AMENDED AGENDA
City of Monte Sereno
Tuesday, May 6, 2025
City Council
7:00 PM
Monte Sereno City Council Chambers - 18041 Saratoga -
Los Gatos Road, Monte Sereno, Ca 95030
Remote Participation
54-500 Residence Club Drive
La Quinta, CA
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Page
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
ORDERS OF THE DAY
The Mayor, or a majority of the Council by vote, may change the order of business, except for public hearings on the agenda for a set time.
ANNOUNCEMENTS
1. May is Foster Care/Resource Parent Awareness Month
PRESENTATIONS
ORAL COMMUNICATIONS
Persons wishing to address the Council on any matter of City business not listed on the agenda may do so at this time. Each speaker will normally be allotted three minutes, subject to the Mayor or a majority of the Council’s ability to limit the amount of time allocated to speakers based on the number of speakers and the need for expedient administration of City business in light of the number and length of items on the agenda.
WRITTEN COMMUNICATIONS
Copies of communications have been provided to Council for review prior to this meeting. Council Members desiring to read or discuss any written communication may do so at this time. No action may be taken except to place a particular item on a future agenda for Council consideration.
CONSENT CALENDAR
It is recommended that all items listed below be acted on simultaneously unless separate discussion and/or action is required by a Councilmember. One public comment period will be provided, although speakers speaking on more than one item may be allocated additional time by the Mayor or a majority of the Council.
2. Approve the Minutes of the April 11, 2025 Special City Council Meeting, April 15, 2025 Special and Regular City Council Meeting and April 29, 2025 Special City Council Meeting
Staff recommends approval of the Minutes of the April 11, 2025 Special City Council Meeting, April 15, 2025 Special and Regular City Council Meeting and April 29, 2025 Special City Council Meeting.
Staff Report -SR-22-148 - Pdf
6 - 17
3. Approve Warrant List Dated April 29, 2025 in the amount $172,360.90 Staff recommends the City Council approve the Warrant List.
Staff Report - SR-25-081 - Pdf
18 - 20
4. Measure B Bicycle/Pedestrian Education and Encouragement Program Funding Amended and Restated Agreement with the Santa Clara Valley Transportation Authority
Staff recommends the City Council authorize the Interim City Manager 21 - 52
to execute the Santa Clara Valley Transportation Authority (VTA) Measure B Funding Amended and Restated Agreement for the Bicycle/Pedestrian Education & Encouragement Program and any related future amendments with the VTA.
Staff Report - SR-25-080 - Pdf
5. Authorize the Interim City Manager to Execute the First Amendment to the Agreement with the County of Santa Clara for the Countywide Household Hazardous Waste Collection Program.
Staff recommends the City Council authorize the Interim City Manager to Execute the First Amendment to the Agreement with the County of Santa Clara for the Countywide Household Hazardous Waste Collection Program.
Staff Report - SR-25-082 - Pdf
53 - 85
6. Award of a Contract to Radius Earthwork, Inc. for the Fiscal Year 2024- 25 Pavement Improvement Project in Total Amount Not to Exceed $398,507 and Determining Project Exempt from CEQA Pursuant to CEQA Guidelines Section 15301
Staff recommends the City Council:
1. Adopt a resolution accepting the lowest responsive and responsible bid for the Fiscal Year 2024-2025 Pavement
Management Program and determining project exempt from
CEQA; and
2. Authorize the Interim City Manager to award the construction contract for the Base Bid and Alterative A in the amount of $398,506.38 to the lowest responsive and responsible bidder after receipt of the required contract documents, execute contract documents, and approve potential contract changes in aggregate amount not exceeding an additional 10% of the contract award amount.
Staff Report - SR-25-085 - Pdf
86 - 121
7. Adoption of Ordinance No. NS-244, an Ordinance of the City Council of the City of Monte Sereno Amending Chapter 10.09 (Personal Wireless Service Facility and Antenna Criteria).
Staff recommends that the City Council adopt Ordinance No. NS-244.
Staff Report - SR-25-084 - Pdf
122 - 143
8. SETTLEMENT OF PADGETT V. WRIGHT, U.S.D.C. NOR.CAL., NO. 04-CV-03946-EJD
Authorize the Mayor to Execute the Global Settlement Agreement and Mutual Release of all Claims and Actions in Padgett v. Wright, U.S.D.C.
Nor. Cal., No. 04-CV-03946-EJD
Staff Report - SR-25-087 - Pdf
Public Comments Received
144 - 157
PUBLIC HEARINGS
UNFINISHED BUSINESS
NEW BUSINESS
9. Discuss the Council Adopted Goal to Increase Civic Engagement and Provide Direction to Staff
Staff recommends that the City Council discuss the Council adopted goal to Increase Civic Engagement and provide direction to staff.
Staff Report - SR-25-083 - Pdf
158 - 161
10. Review the Fiscal Year 2025/2026 Proposed Budget and Provide Direction to Staff
Staff recommends that the City Council review the Fiscal Year 2025/2026 proposed budget and provide direction to staff on any modifications.
Staff Report - SR-25-086 - Pdf
162 - 175
COMMITTEE/COMMISSION REPORTS
This time is set aside to allow Councilmembers serving on Council committees or appointed by the City to serve on the boards, commissions or committees of other agencies to present a verbal report on the activities of the respective boards, commissions or committees on which they serve. No discussion or action may be taken other than to place the matter on a future agenda.
Mekechuk
Valley Transportation Authority Policy Advisory Committee West Valley Stormwater Authority
West Valley Solid Waste Management Authority Board
Silicon Valley Clean Energy Authority
Santa Clara County Recycling and Waste Reduction Commission Shannon
Santa Clara Valley Water Commission
West Valley Sanitation District Board
Wolsheimer
Silicon Valley Animal Control Authority
Association of Bay Area Governments
League of California Cities Peninsula Division
Ellahie
Cities Association – Board of Directors
Cities Association – Legislative Action Committee
Cities Association - Cities Selection Committee
Craig
Monte Sereno Youth Commission
Santa Clara County Library JPA
West Valley Mayors & Managers
Mayors of Santa Clara County
Santa Clara County Mayors Group
COUNCIL MEMBER COMMENTS
This time is set aside to allow Councilmembers to make brief announcements or reports on the Councilmember’s own activities. No discussion or action may be taken other than to place the matter on a future agenda.
CITY MANAGER’S REPORT
FUTURE AGENDA ITEMS
This time is set aside to allow Councilmembers to make a specific request for an item to be placed on a future agenda. No discussion or other action may be taken.
11. Council Tentative Council Meeting Calendar 2025 176 - 183
ADJOURN
* All items on the agenda are subject to action/or change by the City Council In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (408) 354-7635. If requested of the City Clerk, agendas and documents in the agenda packet can be made available in appropriate alternative formats to persons with a disability.
Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28CFR 35.102-35.104 ADA Title II]
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Gloisy Gonzalez-Langarica, City Clerk
Department: City Clerk
Title: Approve the Minutes of the April 11, 2025 Special City Council Meeting, April 15, 2025 Special and Regular City Council Meeting and April 29, 2025 Special City Council Meeting
Recommendation(s):
Staff recommends approval of the Minutes of the April 11, 2025 Special City Council Meeting, April 15, 2025 Special and Regular City Council Meeting and April 29, 2025 Special City Council Meeting.
Fiscal Impact:
There are no unbudgeted fiscal impacts with this agenda item.
Public Noticing:
The City Council’s agenda was posted at City Hall and the agenda and this report appear on the City’s website.
Attachments:
04-11-25 Special Meeting Minutes DRAFT
04-15-25 Special Meeting Minutes DRAFT
04-15-25 Regular Meeting Minutes DRAFT
04-29-25 Special Meeting Minutes DRAFT
MONTE SERENO CITY COUNCIL
MEETING MINUTES
SPECIAL MEETING
9:00 a.m.
April 11, 2025
MEETING CALLED TO ORDER
At 9:01 a.m., Mayor Craig called the meeting to order.
ROLL CALL
Present – Chambers: Councilmember Shannon, Councilmember Mekechuk and Mayor Craig Present – Remote: None
Absent: Councilmember Wolsheimer and Vice Mayor Ellahie Staff: City Clerk Gonzalez-Langarica, Interim City Manager/City Planner Perkins and City Attorney Powell
NEW BUSINESS
1. Approval of a Resolution Authorizing the Interim City Manager to Execute an Agreement with Tyler Technologies for Implementation, Maintenance, and On-Going Support of the Enterprise Resource Planning (ERP) Pro 10 Software Solution
Interim City Manager/City Planner Perkins provided a staff report.
Discussion ensued.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
MOTION: Motion by Councilmember Mekechuk to Approve the Resolution Authorizing the Interim City Manager to Execute an Agreement with Tyler Technologies for Implementation, Maintenance, and On-Going Support of the Enterprise Resource Planning (ERP) Pro 10 Software Solution. Seconded by Councilmember Shannon.
VOTE: Motion passed. (3-0-2 Absent: Wolsheimer, Ellahie)
ADJOURN
The meeting of the Special City Council Meeting adjourned at approximately 9:04 p.m.
Burton Craig, Mayor
ATTEST:
Gloisy Gonzalez-Langarica, City Clerk
MONTE SERENO CITY COUNCIL
MEETING MINUTES
SPECIAL MEETING
6:00 p.m.
April 15, 2025
MEETING CALLED TO ORDER
At 6:00 p.m., Mayor Craig called the meeting to order.
ROLL CALL
Present – Chambers: Councilmember Shannon, Councilmember Wolsheimer, Councilmember Mekechuk, Vice Mayor Ellahie and Mayor Craig Present – Remote: None
Absent: None
Staff: City Clerk Gonzalez-Langarica, Interim City Manager/City Planner Perkins and City Attorney Powell
PUBLIC COMMUNICATION REGARDING CLOSED SESSION ITEMS
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Public Comment was closed. The City Council adjourned to Closed Session at approximately 6:02 p.m.
RECESS TO CLOSED SESSION
1. PUBLIC EMPLOYMENT AND PUBLIC EMPLOYEE PERFORMANCE EVALUATION Pursuant to Government Code Section 54957(b)(1)
Title: City Manager/Interim City Manager
Staff Present: Interim City Manager/City Planner Perkins, City Attorney Powell
RECONVENE TO OPEN SESSION
The City Council reconvened to Open Session at approximately 7:01 p.m. with Mayor Craig, Vice Mayor Ellahie, Councilmember Mekechuk, Councilmember Wolsheimer and Councilmember Shannon.
CLOSED SESSION REPORT
Mayor Craig stated that there were no reportable actions at this time and a continuation of this meeting is scheduled after the regular city council meeting tonight.
PUBLIC COMMUNICATION REGARDING CLOSED SESSION ITEMS
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Public Comment
was closed. The City Council adjourned to Closed Session at approximately 9:59 p.m.
RECESS TO CLOSED SESSION
2. PUBLIC EMPLOYMENT AND PUBLIC EMPLOYEE PERFORMANCE EVALUATION Pursuant to Government Code Section 54957(b)(1)
Title: City Manager/Interim City Manager
Staff Present: Interim City Manager/City Planner Perkins, City Attorney Powell
RECONVENE TO OPEN SESSION
The City Council reconvened to Open Session at approximately 10:36 p.m. with Mayor Craig, Vice Mayor Ellahie, Councilmember Mekechuk, Councilmember Wolsheimer and Councilmember Shannon.
CLOSED SESSION REPORT
Mayor Craig stated that there were no reportable actions at this time.
ADJOURN
The meeting of the Special City Council Meeting adjourned at approximately 10:36 p.m.
Burton Craig, Mayor
ATTEST:
Gloisy Gonzalez-Langarica, City Clerk
MONTE SERENO CITY COUNCIL MEETING MINUTES
REGULAR MEETING
7:00 p.m.
April 15, 2025
MEETING CALLED TO ORDER
At approximately 7:09 p.m., Mayor Craig called the meeting to order.
ROLL CALL
Present – Chambers: Councilmember Shannon, Councilmember Mekechuk, Councilmember Wolsheimer, Vice Mayor Ellahie and Mayor Craig Present – Remote: None
Absent: None
Staff: City Clerk Gonzalez-Langarica, Interim City Manager/City Planner Perkins and City Attorney Powell
Staff – Remote: None
PLEDGE OF ALLEGIANCE
Council lead the Pledge of Allegiance.
ORDERS OF THE DAY
Mayor Burton requested that Oral Communication go right after Orders of the Day, and it is followed with Item #6 under the Unfinished Business and lastly, Item #4 be pulled from the Consent Calendar.
MOTION: Motion by Councilmember Wolsheimer to move Oral Communication right after Orders of the Day, have Item #6 under the Unfinished Business moved right after Oral Communication and lastly, Item #4 be pulled from the Consent Calendar. Seconded by Councilmember Mekechuk.
VOTE: Motion passed. (5-0-0)
ORAL COMMUNICATIONS
Resident Carl Guardino extended an invitation to the Council for the 5th anniversary of the Stars and Strides Run, happening on Saturday, June 28, 2025. This is to benefit the lifesaving work of the Valley Health Foundation. The goal for this year is to gather 3,000 paid participants for the 5K Run and Walk, the 10K Run and the Kids Fun Run.
UNFINISHED BUSINESS
6. Adopt a Proclamation Declaring Support for Efforts to Provide Childcare Associate Director of Care Policy with Build the Future, Jaria Jaug, was available to provide information and available for questions from the Council.
Discussion ensued.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
MOTION: Motion by Councilmember Shannon to Adopt a Proclamation Declaring Support for Efforts to Provide Childcare. Seconded by Councilmember Wolsheimer.
VOTE: Motion passed. (5-0-0)
PRESENTATIONS
1. Los Gatos Monte Sereno Police Department Semi-Annual Report July - December 2024 by Captain Alvin.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Public Comment was closed.
ANNOUNCEMENTS
None.
WRITTEN COMMUNICATIONS
None.
CONSENT CALENDAR (TO BE ACTED UPON BY A SINGLE MOTION)
2. Approve the Minutes of the April 1, 2025 Special and Regular City Council Meeting
3. Approve Warrant List Dated April 9, 2025 in the amount $70,602.07
4. Approval of a Resolution Authorizing the Interim City Manager to Execute a Five-Year Police Services Agreement (July 1, 2025 – June 30, 2030) with the Town of Los Gatos Mayor Craig requested to have Item #4 pulled for discussion.
Mayor Craig opened Items #1, #2, #4 and #5 for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
MOTION: Motion by Councilmember Mekechuk to approve Item #2 on the Consent Calendar. Seconded by Vice Mayor Ellahie.
VOTE: Motion passed. (5-0-0)
MOTION: Motion by Vice Mayor Ellahie to approve Item #3 on the Consent Calendar. Seconded by Councilmember Shannon.
VOTE: Motion passed. (4-0-1 Abstain: Mekechuk)
4. Approval of a Resolution Authorizing the Interim City Manager to Execute a Five-Year Police
Services Agreement (July 1, 2025 – June 30, 2030) with the Town of Los Gatos Interim City Manager/City Planner Perkins provided a staff report.
Discussion ensued.
Mayor Craig opened the item for Public Comment.
Public Comment
• Resident Kroc
With no one else wishing to speak, Mayor Craig closed Public Comment.
MOTION: Motion by Councilmember Wolsheimer for approval of a Resolution Authorizing the Interim City Manager to Execute a Five-Year Police Services Agreement (July 1, 2025 – June 30, 2030) with the Town of Los Gatos.
Seconded by Councilmember Shannon.
VOTE: Motion passed. (3-0-2 Noes: Mekechuk, Ellahie)
NEW BUSINESS
7. Authorize the City of Monte Sereno to join with other public agencies as a Shareholder of the California Asset Management Trust, a joint powers authority (JPA), specifically as an Investor in the JPA.
Associate Director of Care Policy with Build the Future was available to provide information and available for questions from the Council.
Discussion ensued.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
MOTION: Motion by Councilmember Mekechuk to adopt a resolution to Authorize the City of Monte Sereno to join with other public agencies as a Shareholder of the California Asset Management Trust, a joint powers authority (JPA), specifically as an Investor in the JPA. Seconded by Councilmember Shannon.
VOTE: Motion passed. (5-0-0)
PUBLIC HEARING
5. Consider Introduction of a Draft Ordinance, An Ordinance of the City Council of the City of Monte Sereno Amending Chapter 10.09 (Personal Wireless Service Facility and Antenna Criteria) Interim City Manager/City Planner Perkins provided a staff report.
Discussion ensued.
Representatives from the M Group were available to assist with answering questions from the City Council.
Mayor Craig opened the item for Public Hearing. With no one wishing to speak, Mayor Craig closed Public Hearing.
MOTION: Motion by Councilmember Mekechuk to Introduce a Draft Ordinance, An
Ordinance of the City Council of the City of Monte Sereno Amending Chapter 10.09 (Personal Wireless Service Facility and Antenna Criteria) and wave the reading thereof. Seconded by Councilmember Wolsheimer.
VOTE: Motion passed. (5-0-0)
NEW BUSINESS
8. Discuss the Council Adopted Goal to Improve Wildfire Prevention and Preparedness and Provide Direction to Staff
Interim City Manager/City Planner Perkins provided a staff report.
Discussion ensued.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
No action taken.
9. Consider and Accept the City Manager's Quarterly Report Covering January 1, 2025 through March 31, 2025
Interim City Manager/City Planner Perkins provided a staff report.
Discussion ensued.
Mayor Craig opened the item for Public Comment. With no one wishing to speak, Mayor Craig closed Public Comment.
No action taken.
COMMITTEE/COMMISSION REPORTS
Councilmember Mekechuk shared he attended a meeting with the Valley Transportation Authority Policy Advisory Committee last week. There was discussion on the long-term vision and grant opportunities. Councilmember Mekechuk shared the Silicon Valley Clean Energy Authority met and there was significant discussion on regionalization and the benefits of that. There was also an agreement that the Silicon Valley Clean Energy Authority would support Senator Becker’s SB540 Bill and fund the Hanford area residents. Also, a selection policy for long-term power purchase agreement and new energy storage agreement were approved. Lastly, he shared there are do-ityourself home energy toolkits available at the Saratoga Public Library. Councilmember Mekechuk shared two weeks from today, he has a meeting with both Silicon Valley Stormwater Authority Board and West Valley Solid Waste Management Authority Board.
Councilmember Wolsheimer stated nothing to report.
Councilmember Shannon shared she attended her first Santa Clara Valley Water Commission meeting. Groundwater production charges for Fiscal Year 2026 were discussed during this meeting, and she shared the cost will be going up 9.9%. Similar increases are projected over the next coming years. Emergency preparedness was also an item of discussion. Councilmember Shannon shared that she also attended the West Valley Sanitation District meeting, and the highlight of this meeting was that it was the first of two public hearing meetings for the proposed budget. It was reported that they also issued the updated sewer system management plan.
Vice Mayor Ellahie shared he attended the Cities Association Legislative Action Committee meeting.
He said he will have more information to share on their legislative proposals.
Mayor Craig shared he attended the Finance Ad Hoc Committee meeting for the Santa Clara County Library JPA. He shares that the funding that has been pulled for the libraries in the State of California is not going to drastically affect the services of the Santa Clara Library system. They are in good finance shape and are moving forward in construction with the new building.
COUNCILMEMBER COMMENTS
Councilmember Shannon shared she attended the Santa Clara County Fire open house for their new headquarters, and shared the building is state of the art. She shared she also attended a tour of the San Jose-Santa Clara wastewater treatment facility, and it was fascinating. Lastly, Councilmember Shannon congratulated Mayor Craig on the two articles that appeared in the Peaceful Mountain and the Outlook Newspaper.
Councilmember Mekechuk shared he is excited and looking forward to seeing how the City will progress with the new financial system.
FUTURE AGENDA ITEMS
10. A copy of the Tentative 2025 Council Meeting Calendar was included on the agenda.
Vice Mayor Ellahie stated he would like to see an agenda item two months down the road, about compensation to Councilmembers for being on the Council.
Mayor Craig proposed an agenda item on the city paying for all the fees that a candidate would incur to run for office.
Councilmember Wolsheimer would like to see an item on annexation in a future council meeting.
CITY MANAGER’S REPORT
None.
ADJOURN
Mayor Craig adjourned the meeting at approximately 9:53 p.m.
Burton Craig, Mayor
ATTEST:
____________________________________
Gloisy Gonzalez-Langarica, City Clerk
MONTE SERENO CITY COUNCIL
MEETING MINUTES
SPECIAL MEETING
5:00 p.m.
April 29, 2025
MEETING CALLED TO ORDER
At 5:01 p.m., Mayor Craig called the meeting to order.
ROLL CALL
Present – Chambers: Councilmember Shannon, Councilmember Mekechuk, Councilmember Wolsheimer, Vice Mayor Ellahie and Mayor Craig
Present – Remote: None
Absent: None
Staff: City Clerk Gonzalez-Langarica, Interim City Manager/City Planner Perkins and City Attorney Powell
PUBLIC COMMUNICATION REGARDING CLOSED SESSION ITEMS
Mayor Craig opened the item for Public Comment.
Public Comment Received
• Site and Architectural Commissioner Tam
• Site and Architectural Commissioner Allan
With no one else wishing to speak, Public Comment was closed. The City Council adjourned to Closed Session at approximately 5:04 p.m.
RECESS TO CLOSED SESSION
1. PUBLIC EMPLOYMENT
Pursuant to Government Code Section 54957(b)(1)
Title: City Manager
Staff Present: Interim City Manager/City Planner Perkins, City Attorney Powell
RECONVENE TO OPEN SESSION
The City Council reconvened to Open Session at approximately 5:56 p.m. with Mayor Craig, Vice Mayor Ellahie, Councilmember Mekechuk, Councilmember Wolsheimer and Councilmember Shannon.
CLOSED SESSION REPORT
Mayor Craig stated that there were no reportable actions at this time.
ADJOURN
The meeting of the Special City Council Meeting adjourned at approximately 5:57 p.m.
Burton Craig, Mayor
ATTEST:
Gloisy Gonzalez-Langarica, City Clerk
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Diana Perkins, City Planner/Interim City Manager Department: Interim City Manager
Title: Approve Warrant List Dated April 29, 2025 in the amount $172,360.90 Recommendation(s):
Staff recommends the City Council approve the Warrant List.
Public Noticing:
The City of Monte Sereno's Council meeting agenda was posted on the bulletin board outside of Monte Sereno's City Hall and the agenda with this staff report can be accessed on the City of Monte Sereno's website located at www.montesereno.org.
Attachments:
Warrant List April 29, 2025
Check # Payable to: Description Amount
21328 Void Void $ -
21329 Pacific Gas & Electric
PG&E 3/15/2025 - 4/15/2025 (Account
1826391482-3) $ 197.85
21330 Pacific Gas & Electric
PG&E 3/15/2025 - 4/15/2025 (Account
1868058156-0) $ 218.00
21331 Pacific Gas & Electric
PG&E 3/10/2025 - 4/7/2025 (Account
3832462834-6) $ 576.88
21332 AIM Engineering Consultants Inc
City Engineer Consulting Services
4/5/2025 - 4/28/2025 (Invoice 201) $ 16,800.00
21333 Alana Consulting, LLC
Building Department Consulting Hourly
Services for 3/24/2025 - 5/4/2025
(Invoice 2506) $ 21,447.50
21334 BMI Imaging Systems
Web Hosting for Archived Documents
April 2025 (Invoice 100885) $ 225.00
21335 California Building Standards Comm.
Building Standards Administration
Special Revolving Fund January 2025 -
March 2025 $ 99.00
21336 Christopher Fowler Refund of Overpaid Fees $ 300.00 21337 COMCAST
City Hall Internet Services 4/10/2025 -
5/9/2025 (Account 8155 10 010
0105794) $ 201.67
21338 Corodata Records Management, Inc.
Records Storage Services 3/1/2025 -
3/31/2025 (Invoice RS3703868) $ 146.12
21339 Corodata Shredding Inc.
Shredding of Documents 3/1/2025 -
3/31/2025 (Invoice DN 1516210) $ 10.00
21340 Crystal Springs Water Co
City Hall Bottled Water Service 3/7/2025
- 3/31/2025 (Account 064614) $ 75.00
21341 D&M Traffic Services Traffic Signs (Invoice 574650) $ 67.22 21342 Department of Conservation
Department of Conservation Strong
Motion Instrumentation Fees January
2025 - March 2025 $ 342.28
21343 Dicar Networks, Inc.
IT Services to Set-up Replacement
Printer (Invoice 145378) $ 187.50
CITY OF MONTE SERENO
CHECK REGISTERS
CHECK DATE: APRIL 29, 2025
21344 Frontier Communications
City Hall Telephone Service 4/19/2025 -
5/18/2025 (Account 408-354-9387-
032095-5) $ 60.99
21345 Issac Sargiz Refund of False Alarm Payment $ 300.00 21346 KEVIN HARPER
Finance Consulting Services March
2025 $ 11,517.00
21347 Kier & Wright Civil Engineers and Surve
Consulting Surveyor Review of Parcel
Maps (Invoices 301,047, 304200,
307301, 307302) $ 7,390.75
21348 M-Group
Planning Consulting Services for
Telecommunication Ordinance
($480.00) and General Plan Update
($9,817.50) (Invoices 2004994,
2004995) $ 4,757.50
21349
Metropolitan Transportation
Commission
Metropolitan Transportation
Commission P-TAP 26 Fund (Invoice
AR038256) $ 3,000.00
21350 Municipal Resource Group, LLC
Human Resources Consultant
3/13/2025 - 3/27/2025 (Invoice 21350) $ 2,080.00
21351 Pacific Gas & Electric
PG&E 3/15/2025 - 4/15/2025 (Account
1951391484-6) $ 52.07
21352 Porter Capital Corp
Accounting Consulting Services
4/7/2025 - 4/20/2025 (Invoice 8921,
8927) $ 6,300.00
21353 RICOH USA, INC.
City Hall Copier Rental 5/4/2025 -
6/3/2025 (Invoice 109129749) $ 480.23
21354 San Jose Water
City Hall Water Service 1/30/2025 -
4/2/2025 (Accounts 7537400000-0,
9963720000-9) $ 902.17
21355 Town of Los Gatos Finance Department Police Services April 2025 $ 94,626.17 Total $ 172,360.90
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Diana Perkins, City Planner/Interim City Manager Department: Interim City Manager
Title: Measure B Bicycle/Pedestrian Education and Encouragement Program Funding Amended and Restated Agreement with the Santa Clara Valley Transportation Authority
Recommendation(s):
Staff recommends the City Council authorize the Interim City Manager to execute the Santa Clara Valley Transportation Authority (VTA) Measure B Funding Amended and Restated Agreement for the Bicycle/Pedestrian Education & Encouragement Program and any related future amendments with the VTA.
Background Information:
On November 8, 2016, the voters of Santa Clara County approved by over a two-thirds margin Measure B, a 30-year, ½ cent sales tax measure supporting transportation projects and service in nine program categories. Per 2016 Measure B, the intent of the Bicycle & Pedestrian Program Category is:
“To fund bicycle and pedestrian projects of countywide significance identified by the cities, County, and VTA. The program will give priority to those projects that connect to schools, transit, and employment centers; fill gaps in the existing bike and pedestrian network; safely cross barriers to mobility; and make walking or biking a safer and more convenient means of transportation for all county residents and visitors. Bicycle and pedestrian educational programs, such as Safe Routes to Schools, will be eligible for funding.” On November 19, 2019, the City Council authorized the City Manager to enter into a funding agreement with the VTA (Attachment 1) to ensure that Measure B funds are used for projects meeting the specified parameters and to specify the funding formula. That agreement will expire on June 30, 2025.
The amended and restated agreement (Attachment 2) will extend the agreement through March 31, 2047, when the Measure B funding expires.
Analysis:
The agreement is meant to ensure that funds are spent in accordance with Measure B and that standardized procedures are applied to each recipient of Measure B revenues. They clarify roles and responsibilities, provide guidance on eligible uses and expenditures, and outline the obligations of VTA in distributing the funds and the recipient agencies in expending the funds.
The documents also include funding allocation, payment and expenditure provisions, reporting provisions, and liability and indemnification responsibilities.
Per the VTA guidelines, education and encouragement projects/programs may involve but are not limited to:
Safe Routes to Schools programs and activities
Vision Zero programs
Open streets events
Individualized marketing to encourage mode shift
Maps that promote places to walk or bike
Teaching walking and bicycling skills to adults and children Training law enforcement officials on bicycling and walking laws Broad or targeted campaigns to promote safe driving, walking, and bicycling behavior
Public service announcements to promote and encourage safe walking, biking, and driving
Purchase of helmets, lights, vests, or other safety equipment to be used in an education/encouragement program
Purchase of incentives for encouragement programs
Crosswalk stings or other events that educate roadway users on traffic laws Special events, such as community rides or walks
Energizer stations and other Bike to Work Day activities Valet bicycle parking
Walking/biking audits
Monte Sereno has historically used these funds to support the Los Gatos-Monte Sereno Safe Routes to School.
Fiscal Impact:
The distribution of the 2016 Measure B Bicycle/Pedestrian Program Category Education and Encouragement funds will go to the County of Santa Clara and VTA for efforts on a countywide basis, and to the cities by formula based on population, the City of Monte Sereno will receive $10,000 for each fiscal year through 2028, then increasing every few years to a maximum of $18,000 in fiscal year 2047.
Public Noticing:
The City Council’s agenda was posted at City Hall and the agenda and this report appear on the City’s website.
Attachments:
1. Original Funding Agreement
2. Amended and Restated Funding Agreement
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AMENDED AND RESTATED FUNDING AGREEMENT
BETWEEN
CITY OF MONTE SERENO
AND
SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
FOR
2016 MEASURE B BICYCLE & PEDESTRIAN EDUCATION AND ENCOURAGEMENT PROGRAM THIS AMENDED AND RESTATED FUNDING AGREEMENT (“AGREEMENT”) is entered into as of July 1st, 2025 (“EFFECTIVE DATE”) and is by and between the CITY OF MONTE SERENO (“RECIPIENT”) and SANTA CLARA VALLEY TRANSPORTATION AUTHORITY (“VTA”). RECIPIENT and VTA may be individually referred to as “PARTY” or collectively referred to as “PARTIES.”
I. RECITALS
1. Whereas, on June 24, 2016, the VTA Board of Directors (“VTA BOARD”) adopted a resolution to place a ballot measure before the voters of Santa Clara County (“SCC”) in November 2016 to authorize a one-half of one percent retail transaction and use tax (“2016 MEASURE B”) for 30 years for nine transportation-related program categories;
2. Whereas, on November 8, 2016, the voters of Santa Clara County enacted 2016 MEASURE B for 30 years to pay for the nine transportation-related program categories;
3. Whereas, on October 5, 2017, the VTA BOARD established the 2016 Measure B Program (“PROGRAM”) and adopted the 2016 Measure B Program Category Guidelines (“GUIDELINES”). In addition, VTA established a program manual (“PROGRAM MANUAL”). Both the GUIDELINES and the PROGRAM MANUAL are incorporated into this Agreement by this reference and available at www.vta.org or upon request to VTA;
4. Whereas, the PROGRAM includes a Bicycle & Pedestrian program category (“BIKE/PED CATEGORY”) to fund bicycle and pedestrian projects and educational programs;
5. Whereas, the BIKE/PED CATEGORY consists of three sub-categories, including the education & encouragement program (“BIKE/PED E&E PROGRAM”);
6. Whereas, the duration of 2016 MEASURE B will be 30 years from the initial year of collection, beginning April 1, 2017, and continuing through March 31, 2047;
7. Whereas, the PARTIES executed a funding agreement for the BIKE/PED E&E PROGRAM funds on December 3, 2019 which expires on June 30, 2025 (“PRIOR AGREEMENT”); and
8. Whereas, the PARTIES desire to amend and restate the PRIOR AGREEMENT to, among other things, specify the terms and conditions under which VTA will administer BIKE/PED E&E PROGRAM funds allocated to VTA and RECIPIENT through the life of the PROGRAM.
NOW, THEREFORE, in consideration of the mutual promises contained in this AGREEMENT, the PARTIES agree as follows:
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II. AGREEMENT
1. BIKE/PED E&E PROGRAM DEFINITION
The BIKE/PED E&E PROGRAM covers activities and the development and distribution of materials that are designed and intended to satisfy the following goals within RECIPIENT’s jurisdiction: (i) promote, educate, and/or encourage safe walking or bicycling for residents or visitors of every age and ability; (ii) communicate to residents and visitors the benefits of walking and bicycling; and (iii) communicate to school children, residents, and visitors the rights and responsibilities of pedestrians, bicyclists, and motorists.
2. TERM OF AGREEMENT
The term of this AGREEMENT will commence on the EFFECTIVE DATE and continue through March 31, 2047, or until BIKE/PED E&E PROGRAM CATEGORY funds allocated to RECIPIENT have been expended entirely, whichever occurs later.
Notwithstanding the foregoing, the PARTIES may terminate this AGREEMENT pursuant to Section II, Paragraph 13.
3. ELIGIBLE USE OF FUNDS
A. RECIPIENT may use RECIPIENT’s allocated BIKE/PED E&E PROGRAM funds only for activities/projects that (i) are offered/available to individuals who live, work, or attend school in RECIPIENT’S boundaries or school districts, and (ii) VTA has pre-approved in writing (each, an “E&E PROJECT”). Only VTA’s AUTHORIZED REPRESENTATIVE (defined in Section II, Paragraph 15 below), or designee, has authority to approve an E&E PROJECT.
B. VTA will consider for approval the following types of activities / projects:
i. Organization and implementation of K-12 Safe Routes to Schools programs and activities. ii. Organization and implementation of Vision Zero programs. “Vision Zero” is defined by the Vision Zero Network campaign as the “Strategy to eliminate all traffic fatalities and severe injuries while increasing safe, healthy, equitable mobility for all,” which definition is adopted for purposes of this AGREEMENT.
iii. Organization and implementation of open streets events. “Open streets events” are defined by the Open Streets Project (an advocacy project and collaboration between 8 80 Cities and Street Plans) as “Programs that temporarily open streets to people by closing them to cars,” which definition is adopted for purposes of this AGREEMENT. iv. Creation and implementation of marketing to encourage mode shift towards active transportation.
v. Development and distribution of maps that promote places to walk or bike. vi. Education of walking and bicycling skills to adults and children. vii. Working with law enforcement officials to ensure common understanding and consistent application among law enforcement officials of traffic laws related to biking and walking. viii. Organization and implementation of broad or targeted safety campaigns to promote safe driving, walking, and bicycling behavior.*
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ix. Creation and distribution of marketing materials to encourage safe walking, biking, and driving.*
x. Purchase and distribution of bicycle helmets, lights, reflective vests, or other bicycle/pedestrian safety equipment to be used in education/encouragement activities. xi. Purchase and distribution of incentives for education/encouragement activities. xii. Organization and implementation of crosswalk stings or other activities that educate roadway users on traffic laws. Crosswalk stings are activities conducted by law enforcement to educate the public about crosswalk right of way laws that may or may not include citations.
xiii. Organization and implementation of special community events focused on achieving the BIKE/PED E&E PROGRAM goals described in Section II, Paragraph 1, such as community rides or walks.
xiv. Energizer stations and other Bike to Wherever Day activities. xv. Implementation of valet bicycle parking.
xvi. Community-based bicycle/pedestrian surveys of facilities and surrounding areas to learn, observe, and identify bicycle and pedestrian hot spots. xvii. Any other program or activity VTA pre-approves in writing. *Any safety campaign or public service announcement targeted to motorists must focus on safe, responsible, and respectful motorist interactions with pedestrians and bicyclists.
C. RECIPIENT is permitted to use BIKE/PED E&E PROGRAM funds allocated for (i) direct costs and staff time costs incurred by RECIPIENT to support E&E PROJECTS, and (ii) costs incurred for evaluation of the E&E PROJECTS (as required under Section II, Paragraph 4).
D. Notwithstanding any other provision of this AGREEMENT, RECIPIENT is not permitted to use BIKE/PED E&E PROGRAM funds for capital improvements.
E. E&E PROJECTS may be targeted and limited to specific demographics including, but not limited to, school children, seniors, or people with disabilities to the extent not prohibited by applicable law.
F. Only BIKE/PED E&E PROGRAM costs incurred by RECIPIENT on or after July 1, 2017, will be eligible for reimbursement.
4. EVALUATION REQUIREMENTS
A. RECIPIENT must identify (i) the project reach and scale of each E&E PROJECT and (ii) one or more metric(s) that will be used to evaluate whether the goal was achieved. Examples of acceptable metrics are set forth in Attachment A, attached hereto and incorporated herein.
B. RECIPIENT must identify and obtain VTA’s prior written approval of the frequency and schedule of each E&E PROJECT evaluation.
5. MAXIUMUM FUNDING ALLOCATIONS
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A. RECIPIENT’S maximum funding allocation for each fiscal year (July 1st through June 30th of the following calendar year) will be based upon the VTA BOARD’s Adopted Biennial Budget for the BIKE/PED E&E PROGRAM and the annual fund distribution formula described below.
B. Annual Fund Distribution Formula. The BIKE/PED E&E PROGRAM annual fund distribution formula is calculated every two fiscal years (in line with VTA’s budget cycle) and is based on the following:
i. First, at the same time that VTA plans and finalizes its budget for the two upcoming fiscal years, the VTA BOARD determines the allocation of 2016 MEASURE B funds for the two upcoming fiscal years.
ii. Second, the VTA BOARD determines the amount of 2016 MEASURE B funds to be allocated amongst the PROGRAM categories and subcategories, including the BIKE/PED E&E PROGRAM CATEGORY.
iii. Third, an allocation is made to VTA and the County of Santa Clara for countywide (with respect to Santa Clara County) BIKE/PED E&E PROGRAM activities (“COUNTYWIDE ACTIVITIES”). Per the GUIDELINES, COUNTYWIDE ACTIVITIES will receive 25% of available BIKE/PED E&E POGRAM funds.
iv. Fourth, the 2016 Measure B funds remaining for the BIKE/PED E&E PROGRAM category allocation are calculated by deducting the amount allocated for COUNTYWIDE ACTIVITIES in subparagraph (iii), immediately above, from the total BIKE/PED E&E PROGRAM category allocation (“REMAINING FUNDS”).
v. Fifth, VTA determines the percentage of the total population of SCC (“TOTAL SCC POP”) of each city (“CITY POP”) and of the unincorporated areas of SCC (“SCC UNINCORP POP”) to determine allocations to each city. For purposes of these calculations, the TOTAL SCC POP includes unincorporated areas and is based on the then most current California Department of Finance’s more current annual population estimates at the time of allocation determination, i.e., Report E-1, or any successor report. Each CITY POP is divided by the TOTAL SCC POP, and then the result is multiplied by 100. The result for each city is the “CITY PERCENTAGE SHARE” (for SCC, the ”SCC PERCENTAGE SHARE”). vi. SIXTH, each CITY PERCENTAGE SHARE (including the SCC PERCENTAGE SHARE) is multiplied by the REMAINING FUNDS to determine the dollar amount that would be allocated to each city based on their CITY PERCENTAGE SHARE; however, no allocation is yet made at this step. Cities that would receive less than $10,000 as a result of the calculation described in Subsection (v) will be identified as low population cities (“LOW POP CITIES”). vii. Seventh, each city is allocated $10,000 (“10K ALLOCATIONS”). LOW POP CITIES will not be allocated any additional funds beyond the 10K ALLOCATIONS made to each city as described in this Subsection (vii). The minimum 10k ALLOCATIONS will continue through fiscal year 2025. Following fiscal year 2025, the minimum allocated to LOW POP CITIES will increase by $2,000 every five years. See the “LOW POP CITES ALLOCATION SCHEDULE” included in this AGREEMENT as Attachment B, attached hereto and incorporated herein.
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viii. Eighth, the modified REMAINING FUNDS are calculated by subtracting the cumulative total of allocations made to LOW POP CITIES from the REMAINING FUNDS (“MOD REMAINING FUNDS”).
ix. Ninth, a modified Santa Clara County population is calculated by deducting the SCC UNINCORP POP and all LOW POP CITIES from the TOTAL SCC POP (“MODIFIED POPULATION”).
x. Tenth, a modified population percentage share (“MOD CITY PERCENTAGE SHARE”) is calculated for all cities that are not LOW POP CITIES (“NON-LOW POP CITIES”) by dividing the NON-LOW POP CITY’S total population by the MODIFIED POPULATION and multiplying the result by 100.
xi. Eleventh, each NON-LOW POP CITY’S MOD CITY PERCENTAGE SHARE is multiplied by the MOD REMAINING FUNDS to calculate each NON-LOW POP CITY’s additional allocation of 2016 Measure B funds for the BIKE/PED E&E PROGRAM category. This allocation will be made in addition to the 10K ALLOCATION described above.
C. RECIPIENT’s allocations are subject to change based on allocations made by the VTA BOARD pursuant to the PROGRAM.
D. BIKE/PED E&E PROGRAM allocations may be banked and remain unspent for a maximum of three fiscal years, provided that (i) RECIPIENT provides VTA with a satisfactory explanation for why the allocation is not being spent and (ii) VTA provides RECIPIENT with written approval for such explanation. In this instance, RECIPIENT must begin drawing funds during the fourth fiscal year.
Following the third fiscal year of banked allocations and within the fourth fiscal year, RECIPIENT must provide to VTA the required documentation as described in Section II, Paragraph 7. In this fourth fiscal year, RECIPIENT must submit, at minimum, one invoice for funds towards an E&E PROJECT.
If RECIPIENT fails to do the above by the end of the fourth fiscal year and no funds have been spent in the past four consecutive fiscal years, then allocations will be returned by VTA to the pool of 2016 MEASURE B funds allocated to the BIKE/PED E&E PROGRAM category for redistribution in the next allocation cycle pursuant to the formula above.
E. All funds will be available to RECIPIENT on a reimbursement basis only.
6. VTA’s OBLIGATIONS
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VTA will:
A. Annually report to the public the amount of BIKE/PED E&E PROGRAM revenues allocated and distributed to RECIPIENT.
B. Annually report to the public a summary of E&E PROJECT evaluation metrics submitted by RECIPIENT, as required in Section II, Paragraph 4.
C. Conduct an assessment regarding the effectiveness of the BIKE/PED E&E PROGRAM using approved metrics and data provided by RECIPIENT (pursuant to Section II, Paragraph 4) related to RECIPIENT’s E&E PROJECT(s).
D. Biennially, or however frequently as VTA determines is appropriate based upon the number of ongoing E&E PROJECTs, report to the public the effectiveness of the BIKE/PED E&E PROGRAM based on the assessment described immediately above in Section II, Paragraph 6(C).
E. Remit the amount due to the RECIPIENT under an invoice within thirty (30) calendar days of receipt of a complete and proper, fully documented invoice complying with the requirements set forth herein.
7. RECIPIENT’s OBLIGATIONS
RECIPIENT must:
A. Comply with 2016 Measure B reporting requirements.
B. Ensure that all 2016 MEASURE B funds are expended on allowable BIKE/PED E&E PROGRAM expenditures as described above in Section II, Paragraph 3, ELIGIBLE USE OF FUNDS.
C. Annually complete and submit to VTA, by October 1st of each year, RECIPIENT’s proposed work program for the BIKE/PED E&E PROGRAM, in which RECIPIENT must set forth proposed E&E PROJECTS and develop all such E&E PROJECTS that are approved by VTA as eligible. RECIPIENT’s proposed metrics and frequency of E&E PROJECT evaluation must be included with the proposed work program (see Section II, Paragraph 4); VTA must provide approval of the proposed metrics and frequency of evaluation.
D. Annually submit to VTA, by October 1st of each year, a summary of the prior fiscal year’s completed E&E PROJECTS.
E. Submit to VTA, on a frequency as approved by VTA, the evaluation of the completed E&E PROJECTS pursuant to Section II, Paragraph 4.
F. If applicable, annually submit to VTA, by October 1st of each year, an explanation of why no BIKE/PED E&E PROGRAM funds are planned for expenditure during the upcoming fiscal year.
G. Annually complete and submit to VTA, by October 1st of each year, any accompanying reporting requirements for the BIKE/PED E&E PROGRAM.
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H. Submit to VTA all records including contractors’ invoices, miscellaneous invoices, and force account charges as substantiation for invoices submitted to VTA for reimbursement hereunder.
I. Maintain financial records, books, documents, papers, accounting records, and other evidence pertaining to costs related to this AGREEMENT for five (5) years. RECIPIENT shall make such records available to VTA upon VTA’s written request for review and audit purposes. Financial audits will be performed at VTA’s sole discretion.
J. Submit invoices to VTA, no more frequently than monthly, for reimbursement of eligible E&E PROJECT costs (see Section II, Paragraph 3) RECIPIENT must submit invoices within one year of the date RECIPIENT incurs the cost submitted on the invoice for reimbursement (unless otherwise approved by VTA in writing).
K. At all times during this AGREEMENT, RECIPIENT must comply with the insurance requirements and specifications of the attached Attachment C, Insurance Requirements. RECIPIENT may, in its discretion, elect to self-insure, but any such self-insurance must meet the requirements and specifications in Attachment C.
8. INDEMNIFICATION
Neither VTA nor any officer or employee thereof will be responsible for any damage or liability arising out of or relating to RECIPEINT’s negligent acts or omissions, recklessness, or willful misconduct under or in connection with any work, authority, or jurisdiction associated with this AGREEMENT. Pursuant to California Government Code §895.4, RECIPIENT must fully defend, indemnify, and hold harmless VTA from all suits or actions of every name, kind, and description arising from an injury (as defined by California Government Code §810.8) arising out of or relating to RECIPEINT’s negligent acts or omissions, recklessness, or willful misconduct under or in connection with any work, authority, or jurisdiction delegated to RECIPIENT under this AGREEMENT. This provision will survive the termination or expiration of this AGREEMENT.
9. INSURANCE
At all times during this Agreement, RECIPIENT must comply with the insurance requirements and specifications of Attachment C, Insurance Requirements, attached hereto and incorporated herein.
RECIPIENT may, in its discretion, elect to self-insure, but any such self-insurance must meet the requirements and specifications in Attachment C.
10. ADDITIONAL INSURED AND INDEMNITY PROVISION
In any agreement executed between the RECIPIENT and a third party for purposes related in any way to the subject matter of this Agreement (“Third Party Contract”), RECIPIENT must require that VTA be named as (i) an additional insured on a primary and non-contributory basis with separation of insureds and waiver of subrogation on all policies of insurance, except when not applicable and (ii) an indemnified party in any indemnity provision contained in the Third Party Contract. Third Party Contracts must contain insurance requirements with coverages at least as broad as, and limits at least as great as, the requirements of Attachment C.
11. COMPLIANCE WITH APPLICABLE LAW
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In execution of any E&E PROJECT and performance of its responsibilities set forth herein, RECIPIENT must comply with all applicable requirements of local, state, and federal law.
12. COMPLIANCE WITH 2016 MEASURE B REQUIREMENTS
A. In its performance under this AGREEMENT, RECIPIENT must comply, and must ensure E&E PROJECT compliance, with all PROGRAM requirements including, but not limited to, the GUIDELINES and PROGRAM MANUAL.
B. VTA may, in its sole discretion, make changes to the GUIDELINES and/or the PROGRAM MANUAL at any time. If VTA makes such changes, VTA will notify RECIPIENT within a reasonable time of such changes.
13. TERMINATION
A. Either PARTY may at any time terminate this Agreement by giving ten (10) business days written notice of such termination to the other PARTY. Notice must identify the effective date of such cancellation and must be provided in accordance with the terms and conditions of this AGREEMENT.
B. In the event of termination under this section, City must submit its final invoice to VTA within thirty (30) calendar days of the effective date of termination, and such invoice will be solely for ELIGIBLE COSTS RECIPIENT incurred prior to termination.
14. AUDITS AND RECORDS
A. RECIPIENT must maintain, and must require their contractors to maintain, in accordance with generally accepted accounting principles and practices, complete books, accounts, records, and data pertaining to services performed under this AGREEMENT, including the costs of contract administration. Such documentation must be supported by properly executed payrolls, invoices, contracts, and vouchers evidencing in detail the nature and propriety of any charges and must be sufficient to allow a proper audit of services. All checks, payrolls, invoices, contracts, and other accounting documents pertaining in whole or in part to the services must be clearly identified and readily accessible.
B. For the duration of the AGREEMENT, and for a period of five years after final payment, each PARTY and its representatives must have access during normal business hours to any books, accounts, records, data, and other relevant documents (“RECORDS”) of the other PARTY that are pertinent to this AGREEMENT for audits, examinations, excerpts, and transactions. The other PARTY must furnish copies of the RECORDS upon request.
15. NOTICES / AUTHORIZED REPRESENTATIVES
A. Notices. Any notice which may be required under this AGREEMENT (i) must be in writing, (ii) will be effective one (1) business day after personal service or delivery by certified mail, and (iii) must be given by personal service or certified mail the other PARTY’S AUTHORIZED REPRESENTATIVE at
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the addresses set forth below, or to such other address that may be specified in writing by a PARTY.
B. Authorized Representatives.
VTA:
Marcella Rensi
Deputy Director, Programming and Grants
Santa Clara Valley Transportation Authority
3331 N First Street
San Jose, CA 95134
Email: [email protected]
RECIPIENT:
Diana Perkins, Interim City Manager
City of Monte Sereno
18041 Saratoga – Los Gatos Road
Monte Sereno, CA 95030
Email: [email protected]
Written notification to the other PARTY must be provided, in advance, for changes in the name or address of the individuals identified above.
The individual identified above for RECIPIENT is RECIPIENT’s BIKE/PED E&E PROGRAM Liaison (“LIAISON”). The LIAISON shall be (i) the liaison to VTA pertaining to implementation of this AGREEMENT and (ii) the contact for information about the BIKE/PED E&E PROGRAM and E&E PROJECTS.
16. GENERAL TERMS AND CONDITIONS
A. Headings. The subject headings of the articles and paragraphs in this AGREEMENT are included for convenience only and will not affect the construction or interpretation of any of its provisions.
B. Incorporation of Exhibits and Attachments. All exhibits and attachments referenced in this AGREEMENT are incorporated into it by this reference.
C. Construction and Interpretation of Agreement. This AGREEMENT, and each of its provisions, terms, and conditions, has been reached as a result of negotiations between the PARTIES.
Accordingly, each PARTY expressly acknowledges and agrees that (i) this AGREEMENT will not be deemed to have been authored, prepared, or drafted by any particular PARTY and (ii) the rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this AGREEMENT or in the resolution of disputes.
D. Amendment. No alteration or variation of the terms of this AGREEMENT will be valid unless made in writing and signed by both of the PARTIES hereto, and no oral understanding or AGREEMENT not incorporated herein will be binding on any of the PARTIES hereto.
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E. Entire Agreement. This AGREEMENT constitutes the entire agreement between the PARTIES relating to the subject matter and supersedes all prior negotiations, contracts, agreements, or understandings, whether oral or written, of the PARTIES regarding the subject matter.
F. Representation of Authority. Each PARTY to this AGREEMENT represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this AGREEMENT on behalf of the entity that is a PARTY to this AGREEMENT.
G. No Waiver. The failure of either PARTY to insist upon the strict performance of any of the terms, covenant, and conditions of this AGREEMENT will not be deemed a waiver of any right or remedy that either PARTY may have, and will not be deemed a waiver of either PARTY’s right to require strict performance of all of the terms, covenants, and conditions hereunder.
H. Dispute Resolution.
a. If a question or allegation arises regarding (i) interpretation of this AGREEMENT or its performance, or (ii) the alleged failure of a PARTY to perform, the PARTY raising the question or making the allegation must give written notice thereof to the other PARTY. The PARTIES must promptly meet in an effort to resolve the issues raised. If the PARTIES fail to resolve the issues raised, alternative forms of dispute resolution, including mediation, may be pursued by mutual agreement. It is the intent of the PARTIES to avoid litigation as a method of dispute resolution to the greatest extent possible.
b. Notwithstanding the foregoing, nothing in this Paragraph 16 will be deemed to prevent a PARTY from filing suit or an administrative action to preserve its right to assert a claim within any applicable statute of limitations. To the extent practicable, the PARTIES will negotiate in good faith to create a tolling agreement to toll such statute(s) of limitations to allow for the PARTIES to engage in dispute resolution provisions of this AGREEMENT prior to filing of such actions.
I. Severability. If any term, covenant, condition or provision of this AGREEMENT, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions and provisions of this AGREEMENT, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
J. Governing Law. The laws of the State of California will govern this AGREEMENT, as well as any claim that might arise between RECIPIENT and VTA, without regard to conflict of law provisions.
K. Venue. Any lawsuit or legal action arising from this AGREEMENT must be commenced and prosecuted in the courts of Santa Clara County, California. RECIPIENT agrees to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
L. Use of Work. All PARTIES may retain a copy of all material produced under this AGREEMENT for use in their general activities.
M. Attribution to VTA. RECIPIENT must include attribution to VTA that indicates part of the work was funded by PROGRAM Funds. This provision applies to any project or publication that was funded
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in part or in whole by PROGRAM Funds. Acceptable forms of attribution include 2016 MEASURE B’s branding on E&E PROJECT-related documents, public information materials, and any other applicable documents. VTA will provide Program branding to RECIPIENT.
N. Non-discrimination. The PARTIES and any contractors performing services on behalf of the PARTIES (“CONTRACTORS”) will not unlawfully discriminate or permit discrimination, harass, or allow harassment against any person or group of persons because of race, color, religious creed, national origin, ancestry, age (over 40), sex, gender, gender identity, gender expression, sexual orientation, marital status, pregnancy or childbirth (including related conditions), medical condition (including cancer), mental disability, physical disability (including HIV and AIDS), genetic information, or military and veteran’s status, or in any manner prohibited by federal, state, or local laws. In addition, the PARTIES and CONTRACTORS must not unlawfully deny any of their employees family care leave to which they are entitled or discriminate against such employees on the basis of having to use family care leave. The PARTIES and CONTRACTORS must ensure that the evaluation and treatment of their employees and applicants for employment is free of such discrimination and harassment.
O. Relationship of the Parties. It is understood that this is an AGREEMENT by and between independent parties and does not create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship other than that of independent contractor.
P. Execution in Counterparts / Electronic Signature. This AGREEMENT may be executed in one or more counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. An electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature.
The term “electronic copy of a signed contract” refers to a copy of an original signed contract that meets the admissibility standards of a writing described in Evidence Code §1550. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by each of the Parties.
Q. Authority to Execute Agreement. Each PARTY to this AGREEMENT represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this AGREEMENT on behalf of the entity that is a PARTY to this AGREEMENT.
R. Third Party Beneficiaries. This AGREEMENT does not, and is not intended to, confer any rights or remedies upon any person or entity other than the PARTIES.
S. Survival. All representations, warranties, and covenants contained in this AGREEMENT, or in any instrument, certificate, exhibit, or other writing intended by the PARTIES to survive this AGREEMENT, shall survive the termination or expiration of this AGREEMENT, including but not limited to all terms (1) providing for indemnification; (2) relating to the California Public Records Act; (3) relating to maintenance of data; and (4) relating to PARTIES’ obligations upon and following termination or expiration of this AGREEMENT.
Signatures of PARTIES on following page.
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IN WITNESS WHEREOF, VTA and RECIPIENT have caused their undersigned, duly authorized signatories to execute this AMENDED AND RESTATED FUNDING AGREEMENT as of the EFFECTIVE DATE.
SANTA CLARA VALLEY CITY OF MONTE SERENO
TRANSPORTATION AUTHORITY
Carolyn M. Gonot Diana Perkins
General Manager/CEO Interim City Manager
Date Date
Approved as to Form Approve as to Form
Evelynn Tran
General Counsel
Kirsten Powell
City Attorney
Date Date
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ATTACHMENT A
Example Evaluation Requirement Metrics
Evaluation metrics include, but are not limited to, the ones used below. • Project reach - A metric measuring the total number of people or entities that participated in the activity or received a physical item provided by the program. o Hypothetical Example: Online media safety campaign had 10,000 unique views, resulting in 2,000 people taking the “I will drive, walk, and bike safely and responsibly” pledge. • Mode shift - A metric measuring the change in the number or percentage of people who replaced another mode of transportation with walking or biking. o Hypothetical Example: At the end of the school year, 200 bicycles were counted in the bike cage, an increase of 20% over the number of bicycles counted at the beginning of the year.
• Behavior change - A metric measuring the change in the number or percentage of people who changed their travel habits, including but not limited to frequency of walking or biking. o Hypothetical Example: Individualized marketing packets were provided to 1,200 households. 200 households requested additional information. Before and after surveys showed that 5% of households that requested additional information switched to biking, walking, or taking transit more.
• Safety improvements – A metric measuring the change in risky/safe behavior or the change in crashes.
o Hypothetical Example: After the crosswalk sting, motorists were observed yielding to pedestrians 8 out of 10 times, an increase of 10% over the yielding rate before the crosswalk sting. However, these rates decreased over time, suggesting that continued events or infrastructure changes are needed to permanently improve driver behavior. • Community Engagement – A metric measuring the number or percentage of people who become involved in a program on an ongoing basis.
o Hypothetical Example: At the end of five Train the Trainer events, of the 25 trainees, ten agree to lead Safe Routes to School activities at their schools.
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ATTATCHMENT B
LOW POP CITES ALLOCATION SCHEDULE
Cities that would receive less than $10,000 as a result of the allocation calculations are instead allocated $10,000 minimum per fiscal year. The minimum $10,000 allocation will continue through fiscal year 2028. Following fiscal year 2028, the minimum allocated to LOW POP CITIES will increase every biennial budget cycle.
The allocation schedule starting fiscal year 2028 is as follows:
Fiscal Year (FY) Allocation Amount to LOW POP CITIES
FY 2028 $12,000
FY 2029 $12,000
FY 2030 $12,000
FY 2031 $12,000
FY 2032 $12,000
FY 2033 $12,000
FY 2034 $14,000
FY 2035 $14,000
FY 2036 $14,000
FY 2037 $14,000
FY 2038 $14,000
FY 2039 $14,000
FY 2040 $16,000
FY 2041 $16,000
FY 2042 $16,000
FY 2043 $16,000
FY 2044 $16,000
FY 2045 $16,000
FY 2046 $18,000
FY 2047 $18,000
Rev 1.17.25 Page 15 of 19
ATTACHMENT C
INSURANCE REQUIREMENTS
RECIPIENT’S ATTENTION IS DIRECTED TO THE INSURANCE REQUIREMENTS BELOW. IT IS HIGHLY
RECOMMENDED THAT RECIPIENT CONFER WITH THEIR INSURANCE CARRIERS OR BROKERS IN
ADVANCE OF PROPOSAL SUBMISSION TO DETERMINE THE AVAILABILITY OF INSURANCE CERTIFICATES AND ENDORSEMENTS REQUIRED BY THIS AGREEMENT.
INSURANCE
Without limiting RECIPIENT’s obligation to indemnify and hold harmless VTA, RECIPIENT must 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 by RECIPIENT, its agents, representatives, or employees, or subcontractors. The cost of such insurance must be included in AGREEMENT price. In the event of any material change in the AGREEMENT Scope of Services, VTA reserves the right to change the insurance requirements set forth herein. RECIPIENT must furnish complete copies of all insurance policies, within three (3) business days of any request for such by VTA.
A. Liability and Workers’ Compensation Insurance
1. Minimum Scope of Coverage
Coverage must be at least as broad as:
a. Insurance Services Office General Liability coverage (“occurrence” form CG 0001). General Liability insurance written on a “claims made” basis is not acceptable. b. Insurance Services Office Business Auto Coverage, Insurance Services Office form number CA 0001, covering Automobile Liability, code 1 “any auto.” Auto Liability written on a “claimsmade” basis is not acceptable. c. Workers’ Compensation insurance as required by the Labor Code of the State of California, and Employer’s Liability insurance.
d. Professional Liability, including limited contractual liability coverage, covering liability arising out of any negligent act, error, mistake or omission in the performance of RECIPIENT’s services under this AGREEMENT. This coverage must be continuously maintained for a minimum of two (2) years following completion of this AGREEMENT. This coverage may be written on a “claims made” basis, if so, please see special provisions in Section B.
2. Minimum Limits of Insurance
RECIPIENT must maintain limits no less than:
Rev 1.17.25 Page 16 of 19
a. General Liability (including Umbrella/Excess insurance): $2,000,000 limit per occurrence for bodily injury, personal injury, and property damage. If a General Liability or other form with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. This requirement may be satisfied by a combination of General Liability insurance with Excess or Umbrella policies, but in no event may the General Liability primary policy limit per occurrence be less than $2,000,000, unless Umbrella/Excess policies feature inception and expiration dates concurrent with the underlying policy, “Follow Form” coverage, and a “Drop Down”.
b. Automobile Liability $1,000,000 limit per accident for bodily injury and property damage. c. Workers’ Compensation and Employer’s Liability: Statutory Workers’ Compensation limits and Employer’s Liability limits of $1,000,000 per accident. d. Professional Liability: $2,000,000 each occurrence/aggregate minimum limit per claim.
This requirement may be satisfied by a combination of Professional Liability insurance with Excess or Umbrella policies, but in no event may the Professional Liability primary policy limit per occurrence be less than $2,000,000, unless Umbrella/Excess policies feature inception and expiration dates concurrent with the underlying policy, “Follow Form” coverage, and a “Drop Down” provision.
3. Self-Insured Retention
The certificate of insurance must disclose the actual amount of any deductible or self-insured retention, or lack thereof, for all coverages required herein. Any self-insured retention or deductible in excess of $50,000 ($100,000 if RECIPIENT is a publicly-traded company) must be declared to and approved by VTA. If RECIPIENT is a governmental authority such as a state, municipality or special district, self-insurance is permitted. To apply for approval for a level of retention or deductible in excess of $50,000, RECIPIENT must provide a current financial report including balance sheets and income statements for the past three years, so that VTA can assess RECIPIENT’s ability to pay claims falling within the self-insured retention or deductible.
Upon review of the financial report, if deemed necessary by VTA in its sole discretion, VTA may elect one of the following options: to accept the existing self-insured retention or deductible; require the insurer to reduce or eliminate the self-insured retention or deductible as respects VTA, its directors, officers, officials, employees and volunteers; or to require RECIPIENT to procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Applicable costs resulting therefrom will be borne solely by RECIPIENT. RECIPIENT may request execution of a nondisclosure agreement prior to submission of financial reports.
B. Claims Made Provisions (not applicable to General Liability or Automobile Liability) Claims-made coverage is never acceptable for General Liability or Auto Liability. Claims-made may be considered for Professional, Environmental/Pollution, or Cyber Liability. If coverage is written on a claims-made basis, the Certificate of Insurance must clearly state so. In addition to all other coverage requirements, such policy must provide that:
Rev 1.17.25 Page 17 of 19
1. The policy must be in effect as of the date of this AGREEMENT and the retroactive date must be no later than the date of this AGREEMENT.
2. If any policy is not renewed or the retroactive date of such policy is to be changed, RECIPIENT must obtain or cause to be obtained the broadest extended reporting period coverage available in the commercial insurance market. This extended reporting provision must cover at least two (2) years.
3. No prior acts exclusion may be added to the policy during the contract period.
4. The policy allows for reporting of circumstances or incidents that might give rise to future claims.
C. Other Provisions
The policies must contain, or be endorsed to contain, the following provisions:
1. General Liability and Automobile Liability
a. VTA, its directors, officers, officials, employees and volunteers are to be named as additional insureds as respects: liability arising out of activities performed by or on behalf of RECIPIENT, including VTA’s general supervision of RECIPIENT; products and completed operations of RECIPIENT and its subcontractors; premises owned, occupied or used by RECIPIENT; or automobiles owned, leased, hired or borrowed by RECIPIENT. The coverage must contain no special limitations on the scope of protection afforded to VTA, its directors, officers, officials, employees, or volunteers. Additional Insured endorsements must provide coverage at least as broad as afforded by the combination of ISO CG 20 10 10 01 and CG 20 37 10 01.
b. Any failure to comply with reporting provisions of the policies may not affect coverage provided to VTA, its directors, officers, officials, employees, or volunteers. c. RECIPIENT’s insurance must 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. d. The General Liability General Aggregate limit must apply per project, not per policy. e. The General Liability policy must be endorsed to remove the exclusion for railroad liabilities, with coverage at least as broad as afforded by ISO CG 24 17.
2. All Coverages
a. The insurer must agree to waive all rights of subrogation against VTA, its directors, officers, officials, employees, and volunteers for losses arising from work performed by RECIPIENT and its subcontractors for VTA.
Rev 1.17.25 Page 18 of 19
b. RECIPIENT’s insurance coverage must be primary insurance as respects VTA, its directors, officers, officials, employees, and volunteers. Self-insurance or insurance that may be maintained by VTA, its directors, officers, officials, employees, or volunteers may apply only as excess to RECIPIENT’s insurance. RECIPIENT’s insurance must not seek contribution from VTA’s insurance program.
3. Other Insurance Provisions
a. The Certificate must disclose the actual amount of the Deductible or Self-Insured Retention
b. If any coverage forms or endorsements required by this AGREEMENT are updated by their publishers, whether they be the insurance carrier(s), the Insurance Services office, or the American Association of Insurance Services, during the duration of this AGREEMENT, VTA reserves the rights to require RECIPIENT to procure said coverage forms or endorsements using the updated versions upon the next renewal cycle.
D. Acceptability of Insurers
Insurance and bonds must be placed with insurers with an A.M. Best’s rating of no less than A VII (financial strength rating of no less than A and financial size category of no less than VII), unless specific prior written approval has been granted by VTA.
E. Certificates of Insurance
RECIPIENT must furnish VTA with a Certificate of Insurance. The certificates for each insurance policy are to be signed by an authorized representative of that insurer. The certificates must be issued on a standard ACORD Form. The RECIPIENT must instruct their insurance broker/agent to submit all insurance certificates and required notices electronically in PDF format to [email protected]. All endorsements must be attached to the ACORD certificate in a single PDF document.
The certificates must (1) identify the insurers, the types of insurance, the insurance limits, the SIRs/deductibles or lack thereof and the policy term, (2) include copies of all the actual policy endorsements required herewith, and (3) in the “Certificate Holder” box include:
Santa Clara Valley Transportation Authority (“VTA”)
3331 North First Street
San Jose, CA 95134-1906
In the Description of Operations/Locations/Vehicles/Special Items Box, the VTA Contract number must appear, the list of policies scheduled as underlying on the Umbrella/Excess policy must be listed, Certificate Holder must be named as additional insured, and Waiver of Subrogation must be indicated as endorsed to all policies as stated in the Contract Documents.
Rev 1.17.25 Page 19 of 19
It is a condition precedent to award of this AGREEMENT that all insurance certificates and endorsements be received and approved by VTA before AGREEMENT execution. No work may be performed until insurance is in full compliance. VTA reserves the rights to require complete, certified copies of all required insurance policies, at any time.
If RECIPIENT receives notice that any of the insurance policies required by this Exhibit may be cancelled or coverage reduced for any reason whatsoever, RECIPIENT must immediately provide written notice to VTA that such insurance policy required by this Exhibit is canceled or coverage is reduced.
F. Maintenance of Insurance
If RECIPIENT fails to maintain insurance as required herein, VTA, at its option, may suspend payment for work performed and/or may order RECIPIENT to suspend work at RECIPIENT’s expense until a new policy of insurance is in effect.
Ed. Rev. 10-1-19
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Diana Perkins, City Planner/Interim City Manager Department: Interim City Manager
Title: Authorize the Interim City Manager to Execute the First Amendment to the Agreement with the County of Santa Clara for the Countywide Household Hazardous Waste Collection Program.
Recommendation(s):
Staff recommends the City Council authorize the Interim City Manager to Execute the First Amendment to the Agreement with the County of Santa Clara for the Countywide Household Hazardous Waste Collection Program.
Background Information:
The Santa Clara County Household Hazardous Waste (HHW) Program provides household hazardous waste disposal services to Monte Sereno residents. The funding for this program is provided partially through landfill disposal fees (AB 939) and partially through an augmentation fee that the City pays to cover the service used by Monte Sereno residents. The City receives designated revenue from its solid waste hauler, West Valley Collection and Recycling, to fully cover the cost of the augmentation fee. The revenue and expenditures for this program are included in the City’s budget.
AB 939 allows for the establishment of fees to further recycling goals. The agreement executed in 2024 (Attachment 1) for the County-Wide Household Hazardous Waste Program outlines the terms and conditions under which the County collects and distributes the fees assessed on waste disposal at each disposal facility within the County. These fees are used to fund HHW programs, as well as implementation of the Countywide Integrated Waste Management Plan.
Analysis:
The Agreement with the County of Santa Clara for Countywide Household Hazardous Waste Collection Program was approved in June 2024. The First Amendment (Attachment 2) extends the program fees and updates the program operations for Fiscal Year 2025/2026 California Environmental Quality Act:
This is not a project defined under CEQA, and no further action is required.
Public Noticing:
The City of Monte Sereno's Council meeting agenda was posted on the bulletin board outside of Monte Sereno's City Hall and the agenda with this staff report can be accessed on the City of Monte Sereno's website located at www.montesereno.org.
Attachments:
1. Agreement for Countywide Household Hazardous Waste Collection Program
2. First Amendment to the Agreement for Countywide Household Hazardous Waste Collection Program
Agreement for Countywide Household
Hazardous Waste Collection Program Page 1 of 27
AGREEMENT FOR COUNTYWIDE
HOUSEHOLD HAZARDOUS WASTE
COLLECTION PROGRAM
This Agreement for Countywide Household Hazardous Waste Collection Program (“AGREEMENT”) is made by and between the (“CITY”) and the County of Santa Clara (“COUNTY”) on the day of 2024.
RECITALS
WHEREAS, the Board of Supervisors of the County of Santa Clara (“Board of Supervisors”) has approved a Countywide Household Hazardous Waste Collection Program whereby residents of the unincorporated areas of the Santa Clara County and cities and towns within Santa Clara County participating in the Countywide program will have an opportunity to safely dispose of household hazardous wastes (HHW), regardless of the specific location at which the collection has been scheduled; and
WHEREAS, CITY desires to provide residents with convenient opportunities to safely dispose of their HHW in order to encourage the proper disposal of toxic products, and avoid unauthorized or improper disposal in the garbage, sanitary sewer, storm drain system, or on the ground, in a manner which creates a health and/or environmental hazard; and WHEREAS, CITY desires to provide a safe, convenient, and economical means for residents to dispose of HHW. These wastes include, but are not limited to, common household products such as household cleaning products, furniture polish, solvents, oven cleaner, pesticides, oil-based paints, motor oil, antifreeze, car batteries, mercury thermostats, fluorescent lamps, household batteries, and electronic waste; and
WHEREAS, CITY desires to schedule Household Hazardous Waste Collection Events (Events) for residents for FY 2025 through FY 2027 (July 1, 2024 – June 30, 2027); and WHEREAS, CITY desires to provide household hazardous waste collection services to a minimum of 4% of the households per fiscal year in its jurisdiction; and WHEREAS, CITY desires to participate in the Countywide Household Hazardous Waste Collection Program to meet these objectives; and
WHEREAS, pursuant to Public Resources Code Section 41901, the Board of Supervisors has approved the collection of a $4.10 per ton Countywide AB939 Implementation fee, including a $2.60 per ton Household Hazardous Waste Fee (AB939 HHW Fee), for FY 2025 through FY 2027 (July 1, 2024 – June 30, 2027) on all wastes landfilled or incinerated within Santa Clara County, received at any non-disposal or collection facility located within Santa Clara County and subsequently transported for disposal or incineration outside of Santa Clara County, collected from any location within the County by a solid waste hauler operating pursuant to a franchise, contract, license, or permit issued by any local jurisdiction and subsequently DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 City of Monte Sereno
DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74 28th June
Agreement for Countywide Household
Hazardous Waste Collection Program Page 2 of 27
transported for disposal or incineration outside of Santa Clara County, or removed from any location in Santa Clara County by any person or business for disposal or incineration outside the county; and
WHEREAS, the AB939 HHW Fee is allocated to the Countywide Household Hazardous Waste Program and participating jurisdictions to fund HHW program costs in accordance with the terms of the Countywide AB939 Implementation Fee Agreement; and WHEREAS, CITY desires for COUNTY to utilize CITY’s share of the AB939 HHW Fee to provide HHW services for CITY residents.
NOW THEREFORE, CITY and COUNTY AGREE AS FOLLOWS:
1. PURPOSE
The purpose of this AGREEMENT is to state the terms and conditions under which CITY will participate in the Countywide Household Hazardous Waste Collection Program (CoHHW Program) available to its residents. Participating jurisdictions are those jurisdictions that enter into this AGREEMENT with the County.
2. PROGRAM FUNDING SOURCE
HHW Program services are mandated by State law, Public Resources Code Section 41500 et seq. State law authorizes cities and counties to impose fees in amounts sufficient to support planning and implementation of integrated waste management programs, including HHW elements. The AB939 HHW Fee, of $2.60 per ton, imposed by COUNTY as part of the AB939 Implementation Fee and collected and distributed in accordance with the Agreement for Countywide AB939 Implementation Fee will be the primary source of funding for CoHHW Program services. CITY agrees that COUNTY may utilize CITY’s share of the AB939 HHW fee to provide HHW Program services in accordance with the terms and conditions of this AGREEMENT.
Funds derived from the AB939 HHW Fee will be allocated among five types of CoHHW Program service costs as follows:
A. Fixed Program Costs will be apportioned based on the number of households in each participating jurisdiction. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, “Population Estimates for California Cities and Counties.” B. San José Facility Use Surcharge will be apportioned based on CITY residents’ participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San José, CA 95133.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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C. Variable Cost Per Car is the cost associated with labor, waste disposal, transportation, and other services provided to residents at the County HHW Collection Facilities and at temporary HHW collection events. The Variable Cost Per Car is based on the estimated cost of providing a base level service to 4% of households in all participating jurisdictions. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, “Population Estimates for California Cities and Counties.” D. Available Discretionary Funding is allocated based on tonnage generated per participating jurisdiction, and after allocation of Fixed Program Costs, San José Facility Use Surcharge, and Variable Cost Per Car allocation.
E. Abandoned Waste Disposal Costs will fund disposal of HHW illegally abandoned at Nonprofit Charitable Reuser organizations as defined in Section 41904 of California Public Resources Code.
The projected AB939 HHW Fee Allocation by jurisdiction is set out in Attachment A, attached hereto and incorporated herein.
3. FIXED PROGRAM COST
Estimated HHW Fixed Program Costs are projected in Attachment B, attached hereto and incorporated herein. Fixed Program Costs are allocated to CITY at the conclusion of each fiscal year based on CITY’s proportional share of the County population and will not exceed $5.07 per household for Fiscal Years 2025, 2026, and 2027. Fixed Program Costs may include, but are not limited to, up to eleven (11) County HHW Program staff members, facility lease costs, vehicle lease costs, office rent, office supplies, county administrative overhead, county legal counsel, training costs, equipment and facility maintenance and union negotiated salary and benefit changes.
4. ABANDONED WASTE DISPOSAL COST
The Abandoned Waste Disposal Cost will fund disposal of HHW illegally abandoned at Nonprofit Charitable Reuser organizations. The Abandoned Waste Disposal Cost is based on the cost to the County to dispose of abandoned waste allocated among participating jurisdictions based on their proportional share of the County population and shall not exceed $0.05 per household. Projected Abandoned Waste Disposal Costs to the CITY based on a charge of $0.05 per household are set forth in Attachment A, attached hereto and incorporated herein.
For the purposes of this Agreement, “Nonprofit Charitable Reuser Organization” is defined in accordance with Section 41904 of California Public Resources Code as follows: a charitable organization, as defined in Section 501(c)(3) of the federal Internal Revenue Code, or a distinct operating unit or division of the charitable organization, that reuses and recycles donated goods or materials and receives more than 50 percent of its revenues from the handling and sale of those donated goods or materials.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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Hazardous Waste Collection Program Page 4 of 27
5. SAN JOSÉ FACILITY USE SURCHARGE
The total San José Facility Use Surcharge for CITY will be based on CITY residents’ proportional participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San José. Estimated San José Facility Use Surcharges are projected in Attachment A, attached hereto and incorporated herein. The San José Facility Use Surcharge will vary depending on facility usage but will not exceed $8.09 per car for Fiscal Years 2025, 2026, and 2027.
6. VARIABLE COST PER CAR
The Variable Cost Per Car is the cost associated with actual labor, waste disposal, transportation and other services provided to the residents at the County Household Hazardous Waste Collection Facilities (CoHHWCF) and at Temporary Events. The Variable Cost Per Car is estimated to be approximately $66.02 per participating resident car for Fiscal Years 2025, 2026 and 2027. The estimated cost per car will be adjusted to reflect actual service costs. After Fixed Program Costs and San José Facility Use Surcharge are allocated on a per household basis, the Variable Cost Per Car will be used to calculate the costs to service 4% of households across all participating jurisdictions. If the level of 4% of households is not reached in the CITY, the CoHHW Program may use the remaining balance of funds, in cooperation with the CITY, to increase public outreach and/or provide additional services in that jurisdiction the following year.
7. AVAILABLE DISCRETIONARY FUNDING
The Available Discretionary Funding portion of the AB939 HHW Fee will be allocated based on the tons of waste generated within each jurisdiction, and after allocation of Fixed Program Costs, San José Facility Use Surcharge, and Variable Cost Per Car allocation.
Available Discretionary Funds must be used for HHW purposes. Options for how to spend these funds include, but are not limited to, increasing the number of residents served in that jurisdiction by the CoHHW Program, subsidizing curbside used motor oil collection, electronic waste (e-waste) collection, universal waste collection, emergency HHW services, funding HHW public education, the support of capital infrastructure projects to accommodate HHW drop-off and collection events, or providing special programs such as retail collection of certain waste and/or door-to-door collection of HHW for the elderly and/or persons with disabilities and neighborhood clean-up events. COUNTY has discretion to determine appropriate uses of Available Discretionary Funding in accordance with the terms and conditions in this Agreement, and to apply the funding toward those uses.
8. ADMINISTRATION AND PAYMENT OF THE AB939 HHW FEE
The County of Santa Clara Recycling and Waste Reduction Division will administer the AB939 HHW Fee, as part of the existing online disposal reporting and payment system.
Administration and payment will be made in accordance with the Agreement for Countywide AB939 Implementation Agreement. Notwithstanding the foregoing, the COUNTY shall maintain records of the amount, use, and distribution of Fixed Program Cost expenditures for at least five (5) years after the termination date of this Agreement, unless otherwise required by law DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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to retain such records for a longer period. CITY may request in writing a review by COUNTY of the Fixed Program Cost records. The review shall be performed within 30 days of request and results shall be reported to participating cities in writing.
9. PROGRAM PUBLICITY
The CoHHW Program shall produce and make available to the public an HHW brochure for distribution. The brochure will be made available at various events, including but not limited to, environmental events and community fairs. The brochure may also be distributed, upon request, to cities within Santa Clara County and to Santa Clara County residents and businesses.
The CITY shall be responsible for developing and coordinating citywide awareness of the HHW Program. The CoHHW Program shall be responsible for Countywide public education for used oil recycling. CoHHW Program public awareness responsibilities shall include, but not be limited to, the following activities:
• Serving as the formal contact to the local media such as local newspapers and television news stations;
• Providing participating jurisdictions with educational materials developed for the CoHHW Program;
• Promoting oil and oil filter recycling by developing, purchasing, and distributing educational materials, media relations materials, basic art work and camera ready advertising materials for distribution countywide and for use by jurisdictions; • Representing the program through educational presentations at schools and businesses and attendance at community events such as local fairs and festivals; and • Providing participating jurisdictions opportunities to review and comment on the development of countywide outreach materials.
CITY’s public awareness responsibilities, at the sole discretion of the CITY, shall include, but not be limited to, the following activities:
• Providing a copy of HHW promotional materials to the CoHHW Program for review for accuracy and completeness, prior to publication; • Developing and distributing HHW promotion communications to residents for local and CITY newsletters, newspapers and to the electronic media; • Providing the CoHHW Program with a copy of HHW promotion materials produced by the CITY;
• Conducting and supporting outreach and publicity to attain the goal of 4% of households in the CITY participating in the CoHHW Program; and • Providing the CoHHW Program a report summarizing all outreach activities conducted by the CITY during the fiscal year. The report is due 30 days after the end of the reporting period.
10. TEMPORARY HHW EVENTS
COUNTY shall conduct Temporary HHW Events at various sites located in Santa Clara County. COUNTY shall obtain all necessary permits and licenses required for the Temporary DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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HHW Events and shall provide or contract for the services of properly trained, qualified personnel and hazardous waste haulers, and shall provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at the Temporary HHW Events.
When COUNTY conducts a Temporary HHW Event in CITY’s jurisdiction, CITY agrees to provide solid waste and recycling services at such event at no cost to the CoHHW Program to ensure the proper management of non-hazardous waste generated at the event. Any additional expenses for such event incurred beyond the agreed-upon budget shall be subject to negotiation and mutual agreement between the COUNTY and the CITY.
To increase the Community’s awareness of and participation in any Temporary HHW Event in CITY’s jurisdiction, the CITY agrees to promote, at the CITY’s sole expense, each such event to the residents at least thirty (30) days in advance before the scheduled date. The promotion may include, but is not limited to, bill inserts, door hangers, flyers, in-person outreach events, newsletters, press releases, public service announcements, social media, television public access stations, websites, etc.
11. HOUSEHOLD HAZARDOUS WASTE COLLECTION FACILITIES
COUNTY shall conduct collection operations at two County Household Hazardous Waste Collection Facilities (CoHHWCF).
The CoHHWCF are located at:
♦ San Martin, 13055 Murphy Avenue, San Martin, CA 95046 ♦ San José, 1608 Las Plumas, San José, CA 95133
The COUNTY shall obtain all necessary permits and licenses required for the CoHHWCF and shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected.
12. RECYCLING AND DISPOSAL PROGRAM FOR VERY SMALL QUANTITY
GENERATORS
COUNTY will provide services to accept hazardous waste from Very Small Quantity Generators (VSQG) in accordance with Section 25218.3 of California Health and Safety Code, as amended from time to time. VSQG is defined in Section 25218.1(q) of California Health and Safety Code.
Eligible VSQGs include, but not limited to, small businesses, governmental entities, non-profit organizations, schools, special districts, etc. within the County so long as they meet the criteria as defined in Section 25218.1(q) of California Health and Safety Code. Eligible VSQGs will be allowed to bring their hazardous waste to CoHHWCF. These services to VSQGs located within the CITY will be provided on a cost recovery basis, which will include program administration, DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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on-site collection, transportation, and disposal costs. COUNTY will assume responsibility for fee collection from participating VSQG.
The CITY may choose to pay for services for VSQG’s within the CITY and will notify the COUNTY in writing with 30-day advance notice in order to exercise this option. If the CITY exercises this option, the COUNTY will invoice the CITY for all costs associated with VSQG’s within the CITY. If CITY has available Discretionary Funding, COUNTY may use this funding to pay for VSQG costs.
13. ABANDONED HOUSEHOLD HAZARDOUS WASTE
The CoHHW Program will allow for the disposal of abandoned HHW by government agencies and qualified nonprofit charitable reusers. Abandoned HHW means HHW left at a property by an unknown party. Abandoned household hazardous waste does not include waste generated by a known organization or agency in the course of normal business operations such as, but not limited to, the assembly or manufacture of products from new or used materials or the provision of charitable services such as classroom education, meal preparation, and shelter, or the provision of services for a fee.
A) GOVERNMENT AGENCIES
Government agencies shall be charged for disposal of abandoned HHW according to the CoHHW Program’s rates for VSQGs.
B) NONPROFIT CHARITABLE REUSER
In order to qualify as a Nonprofit Charitable Reuser, the business must submit to the County Executive a request to be so designated. The County Executive shall review the request and supporting documentation and shall make a final decision on the designation. COUNTY will accept abandoned HHW from Nonprofit Charitable Reusers and will waive disposal fees on the cost of disposal of the abandoned HHW in an annual amount not to exceed funds available from the existing unexpended abandoned waste fund. Funding for disposal available to Nonprofit Charitable Reuser shall be on a first come first serve basis. Once the available fund to pay for the disposal of the abandoned HHW from Nonprofit Charitable Reusers is exhausted, disposal fees shall no longer be waived, and Nonprofit Charitable Reusers shall be charged for disposal of abandoned HHW according to the CoHHW Program’s rates for VSQGs. No additional costs shall be applied to the budget of the CITY or any other participating jurisdiction.
14. HOUSEHOLD HAZARDOUS WASTES ACCEPTED
HHW accepted by the CoHHW Program shall be limited to those materials that qualify as “Household Hazardous Waste” pursuant to Section 25218.1(d) of California Health and Safety Code, as amended from time to time. These materials include, but are not limited to, automotive fluids, automotive and other types of batteries, latex and oil paint, oil filters, garden chemicals, DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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household cleaners, pool chemicals, mercury thermostats, fluorescent lamps containing mercury, household batteries, electronic waste (e-waste), and other common hazardous consumer products.
15. WASTES NOT ACCEPTED
Certain hazardous wastes shall not be accepted for collection and disposal. These include, but are not limited to, compressed gas cylinders larger than 5 gallons, radioactive materials, biohazardous waste, and explosives. Other wastes not accepted by the CoHHW Program are wastes generated as part of operating a business, including a home operated business, except that waste from VSQGs as provided for in Section 12 of this Agreement shall be accepted.
16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level. Additional services shall be made available upon written agreement between the CITY’s authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments (charged at the Variable Cost Per Car rate), door-to-door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.
CITY agrees to augment up to an additional $_________ to the Countywide HHW Program during Fiscal Year 2025 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
CITY agrees to make an interim payment to COUNTY amounting to 50 percent of the augmentation amount stated above for each fiscal year. This interim payment shall be made no later than September 30th of each fiscal year. The remaining balance of any outstanding cost shall be reconciled and paid or refunded in accordance with the terms outlined in the annual cost statement.
At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt of the annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery of the annual cost statement. / /
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17. INFORMATION AND APPOINTMENT LINE
COUNTY will operate a telephone information and appointment desk Monday through Friday, from the hours of 9:00 a.m. to 5:00 p.m, except for COUNTY-recognized holidays The information service will register residents for the Temporary HHW Events and the collections at CoHHWCF. The information service will provide information about hazardous household materials. CITY will be notified immediately if resident participation approaches a level of service that may not be supported by available funding.
18. SCHEDULING AND SITE SELECTION
COUNTY shall work with CITY to determine the date(s) of Temporary Events and collections at the CoHHWCF. CITY shall coordinate with COUNTY in locating and securing sites for Temporary HHW Events. It is recognized that some participating jurisdictions in the CoHHW Program may not have appropriate sites available. A proposed HHW schedule for Fiscal Year 2025 of Temporary Events and collections at CoHHWCF is included as Attachment C. COUNTY will schedule an adequate number of collection days to serve the 4% level of service. The COUNTY determines the adequate number of collection days by tracking attendance at each event.
19. OUTSIDE FUNDING
During the term of this Agreement, COUNTY may seek outside funding sources for services that would supplement existing HHW services such as permanent collection sites, equipment, retail take-back collection and operational funding. If outside funding is obtained, the CoHHW Program will, at COUNTY’s discretion, proceed with development of additional programs using that outside funding without drawing on CITY’s funding provided under this Agreement.
20. REGIONAL GRANT AND OIL PAYMENT PROGRAM PARTICIPATION The CITY authorizes the CoHHW Program to apply for lead agency grants, including but not limited to Used Oil Payment Program grants, from the California Department of Resources Recycling and Recovery (CalRecycle), on behalf of participating jurisdictions. The CoHHW Program will act on behalf of all participating jurisdictions, as the lead applicant and administrator. The CoHHW Program will oversee how the moneys are used and work in cooperation with CITY as to how the funds will be spent. Nothing in this section shall preclude the COUNTY or a participating jurisdiction from applying for grant funds in any case where the CoHHW Program does not apply for the grant opportunity.
21. EMERGENCY SERVICES
Participating jurisdictions, at their option, may desire to provide residents with convenient emergency opportunities to safely dispose of their HHW in the event of a disaster.
The purpose of this emergency planning for HHW is to minimize potential public health and safety impacts, as well as to minimize costs and confusion. Attachment D sets out CITY and DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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COUNTY responsibilities for the collection of household hazardous wastes in response to an emergency. CITY shall make good faith efforts to provide the public with information related to the problems associated with HHW. Upon the decision to hold an emergency collection event, it is CITY’s responsibility to make a good faith effort to prepare and disseminate the necessary outreach to notify the public of an emergency collection event. An emergency collection event shall be initiated by a written request from CITY to COUNTY. Emergency collection events can be scheduled in as little as ten (10) working days of CITY’s written request or at an agreed upon date thereafter. The emergency collection plan is set out in Attachment D, Household Hazardous Waste Emergency Collection Plan.
COUNTY agrees to conduct the Emergency Collection Event at a mutually agreeable site and time. The COUNTY will obtain the necessary permit from California Department of Toxic Substances Control and will handle wastes in accordance with applicable state laws and regulations. COUNTY will bill CITY for all Emergency Collection Events on a cost recovery basis, and all payments shall be due COUNTY within 30 days following the receipt of the invoice.
22. PRIVATE SPONSORED EVENTS
COUNTY may also secure funding from corporations or agencies to conduct HHW Collection Events for corporate employees and residents of participating jurisdictions and to pay for special programs such as Universal Waste collection at retail locations. The transportation, treatment, and disposal liability for nonresident employee participation in these events shall be shared by all participating jurisdictions, including the CITY, and the COUNTY, as described in Section 26 of this Agreement. Summary information concerning these corporate sponsored events, if any, will be included in the CoHHW Program’s annual report to the participating jurisdictions.
23. INSURANCE REQUIREMENTS
Contractors who provide hazardous waste transportation, treatment, or disposal services shall have the required insurance as outlined in Attachment E, Exhibit E Insurance Requirements for Environmental Services Contract. Other contractors shall have insurance in amounts to be determined by COUNTY Insurance Manager, after consultation with CITY. COUNTY shall obtain insurance certificates from each of the contractors prior to the contractor providing service to the program naming the COUNTY as an additional insured.
24. WASTE TRACKING AND REPORTING
COUNTY will provide a mid-year report to CITY regarding participation rates from each participating jurisdiction by March 15 of each year. Mid-year and year end reports will outline the types and quantities of waste collected, the amount of waste diverted for reuse or recycling and the waste management method for each waste stream and associated costs for services.
COUNTY will prepare a report summarizing program activities which will be delivered to the participating jurisdictions no later than six months after the end of COUNTY’s fiscal year.
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It will be assumed for cost and reporting purposes that each participating jurisdiction is contributing to the waste stream in proportion to the number of its residents who directly participate.
COUNTY shall take steps to assure that the bi-annual statements to jurisdictions reflect the funds necessary to cover costs for CITY participation in services scheduled during the next quarter.
25. PARTICIPATION REPORTING
COUNTY shall employ means necessary to verify the place of residence of all participants in the CoHHW Program.
26. HOLD HARMLESS AND INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between CITY and COUNTY pursuant to Government Code Section 895.6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead COUNTY and CITY agree that pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other parties hereto, their officers, board members, employees or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other parties under this Agreement.
Additionally, CITY shall indemnify COUNTY for CITY’s apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of the household hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. Apportionment for disposal liability shall be determined by each participating jurisdiction’s pro rata proportion of household participation in the Program.
Apportionment for transportation and treatment liability shall be determined by each participating jurisdiction’s pro rata household participation at the event where the waste was generated. COUNTY will use reasonable efforts to obtain recovery from all available resources, including insurance, of any liable hauler or liable disposal facility operator. No liability shall be apportioned to CITY for transportation, treatment or disposal in any case where COUNTY has contracted for such services and has failed to require the contractor to maintain the insurance requirements set forth in Section 23 above.
CITY shall further indemnify COUNTY for CITY’s apportioned share of liability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of household hazardous waste at corporate sponsored events where non-county resident DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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employees of the corporate sponsor are authorized to participate in the event. Liability for the nonresident portion of the disposal of waste shall be shared by the participating jurisdictions and the COUNTY as described above. The nonresident portion shall be determined by calculating the percentage of nonresidents participating in the event. This percentage will then be subtracted from the total liability for the household hazardous waste prior to assessing CITY’s apportioned share of any liability for the household hazardous waste.
COUNTY shall require VSQGs and Nonprofit Charitable Reusers to indemnify COUNTY, at minimum, for their apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of their hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. The VSQG and Nonprofit Charitable Reuser portion of the waste shall be determined by calculating the percentage, by weight, of the total household hazardous waste accepted by the CoHHW Program. This percentage will be used to calculate the portion of liability attributed to VSQGs and Nonprofit Charitable Reusers and will be subtracted from the total liability prior to assessing CITY’s apportioned share of any liability for household hazardous waste.
27. TERMINATION
This Agreement may be terminated by either the COUNTY or CITY upon thirty (30) days written notice given by the terminating party.
28. TERM OF AGREEMENT
The term of this Agreement shall be from July 1, 2024 to June 30, 2027, or until all revenue from the last quarter’s AB939 fee payments have expended and/or distributed, whichever is later.
29. INDEPENDENT CONTRACTOR
Each party shall perform responsibilities and activities described herein as an independent contractor and not as an officer, agent, servant or employee of any of the parties hereto. Each party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing herein shall be considered as creating a partnership or joint venture between the parties.
30. EXECUTION BY COUNTERPART
This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed an original and all of which shall together constitute one and the same instrument.
31. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.
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32. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the subject matter hereof. No modification of this Agreement shall be effective unless and until modification is evidenced by writing signed by all parties or their assigned designates.
33. NOTICES
All notices and communications herein required shall be in writing to the other party as follows, unless expressly changed in writing:
CITY of City Representative
Representative’s Title
City Address
County of Santa Clara Director
Consumer and Environmental Protection Agency
1553 Berger Drive
San José, California 95112
34. CONTRACT EXECUTION
Unless otherwise prohibited by law or COUNTY policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the COUNTY.
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DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 Monte Sereno CA
Monte Sereno
18041 Saratoga Los Gatos Rd
95030
City Manager
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM on the dates as stated below:
Date: COUNTY OF SANTA CLARA
JAMES R. WILLIAMS
County Executive
Date: “CITY”
CITY/TOWN OF
Title
A municipal corporation
APPROVED AS TO FORM AND LEGALITY:
WILLIE NGUYEN
Deputy County Counsel
Attachments:
A Projected Fiscal Years 2025, 2026, and 2027 AB939 HHW Fee Funding Allocation by Jurisdiction
B Estimated HHW Program Fixed Costs for Fiscal Years 2025, 2026, and 2027 C HHW Schedule of Collection Events for Fiscal Year 2025 D Household Hazardous Waste Emergency Collection Plan
E Exhibit-E Insurance Requirements for Environmental Services Contracts DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 City Manager
5/8/2024
Monte Sereno
DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74 6/28/2024
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ATTACHMENT A: PROJECTED FISCAL YEARS 2025-2027 ANNUAL HHW FEE
FUNDING ALLOCATION BY JURISDICTION
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ATTACHMENT B: ESTIMATED ANNUAL HHW PROGRAM FIXED COSTS FOR FISCAL YEARS 2025, 2026, AND 2027
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ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025-2027*
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ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025-2027* (Continued) *SUBJECT TO CHANGE
2025/Month Day Date Location Type of Event County Holidays/ Notes January Wed 1 No Event No Event NEW YEAR'S
Thurs,Fri, Sat 2,3,4 San Martin Permanent
Thurs,Fri,Sat 2,3,4 San Jose Permanent
Thurs,Fri 9,10 San Jose Permanent
Saturday 11 Sunnyvale Temporary TBD
Thurs,Fri,Sat 16,17,18 San Jose Permanent
Thurs,Fri 23,24 San Jose Permanent
Saturday 25 Santa Clara Temporary TBD
Thurs,Fri 30,31 San Jose Permanent
February Sat 1 San Jose Permanent
Thurs,Fri, Sat 6,7,8 San Martin Permanent
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri,Sat 13,14,15 San Jose Permanent
Thurs,Fri,Sat 20,21,22 San Jose Permanent
Thurs,Fri 27,28 San Jose Permanent
March Sat 1 San Jose Permanent
Thurs,Fri, Sat 6,7,8 San Martin Permanent
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri,Sat 13,14,15 San Jose Permanent
Thurs,Fri,Sat 20,21,22 San Jose Permanent
Thurs,Fri,Sat 27,28,29 San Jose Permanent
April Thurs,Fri,Sat 3,4,5 San Jose Permanent
Thurs,Fri, Sat 3,4,5 San Martin Permanent
Thurs,Fri 10,11 San Jose Permanent
Saturday 12 Los Altos Temporary TBD
Thurs,Fri 17,18 San Jose Permanent
Saturday 19 Sunnyvale Temporary TBD
Thurs,Fri 24,25 San Jose Permanent
Saturday 26 Santa Clara Temporary TBD
May Thurs,Fri,Sat 1,2,3 San Jose Permanent
Thurs,Fri, Sat 1,2,3 San Martin Permanent
Thurs,Fri,Sat 8,9,10 San Jose Permanent
Thurs,Fri,Sat 15,16,17 San Jose Permanent
Thurs,Fri 22,23 San Jose Permanent
Saturday 24 No Event No Event MEMORIAL DAY WEEKEND
Thurs,Fri,Sat 29,30,31 San Jose Permanent
June Thurs,Fri, Sat 5,6,7 San Martin Permanent
Thurs,Fri,Sat 5,6,7 San Jose Permanent
Thurs,Fri 12,13 San Jose Permanent
Saturday 14 Milpitas Temporary TBD
Thurs, Fri,Sat 19,20,21 San Jose Permanent
Thurs,Fri,Sat 26,27,28 San Jose Permanent
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ATTACHMENT D:
COUNTY HOUSEHOLD HAZARDOUS WASTE
EMERGENCY COLLECTION PLAN
1. PURPOSE
The purpose of the Household Hazardous Waste Emergency Collection Plan is to minimize potential public health and safety impacts, as well as to minimize costs and confusion during an emergency or disaster. This Attachment describes the services the County can provide and the responsibilities of each party for the collection of household hazardous wastes (HHW) in response to an emergency as defined by the local jurisdiction.
Jurisdictions should contact local emergency agencies, the Governor's Office of Emergency Services (OES), and California Department of Toxic Substances Control (DTSC) for more specific information on hazardous materials emergency response.
2. Timing of HHW
While it is important to have special collection opportunities for disaster-related HHW as soon as possible to avoid illegal disposal or harm to people and/or the environment, having an event or service too soon after a disaster may result in low participation. Sufficient public notification, assessment and monitoring of the disaster and cleanup process by the designated City HHW Coordinator(s) is essential.
3. Public Information/Notification:
Cities should be prepared to provide the public with information related to the problems associated with HHW along with information about special collection events and services. Upon the decision to hold an emergency collection event, it is the City’s responsibility to prepare and deliver the necessary public outreach to notify the public of an upcoming event. A City’s public outreach program should evaluate all forms of media including: newspaper ads, posters, flyers, press releases, banners, door-to-door notices, roadside signs, signs on dumpsters, radio public service announcements, social media outlets and television public access stations. Be aware of communities where multiple language outreach efforts will be necessary.
4. State HHW Collection Permits
DTSC is responsible for issuing the necessary state permits for HHW collection facilities. During an emergency, the County will obtain the necessary emergency permit for special collection of household hazardous waste from DTSC through their expedited approval process.
5. Collection Events
Temporary collection events can be set-up at various sites including parking lots, city maintenance yards, within neighborhoods needing service, and at landfills or a centralized DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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location to service larger segments of the population. Waste collected will be transported with a transportation vehicle provided by the HHW Program. In addition, events can be scheduled at the two existing Countywide Household Hazardous Waste Collection Facilities (CoHHWCF).
The following options are available to each participating City.
• Neighborhood Drop-off Events: The County is able to provide localized service to specific areas in need of household hazardous waste collection services. The County will work with City Solid Waste Coordinators to conduct coordinated efforts to residents in the affected area. After a specific event, waste will be transported by County staff or a hazardous waste contractor to an appropriate facility.
• Mobile HHW Event: The County conducts Household Hazardous Waste Collection Event (Events) at various sites located in Santa Clara County throughout the year. Events will be expanded to give priority to disaster victims when requested by the City. The County shall obtain all necessary permits and licenses required for the events and shall provide and/or contract for the services of properly trained personnel and hazardous waste haulers. The County shall also provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at events.
• CoHHWCF: The County operates two permitted HHW collection facilities for the collection and storage of HHW. The County shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected at the CoHHWCF.
The CoHHWCF are located at:
San Martin, 13055 Murphy Ave, San Martin, CA 95046
San Jose, 1608 Las Plumas, San Jose, CA 95133
6. Costs, Documentation, and Reimbursements
Cities will be billed on a cost recovery basis. Costs of emergency events will be tracked and billed separately. Emergency funding applications pending from the State or Federal government for reimbursements in no way relieves the City of responsibility to make timely payment to the County in accordance with the terms of the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.
The County agrees to provide the City with a detailed accounting of services provided for an emergency collection. Documentation will track the time and materials of staff, outside contractor expenses, and quantities and types of waste collected to demonstrate that the wastes were generated above and beyond existing collection programs.
Services to businesses will be provided on a cost recovery basis and according to Section 12 of the
AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM, which includes program administration, on-site collection, transportation, and disposal costs. The County will assume responsibility for collecting fees from participating businesses.
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7. State and Federal Assistance and Funds
It is the City’s responsibility to pursue reimbursement from State or Federal agencies.
California Governor’s Office of Emergency Services (Cal OES)
Cal OES is responsible for requesting assistance on behalf of local jurisdictions for resources beyond the capability of the jurisdiction. State assistance may include assistance available from State, Federal, or private sources. If a local jurisdiction is declared a state disaster area, and the local jurisdiction deems that the needs of the disaster response are beyond its capabilities, then the local jurisdiction can request assistance and reimbursement of costs from Cal OES.
Follow Standardized Emergency Management System (SEMS)
All requests and emergency responses must be in accordance with the SEMS. DTSC may have funding available for hazardous waste response and collection.
Federal Assistance
If a state disaster area is declared a federal disaster, then federal funding assistance may be available through the Cal OES. Funding and assistance may be available from Federal agencies such as FEMA and the USEPA.
Damage estimates: The city should provide to the Cal OES estimates of damages and a "scope of work requested." It is recommended that the local HHW coordinator meet ahead of time with local emergency agencies or Cal OES contacts regarding the proper procedures and wording of requests for assistance.
Funding Process: The funding process may vary depending on the unique circumstances of the disaster. The process can either be the traditional FEMA reimbursement process, or by direct assistance from USEPA.
REFERENCES
California Integrated Waste Management Board, Integrated Waste Management Disaster Plan:
Guidance for local government on disaster debris management, January 1997.
Emergency Planning Contacts and Personnel
Primary County Contact: County of Santa Clara
Consumer and Environmental Protection Agency
Household Hazardous Waste Program
ATTN: Hazardous Materials Program Manager
(408)-918-1967
For Non-Emergency after-hours, contact County Communications at: (408) 977-3220 DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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Responsibility: Coordinate and establish proper collection and disposal methods for household hazardous waste. Assess the need for HHW and VSQG services in consultation with the City and other operations.
Cal OES Public Safety Communications Main Office
601 Sequoia Pacific Boulevard
Sacramento, CA 95811
(916) 894-5209
Cal OES
3650 Schriever Avenue
Mather, CA 95655-4203
(916) 845-8510
CHEMTREC Emergency number, (800) 424-9300
Non‑emergency (800) 262-8200
Chemtrec is a public service established by the Chemical Manufacturers Association. The Center was developed as a resource for obtaining immediate emergency response information to mitigate accidental chemical releases, and as a means for emergency responders to obtain technical assistance from chemical industry product safety specialists, emergency response coordinators, toxicologists, physicians, and other industry experts to safely mitigate incidents involving chemicals.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
ATTACHMENT E
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EXHIBIT E
INSURANCE REQUIREMENTS FOR
ENVIRONMENTAL SERVICES
CONTRACTS
(Hazardous Waste Disposal, Remediation Services, Environmental Consulting, etc.) Indemnity
The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara (hereinafter "County"), its officers, agents and employees from any third party claim, liability, loss, injury or damage to the extent arising out of, or in connection with, performance of this AGREEMENT by Contractor and/or its agents or employees, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this AGREEMENT to provide the broadest possible coverage for the County. The Contractor shall reimburse the County for all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which the Contractor contests its obligation to indemnify, defend and/or hold harmless the County under this AGREEMENT and does not prevail in that contest.
Insurance
Without limiting the Contractor's indemnification of the County, the Contractor shall provide and maintain at its own expense, during the term of this AGREEMENT, or as may be further required herein, the following insurance coverages and provisions:
A. Evidence of Coverage
Prior to commencement of this AGREEMENT, the Contractor shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained. Individual endorsements executed by the insurance carrier shall accompany the certificate.
This verification of coverage shall be sent to the requesting County department, unless otherwise directed. The Contractor shall not receive a Notice to Proceed with the work under the AGREEMENT until it has obtained all insurance required and such insurance has been approved by the County. This approval of insurance shall neither relieve nor decrease the liability of the Contractor.
B. Qualifying Insurers
All coverages, except surety, shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by the County's Insurance Manager.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
ATTACHMENT E
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Exhibit E (Continued)
C. Notice of Cancellation
Should any of the requested policies be cancelled before the expiration date, notice will be provided in accordance with policy provisions.
D. Insurance Required
1. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence - $1,000,000
b. General aggregate - $2,000,000
c. Products/Completed Operations aggregate - $2,000,000 d. Personal Injury - $1,000,000
2. General liability coverage shall include:
a. Premises and Operations
b. Products/Completed
c. Personal Injury liability
d. Severability of interest
3. General liability coverage shall include the following endorsement, a copy of which shall be provided to the County:
Additional Insured Endorsement, (Commercial General Liability Additional Insured provided pursuant to Additional Insured Endorsement #1), which shall read:
“County of Santa Clara, and members of the Board of
Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara,
individually and collectively, as additional insureds provided pursuant to Additional Insured Endorsement Form #1.”
Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
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Exhibit E (Continued)
under this policy. Public Entities may also be added to the Additional Insured Endorsement Form #1 as applicable by way of insurance addendum, and the contractor shall be notified by the contracting department of these requirements.
4. Automobile Liability Insurance
For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles. Coverage shall include Environmental Impairment Liability Endorsement MCS90 for contracts requiring the transportation of hazardous materials/wastes.
5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all-states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.
6. Contractors Pollution Liability Insurance
Coverage shall provide a minimum of not less than five million dollars ($5,000,000) per occurrence and aggregate for bodily injury, personal injury, property damage and cleanup costs both on and offsite.
7. Professional Errors and Omissions Liability Insurance (required for contractors providing professional services, such as through a professional engineer, registered geologist, etc.)
a. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim/aggregate.
b. If coverage contains a deductible or self-retention, it shall be reviewed and approved by the County’s Insurance Manager prior to contract execution.
c. Coverage as required herein shall be maintained for a minimum of two years following termination or completion of this AGREEMENT.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 26 of 27
Exhibit E (Continued)
8. Claims Made Coverage
If coverage is written on a claims made basis, the Certificate of Insurance shall clearly state so. In addition to coverage requirements above, such policy shall provide that:
a. Policy retroactive date coincides with or precedes the Consultant's start of work (including subsequent policies purchased as renewals or replacements).
b. Policy allows for reporting of circumstances or incidents that might give rise to future claims. If coverage terminated Run-Off (Tail) coverage will be purchased for three (3) years following termination.
E. Special Provisions
The following provisions shall apply to this AGREEMENT:
1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this AGREEMENT, including but not limited to the provisions concerning indemnification.
2. The County acknowledges that some insurance requirements contained in this AGREEMENT may be fulfilled by self-insurance on the part of the Contractor. However, this shall not in any way limit liabilities assumed by the Contractor under this AGREEMENT. Any self-insurance shall be approved in writing by the County upon satisfactory evidence of financial capacity. Contractors obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance programs or self-insurance retentions.
3. Should any of the work under this AGREEMENT be sublet, the Contractor shall require each of its subcontractors of any tier to carry the aforementioned coverages.
4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 27 of 27
Exhibit E (Continued)
F. Fidelity Bonds (Required only if contractor will be receiving advanced funds or payments)
Before receiving compensation under this AGREEMENT, Contractor will furnish County with evidence that all officials, employees, and agents handling or having access to funds received or disbursed under this AGREEMENT, or authorized to sign or countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of AT LEAST fifteen percent (15%) of the maximum financial obligation of the County cited herein. If such bond is canceled or reduced, Contractor will notify County immediately, and County may withhold further payment to Contractor until proper coverage has been obtained. Failure to give such notice may be cause for termination of this AGREEMENT, at the option of County.
DocuSign Envelope ID: F23DBD13-5EF4-4CA8-9912-0EE9F60480E2 DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74
First Amendment to Agreement for Countywide Page 1 of 4 Household Hazardous Waste Collection Program
FIRST AMENDMENT TO THE AGREEMENT FOR COUNTYWIDE HOUSEHOLD
HAZARDOUS WASTE COLLECTION PROGRAM
The Agreement for Countywide Household Hazardous Waste Collection Program (AGREEMENT) by and between the City of Monte Sereno (CITY) and the County of Santa Clara (COUNTY) previously entered into on June 28, 2024, is hereby amended as set forth below.
The COUNTY and the CITY agree that:
1. Section 16. ADDITIONAL SERVICES UNDER THIS AGREEMENT is amended in full to read:
16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level.
Additional services shall be made available upon written agreement between the CITY’s authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments (charged at the Variable Cost Per Car rate), door-to-door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.
CITY agrees to augment up to an additional $17,334 to the Countywide HHW Program during Fiscal Year 2025 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
CITY agrees to augment up to an additional $___________ to the Countywide HHW Program during Fiscal Year 2026 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C-1, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate.
Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding
First Amendment to Agreement for Countywide Page 2 of 4 Household Hazardous Waste Collection Program
portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
CITY agrees to make an interim payment to COUNTY amounting to 50 percent of the augmentation amount stated above for each fiscal year.
This interim payment shall be made no later than September 30th of each fiscal year. The remaining balance of any outstanding cost shall be reconciled and paid or refunded in accordance with the terms outlined in the annual cost statement.
At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt of the annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery of the annual cost statement.
2. Section 17. INFORMATION AND APPOINTMENT LINE is amended in full to read:
17. INFORMATION AND APPOINTMENT LINE
COUNTY will operate a telephone information and appointment desk Monday through Friday, from the hours of 8:30 a.m. to 4:30 p.m, except for COUNTY-recognized holidays The information service will register residents for the Temporary HHW Events and the collections at CoHHWCF. The information service will provide information about hazardous household materials. CITY will be notified immediately if resident participation approaches a level of service that may not be supported by available funding.
3. Attachment C-1 “HHW Schedule Of Collection Events for Fiscal Year 2025/2026” attached hereto and incorporated herein by this reference is hereby added to the AGREEMENT.
Except as provided herein, all terms and conditions of the AGREEMENT shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY, through their duly authorized representatives, have entered into this First Amendment to the AGREEMENT on the last date shown below:
First Amendment to Agreement for Countywide Page 3 of 4 Household Hazardous Waste Collection Program
COUNTY OF SANTA CLARA CITY OF MONTE SERENO
Signature: Signature:
James R. Williams Name:_____________________
County Executive Title:
Date: Date:
APPROVED AS TO FORM AND LEGALITY
Willie Nguyen
Deputy County Counsel
Date:
First Amendment to Agreement for Countywide Page 4 of 4 Household Hazardous Waste Collection Program
ATTACHMENT C-1: HHW SCHEDULE OF COLLECTION EVENTS FOR
FISCAL YEAR 2025/2026*
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Diana Perkins, City Planner/Interim City Manager Department: Interim City Manager
Title: Award of a Contract to Radius Earthwork, Inc. for the Fiscal Year 2024-25 Pavement Improvement Project in Total Amount Not to Exceed $398,507 and Determining Project Exempt from CEQA Pursuant to CEQA Guidelines Section 15301
Recommendation(s):
Staff recommends the City Council:
1. Adopt a resolution accepting the lowest responsive and responsible bid for the Fiscal Year 2024-2025 Pavement Management Program and determining project exempt from CEQA; and
2. Authorize the Interim City Manager to award the construction contract for the Base Bid and Alterative A in the amount of $398,506.38 to the lowest responsive and responsible bidder after receipt of the required contract documents, execute contract documents, and approve potential contract changes in aggregate amount not exceeding an additional 10% of the contract award amount.
Background Information:
The FY 24/25 Annual Pavement Improvement Project was prepared consistent with City policy and practice including:
1. City policy adopted in 2022 established a target expenditure of $310,000 each year, adjusted for inflation, for the upkeep of City roadways.
2. Potential street improvements were identified from the 2022 Pavement Assessment Report. Initially, streets with the lowest pavement condition index (PCI) were selected as candidates.
3. Candidate streets were then evaluated for inclusion in the FY 24/25 pavement improvement project based upon actual current condition, traffic volumes, and the potential for continued deterioration.
4. City Council adopted Resolution No.24-3907 on June 4, 2024 to adopt a list of projects for fiscal year 2024-25 funded by SB-1: The Road Repair and Accountability Act of 2017.
5. The three segments that were approved through Resolution No.24-3907 are:
a. Twin Creeks Road from Aquinas Creek Bridge to Tamson Court b. Twin Creeks Road from Tamson Court to Via Caballero
c. West Ellenwood Avenue from Ellenwood Avenue to the end
6. Existing conditions on Daves Avenue along the “S” curve has been discussed by City Council and the community on several occasions. Staff evaluated pavement conditions that could improve the existing conditions along the “S” curve and determined improvements.
7. A report and presentation of the proposed improvements including the proposed improvements on Daves Avenue along the “S” curve were presented to Better Streets Commission (BSC) on March 13, 2025. BSC supported the project plans, planned improvements, and staff recommendations.
8. Daves Avenue “S” curve improvements were therefore included as Add Alternative in this year’s pavement improvement project.
9. $389,113 in revenues to support street maintenance was included in the 2024-2025 City budget and approved by the City Council on June 18, 2024.
10.Final plans and bid-contract documents were prepared at the start of 2025 and were advertised on April 4, 2025, and bids opened on April 28, 2025.
The FY 24-25 Annual Pavement Improvement Project consists of various forms of pavement maintenance applications on several public streets (See Table 1). Depending upon the existing condition of the street and any special circumstances, the project includes grinding existing pavement, construction of concrete curb and gutter, construction of asphalt pavement, adjusting utility boxes, and manholes, installing monument boxes, traffic control and installation of pavement markings and striping.
To provide flexibility in dealing with funding constraints, the bid schedule was divided into a base bid and one bid alternate. For award, the determination of lowest bid is based upon the Base Bid alone. Council may award the Base Bid only or may award the Total Base Bid plus Bid Alternates. The Engineer’s estimate is:
Table 1. List of Streets for FY 24-25 PMP
STREET ENGINEERS ESTIMATE PCI
BASE PROJECT
Twin Creeks Road $175,067 56 – 61
West Ellenwood Ave $97,933 30
TOTAL BASE PROJECT: $273,000
ADD ALT - A
Daves Ave – “S” Curve $110,000 N/A
TOTAL BASE PROJECT + ADD
ALT - A $382,700
The construction bid documents require that the time for construction completion is 14 calendar days following approval of the contract agreement and the date specified in the City’s Notice to Proceed for the Base Bid and an additional eight calendar days if the additive alternate bid item is included.
Analysis:
City staff invited sealed bidding in accordance with requirements under the California Uniform Public Construction Cost Accounting Act (CUPCCAA). On April 4, 2025, staff advertised the project in the Los Gatos Weekly Times. Notice of Inviting bids was also sent directly to 17 potential bidders and to three builders exchanges with a bid opening date of April 28, 2025.
The City received two sealed bids at the scheduled bid opening on April 28, 2025 – 10:00 AM.
A summary of the base bid results is shown below:
Table 2. Base Bid Summary
Rank Bidder Bid Amount
1 Radius Earthwork, Inc. $ 291,265.23
2 Sposeto Engineering Inc. $ 309,490.00
Staff checked the accuracy of all bids and determined that the lowest responsive and responsible Base Bid was submitted by Radius Earthwork, Inc. in an amount of $291,265.23.
The Base Bid provides reconstruction of Twin Creeks Road from Aquinas Creek Bridge to Tamson Ct., Twin Creeks Road from Tamson Cr. to Via Caballero, and West Ellenwood Avenue from Ellenwood Avenue to the end. The improvements include slurry seal, dig outs, thermoplastic striping, replacement of fire hydrant markers, adjusting utility valves and manholes in the streets, and other work outlined in the bid documents.
Added Alternative A was designed for Daves Avenue “S” curve to address concerns about the safety of pedestrians, cyclists, and drivers along this segment. While funding is limited and the project does not include resurfacing the street in its entirety, the project does aim to refresh existing striping that has faded, correct signage that is not per California Manual on Uniform Traffic Control Devises (MUTCD), and add new delineators at existing speed humps to prevent drivers from driving around the speed humps. By installing the high visibility signage and striping along the “S” curve, user of the road will have correct warning of upcoming humps and will need to reduce speed, be able to better see the lanes with reflective striping and signage, and be required to stay in their designated lane. The result of the Added Alternative is as follows:
Table 3. Added Alternate Bid Summary
Rank Bidder Bid Amount
1 Radius Earthwork, Inc. $ 107,241.15
2 Sposeto Engineering Inc. $ 85,222.00
While the lowest added alternative bidder is Sposeto Engineering Inc., project bid documents and advertisement states that the lowest bidder will be awarded on Base Bid Amount and not a combined based bid and added alternative. Therefore, staff recommends the City Council
accept the Radius Earthwork, Inc. Base Bid and its Added Alternate A bid and authorize the City Manager to award the construction contract to Radius Earthwork, Inc., execute the contract after receipt of the required contract documents, and approve potential contract changes in an aggregate amount not exceeding 10% of the contract award amount.
California Environmental Quality Act:
Based on the scope of work, staff have determined that this project is categorically exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15301 for repair and maintenance of existing streets, sidewalks, gutters, and similar facilities, as the project involves negligible or no expansion of existing or former use, and none of the exceptions to the use of a categorical exception as set forth in CEQA Guidelines section 15300.2 apply to this project.
Fiscal Impact:
The City Council approved budget for Fiscal Year 2024-2025 includes the following revenues which are to support street and pavement improvement projects:
State Gas Tax: $191,547
Santa Clara County Measure B Tax: $112,566
Road Impact Fees: $85,000
Total: $389,113
The recommended construction contract award for the Base Bid is $291,265.23. If Added Alternate A in the amount of $107,241.15, is also awarded, the total project contract amount would be $398,506.38. Adding a 10% contingency of $39,851 increases the total cost to $438,357. Which would require up to $49,244 from the General Fund (a minimum of $9,393 would be required to be allocated from the General Fund if no contingency is used).
Thus, in order to fund the recommended work, Council would need to approve an additional expenditure of up to $49,244 from reserves for this year’s Budget (a minimum of $9,393 would be required to be allocated from the General Fund if no contingency is used).
Staff recommends funding the remainder of this project with General Fund reserves.
Alternatives:
Alternate actions the Council may wish to consider include:
1. Awarding a construction contract for the Base Bid only in the amount $291,265.23 and approve a construction contingency not exceeding 10% of the contract award amount, for a total of $320,392, not requiring any funds from reserves.
2. Awarding a construction contract for the Base Bid and Added Alternate A in the amount $398,506.38 and a construction contingency not exceeding 10% of the contract
award amount, for a total of $438,357; requiring up to $49,244 from reserves. (Staff Recommendation)
3. Rejecting all bids and rebid the project.
Public Noticing:
The City Council’s agenda was posted at City Hall and the agenda and this report appear on the City’s website.
Attachments:
1. Draft Resolution FY 24-25 PMP Award
RESOLUTION NO. ________
A RESOLUTION OF THE MONTE SERENO CITY COUNCIL AUTHORIZING THE
INTERIM CITY MANAGER TO AWARD THE CONSTRUCTION CONTRACT TO THE LOWEST RESPONSIBLE BIDDER, RADIUS EARTHWORK, INC. FOR THE 2025
PAVEMENT IMPROVEMENT PROJECT AND DETERMINING THE PROJECT EXEMPT FROM CEQA PURSUANT TO CEQA GUIDELINES SECTION 15301 WHEREAS, consistent with the Public Contract Code, an invitation for bids for the 2025 Pavement Improvement Project (the “Project”) was posted and published on April 4, 2025; and
WHEREAS, the City received two sealed bids for the Project and staff reviewed the base bids and determined that the lowest responsible bid was submitted by Radius Earthwork, Inc. of Campbell, California, in the total amount of $291,265.23; and WHEREAS, staff recommends proceeding with the bid and authorizing the Interim City Manager a construction contingency of up to ten percent; and WHEREAS, the plans and specifications for the Project were approved by the consulting City Engineer; and
WHEREAS, the staff recommends the City Council accept the bids received and authorize the Interim City Manager to award the construction contract to the lowest responsible bidder for the Base Bid and Alterative A in the amount of $389,506.38 and further authorizes the Interim City Manager to execute its related contract documents and including a construction contingency not exceeding 10% of the contract award amount. and directs the Finance Director to make appropriations of an additional $49,244 from General Fund (01-015).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Monte Sereno as follows:
1. The above recitals are true and correct and material to this Resolution. In making its findings, the City Council relied upon and hereby incorporates by reference all of the bid materials, correspondence, staff reports, and all other related materials.
2. The City Council determines that the Project is categorically exempt from CEQA pursuant to CEQA Guidelines Sections 15301 and that none of the exceptions in CEQA Guidelines Section 15300.2 apply, as this project consists of repair of existing public streets, with negligible or no expansion of existing use.
3. The plans and specifications for the Project on file with the City Clerk, are hereby approved and adopted.
4. In accordance with California Public Contract Code Section and any other applicable laws, the City Council of the City of Monte Sereno hereby finds the base bid of $291,265.23 for the Project to be the lowest, responsive bid and waives any irregularities in such bid in accordance with applicable law.
5. The Interim City Manager is hereby authorized and directed to execute the contract with Radius Earthwork, Inc. in substantially similar form to Exhibit A, which is attached hereto and incorporated by this reference, for the sum of $398,506.38 for construction of the Project, which includes work described as Alternative A, in accordance with the bid documents and applicable law upon submission by Radius Earthwork, Inc. of all bonds and related documents required pursuant to the Project bid documents.
6. The Interim City Manager is hereby authorized to execute change orders in an amount not to exceed 10 % of the base bid, or $39,851.
7. City staff is hereby directed to issue a Notice of Award to Radius Earthwork, Inc. for this project.
REGULARLY ADOPTED AND PASSED this 6th day of May, 2025 at a regular meeting of the City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
________________________________
Burton Craig, Mayor
ATTEST:
__________________________________________
Gloisy Gonzalez-Langarica, City Clerk
AGREEMENT FOR PUBLIC IMPROVEMENTS
2025 ANNUAL PAVEMENT IMPROVEMENT PROJECT
THIS AGREEMENT is made and entered into this 6th day of May 2025, between the City of Monte Sereno, a municipal corporation and political subdivision of the State of California, ("City") and Radius Earthwork, Inc., a California Corporation, ("Contractor").1 This Agreement is made under the following circumstances:
RECITALS
City has taken appropriate proceedings to authorize (i) the construction of the public work and improvements as described in the Contract Documents (as hereinafter defined) and (ii) the execution of this Agreement. The public improvements described in the Contract Documents are hereinafter referred to as “Public Improvements.” The Public Improvements, together with the labor, equipment, supplies, materials, and other items or services required to produce the Public Improvements, are hereinafter referred to as the “Public Work.” A notice was duly published for bids to construct the Public Improvements.
On May 6, 2025, the City Council of City awarded to Contractor the contract for the construction of the Public Improvements.
City and Contractor desire to enter into this Agreement for the construction of the Public Improvements.
NOW, THEREFORE, the parties agree as follows:
1 The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include whenever the context shall permit all agents, representatives, employees, servants, subcontractors, and business or social invitees.
1. The Contract Documents
a. The complete contract consists of the following documents, all of which together are the “Contract Documents”: (i) the bound “Contract Documents and Specifications” for the project identified on page 1 of this Agreement (including, but not necessarily limited to, Notice to Bidders; Proposal; Bid Security Form; Bidder’s Bond; Statement of Experience and Qualifications; List of Subcontractors; Non-Collusion Declaration; Agreement for Public Improvements [sometimes referred to as “this Agreement” or “the Agreement”] and any documents, such as Certificates of Insurance, required by this Agreement; Faithful Performance Bond; Payment [Labor and Materials] Bond; Special Provisions; Technical Specifications; and the Appendix-Standard Details for Public Construction), (ii) the accepted bid (i.e., the accepted Proposal), (iii) the complete plans, (iv) the Standard Details, and (v) all executed versions of the above-listed documents. b. All rights and obligations of City and Contractor are fully set forth and described in the Contract Documents. Contractor shall thoroughly examine and become familiar with all of the various parts of these Contract Documents and determine the nature and location of the Public Work, the general and local conditions, and all other matters which can in any way affect the Public Work. Failure to make an examination necessary for this determination shall not release Contractor from the obligations of the Contract Documents. No oral agreement or conversation with any officer, agent, or employee of City or with City’s City Engineer either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations herein contained.
c. All of the Contract Documents are intended to be complementary, so that any work called for in one and not mentioned in the other, or vice versa, is to be executed as if mentioned in all of the Contract Documents. In the event of any inconsistency between any provisions of the Contract Documents, the City Engineer shall determine which provision prevails. d. When the Contract Documents describe portions of the Public Work in general terms, but not in complete detail, it is understood that the best general practice shall be followed and only materials and workmanship of the best standard quality shall be used. Any labor, materials, or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied, whether or not specifically called for. Words that have a well-known technical or trade meaning shall be interpreted in accordance with that meaning.
e. Reference to standard specifications, manuals, or codes of any technical society, organization, or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, laws, or regulations in effect on the first published date of the Notice to Bidders, except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual, or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of City or Contractor, or any of their consultants, agents, or employees from those set forth in the Contract Documents, nor shall it be effective to assign to City, or any of City’s consultants, agents, or employees, any duty or authority to supervise or direct the furnishing or performance of the Public Work or any duty or authority to undertake responsibility contrary to the other provisions of the Contract Documents.
f. Contractor shall furnish the following bonds (“Contract Bonds”):
(1) Performance bond in an amount not less than one hundred percent (100%) of the amount of the Contract Price, as defined in Section 25, to secure faithful performance of the Contract Documents and the guarantees against defective workmanship, materials, or both during the warranty period following final acceptance of the Public Improvements by City. (2) Payment bond in an amount not less than one hundred percent (100%) of the Contract Price, to secure payment of all persons supplying labor or materials for the construction of the Public Improvements.
2. Equipment; Performance of Public Work. Contractor shall furnish all tools, equipment, apparatus, facilities, services labor, and materials necessary to construct and complete the Public Improvements and perform the Public Work in a good and workmanlike manner, in strict conformity with and as required by the Contract Documents and subject to the approval of the City Engineer of City or the Engineer’s designated representative.
3. Permits and Care of the Public Work.
a. Contractor has examined the site of the Public Work and is familiar with its topography and condition, location of property lines, easements, building lines, and other physical factors, and with any limitations affecting the performance of this Agreement. b. If the Public Work involves digging trenches or other excavations that extend deeper than four feet below the surface, Contractor shall, as set forth in California Public Contract Code Section 7104, promptly and before the following conditions are disturbed, notify City in writing of any:
(1) Material that Contractor believes may be hazardous waste, as defined in Section 25117 of the California Health and Safety Code that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. (2) Subsurface or latent physical conditions at the site differing from those indicated.
(3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents.
c. City shall promptly investigate the conditions and shall issue a Change Order, pursuant to the provisions of this Agreement, if City finds that the conditions do materially so differ or do involve hazardous waste and therefore do cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the Public Work. d. In the event that a dispute arises between City and Contractor whether the conditions materially differ or involve hazardous waste or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the Public Work, Contractor shall not be excused from any scheduled completion date provided for in the Contract Documents, but shall proceed with all work to be performed under the Contract Documents. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
e. Contractor, at Contractor's expense, shall obtain any permission necessary for any operations conducted off the property that is owned or controlled by City. Contractor shall be responsible for the proper care and protection of all materials delivered and work performed until completion and final acceptance.
4. Permits; Business License Contractor shall, at Contractor's expense, obtain all necessary permits and licenses for the construction of each part of the Public Improvements, give all necessary notices, and pay all fees and taxes required by law. Contractor shall obtain and maintain in effect a business license from City until City has accepted the Public Improvements.
5. Excavation of Trenches As required by Labor Code Section 6705, in advance of excavation, Contractor shall submit to the City Engineer a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of any trench or trenches. If such plan varies from the OSHA shoring system standards, the plan shall be prepared by a registered civil or structural engineer. A shoring, sloping, or protective system that is less effective than that required by the Construction Safety Orders shall not be used. The plan submitted by Contractor shall not be implemented until accepted by the City Engineer or by a registered civil or structural engineer, employed by City, to whom authority to accept has been delegated.
6. Superintendence by Contractor.
a. Contractor shall personally supervise the Public Work or have a competent foreman or superintendent (with authority to act for Contractor), satisfactory to the City Engineer, overseeing the Public Work (including, but not limited to, enforcing good discipline) and on site at all times while the Public Work is being done. Contractor shall designate, in writing, before starting work, a project superintendent who shall be an employee of Contractor and shall have complete authority to represent and act for Contractor. Contractor shall notify the City Engineer in writing prior to any change in superintendent assignment.
b. Contractor shall be solely responsible for and have control over construction means, methods, techniques, and procedures for providing adequate safety precautions and coordinating all portions of the Public Work, unless the Contract Documents give other specific instructions concerning these matters.
7. Responsibility for Public Work and Materials. Until the acceptance of the Public Improvements, Contractor shall have the charge and care of the Public Work, including, but not limited to, the materials to be used therein, including materials for which he has received partial payment, and shall bear the risk of injury, loss, or damage to any part of the Public Work by the action of the elements or from any other cause, whether arising from the execution or from the non-execution of the Public Work. Relief from maintenance and responsibility for a portion of the total Public Work will not be granted by City, unless specifically provided for in the Special Provisions. Contractor shall rebuild, repair, or restore all injuries, losses, or damages to any portion of the Public Work occasioned by any cause before completion and acceptance of the Public Improvements and shall bear the expense thereof. Should such injuries, losses, or damages be caused by a third party, Contractor shall remain responsible and shall pursue on its own any proper response or payment by such third party for the injury, loss, or damage. Where necessary, Contractor shall, at its expense, provide suitable drainage and erect such temporary structures as
are necessary to protect the Public Work from damage. The suspension of the Public Work for any cause whatsoever shall not relieve Contractor of its responsibility for the Public Work as herein specified. Contractor shall properly store materials which have been partially paid for by City.
Such storage by Contractor shall be on behalf of City, and City shall at all times be entitled to the possession of such materials, and Contractor shall promptly return the same to the site of the Public Work when requested. Contractor shall not dispose of any of the materials so stored except on written authorization from the City Engineer.
8. Inspection by City. Contractor shall at all times maintain proper facilities and provide safe access for inspection by City to all parts of the Public Work and to the shops wherein Public Work is in preparation.
9. Inspection and Testing of Materials.
a. No mill or factory inspection and testing of materials to be supplied by Contractor under this Agreement shall be performed by City, except as may otherwise be provided in the Technical Provisions. City’s decision not to inspect or test shall not relieve Contractor of any obligation to adhere to the Contract Documents. Materials to be used in the Public Work shall be subject to on-site inspection and tests by the City Engineer or his or her designated representative.
Contractor shall furnish, without charge, such samples as may be required and shall make available locations for required in-place testing.
b. Materials and work shall be tested in accordance with the methods in use by the State of California, Department of Transportation, or by nationally recognized testing organizations or as specified in the Contract Documents. The City Engineer shall make or approve all testing.
Unless otherwise noted in the Contract Documents, testing shall be made at the expense of Contractor. In any case, in the event that any material or work fails to pass the tests, the cost of subsequent testing of similar materials and work as may be required by the City Engineer shall be borne by Contractor.
c. Whenever a specification, manual, or test designation provides for test reports (such as certified mill test reports) from the manufacturer, copies of such reports, identified as to the lot of material, shall be furnished to the Engineer. The manufacturer’s test report shall supplement the inspection, sampling, and testing provisions of this Section and shall not constitute a waiver of City’s right to inspect. When material that cannot be identified with specific test reports is proposed for use, the City Engineer may, at his or her discretion, select random samples from the lot for testing. Test specimens from the random samples, including those required for retest, shall be prepared in accordance with the referenced specification and furnished by Contractor at its expense. The number of such samples and test specimens shall be entirely at the discretion of the City Engineer.
10. Certificate of Compliance.
a. A Certificate of Compliance shall be furnished prior to the use of any materials for which the Contract Documents require that such Certificate be furnished. In addition, the City Engineer may permit the use of certain materials prior to sampling and testing if accompanied by a Certificate of Compliance stating that the materials involved comply in all respects with the
requirements of the Contract Documents. The Certificate shall be signed by the manufacturer of the material. A Certificate of Compliance shall be furnished with each lot of material delivered to the Public Work and the lots so certified shall be clearly identified in the Certificate. b. All materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The fact that material is used on the basis of a Certificate of Compliance shall not relieve Contractor of the responsibility for incorporating material into the Public Improvements that conforms to the requirements of the Contract Documents, and any such material not conforming to such requirements shall be subject to rejection whether in place or not. City reserves the right to refuse to permit the use of material on the basis of a Certificate of Compliance.
11. Changes in the Public Work.
a. City, without notice to the sureties and without invalidating any provision of the Contract Documents, may order changes in the Public Work within the general scope of the Contract Documents by altering, adding to, or deducting from the Public Work, and the Contract Price shall be adjusted accordingly, except as set forth in paragraph b of this Section. b. Conditions may arise during the prosecution of the Public Work necessitating minor variations in the provisions of the Contract Documents. In order to address these conditions, City may, without notice to the sureties and without invalidating any provision of the Contract Documents, make minor alterations, deviations, or changes to any such provision of the Contract Documents, without affecting any of the material or basic terms of the Contract Documents, including, but not limited to, the Contract Price, time for performance, as set forth in Section 13, schedule, as set forth in Section 14, and the basic design. No Change Order, as defined in paragraph c of this Section, shall be required for changes made pursuant to this paragraph b.
Contractor shall make such minor alterations, deviations, or changes in the Public Work (as called for by the minor alterations, deviations, or changes to the Contract Documents) which shall be documented in City’s inspection notes along with documentation of Contractor’s agreement thereto.
c. With the exception of minor changes not involving a significant extra cost (as described in paragraph b of this Section) and minor changes necessitated by emergency in order to protect persons, property, or the Public Work, all changes shall be performed only following the issuance of a written Contract Change Order (“Change Order”) by City. Contractor may request a Change Order, but no changes to the Public Work shall be undertaken by Contractor until the requested Change Order is executed by City.
d. In addition to stating the work to be altered, all Change Orders also shall state (1) whether the time for performance is to be adjusted and, if so, the amount of the adjustment; and (2) the basis for any adjustment in the Contract Price agreed to by both City and Contractor. The price adjustment may be on the basis of unit prices stated in Contractor’s bid, a lump sum payment, time and materials, or other basis agreed to by City and Contractor and stated in the Change Order (an “Executed Change Order”).
e. If City and Contractor are unable to agree on a basis for the price adjustment, City shall issue a Change Order stating the work to be altered and Contractor shall perform the work.
Contractor shall keep detailed records of the labor, materials, and equipment used or saved in
connection with the change and makes such records available to City. City, at its option, shall adjust the Contract Price by using unit prices stated in Contractor’s bid or the actual necessary cost of the change work, plus fifteen percent (15%) to cover overhead, superintendence, general expense, contract administration, and profit.
f. If the Contract Price is reduced by alteration of the Public Work, Contractor shall not be entitled to compensation based on loss of anticipated profit from the altered or deleted work. g. Contractor’s disagreement with City’s determination of the need for, or amount of, an adjustment in the Contract Price, in the time for performance, as set forth in Section 13, or in the schedule, as set forth in Section 14, associated with an approved Change Order, (or Contractor’s disagreement with City’s determination that a change has not occurred and no Change Order is needed) shall not, under any circumstances, relieve Contractor from its obligation promptly to begin and diligently to prosecute the Public Work, including the change, as described in the Change Order issued by City or the change made pursuant to paragraph b of Section 11.
12. Requests for Information.
a. Should it appear that the Public Work to be done or any of the matters relative thereto is not sufficiently detailed or explained in the Contract Documents, Contractor shall apply to the City Engineer for such further written explanations as may be necessary and shall conform to them as part of the Contract Documents. In the event of any doubt or question arising respecting the true meaning of the Contract Documents,
b. City may back charge Contractor for the time and expense associated with unnecessary requests for information (“RFIs”) filed by Contractor. Unnecessary RFIs are those whose answers are already included in the Contract Documents or those which have previously been answered by the City Engineer or his or her designee.
13. Time for Performance.
a. The City Engineer shall deliver to Contractor a notice to proceed (the "Notice to proceed"), specifying the time for commencement of the Public Work, and Contractor shall not begin before such time. If there is more than one location for the Public Work, a separate Notice to proceed shall be given for each location. Should Contractor begin work in advance of receiving the Notice to Proceed, any work performed by Contractor in advance of such notice shall be considered as having been done by Contractor at its own risk and as a volunteer. The Public Improvements shall be completed on or before the date specified in the Special Provisions applicable to the Public Work.
b. A working day is defined as any day (except Saturdays, Sundays, legal holidays recognized by the City of Monte Sereno and days on which the Contractor is specifically required by the specifications to suspend construction operations.
14. Schedule. All work shall be performed under the City Engineer’s direction in accordance with an appropriate schedule provided to the City Engineer by Contractor. The schedule shall be consistent with the Contract Documents, including, but not limited to, the prescribed completion date.
15. Emergency; Additional Time for Performance; Procurement of Materials. If, because of war or other declared emergency, the federal or state government restricts, regulates, or controls the procurement and allocation of labor or materials, or both, and if solely because of the restrictions, regulations, or controls, Contractor is, through no fault of Contractor, unable to prosecute the Public Work or perform this Agreement, or the Public Work is thereby suspended or delayed, any of the following steps may be taken:
a. City may, pursuant to resolution of the Council, grant Contractor additional time to prosecute the Public Work, sufficient to compensate in time, for the delay or suspension. To qualify for such extension of time, Contractor, within ten (10) days of Contractor's discovering such inability to perform, shall notify the City Engineer in writing thereof and give specific reason therefore. The City Engineer shall thereupon have sixty (60) days within which to procure such needed materials or labor as is specified in the Contract Documents, or permit substitution, or provide for changes in the Public Work in accordance with other provisions of the Contract Documents.
Substituted materials, or changes in the Public Work, or both, shall be ordered in writing by the City Engineer and the concurrence of the Council shall not be necessary. All reasonable expenses of such procurement incurred by the City Engineer shall be defrayed by Contractor; or b. If such necessary materials or labor cannot be procured through legitimate channels within sixty (60) days after Contractor files the above notice, either party may, upon thirty (30) days' written notice to the other, terminate this Agreement. In such event, Contractor shall be compensated for all of the Public Work executed, upon a "unit" or "cost-plus ten percent (10%)" basis, whichever is the lesser, Materials on the ground, in process of fabrication or en route upon the date of notice of termination specially ordered for the Public Work and which cannot be utilized by Contractor, shall be compensated for by City at cost, including freight, provided that Contractor shall take all steps possible to minimize this obligation; or c. City Council, by resolution, may suspend this Agreement until the cause of inability to perform is removed, so long as such extension does not exceed (30) days. If this Agreement is not terminated and the inability of Contractor to perform continues, without fault on Contractor's part, beyond the time during which the Agreement may have been suspended, as hereinabove provided, City Council may further suspend this Agreement, or either party hereto may, without incurring any liability, elect to declare this Agreement terminated upon the ground of impossibility of performance. In the event that City declares this Agreement terminated, the declaration shall be authorized by the City Council, by resolution, and Contractor shall be notified in writing thereof within five (5) days after the date of the resolution. In such case, Contractor shall be entitled to the portion of the Contract Price attributable to the portion of the Public Work which has been performed; or
d. City may terminate this Agreement, in which case Contractor shall be entitled to the portion of the Contract Price attributable to the portion of the Public Work which has been performed. Such termination shall be authorized by resolution of the City Council. Notice thereof shall be forthwith given in writing to Contractor, and this Agreement shall be terminated upon receipt by Contractor of such notice. In the event of such termination, none of the covenants, conditions, or provisions of this Agreement shall apply to the Public Work not performed, and City shall be liable to Contractor only for the proportionate compensation described in the prior paragraph.
16. Rights of City to Increase Working Days. If Contractor anticipates that the Public Improvements will not be completed by the time specified in Section 13 of this Agreement and no Change Order has been executed dealing with the matter, Contractor may file an application for extension of time with the City Clerk, which shall be addressed to the City Council. If the application for extension of time is filed at least thirty (30) days prior to the deadline for completion of the Public Improvements under Section 13 of this Agreement, the City Council may increase the number of working days to the number it determines will best serve the interests of City. If City does increase the number of working days, City shall have the further right to charge to Contractor, and deduct from the final payment for the Public Work, City’s actual cost of engineering, inspection, and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension.
17. Legal Work Day; Penalties for Violation.
a. As set forth in Section 1810 of the Labor Code of the State of California, eight (8) hours of labor shall constitute a legal day's work.
b. Section 1813 of the Labor Code provides that “The contractor or subcontractor shall, as a penalty to the [City], forfeit twenty-five dollars ($25) for each worker employed in the execution of [this Agreement] by [Contractor] for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of [Sections 1810 through 1817 of the Labor Code].” Section 1813 further provides that the above language shall be part of any contract for public work awarded by City.
c. Section 1815 of the Labor Code provides that “Notwithstanding the provisions of Section 1810 to 1814 inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 ½ times the basic rate of pay.”
d. Based on the above provisions of the Labor Code, the following is made a part of this Agreement: Except as allowed by Section 1815 of the Labor Code, Contractor shall not require or permit more than eight (8) hours labor in a day from any worker employed by Contractor in the performance of work. Contractor shall forfeit as a penalty to City the sum of TWENTY FIVE DOLLARS ($25.00) for each worker employed in the execution of this Agreement by Contractor or by any of its subcontractor(s) for each calendar day during which such worker is required or permitted to labor more than eight (8) hours in violation of the provisions of Section 1813 of the Labor Code, except as permitted by Section 1815 of the Labor Code.
18. Labor Nondiscrimination. Attention is directed to the following Notice that is required by Chapter 5 of Division 4 of Title 2, California Code of Regulations.
NOTICE OF REQUIREMENT FOR NONDISCRIMINATION PROGRAM
(GOV. CODE, SECTION 12990)
Your attention is called to the "Nondiscrimination Clause", set forth in Section 7-1.01A(4), "Labor Nondiscrimination," of the Standard Specifications, which is applicable to all nonexempt state contracts and subcontracts, and to the "Standard California Nondiscrimination Construction Contract Specifications" set forth therein. The Specifications are applicable to all nonexempt state construction contracts and subcontracts of $5,000 or more.
19. Prevailing Wage Rates. As required by Section 1773.2 of the Labor Code, copies of the prevailing rate of per diem wages (obtained from the Director of the Department of Industrial Relations) are on file at the City Engineer’s office and shall be made available to any interested party on request. A copy of the prevailing rate of per diem wages shall be posted at each job site.
20. Buy America Requirements. Attention is directed to the "Buy America" requirements of the Surface Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), and the regulations adopted pursuant thereto. In conformance with the law and regulations, all manufacturing processes for steel and iron materials furnished for incorporation into the work on this project shall occur in the United States; with the exception that pig iron and processed, pelletized and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for such steel and iron materials. The application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects or enhances the value of steel or iron materials shall be considered a manufacturing process subject to the "Buy America" requirements.
A Certificate of Compliance, conforming to the provisions in Section 6-1.07, "Certificates of Compliance," of the Standard Specifications, shall be furnished for steel and iron materials. The certificates, in addition to certifying that the materials comply with the specifications, shall specifically certify that all manufacturing processes for the materials occurred in the United States, except for the above exceptions.
The requirements imposed by the law and regulations do not prevent a minimal use of foreign steel and iron materials if the total combined cost of the materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. The Contractor shall furnish the Engineer acceptable documentation of the quantity and value of the foreign steel and iron prior to incorporating the materials into the work.
21. Payroll Records. Contractor and each of its subcontractors shall keep accurate payroll records as described in Section 1776 of the Labor Code and shall make such records available for inspection and furnish copies upon request as required by Section 1776. Contractor shall inform City of the location of the payroll records, including street address, city, and county, and shall advise City within five (5) working days of any change of location and address.
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26. Authority of City Engineer: The City Engineer shall decide all questions that may arise as to
a. the quality or acceptability of materials furnished and work performed, b. the manner of performance and rate of progress of the work, c. the interpretation of the Contract Documents,
d. the acceptable fulfillment of the Contract Documents on the part of Contractor, and e. Compensation and contract time.
f. The City Engineer shall have authority to reject work that does not conform to the Contract Documents.
27. Correction; Removal of Rejected Work.
a. Contractor shall promptly correct work rejected by the City Engineer as failing to conform to the requirements of the Contract Documents, whether or not fabricated, installed, or completed, so that it does comply with the Contract Documents. Contractor shall bear the costs of correcting such rejected work, including additional testing, inspections, and compensation for the City Engineer’s services and expenses made necessary thereby. b. Any work done beyond the lines shown on the drawings contained in the Contract Documents or established by the City Engineer, and all extra work done without written authority, shall be considered as volunteer or unauthorized work. Upon order of the City Engineer, unauthorized work shall be remedied, removed, or replaced at Contractor’s expense. c. If Contractor fails to promptly correct nonconforming or rejected work, or to comply promptly with any order of the City Engineer under this Section, City may cause such work to be remedied, removed, or replaced and the costs thereof to be deducted from any monies due or to become due to Contractor.
d. The City Engineer’s failure to reject nonconforming work shall not be construed as acceptance of such work.
28. City’s Right to Stop the Work. If Contractor does not promptly correct work that is not in accordance with the requirements of the Contract Documents or if Contractor persistently fails to carry out work in accordance with the Contract Documents, the City Engineer may, in writing, order Contractor to stop the work, or any portion thereof, until the cause for such order has been eliminated. Contractor shall immediately comply with a written order of the City Engineer to stop the work. The work stopped shall be resumed as and when ordered by the City Engineer.
29. Claims.
Contractor shall submit claims and follow the claims procedure as more fully set forth in the General Provisions of the Contract Documents.
30. Contract Price.
a. In full payment for the Public Work, City shall pay, and Contractor shall accept the sum of THREE HUNDRED NINETY FOUR THOUSAND THREE HUNDRED SIXTY FIVE DOLLARS ($394,365.00) (the "Contract Price"). If the Contract Price is increased or decreased pursuant to this Agreement, the increased or decreased amount shall be the Contract Price. b. The Contract Price is determined by the unit or fixed prices contained in Contractor's bid. The quantities and unit or fixed prices are set forth in the Proposal in the Contract Documents.
In the event that any work is performed or materials furnished, in compliance with Section 11, in addition to those set forth in the Contract Documents, such work and materials shall be paid for at the prices contained therein.
c. The Contract Price shall be paid in installments as hereinafter provided. d. The Contract Price includes full compensation for all taxes which Contractor is required to pay or withhold, whether imposed by Federal, State, or local government, including, but not necessarily limited to, Federal excise, sales, and use taxes and employee withholding.
31. Payments to Contractor.
a. Periodically during the progress of the Public Work, as agreed by Contractor and the City Engineer, Contractor shall submit to the City Engineer a complete itemized statement of (i) all labor and materials incorporated into the Public Improvements during the period occurring since submission of the last such statement and (ii) the portion of the Contract Price applicable thereto. Upon the City Engineer’s written approval of the statement, it shall be paid by City. City shall make payment within 30 days of receipt of application, less five percent retention, for satisfactory work performed during the period covered by the statement. b. Contractor shall accept the compensation provided in the Contract Documents as full payment for furnishing all labor, materials, tools, equipment, and incidentals necessary to the completed Public Work and for performing all work contemplated and embraced under the Contract Documents; also for loss or damage arising from the nature of the Public Work, or from the action of the elements, or from any unforeseen difficulties that may be encountered during the prosecution of the Public Work until the acceptance by the City; and for all risks of every description connected with the prosecution of the Public Work, as well as for all expense incurred in consequence of the suspension or discontinuance of the Public Work as herein specified; and for completing the Public Work according to the Contract Documents. Neither the payment of any estimate nor of any retained percentage shall relieve Contractor of any obligation to make good any defective work or materials. No compensation shall be made in any case for loss of anticipated profits.
c. City may retain out of any amount due to Contractor sums sufficient to cover claims and stop payment notices served upon City under Part 6 of the California Civil Code or any other provisions of law allowing or requiring withholding of payments to cover claims. d. City may retain out of any amount due to Contractor sums that are designated by the Contract Documents as being so retainable.
32. Subcontracting
Attention is directed to the provisions in Section 8-1.01, "Subcontracting," and Section 2, “Proposal Requirements and Conditions,” and Section 3, “Award and Execution of Contract,” of the Standard Specifications and these special provisions. Pursuant to the provisions in Section 1777.1 of the Labor Code, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a subcontractor on a public works project. This list of debarred contractors is available from the Department of Industrial Relations web site at http://www.dir.ca.gov/dir/Labor_law/DLSE/Debar.html.
The provisions in the third paragraph of Section 8-1.01, "Subcontracting," of the Standard Specifications, that the Contractor shall perform with the Contractor's own organization contract work amounting to not less than 50 percent of the original contract price, is not changed by the Federal Aid requirement specified under "Required Contract Provisions Federal-Aid Construction Contracts" in Section 14 of these special provisions that the Contractor perform not less than 30 percent of the original contract work with the Contractor's own organization.
Each subcontract and any lower tier subcontract that may in turn be made shall include the "Required Contract Provisions Federal-Aid Construction Contracts" in Section 14 of these special provisions.
This requirement shall be enforced as follows:
a. Noncompliance shall be corrected. Payment for subcontracted work involved will be withheld from progress payments due, or to become due, until correction is made. Failure to comply may result in termination of the contract.
33. Prompt Progress Payment to Subcontractors
A prime contractor or subcontractor shall pay any subcontractor not later than 10 days of receipt of each progress payment in accordance with the provision in Section 7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 10 days is applicable unless a longer period is agreed to in writing. Any delay or postponement of payment over 30 days may take place only for good cause and with the agency’s prior written approval.
Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanction and other remedies of that section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.
34. Payment Requests and Retention – Prompt Payment of Funds Withheld to Subcontractors a. All payment applications shall be accompanied by the appropriate waiver and release form as set forth in Civil Code sections 8132, 8134, 8136, or 8138. The City shall hold five percent (5%) retainage of the Contract Price from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency, of the contract work, and pay retainage to the prime contractor based on these acceptances. The prime contractor, or subcontractor, shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the City. Federal law (49CFR26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with
the agency’s prior written approval. Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. In the event that City specifically allows Contractor to except any claims from the operations of the release, there shall be retained by City stated amounts to be set forth therein and approved by the City Engineer. If any claims are filed against the Public Work, City shall withhold final payment until the validity of such claims shall have been properly determined. In this regard City is hereby empowered to pay directly to claimant the full amount of any valid claims. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. b. Pursuant to Section 22300 of the California Public Contract Code and to the extent permitted by Section 22300, securities may be substituted for any monies withheld by a public agency to ensure performance under a contract. Any monies for which securities have been substituted shall be paid to Contractor. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with a financial institution approved by City’s Director of Finance or with a state or federally chartered bank in California as the escrow agent.
The escrow agent shall release such securities to Contractor following the expiration of thirty (30) days from the date of filing of a Notice of Completion by City, unless the securities are to be withheld by City to correct defective work or otherwise complete the Contract Documents or are subject to withholding by City to satisfy stop work notices or other claims and costs associated therewith.
c. Alternatively, Contractor may request and City shall make payment of retentions earned directly to the escrow agent at the expense of Contractor. At the expense of Contractor, Contractor may direct the investment of the payments into securities and Contractor shall receive the interest earned on the investments upon the same terms provided for in Section 22300 for securities deposited by Contractor. The escrow agent shall release such securities (together with any interest and payments received by the escrow agent from City) to Contractor following the expiration of thirty (30) days from the date of filing of a Notice of Completion by City, unless the securities (including any payments received by the escrow agent from City and not yet invested into securities) are to be withheld by City to correct defective work or otherwise complete the Contract Documents or are subject to withholding by City to satisfy stop work notices or other claims and costs associated therewith.
d. Securities eligible for investment under this Section shall be those listed in California Government Code Section 16430, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, and any other security mutually agreed to by Contractor and City.
e. In the event that securities are used pursuant to this Section, City and Contractor shall execute an escrow agreement substantially similar to the Escrow Agreement For Security Deposits in Lieu of Retention set forth in Section 22300.
f. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.
g. In the event of any amendment to Section 22300 of the California Public Contract Code, the provisions of this Section shall be deemed to include such amended language.
35. Final Payment.
a. Contractor shall notify the City Engineer in writing when it considers the Public Improvements complete and shall request a final inspection, which the City Engineer shall make. b. Obtain, complete, and submit the “Final Report Utilization of Disadvantaged Businesses Form” (Exhibit 17-F of the Caltrans’ Local Assistant Procedural Manual). c. After the City Engineer has made the final inspection and determined that the Public Improvements have been completed in all respects in accordance with the Contract Documents, Contractor shall prepare and submit a final Change Order, if any, and a proposed final invoice in writing, prepared in a form acceptable to the City Engineer. The final Change Order shall document any changes in the Public Work not covered by previous Change Orders and shall comply with the applicable provisions of Section 11. The proposed final invoice shall show the proposed total amount of compensation payable to Contractor, including an itemization of that amount segregated as to contracted-for item quantities, extra work, and other bases for payment.
The proposed final invoice shall also show all deductions made or to be made for prior payments and amounts to be kept or retained under the Contract Documents. d. After receipt of an acceptable final Change Order and an acceptable final invoice, the City Engineer shall recommend to the City Council that the Public Improvements be accepted by City. (Any use by City of any part of the Public Improvements prior to formal acceptance by City shall not constitute acceptance by City and shall not relieve Contractor from full responsibility for correcting defective work or materials.) Immediately upon and after such formal written acceptance by City, Contractor shall be relieved of the duty of maintaining the Public Work as a whole, and Contractor shall not be required to perform any further work thereon except as provided concerning guarantees of work and correction of work during warranty period. e. Contractor’s acceptance of final payment shall constitute a waiver and release of all claims by Contractor against City related to the Public Work, except for claims previously made in writing and verified as unsettled by Contractor at the time of submission of the final invoice and not subsequently settled prior to final payment. (This release shall be interpreted as meaning a release that is permitted under Section 7100 of the California Public Contract Code.) The making of final payment, however, shall not operate to release Contractor or its sureties from obligations arising under the Contract Documents. Specifically, the making of final payment shall not constitute a waiver and release of claims by City arising from (a) unsettled or future liens, (b) failure of the Public Work to comply with the Contract Documents, (c) the terms of any warranties required by or contained in the Contract Documents, (d) the right to any insurance proceeds or the right to make any insurance or bond claims, (e) any claims with respect to Contractor’s obligation of indemnity provided for in the Contract Documents, or (f) any latent defect or fraud.
36. Option of City to Terminate Agreement in Event of Failure to Complete Public Improvements.
a. If (a) Contractor refuses or fails to prosecute the Public Work, or any severable part thereof, with such diligence as will insure completion of the Public Improvements within the time specified, or any extensions thereof, (b) Contractor fails to complete the Public Improvements within the time specified by Section 13 or Section 16, as applicable, of this Agreement, (c) Contractor is adjudged a bankrupt, makes a general assignment for the benefit of Contractor's creditors, (or if a receiver is appointed in the event of Contractor's insolvency), or (d) if Contractor, or any subcontractor, violates any of the provisions of the Contract Documents, the City Engineer or the City Council may give written notice to Contractor and to Contractor's sureties of City’s intention to terminate this Agreement. The notice shall contain the reasons for the intention to terminate this Agreement. Unless, within five (5) days after delivery of the notice, the violation ceases or satisfactory arrangements for its correction are made, City may terminate this Agreement. b. Upon termination of this Agreement, Contractor shall, unless otherwise instructed in writing by the City Engineer, do the following:
(1) Stop all work under the Contract Documents;
(2) Remove equipment from the work site(s), as directed by the City Engineer; (3) Take such action as is necessary to protect the Public Work from damage; (4) Notify all subcontractors and suppliers that this Agreement is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the City Engineer;
(5) Provide the City Engineer with an inventory of all materials previously produced, purchased, or ordered from suppliers for use in the Public Work and not yet so used, including the storage locations and such other information as the City Engineer may request; (6) Dispose of materials not used in the Public Work as directed by the City Engineer;
(7) Provide City with good title to all materials purchased by City hereunder, including materials for which partial payment has been made, with bills of sale or other documents of title for such materials;
(8) Subject to the prior written approval of the City Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for materials terminated hereunder; (9) To the extent directed by the City Engineer, assign to City all the right, title, and interest of Contractor under subcontracts or orders for materials terminated hereunder; (10) Provide the City Engineer with any documentation required to be furnished by Contractor for projects involving state and/or federal funds or otherwise required under state or federal law or regulation or under this Agreement to be furnished by Contractor; (11) Take such other actions as the City Engineer may direct.
37. Liquidated Damages.
a. If the Public Improvements in all parts and respects are not finished and completed in accordance with Section 13 or Section 16, as applicable, of this Agreement, City will sustain damages which will be impracticable and extremely difficult to ascertain and determine. In lieu of actual damages, Contractor shall pay to City the sum set forth in the Special Provisions applicable to the Public Work. Such monies shall be liquidated damages. At its option, City may deduct the amount of such liquidated damages from any monies due or that may become due Contractor pursuant to this Agreement.
b. Contractor shall not be assessed with liquidated damages for the cost of engineering and inspection occasioned by the delay beyond the time named for the completion of the Public Improvements caused by fires, floods, earthquakes, or other natural disasters or acts of God, epidemics, quarantine restrictions, acts of terrorism or of the public enemy, acts of City, strikes not based upon unfair employment practices of Contractor, freight embargoes, delays of subcontractors due to such causes, or by inclement weather or conditions resulting immediately from adverse to the conduct of the construction at that point, as determined by the City Engineer; provided, however, that Contractor shall notify the City Engineer in writing of the cause of delay, within ten (10) days from the beginning of the delay, and the City Engineer shall ascertain the facts and the extent of the delay, and his or her findings of fact shall be final and conclusive. c. If Contractor is delayed because of alterations in the Public Improvements made by City (which are not contemplated by this Agreement), the time of completion shall be extended as stated in any Executed Change Order, and Contractor shall be relieved during the period of such extension of any claim for liquidated damages, engineering or inspection charges, or other penalties. Contractor shall have no claim for any other compensation for any such delay other than as may be set forth in the Executed Change Order.
38. Patents. Contractor shall assume all costs arising from or in connection with or related to the use of patented materials, equipment, devices, or processes, used on or incorporated in the Public Work and shall indemnify City, the City Engineer, and their duly authorized representatives and save them harmless from all suits at law or actions of every nature for, on account of, in connection with, or relating to the use of patented materials, equipment, devices, or processes. In case such materials, equipment, devices, or processes are held to constitute an infringement and their use enjoined, Contractor, at its expense, shall: (a) secure for City the right to continue using such materials, equipment, devices, or processes, or (b) replace them, or (c) modify them so that they become non-infringing, or (d) or remove the enjoined materials, equipment, devices, or processes and refund to City the sum paid therefore without prejudice to any other rights of City or the City Engineer.
39. Performance by Sureties. In the event of any termination under this Agreement, City shall immediately give written notice thereof to Contractor and Contractor's sureties and such sureties shall have the right to take over and perform this Agreement. It is provided, however, that if such sureties, within five (5) days after receiving the notice of termination, do not give City written notice of their intention to take over the performance of this Agreement and do not commence performance thereof within five (5) days after notice to City of such election, City may undertake the Public Work and prosecute the same to completion by contract or by any other method City
may deem advisable, for the account, and at the expense, of Contractor. The sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City may, without liability for so doing, take possession of and utilize in completing the Public Work such materials, appliances, plant, and other property belonging to Contractor as may be on site of the Public Work and necessary therefore. Should Contractor contract in an individual capacity, Contractor shall require that the surety bond contain the following provision: "Should Contractor contract in his or her individual capacity, the death of Contractor shall not relieve the surety of its obligations."
40. Contract Security. Concurrently with the execution hereof, Contractor shall furnish: (a) a surety bond in an amount equal to at least one hundred percent (100%) of the Contract Price as security for the faithful performance of the Contract Documents; and (b) a separate surety bond in an amount equal to at least one hundred percent (100%) of the Contract Price as security for the payment of all persons performing labor and furnishing materials in connection with the Contract Documents. Sureties on each of the bonds and the form thereof shall be satisfactory to City and be approved by the City Engineer.
41. Responsibility for Damage; Indemnification.
a. Neither City nor any of its elective or appointive boards, bodies, or commissions or members thereof or City’s employees, officers, agents, representatives, or consultants (including, without limitation, engineers and attorneys) shall be liable, responsible, answerable, or accountable in any manner for any of the following (“Potential Liabilities and Claims”):
(1) Damage to the Public Work or any part thereof,
(2) Personal injury (including, without limitation, physical injury, mental or emotional injury or distress, and loss of consortium), including, without limitation, personal injury to any of the following (“Potential Claimants”):
i. Contractor,
ii. subcontractors,
iii. consultants,
iv. the owner, lessees, sub-lessees, tenants, and other occupiers of the property where the Public Work is being performed or of any property in the vicinity of such property,
v. employees, agents, representatives, business invitees of any of the foregoing,
vi. any third person and members of the public
vii. City, members of its elective or appointive boards, bodies, or commissions, its employees, officers, agents, representatives, and consultants (including, without limitation, engineers and attorneys),
(3) Wrongful death to any person including, without limitation, to Potential Claimants,
(4) Property damage to the real, personal, or intangible property of any person, firm, or entity, including, without limitation, that of any Potential Claimant, or (5) Business losses and business interruption losses suffered by any owners, lessees, sub-lessees, tenants, or other occupiers of the real property where the Public Work is being performed or of any property in the vicinity of such property. b. To the maximum extent permitted by law, Contractor shall be responsible for and shall indemnify, defend, and hold harmless City, its elective and appointive boards, bodies, and commissions and members thereof, and its officers, employees, agents, representatives, and consultants, including, without limitation, the City’s engineers and attorneys (“City Indemnitees”), from and against any claim, demand, action, cause of action, cost, expense, liability, fine, penalty, judgment, lien, loss, and damage of any kind whatsoever (including, without limitation, the Potential Liabilities and Claims), arising directly or indirectly from, or in connection with or relating to, (i) Contractor's or any of Contractor’s subcontractors' activities, actions, conduct, or operations under the Contract Documents or in performing the Public Work, whether such activities, actions, conduct, or operations be by Contractor or by any of the subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor or any subcontractor, (ii) any breach or failure of Contractor to perform its obligation or duties under the Contract Documents, or (iii) from any other cause whatsoever during the progress of the Public Work or at any time before the final completion and acceptance of the Public Improvements. The Contractor shall not be required to defend or indemnify for such claims that arise from the sole negligence, willful misconduct, or active negligence of the City Indemnitees only to the extent required by Civil Code section 2782. The duty of Contractor to indemnify and hold harmless includes the duties to defend (by legal counsel satisfactory to City) as set forth in Section 2778 of the Civil Code and to pay attorney’s fees and litigation costs required by such defense. c. With respect to third party claims against Contractor, to the maximum extent permitted by law, Contractor waives any and all rights to any type of express or implied indemnity against City, its elective and appointive boards, bodies, and commissions and members thereof, and its officers, employees, agents, representatives, and consultants (including, without limitation, engineers and attorneys). It is the intent of the parties that Contractor’s duties of defense and indemnity shall apply and be in full force and effect regardless of the existence or degree of negligence or other fault on the part of the parties indemnified or on the part of any other person, firm, or entity, except that such duties of defense and indemnity shall not apply with respect to the active negligence or willful misconduct of City, its elective and appointive boards, bodies, and commissions and members thereof, and its officers, employees, agents, representatives, and consultants (including, without limitation, engineers and attorneys). Should any part of the indemnity provisions of this Agreement be held invalid or unenforceable, Contractor shall nonetheless be responsible to indemnify and defend and save each of the indemnities hereunder harmless to the maximum extent provided by law. The requirements of this provision shall survive termination of this Agreement.
d. The above indemnification by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of or in connection with or related to any of the operations of Contractor or any subcontractor, regardless of whether
or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
42. Insurance.
a. Contractor shall procure and maintain for the duration of the Contract 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 by the Contractor, his agents, representatives, employees, or subcontractors, the following minimum scope and insurance, at least as broad as follows:
(1) Commercial General Liability (CGL): 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 & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(2) Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $5,000,000 per accident for bodily injury and property damage.
(3) Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
(4) 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, unless waived by the City. b. If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. c. Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. d. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(1) The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an
endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). (2) For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Coty, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. (3) Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
e. Contractor 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. 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. f. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City. g. Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors. h. Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’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.
i. Contractor shall require and verify that all subcontractors maintain insurance meeting all requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
43. Guaranty of Work.
a. Notwithstanding inspections and acceptance by City of work furnished under the Contract Documents, Contractor warrants to City that all materials and equipment furnished under the Contract Documents, including that provided pursuant to Change Orders, will be of good quality and new, that the Public Improvements will be free from defects in material or workmanship, and that the work furnished under the Contract Documents will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. b. This warranty by Contractor is in addition to any warranties or guarantees required by the Special Provisions or Technical Specifications for specified items of equipment or materials.
This warranty shall be in effect notwithstanding any disclaimers or limiting or conditional terms contained in such separate warranties furnished by manufacturers or suppliers.
44. One Year Guaranty Upon Final Acceptance.
a. Upon final acceptance of the Public Improvements, the following guaranty shall become operative: Contractor shall repair or replace, at its own expense, any part of the Public Improvements that at any time during a One (1) year period subsequent to the date of the final acceptance becomes damaged or defective because of faulty workmanship or defective materials or any part of the Public Improvements found not to be in accordance with the Contract Documents, specifically including, but not limited to, the provisions of Section 40. Contractor shall make the necessary corrections promptly after written notice from City to do so and shall pay for any damage to other property resulting from such nonconforming work. b. Upon final acceptance of the Public Improvements, Contractor shall file with City a corporate surety bond in the sum of ten percent (10%) of the final Contract Price (including all Change Orders) to secure this guaranty to City or deposit with the City an equivalent amount of cash for the one year period.
c. In the event that Contractor fails (within a reasonable time after request therefore) to make any repairs or replacements required by this Section 41 (or in the event of an emergency when delay could cause risk of damage or loss), City may undertake the repairs and replacements with its own forces or through contract, and Contractor shall reimburse City for any and all costs of the repairs or replacements, even if the cost exceeds the principal sum of the corporate surety bond or retention which is security for the performance of this guaranty. Contractor and its surety may provide the foregoing guaranty in the original performance bond. City’s records setting forth the fair and reasonable cost of repairing, replacing, or restoring the damage or defect when performed by any party other than Contractor shall be binding and conclusive as to the amount thereof upon Contractor.
d. Nonconforming work that is remedied under this Section shall be subject to an extended warranty obligation, identical in terms to that provided by Section 40 and by this Section 41, for a period of one (1) year after the nonconforming work has been remedied. e. Nothing in this Section 41 shall be construed to establish a period of limitation with respect to other obligations that Contractor may have under the Contract Documents.
Establishment of the period of two years as described in this Section relates only to the specific obligation of Contractor to correct the work and has no relationship to the time within which the
obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish Contractor’s liability with respect to Contractor’s obligations other than specifically to correct the work.
45. Non collusion Declaration. In the event that this Agreement is awarded pursuant to a bid made by Contractor, the “Non collusion Declaration To Be Executed By Bidder And Submitted With Bid” is hereby made a part of this Agreement as required by Public Contract Code section 7106.
46. Assignment of Clayton Act and Cartwright Act Rights. As required by Section 7103.5(c) of the California Public Contract Code, the following verbatim reproduction of Section 7103.5(b) of the California Public Contract Code is included in this Agreement and made part thereof: “In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all right, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 [commencing with Section 16700] of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.” This Agreement is a public works contract to supply goods, services, or materials; Contractor is the contractor; and City is the awarding body. Therefore, Contractor and City are bound by the provisions of Section 7102.5(b) of the California Public Contract Code.
47. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City.
48. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid addressed as follows:
If to City:
Attn: City Engineer
City of Monte Sereno
18041 Saratoga-Los Gatos Road
Monte Sereno, CA 95030
If to Contractor: Janamjit S. Gondara, President
Radius Earthwork, Inc.
197 E. Hamilton Avenue, Suite 204
Campbell, CA 95008
510-738-9181
If to sureties of Contractor: Travelers Casualty and Surety Company of America 100 California Street, Ste 300
San Francisco, CA 94111
415-732-1422
If to the Escrow Agent of Contractor, if any: _______________________________ _______________________________
_______________________________
49. Interpretation. As used herein, any gender includes each other gender, the singular includes the plural and vice versa.
50. Compliance with Law. Contractor shall comply with all policies, rules, regulations, ordinances, statutes, and other law applicable to any work performed pursuant to the Contract Documents, including, but not limited to, those related to air and water quality, pollution, pesticides, noise, and the California Environmental Quality Act.
51. Independent Contractor. Contractor shall independently perform all work under this Agreement and shall not be considered as an agent or employee of City, nor shall Contractor’s subcontractors or employees be considered as subagents of City.
52. Assignment.
a. The performance of the Contract Documents may not be assigned except upon the written consent of City. Consent will not be given to any proposed assignment that would relieve the original Contractor or its surety (ies) of their responsibilities under the Contract Documents nor will City consent to any assignment of a part of the work under the Contract Documents. b. Contractor may assign monies due or to become due Contractor under the Contract Documents and, to the extent permitted by law and to the extent such monies are available, City shall recognize the assignment if given timely notice thereof, but any assignment of monies shall be subject to all proper set-offs in favor of City and to all deductions provided for in the Contract Documents. Notwithstanding the foregoing, all money withheld, whether assigned or not, shall be subject to being used by City for the completion of the Public Work in the event that Contractor should be in default therein.
53. Governing Law. The Contract Documents shall be subject to and governed by the law of the State of California.
54. Severability. In the event that any of the provisions or portions thereof, of this Agreement or any other part of the Contract Documents is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforcement of the remaining provisions or portions thereof shall not be affected thereby.
55. Entire Agreement. This Agreement and the rest of the Contract Documents contain the entire understanding between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement and the rest of the Contract Documents that are not fully expressed herein.
56. Modification or Amendment. Except as the Contract Documents may specifically provide otherwise, this Agreement and the rest of the Contract Documents may be modified or amended only by a writing signed by both parties hereto.
57. Successor Parties. This Contract Documents shall inure to the benefit of and be binding upon the parties, their heirs, legal representatives, successors, and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date and year first hereinabove written.
CITY OF MONTE SERENO CONTRACTOR
___________________________________ _____________________________________ (Signature) (Signature)
Diana Perkins, Interim City Manager
___________________________________ _____________________________________ (Print or Type Name) (Print or Type Name)
CONSTRUCTION PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
1. THAT WHEREAS, City of Monte Sereno, a political subdivision of the State of California (Owner) has awarded to (Name of Contractor)____________________________, as Principal, a Construction Services Agreement, dated the ___________ day of ___________, 20___ (Agreement), titled ___________________________ PROJECT, in the amount of $______________, which Agreement is by this reference made a part hereof, for the work described as follows:
(Describe Agreement Work) .
2. AND WHEREAS, Principal is required to furnish a bond in connection with the Agreement, guaranteeing the faithful performance thereof;
3. NOW, THEREFORE, we, the undersigned Principal and _________________________ as Surety are held and firmly bound unto Owner in the sum of 100% OF THE CONTRACT SUM to be paid to Owner or its successors and assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
4. THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal, or its heirs, executors, administrators, successors, or assigns approved by Owner, shall promptly and faithfully perform the covenants, conditions, and agreements of the Agreement during the original term and any extensions thereof as may be granted by Owner, with or without notice to Surety, and during the period of any guarantees or warranties required under the Agreement, and shall also promptly and faithfully perform all the covenants, conditions, and agreements of any alteration of the Agreement made as therein provided, notice of which alterations to Surety being hereby waived, on Principal’s part to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify, defend, protect, and hold harmless Owner as stipulated in the Agreement, then this obligation shall become and be null and void; otherwise it shall be and remain in full force and effect.
5. No extension of time, change, alteration, modification, or addition to the Agreement, or of the work required thereunder, shall release or exonerate Surety on this bond or in any way affect the obligation of this bond; and Surety does hereby waive notice of any such extension of time, change, alteration, modification, or addition.
6. Whenever Principal shall be and declared by Owner in default under the Agreement, Surety shall promptly remedy the default, or shall promptly:
6.01 Undertake through its agents or independent contractors, reasonably acceptable to Owner, to complete the Agreement in accordance with its terms and conditions and to pay and perform all obligations of Principal under the Agreement including, without limitation, all obligations with respect to warranties, guarantees, indemnities, and the payment of liquidated damages; or
6.02 Obtain a bid or bids for completing the Agreement in accordance with its terms and conditions, and, upon determination by Owner of the lowest responsible bidder, reasonably acceptable to Owner, arrange for a contract between such bidder and Owner and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Sum, and to pay and perform all obligations of Principal under the Agreement including, without limitation, all obligations with respect to warranties, guarantees, and the payment of liquidated damages; but, in any event, Surety’s total obligations hereunder shall not exceed the amount set forth in the third paragraph hereof. The term “balance of the Contract Sum,” as used in this paragraph, shall mean the total amount
payable by Owner to the Principal under the Agreement and any amendments thereto, less the amount Owner paid to Principal.
7. Surety’s obligations hereunder are independent of the obligations of any other surety for the performance of the Agreement, and suit may be brought against Surety and such other sureties, jointly and severally, or against any one or more of them, or against less than all of them without impairing Owner’s rights against the others. Surety may not use Contractor to complete the Agreement absent Owner’s written consent.
8. No right of action shall accrue on this bond to or for the use of any person or corporation other than Owner or its successors or assigns.
9. Surety may join in any proceedings brought under the Agreement and shall be bound by any judgment.
10. Correspondence or claims relating to this bond shall be sent to Surety at the address set forth below.
IN WITNESS WHEREOF, we have hereunto set our hands this _________ day of ________________, 20___.
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature Signature
Name Name
Title Title
Street Address Street Address
City, State, Zip Code City, State, Zip Code
Bond No. _________
CONTRACTOR'S LABOR AND MATERIAL BOND
(To Be Submitted with the Agreement)
KNOW ALL PERSONS BY THESE PRESENTS:
1. THAT WHEREAS, the City of Monte Sereno, a political subdivision of the State of California (Owner) has awarded to (Name of Contractor) _________________, as Principal, a Construction Services Agreement, dated the ___________ day of ______________, 20 ____ (Agreement), titled THE ______________________ PROJECT located at __________________________ in the amount of $_____________________________, which Agreement is by this reference made a part hereof, for the work described as follows:
(Describe Agreement Work) .
2. AND WHEREAS, Principal is required to furnish a bond in connection with the Agreement to secure the payment of claims of laborers, mechanics, material suppliers, and other persons as provided by law;
3. NOW, THEREFORE, we, the undersigned Principal and ______________________________ as Surety, are held and firmly bound unto Owner in the sum of 100% OF THE CONTRACT SUM ($_________________), for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
4. THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal, or its heirs, executors, administrators, successors, or assigns approved by Owner, or its subcontractors shall fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the State of California Unemployment Insurance Code with respect to work or labor performed under the Agreement, or for any amounts required to be deducted, withheld, and paid over to the State of California Employment Development Department from the wages of employees of Principal and subcontractors pursuant to California Unemployment Insurance Code Section 13020 with respect to such work and labor, that Surety will pay for the same in an amount not exceeding the sum specified in this bond, plus reasonable attorneys’ fees, otherwise the above obligation shall become and be null and void.
5. This bond shall inure to the benefit of any of the persons named in California Civil Code Section 9100, as to give a right of action to such persons or their assigns in any suit brought upon this bond. The intent of this bond is to comply with the California Mechanic’s Lien Law.
6. Surety, for value received, hereby expressly agrees that no extension of time, change, modification, alteration, or addition to the undertakings, covenants, terms, conditions, and agreements of the Agreement, or to the work to be performed thereunder, shall in any way affect the obligation of this bond; and it does hereby waive notice of any such extension of time, change, modification, alteration, or addition to the undertakings, covenants, terms, conditions, and agreements of the Agreement, or to the work to be performed thereunder.
7. Surety’s obligations hereunder are independent of the obligations of any other surety for the payment of claims of laborers, mechanics, material suppliers, and other persons in connection with the Agreement; and suit may be brought against Surety and such other sureties, jointly
and severally, or against any one or more of them, or against less than all of them without impairing Owner’s rights against the other.
8. Correspondence or claims relating to this bond shall be sent to Surety at the address set forth below.
IN WITNESS WHEREOF, we have hereunto set our hands this _________ day of ________________, 20___.
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature Signature
Name Name
Title Title
Street Address Street Address
City, State, Zip Code City, State, Zip Code
STAFF REPORT
Meeting: City Council - May 06 2025
Agenda Heading: CONSENT CALENDAR
Staff Contact: Diana Perkins, City Planner/Interim City Manager Department: Interim City Manager
Title: Adoption of Ordinance No. NS-244, an Ordinance of the City Council of the City of Monte Sereno Amending Chapter 10.09 (Personal Wireless Service Facility and Antenna Criteria).
Recommendation(s):
Staff recommends that the City Council adopt Ordinance No. NS-244.
Background Information:
The attached Ordinance was introduced at a regular meeting of the City Council held on April 15, 2025 with the following vote: 5-0.
California Environmental Quality Act:
This ordinance is not a “project” as defined by CEQA Guidelines Section 15378: “Adoption of the ordinance does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Further projects subject to the ordinance will require a discretionary permit and CEQA review, and will be analyzed at the appropriate time in accordance with CEQA.” Therefore, no environmental assessment is required.
Public Noticing:
Notice of the scheduled adoption of this ordinance was placed in the Los Gatos Weekly on Friday, April 25, 2025. This meeting agenda was posted on the bulletin board outside of Monte Sereno City Hall and the agenda with this staff report can be accessed on the City of Monte Sereno's website located at www.montesereno.org.
Attachments:
1. Draft Ordinance Chapter 10.09
ORDINANCE NO. NS-244
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MONTE SERENO AMENDING CHAPTER 10.09 (PERSONAL WIRELESS SERVICE FACILITY AND ANTENNA CRITERIA) WHEREAS, the City of Monte Sereno desires to amend its telecommunication requirements; and
WHEREAS, the adoption of this ordinance is not a “project” as defined by CEQA Guidelines Section 15378: “Adoption of the ordinance does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Further projects subject to the ordinance will require a discretionary permit and CEQA review, and will be analyzed at the appropriate time in accordance with CEQA.” Therefore, no environmental assessment is required.
NOW THEREFORE, THE CITY COUNCIL OF MONTE SERENO DOES ORDAIN AS FOLLOWS:
SECTION 1. Amendment of Chapter 10.09. Chapter 10.09 of the Monte Sereno Municipal Code is hereby amended in its entirety to read as follows:
“10.09.010 Purpose and intent.
A. The purpose and intent of this Chapter is to provide a uniform and comprehensive set of standards for the development and installation of antenna and personal wireless service facilities and related facilities. These standards cover the siting, designing and permitting of facilities. The regulations contained herein are designed to protect and promote public health, safety, community welfare and the aesthetic quality of Monte Sereno as set forth within the goals, objectives and policies of the Monte Sereno General Plan; while at the same time not unduly restricting the development of needed personal wireless service facilities and amateur radio installations. The intent of this Chapter is also to provide a public forum to ensure a balance between public and private interests in establishing personal wireless service and related facilities. The goals of this ordinance are to:
1. Protect the visual character of the City from the potential adverse effects of personal wireless service facility development and antenna installation, consistent with provisions of State and federal regulations;
2. Encourage users of antenna and personal wireless service facilities to locate them, to the maximum extent possible, in areas where the adverse impacts on the community are minimal;
3. Configure personal wireless service facilities, which include equipment cabinets or shelter, in a way that minimizes the adverse visual impact of the facilities; and
4. Enhance the ability of the provider of personal wireless services to provide such services to the community quickly, effectively and efficiently.
5. Establish standards and procedures consistent with applicable State and federal regulatory requirements for the review and permitting of wireless telecommunication facilities.
10.09.020 Applicability.
A. This ordinance shall apply to all antenna and types of personal wireless service facilities, including new facilities and modification to existing facilities, within the City, consistent with the development standards and planning permit requirements established under this section.
B. Antenna and personal wireless service facilities that are constructed or installed in accordance with the provisions of this ordinance shall not be deemed to constitute the expansion of a nonconforming use or structure.
10.09.030 Definitions.
A. As used in this ordinance, the following terms shall have the following meanings:
1. "Antenna" is any system of poles, panels, rods, dishes, discs or similar devices used for the transmission or reception of radio frequency signals, and consistent with the terms under Title 47 of the Code of Federal Regulations Section 1.6002. a. “Omni-directional antenna” transmits and/or receives radio frequency signals in a three hundred sixty (360) degree radial pattern.
b. “Directional antenna” (also known as “panel” antenna) transmits and/or receives radio frequency signals in a directional pattern of less than three hundred sixty (360) degrees.
c. “Parabolic antenna” (also known as a satellite dish antenna) is a bowl shaped device for the reception and/or transmission of radio frequency communications signals in a specific directional pattern.
2. “Antenna Equipment” shall have the same meaning as the term under Title 47 of the Code of Federal Regulations Section 1.6002.
3. “Antenna Facility” is an antenna facility consisting of single or multiple posts or masts that are ground or building mounted, up to a height of seventeen (17) feet supporting one or more antennas, dishes, arrays, etc., excluding TV or radio antennas and ham radio antennas (antennas owned and operated by a federally-licensed amateur radio station operator), as consistent with the terms defined under Title 47 of the Code of Federal Regulations Section 1.6002.
4. “Base Station” is a structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower as consistent with the term defined under Title 47 of the Code of Federal Regulations Section 1.6100(b)(1).
5. "Co-Location", or “Collocation”, consistent with State and federal law, including Title 47 of the Code of Federal Regulations Section 1.6002, encompasses:
a. Mounting or installing an antenna facility on a pre-existing structure; and/or b. Modifying a structure for the purpose of mounting or installing an antenna facility on that structure.
c. The definition of “collocation” in § 1.6100(b)(2) is the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes, as defined under Title 47 of the Code of Federal Regulations applies to the term as used in that section.
6. “Compliance Verification Statement” means a sworn statement entitled "Compliance Verification" signed by the Applicant or by the Applicant's authorized agent or representative, stating that the applicant holds all applicable licenses or other approvals required by the Federal Communications Commission (FCC), the California Public Utilities Commission (PUC), and any other agency of the federal or state government with authority to regulate telecommunications facilities that are required in order for the applicant to construct the proposed facility. This requirement includes compliance with all conditions imposed in conjunction with such federal and state licenses or approvals, a description of the number, type, power rating, frequency range, and dimensions of the proposed Antennas, Antenna Equipment including Equipment Cabinets, and related Facilities, and engineering calculations demonstrating that the proposed Facility will comply with all applicable FCC and CPUC requirements and standards.
7. “Concealment elements” means elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station.
8. “Defeat concealment” means a modification that causes a reasonable person to view the structure’s intended stealth design as no longer effective after the modification.
Conversely, a modification does not defeat concealment if stealth design features would continue to effectively make the structure not appear to be a wireless facility or as defined under Title 47 of the Code of Federal Regulations Section 1.6100(b)(7)(v).
9. "Equipment Shelter or Cabinet" means a cabinet or building used to house equipment used by personal wireless service providers to house equipment at a facility.
10. "Height" shall mean, when referring to antenna facilities, the distance measured from ground level to the highest point on the antenna facility even if said highest point is an antenna.
11. "Related equipment" means all equipment ancillary to the transmission and reception of voice and data radio frequencies. Such equipment may include, but is not limited to, cable conduit and connectors.
12. “Micro Wireless Facility” means a small personal wireless facility that is no larger than 24 inches long, 15 inches wide, 12 inches high, and which has an exterior antenna, if any, no longer than 11 inches.
13. “Operations and Maintenance Agreement”, or “Master License Agreement”, means an agreement establishing the terms of use and responsibilities between the Applicant and the City of Monte Sereno for projects involving existing or proposed facilities that are or will be owned or managed, in whole or in part, by the City of Monte Sereno. Such agreement may involve, but is not limited to, the initiation, use, operation, maintenance, fees, and basis for termination of the wireless facility.
14."Personal Wireless Service Facility" is an unstaffed facility, generally consisting of transmitters, antenna structures and other types of installations which receive and/or transmit radio frequency signals for the provision of personal wireless services, or commercial mobile services, including ancillary equipment cabinet or structure, and related equipment. Common examples of commercial mobile services are personal communications services (PCS), cellular radiotelephone service and paging. Residential home satellite services are not considered "personal wireless service."
15. “Small Wireless Facility” means facilities that meet each of the following conditions:
a. With regard to facilities: (a) are mounted on structures 50 feet or less in height including their antennas as defined in subsection (A) of this Section; or (b) are mounted on structures no more than 10 percent taller than other adjacent structures; or (c) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10%, whichever is greater; b. Each antenna involved in the deployment, with exception of the associated antenna equipment, is no more than three cubic feet in volume; c. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; d. The facilities are not located on Tribal lands; and
e. The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified under Title 47 Code of Federal Regulations Section 1.1307(b).
16. “Substantial Change” means a modification that changes the physical dimensions of an eligible support structure as defined in Title 47 of the United States Code Section
1.6100(b)(7).
17. “Tolling Period” shall mean the number of days from the day after the date when the siting authority notifies the applicant in writing that the application is materially incomplete and clearly and specifically identifies the missing documents or information
that the applicant must submit to render the application complete and the specific rule or regulation creating this obligation; until the date when the applicant submits all the documents and information identified by the siting authority to render the application complete or as defined under Title 47 of the Code of Federal Regulations Section
1.6003.
18. “Tolling Agreement” means a written agreement between the City and an applicant to establish an alternative timeframe for application review that varies from the standard tolling period.
19. “Tower” shall mean any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site or as otherwise defined under Title 47 of the Code of Federal Regulations Section 1.6100(b)(9).
20."Universal Service" is the public policy goal that Congress first mandated in the 1935 Communications Act to make telephone service widely available at affordable prices. As the FCC implements the Telecommunications Act of 1996, its definition will continue to evolve to include public access to the information superhighway from every school, hospital, government office, library, post office and households.
10.09.040 General requirements.
A. The following requirements shall apply to the development of new antennas, satellite dishes and personal wireless facilities, except as otherwise provided by this Chapter or by State and federal regulations:
1. Any applicable General Plan Goals, Objectives, Program and Policies, Specific Plan, Zoning District standards, Design Guidelines, and the permit requirements of any agencies that have jurisdiction over the project;
2. All the requirements established by the other chapters of the Monte Sereno Municipal Code that are not in conflict with the requirements contained in this Chapter;
3. All applicable Building Code requirements and engineering standards
4. Any applicable easements or similar restrictions on the subject property, including adopted Zoning District standards;
5. All antenna and personal wireless service facilities must not be located within any required yard setback area of the zoning district in which it is located with the exception of possible encroachment of the antenna array into airspace of said setback;
6. All antenna and personal wireless service facilities shall avoid any unreasonable interference with views from neighboring properties;
7. All setbacks shall be measured from base of the antenna or personal wireless facility closest to the applicable property line or structure;
8. Where feasible, personal wireless service facilities shall be encouraged to be located on City-owned property, or controlled property, or right-of way, or other public facilities, such as water tanks and other utility structures;
9. All antenna and personal wireless facilities must meet or exceed current standards and regulations of the Federal Communications Commission (FCC), the California Public Utilities Commission, and any other agency of the federal or state government with the authority to regulate antenna and personal wireless service facilities. If such standards and regulations are changed, then the owners of the personal wireless service facilities governed by this ordinance shall bring such facilities into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal or state agency. Failure to bring personal wireless Service facilities into compliance with such revised standards and regulations shall constitute ground for the removal of such facilities at the owner's expense;
10. All personal wireless service facilities shall maintain in place a security program when determined necessary by and subject to the review and approval of the Police Chief that will prevent unauthorized access and vandalism;
11. Satellite dish and parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function;
12. Sufficient anti-climbing measures shall be incorporated into all personal wireless service facilities, as needed, to reduce potential for trespass and injury;
13. All equipment shelters or cabinets must be concealed from public view or made compatible with the architecture of surrounding structures or placed underground, and regularly maintained;
14. All personal wireless service facilities shall be constructed and operated in such a manner as to minimize the amount of noise impacts to the residents of nearby homes.
Back-up generators shall only be operated during power outages and for testing and maintenance purposes. If the facility is located within one hundred (100) feet of a residential dwelling unit, noise attenuation measures shall be included to reduce noise levels;
15. Personal wireless service facilities shall not be located in front of main structures, and/or along major street frontages where they will be readily visible and unsightly; and
16. No portion of an antenna array shall extend beyond the property lines or into the area in front of the primary building on the parcel, so as to create a negative visual impact.
10.09.050 Zoning Clearance and Permits Required.
A. No party shall deploy antennas and personal wireless facilities within the City of Monte Sereno without first obtaining all required approvals and permits from the City, consistent with the requirements established under this Chapter and all applicable State and federal provisions.
1. Permit Required. All antennas and wireless facilities are required to obtain zoning clearance and Planning permits established under this Chapter, unless otherwise required by State and federal regulations or exempt below. a. Project shall obtain any additional permits from the City of Monte Sereno as required to implement the proposed work (e.g., building permits, encroachment permits, etc.).
b. Application review shall be conducted consistent with State and federal regulations.
2. Exemptions. The following uses listed are deemed to be permitted uses and shall not require planning permits unless the applicant seeks a modification of the basic development standards, design criteria and conditional use permit criteria set forth in the applicable Zoning District where the structure is placed and unless located on an historic site. The following permitted uses shall comply with the general requirements of the Section 10.09.040 and building permit requirements as applicable. a. Antennas that are totally concealed.
b. One TV or radio antenna not exceeding twenty-five (25) feet for the sole use of tenant occupying residential parcel.
c. One satellite dish antenna not exceeding four (4) feet in diameter for sole use of tenant occupying residential parcel.
d. One ham radio antenna not exceeding thirty-five (35) feet per residential parcel.
3. Personal Wireless Facilities
a. New personal wireless facilities require a Conditional Use Permit, except as otherwise provided under this Chapter or by State and federal regulations. b. Personal wireless service facilities located on sites with historical significance as recognized by the City shall require Conditional Use Permit, except as otherwise provided under this Chapter or by State and federal regulations.
c. New personal wireless service facilities placed on utility poles, public right-ofway light poles, reservoirs, and other public infrastructure which, in the opinion of the City Manager, are unobtrusive or undetectable by way of design and/or placement on the public facility structure, regardless of number require the issuance of an encroachment permit under the Monte Sereno Municipal Code. d. Any multifamily residential building 40 feet or greater in height that would have new antenna facilities located on the building requires a Conditional Use Permit, except as otherwise provided under this Chapter or by State and federal regulations.
4. Small Cell Wireless
a. New small cell wireless facility deployment involving installation of small cell wireless antennas and equipment on a new or existing structure requires City Planner administrative review and approval.
b. Installation on a City-owned utility pole or facility also requires an operation and maintenance agreement/master license agreement with the City of Monte Sereno, approved by the City Manager.
c. Application review shall be conducted consistent with State and federal requirements, including tolling periods.
5. Modification of Previous Approved Facility
a. With the exception of projects that meet the eligibility and criteria under Section 6409(a), the following types of projects require City Planner administrative review and approval:
i. Replacement of pre-existing personal wireless service facilities, installed under a prior approval under this Chapter, which is being proposed for replacement by equipment of identical or smaller size, at the discretion of the City Manager.
ii. Personal wireless service facilities placed on utility poles, public right-ofway light poles, reservoirs, and other public infrastructure which, in the opinion of the City Manager, are unobtrusive or undetectable by way of design and/or placement on the public facility structure, regardless of number.
b. Replacement or modifications eligible for streamlined review under 6409(a) i. Eligible projects under Section 6409(a) of the Middle Class Tax Relief Act of 2012 (Section 6409(a)) require ministerial plan check review through the building permit application review process. Projects include requests to collocate, replace or remove transmission equipment at an existing tower or base station submitted pursuant to section 6409(a).
6. TV or Radio Antenna
a. One antenna if not exceeding twenty-five (25) feet for the sole use of tenant occupying residential parcel is exempt from a Planning permit.
b. One antenna if exceeding twenty-five (25) feet, but less than fifty (50) feet for residential tenant use only requires City Planner administrative review and approval.
c. Any other TV or Radio Antennas require a Conditional Use Permit.
7. Satellite Dish Antenna
a. One satellite dish antenna if not exceeding four (4) feet in diameter for sole use of tenant occupying residential parcel is exempt from a Planning permit. b. One satellite dish antenna if greater than four (4) feet in diameter, but less than eight (8) feet in diameter for residential tenant use only requires City Planner administrative review and approval.
c. Two to three satellite dish antenna if four (4) feet or less in diameter for residential tenant use only requires City Planner administrative review and approval.
d. Any other satellite dish antennas require a Conditional Use Permit.
8. Ham Radio Antenna
a. One ham radio antenna if not exceeding thirty-five (35) feet per residential parcel is exempt from a Planning permit.
b. One ham radio antenna if exceeding thirty-five (35) feet, but less than seventy (70) feet requires a City Planner administrative review and approval. c. One ham radio antenna if exceeding seventy (70) feet requires a Conditional Use Permit.
d. More than one ham radio antenna if exceeding thirty-five (35) feet but less than seventy (70) feet requires a Conditional Use Permit.
10.09.060 Basic development standards for satellite dish antennas greater than one meter (3.28 Feet).
A. Ground or platform mounted satellite dish antennas in any residential zoning district shall be screened from public view from streets and adjacent properties by at least a six (6) foot high solid wall or fence, or by plants or trees of equal minimum height.
B. Ground or platform mounted satellite dish antennas in any residential zoning district that are higher than six (6) feet shall be located one foot back from the setback line for each foot of height above six (6) feet.
10.09.070 General design review criteria.
A. Personal wireless service facilities shall be located, designed and screened to blend with the existing natural or built surroundings and existing supporting structures.
B. Attached antenna facilities (antenna facility affixed to an existing structure that is not considered a component of the attached antenna facility) should be painted and/or textured to match the existing support structure.
C. Personal wireless service support facilities (i.e., vaults, equipment rooms, utilities, and equipment enclosures) shall be constructed out of non-reflective materials (visible exterior surfaces only) and shall be screened from view by using landscaping, or materials and colors consistent with surrounding backdrop, or placed underground to the greatest extent possible.
D. Personal wireless service support facilities shall be no taller than one story fifteen (15) feet in height and shall be treated to look like a building or facility typically found in the area.
E. Personal wireless service support facilities in areas of high visibility shall, where possible, be sited below the ridgeline or designed (i.e., placed underground, depressed, or located behind earth berms) to minimize their profile.
F. All buildings, poles, towers, antenna supports, antennas, and other components of each personal wireless service facility site shall be initially painted and thereafter repainted as necessary with a "flat" paint. The color selected shall be one that in the determination of the City Planner or Site and Architectural Commission, as appropriate, will minimize their visibility to the greatest extent feasible. To this end, improvements which will be primarily viewed against soils, trees or grasslands shall be painted colors matching these landscapes while elements which rise above the horizon shall be painted a blue gray that matches the typical sky color at that location.
G. The City shall have the authority to require special design of the personal wireless service facilities where findings of particular Sensitivity are made (e.g., proximity to historic or aesthetically significant structures, views and/or community features).
H. Poles, towers and antenna supports shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the Site and Architectural Commission may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views.
I. Building-mounted antennas and any ancillary equipment should be in scale and architecturally integrated with the building design in such a manner as to be visually unobtrusive.
J. Antennas that are attached to roofs shall maintain a 1:1 ratio for equipment setback (example: ten (10) feet high antenna requires ten (10) feet setback from facade) unless an alternative placement would reduce visual impact and placing roof mounted antennas in direct line with significant view corridors shall be avoided.
K. Ground mounted antenna facilities shall not exceed seventeen feet to the top of the antennas.
10.09.080 Conditional use permit criteria for all personal wireless service facilities.
A. All personal wireless service facilities shall be substantially screened from the view of surrounding properties so as not to create substantial visual or noise impacts.
1. Factors Considered in Granting a Conditional Use Permits. The following factors shall be considered when determining whether to issue a conditional use permit, although the City Council may waive or reduce the burden on the applicant of one or more of these criteria if the City Council concludes that the goals of this ordinance are better served thereby.
a. Nature of uses on adjacent and nearby properties;
b. Surrounding topography;
c. Surrounding tree coverage and foliage; and
d. Proposed ingress and egress.
2. Availability of Suitable Existing Personal Wireless Service Facilities. No new personal wireless service facility shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the City Council that no existing antenna facility can accommodate the applicant's proposed antenna. Evidence submitted to demonstrate that no existing antenna facility can accommodate the applicant's proposed antenna may consist of any of the following:
a. No existing antenna facilities located within the geographic area required to meet the applicant's engineering requirements.
b. Existing antenna facilities are not of sufficient height to meet applicant's engineering requirements.
c. Existing antenna facilities do not have sufficient structural strength to support applicant's proposed antenna and related equipment.
d. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing antenna facilities or the antenna on the existing facilities would cause interference with the applicant's proposed antenna. e. The fees, costs, or contractual provisions required by the owner in order to share an existing antenna facility or to adapt an existing facility for sharing are unreasonable. Costs exceeding new facility development are presumed to be unreasonable.
f. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.
3. Security Fencing. Personal wireless service facilities that support one or more antennas shall be enclosed with security fencing not less than six (6) feet in height and shall be equipped with an appropriate anti-climbing device; provided, however, that the City Council may waive such requirements, as it deems appropriate.
4. Landscaping. The following requirements shall govern the landscaping surrounding personal wireless service facilities that support one or more antennas for which a conditional use permit is required; provided, however, that the City Council may waive such requirements if the goals of this ordinance would be better served thereby. a. In locations where the visual impact of the personal wireless service facility would be minimal, the landscaping requirement may be reduced or waived altogether.
b. Personal wireless service facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the personal wireless service facility compound from adjacent residential property.
c. Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible.
10.09.100 Small Cell Wireless Facility Requirements
A. State or Federal Requirements. Small cell wireless facilities, including ancillary equipment, must meet or exceed current standards and regulations of the Federal Communications Commission (FCC), the Federal Aviation Administration (FAA), all applicable federal, state, and local health and safety regulations, including the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and all other agencies of the state or federal government with the regulatory authority over small cell wireless facilities. If, at any time, the state or federal standards are modified, then applicant shall bring any and all permitted facilities into compliance with current standards and regulations within three (3) months of the effective date of such modified standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring permitted facilities into compliance with such revised standards and regulations shall constitute grounds for the revocation of city permit and require removal of the small cell facility at the service provider's expense.
B. Building Codes and Safety Standards. The applicant shall ensure the structural integrity of its small cell wireless facilities installed within the city, and shall ensure that the facilities are maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for small cell wireless facilities that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the City determines that a facility fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the applicant of the facility, the applicant shall have fifteen (15) days to bring such facility into compliance with such standards. Failure to bring such tower into compliance within the required time shall constitute grounds for the revocation of city permit and required removal of the small cell facility at the owner's expense.
C. Radio Frequency Emissions Standards. Applicants shall provide evidence that the projected radio frequency emissions from any and all permitted small cell wireless facilities comply with FCC Standards, including any cumulative standards.
D. Operation and Maintenance Standards. All small cell wireless facilities shall at all times comply with the following standards in addition to any other conditions required by permits issued pursuant to this Chapter.
1. Except as provided in subsection D2 below, an applicant shall not install signs, display logos, or run advertisement on, alongside, or in connection with a permitted facility.
2. Every permitted facility shall contain signage listing the name and contact information for an emergency contact individual or service shall be erected for every permitted facility. The signage shall comply with design, material, color and location requirements as stated in the applicable permit. Contact information listed on the sign shall be kept current and promptly be provided to the City.
3. Each permitted facility and any ancillary equipment shall be maintained in good working condition and appearance, free from trash, debris, litter and graffiti and other forms of vandalism. Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight. Graffiti shall be removed from any facility or equipment as soon as practicable, and in no instance more than forty-eight (48) hours from the time of receipt of City notice.
4. Each facility shall be operated to minimize noise impacts to surrounding land uses in accordance with applicable requirements in the Monte Sereno Noise Ordinance. a. Except for emergency repairs, testing and maintenance activities that will be audible beyond the property line shall only occur between the hours of 8:00 a.m. and 6:00 p.m. on Monday through Friday, excluding holidays. b. All air conditioning units and any other equipment that may emit noise that would be audible from beyond the right-of-way shall be enclosed or equipped with noise attenuation devices to the extent necessary to ensure compliance with applicable noise limitations in the Noise Ordinance.
5. Each facility shall install the following security measures:
a. An on-site emergency "kill switch" to de-energize all radio frequency circuits and components of each permitted facility in order to protect emergency response personnel. For co-locating facilities, a single "kill switch" shall be installed that will de-energize all facilities located on the same pole at the facility in the event of an emergency.
b. Necessary safety measures to prevent unauthorized access, vandalism, and other safety concerns. Installations must comply with design standards and nuisance regulations, and must not interfere with city emergency services or transmission.
6. Each facility shall be relocated at applicant's sole cost, upon demand by City with reasonable notice, to allow for public projects, services or improvements.
7. The applicant shall, at its sole cost, be responsible for repairing to City standard specifications or replacing in-kind any City facilities or improvements disturbed or damaged during the installation, maintenance, operation, repair or removal of applicant's small cell wireless facilities, ancillary equipment, and any support infrastructure. City facilities or improvements covered by this subsection includes, but are not limited to the following:
a. curb, gutter, sidewalk, storm drains, and pavements; and b. landscaping; and
c. structures, buildings, light poles and fixtures.
E. Electrical Metering and Structural Standards. All small cell wireless facilities shall comply with the following requirements:
1. All electrical power required by small cell wireless facility installations shall be metered independently from any anticipated or existing City projects or facilities.
2. All existing City-owned street light poles proposed for small cell wireless facility installations shall be inspected prior to installation in accordance with the most recent City structural standards for street light poles, including but not limited to safety and load bearing capability for the small cell wireless facility to be installed, as approved by the City Engineer.
a. Applicants requesting to install a small cell wireless facility on City-owned street light poles shall provide documentation demonstrating that the pole proposed for installation meets or exceeds such City standards. b. If the City-owned street light pole proposed for a small cell wireless facility installation does not meet or exceed structural standards, no small cell wireless facility may be installed thereon. Alternatively, the applicant may at its own cost replace the existing street light pole at the proposed installation location with a pole that meets or exceeds the City's structural standards including safety and load bearing capability or capacity, and complies with all other applicable legal requirements. Any existing lighting fixture shall be reinstalled on the new pole at applicant's cost. Applicant shall be responsible to coordinate electrification of the new installation with the utility provider, including independent metering of electrical power required for applicant's installations. Upon installation, the new pole shall become the property of the City.
F. Applicants intending to use City-owned facilities shall be required to enter into an operations and maintenance agreement/ master license agreement with the City for the facility.
G. Design Standards.
1. General Standards. Small cell wireless facilities and any ancillary equipment shall comply with the following permit requirements of this section, and shall be located and designed and whenever possible screened to blend with the existing natural or built surroundings, as is required for similar construction projects within the city. Small cell wireless facilities shall utilize the smallest footprint possible and shall be designed to minimize the overall height, mass, and size. Improvements that will be primarily viewed