)) and by common sense can be seen with certainly that there is no possibility that the activity in question may have a significant effect on the environment particularly in consideration of the activities already permitted, prohibited, or regulated by law (Cal. Code Regs., tit. 14, § 15061(b)(3)). This amending ordinance is also exempt because it does not affect development density established by existing zoning and the City’s General Plan, for which an Environmental Impact Report was already certified, and does not have any project- specific significant environmental effects peculiar to the project or any site. (Cal. Code Regs., tit. 14, § 15183.)
SECTION 4. SEVERABILITY
The provisions of this Ordinance are separable, and the invalidity of any phrase, clause, provision or part shall not affect the validity of the remainder.

SECTION 5. EFFECTIVE DATE AND POSTING

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Ordinance No. 3148
In accordance with Section 36937 of the Government Code of the State of California, this Ordinance shall take effect thirty (30) days from and after the date of its passage. The City Clerk of the City of Milpitas shall cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.

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Milpitas City CouncilApril 2, 2024

Milpitas City Council
April 2, 2024