Morgan Hill City Council
April 6, 2022

Special/Regular City Council
Meeting Agenda
Rich Constantine - Mayor
Gino Borgioli - Mayor Pro Tem
John McKay - Council Member
Yvonne Martinez Beltran - Council Member
Rene Spring - Council Member
Wednesday, April 6, 2022 6:00 PM
Virtual Meeting
Link to join the meeting can be found below

VIRTUAL MEETING GUIDELINES AND PUBLIC COMMENT
In accordance with Executive Order N-25-20 and guidance from the California Department of Public Health on gatherings, remote public participation is allowed.

Physical meetings will not be in the City Council Chamber until further notice.

City Council meetings will be live-streamed on Channel 17, on the City’s website, and on the City’s Facebook page. Those members of the community that would like to participate in the meetings remotely may do so by joining the virtual meeting at:
https://bit.ly/MHCityCouncilMeeting or by calling (669) 900-9128, then enter the webinar id: 873 3200 8380#.

Public comment may be provided in the following ways:
 Join the virtual City Council meeting via the link above, when public comment is opened, raise your virtual hand and be called upon to speak for up to 3 minutes (YOU MUST BE RUNNING THE MOST CURRENT VERSION OF ZOOM TO BE

UNMUTED)
 Join the virtual meeting by calling the number above, dial *9 to raise your hand, and be called upon to speak for up to 3 minutes
 Send public comments in writing to the City Clerk at
[email protected]
* Please note that comments made on Facebook are not considered public comment.

SPECIAL/REGULAR MEETING

2 A special meeting of the City Council is called at 6:00 p.m. for the purpose of conducting a closed session.

SPECIAL MEETING
6:00 p.m. Closed Session

CALL TO ORDER

ROLL CALL ATTENDANCE

DECLARATION OF POSTING AGENDA

CLOSED SESSION

OPPORTUNITY FOR PUBLIC COMMENT

ADJOURN TO CLOSED SESSION
Conference with Legal Counsel – Anticipated Litigation
Significant exposure to litigation (Govt Code § 54956.9(b)): (One Case) Alleged violation of the California Voting Rights Act and the FAIR MAPS Act.

REGULAR MEETING
7:00 p.m.

RECOGNITIONS
Proclaiming March 20, 2022 as Nowrūz - Persian New Year's Day

PROCLAMATIONS
Proclaiming the week of April 10-16, 2022 as National Telecommunicator's Week Proclaiming April 28, 2022 as a Day of Remembrance of the Victims of the Holocaust Proclaiming the Month of April 2022 as Sexual Assault Awareness Month

CITY COUNCIL REPORTS
Council Member Borgioli
April 6, 2022

April 6, 2022
3 CITY MANAGER'S REPORT

CITY ATTORNEY'S REPORT

OTHER REPORTS

PUBLIC COMMENT
This opportunity for public comment, is for items that are not on the agenda. If you would like to make comments on an item that is on the agenda, please wait until we get to that item to offer your comments. Members of the public are entitled to address the City Council concerning any item within the Morgan Hill City Council’s subject matter jurisdiction. Public comments are limited to no more than three minutes. Except for certain specific exceptions, the City Council is prohibited from discussing or taking action on any item not appearing on the posted agenda. Public comment is intended for comments. Questions posed during public comment are not generally answered. If you have questions, please send them to the City Clerk at
[email protected] to receive a response. (See additional noticing at the end of this agenda)

ADOPTION OF AGENDA

CONSENT CALENDAR
Items appearing on the Consent Calendar are considered routine and may be approved by one motion. Pursuant to City Council Policies and Procedures (CP 97-01), any member of the Council or public may request to have an item removed from the Consent Calendar for comment and action.

Time Estimate for Consent Calendar: 1 - 10 Minutes

1. CALL FOR A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 8, 2022
Recommendation:

1. Adopt resolution calling for a General Municipal Election to be held on Tuesday, November 8, 2022 to elect a Mayor, one Council Member from District B, and one Council Member from District D; and

2. Adopt resolution requesting the services of the Board of Supervisors of the County of Santa Clara and the Registrar of Voters Office - and the Consolidation of the Election.

2. ACCEPT CENTENNIAL RECREATION CENTER EXPANSION PROJECT

April 6, 2022
4 Recommendation:

1. Accept as complete the Centennial Recreation Center Expansion Project;

2. Authorize the City Engineer to sign the Notice of Completion; and

3. Direct the City Clerk to file said Notice of Completion with the County Recorder's Office.

3. ADOPT ORDINANCE NO. 2330, NEW SERIES AMENDING TITLE 18, DIVISION I, ZONING CODE SECTION 18.26.020 (LAND USE REGULATIONS) OF CHAPTER 18.26 (INDUSTRIAL ZONING DISTRICTS) TO MODIFY THE

LAND USES PERMITTED IN THE INDUSTRIAL ZONING DISTRICTS
Recommendation:

Waive the reading, adopt Ordinance No. 2330, New Series, and declare that said title, which appears on the agenda, shall be determined to have been read by title and further reading waived.

4. APPROVE PARCEL MAP FOR DAKOTA DUNNE SUBDIVISION (APN: 726- 09-024) AND RELATED SUBDIVISION IMPROVEMENTS AGREEMENT
Recommendation:

1. Approve the Parcel Map;

2. Authorize the City Manager to execute the Subdivision Improvements Agreement with Michael F. Dunne, Jr. and Jonna Dunne; and

3. Authorize the recordation of the Parcel Map and Subdivision Improvements Agreement.

5. APPROVE AGREEMENT WITH MARK THOMAS AND COMPANY FOR

CONSTRUCTION SUPPORT SERVICES ASSOCIATED WITH VALLEY

WATER'S FLOOD CONTROL PROJECT
Recommendation:

Authorize the City Manager to execute and administer a consultant agreement with Mark Thomas and Company for a not to exceed amount of $246,000 for construction support services for City improvements associated with Valley Water’s flood control project.

6. APPROVE AGREEMENT WITH SANTA CLARA COUNTY FOR WEED

ABATEMENT PROGRAM ADMINISTRATION
Recommendation:

Authorize the City Manager to execute the agreement with Santa Clara County for weed abatement program services.

7. APPROVE INNOVATIVE TRANSIT AGREEMENTS

April 6, 2022
5 Recommendation:

1. Authorize the City Manager to execute and administer a grant agreement for innovative transit funding with the Valley Transportation Authority; and

2. Authorize the City Manager to execute and administer a consultant services agreement with Rideco, Inc. for the provision of transit services within the City of Morgan Hill; and

3. Adopt a budget resolution appropriating $60,000 for Fiscal Year 2021-22 to fund the initiation of the program.

8. APPROVAL OF SECOND AMENDMENT TO AGREEMENT WITH WEST

COAST DOOR AND GATE
Recommendation:

1. Approve the Second Amendment to the On-Call Maintenance Service Agreement with West Coast Door and Gate for one additional year of service for $40,000 for a total contract amount of $100,000;

2. Determine that competitive bids upon notice would not likely result in a lower price to the City from a responsible bidder or would cause unnecessary expense or delay under the circumstances per Section 3.04.150 (1) of the Morgan Hill Municipal Code; and

3. Authorize the City Manager to execute and administer the amendment with West Coast Door and Gate.

9. APPROVE FIRST AMENDMENT TO AGREEMENT WITH TESCO CONTROLS, INC. FOR SCADA HARDWARE PURCHASE
Recommendation:

Authorize the City Manager to execute a first amendment to the agreement with Tesco Controls, Inc. for SCADA hardware for a total contract amount of $217,190.

10. APPROVE THE MARCH 16, 2022 CITY COUNCIL MEETING MINUTES Recommendation:

Approve the March 16, 2022 City Council Meeting Minutes.

11. AWARD 2022 PARKING LOT SEAL COAT PROJECT
Recommendation:

1. Award contract to Silicon Valley Paving, Inc. in the amount of $78,148;

2. Authorize the expenditure of contingency funds not to exceed $7,814; and

3. Authorize City Manager to execute and administer that certain construction contract with Silicon Valley Paving, Inc.

April 6, 2022
6 PUBLIC HEARINGS

12. RECONSIDER ACTION TO ADOPT CITY COUNCIL DISTRICT MAP 103 - FROM MARCH 2, 2022 CITY COUNCIL ACTION
Recommendation:

1. Review and discuss whether an alternative map should be adopted in light of a demand to cure a violation of the FAIR MAPS Act; and

2. Determine whether to: a) affirm the adoption of Map 103, or 2) approve an amended resolution identifying an alternative City Council District map.

Estimated Time: 45 Minutes

13. INTRODUCE ORDINANCE APPROVING MILITARY EQUIPMENT POLICIES AS REQUIRED BY AB 481
Recommendation:

1. Waive the first and second reading of the ordinance; and

2. Introduce ordinance approving Morgan Hill Police Department Policies 708-- Armored Rescue Vehicle (ARV MedEvac) and 709--Military Equipment.

Estimated Time: 20 minutes

14. INTRODUCE ORDINANCE UPDATING WATER WASTE ORDINANCE, ADOPT

WATER SHORTAGE RESOLUTION, AND ACCEPT REPORT ON WATER

OFFSET PROGRAM
Recommendation:

1. Waive the first and second reading of the ordinance; and

2. Introduce the ordinance updating the City's water waste provisions to reflect the actions and stages identified in the City's Urban Water Management Plan (UWMP);

3. Adopt resolution declaring a Level 4 Water Supply Shortage; and

4. Accept report on the development of a "water offset" program for new development.

Estimated Time: 30 Minutes

15. CONDUCT TAX AND EQUITY FISCAL RESPONSIBILITY ACT (TEFRA)

HEARING APPROVING ISSUANCE OF BONDS FOR VILLAGE AT MADRONE AFFORDABLE HOUSING APARTMENTS AT 18960 MONTEREY STREET

WITHIN THE CITY OF MORGAN HILL
Recommendation:

April 6, 2022
7 1. Open/close public hearing consistent with the requirements of the Federal Tax and Equity Fiscal Responsibility Act ("TEFRA") and Section 147 (f) of the Internal Revenue Code of 1986, as amended (the “Code”); and

2. Adopt resolution approving the issuance of bonds by the California Municipal Finance Authority (CMFA), for the acquisition, construction, improvement and equipping of a multifamily rental housing project located at 18960 Monterey Street, Morgan Hill, California (the “Project”).

Estimated Time: 15 Minutes

OTHER BUSINESS

16. ACCEPT INITIATIVE PETITION IMPACT REPORT AND ADOPT RESOLUTION

PLACING THE CITIZENS' INITIATIVE AMENDING THE GENERAL PLAN TO

REQUIRE VOTER APPROVAL OF ANY FUTURE MONTEREY ROAD LANE REDUCTION ON THE NOVEMBER 2022 BALLOT
Recommendation:

1. Accept the Initiative Petition Impact Report; and

2. Adopt Resolution placing Initiative Petition Titled: The Citizens' Initiative Amending The General Plan To Require Voter Approval of Any Future Monterey Road Lane Reduction on the November 2022 ballot.

Estimated Time: 45 Minutes

17. RECEIVE WATER RATE STUDY REPORT, ADOPT RESOLUTION

DECLARING INTENT TO IMPLEMENT NEW WATER RATES, COMMENCING PROPOSITION 218 NOTICES, AND SETTING JUNE 1, 2022 AS DATE FOR A

PUBLIC HEARING
Recommendation:

1. Receive Water Rate Study report;

2. Adopt resolution declaring intent to adjust water rates and authorizing the commencement of Proposition 218 noticing; and

3. Set June 1, 2022 as the date for Public Hearing and new water rates adoption.

Estimated Time: 30 Minutes

18. ADOPT THE COMMUNICATIONS, OUTREACH, AND ENGAGEMENT PLAN

AND APPROVE THE RECOMMENDED STAFFING CHANGES
Recommendation:

1. Adopt the Communications, Outreach, and Engagement Plan; and

April 6, 2022
8 2. Approve the classifications for City Clerk/Public Information Officer (PIO); Communications and Engagement Coordinator; and updated Multimedia Coordinator.

Estimated Time: 30 Minutes

FUTURE COUNCIL INITIATED AGENDA ITEMS
Note: in accordance with Government Code Section 54954.2(a), there shall be no discussion, debate and/or action taken on any request other than providing direction to staff to place the matter of business on a future agenda.

ADJOURNMENT

April 6, 2022
9 NOTICE
Any documents produced by the City and distributed to the majority of the City Council less than 72 hours prior to an open meeting, will be made available for public inspection at the City Clerk’s Counter at City Hall located at 17575 Peak Avenue, Morgan Hill, CA, 95037 and at the Morgan Hill Public Library located at 660 West Main Avenue, Morgan Hill, California, 95037 during normal business hours. (Pursuant to Government Code 54957.5)

PUBLIC COMMENT
Members of the Public are entitled to directly address the City Council concerning any item that is described in the notice of this meeting, before or during consideration of that item. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located in the foyer of the Council Chambers and deliver it to the Minutes Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful.

When you are called, proceed to the podium and the Mayor will recognize you. If you wish to address the City Council on any other item of interest to the public, you may do so during the public comment portion of the meeting following the same procedure described above. Please limit your comments to three (3) minutes or less.

Please submit written correspondence to the Minutes Clerk, who will distribute correspondence to the City Council.

Persons interested in proposing an item for the City Council agenda should contact a member of the City Council who may plan an item on the agenda for a future City Council meeting. Should your comments require Council action, your request may be placed on the next appropriate agenda. Council discussion or action may not be taken until your item appears on an agenda. This procedure is in compliance with the California Public Meeting Law (Brown Act) Government Code §54950.

City Council Policies and Procedures (CP 03-01) outlines the procedure for the conduct of public hearings. Notice is given, pursuant to Government Code Section 65009, that any challenge of Public Hearing Agenda items in court, may be limited to raising only those issues raised by you or on your behalf at the Public Hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to the Public Hearing on these matters.

The time within which judicial review must be sought of the action by the City Council, which acted upon any matter appearing on this agenda is governed by the provisions of Section 1094.6 of the California Code of Civil Procedure.

For a copy of City Council Policies and Procedures CP 97-01, please contact the City Clerk’s office (408) 779-7259, (408) 779-3117 (fax) or by email [email protected].

AMERICANS WITH DISABILITIES ACT (ADA)
In compliance with the Americans with Disabilities Act, if you are a disabled person and you need a disability-related modification or accommodation to participate in this meeting, please contact the City Clerk's Office at (408)779-7259, (408)779-3117 (fax) or by email [email protected]. Requests must be made as early as possible and at least two-full business days before the start of the meeting.

April 6, 2022
10

1 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Michelle Bigelow, Deputy City Clerk
APPROVED BY: City Manager

CALL FOR A GENERAL MUNICIPAL ELECTION TO BE HELD ON
TUESDAY, NOVEMBER 8, 2022

RECOMMENDATION(S)

1. Adopt resolution calling for a General Municipal Election to be held on Tuesday, November 8, 2022 to elect a Mayor, one Council Member from District B, and one Council Member from District D; and

2. Adopt resolution requesting the services of the Board of Supervisors of the County of Santa Clara and the Registrar of Voters Office - and the Consolidation of the Election.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Protecting the Environment and Preserving Open Space and Agricultural Land Maintaining and Enhancing Infrastructure
Supporting our Youth, Seniors, and Entire Community
Fostering a Positive Organizational Culture
Preserving and Cultivating Public Trust
Preserving our Community History
Enhancing Diversity and Inclusiveness
Advancing Regional Initiatives
2022-2023 Strategic Priorities
Fiscal Sustainability
Community Outreach, Engagement, and Messaging
Economic Development
Affordable Housing and Homelessness
Transportation
REPORT NARRATIVE:

Pursuant to Election Code § 10002, the attached Resolution “A” calls for a General

1 Municipal Election to be held on Tuesday, November 8, 2022 to elect a Mayor for a twoyear term; one Council Member from District B for a four-year term; and one Council Member from District D for a four-year term.

Section 7 of Resolution “A” provides “that in the event of a tie vote (if any two or more persons receive an equal and the highest number of votes for an office) the City Council, in accordance with Election Code § 15651(b), shall conduct a special runoff election to resolve the tie vote and such special runoff election is to be held on a Tuesday not less than 40 days nor more than 125 days after the administrative or judicial certification of the election which resulted in a tie vote.” The Council can adopt Resolution “A,” as presented, with the requirement that a tie vote will be resolved by special election. Should the Council wish to resolve a tie vote by lot, the Council should amend Section 7 of Resolution “A” to read:
“SECTION 7. That in the event of a tie vote (if any two or more persons receive an equal and the highest number of votes for an office) as certified by the County of Santa Clara, Registrar of Voters Office, the City Council, in accordance with Election Code § 15651(a), shall set a date and time and place and summon the candidates who have received the tie votes to appear and will determine the tie by lot.” Resolution “B” (attached) requests the services of the Santa Clara County Board of Supervisors and the Registrar of Voters’ Office; and the consolidation of the election.

These are standard procedures for General Municipal Elections and the consolidation with other jurisdictions helps to keep election costs to a minimum.

Section 5 of Resolution “B”, Candidates’ Statements, establishes a 200-word limitation for the Candidates’ Statements. Per City Council Resolution No. 16-005, Section 6 of Resolution B provides that candidates pay half the estimated costs to submit a “Candidate Statement.” The Santa Clara County Registrar of Voters Office has provided Candidate Statements estimates as follows: Mayor: $2,750; District B seat:
$2,450; and District D seat: $2,470 per candidate.

The City Council typically certifies the general municipal election results the second week in December following the election.

COMMUNITY ENGAGEMENT:

Involve
As a General Law City, Morgan Hill is governed by Government and Election Codes for the purpose of electing municipal officers (e.g., mayor, council members, and city treasurer).

Adoption of the two attached resolutions that call for a General Municipal Election to be held in Morgan Hill on November 8, 2022, and the consolidation of the election allows registered voters in the City of Morgan Hill to be involved in the democratic process of electing their municipal officers.

1 ALTERNATIVE ACTIONS:

Section 7 of Resolution “A” discusses the action the Council will take to resolve a tie vote: conducting a special runoff election to resolve the tie vote. If this is the election procedure the Council wishes to use to resolve a tie vote, no modification to Resolution “A” is necessary. However, should the Council wish to resolve a tie vote by “lot”; Section 7 of Resolution “A” will need to be amended to read as follows:
“Section 7. That in the event of a tie vote (if any two or more persons receive an equal and the highest number of votes for an office) as certified by the County of Santa Clara, Registrar of Voters Office, the City Council in accordance with Election Code § 15651(a), shall set a date and time and place and summon the candidates who have received the tie votes to appear and will determine the tie by lot.” August 12, 2022, is the last day a municipality can submit a Measure Resolution to the County of Santa Clara/Registrar of Voters Office to be included on the November 6, 2022 ballot. This deadline requires that the City Council take action in adopting a resolution(s) on a ballot measure(s) prior to August 12, 2022. Should the City Council wish to place a measure(s) on the November 6, 2022 ballot, a staff report and accompanying resolution(s) will return to the City Council for action.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

Municipal elections are conducted every two years for the purpose of electing officers as required by law.

FISCAL AND RESOURCE IMPACT:

The estimated election expenses of $200,000 will be included in the FY 2022-23 budget. This includes the cost for election services for a Mayor and two District Council seats, three candidate statements for the Mayor seat and five candidate statements for each Council seat, election certificates, and translation costs.

CEQA (California Environmental Quality Act):

Not a project.

The calling of a municipal election is not a project, as defined in Section 15378 of the State CEQA guidelines.

RESOLUTION “A”
RESOLUTION NO. 22-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF MORGAN HILL, CALIFORNIA, CALLING, AND

GIVING NOTICE FOR THE HOLDING OF A GENERAL

MUNICIPAL ELECTION TO BE HELD ON TUESDAY,
NOVEMBER 8, 2022, FOR THE ELECTION OF CERTAIN

OFFICERS AS REQUIRED BY THE PROVISIONS OF THE

LAWS OF THE STATE OF CALIFORNIA RELATING TO

GENERAL LAW CITIES
WHEREAS, under the provisions of the laws relating to general law cities in the State of California a General Municipal Election shall be held on Tuesday, November 8, 2022, for the election of Municipal Officers.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL,

CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. Pursuant to the requirements of the laws of the State of California relating to General Law Cities, there is called and ordered to be held in the City of Morgan Hill, California, on Tuesday, November 8, 2022, a General Municipal Election for the purpose of electing a Mayor for the full term of two-years a Member of the City Council from District “B”, and a Member of the City Council from District “D”, for the full term of four-years.

SECTION 2. That the ballots to be used at the election shall be in form and content as required by law.

SECTION 3. That the City Clerk is authorized, instructed, and directed to coordinate with the Registrar of Voters of the County of Santa Clara to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.

SECTION 4. That the polls for the election shall be open at seven o’clock a.m. of the day of the election and shall remain open continuously from that time until eight o’clock p.m. of the same day when the polls shall be closed, pursuant to Election Code § 10242, except as provided in § 14401 of the Elections Code of the State of California.

SECTION 5. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections.

SECTION 6. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election, in time, form and manner as required by law.

City of Morgan Hill
Resolution No. 22-XXX

SECTION 7. The City Council authorizes the City Clerk to administer said election and all reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.

SECTION 8. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.

PASSED AND ADOPTED by the City Council of Morgan Hill at a Regular Meeting held on the 6th day of April 2022 by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:
____________________________ _______ ________________________________ RICH CONSTANTINE, Mayor MICHELLE BIGELOW, City Clerk
 CERTIFICATION 
I, Michelle Bigelow, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No.22-XXX, adopted by the City Council at the meeting held on April 6, 2022.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk

RESOLUTION “B”
RESOLUTION NO. 22-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF MORGAN HILL, CALIFORNIA, REQUESTING THE

BOARD OF SUPERVISORS OF THE COUNTY OF SANTA

CLARA TO CONSOLIDATE A GENERAL MUNICIPAL
ELECTION TO BE HELD ON TUESDAY, NOVEMBER 8,
2022 WITH THE GUBERNATORIAL STATEWIDE

GENERAL ELECTION TO BE HELD ON THE SAME
DATE PURSUANT TO § 10403 OF THE ELECTIONS CODE
WHEREAS, the City Council of the City of Morgan Hill called a General Municipal Election to be held on Tuesday, November 8, 2022, for the purpose of the election of a Mayor, a Member of the City Council from District “B”, and a Member of the City Council from District “D” and;
WHEREAS, it is desirable that the General Municipal Election be consolidated with the statewide Gubernatorial General Election to be held on the same date and that within the city the precincts, polling places and election officers of the two elections be the same, and that the Registrar of Voters Office of the County of Santa Clara canvass the returns of the General Municipal Election and that the election be held in all respects as if there were only one election;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL,

CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. That pursuant to the requirements of §10403 of the Elections Code, the Board of Supervisors of the County of Santa Clara is hereby requested to consent and agree to the consolidation of a General Municipal Election with the statewide Gubernatorial General Election on Tuesday, November 8, 2022, for the purpose of the election of a Mayor, a Member of the City Council from District B, and a Member of the City Council from District D.

SECTION 2. That the Board of Supervisors of the County of Santa Clara is requested to issue instructions to the Registrar of Voters Office to take any and all steps necessary for the holding of the consolidated election.

SECTION 3. That the Registrar of Voters of the County of Santa Clara is authorized to canvass the returns of the General Municipal Election. The election shall be held in all respects as if there were only one election, and only one form of ballot shall be used. The election will be held and conducted in accordance with the provisions of law regulating the statewide/general election.

City of Morgan Hill
Resolution No. 22-XXX

SECTION 4. That the City of Morgan Hill recognizes that additional costs will be incurred by the County of Santa Clara by reason of this consolidation and agrees to reimburse the County for any costs.

SECTION 5. Candidates’ Statements. Candidates shall not be permitted to submit materials other than the candidate’s statement with the sample ballot and voter’s pamphlet. The Candidates’ statement shall be two hundred (200) words or less.

SECTION 6. Candidates’ Statement Fee. Pursuant to City Council Resolution No. 16-005, adopted January 20, 2016, candidates will be required to pay half of the costs charged by the Santa Clara County Registrar of Voters Office to submit and publish a Candidate Statement at the time the candidate statement is filed with the City Clerk.

SECTION 7. That the City Clerk is hereby directed to file a certified copy of this resolution with the Board of Supervisors and the Registrar of Voters Office of the County of Santa Clara.

SECTION 8. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Morgan Hill at a regular meeting held on the 6th day of April 2022.

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:
____________________________ _______ ___________________________ RICH CONSTANTINE, Mayor MICHELLE BIGELOW, City Clerk

City of Morgan Hill
Resolution No. 22-XXX

 CERTIFICATION 
I, Irma Torrez, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No. 22-XXX, adopted by the City Council at a regular meeting held on April 6, 2022.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk

RESOLUTION NO. 16- 005

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORGAN HILL ADOPTING REGULATIONS FOR

CANDIDATES FOR ELECTIVE OFFICE PERTAINING TO

CANDIDATE STATEMENTS SUBMITTED TO THE VOTERS

FOR GENERAL MUNICIPAL ELECTIONS
WHEREAS, Section 13307 ofthe California Elections Code provides that the governing body of a local agency adopt regulations pertaining to materials prepared by any candidate for a municipal election, including the costs thereof.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morgan Hill as follows:

Section I. Recitals. The City Council does hereby find, determine and resolve that the foregoing recital is true and correct.

Section 2. Approval and Authorization. The City Council does further resolve, order and/ or direct as follows:
a. That the City Clerk shall advise all candidates for nonpartisan elected office of the County of Santa Clara's Registrar ofVoters'(" Registrar") guidelines regarding candidate statements of qualifications as described in the Registrar' s Gubernatorial General Election Candidate Guide, as amended each election cycle.
b. That the City Clerk shall provide each candidate with the estimated cost of printing, handling, translating, and mailing of the candidate statement ( the " Costs") as such are determined by the Registrar.

Based on the estimate of the Costs provided by the Registrar, the City will require candidates to pay half of the estimate of the Costs at the time the candidate statement is filed with the City elections official. As the estimate of the Costs is subject to change based on the actual costs determined after the election, the City will, on a pro rata basis, bill the candidate for the additional actual expense or refund any excess paid depending on the final actual Costs. In the event of underpayment, the candidate will be required to pay the balance of the Costs incurred within 30 days of the election. In the event of overpayment, the City will prorate the excess amount among the candidates and refund the excess amount paid within 30 days of the election.

1. Candidates that claim to be indigent shall submit an application for a waiver of the Costs, consisting of a Waiver of Candidate Statement Deposit Form, Statement of Financial Worth Form, and a copy of their most recent federal income tax report, to the City Clerk to determine eligibility. The City Clerk shall make a determination of finding regarding the candidate' s indigence. The extremely low category of the guidelines established by the federal Housing and Urban Development Department for Santa Clara County is to be used to determine eligibility. If a candidate is determined to be indigent, the City shall bear the full Costs. If it is determined that a candidate is not indigent, the candidate shall, within three days of the notification, excluding Saturdays, Sundays, and state/ City holidays, withdraw the candidate statement or pay the requisite fee. If the candidate fails to respond with the time prescribed, the City shall not be obligated to print and mail the candidate statement.

2. The estimate of the Costs includes any translation required by the Federal Voting Rights Act of 1965 and any other applicable federal or state laws. The candidate will be required to pay for the

City of Morgan Hill
Resolution No. 16- 005

cost of translating the candidate statement into any foreign language that is not required pursuant to the Federal Voting Rights Act of 1965 and any other applicable federal or state laws, but is requested as an option by the candidate.

C. That the City Clerk is directed to provide each candidate a copy of this Resolution with the Candidate Information and Nomination Packet at the time nomination papers are taken out.

Section 3. The provisions of any existing Resolution as heretofore adopted by the City Council that are in conflict with the provisions of this Resolution are hereby repealed This Resolution shall take effect immediately upon adoption and shall apply at the next ensuing municipal election and at each municipal election after that time.

PASSED AND ADOPTED by the City Council of Morgan Hill at a Regular Meeting held on the 20`h day of January, 2016 by the following vote:

AYES: COUNCIL MEMBERS: Larry Carr, Rich Constantine, Marilyn Librers Gordon Siebert, Steve Tate
NOES: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
STEVE TATE, Mayor
ATTEST:

DATE: o/ 12 0 _ r
HIMA TORREZ, City Cler )
a) CERTIFICATION crz
I, Irma Torrez, City Clerk of the City of Mogan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No. 16- 005, adopted by the City Council at the meeting held on January 20, 2016.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE• f - < 1016' Q -
IRMA TORREZ, City Clerk/

2 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Yat Cho, Senior Project Manager
APPROVED BY: City Manager

ACCEPT CENTENNIAL RECREATION CENTER EXPANSION PROJECT

RECOMMENDATION(S)

1. Accept as complete the Centennial Recreation Center Expansion Project;

2. Authorize the City Engineer to sign the Notice of Completion; and

3. Direct the City Clerk to file said Notice of Completion with the County Recorder's Office.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Supporting our Youth, Seniors, and Entire Community
2022-2023 Strategic Priorities
Fiscal Sustainability
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
REPORT NARRATIVE:

In working with Weston Miles Architects (WMA), the Centennial Recreation Center Expansion project plans and specifications were completed in May 2019 for a 3,640 square foot expansion to the existing Centennial Recreation Center. This new expansion includes a fitness space, a storage area, and a new parking area with 25 additional spaces (Attachment 1 - Vicinity Map). The bid opening was held on August 13, 2019 and CRW Industries, Inc. was the lowest responsible bidder for the project.

The project was awarded on September 18, 2019 and work began as scheduled in October 2019. In the early part of 2020, the COVID-19 pandemic began and this affected all construction projects in Morgan Hill. During the pandemic, staff worked with CRW Industries, Inc. and WMA to complete the project in a safe and effective manner.

2 The contractor worked with smaller crews and coordinated with subcontractors to minimize working in an enclosed space. Additionally, there were material and labor challenges to the industry and the work was slowed. Due to the pandemic, the project experienced setbacks and delays but was ultimately opened for public use last Spring with all finishing details completed in February 2022.

While there were design and construction changes (both adds and deducts) made to the project, the City, WMA, and CRW Industries, Inc. were able to cost effectively complete the project with one change order for a deduct of $2,072.10 (Attachment 2 - Project Closeout). The final construction contract with CRW Industries, Inc. is $2,441,065.90. Staff recommends accepting this project as it is complete in accordance with the plans and specifications and directing the City Clerk to file the Notice of Completion (Attachment 3 - Notice of Completion)
COMMUNITY ENGAGEMENT:

Inform and Consult
During the pre-design phase of the project, staff conducted a needs assessment to determine the expansion areas of health, wellness, and recreation. Staff collected feedback on the proposed expansion from facility users and staff using four data points:
review of customer comment cards, results of the annual customer satisfaction survey conducted by SEER Analytics, a separate online survey for member use and expansion, and staff and member focus group. WMA, City Staff, and YMCA staff met regularly for a design review prior to completion of design.

Prior to and during construction, staff provided weekly updates through City social media accounts and on the City’s website.

ALTERNATIVE ACTIONS:

Accepting the project in accordance with the contract documents is a required process and enables the City to release any retained funds owed to the contractor per California Public Contract Code Section 7107.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

December 6, 2017 – Approved an agreement with Weston Miles Architects, Inc. for design and construction support services for the Centennial Recreation Center Expansion Project.

April 17, 2018 – The Parks and Recreation Commission reviewed the conceptual plan for the Centennial Recreation Center Expansion Project and recommended approval by the City Council.

May 2, 2018 – City Council approved the conceptual design for Centennial Recreation Center Expansion Project.

2 October 17, 2018 – City Council approved an updated conceptual design for the Centennial Recreation Center Expansion Project.

September 18, 2019 - City Council awarded the Centennial Center Expansion Project to CRW Industries, Inc.

FISCAL AND RESOURCE IMPACT:

The final contract amount for the Centennial Recreation Center Expansion Project is $2,441,065.90. The project was awarded to CRW Industries, Inc. in the amount of $2,443,138 with an authorized contingency of $244,314 (Total of $2,687,452). The project is funded in the adopted Capital Improvement Program budget, under Project #138016, Centennial Recreation Center Expansion Project, utilizing Recreation Center Impact Funds (360). The balance of $246,386.10 will be returned to Fund 360.

CEQA (California Environmental Quality Act):

Categorical Exemption.

The activities described in this Staff Report are categorically exempt under CEQA, specifically pursuant to Section 15301 of CEQA Guidelines (Existing Facilities, Section E2), as this project will be an addition to existing structures provided that the addition will not result in an increase of more than 10,000 square feet if:

1. The project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan and

2. The area in which the project is located is not environmentally sensitive.

©2021 County of
O
0 87.5 175 350 525 700
Feet

SITE MAP

CENTENNIAL RECREATION

CENTER EXPASNSION PROJECT
Engineering and Utilities Department
CIP Engineering Division
G:\R-14\Proj\GIS\John\Yat_WatsonvillePathoVERALL.mxd

CENTENNIAL RECREATION CENTER

EXPANSION PROJECT

CIP Contract Acceptance
Funding Closeout Statement
Project: Centennial Recreation Center Expansion Project Project No: 138016
Date of Project
Award: 18-Sep-19 Project AwardAmount:

Funding Source: F360
Contingency
Authorized:

Date of Project
Acceptance: 6-Apr-22 Total Authorized:

Actual Base
Contract Spent:

Change Orders
Description Date
Council Approval
Reqd? (Y/N)
C.O. #1: Miscellaneous Adds and Deducts 16-Mar-22 N
Total C.O.:

Additional Appropriations
Source Amount Date
None
Total Construction
Amount (Base
Contract plus
CO's):

Construction Fund Balance: $246,386.10

$2,443,138
$244,314
$2,687,452
$2,443,138
-$2,072.10
-$2,072.10
$2,441,065.90

Recording Requested By:
___________________________
When Recorded Mail To:
___________________________
___________________________
___________________________
___________________________
SPACE ABOVE THIS LINE IS FOR RECORDER’S USE

NOTICE OF COMPLETION
Civil Code §§ 8182, 8184, 9204, and 9208
NOTICE IS HEREBY GIVEN THAT:

1. The undersigned is the Owner or agent of the Project described below.

2. Owner’s full name is City of Morgan Hill.

3. Owner’s address is 271 Edmundson Avenue, Morgan Hill, CA 95037.

4. The nature of Owner’s interest in the Project is:

XX Fee ownership __ Lessee __ Other:

5. Construction work on the Project performed on Owner’s behalf is generally described as follows: Pavement Rehabilitation within City of Morgan Hill

6. The name of the original Contractor for the Project is: CRW Industries, Inc.

7. The Project was completed on: February 18, 2022

8. The Project is located at: 271 Edmundson Avenue
Verification: In signing this document, I, the undersigned, declare under penalty of perjury under the laws of the State of California that I have read this notice, and I know and understand the contents of this notice, and that the facts stated in this notice are true and correct. __________________________ ________________________________ Date and Place Signature
________________________________
Scott Creer, City Engineer

3 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Kim Mancera, Municipal Services Assistant
APPROVED BY: City Manager
ADOPT ORDINANCE NO. 2330, NEW SERIES AMENDING TITLE 18, DIVISION I, ZONING CODE SECTION 18.26.020 (LAND USE
REGULATIONS) OF CHAPTER 18.26 (INDUSTRIAL ZONING

DISTRICTS) TO MODIFY THE LAND USES PERMITTED IN THE

INDUSTRIAL ZONING DISTRICTS

RECOMMENDATION(S)
Waive the reading, adopt Ordinance No. 2330, New Series, and declare that said title, which appears on the agenda, shall be determined to have been read by title and further reading waived.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
2022-2023 Strategic Priorities
Fiscal Sustainability
Economic Development
Guiding Documents
Economic Blueprint
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

On March 16, 2022, the City Council introduced Ordinance No. 2330 New Series, by the following roll call vote: AYES: Borgioli, Constantine, Martinez Beltran, McKay Spring; NOES: None ABSTAIN: None; ABSENT: None.

COMMUNITY ENGAGEMENT:

Community engagement on this topic has taken place since July 2020 with the ULI and SVEDA seminars on industrial lands utilization & policy. The Planning Commission held meetings on this topic on September 22, 2020, and March 9, 2021. Information has been shared through the City’s Citywide 411 Newsletter, the Choose Morgan Hill Economic Development eNewsletter, and emails have been sent to stakeholders including industrial property owners, businesses, and commercial real estate brokers.

3 A 10-day public hearing notice was published in the Friday, February 18, 2022 edition of the Morgan Hill Times pursuant to Government Code Sections 65090-65096. Notice was also provided on the website and social media. On February 8, 2022, the Planning Commission held a public hearing regarding the proposed ordinance amendments in which a 10-day public hearing notice was published in the Friday, January 28, 2022 edition of the Morgan Hill Times.

ALTERNATIVE ACTIONS:

Not Applicable.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

On June 6, 2018, the City Council adopted Ordinance No. 2277 N.S., a comprehensive update of Title 18 – Zoning of the City of Morgan Hill Municipal Code. The update included an amendment to the City’s official zoning map consistent with the Morgan Hill 2035 General Plan.

FISCAL AND RESOURCE IMPACT:

Staff regularly brings forward bundles of minor amendments as necessary to enhance, correct, and/or refine the Code; therefore, the cost is borne, and work is accommodated, within the respective division's annual workplan and budget.

CEQA (California Environmental Quality Act):

This ordinance is exempt from environmental review pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA) Guidelines, as the proposed text amendments to the Morgan Hill Zoning Code is not a project with potential for causing a significant effect on the environment requiring California Environmental Quality Act (CEQA) analysis. Additionally, on July 27, 2016, the City Council certified an environmental impact report (EIR) for the Morgan Hill 2035 General Plan. This ordinance is consistent with, and implements, the General Plan and therefore was analyzed in the EIR for the 2035 General Plan. Pursuant to Section 15162 and Section 15183 of the State CEQA Guidelines, no additional review under the California Environmental Quality Act is required.

ORDINANCE NO. 2330, NEW SERIES

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF MORGAN HILL AMENDING TITLE 18, DIVISION I,
ZONING CODE SECTION 18.26.020 (LAND USE
REGULATIONS) OF CHAPTER 18.26 (INDUSTRIAL

ZONING DISTRICTS) TO MODIFY THE LAND USES
PERMITTED IN THE INDUSTRIAL ZONING DISTRICTS.

THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES ORDAIN AS FOLLOWS:

Section 1. Section 18.26.020 (Land Use Regulations) of Chapter 18.26 (Industrial Zoning Districts) of Title 18 (Zoning) is hereby amended to read as follows:

18.26.020 Land use regulations.

A. Permitted Land Uses. Table 18.26-1 identifies land uses permitted in the industrial zoning districts.

Table 18.26-1 Permitted Land Uses in the Industrial Zoning Districts Key
P Permitted Use
A Administrative Use Permit
required
C Conditional Use Permit
required
— Use not allowed
Zoning District Additional
Regulations

CI IO IC IL IG
Residential Uses
Caretaker Quarters — — — C C
Public and Quasi-Public Uses
Colleges and Trade Schools C C C C —
Community Assembly C — — — —
Instructional Services A — — — —

City of Morgan Hill
Ordinance No.2330, New Series

Medical Offices and Clinics
≤ 5,000 sq. ft. P P P P —
5,001 sq. ft. to 20,000 sq. ft. A A A A —
>20,000 sq. ft. C C C C —
Parks and Recreational Facilities C — — C —
Public Safety Facilities C — — C —
Commercial Uses
Adult Businesses — — P P — 18.92.020
Animal-Related Commercial
Uses
Animal Boarding C — — C C
Veterinarian Clinics and
Hospitals

A A A C C
Banks and Financial Institutions C
[4]
— — — —
Business Support Services P C P P P
Cinemas and Theaters A — — — —
Commercial Recreation, Indoor
≤ 15,000 sq. ft. P C C — —
> 15,000 sq. ft. C C C — —
Eating and Drinking Uses
Restaurants, Fast Food C
[4]
—
[5]
—
[5]
—
[5]
—
[5]
Restaurants, Sit-Down C
[4]
—
[5]
—
[5]
—
[5]
—
[5]

City of Morgan Hill
Ordinance No.2330, New Series

Tasting Rooms P
[6]
— — A
[6]
A
[6]
Lodging Facilities
Hotels and Motels P — — — —
Mini-Storage — — — C — 18.92.100
Personal Service C
[4]
—
[5]
—
[5]
—
[5]
—
[5]
Plant Nurseries C — — P P
Professional Offices P P P P —
Retail
Building Materials C — — P P
Convenience Markets C
[4]
—
[5]
—
[5]
—
[5]
—
[5]
General Retail C
[4]
—
[5]
—
[5]
—
[5]
—
[5]
Home Improvement Centers C — — C —
Large Commodity Retail C — — — —
Vehicle-Related Uses
Salvage and Wrecking — — — — C
Towing and Impound — — — C P
Vehicle Repair and
Maintenance, Major
— — — C P
Vehicle Repair and
Maintenance, Minor
— — — P P
[1]
Vehicle Storage, Outdoor — — — C C 18.52.080.C

City of Morgan Hill
Ordinance No.2330, New Series

Wholesaling P — — P P
Industrial Uses
Construction and Material Yards C C C P P 18.26.030.C
Food and Beverage Production
< 5,000 sq. ft. [7] A
[2]
A
[2]
A
[2]
P
[2]
P
[2]
5,000 sq. ft. to 10,000 sq. ft. [7] C
[2]
C
[2]
C
[2]
P
[2]
P
[2]
> 10,000 sq. ft. C C C P
[2,8]
P
[2,8]
Manufacturing, Light P C
[3]
C P P
Manufacturing, General — — — — C
Research and Development P P P P P
Warehousing and Distribution
Warehousing and Distribution,
Large
C C
[3]
C
[3]
C P
Warehousing and Distribution,
Small
C C
[3]
C
[3]
P P
Warehousing and Distribution
with Outdoor Storage
C — — C C
Heavy Distribution — — — — —
Parcel Sorting Facilities — — — — —
Parcel Hub Small < 75,000 sq.
ft.
— — — — —
Parcel Hub Large > 75,000 sq.
ft.
— — — — —

City of Morgan Hill
Ordinance No.2330, New Series

Recycling Facilities
Reverse Vending Machine P C C P P
Recycling Collection Facility C — — C C
Recycling Processing Facility — — — — C
Utilities, Major — — — C C
Wireless Communications
Facilities
See Chapter 18.96
Agriculture and Natural
Resource Uses
Crop Cultivation — —
Other Uses
Accessory Uses See Chapter 18.44
Temporary Uses See Section 18.92.150
Section 2. Severability. Should any provision of this ordinance be deemed unconstitutional or unenforceable by a court of competent jurisdiction, such provision shall be severed from the ordinance, and such severance shall not affect the remainder of the ordinance.

Section 3. Effective Date; Posting. This Ordinance shall take effect on May 6. 2022. The City Clerk is hereby directed to publish this Ordinance or a summary thereof pursuant to Government Code Section 36933.

City of Morgan Hill
Ordinance No.2330, New Series

THE FOREGOING ORDINANCE WAS INTRODUCED AT A REGULAR MEETING OF THE CITY COUNCIL HELD ON THE 16th DAY OF MARCH 2022, AND WAS FINALLY ADOPTED AT A MEETING OF THE CITY COUNCIL HELD ON THE 6TH DAY OF APRIL 2022, AND SAID ORDINANCE WAS DULY PASSED AND ADOPTED IN ACCORDANCE WITH LAW BY THE FOLLOWING VOTE:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:
______________________________ ________________________________ RICH CONSTANTINE, Mayor MICHELLE BIGELOW, City Clerk
 CERTIFICATE OF THE CITY CLERK 

I, MICHELLE BIGELOW, CITY CLERK OF THE CITY OF MORGAN HILL, CALIFORNIA, do hereby certify that the foregoing is a true and correct copy of Ordinance No. 2330, New Series, adopted by the City Council of the City of Morgan Hill, California at their regular meeting held on the 6th day of April 2022.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE: _______________________ _________________________________ MICHELLE BIGELOW, City Clerk

City of Morgan Hill
Ordinance No.2330, New Series

4 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Charlie Ha, Supervising Civil Engineer
APPROVED BY: City Manager
APPROVE PARCEL MAP FOR DAKOTA DUNNE SUBDIVISION (APN:
726-09-024) AND RELATED SUBDIVISION IMPROVEMENTS

AGREEMENT

RECOMMENDATION(S)

1. Approve the Parcel Map;

2. Authorize the City Manager to execute the Subdivision Improvements Agreement with Michael F. Dunne, Jr. and Jonna Dunne; and

3. Authorize the recordation of the Parcel Map and Subdivision Improvements Agreement.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
2022-2023 Strategic Priorities
Economic Development
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

Dakota Dunne is a 4-lot subdivision with 3 new single-family detached homes and one existing house that will be retained. The project site, identified by Assessor’s Parcel Number (APN) 726-09-024, is located on the north side of Dakota Drive, between Lotus Way and Corsica Way (see attached Site Map).

The Developers, Michael F. Dunne, Jr. and Jonna Dunne, have completed all the conditions of the project’s Tentative Parcel Map which was administratively approved by the Development Services Director on June 1, 2021. The City Council is required to approve the map if it conforms to all the requirements of the Subdivision Map Act, and any conditions of approval for the Tentative Parcel Map.

The Developers have furnished the City with the necessary documents to complete the

4 processing of the Parcel Map and has made provisions to provide the City with the required fees, security, and insurance prior to recordation of the Parcel Map. The Parcel Map conforms to the requirements of the Subdivision Map Act, and conditions of approval have been met. Staff recommends that City Council approve the Parcel Map and authorize the City Manager to sign a Subdivision Improvements Agreement pending review and approval by the City Attorney.

COMMUNITY ENGAGEMENT:

Inform
On June 1, 2021, the Development Services Department considered the Tentative Map application at the close of a duly noticed 10-day public comment period. Residents within a 300-foot radius were invited to review and provide comments on the project.

ALTERNATIVE ACTIONS:

There is no feasible alternative action as the Developers have met the requirements of the Tentative Parcel Map conditions to file for a Parcel Map.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

There were no prior City Council and Commission actions on the project.

FISCAL AND RESOURCE IMPACT:

Development review costs for this project are paid for from development processing fees.

CEQA (California Environmental Quality Act):

Categorically exempt pursuant to Section 15332 (Infill Development).

County of Santa Clara, Sanborn
Engineering and Utilities Department
Land Development Engineering Division

SITE MAP

DAKOTA DUNNE
APN 726-09-024
Document Path: G:\R-14\PROJ\Agustin\GIS\Dunne Dakota.mxd O
0 150 300 450 600 75
Feet

BEL AIR WAY

BELLETTO DR

JULIANN WAY

CORSICA WAY

DIANA AVE

DAKOTA DR

WEICHERT DR

DAKOTA DUNNE
APN 726-09-024

DAKOTA DR

LOTUS WAY

5 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

David Gittleson, Associate Engineer
APPROVED BY: City Manager

APPROVE AGREEMENT WITH MARK THOMAS AND COMPANY FOR

CONSTRUCTION SUPPORT SERVICES ASSOCIATED WITH VALLEY

WATER'S FLOOD CONTROL PROJECT

RECOMMENDATION(S)
Authorize the City Manager to execute and administer a consultant agreement with Mark Thomas and Company for a not to exceed amount of $246,000 for construction support services for City improvements associated with Valley Water’s flood control project.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Protecting the Environment and Preserving Open Space and Agricultural Land Supporting Our Youth, Seniors and Entire Community
Advancing Regional Initiatives
2022-2023 Strategic Priorities
Transportation
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
Morgan Hill 2035 General Plan
Storm Drain Master Plan
Water System Master Plan
REPORT NARRATIVE:

The City has supported Valley Water in efforts to complete the Upper Llagas Creek Flood Protection Project (commonly referred to PL566) for decades. Completion of this project will provide flood control protection along West Little Llagas Creek running through Morgan Hill, protecting homes and businesses. Phase 1 of the Upper Llagas Creek Flood Protection Project south of Watsonville Road is nearing completion. Phase

5 2A of the project is currently under construction and Phase 2B is under design. Phase 2A will construct a tunnel through Nob Hill and a box culvert down Del Monte Avenue and Ciolino Avenue beginning at the Del Monte Avenue and West Dunne Avenue intersection. The project will also complete the last 600 feet of the Hale Extension Project, which includes the installation of a traffic signal at the Hale Avenue and West Main Avenue intersection.

Once Phase 2B of the Upper Llagas Creek Flood Protection Project has been completed, the project will be fully functional and provide the City with the needed flood control protection. At this point, Valley Water intends to fund the entirety of the primary elements of the project. However, the City has identified necessary additional project elements outside the scope of Valley Water’s Project, particularly as it relates to improvements near Hale Avenue between Main and Wright Avenue. In this area, the Flood Control Project will create significant changes to associated roadway, utilities, and storm drain infrastructure. City staff believe it's prudent to fund the necessary improvements to ensure construction only occurs one time in this location. City-funded improvements will include improvements to the roadway and sidewalks, storm drain system, and overhead utilities associated with the flood control project. Additionally, the project will support storm drain improvements south of Ciolino Avenue to support proper connections, adjacent improvements, and to meet trash capture standards.

On June 26, 2019, the City Council Approved an Agreement with Woodard and Curran, Inc. for the design of City improvements associated with Valley Water's Flood Control Phase 2B Project in the amount of $457,271. Mark Thomas and Company is the primary sub-consultant who designed the roadway improvements for the City. City staff is proposing a separate agreement with Mark Thomas and Company to provide construction support services in order to address design revisions and unforeseen conflicts as they arise in the field. A project of this size and complexity will require construction support in order to deliver the project on schedule and control costs. Included in the proposal are support services from T&C Transportion, Schaaf & Wheeler, and PMG.

Therefore, City staff recommends the attached separate contract for Mark Thomas and Company for a not to exceed amount of $246,000 to provide construction support services.

COMMUNITY ENGAGEMENT:

Significant engagement has occurred over the last decade as it relates to the Hale Avenue Extension and the Llagas Creek Flood Protection Projects. Projects of this size require long term decisions be made for the future of Morgan Hill. The City’s General Plan Updates and the Environmental Impact Report for this project both included significant engagement that set the framework for developing a funding strategy and the planning documents. The City’s Hale Avenue Project webpage provides significant project background on the history of the project and its intended purpose and provides regular updates on the project. Valley Water also has a website for their Llagas Creek Flood Protection Project.

The City is currently working with Valley Water on a communication plan for the Hale Avenue section of the project and intends to have that completed by this Fall. Work on

5 the Hale Avenue section of the project is still multiple years away. Once the schedule has been more clearly defined, the City and Valley Water will begin extensive community outreach.

ALTERNATIVE ACTIONS:

The City Council could elect not to provide construction support services associated with the Flood Control Project. This is not recommended as it would be difficult to construct a large project without engineering support from the lead civil design firm and supporting sub-consultants.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The City has taken numerous actions over the last several decades in support of the Upper Llagas Creek Flood Protection Project.

On June 26, 2019, the City Council approved an agreement with Woodard and Curran, Inc. for design of City improvements associated with Valley Water's Flood Control Project. Under this contract, Mark Thomas and Company provided civil design services as a subconsultant.

FISCAL AND RESOURCE IMPACT:

Adequate funds are available for this work and being carried forward from the adopted FY 2018-19 through 2023-24 Capital Improvement Program’s Llagas Flood Control Project (No. 417099), funded through the Storm Drain Impact Fund (303).

CEQA (California Environmental Quality Act):

Environmental Impact Report.

Valley Water, as the lead agency, certified an Environmental Impact Report in May 2014 for the Upper Llagas Creek Flood Control Project (State Clearinghouse No. 2012102032).

1 Updated March 2021

CONSULTANT AGREEMENT FOR DESIGN PROFESSIONALS
Mark Thomas & Company, Inc.

THIS AGREEMENT is entered into and becomes effective on _______________ (Effective Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and Mark Thomas & Company, Inc. a California corporation ("CONSULTANT") hereinafter referred to collectively as “Parties.” In consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows:

1. City Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on _____________, ____, 20___.

2. Term of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until August 1, 2023 at which time CONSULTANT’S services shall be completed. The City Manager is authorized to extend the term of this Agreement for a maximum period of one year. Any such extension shall be in writing and signed by both Parties to this Agreement.

3. Scope of Service. The services to be performed by CONSULTANT shall be to provide design support services, design trash capture structure, and prepare utility easements as further described in Exhibit A.

4. Compensation. CONSULTANT shall be compensated as follows:

4.1. Amount. $246,000.00. Total compensation to CONSULTANT under this Agreement during its initial term set forth in Section 2 above shall not exceed Two Hundred Forty Six Thousand dollars and shall be billed based on the rate and basis set forth in Exhibit B. If the City Manager extends the term of this Agreement for up to one year pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to CONSULTANT, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement, and provided further that in no event shall such maximum compensation allowed for the term exceed the City Manager's authority pursuant to Chapter 3.04 of the Morgan Hill Municipal Code, unless otherwise authorized by City Council.

4.2. Billing. CONSULTANT shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services performed and expenses incurred (if such expenses are reimbursable pursuant to Exhibit B) by CONSULTANT on a monthly basis unless otherwise specified in Exhibit B. All invoices shall be sent to the CITY addressed to the department head or project manager identified below in Section 13 Notices. Any rate charged shall be prorated where services are interrupted or not provided for any rate period (for example, any monthly rate charge should be prorated when services were interrupted or provided for only part of the month). For services billed on an hourly rate, the minimum unit of billed time shall not exceed one tenth of one hour. CITY shall pay for services and expenses (if so provided in Exhibit B) up to the limit of compensation set forth above, that in the CITY’S judgment were necessary and reasonable. Services for work performed and expenses incurred in excess of the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.

5. Termination. CITY or CONSULTANT shall have the right to terminate this Agreement, without cause, by giving thirty (30) days' written notice or less under urgent circumstances. Upon such

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termination, CONSULTANT shall submit to CITY an itemized statement of services performed for which compensation has not been paid. CITY may require CONSULTANT to complete certain work product or documents and CONSULTANT shall deliver to CITY all documents in its possession without additional compensation to CONSULTANT. The City Manager of CITY is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.

5.1. Non-Appropriations. Notwithstanding anything contained in this Agreement to the contrary, if insufficient funds are appropriated, or funds are otherwise unavailable in the budget for CITY for any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify CONSULTANT of such occurrence, and this Agreement shall terminate after the last day during the fiscal year for which appropriations shall have been budgeted for CITY or are otherwise available for payments.

6. Performance of Work. CONSULTANT represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services. Services shall be performed by CONSULTANT in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of the CONSULTANT’S profession. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement and all applicable federal, state, and local laws. CONSULTANT shall perform all work and services under this Agreement in conformance with the time schedule set forth on Exhibit C, "Schedule of Performance," attached hereto and incorporated herein by this reference. CITY'S City Manager is authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement. If CONSULTANT desires to leave or store any of CONSULTANT’S equipment at a CITY site while CONSULTANT is performing work or service pursuant to this Agreement, CONSULTANT will first obtain the consent of CITY'S City Manager, or his/her delegate, to do so, and any such storage shall occur only in the manner and location allowed by such CITY official and entirely at CONSULTANT’S sole risk.

7. Insurance Requirements. CONSULTANT shall procure and provide proof of the insurance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of CONSULTANT, including its subcontractors, employees, and agents, relating to, or arising from, the performance of any work or service under this Agreement, and must remain in full force and effect at all times during the period covered by this Agreement. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or “umbrella” policies, provided each such policy complies with the requirements set forth herein. Any deductibles or self-insured retentions must be declared to and approved by City. CONSULTANT further understands that the CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to CONSULTANT, at any time as deemed necessary to protect the interests of the CITY.

7.1. Insurance Types and Amounts.

7.1.1. Commercial General Liability (CGL). CONSULTANT shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

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7.1.2. Automobile Liability. CONSULTANT shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if CONSULTANT does not own automobiles, then CONSULTANT shall maintain Hired/Non-owned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

7.1.3. Workers’ Compensation Insurance and Employer’s Liability. CONSULTANT shall maintain Workers Compensation coverage, as required by law, in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater. If CONSULTANT is selfinsured, CONSULTANT shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.

7.1.4. Pollution (Environmental) Liability. If the performance of CONSULTANT’S work or service under this Agreement involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, CONSULTANT shall procure and maintain Pollution Liability covering the CONSULTANT’S liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Agreement.

Coverage shall be provided for both work performed on site, as well as during the transport of hazardous materials. Such coverage shall be in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

7.1.5. Professional Liability.

7.1.5.1. If the performance of CONSULTANT’S work or service under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), CONSULTANT shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater. Further, if CONSULTANT maintains a claims-made policy, CONSULTANT shall provide written evidence of such insurance to the CITY for at least five (5) years after the completion of work performed under this Agreement.

7.1.5.2. If the performance of CONSULTANT’S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers,

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hardware engineers, or other systems consultants), CONSULTANT shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

7.1.6. Sexual Abuse/Molestation Liability (SML): If the performance of CONSULTANT’S work or service under this Agreement involves contact with minors, CONSULTANT shall procure and maintain Sexual Abuse and Molestation insurance in the minimum amount of: (i) two hundred thousand dollars ($200,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

7.2. Endorsements. CONSULTANT shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:

7.2.1. General Liability and pollution liability (when pollution liability applies).

7.2.1.1. The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds;

7.2.1.2. The insurer waives the right of subrogation against the City of Morgan Hill and the CITY’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers; and

7.2.1.3. Insurance shall be primary non-contributing.

7.2.2. Workers Compensation.

If the performance of CONSULTANT’S work or service under this Agreement involves access to or activity on any property or premises owned or occupied by the CITY, including, but not limited to, CONSULTANT’S presence during site visits and meetings, then insurer waives the right of subrogation against the City of Morgan Hill and the CITY’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.

7.3. Qualification of Insurers. All insurance required pursuant to this Agreement must be issued by a company licensed and admitted, or otherwise legally authorized to carry out insurance business in the State of California, and each insurer must have a current A.M.

Best's financial strength rating of “A” or better and a financial size rating of “VII” or better.

7.4. Certificates. CONSULTANT shall furnish CITY of Morgan Hill with copies of all certificates as outlined herein, whether new or modified, promptly upon receipt. In the event of a claim or legal action, CONSULTANT shall promptly furnish CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to the CONSULTANT’S agreement with the CITY shall be canceled or materially changed except after thirty (30) days' notice by the insurer to CITY. A "material change" is a change that results in noncompliance with any insurance requirements in this section 7. Certificates, including

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renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address provided herein.

Certificate Holder address:

City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037

8. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable for any default or liability under this Agreement.

9. Compliance with Law.

9.1. CONSULTANT and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. CONSULTANT and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, sexual orientation, national origin, mental disability, physical disability, medical condition, or ancestry, in any activity pursuant to this Agreement.

9.2. Compliance with Wage and Hour Laws: Consultant, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state, and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code.

Final Judgments, Decisions, and Orders: For purposes of this Section, a “final judgment, decision, or order” refers to one for which all appeals have been exhausted or the time to appeal has expired. Relevant investigatory government agencies include: the federal Department of Labor, the California Division of Labor Standards Enforcement, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

Prior Judgments against CONSULTANT and/or its Subcontractors: BY SIGNING THIS

AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS DISCLOSED ANY FINAL

JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY FINDING – IN THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT – THAT CONSULTANT OR ITS SUBCONTRACTOR(S) HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER

AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS SATISFIED AND COMPLIED WITH – OR HAS REACHED AGREEMENT WITH THE CITY REGARDING THE MANNER IN WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

Judgments or Decisions During Term of Contract: If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that CONSULTANT or an subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or CONSULTANT learns of such a judgment, decision, or order that was not previously disclosed, CONSULTANT

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shall inform the City Attorney, no more than fifteen (15) days after the judgment, decision or order becomes final or of learning of the final judgment, decision, or order.

CONSULTANT and its subcontractors shall promptly satisfy and comply with any such judgment, decision, or order, and shall provide the City Attorney with documentary evidence of compliance with the final judgment, decision, or order within five (5) days of satisfying the final judgment, decision, or order. The City reserves the right to require CONSULTANT to enter into an agreement with the City regarding the manner in which any such final judgment, decision, or order will be satisfied.

City’s Right to Withhold Payment: Where CONSULTANT or any subcontractor it employs to perform work under this Agreement has been found in violation of any applicable wage and hour law by a final judgment, decision or order of a court or government agency, the City reserves the right to withhold payment to CONSULTANT until such judgment, decision or order has been satisfied in full.

Material Breach: Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

Notice to City Related to Wage Theft Prevention: Notice provided to the City Attorney as required under this Section shall be addressed to: City Attorney, City of Morgan Hill, 17575 Peak Avenue, Morgan Hill, CA 95037. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

10. Independent Contractor. CONSULTANT is an independent contractor and not an agent or employee of CITY.

11. Confidentiality. All data, documents, or other information received by CONSULTANT from CITY or prepared in connection with CONSULTANT’S services under this Agreement are deemed confidential and shall not be disclosed to any third party by CONSULTANT without prior written consent by CITY.

12. Conflict of Interest and Reporting. CONSULTANT shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.

13. Notices. All notices shall be personally delivered or mailed, via first class mail to the below listed address. These addresses shall be used for delivery of service of process. Notices shall be effective five (5) days after date of mailing, or upon date of personal delivery.

Address of CONSULTANT is as follows:

Mark Thomas & Company, Inc.

Mike Cooper P.E.
2290 North First Street, Suite 304
San Jose, CA 95131
Address of CITY is as follows:

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Development Services Center
David Gittleson P.E.

City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:

City Clerk
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037

14. Licenses, Permits and Fees. CONSULTANT shall obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes, and regulations of the federal, state, and local government.

15. Consultant's Proposal. If applicable, this Agreement shall include CONSULTANT'S proposal or bid which is incorporated herein. In the event of any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.

16. Maintenance of Records.

16.1. Maintenance. CONSULTANT shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and CITY rules and ordinances related to services provided under this Agreement. CONSULTANT shall maintain records for a period of at least 3 years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the 3-year period, then CONSULTANT shall retain said records until such action is resolved.

16.2. Access to and Audit of Records. The CITY shall have the right to examine, monitor and audit all records, documents, conditions, and activities of the CONSULTANT and its subcontractors related to services under this Agreement. Pursuant to Government Code Section 8546.7, if this Agreement involves the expenditure of public funds in excess of $10,000, the Parties to this Agreement may be subject, at the request of the CITY or as part of any audit of the CITY, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.

16.3. Ownership of Work Product. All documents or other information developed or received by CONSULTANT for work performed under this Agreement shall be the property of CITY. CONSULTANT shall provide CITY with copies of these items upon demand or upon termination of this Agreement.

17. Familiarity with Work. By executing this Agreement, CONSULTANT represents that: (1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the difficulties and restrictions of the work under this Agreement.

Should CONSULTANT discover any conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY and shall not proceed, except at CONSULTANT'S risk, until written instructions are received from CITY.

18. Time of Essence. Time is of the essence in the performance of this Agreement.

19. No Assignment. Neither this Agreement nor any portion shall be assigned by CONSULTANT, without prior written consent of CITY. Any attempted assignment not first approved by CITY shall be void and, at CITY'S option, shall terminate this Agreement effective as of the date of such attempted assignment.

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20. Attorney Fees. In any legal action, dispute or arbitration arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred.

21. Defense and Indemnification.

21.1. Defense and Indemnification for Design Professional Services. Consistent with California Civil Code Section 2782.8, for design professional services to be performed under this agreement by a design professional, as that term is defined under said Section 2782.8, CONSULTANT shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers (“INDEMNITEES”) from and against any and all claims, liabilities, expenses, liens, or damages of any nature, including liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, and/or its agents, officers, employees, subcontractors, or independent contractors in performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement (“CLAIM”) to the extent of CONSULTANT’S proportionate percentage of fault.

21.2. Defense and Indemnification for Non-Design Professional Services. For all services performed under this agreement not covered by Section 21.1 above, CONSULTANT shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers (“INDEMNITEES”) from and against any and all claims, liabilities, expenses, liens, or damages of any nature, including liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the performance of this Agreement or the failure to comply with any obligations contained in this Agreement by CONSULTANT, and/or its agents, officers, employees, subcontractors, or independent contractors (“CLAIM”).

21.3. Exceptions. CONSULTANT is not required to indemnify INDEMNITEES against liability for bodily injury, property damage or personal injury, or any other loss, damage or expense arising from the sole negligence, active negligence, or willful misconduct of the CITY.

21.4. Not limited by insurance. The indemnity, defense and hold harmless provisions of this Agreement apply to all CLAIMS alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by CONSULTANT.

21.5. Right to Offset. CITY shall have the right to offset against any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’S failure to pay CITY promptly any indemnification arising under this Section (21) and any amount due CITY from CONSULTANT arising from CONSULTANT’S failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers' compensation laws.

21.6. Interpretation. This Section shall constitute an agreement or contract of indemnity, incorporating the interpretations under California Civil Code Section 2778. It is expressly understood and agreed that the obligation of the CONSULTANT to indemnify the

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INDEMNITEE shall be as broad and inclusive as permitted by the laws of the State of California and shall survive termination of this Agreement.

22. Entire Agreement; Modification; Conflicting Provisions. This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agreements, oral or written. This Agreement may be modified, or provisions waived, only by a subsequent mutual written agreement executed by CITY and CONSULTANT. If the provisions contained in the main body of this Agreement conflict with any provision contained in an exhibit to this Agreement, the provisions of the main body of this Agreement shall govern and control over any provision contained in an exhibit to this Agreement.

23. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. This Agreement was entered into and is to be performed in the County of Santa Clara. Any action or dispute arising out of this Agreement shall only be brought in Santa Clara County.

24. Interpretation. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, California Civil Code § 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.

25. Preservation of Agreement. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

26. Binding Agreement. Notwithstanding the provisions of Section 19 above, this Agreement shall bind any and all successors in interest, legal representatives and/or other permitted assignees or transferees of CONSULTANT in the same manner as if those successors in interest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.

27. □ Data Sharing. This Agreement requires access by CONSULTANT to CITY’S Geographic Information System (GIS) DATA for CONSULTANT to perform the work. CITY agrees to provide the GIS DATA to CONSULTANT solely for the purpose of performance of contracted work with the CITY upon the terms and conditions specified in Exhibit D, incorporated herein by this reference. [Signatures on Next Page]

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EXHIBIT A

SCOPE OF SERVICES

1. Revise improvement plans previously prepared under contract with Woodard and Current, Phase 2A Phase 2B.
a. Revise title block and plan format to Valley Water plan set format. b. Revise pedestrian ramps as directed by the City in Phase 1A. c. Revise SD, curb alignment, street light and Rule 20 plans at Hale 2A conform per changes during construction of Phase 2A.
d. Add Storm Drain Trash Capture Structure required by the City to be designed by Schaaf & Wheeler.
e. Prepare Plats and Legal Descriptions for three Public Utility Easements required for Rule 20 Utility Undergrounding.

2. Design Services During Construction including:
a. Review of Submittals and RFI's.
b. Attendance at weekly construction meetings.
c. Coordination with PG&E and other utility companies.

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EXHIBIT B

SCHEDULE OF COMPENSATION RATES

Principal
Sr. Project ManagerDesign Engineer IIDesign Engineer ILAUD Project ManagerLandscape ArchitectLandscape Designer IProject CoordinatorY&C TransportationSchaaf & Wheeler PMG Sub MarkUp
$438 $270 $147 $121 $216 $162 $103 $121 10%

1.0 HALE AVE -HALE 2A AND 2B

1.1 Final (Bid) PS&E 4 20 90 20 24 48 168 4 378 $53,550 5,000 - 5,000 $1,000 $64,550

1.2 Design Support During Construction Hale 2A 20 120 40 4 20 8 212 $32,952 5,000 10,000 $1,500 $49,452

1.2 Design Support During Construction Hale 2B 40 80 20 16 20 8 184 $32,644 5,000 14,850 5,000 $2,485 $59,979

1.3 Trash Capture Structure 4 8 12 $2,256 - 40,670 - $4,067 $46,993

1.4 PUE's 0 $10,000 - - - $0 $10,000
Subtotal Phase 1 4 84 298 80 44 88 168 20 786 $131,402 $15,000 $55,520 $20,000 $9,052 $230,974

2.0 CONTINGENCY

2.1 Contingency 0 $15,026 - - - $0 $15,026
Subtotal Phase 2 0 0 0 0 0 0 0 0 0 $15,026 $0 $0 $0 $0 $15,026 TOTAL HOURS 4 84 298 80 44 88 168 20 786
TOTAL COST $1,752 $22,680 $43,806 $9,680 $9,504 $14,256 $17,304 $2,420 $146,428 $15,000 $55,520 $20,000 $9,052 $246,000 COST PROPOSAL FOR PROJECT SCOPE: Hale Ave - Phase 2A and Phase 2B (Final PS&E/DSDC)

TOTAL COST
Subconsultants
Total
Hours
Total MT
Cost
2/4/2022

RATE SCHEDULE (P-1)
Engineering Services Survey Services
Intern $52 ‐ $90 Survey Intern $65 ‐ $112
Technician $72 ‐ $137 Survey Technician $85 ‐ $151
Planner I$85 ‐ $115 Sr. Survey Technician $98 ‐ $186
Design Engineer I $101 ‐ $144 Surveyor $118 ‐ $171
Planner II $111 ‐ $137 Sr. Surveyor $134 ‐ $198
Sr. Technician $124 ‐ $180 Lead Survey Technician $131 ‐ $218 Design Engineer II $131 ‐ $169 Project Surveyor $164 ‐ $216 Project Engineer $154 ‐ $191 Sr. Project Surveyor $180 ‐ $238 Sr. Project Engineer $167 ‐ $227 Survey Manager $191 ‐ $263 Sr. Technical Engineer $167 ‐ $227 Sr. Survey Manager $238 ‐ $311 Project Manager $200 ‐ $256 Survey Division Manager $284 ‐ $396 Technical Lead $200 ‐ $256 ** Single Chief $157 ‐ $216
Sr. Project Manager $232 ‐ $328 ** Single Instrumentman $150 ‐ $191 Sr. Technical Lead $222 ‐ $328 ** Single Chainman $132 ‐ $187 Engineering Manager $294 ‐ $378 ** Apprentice $71 ‐ $176 Practice Area Leader $294 ‐ $378 ** 1 Person Field Crew $157 ‐ $216 Sr. Engineering Manager $327 ‐ $450 ** 2 Person Field Crew $290 ‐ $403 Principal $422 ‐ $500 ** 3 Person Field Crew $361 ‐ $580 Drone Pilot $220
Construction Management Services
Office Technician $65 ‐ $108 Project Support/Coordination Services Office Engineer $115 ‐ $216 Project Assistant $72 ‐ $108 ** Asst. Resident Engineer $164 ‐ $297 Technical Writer $69 ‐ $115 ** Inspector ‐ CM $164 ‐ $297 Sr. Project Assistant $101 ‐ $137 RE/Structural Representative $213 ‐ $360 Project Coordinator $98 ‐ $144 Project Manager ‐ CM $213 ‐ $324 Graphic Designer $105 ‐ $162 Sr. Project Manager ‐ CM $229 ‐ $360 Sr. Technical Writer $105 ‐ $176 Area Manager ‐ CM $321 ‐ $468 Project Accountant $105 ‐ $162 Division Manager ‐ CM $294 ‐ $360 Sr. Project Coordinator $131 ‐ $173 Sr. Graphic Designer $118 ‐ $198
District Management Services Sr. Project Accountant $164 ‐ $223 ** Inspector ‐ Apprentice $69 ‐ $104 Sr. Graphic Manager $147 ‐ $216 ** Inspector $101 ‐ $140
** Sr. Inspector $128 ‐ $166 Urban Planning/Landscape Architecture Services Assistant Sanitary Engineer $144 ‐ $184 Landscape Intern $49 ‐ $90 Associate Sanitary Engineer $160 ‐ $216 Landscape Designer I $85 ‐ $115 Sanitary Project Engineer $160 ‐ $248 Landscape Designer II $111 ‐ $137 Sr. Sanitary Project Engineer $203 ‐ $295 Landscape Architect $115 ‐ $198 Operations Manager $232 ‐ $328 LAUD Division Manager $255 ‐ $284 Deputy District Manager $288 ‐ $353 LAUD Project Manager $193 ‐ $248 District Manager‐Engineer $321 ‐ $374 Sr. LAUD Project Manager $229 ‐ $281 Sr. LAUD Division Manager $268 ‐ $317
Grant Writing Services Special Services
Funding Specialist $158 Expert Witness $440
Sr. Funding Specialist $263 Strategic Consulting $440
Note: Additional Promotional Steps Exist within Various Rate Categories Reimbursables including, but not limited to:

Reproductions, Delivery and Filing Fees Cost Plus 5% Outside Consultant Fees Cost Plus 5% Mileage Per IRS Rate Survey Field Expenses Cost Plus 5%

HOURLY CHARGE RATE RANGES

OTHER DIRECT COSTS
Mark Thomas & Company, Inc. Rate Schedule
Expires June 30, 2022*
*Rates subject to escalation with new hourly rate schedule as of July 1, 2022 **These charge rates are subject to Prevailing Wage laws and Union contract. PAGE 1 OF 1

Hourly Charge Rate Schedule
Personnel Charges
Charges for personnel engaged in professional and/or technical work are based on the actual hours directly chargeable to the project.

Current rates by classification are listed below:

Classification Rate/Hr Classification Rate/Hr
Principal Project Manager $240 Construction Manager $225 Senior Project Manager $225 Senior Resident Engineer $200 Senior Engineer $210 Senior Scientist $200
Associate Engineer $190 Associate Scientist $180
Assistant Engineer $175 Resident Engineer $180
Junior Engineer $165 Assistant Resident Engineer $165
Designer $155
GIS Analyst $150
Technician $150
Engineering Trainee $120
Litigation Charges
Work done in preparation for litigation and other very high level-of-expertise assignments is charged at $350 per hour. Court or deposition time as an expert witness is charged at $450 per hour.

Materials and Services
Subcontractors, special equipment, outside reproduction, data processing, computer services, etc., will be charged at 1.10 times cost.

Effective 1/1/21
Schaaf & Wheeler

CONSULTING CIVIL ENGINEERS
1171 Homestead Rd., Suite 255
Santa Clara, CA 95050-5485
408-246-4848
Fax 408-246-5624

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EXHIBIT C

SCHEDULE OF PERFORMANCE
Professional design services are ongoing throughout the project with no deadlines or milestones.

6 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Anthony Eulo, Program Administrator
APPROVED BY: City Manager

APPROVE AGREEMENT WITH SANTA CLARA COUNTY FOR WEED

ABATEMENT PROGRAM ADMINISTRATION

RECOMMENDATION(S)
Authorize the City Manager to execute the agreement with Santa Clara County for weed abatement program services.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
REPORT NARRATIVE:

The purpose of this item is to present an agreement for the Council's review and consideration for weed abatement program services with Santa Clara County. The proposed agreement reflects current operational parameters and is not intended to result in any program impacts.

The City controls the growth of hazardous vegetation under the authority set out in Chapter 8.20 of the Morgan Hill Municipal Code and in Government Code Sections 39560 and following. The City has a contract with the Santa Clara County Consumer and Environmental Protection Agency which provides for abatement of the property if the property owner does not maintain the property as required. Under this agreement, the County administers nearly every aspect of the program in the field from customer communications, through abatement, and onto the imposition of program charges. This agreement was entered into in 1996 and has been amended six times over the years for various reasons.

The County wishes to modernize the agreement and the City and County have negotiated the attached agreement (Attachment1) for the Council's consideration. Staff recommends that the Council authorize the City Manager to execute the agreement.

COMMUNITY ENGAGEMENT:

Not Applicable - The recommended actions should not result in any changes to the program's operations and do not warrant any community engagement.

ALTERNATIVE ACTIONS:

6 N/A
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The Council has historically taken actions related to weed and hazardous vegetation abatement two - three times annually as part of normal program operations. The last time the agreement with the County was amended was in 2016.

FISCAL AND RESOURCE IMPACT:

The Hazardous Vegetation Program is user fee supported. The per-lot assessment includes costs for doing the weed and brush control work plus overhead County costs to administer the program. The City does not retain any revenues for this activity. In addition to charges for failed inspections and actual abatement work, an annual inspection fee of $91 is charged to all property owners in the Program. These fees are communicated to the property owners when they are annually notified about the Program. The actual total charge per parcel will vary based on whether or not the property owner abated their own weeds and whether or not they did so before the County’s inspection, after the May 1 deadline. The County returns the actual proposed assessment list to the City in the summer for the assessment of program charges. Per the approach adopted by the Council, the program charges are discussed at a local prehearing with City staff and then imposed via an administrative hearing held by the County’s Hearing Officer.

Item (Current County Fee)
Annual Inspection and Administration ($91 annually)
Noncompliant Fee charged to properties not in compliance by the May 1 deadline ($505)
Abatement Administration Fee charged to properties requiring County abatement (Contractor costs + $858)
As the County has found that its revenues in the past were not always adequate to support the program, the Board of Supervisors has adopted a fee schedule designed to achieve full cost recovery and has shifted ultimate fiscal responsibility to participating jurisdictions. If the County determines that program-wide revenues in a given year were insufficient to cover program-wide costs, the jurisdictions participating in the Program will be billed for their prorata share of the shortfall. City staff does not currently anticipate receiving a bill within the upcoming fiscal year nor has funding been budgeted for this purpose.

Administering this Program is an activity in the Public Services Department work program and budget.

CEQA (California Environmental Quality Act):

Not a Project / Categorical Exemption
The recommended action is entirely administrative in nature and will not result in an impact to the environment. In addition, the program activities, when executed, are categorically exempt from environmental review under the California Environmental

6 Quality Act pursuant to California Code of Regulations, Title 21, Section 15304(i) (Minor Alterations to Land - Fuel Management Activities).

1 AMENDED AND RESTATED AGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA AND THE CITY OF

MORGAN HILL FOR WEED ABATEMENT SERVICES
THIS AGREEMENT for the Abatement of Weeds by County of Santa Clara for the City of Morgan Hill (“AGREEMENT”) is made and entered into by and among the County of Santa Clara, a political subdivision of the State of California (“COUNTY”), and the City of Morgan Hill (“CITY”), a municipal corporation, effective this __________________ (“EFFECTIVE DATE”). COUNTY and CITY may be collectively referred to herein as the “PARTIES” and individually as a “PARTY,” unless specifically identified otherwise.

RECITALS
WHEREAS, pursuant to California Government Code Sections 39501 et seq., the CITY has the authority to require and provide for the abatement of hazardous weeds on properties within its jurisdiction either by ordinance or pursuant to the procedures set forth in Article 2 of Chapter 13, Division 3 of Title 4 of the Government Code (commencing with Section 39560); and WHEREAS, the CITY has duly established under Chapter 8.20 of the Morgan Hill Municipal Code a program to abate as a public nuisance hazardous weeds and brush situated on properties in the CITY; and
WHEREAS, under provisions of the California Health and Safety Code and its ordinances, the County also has duly established a program to enforce the abatement of hazardous weeds; and WHEREAS, for reasons of efficiency, economy of operations and resources, and the mutual benefit of both parties, the CITY and the COUNTY desire the COUNTY to provide weed abatement services on properties in the CITY and to assist the CITY in administering certain parts of the CITY’S weed abatement program under Chapter 8.20 of the Morgan Hill Municipal Code, all in accordance with the terms and provisions set forth in this AGREEMENT; and WHEREAS, the CITY may contract with COUNTY pursuant to Government Code section 51300 et seq. for the County’s performance of specified City functions; and WHEREAS, the CITY and COUNTY entered into an “Agreement Between the City of Morgan Hill and County of Santa Clara for Weed Abatement Services” on January 4, 1996, as subsequently amended, which provided for the abatement of weeds by the COUNTY on behalf of the CITY; and WHEREAS, the CITY and COUNTY desire to enter into an amended and restated AGREEMENT for the abatement of weeds to provide for the COUNTY to fully recover its service costs in administering the CITY’s weed abatement program and to make other clarifying changes.

NOW, THEREFORE, in consideration of their mutual promises, covenants, and agreements set forth in this AGREEMENT, the PARTIES hereby agree as follows:

SECTION 1. PURPOSE.

The purpose of this AGREEMENT is to promote efficiency and economy of operations and resources in the abatement of weeds in the CITY and COUNTY. To achieve this end, the CITY hereby delegates to the COUNTY and the COUNTY hereby accepts the responsibility of abating weeds on properties in the

2 CITY and administering the CITY’s weed abatement program, set forth in Chapter 8.20 of the Morgan Hill Municipal Code (“PROGRAM”), subject to and in accordance with this AGREEMENT.

SECTION 2. TERM.

This AGREEMENT shall become effective as of the EFFECTIVE DATE and shall continue until the CITY or the COUNTY exercises the right to terminate this AGREEMENT pursuant to SECTION 18 of this AGREEMENT. This AGREEMENT supersedes and replaces the previous “Agreement Between the City of Morgan Hill and County of Santa Clara for Weed Abatement Services” and any and all subsequent amendments thereto.

SECTION 3. SCOPE OF SERVICES; PERFORMANCE SCHEDULE.

A. The COUNTY shall perform weed abatement services on properties located in the CITY and administer the PROGRAM (collectively, the “SERVICES”) in accordance with all applicable laws, rules, and regulations, including Chapter 8.20 of the Morgan Hill Municipal Code, and the provisions of this AGREEMENT, as they may be amended from time to time.

B. The COUNTY shall perform these SERVICES in accordance with the schedule set forth in EXHIBIT “A,” entitled SCHEDULE OF PERFORMANCE,” attached hereto and incorporated herein by this reference, except that SERVICES on properties owned by the CITY shall be performed only upon written request by the CITY.

C. The COUNTY shall attend all meetings of the City Council or meetings of other CITY committees, boards or hearing bodies at which weed abatement SERVICES, refunds of weed abatement charges, or other issues related to the SERVICES or this AGREEMENT are discussed, when the COUNTY’s attendance is requested by the CITY.

D. Upon request by the CITY, the COUNTY shall provide to the CITY for its review and comment the COUNTY’s specifications and qualifications for contractors or other agents of the COUNTY obtained or hired by the COUNTY to perform weed abatement SERVICES on behalf of the COUNTY on properties located in the CITY.

E. Upon request by the CITY, the COUNTY shall convene an administrative hearing for the purposes of considering the placement of special assessment liens on properties for weed abatement charges. The administrative hearing shall eliminate the need for CITY to convene a public hearing regarding the placement of special assessment liens on properties for weed abatement charges,
SECTION 4. NOTICES.

The COUNTY shall prepare copies of all notices required in connection with the SERVICES and cause such notices to be posted, published, mailed, and/or distributed as required by applicable law. The COUNTY shall provide copies of such notices to the CITY for prior review and approval as set forth on EXHIBIT A, entitled “SCHEDULE OF PERFORMANCE,” or where not provided for in the SCHEDULE OF PERFORMANCE, at least thirty (30) days prior to the date that the COUNTY desires or is required to post, publish, mail, or otherwise distribute the material.

SECTION 5. HEARINGS.

The City Council, or the committee, board, or other hearing body designated by the City Council to

3 conduct hearings in connection with the PROGRAM, retains the responsibility to conduct public hearings and adopt appropriate resolutions and orders in accordance with Chapter 8.20 of the Morgan Hill Municipal Code and this AGREEMENT, including its EXHIBIT A, “SCHEDULE OF PERFORMANCE.” Per Section 3.E of this agreement, the CITY may delegate its responsibility to convene a public hearing for the consideration of the placement of assessment liens to the COUNTY for an administrative hearing held for the same purposes.

SECTION 6. STATEMENT OF COSTS.

A. In December of each calendar year, the COUNTY shall deliver to the CITY a schedule of all reasonable and necessary fees and costs approved and adopted by the COUNTY Board of Supervisors for administrative, enforcement, and abatement services to be provided under this AGREEMENT (“FEE SCHEDULE”). Such fees and costs shall not exceed the reasonable costs of providing such services. All fees and costs in said FEE SCHEDULE shall be recoverable by the COUNTY pursuant to this SECTION and SECTION 7 of this AGREEMENT unless within sixty (60) days of the COUNTY’s delivery of said schedule to the CITY, the City Council of the CITY expressly declines to accept any fee or cost in said FEE SCHEDULE. In the event the City Council does decline to accept any fee or cost in said FEE SCHEDULE, the COUNTY shall be relieved of any and all obligations to provide any SERVICES under this AGREEMENT for the weed abatement season associated with the disapproved fee or cost.

B. At least ten (10) days prior to the date of the public hearing before the CITY or the administrative hearing before the COUNTY regarding the placement of special assessment liens on properties for weed abatement charges, which meeting usually occurs before August 10 of each year, the COUNTY shall render to the CITY a report of weed abatement SERVICES performed by the COUNTY on properties within the CITY during the preceding twelve (12) months (“REPORT”). The REPORT shall include, without limitation, all of the following information:

1. The total number of weed abatements performed in the CITY;

2. The total number of properties upon which weed abatements were performed in the CITY;

3. A statement of all the costs and expenses incurred by or on behalf of the COUNTY for weed abatement SERVICES performed on properties located in the CITY, itemized with the aggregate administrative, enforcement, and abatement expenses and costs incurred by the COUNTY on each property, which shall be in accord with the fees and costs in the FEE SCHEDULE submitted by the COUNTY to the CITY pursuant to Section 6.A of this AGREEMENT;

4. A description of all the properties in the CITY, by address and Assessor’s Parcel Number, on which weed abatement SERVICES were performed; and

5. Verification of the truthfulness, accuracy, and completeness of the REPORT, executed by the COUNTY employee charged with the supervision of the SERVICES.

SECTION 7. PAYMENT FOR SERVICES.

A. Except as provided in SECTIONS 7.B and 7.C, the COUNTY shall be reimbursed for SERVICES provided under this AGREEMENT by remittances from property owners for weed abatement and

4 related costs and expenses for SERVICES performed on their respective lots and parcels of land. The City Council, after hearing, shall require the costs and expenses of SERVICES performed for the current year to be entered as a special assessment on bills for taxes levied against the respective lots and parcels of land. Such special assessments shall be liens on the respective properties until paid to the COUNTY.

B. Within 60 days of receipt of an invoice for costs and expenses incurred on CITY-owned parcels, the CITY shall reimburse the COUNTY for the costs of such SERVICES. Charges for SERVICES on parcels owned by the CITY shall equal the cost of SERVICES performed by the weed abatement contractor on the CITY-owned parcels plus 20% of said contractor service costs.

C. If the amounts submitted for collection from property owners in Santa Clara County for provision of weed abatement services by the COUNTY are inadequate to reimburse the COUNTY for its fixed costs of administering countywide services during the preceding twelve (12) months, the COUNTY may make a demand to the CITY for its proportional share of the shortfall (less amounts offset by accrued program revenues) by September 1 of each year. The CITY agrees to pay the COUNTY for the CITY’s proportional share of any such shortfall within sixty (60) days of demand by the COUNTY. The CITY’S proportional share shall be calculated based on the percentage of parcels on which weed abatement services were performed which are located in the CITY. The COUNTY’s demand for payment under this SECTION 7.C. shall be accompanied by a statement of the total shortfall in the COUNTY’s reimbursement for fixed program costs for the preceding twelve (12) months and of any accrued program revenues available to offset the shortfall, as well as a statement of the CITY’s proportional share of that shortfall (minus offsets by accrued program revenues).

D. Except as provided in SECTIONS 7.B and 7.C., the CITY has and assumes no liability for the payment of salary, wages, benefits, pensions, compensation or any other amounts to officers, agents, employees or contractors of COUNTY performing SERVICES hereunder.

SECTION 8. INDEMNIFICATION.

In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the PARTIES pursuant to Government Code Section 895.6, the PARTIES agree that all losses or liabilities incurred by 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 in 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 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.

SECTION 9. RECORDS.

Each officer or department of the COUNTY performing any SERVICES pursuant to this AGREEMENT shall keep itemized and detailed work or job records covering the costs of services performed under this AGREEMENT. COUNTY shall maintain these records for a minimum period of three (3) years, or for any longer period required by law, following the performance of any SERVICES.

5 SECTION 10. ENTIRE AGREEMENT.

This AGREEMENT and its Appendices (if any) constitutes the final, complete and exclusive statement of the terms of the agreement between the PARTIES. It incorporates and supersedes all the agreements, covenants and understandings between the PARTIES concerning the subject matter hereof, and all such agreements, covenants and understandings have been merged into this AGREEMENT. No prior or contemporaneous agreement or understanding, verbal or otherwise, of the PARTIES or their agents shall be valid or enforceable unless embodied in this AGREEMENT.

SECTION 11. AMENDMENTS.

This AGREEMENT may only be amended by a written instrument signed by the PARTIES.

SECTION 12. GOVERNING LAW, VENUE.

This AGREEMENT has been executed and delivered in, and shall be construed and enforced in accordance with, the laws of the State of California. Proper venue for legal action regarding this AGREEMENT shall be in the County of Santa Clara.

SECTION 13. ASSIGNMENT.

No assignment of this AGREEMENT or of the rights and obligations hereunder shall be valid without the prior written consent of the other PARTY.

SECTION 14. WAIVER.

No delay or failure to require performance of any provision of this AGREEMENT shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a PARTY shall be in writing and shall apply to the specific instance expressly stated.

SECTION 15. COMPLIANCE WITH LAWS.

COUNTY and CITY shall comply with all applicable Federal, State, and local laws, regulations, rules, and policies in the performance of services under this AGREEMENT.

SECTION 16. 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.

SECTION 17. INDEPENDENT CONTRACTORS.

The COUNTY and the CITY agree that this AGREEMENT is by and between independent contractors.

This AGREEMENT is not intended, nor shall it be construed, to create a relationship of agent, servant, employee, partnership, joint venture, or association between the COUNTY and the CITY.

SECTION 18. TERMINATION

6 A. The COUNTY or the CITY may terminate this AGREEMENT as of the first day of September of any year by giving notice to the other PARTY not less than thirty (30) days prior to the date of termination.

B. The City Manager, or his or her delegate or designee, is authorized to terminate this AGREEMENT on behalf of the CITY.

C. The COUNTY’s Agricultural Commissioner, or his or her delegatee or designee, is authorized to terminate this AGREEMENT on behalf of the COUNTY.

SECTION 19. NOTICES
Except as otherwise stated, any notice required or permitted by this AGREEMENT will be in writing and delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of delivery; (c) by email, telecopy, or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, upon confirmation of delivery. The PARTIES may deliver notice as follows:

TO COUNTY:

County of Santa Clara Consumer and Environmental Protection Agency 1553 Berger Drive #200, San Jose, CA 95112
Fax: 408-286-2460
Email: [email protected]
Attn: Weed Abatement Manager
TO CITY:

City Manager
City of Morgan Hill
17575 Peak Ave.

Morgan Hill, CA 95037
With a copy to:

City Clerk
City of Morgan Hill
17575 Peak Ave.

Morgan Hill, CA 95037
SECTION 20. INTERPRETATION.

The captions preceding the sections of this AGREEMENT have been inserted for convenience of reference only and such captions shall in no way define or limit the scope or intent of any provision of this AGREEMENT. This Agreement has been negotiated at arm’s length and between parties sophisticated and knowledgeable in the matters contained herein. This AGREEMENT shall be interpreted to achieve the intents and purposes of the PARTIES, without any presumption against the PARTY responsible for drafting any part of this AGREEMENT. Provisions in this AGREEMENT relating to number of days shall be calendar days, unless otherwise specified, provided that if the last day of any period to give notice, reply to a notice or to undertake any other action occurs on a Saturday, Sunday or a

7 bank or COUNTY holiday, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding business day. The Recitals are incorporated and made a part of this AGREEMENT.

SECTION 21. COUNTERPARTS.

This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

SECTION 22. 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.

THE PARTIES TO THIS AGREEMENT hereby indicate their acknowledgement and acceptance of the terms and conditions stated herein as evidenced by the following signatures of their duly authorized representatives.

COUNTY OF SANTA CLARA CITY OF MORGAN HILL
Jeffrey V. Smith
County Executive
Dated: _______________________________
Christina Turner
Title: City Manager
Dated: ______________________________
APPROVED AS TO FORM:

APPROVED AS TO FORM AND LEGALITY:
______________________________________
Willie Nguyen Donald A. Larkin
Deputy County Counsel City Attorney

8 EXHIBIT “A”

SCHEDULE OF PERFORMANCE
The COUNTY shall perform the SERVICES as follows:

On or before November 15 of each year: The County shall request a resolution from the CITY declaring that certain weeds located on
properties in the CITY constitute a public nuisance
and setting a date for a public hearing.

Before the date of the CITY governing body
meeting declaring weeds a nuisance subject to
abatement:

The COUNTY shall provide to the CITY for
review and processing by the CITY a complete
Master List of properties, including Assessor’s
Parcel Numbers, located in the CITY upon which
hazardous weeds are growing or are likely to grow.

No later than ten (10) days prior to the day of the
CITY hearing on objections to the notices to
destroy weeds:

The COUNTY shall post notices to destroy weeds
at property or mail notices to destroy weeds to
property owners regarding the CITY hearing, as
directed by resolution of the City Council.

No later than ten (10) days prior to the day of the
CITY hearing on objections to the notices to
destroy weeds:

The COUNTY shall deliver to the CITY a FEE
SCHEDULE listing all reasonable and necessary
fees and costs approved and adopted by the
COUNTY Board of Supervisors for administrative,
enforcement, and abatement services to be
provided under this AGREEMENT in accordance
with SECTION 6.A of this AGREEMENT.

The City Council shall hold a public hearing to
hear objections to the notices to destroy weeds.

By resolution at the conclusion of the hearing, the
City Council shall allow or overrule any or all
objections to proposed weed abatement.

After adoption of CITY resolution ordering the
abatement of weeds on certain properties as
public nuisances:

The COUNTY shall proceed with weed abatement
work on properties located in the CITY in
accordance with the resolution adopted by the City
Council and this AGREEMENT.

At least ten (10) days prior to the date of the
public hearing before the CITY’s governing
body or the COUNTY’s administrative hearing
Pursuant to SECTION 6.B of this AGREEMENT,
the COUNTY shall provide to the CITY for review
and processing a complete and accurate REPORT

9 regarding the placement of special assessment
liens on properties for weed abatement charges:
of costs and expenses incurred by or on behalf of
the COUNTY for weed abatement SERVICES
performed in the CITY during the preceding twelve
(12) months under this AGREEMENT.

On or before August 10 of each year: The COUNTY shall obtain a resolution from the CITY to confirm the REPORT and order the weed
abatement costs to be a special assessment against
the affected properties.

On or before August 10 of each year: If requested by CITY, the COUNTY shall convene an administrative hearing for the purposes of
considering the placement of special assessment
liens on properties for weed abatement charges.

At least ten (10) days prior to the CITY public
hearing or COUNTY administrative hearing to
hear objections to the REPORT:

The CITY shall mail a notice to all property
owners identified in the REPORT, which provides
the date, time, and place of the hearing on the
REPORT at which person may appear and object
to the REPORT.

Upon adoption of resolution by the City Council
confirming or amending REPORT and ordering
weed abatement costs become a special
assessment lien against the affected properties:

The COUNTY shall comply with the resolution.

Upon request by CITY The COUNTY shall perform weed abatement SERVICES on CITY-owned lots and parcels.

7 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Chris Ghione, Public Services Director
APPROVED BY: City Manager

APPROVE INNOVATIVE TRANSIT AGREEMENTS

RECOMMENDATION(S)

1. Authorize the City Manager to execute and administer a grant agreement for innovative transit funding with the Valley Transportation Authority; and

2. Authorize the City Manager to execute and administer a consultant services agreement with Rideco, Inc. for the provision of transit services within the City of Morgan Hill; and

3. Adopt a budget resolution appropriating $60,000 for Fiscal Year 2021-22 to fund the initiation of the program.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment and Preserving Open Space and Agricultural Land Supporting our Youth, Seniors, and Entire Community
Advancing Regional Initiatives
2022-2023 Strategic Priorities
Transportation
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

In October 2020, the City Council authorized the City to partner with RideCo, Inc to apply for the Innovative Transit Service Models Grant Program sponsored by the Santa Clara Valley Transportation Authority (VTA). In the Spring of 2021, the City was informed that it had been awarded grant funding of $1,372,400 to run a three-year program in Morgan Hill. Since that time, the City has worked on the service agreement with RideCo and the funding agreement with the VTA. Due to the complexity of negotiating both agreements, it has taken longer than expected to finalize the program.

Unfortunately, during this time period, inflationary costs associated with managing the program have increased for RideCo's transportation provider and the original funding

7 was not adequate to fund a three-year program. City staff have worked with VTA and RideCo and developed an alternate two-year program for which available grant funding will support. The agreements associated with the program are now ready and attached to this item for review.

Should the Council approve the associated agreements, the City of Morgan Hill, in partnership with RideCo, will operate an on-demand microtransit system that operates citywide. Riders will be able to book trips from any one of a hundred virtual stops to any other, and stops will be placed at the Morgan Hill Transit Center, the Morgan Hill Caltrain Station, and existing VTA bus stops in order to facilitate multimodal trips in and out of the City. Additionally, virtual stops will be placed at highly visited amenities within the City, including shopping centers, City Recreation Centers and other locations.

Service hours of 14 hours per day (7am-9pm Monday through Saturday) will be available for residents and visitors to utilize the service. Riders anywhere in the City will be able to walk to the nearest virtual stop in under 5 minutes, whereas many of our residents currently would have to walk upwards of 50 minutes to reach the nearest available transit. The service will operate using three fully ADA-accessible minivans and will be available to serve lower-income residents and elderly/disabled residents who do not have the option of driving on short local trips. The service will also support commuters who take Caltrain or the 68 Bus to and from work each day, by providing first and last mile service, enabling these regional transportation stops to be reached without use of a car. Fares for the service have been outlined through the grant award and include a $2.50 regular fare and a reduced $1 fare for disabled, low income, and youth riders.

RideCo is a technology company that contracts with private sector transit companies to provide low-density area mobility, first and last mile service and paratransit programs.

With their experience and success in this area, City staff believe that RideCo will be an optimal partner, with RideCo's technology and transportation system automated booking, scheduling, and creation of vehicle itineraries through an app-based system.

Additionally, RideCo will operate a call center to allow residents to alternatively book by phone, including Spanish speakers.

The grant program is for a two-year pilot program. As the program progresses and if successful, City staff will be working with the VTA to look at alternatives for sustaining the program.

COMMUNITY ENGAGEMENT:

Consult/Inform
No specific outreach on the development of the program for the Innovative Transit Grant. However, residents were consulted on ideas for program delivery through the Community Based Transportation Plan outreach occurring in 2019. One of the concerns heard repeatedly was the limited bus service and public transportation moving within the City limits and the distance traveled to reach regional public transportation. The grant application was specifically catered to address this deficiency. With the planned service beginning this summer, the City staff will be working with RideCo and VTA on development of a marketing plan for the service, which will be followed by intense

7 outreach to residents.

ALTERNATIVE ACTIONS:

The City Council could choose not to move forward with the innovative transit program or provide staff with other alternative direction.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

On October 21, 2020, the City authorized the City Manager to execute a Memorandum of Understanding with RideCo, Inc. for the application and implementation of the Innovative Transit Grant Program with the Valley Transportation Authority.

FISCAL AND RESOURCE IMPACT:

VTA grant funding totals $1,372,400 for the two-year program and the program is anticipated to generate $175,500 in fares over the two-year period. The City’s out of pocket matching costs after this revenue is anticipated to be approximately $80,000 for the two-year period and will be funded by the General Fund. With the exception of a $60,000 appropriation for initial start-up costs, the remainder of the funds will be budgeted in the Fiscal Year 22/23 and 23/24 Budget. The initial start-up costs will cover the initial marketing and promotion of the program and for any initial service provided prior to July 1.

CEQA (California Environmental Quality Act):

General Rule Exemption
The Innovative Transit Grant Program is sponsored by the Valley Transportation because it has the potential to reduce greenhouse gas emissions by supporting first and last-mile connections to the existing transit network, increasing transit ridership and reducing single-occupancy vehicle travel. Increasing the ability for Morgan Hill residents to reduce the use of single-occupancy vehicles provides for no possibility of adverse affects on the environment and therefore meets the General Rule Exemption.

Rev 03/2022 Page 1 of 22

FUNDING AGREEMENT

BETWEEN

CITY OF MORGAN HILL
AND

SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
FOR

RIDE MORGAN HILL
THIS AGREEMENT (“AGREEMENT”) is between the CITY OF MORGAN HILL, referred to herein as “CITY”, and the SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, referred to herein as “VTA”. Hereinafter, CITY 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 adopted a resolution to place a ballot measure before the voters of Santa Clara County 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; and

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; and

3. 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; and

4. Whereas, on October 5, 2017, the VTA Board of Directors established the 2016 Measure B Program (“PROGRAM”) and adopted the 2016 Measure B Program Category Guidelines; and

5. Whereas, the PROGRAM includes a Transit Operations program category (“TRANSIT OPS CATEGORY”) to increase ridership, improve efficiency, enhance mobility services for seniors and disabled, and improve affordability for the underserved and vulnerable constituencies in the county; and

6. Whereas, the TRANSIT OPS CATEGORY consists of three sub-categories, including an Innovative Transit Service Models Competitive Grant Program (“INNOVATIVE TRANSIT PROGRAM”); and

7. Whereas, on December 5, 2019 the VTA Board of Directors adopted the INNOVATIVE TRANSIT PROGRAM criteria; and

8. Whereas, on October 5, 2020 the Fiscal Year (“FY”) 2020 (July 1, 2020 to June 30, 2021) to Fiscal Year 2021 (July 1, 2021 to June 30, 2022) INNOVATIVE TRANSIT PROGRAM call for projects was released; and

9. Whereas, on March 4, 2021 the VTA Board of Directors approved the project list for the INNOVATIVE TRANSIT PROGRAM; and

Rev 03/2022 Page 2 of 22

10. Whereas, Ride Morgan Hill is an eligible project on the VTA Board of Directors approved project list for the INNOVATIVE TRANSIT PROGRAM; and

11. Whereas, VTA and CITY desire to specify herein the terms and conditions under which the INNOVATIVE TRANSIT PROGRAM funds will be administered to CITY by VTA as directed by the VTA Board of Directors.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the PARTIES agree as follows:

II. AGREEMENT

1. PROJECT DESCRIPTION
For the Ride Morgan Hill project, the CITY will provide, manage, and coordinate the operation of the transportation services (the “PROJECT”) to public during the term of this AGREEMENT. The PROJECT should be provided in accordance with the service area and parameters, attached hereto and incorporated herein as Attachment A.

2. TERM OF AGREEMENT
The term of this AGREEMENT will commence on the Effective Date (as defined in the signature block below) and continue through the later of two years after the Effective Date or completion of the PROJECT. The term of the PROJECT may conclude earlier through cancellation of the PROJECT or termination of this AGREEMENT pursuant to the terms herein.

3. COST OF PROJECT
Total cost of the PROJECT (“TOTAL PROJECT COST”) is estimated not to exceed $1,717,600. TOTAL PROJECT COST means the total cumulative dollar amount actually incurred and expended toward the PROJECT by all PARTIES involved, as measure at the completion or termination of the PROJECT.

4. FINANCIAL CONTRIBUTION TO COST OF PROJECT
a. VTA’s Financial Contribution for PROJECT. VTA will contribute an amount not to exceed $1,372,400 of INNOVATIVE TRANSIT PROGRAM funds to be used by CITY for completion of the PROJECT. All funds will be available on a reimbursement basis only, pursuant to the terms and conditions set forth herein.
b. CITY’s Financial Contribution for PROJECT. CITY’s financial contribution for PROJECT is TOTAL PROJECT COST less VTA’s Financial Contribution for PROJECT. CITY must not seek reimbursement from VTA toward the PROJECT prior to Effective Date of this AGREEMENT. c. Additional Funds. Any additional funds required to complete the PROJECT will be CITY’s sole responsibility.

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d. PROJECT Savings. If the PROJECT is anticipated to be delivered under budget, INNOVATIVE TRANSIT PROGRAM funds will be reduced in proportion to CITY’s Financial Contribution to PROJECT.
e. In all circumstances, regardless of the TOTAL PROJECT COST, CITY is responsible for contributing a minimum of 20% of the TOTAL PROJECT COST. If CITY receives over $274,700 in PROJECT fare recovery by the end of the AGREEMENT term, CITY must use any fare recovery over $274,000 to extend PROJECT as long as funds are available, for up to 12 months.

5. ELIGIBLE USE OF FUNDS
Only ELIGIBLE COSTS (as defined herein) directly related to the PROJECT costs incurred by CITY after Effective Date, will be eligible for reimbursement.

VTA will only reimburse CITY for actual costs directly related to the PROJECT (“ELIGIBLE COSTS”).

ELIGIBLE COSTS are costs that: (i) are directly related to the planning, operation, and administration of the PROJECT; and (ii) were incurred in compliance with all applicable 2016 Measure B Program requirements.

6. CITY’S ROLE
a. Tasks. CITY will be the sponsor and implementing agency for the PROJECT. In its role as sponsor and implementing agency under this AGREEMENT, CITY must perform and/or be responsible for the following tasks:
i. Serve as project manager to provide, manage, and coordinate the operation of PROJECT in accordance with service parameters in Attachment A. ii. Perform all procurement actions necessary for PROJECT, including but not limited to advertising the work via a public solicitation, opening bids in response to the public solicitation, awarding a contract, approving contract documents, and administering the awarded contract in accordance with all applicable laws, regulations, and codes, including but not limited to the California Public Contract Code and the California Labor Code.
iii. Begin PROJECT service operation within one (1) year of the Effective Date of this AGREEMENT.
iv. Obtain all necessary permits and certifications for PROJECT. v. Keep VTA apprised of potential changes that may affect PROJECT operations. vi. Conduct standard close-out activities for the PROJECT, including but not limited to performing final accounting review and reviewing all contractual requirements.

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b. Other PROJECT Management Duties. CITY must:
i. Submit a project management plan (“PMP”) to VTA in accordance with the PMP template in Attachment B within thirty (30) business days of the Effective Date of this AGREEMENT. The PMP must be in writing and must include information regarding service scope, staffing plan, cost, schedule, and contracting plan. ii. Actively monitor actual PROJECT expenditures to ensure that the 2016 MEASURE B funds are used to pay only for ELIGIBLE COSTS (as defined in Section 5). iii. Provide VTA with written quarterly progress reports (“PROGRESS REPORTS”) (as supplied by VTA to CITY) on the PROJECT, including but not limited to updates on PROJECT expenditures, any changes in scope and schedule, PROJECT status, monthly PROJECT performance such as ridership, total miles, total hours, fare collection and any other information VTA may require for inclusion in the progress updates. iv. Submit the PROJECT’s final report (“FINAL REPORT”) to VTA. This FINAL REPORT must be in writing and must include information regarding final PROJECT costs, total ridership, total revenue miles and total revenue hours, fare collection, along with any other information VTA may require for inclusion in the FINAL REPORT. v. CITY will make staff available to present on the PROJECT at VTA committees as needed.

7. VTA’S ROLE
VTA will review PROJECT’s PMP, PROGRESS REPORTS and FINAL REPORT, and provide oversight of the PROJECT to ensure PROJECT compliance with the 2016 Measure B Program Category Guidelines.

8. CITY’S OBLIGATIONS
CITY must:
a. Ensure that all 2016 MEASURE B funds are expended on only allowable INNOVATIVE TRANSIT PROGRAM expenditures as described above in Section 5. ELIGIBLE USE OF FUNDS. b. Begin request for reimbursement of ELIGIBLE COSTS (see Section 5. ELIGIBLE USE OF FUNDS) from VTA within one (1) year of the Effective Date of this AGREEMENT. c. Submit to VTA all records including contractors’ invoices, miscellaneous invoices, and force account charges as substantiation for invoices submitted to VTA for reimbursement hereunder.
d. Maintain financial records, books, documents, papers, accounting records, and other evidence pertaining to costs related to this AGREEMENT for five (5) years. CITY shall make

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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. e. Submit invoices to VTA at [email protected], no more frequently than monthly, for reimbursement of ELIGIBLE COSTS (see Section 5. ELIGIBLE USE OF FUNDS). CITY must submit invoices within one year of the date CITY incurs the cost submitted on the invoice for reimbursement (unless otherwise approved by VTA in writing).

9. VTA’S OBLIGATIONS
VTA will remit the amount due to the CITY 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.

10. MODIFICATION TO PROJECT SERVICE
CITY must inform VTA, in writing, of any minor modifications to PROJECT service, including, but not limited to removal of any proposed pick up/drop off locations and schedule adjustments within a one-hour window that do not impact frequency or service or service area changes.

CITY must inform VTA, in writing, of potential major modifications to PROJECT, including but not limited to extended or reduced service hours of more than 30 minutes and changes in service areas.

11. INDEMNIFICATION
Neither VTA nor any officer or employee thereof will be responsible for any damage or liability arising out of or relating to CITY’s acts or omissions under or in connection with any work, authority, or jurisdiction associated with this AGREEMENT. Pursuant to California Government Code §895.4, CITY must fully defend, indemnify, and save 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) relating to CITY’s acts or omissions under or in connection with any work, authority, or jurisdiction delegated to CITY under this AGREEMENT. This provision will survive the termination or expiration of this AGREEMENT.

12. INSURANCE
At all times during this AGREEMENT, CITY must comply with the insurance requirements and specifications of Attachment C attached hereto, and herein incorporated by reference.

13. ADDITIONAL INSURED AND INDEMNITY PROVISION
In any agreement executed between the CITY and a third party for purposes related in any way to the subject matter of this AGREEMENT (“Third Party Contract”), the CITY must require that VTA be named as (i) Additional insureds on a primary and non-contributory basis with Separation of Insureds and Waiver of Subrogation on all policies of insurance, except when not applicable required in the Third Party Contract and (ii) indemnified parties in any indemnity provision contained in the Third Party Contract.

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14. PUBLIC WORKS
If the CITY awards a contract to a third party for the performance of a public work (as defined in California Labor Code Section 1720 through 1720.6) (a “Public Works Contract”) in connection with this AGREEMENT, the CITY must comply, and must require such third party to comply, with the requirements of California Labor Code Section 1720 et seq. If the Public Works Contract is funded in whole or in part with federal funds, the CITY must also comply, and must require such third party to also comply, with the requirements of the Davis Bacon Act (40 U.S.C. Sections 3141- 3144 and 3146-3148).

15. COMPLIANCE WITH APPLICABLE LAW
In the execution of the PROJECT and performance of its responsibilities set forth herein, CITY and any contractor or subcontractors must comply with all applicable requirements of state, federal, and local law. CITY and any contractor or subcontractors must comply with any applicable laws, regulations, and/or guidelines relating to COVID-19, including, but not limited to, Centers for Disease Control and Prevention (CDC) guidelines and Santa Clara County Department of Public Health orders and/or guidelines.

16. COMPLIANCE WITH WAGE AND HOUR LAWS
CITY and any contractor or subcontractors they employ to perform work of the PROJECT under this AGREEMENT, must comply with all applicable federal, state, and local wage and hour laws.

Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local Minimum Wage Ordinance or Living Wage Ordinance.

17. COMPLIANCE WITH 2016 MEASURE B REQUIREMENTS
In its performance under this AGREEMENT, CITY must comply with, and must ensure PROJECT compliance with all 2016 MEASURE B requirements set forth in the 2016 Measure B Program Category Guidelines for the TRANSIT OPS CATEGORY as identified in Attachment D, attached hereto.

18. TERMINATION
Each of the PARTIES may at any time terminate this AGREEMENT by giving ten (10) business days' written notice of such termination to 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.

In the event of termination as set forth herein, CITY must submit its final invoice to VTA within thirty (30) calendar days of the effective date of termination solely for ELIGIBLE COSTS incurred by CITY prior to the effective date of the termination (see Section 5. ELIGIBLE USE OF FUNDS).

19. AUDIT AND RECORDS
a. CITY must maintain, and shall require their contractors to maintain, in accordance with

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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 (5) years after final payment, VTA shall have access during normal business hours to any books, accounts, records, data, and other relevant documents that are pertinent to this AGREEMENT for audits, examinations, excerpts, and transactions and copies thereof must be furnished upon request.

20. NOTICES
All notices required or permitted under this AGREEMENT must be in writing, will be effective five (5) days after being sent by personal service or certified mail, or forty-eight (48) hours after being sent by electronic mail to the individuals at the addresses set forth below, or to such other address which may be specified in writing by the PARTIES hereto.

VTA:

Marcella Rensi
Deputy Director, Grants & Allocations
Santa Clara Valley Transportation Authority
3331 N First Street
San Jose, CA 95134
Email: [email protected]
CITY:

Chris Ghione
Public Services Director
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA, 95037
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.

21. 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. 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

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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. c. 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. d. Entire Agreement. This AGREEMENT contains the entire understanding between VTA and CITY relating to the subject matter hereof. This AGREEMENT supersedes any and all other agreements which may have existed between the PARTIES, whether oral or written, relating to the subject matter hereof. This AGREEMENT is binding upon each PARTY, their legal representatives, and successors for the duration of the AGREEMENT. e. 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.
f. No Waiver. The failure of either PARTY to insist upon the strict performance of any of the terms, covenants 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. g. Dispute Resolution. 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 shall give written notice thereof to the other PARTY. The PARTIES shall 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 the greatest extent possible to avoid litigation as a method of dispute resolution. h. Severability. If any of the provisions of this AGREEMENT (or portions or applications thereof) are held to be unenforceable or invalid by any court of competent jurisdiction, VTA and CITY shall negotiate an equitable adjustment in the provisions this AGREEMENT with a view toward effecting the purpose of this AGREEMENT, and the validity and enforceability of the remaining provisions or portions or applications thereof will not be affected thereby. i. Governing Law. The laws of the State of California will govern this AGREEMENT, as well as any claim that might arise between CITY and VTA, without regard to conflict of law provisions. j. Venue. Any lawsuit or legal action arising from this AGREEMENT must be commenced and prosecuted in the courts of Santa Clara County, California. CITY agrees to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
k. Attribution to VTA. CITY must include attribution to VTA that indicates PROJECT was funded by 2016 Measure B Funds. This provision applies to any project or publication that was funded

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in part or in whole by 2016 Measure B Funds. Acceptable forms of attribution include 2016 Measure B’s branding on project-related documents, construction signs, public information materials, and any other applicable documents. VTA will provide 2016 Measure B branding to CITY.
l. 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, childbirth or 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 shall not unlawfully deny any of their employees family care leave 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.
m. 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.
n. Warranty of Authority to Execute Agreement. Each PARTY to this AGREEMENT represents and warrants that each person whose signature appears hereon is authorized and has the full authority to execute this AGREEMENT on behalf of the entity that is a PARTY to this AGREEMENT.

Signatures of PARTIES on following page.

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IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT as of the last date set forth below (“Effective Date”).

Santa Clara Valley
Transportation Authority
City of Morgan Hill
Carolyn M. Gonot Christina Turner
General Manager/CEO City Manager
Date Date
Approved as to Form: Approved as to Form:

Shannon Smyth-Mendoza
Senior Assistant Counsel
Donald Larkin
City Attorney

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ATTACHMENT A
Service Parameters

1. Service Span: Service runs Monday through Saturday between 7:00 AM to 9:00 PM (14 hours per day).

2. Service Coverage: City limit of Morgan Hill, as shown in Figure 1.

3. Routes: Service is on-demand micro-transit service that has many virtual stops across the city limit of Morgan Hill. Vehicles may pick up passengers from anywhere within the service coverage area and may take the shortest route to the next stop on the ever-updating vehicle itinerary.

4. Infrastructure: Service operates with three fully ADA-accessible vehicles. Service vehicle accommodates bicycles on board.

5. Fares: $2.5 regular fares and $1 for disabled, low-income, or youth population.

6. Online App: Passengers can book trips through mobile and web applications. All service data is available through a real-time dashboard. The software allows riders to pay in a variety of ways including cash, credit/debit cards, and any applicable VTA fare media. The online app offers seat selection options for mobility-limited riders/wheelchair users as well as standard seat types for ambulatory passengers.

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Figure 1: Service Coverage Map

ATTACHMENT B
Project Management Plan Template
Submitted by: Contact for this PMP.

First submittal date:

Revision version & date:

PART A – PROJECT INFORMATION

1. Project Name:

2. Project Sponsor:

3. Partnering Agencies: <List all project partners>

4. Date

5. Project Description:
a. Service type
b. Service area, route & stops
c. Service span
d. Vehicles
<Note any accommodation of wheelchair users and bikes>
e. Scheduling

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<Note any technology, website, online applications for the user and operators> f. Fare collection
<Describe how you plan to collect fares>

6. Project team
(Identify project staff/team/partner roles and responsibilities as applicable) a. Project Manager
<The PM must be a Member Agency staff. Please identify email/phone and VTA will contact the PM for any project or PMP questions.>
b. Procurement manager
c. Operations
d. Coordinator
e. Safety and Training
f. Marketing/outreach
g. Others
Attach a project organization chart.

PART B – FINANCIAL MANAGEMENT

1. Total project cost estimate:
a. Capital cost
b. Operating cost

2. Source of Funds
(Identify 2016 Measure B fund and non-2016 Measure B fund sources) PART C – PROJECT IMPLEMENTATION & MANAGEMENT

1. Project schedule
<Modify the following schedule table as needed.>
Project Milestone Month/Year
Release RFP for service provider/operator
Develop contract
Award/Execute contract
Recruit project staff
Conduct project outreach and marketing
Start-up operation (if applicable)
Full operation

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2. Training and qualifications of project staff and operators

3. Agreements
<Identify any existing/anticipated agreements and provide date of execution & expiration>

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ATTACHMENT C
Insurance Requirements
CITY’S ATTENTION IS DIRECTED TO THE INSURANCE REQUIREMENTS BELOW. IT IS HIGHLY

RECOMMENDED THAT CITY CONFER WITH THEIR INSURANCE CARRIERS OR BROKERS IN ADVANCE OF

PROPOSAL SUBMISSION TO DETERMINE THE AVAILABILITY OF INSURANCE CERTIFICATES AND ENDORSEMENTS REQUIRED BY THIS CONTRACT.

INSURANCE
Without limiting City’s obligation to indemnify and hold harmless VTA, City must 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 City, its agents, representatives, or employees, or subcontractors. The cost of such insurance must be included in Contract price. In the event of any material change in the Contract Scope of Services, VTA reserves the right to change the insurance requirements set forth herein. City 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), including Products/Completed Operations Liability. 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 “claims-made” basis is not acceptable.
c. Workers’ Compensation insurance as required by the Labor Code of the State of California, and Employer’s Liability insurance.

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d. Professional Liability, including limited contractual liability coverage, covering liability arising out of any negligent act, error, mistake or omission in the performance of City’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. e. Cyber Liability (including privacy liability and network security coverage).

2. Minimum Limits of Insurance
City must maintain limits no less than:
a. General Liability $10,000,000 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 with Excess or Umbrella.

Umbrella/Excess policies must feature inception and expiration dates concurrent with the underlying General Liability policy, “Follow Form” coverage, and a “Drop Down” provision.
b. Automobile Liability (including umbrella/excess liability): $10,000,000 limit per accident for bodily injury and property damage. This requirement may be satisfied by a combination of Auto Liability with Excess or Umbrella. Umbrella/Excess policies must feature inception and expiration dates concurrent with the underlying auto liability policy, “Follow Form” coverage, and a “Drop Down” provision.
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 with Excess or Umbrella. Umbrella/Excess policies must feature inception and expiration dates concurrent with the underlying professional liability policy, “Follow Form” coverage, and a “Drop Down” provision.
e. Cyber Liability: $1,000,000 per occurrence.

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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 $250,000 must be declared to and approved by VTA. If City 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 $250,000, City must provide a current financial report including balance sheets and income statements for the past three years, so that VTA can assess City’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 selfinsured retention or deductible as respects VTA, its directors, officers, officials, employees and volunteers; or to require City 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 City. City may request execution of a nondisclosure agreement prior to submission of financial reports.

B. Claims Made Provisions (not applicable to General Liability or Auto 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:

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, City 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

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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 City, including VTA’s general supervision of City; products and completed operations of City and its subcontractors; premises owned, occupied or used by City; or automobiles owned, leased, hired or borrowed by City. 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. City’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. Products/Completed Operations Liability coverage must be maintained for a minimum of two (2) years following completion of this Contract.

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 City and its subcontractors for VTA.
b. City’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 City’s insurance. City’s insurance must not seek contribution from VTA’s insurance program.

3. Other insurance provisions
a. The Certificate must disclose the actual amounts of all deductibles or self-insured retentions.
b. If any coverage forms or endorsements required by this Contract 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 Contract, VTA reserves the rights to require City to procure said coverage forms or endorsements using the updated versions upon the next renewal cycle.

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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
City 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. City 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 deductibles, and the policy term, (2) include copies of all the actual policy endorsements required above, 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.

It is a condition precedent to award of this Contract that all insurance certificates and endorsements be received and approved by VTA before Contract 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 City receives notice that any of the insurance policies required by this Exhibit may be cancelled or coverage reduced for any reason whatsoever, City 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 City fails to maintain insurance as required herein, VTA, at its option, may suspend payment for work performed and/or may order City to suspend work at City’s expense until a new policy of insurance is in effect.

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ATTACHMENT D
Transit Operations Program Guidelines
(Adopted by VTA Board of Directors on October 5, 2017)
Definition from Resolution No. 2016.06.17
The revenue from this program category will provide additional funds specifically for bus operations to serve vulnerable, underserved, and transit dependent populations throughout the county. The goals of the program category are to increase ridership, improve efficiency, enhance mobility services for seniors and disabled, and improve affordability for the underserved and vulnerable constituencies in the county. As VTA considers modifications to bus operations and routes to improve ridership and efficiencies, these funds may also be utilized to maintain and expand service to the most underserved and vulnerable populations. The funds may be used to increase core bus route service frequencies, extending hours of operations to early morning, evenings and weekends to improve mobility, safe access and affordability to residents that rely on bus service for critical transportation mobility needs. Attachment D describes the list of Candidate Projects and Programs.

Total Funding
 $500 million in 2017 dollars.

Distribution
 VTA anticipates that allocations will be programmed based upon the total allocation for the Transit Operations Program contained in 2016 Measure B divided by the number of years in the measure.
 Future allocations will vary depending upon the amount of sales tax revenue collected.  The Transit Operations Program Area funding will be allocated for the following four programs identified in 2016 Measure B Attachment D:
o Enhance Frequent Core Bus Network by increasing core bus route service frequencies, and expanding or adding additional evening, late night and weekend service.
o Expand mobility services and affordable fare programs for seniors, disabled, students and low-income riders.
o Support new/innovative transit service models to address first/last mile connections and transit services for the transit dependent, vulnerable populations and paratransit users that is safe and accountable. o Improve amenities at bus stops to increase safety, security and access with lighting and access improvements.

The proposed allocations for the four categories are as follows:
2016 Measure B Transit Operations Program Area

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Area Funding Allocation (Proposed)
Frequent Core Bus Network 73%
Innovative Mobility Models & Programs 8%
Fare Programs 15%
Bus Stop Amenities 4%
Implementation
For FY18 & FY19 Budget Allocation:
 The Enhanced Frequent Core Bus Network will directly fund VTA’s core bus network of services increasing core bus route service frequencies, and expanding or adding evening, late night and weekend service.
 The Fare Programs will fund the Transit Assistance Program (TAP) and reduced fares for youth.
 The Innovative Transit Models Program will support goals to address first/last mile connections. Strategies may include competitive grant programs to help fund services operated by local jurisdictions, utilize excess paratransit capacity, and other programs that encourage investments in local service.
 The Bus Stop Amenities Program will directly fund improvements at VTA’s bus stops.

The bus stop improvements will be prioritized based on VTA’s Transit Passenger Environment Plan and ongoing maintenance needs.

Six to 12 months into the implementation of the Next Network, staff will have ridership data available to evaluate potential increases to the ridership hours where we see higher demand for service. To meet our commitment as expressed in 2016 Measure B and in collaboration with the public, VTA will make increased investments in service hours in the system focusing on those areas where we see the greatest demand by transit dependent populations.

VTA will consider the potential for further reducing the fares for seniors and youth with a requested goal of free rides.

Criteria
 Only projects and programs currently listed on 2016 Measure B Attachment D are eligible.

Requirements
 For potential competitive grants for the Innovative Transit Models Program:
o Reporting requirements will be detailed in agreements executed with VTA for project funding.
o All applications must include a delivery schedule.
o Funds will be available on a reimbursement basis.
 VTA Complete Streets reporting requirements will be required for all capital

Rev 03/2022 Page 22 of 22
improvements projects.
 All collateral material will be required to display a 2016 Measure B logo.

1 SERVICE AGREEMENT
RideCo US Inc.

THIS AGREEMENT is entered into and becomes effective on _______________ (“Effective Date”), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and RideCo US, Inc., a Delaware corporation (“RideCo” or "SERVICE PROVIDER") duly authorized to do business in California and will remain so during the term of this Agreement, hereinafter may referred to individually as a Party and collectively as “Parties.” In consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows:

RECITALS
A. With the assistance of RideCo, CITY applied for and received a transportation grant for implementing a technology-driven transportation service within the CITY.

B. CITY has or is concurrently entering into a Grant Agreement with the Santa Clara Valley Transportation Authority (VTA), and RideCo is familiar with the terms of the Grant Agreement.

C. RideCo is a technology provider for on-demand transit services.

D. RideCo intends to subcontract with a transportation operations provider to provide drivers and vehicles to transport community members throughout the community (“Transportation Operations Provider”).

E. CITY wishes to implement a technology-driven transportation service and RideCo is willing to provide access to RideCo’s Dynamic Transit System (as defined herein) on a license basis and to coordinate the provision and delivery of transportation services on the terms set out herein (the “Project”).

1. City Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on April 6, 2022.

2. Term of Agreement. This Agreement shall cover services rendered for 2 years from the launch date to the passengers (the “Initial Term”) at which time SERVICE PROVIDER’S services shall be deemed completed. The City Manager is authorized to extend the term of this Agreement for an additional 36 months, in 12 month increments at CITY’S option, subject to the Parties’ agreement of applicable terms including the appropriate Subscription and Services Fee. Any such extension shall be in writing and signed by both Parties to this Agreement.

3. Scope of Service. The services to be performed by SERVICE PROVIDER shall be to implement and operate a technology-driven transportation service as further described in Exhibit A.

3.1. License Grant: Subject to the terms of this Agreement, RideCo grants CITY a limited, revocable, non-exclusive, and non-transferable license to access and use the Dynamic Transit System in the geographic area identified in Exhibit A. The Distributed Software may only be used in combination with the Approved Equipment/Third Party Software.

RideCo or its agents, resellers or distributors may release from time to time to CITY at no additional charge during the term of this Agreement, software bug fixes and patches

2 and such releases shall be considered “Software” hereunder and subject to the terms of this Agreement unless otherwise specified by RideCo.

3.2. Restrictions & End User Terms:
a) Restrictions. Except as otherwise expressly permitted in this Agreement, CITY shall not, and shall not encourage any third party to: (i) customize, modify or create any derivative works of the Services; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (iii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Distributed Software; (iv) publish any results of benchmark tests run on the Software to a third party without RideCo’s prior written consent; (v) redistribute, encumber, sell, rent, lease, sub-license or otherwise transfer rights to the Services; (vi) copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part and CITY may not copy any written materials (except for training materials and for internal use) accompanying any portion of the Services unless specifically authorized in writing to do so by RideCo. CITY shall not access the Services in order to build a competitive product or service or to copy any ideas, features, functions or graphics of the Dynamic Transit System or the Documentation. For greater certainty, CITY will not be in breach of this Section 3.2 if CITY independently develops a competing product or service without use or reference to RideCo’s Confidential Information. b) End Users. RideCo and its subcontractors shall ensure that end users agree to appropriate terms of service and privacy policy in accordance with requirements of applicable law before using the Services. RideCo will inform end users that the transportation services are provided on behalf of the CITY by the Transportation Operations Provider

4. Compensation. SERVICE PROVIDER shall be compensated as follows:

4.1. All amounts are in United States dollars and exclude taxes.

4.2. Amount. $1,539,099. Total compensation to SERVICE PROVIDER under this Agreement during the Initial Term set forth in Section 2 above shall not exceed one million five hundred thirty-nine thousand and ninety-nine dollars and shall be billed based on the rate and basis set forth in Exhibit B. If the City Manager extends the term of this Agreement pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to SERVICE PROVIDER during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended annual term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDER for one year of service during the Initial Term of this Agreement.

4.3. Billing. SERVICE PROVIDER shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services performed and expenses incurred (if such expenses are reimbursable pursuant to Exhibit B) by SERVICE PROVIDER on a monthly basis unless otherwise specified in Exhibit B. All invoices shall be sent to the CITY addressed to the department head or project manager identified below in Section 13 Notices. Payment will be made to SERVICE PROVIDER within thirty (30) days of receipt of invoice by CITY. For services billed on an hourly rate, the minimum unit of

3 billed time shall not exceed one tenth of one hour. CITY shall pay for services and expenses (if so provided in Exhibit B) up to the limit of compensation set forth above, that in the CITY’S judgment were necessary and reasonable. Services for work performed and expenses incurred in excess of the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.

5. Termination.

5.1. City Manager’s Authority. The City Manager of CITY is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.

5.2. Termination without Cause. CITY or SERVICE PROVIDER shall have the right to terminate this Agreement, without cause, by giving ninety (90) days’ written notice or less under urgent circumstances, to the other Party.

5.3. Termination with Cause. Either Party may terminate this Agreement with written notice if the other party: (i) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; (ii) ceases to carry on business as a going concern; or (iii) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party. SERVICE PROVIDER may also terminate this Agreement in accordance with Section 20 below.

5.4. Non-Appropriations. Notwithstanding anything contained in this Agreement to the contrary, if insufficient funds are appropriated, or funds are otherwise unavailable in the budget for CITY for any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify SERVICE PROVIDER of such occurrence, and this Agreement shall terminate after the last day during the fiscal year for which appropriations shall have been budgeted for CITY or are otherwise available for payments.

5.5. Effect of Termination. Upon such termination, SERVICE PROVIDER shall submit to CITY an itemized statement of services performed for which compensation has not been paid. CITY may require SERVICE PROVIDER to complete certain work product or documents. SERVICE PROVIDER shall deliver to CITY all documents in its possession without additional compensation to SERVICE PROVIDER. CITY shall destroy all copies of the Software (and cease all access to the same), destroy or delete all accompanying Documentation and Confidential Information of RideCo and shall provide confirmation of having done so within one (1) week of the effective date of termination.

6. Performance of Work.

6.1. SERVICE PROVIDER represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services. Services shall be performed by SERVICE PROVIDER in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of the SERVICE PROVIDER’S profession. SERVICE PROVIDER shall perform all work and services under this Agreement in conformance with the time schedule set forth herein. CITY’S City Manager is authorized on behalf of CITY to modify the timeframes set forth on the schedule within the term of this Agreement. If SERVICE PROVIDER desires to leave or store any of SERVICE PROVIDER’S equipment at a

4 CITY site while SERVICE PROVIDER is performing work or service pursuant to this Agreement, SERVICE PROVIDER will first obtain the consent of CITY’S City Manager, or his/her delegate, to do so, and any such storage shall occur only in the manner and location allowed by such CITY official and entirely at SERVICE PROVIDER’S sole risk.

6.2. RideCo Warranties. RideCo represents and warrants to CITY that RideCo will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient, and business-like manner. RideCo further represents and warrants that:
(6) The Services do not infringe any patent, copyright or trademark or violate the trade secret or other proprietary rights of any third party;
(ii) RideCo owns or has exclusive or non-exclusive rights in all patents, copyrights, trademarks, trade secrets and other proprietary rights in and to the Services necessary to grant the licenses herein; and
(iii) RideCo possesses the legal right and authority to execute and perform this Agreement.

6.3 Disclaimer of Implied Warranties: Except as set forth in this Agreement, there are no other warranties or conditions of any kind, including without limitation, the warranties that the Software Services are free of defects, merchantable or fit for a particular purpose. Specifically, SERVICE PROVIDER makes no representation or warranty regarding the merchantability, fitness for a particular purpose or functionality of the Software Services. All Approved Equipment/Third Party Software is subject to the warranty of its respective manufacturer and no warranty whatsoever is provided by SERVICE PROVIDER. SERVICE PROVIDER makes no guarantee of the performance, accuracy, and results of the Software Services. This disclaimer of warranty constitutes an essential part of this Agreement. No use of the Software Services is authorized under this Agreement except under this disclaimer.

7. Insurance Requirements. SERVICE PROVIDER shall procure and provide proof of the insurance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of SERVICE PROVIDER, including its subcontractors, employees, and agents, relating to or arising from the performance of any work or service under this Agreement, and must remain in full force and effect at all times during the period covered by this Agreement. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or “umbrella” policies, provided each such policy complies with the requirements set forth herein. Any deductibles or self-insured retentions must be declared to and approved by CITY. SERVICE PROVIDER further understands that the CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to SERVICE PROVIDER, at any time as deemed necessary to protect the interests of the CITY.

7.1. Insurance Types and Amounts.

7.1.1. Commercial General Liability (CGL). SERVICE PROVIDER shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence.

7.1.2. Automobile Liability. SERVICE PROVIDER’S Transportation Operations Provider shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if SERVICE PROVIDER does not own automobiles, then SERVICE PROVIDER shall maintain Hired/Non-owned Automobile Liability)

5 against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of two million dollars ($2,000,000.00) combined single limit for any one accident or occurrence.

Transportation Operations Provider shall provide coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limit no less than $5,000,000.00 combined single limit for bodily injury and property damage.

7.1.3. Workers’ Compensation Insurance and Employer’s Liability. SERVICE PROVIDER shall maintain Workers Compensation coverage, as required by law, in the minimum amount of one million dollars ($1,000,000.00) for any one accident or occurrence. If SERVICE PROVIDER is self-insured, SERVICE PROVIDER shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.

7.1.4. Pollution (Environmental) Liability. Intentionally deleted.

7.1.5. Professional Liability.

7.1.5.1. If the performance of SERVICE PROVIDER’S work or service under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), SERVICE PROVIDER shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of one million dollars ($1,000,000.00) each claim. Further, if SERVICE PROVIDER maintains a claims-made policy, SERVICE PROVIDER shall provide written evidence of such insurance to the CITY for at least five (5) years after the completion of work performed under this Agreement.

7.1.5.2. If the performance of SERVICE PROVIDER’S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), SERVICE PROVIDER shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of one million dollars ($1,000,000.00) each claim.

7.1.6. Sexual Abuse/Molestation Liability (SML): If the performance of SERVICE PROVIDER’S work or service under this Agreement involves contact with minors, SERVICE PROVIDER shall procure and maintain Sexual Abuse and Molestation insurance in the minimum amount of two hundred thousand dollars ($200,000.00) each claim.

7.2. Endorsements. SERVICE PROVIDER shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:

7.2.1. General Liability and Automobile Liability.

7.2.1.1. The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds;

7.2.1.2. The insurer waives the right of subrogation against the City of Morgan Hill and the CITY’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers; and,

6 7.2.1.3. Insurance shall be primary non-contributing.

7.2.1.4. Santa Clara Valley Transportation Authority (VTA) be named as Additional insureds on a primary and non-contributory basis with Separation of Insureds and Waiver of Subrogation on all policies of insurance.

7.2.2. Workers Compensation.

If the performance of SERVICE PROVIDER’S work or service under this Agreement involves access to or activity on any property or premises owned or occupied by the CITY, including, but not limited to, SERVICE PROVIDER’S presence during site visits and meetings, then insurer waives the right of subrogation against the City of Morgan Hill and the CITY’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.

7.3. Qualification of Insurers. All insurance required pursuant to this Agreement must be issued by an insurer who must have a current A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better.

7.4. Certificates. SERVICE PROVIDER shall furnish CITY of Morgan Hill with copies of all certificates as outlined herein, whether new or modified, promptly upon receipt. In the event of a claim or legal action, SERVICE PROVIDER shall promptly furnish CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to the SERVICE PROVIDER’S agreement with the CITY shall be canceled or materially changed except after thirty (30) days’ notice by the insurer to CITY. A “material change” is a change that results in non-compliance with any insurance requirements in this section 7.

Certificates, including renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address provided herein.

Certificate Holder address:

City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037

7.5 SERVICE PROVIDER must ensure that each Transportation Operations Provider maintains the same insurance coverage required under this Section 7, with respect to its provision of services, including those requirements related to the additional insureds and waiver of subrogation.

7.5.1 SERVICE PROVIDER shall contractually require Transportation Operations Provider to add CITY as an additional insured to such policies; and (ii) add CITY as a third-party beneficiary to the contract between RideCo and Transportation Operations Provider to enable CITY, in its sole discretion, to bring any transportation, vehicular or driver-related claims in connection with the Project directly against Transportation Operations Provider.

7.5.2 SERVICE PROVIDER must confirm that each Transportation Operations Provider has complied with requirements as outlined herein. The insurance requirements for Transportation Operations Provider do not replace or limit the SERVICE PROVIDER’S insurance obligations.

7 8. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable for any default or liability of SERVICE PROVIDER or CITY under this Agreement.

9. Compliance with Law.

9.1. SERVICE PROVIDER and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. SERVICE PROVIDER and its officers, employees, agents, and subcontractors 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, childbirth or 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 SERVICE PROVIDER and its officers, employees, agents, and subcontractors shall not unlawfully deny any of their employees family care leave or discriminate against such employees on the basis of having to use family care leave. The SERVICE PROVIDER and its officers, employees, agents, and subcontractors must ensure that the evaluation and treatment of their employees and applicants for employment is free of such discrimination and harassment.

9.2. Compliance with Wage and Hour Laws: SERVICE PROVIDER, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state, and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code.

9.3 Final Judgments, Decisions, and Orders: For purposes of this Section, a “final judgment, decision, or order” refers to one for which all appeals have been exhausted or the time to appeal has expired. Relevant investigatory government agencies include:
the federal Department of Labor, the California Division of Labor Standards Enforcement, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

9.4 Prior Judgments against SERVICE PROVIDER and/or its subcontractors: BY

SIGNING THIS AGREEMENT, SERVICE PROVIDER AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY FINDING – IN THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT – THAT SERVICE PROVIDER OR ITS

SUBCONTRACTOR(S) HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. SERVICE PROVIDER FURTHER AFFIRMS THAT IT OR ITS
SUBCONTRACTOR(S) HAS SATISFIED AND COMPLIED WITH – OR HAS

REACHED AGREEMENT WITH THE CITY REGARDING THE MANNER IN WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

9.5 Judgments or Decisions During Term of Contract: If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or SERVICE PROVIDER learns of such a judgment, decision, or order that was not previously disclosed, SERVICE PROVIDER shall inform the City Attorney, no more than fifteen (15) days after the judgment, decision or order becomes final or of learning of the final judgment, decision or order. SERVICE PROVIDER and its subcontractors shall promptly satisfy and comply with any such judgment, decision, or order, and shall provide the City Attorney with documentary evidence of compliance with the final

8 judgment, decision, or order within five (5) days of satisfying the final judgment, decision, or order. CITY reserves the right to require SERVICE PROVIDER to enter into an agreement with CITY regarding the manner in which any such final judgment, decision, or order will be satisfied.

9.6 City’s Right to Withhold Payment: Where SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has been found in violation of any applicable wage and hour law by a final judgment, decision or order of a court or government agency, CITY reserves the right to withhold payment to SERVICE PROVIDER until such judgment, decision or order has been satisfied in full.

9.7 Material Breach: Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

9.8 Notice to City Related to Wage Theft Prevention: Notice provided to the City Attorney as required under this Section shall be addressed to: City Attorney, City of Morgan Hill, 17575 Peak Avenue, Morgan Hill, CA 95037. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

10. Independent Contractor. SERVICE PROVIDER is an independent contractor and not an agent or employee of CITY.

11. Confidentiality. All data, documents, or other information received by SERVICE PROVIDER from CITY or prepared in connection with SERVICE PROVIDER’S services under this Agreement are deemed confidential and shall not be disclosed to any third party by SERVICE PROVIDER without prior written consent by CITY.

11.1. Confidential Information. As used herein, “Confidential Information” means all confidential information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that is designated in writing as confidential or ought to be considered confidential based on the nature of the information and the circumstances of disclosure. For greater certainty, the Documentation and the functionality of the Software are all Confidential Information of RideCo. Personal Data of any user of the service is Confidential Information. Confidential Information shall not include any information that the Receiving Party can demonstrate by its written records: (i) was known to it prior to its disclosure hereunder by the Disclosing Party; (ii) is or becomes known through no wrongful act of the Receiving Party; (iii) has been rightfully received from a third party without restriction on disclosure and without breach by such third party of a non-disclosure obligation; (iv) is independently developed by the Receiving Party; or (v) has been approved for release by the Disclosing Party’s prior written authorization.

11.2. Obligations. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the

9 receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.

11.3. Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

12. Conflict of Interest and Reporting. SERVICE PROVIDER shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.

13. Notices. All notices shall be personally delivered or mailed, via first class mail to the below listed address. These addresses shall be used for delivery of service of process. Notices shall be effective five (5) days after date of mailing, or upon date of personal delivery.

Address of SERVICE PROVIDER is as follows:

RideCo US, Inc.

ATTN: VP, Customer Success & Operations
10880 Wilshire Boulevard, Suite 1101
Los Angeles, CA 90024
Address of CITY is as follows:

Chris Ghione, Public Services Director
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:

City Clerk
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037

14. Licenses, Permits and Fees. SERVICE PROVIDER shall obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes, and regulations of the federal, state, and local government.

15. Service Provider’s Proposal. If applicable, this Agreement shall include SERVICE PROVIDER’S proposal or bid which is incorporated herein. In the event of any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.

16. Maintenance of Records.

16.1. Maintenance. SERVICE PROVIDER shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and CITY rules and ordinances related to services provided under this Agreement. SERVICE PROVIDER shall maintain records for a period of at least 5 years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the 5-year period, then SERVICE PROVIDER shall retain said records until such action is resolved.

16.2. Access to and Audit of Records. The CITY shall have the right to examine, monitor and audit all records, documents, conditions, and activities of the SERVICE PROVIDER and its subcontractors related to services under this Agreement. Pursuant to Government Code Section 8546.7, if this Agreement involves the expenditure of public funds in excess of $10,000, the Parties to this Agreement may be subject, at the

10 request of the CITY or as part of any audit of the CITY, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.

16.3. RideCo Intellectual Property. RideCo retains all right, title and interest in and to the Dynamic Transit System including all Documentation, all intellectual property rights in the Software and all copies and derivative works thereof. CITY acknowledges and agrees that the Dynamic Transit System, and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to the Dynamic Transit System and all modifications, changes, enhancements, or additions thereto) and all intellectual property rights relating to the provision of professional services, feedback, technical support, maintenance and other support if any, (collectively, “RideCo IP”), are owned or licensed by RideCo. To the extent CITY acquires rights in the RideCo IP, CITY assigns such rights to RideCo and waives any moral rights it may have in the RideCo IP to and in favor of RideCo. Nothing in this Agreement gives CITY any right, title or interest in, to or under any of the Dynamic Transit System or any intellectual property rights therein (including without limitation patent rights) or arising pursuant to professional services, product feedback, technical support, and other support.

16.4. Operational Data. As between CITY and RideCo, CITY will own the Operational Data from the Project and CITY acknowledges and agrees that RideCo is not responsible for any liability arising out of the collection, retention, use, operation, and disclosure by CITY of Operational Data. Subject to the personal data protection undertakings set out in Schedule “C”, CITY hereby grants to RideCo for the duration of this Agreement a worldwide and royalty-free right and license to access and use the Operational Data for the sole purposes of: (i) providing the Services to CITY, (ii) assessing the performance of the Services; and (iii) creating System Log Data (as defined in Section 16.6 below). CITY is not entitled to receive any compensation or re-imbursement of any kind from RideCo for use of said Operational Data. Except as otherwise expressly permitted in this Agreement, RideCo does not claim any right, title or interest in the Operational Data.

16.5. Personal Data Protection Undertaking. RideCo hereby agrees and undertakes to comply with the personal data protection undertakings set out in Schedule “C”.

16.6. System Log Data. “System Log Data” means data derived by SERVICE PROVIDER from Operational Data which has been aggregated with other SERVICE PROVIDER customer data, and which has been de-identified information and, in a manner, so that it contains no Personal Data and does not, and cannot reasonably be used, to identify CITY or any individual. For greater certainty, System Log does not identify a specific passenger or driver, nor does it contain any Confidential Information of CITY.

16.7. Suggestions. RideCo shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services, and business any suggestions, enhancement requests, recommendations or other feedback provided by CITY relating to the operation of the Services.

16.8. Reservation of Rights. Except for the rights and licenses granted in this Agreement, CITY acknowledges and agrees that RideCo owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the technology used to provide the Services) and all related RideCo IP and RideCo grants CITY no further licenses of any kind hereunder, whether by implication, estoppel or otherwise.

CITY acknowledges that only RideCo shall have the right to maintain, enhance or

11 otherwise modify the Dynamic Transit System.

17. Familiarity with Work. By executing this Agreement, SERVICE PROVIDER represents that:
(1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the difficulties and restrictions of the work under this Agreement. Should SERVICE PROVIDER discover any conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY and shall not proceed, except at SERVICE PROVIDER’S risk, until written instructions are received from CITY.

18. Time of Essence. Time is of the essence in the performance of this Agreement.

19. No Assignment. Subject to Section 20 below, neither this Agreement nor any portion shall be assigned by SERVICE PROVIDER, without prior written consent of CITY. Any attempted assignment not first approved by CITY shall be void and, at CITY’S option, shall terminate this Agreement effective as of the date of such attempted assignment.

20. Subcontractors: RideCo may sub-contract the performance of the transportation services provided by and/or managed by to the Transportation Operations Provider to third party service providers. In the event that the Transportation Operations Provider’s subcontract is terminated in accordance with its terms, RideCo will use commercially reasonable efforts to find a suitable replacement acceptable to CITY. CITY shall not unreasonably withhold, condition, or delay consent to the same. In the event that RideCo cannot find a suitable replacement, or the replacement is not approved by CITY, this Agreement will terminate automatically on written notice from RideCo to the CITY. Termination under this Section 20 will be without liability, obligation, or penalty for any reason.

For greater certainty, RideCo will be solely responsible for payment of its subcontractors, including the Transportation Operations Provider.

21. Attorney Fees. In any legal action, dispute or arbitration arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred.

22. Defense and Indemnification; Liability.

22.1. Defense and Indemnification. SERVICE PROVIDER shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers, and Satna Clara Valley Transportation Authority (VTA) (“INDEMNITEES”) from and against any and all third party claims and any documented liabilities, expenses, liens, or damage awards, including liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses directly incurred by the INDEMNITEES which arise out of, pertain to, or relate to the failure to comply with any obligations contained in this Agreement by SERVICE PROVIDER, and/or its agents, officers, employees, subcontractors, or independent contractors (“CLAIM”). As conditions for the foregoing commitments by SERVICE PROVIDER, CITY will promptly notify SERVICE PROVIDER of any CLAIM and provide reasonable assistance to SERVICE PROVIDER with respect to handling the CLAIM.

SERVICE PROVIDER will have the sole right to defend, negotiate and settle any such CLAIM.

22.2. Exceptions. SERVICE PROVIDER is not required to indemnify INDEMNITEES against liability for bodily injury, property damage or personal injury, or any other loss, damage or expense arising from the negligence or willful misconduct of the CITY.

22.3. Not limited by insurance. The indemnity, defense and hold harmless provisions of this Agreement apply to all CLAIMS alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by SERVICE PROVIDER.

12 22.4. Right to Offset. CITY shall have the right to offset against any compensation due SERVICE PROVIDER under this Agreement any amount due CITY from SERVICE PROVIDER as a result of SERVICE PROVIDER'S failure to pay CITY promptly any indemnification arising under this Section 22 and any amount due CITY from SERVICE PROVIDER arising from SERVICE PROVIDER'S failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers' compensation laws.

22.5. Interpretation. This Section shall constitute an agreement or contract of indemnity, incorporating the interpretations under California Civil Code Section 2778. It is expressly understood and agreed that the obligation of the SERVICE PROVIDER to indemnify the INDEMNITEE shall be as broad and inclusive as permitted by the laws of the State of California and shall survive termination of this Agreement.

22.6. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO THE CITY FOR ANY

LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR

CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES

FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS

OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), IN

CONNECTION WITH THE SOFTWARE SERVICES HOWEVER CAUSED AND

UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER

OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SERVICE PROVIDER’S cumulative liability to the CITY or any other party for damages for any cause whatsoever arising in relation to the Software Services will be limited to no more than the Subscription and Services Fees paid under this Agreement in the six (6) month period prior to the applicable claim.

For the avoidance of doubt, Transportation Operations Provider’s liability in respect of any transportation, vehicular or driver-related claims brought against the CITY by third parties will not be subject to the foregoing caps and exclusions and will instead by capped at the levels of the required insurance.

23. Entire Agreement; Modification; Conflicting Provisions. This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agreements, oral or written. This Agreement may be modified or provisions waived only by a subsequent mutual written agreement executed by CITY and SERVICE PROVIDER. If the provisions contained in the main body of this Agreement conflict with any provision contained in an exhibit to this Agreement, the provisions of the main body of this Agreement shall govern and control over any provision contained in an exhibit to this Agreement.

24. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. This Agreement was entered into and is to be performed in the County of Santa Clara. Any action or dispute arising out of this Agreement shall only be brought in Santa Clara County.

25. Interpretation. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, California Civil Code § 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.

26. Preservation of Agreement. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

13 27. Publicity. RideCo shall be entitled to disclose and publicize in the form of customer lists and on its web site and marketing materials, the identity of the CITY as a client of RideCo, provided that the use of any trademark/logo of CITY shall be subject to CITY’S prior written consent.

28. Non-Solicitation. During the term of this Agreement and for one (1) year thereafter, the CITY shall not, directly, or indirectly, in any manner whatsoever, including, without limitation, either individually or in partnership, jointly or in conjunction with any other person, or as employee, principal, agent, director or shareholder, hire any employees of RideCo or induce or attempt to induce any such employees to leave their employment.

29. Force Majeure: Neither party shall be liable for any delay or failure in performance due to such acts of God, earthquake, labor disputes, strikes, shortages of supplies, riots, war, fire, epidemics, pandemics, or transportation difficulties, to the extent not in control of such party. The obligations and rights of the excused party shall be extended on a week-to-week basis, provided, however, that a delay of thirty (30) days shall entitle the other party to terminate this Agreement without liability.

30. Binding Agreement. Notwithstanding the provisions of Section 19 above, this Agreement shall bind any and all successors in interest, legal representatives and/or other permitted assignees or transferees of SERVICE PROVIDER in the same manner as if those successors in interest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.

31. Representations and Warranties by Each Party. Each party represents, warrants to the other party that: (i) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; (iv) it will comply with all applicable laws in connection with this Agreement.
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15 EXHIBIT A

SCOPE OF SERVICES
Zone: Morgan Hill, CA
Service model: City-wide OnDemand program using virtual stops within the zone.

Vehicles: Approximately Two (2) 6-seat Dodge Caravan (or equivalent) minivans and One (1) ADAaccessible 4-seat Dodge Caravan (or equivalent) minivans. The actual number of vehicles scheduled to be in revenue operation will vary subject by day of week, time of day and passenger demand. RideCo will ensure each vehicle is equipped with a bicycle rack that holds at least two (2) bikes.

Service Hours: 7:00 am - 9:00 pm, Monday-Saturday
Vehicle Revenue Hours: Approximately 26,208 vehicle revenue hours for the initial Project Term with a minimum of 30 vehicle revenue hours per day and minimum 302 annual operating days. CITY and RideCo may, if mutually agreed upon, add additional hours of service, service area, target rider market, or vehicles in accordance with the terms of the Agreement.

Project Management, Training, Software Requirements, and Data Reporting:

1. Project management will be a continuous function and a key responsibility of RideCo.

RideCo will develop and maintain an overall project schedule to ensure milestones are met in an efficient manner.

2. RideCo shall coordinate with CITY to refine and approve the service model, including specific stops, schedules, service coverage areas, and cost structure (including potential subsidization).

3. RideCo shall ensure the adequate and complete initial training of operators, dispatchers, operations manager(s), and CITY staff that are involved in the operation or monitoring of the service. CITY may request additional training sessions for CITY staff under Professional Services fee of $120 per hour.

4. RideCo will ensure that the functions listed in Schedule “D” Software Functional Requirements are met.

5. RideCo and CITY will agree upon data reporting expectations and shall include daily ridership information, virtual stop locations, use of referral or promotional codes, qualitative data collected from riders to capture travel preferences, and other data as mutually agreed.

6. RideCo will work with CITY to coordinate a test run of both the software application and service prior to commencement of public revenue service operations.

7. RideCo will provide a standard daily KPI report, including data mutually agreed upon by the CITY and RideCo. Custom reporting is out of scope but may be requested under Professional Services fee of $120 per hour.

8. RideCo will review data dashboard with the CITY and transportation partners on weekly basis during the first month of revenue service operations and a monthly basis thereafter, during the Project Term.

9. RideCo will periodically provide CITY with any recommendations for changes in virtual stops, service hours, or promotions to ensure meeting project goals.

10. RideCo will provide CITY with a final report summarizing their market, operational findings, viability of long-term service, and recommendations. A presentation on the final report will be provided to city staff.

16 Branding and Marketing:

1. RideCo will brand the rider mobile application uniquely to the service. CITY will provide necessary graphics and content for RideCo to brand the application.

2. RideCo will advise the city in the marketing of the service to passengers, including providing examples of successful marketing materials from other client efforts.

3. RideCo will configure and manage referral and promotional codes throughout the duration of the Project.

4. All other marketing – including but not limited to program branding, website design and development, print materials, digital ads, digital communications by others.

Vehicles and Drivers:

1. RideCo, through its subcontractor Transportation Operations Provider, will be responsible for the acquisition, storage, fueling, and maintenance of the appropriate vehicles. Vehicles used in the performance of this contract shall be no more than five (5) years old and/or have no more than 300,000 miles during any time during the initial Project Term or subsequent renewals of this contract. Vehicle registration and vehicle identification numbers will serve as proof of age. Vehicles must meet all EPA standards. All wheelchairaccessible vehicles must meet ADA (49 CFR Parts 37 and 38) standards.

2. RideCo, through its Transportation Operations Provider, will provide current California licensed drivers that meet the following criteria:
a. No more than two moving violations in the past three (3) years b. No at fault accidents or major violations (Driving Under the Influence or Driving While Intoxicated) in the past seven (7) years.
c. Speak, write, and read English fluently.
d. Successfully pass background checks annually which include social security number verification, no sex offender, no government restricted lists, no county, state and federal court records, no criminal misdemeanor convictions within the past three (3) years related to the possession, sale or use of illegal drugs, and verification of past living history or other available public records.

3. RideCo, through its Transportation Operations Provider, will regularly screen drivers for legal and illegal substances via an independent medical agency in accordance with the U.S. Department of Transportation regulations.

4. RideCo, through its Transportation Operations Provider, will train drivers focused on customer service including the ability to:
a. Handle inquiries and/or complaints
b. Develop rapport and the ability to respond to an individual’s needs. c. How to handle doubt, misunderstandings, and objections.

5. RideCo, through its Transportation Operations Provider, will provide road driver training to include:
a. Vehicle Familiarization Training
b. Tech Applications
c. Vehicle Inspection Training
d. Onsite Local Knowledge and Culture Training
e. On Demand Route Training
f. Maintenance Protocol
g. Parking and Storage Locations
h. Lost & Found Protocol

17 Customer Service:

1. RideCo, through its subcontractor Transportation Operations Provider, will maintain customer service access through an operations center, during hours of revenue service operations. For those who are not able to access the service via the software application, customers shall be able to call, during hours of revenue service operations, and book rides over the telephone and receive customer support including information about lost items.

1. INTERPRETATION

1.01 Definitions: In this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the following meanings:
“Distributed Software” means the RideCo passenger mobile application and driver mobile applications, and any other software tools or components made available by RideCo for download under this Agreement;
“Dynamic Transit System” means RideCo’s proprietary software programs including optimization algorithms, data analysis algorithms, web application, passenger mobile application, driver mobile application, dashboards, graphical user interface, all documentation and end user manuals;
“Documentation” means any and all of the following that are provided by RideCo, in any form of media, in connection with the Agreement (a) know-how, proprietary information and methodologies, document templates and best practice guides; (b) scripts and data analysis tools; (c) user manuals and guides, that explain or facilitate the use of the Software, including all updates thereto; and (d) data sheets, specifications and other technical documents and materials in respect of the Software;
“Maintenance and Support Services” means the maintenance and support services provided by RideCo as further described in Section 2 of this Exhibit; “Personal Data” has the meaning given in Schedule “C”;
“Platform Software” means collectively the RideCo Dynamic Transit System (DTS) cloud platform technology and underlying software, including its dynamic routing technologies, ridesharing technologies, algorithms, implementation architectures, operations dashboards, user interfaces, and application programming interfaces (“APIs”) to third party systems; "Operational Data" means data recorded by the Distributed Software and presented through export on the operations dashboard end-user interface, where such data is provided by CITY or passengers or partner drivers of CITY. For greater certainty, Operational Data includes passenger ride booking information (origin, destination, time, payment, status) and driver action data (location data, pickup/drop-off times) however Operational Data does not include system log data or any other data that is not provided as an export to an end user through the operations dashboard end-user interface;
“Software Services” means collectively the provision of access to the Software, Documentation, associated APIs and interfaces to third party systems provided by RideCo under this Agreement and Maintenance and Support Services all as further described in the schedules hereto;
“Services” means collectively the Software Services together with the vehicular transportation services provided by the Transportation Operations Provider;

18 “Software” means collectively the Distributed Software, Platform Software, and any interfaces between the two;
"Software Enhancements" means an update or upgrade to the Distributed Software or to the Platform Software, which update or upgrade may include new product features that change the character or structure of the software or its functional use or operation and will usually form part of an automatic update to the Software without any action being required from Customer; “Subscription and Services Fee” means the fees set forth in Exhibit B; and “Transportation Operations Provider” means the subcontractor that is contracted by RideCo to provide drivers and vehicles for the Project.

1.01 RideCo shall:
a) provide and supply all necessary hardware and software to run the Project with the Dynamic Transit System;
b) contract with a Transportation Operations Provider, acceptable to the CITY, that will supply drivers and vehicles that meet applicable bylaws, insurance requirements, and regulations of the CITY;
a. Transportation Operations Provider shall partner with RideCo to establish physical locations for virtual stops throughout the CITY.
i. Transportation Operations Provider and RideCo shall make a good faith effort to provide virtual stops within 5 minutes walking distance to 95% of Morgan Hill residents.
ii. CITY shall have the right to deny use of any virtual location based on public safety concerns or other reasons in the CITY’S best interest. b. Transportation Operations Provider shall be required to follow all applicable laws during provision of service.
c. Transportation Operations Provider shall be required to provide a full background check to all drivers responsible for providing the service. d. Transportation Operations Provider is required to maintain all vehicles in a safe operating condition.
c) perform logistics activities involved in running the Services, including without limitation:
i. the coordination of the dispatch, selection, scheduling, training and itinerary management for the Transportation Operations Provider, vehicles and drivers in relation to the Project;
ii. managing hours of operation and operating parameters as defined herein; iii. communicating itinerary information with passengers and drivers (digitally via the website, SMS, or the mobile app);
iv. collecting fare payments (“Fare Payments”) from passengers of the ride-share service, via credit card (if applicable). The Fare Payments shall be reported in the Invoice (as such term is defined in Section 4.2); and v. utilizing the Float (as defined herein) to pay costs involved in the operation of drivers and vehicles on the Project,
d) advise CITY of the assistance it requires from CITY in connection with the completion of its responsibilities under this Agreement;
e) support the CITY in marketing and promoting the Services;

19 f) coordinate with the CITY on providing the CITY with customer service and dispute related issues; and
g) complete the Project in a professional and competent manner by persons qualified and skilled in their occupations and the roles that they are required to perform hereunder, and in accordance with: (a) this Agreement; (b) industry standards; and (c) any requirements of law, as applicable.

2. MAINTENANCE AND SUPPORT SERVICES

2.01 Maintenance Services: RideCo shall provide the following maintenance services to CITY:
a) Supply or deploy corrections to the Software as required to correct errors, defects, malfunctions, and deficiencies, if any, in the Software; and b) Supply or deploy improvements, extensions, upgrades, enhancements, and other changes to the Software developed from time to time by RideCo.

2.02 Support Services: In response to a support request from CITY, RideCo shall provide the following support services to CITY as per the priority levels, response times and procedures specified in Schedule “B” to be provided remotely:
a) Clarification of software functionality
b) Adjustments to software configuration; and
c) Advice on the use and results of the Services;

2.03 Services Outside Scope of Maintenance and Support: The Maintenance and Support Services to be provided under this Agreement do not include:
a) Correction of errors or defects caused by operation of the Software in a manner other than specified in the Software documentation;
b) Rectification of errors caused by incorrect use of the Software; c) Correction of errors caused in whole or in part by the use of computer programs other than the Software unless the use of such programs has been approved by RideCo in writing; or
d) Diagnosis or rectification of faults not associated with the Software.

2.04 Professional Services: CITY may request at any time and from time to time that RideCo provide to CITY any other professional services or Software modifications which are within the scope of its business and which are not provided for herein and which are not covered by the Subscription and Services Fee. RideCo shall evaluate such requests and may provide the CITY an estimate of the cost of such professional services. In no event shall RideCo be obligated to provide professional services not agreed in writing with CITY.

20 EXHIBIT B

SCHEDULE OF COMPENSATION RATES

1.01 Float: CITY shall provide a pre-payment deposit (“Float”) to RideCo for the costs for the rideshare drivers with the amount of the Float specified below (“Float Amount”) until changed by notice in writing from CITY to RideCo. RideCo shall have no right to apply the Float Amount to any amounts owing to it with respect to any Invoice unless and until it receives approval in writing from CITY of such Invoice. Upon termination or expiry of this Agreement, the Float shall be applied to the final approved Invoice payable to RideCo pursuant to this Agreement and the balance of any remaining amount of the Float shall be paid by RideCo to CITY within thirty (30) days following the expiry or termination of this Agreement. RideCo shall keep detailed records and documents with respect to the Transportation Operations Provider costs, operating hours, and Float Amount and shall provide copies of all documents as may be requested from time to time by CITY relating thereto.

1.02 Taxes: All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of RideCo. Any such taxes that are imposed on the net income of RideCo shall be the sole responsibility of RideCo. CITY will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of RideCo or its employees or subcontractors.

2. Subscription and Services Fee: $58.65 per vehicle revenue hour

2.01 Any change in requirements such as an increase in insurance coverage may result in an increase in per vehicle revenue hour Subscription and Services Fee.

3. Marketing Budget: $0 – Marketing budget to be managed by the City of Morgan Hill

4. Budget for the initial Project Term: $ 1,539,099

5. Float Amount: $25,000

21 SCHEDULE "B"

RIDECO SERVICE LEVEL AGREEMENT

1. APPROVED EQUIPMENT / THIRD PARTY SOFTWARE
Driver Mobile App Requirements:
• Android Device running the most recent Android OS major version release and one previous major version release with Google Play Services • GPS Enabled Phone
• High speed (4G recommended) data plan with a minimum of 2GB/month • Minimum screen resolution 800x480
• Minimum recommended CPU: Mid-to-High range performance CPU based on ARMv8-A 64-bit Architecture
• 2GB RAM
• 1GB internal storage
Passenger Mobile App Requirements:
• iPhone running the most recent iOS major version release and two previous major version releases, or Android device running the most recent Android OS major version release and two previous major version releases with Google
Play Services
• Minimum screen resolution 800x480
• Minimum recommended CPU: dual-core 1.5GHz
• 1GB RAM
• 200MB internal storage
Browser requirements for operations dashboards:
• Internet Explorer 11
• Google Chrome (the most recent major version release and one previous major version release
• Firefox (the most recent major version release and one previous major version release • Safari (the most recent major version release and one previous major version release

2. AVAILABILITY, PRIORITY LEVELS, RESPONSE TIMES AND PROCEDURES Availability:
(a) RideCo shall make the Service Offerings Available, as measured over the course of each calendar month during the term and any additional periods during which RideCo does or is required to provide Service Offerings (each such calendar month, a “Service Period”), at least

99.9% of the time (the “Availability Requirement”). “Available” means the Service Offerings are available and operable for access and use by the majority of end users of CITY over the Internet in conformity with the specifications and documentation therefor. “Availability” has a correlative meaning. The Service Offerings are not considered Available in the event of any of the following:
(i) an issue affecting entire system or single critical production function for the majority of end users of the CITY;
(ii) System down or operating in materially degraded state for the majority of end users of the CITY.

22 Priority Levels
High Business critical problems that affect the availability or access of or to the Service Offering for most users
Medium Not critical but important problems that materially interrupt or restrict the normal production running of the Software (affecting a minority of users) Low Not business critical or important. Issues that do not materially impact the normal production running of the Software
Resources and Forms of Support
Support Portal Utilized for medium or low priority items [** CITY specific slack channel(s)] (typically one slack channel for each active service)
Emergency
hotline
Used for critical / high priority items
[**CITY specific emergency telephone number]
[**CITY specific emergency slack channel]
Support Response Time
Priority Response Time Update Frequency Resolution Time High Reviewed by
RideCo staff and
support ticket
updated/created
within 2 hours
Every 2 hours or
as mutually
determined
Within 24 hours
RideCo will attempt to resolve all
high priority issues within 24 hours,
however resolution times may be
longer depending on the nature and
complexity of the problem.

Medium Reviewed by
RideCo staff and
support ticket
updated/created
within 12 hours
Every working day
or as mutually
determined
Within five (5) business days

23 Low Reviewed by
RideCo staff
and support
ticket
updated/create
d within 24
hours
Every week or as
mutually
determined
RideCo shall notify CITY within
ten (10) business days of the
analysis of the problem, the
intended fix and the release in
which it will be delivered. Where
feasible, RideCo shall provide a
temporary workaround to CITY.

24 SCHEDULE “C”

PERSONAL DATA PROTECTION UNDERTAKING
“Personal Data” means data, whether true or not, about an individual who can be identified: (a) from that data; or (b) from that data and other information to which the organization has or is likely to have access; RideCo agrees that the following terms shall apply where RideCo accesses, handles, or uses any Personal Data under the Agreement, including in the course of and/or in connection with exercising its rights or carrying out its obligations under the Agreement:
a. Unless otherwise permitted by the CITY, RideCo may only collect, use, or process Personal Data as allowed under this Agreement, and RideCo shall comply with any written instructions the CITY gives RideCo in advance relating to compliance with any laws, regulations, court orders, or self-regulatory programs applicable to the collection, use, disclosure, treatment, protection, storage and return of Personal Data.
b. RideCo shall maintain commercially reasonable policies and procedures to protect the security, privacy, integrity, and confidentiality of Personal Data. c. If RideCo knows of any breach or potential breach of protective measures or if there has been any actual or potential unauthorized or accidental disclosure of Personal Data, RideCo must inform the CITY immediately and cooperate with the CITY in any post-breach investigation or remediation efforts.
d. RideCo shall notify the CITY promptly in the event of any claim or complaint from any individual to whom the Personal Data relates and/or where there has been an event of noncompliance with any data privacy laws by RideCo, whether discovered by RideCo or forming the subject of an investigation and/or action by the relevant authorities. e. RideCo shall notify the CITY promptly in the event that RideCo is required by law, court order, warrant, subpoena, or other legal or judicial process to disclose any Personal Data to any person.
f. If under the Agreement, RideCo has to collect any Personal Data from the CITY’S employees or any other individuals directly, RideCo must notify the individuals about the purpose of RideCo’s collection and must obtain and record (for future reference) their consent before RideCo does so, and RideCo must follow any reasonable instructions which the CITY may give RideCo in this regard, and must comply with all applicable laws for such collection of Personal Data.
g. RideCo must not disclose any CITY Personal Data to any other persons/entities (e.g. to RideCo’s related company/affiliate) or transfer anyPersonal Data outside of the USA or Canada without the CITY’S permission in writing.
h. RideCo shall promptly return to the CITY or destroy any Personal Data received in error.

RideCo must destroy Personal Data as soon as practicable if required by the CITY. At the end of the Agreement, RideCo must notify the CITY if RideCo or other recipients (if disclosure of Personal Data to such other recipients has been permitted by the CITY in writing) have any Personal Data collected/received as part of the Agreement, and follow the CITY’S instructions on destroying the Personal Data. Following such destruction, the CITY may require RideCo to certify that RideCo (and such recipients) no longer have Personal Data.

If RideCo wants to retain any Personal Data beyond the end of the Agreement, RideCo will be required to inform the CITY of RideCo’s reasons and seek the CITY’S agreement on the same.

25 SCHEDULE "D"

SOFTWARE FUNCTIONAL REQUIREMENTS
Passenger Application Requirements
Rider Account
• Trip history menu to see trip details
o Start & end time
o Starting & ending address
o Trip cost (if applicable)
o Help menu to provide feedback, or report other issue
• Reserved trip details
• Recent destinations are automatically saved to rider account Ride Booking and Tracking:
• Ability to enter an address or select current or specific location on the map • Reserve multiple seats or seat types (e.g. accessible) • Reserve trips up to 5 business days in advance
• Reserve multiple trips at once (same trip for multiple days in one week) • Retain recently queried locations so they are easy to pull up even if rider does not designate them as a “favorite”
• Ability to restrict virtual vs. doorstep drop-off and pick-up points • Vehicle location, vehicle ID and driver information are displayed while waiting for pickup • Ability to call and/or leave a note for driver
Payment
• Ability to hold credit card information.
• Place to enter promotional codes
Rating System
• Ride rating (e.g., 1 to 5 stars)
Customer Support
• Legal/terms and conditions
• A place for Frequently Asked Questions (FAQs)
• In app requests for support
• Customer service system that creates trackable tickets for follow up and resolution • Ability to mask phone number when contacting driver
Driver Application Requirements
• Automatic trip dispatching
• Dynamic routing capabilities to adjust vehicle allocation efficiently. • Make phone calls to a rider via anonymized phone number • Ability to launch turn-by-turn driving directions

26 Operations Dashboard Requirements
• Dashboards accessible to operations coordinators and authorized individuals by the CITY • Dashboard displays real-time data on riders, vehicles, drivers, and service performance/Key Performance Indicators (KPIs). Data available includes:
o Ridership
o Travel times
o Trip denial rate
o Booking abandonment rates
o On-time performance
o Trip and driver reviews
o Trip and driver comments
• Ability to assign different user-level permissions and rights based on operator, seniority, or role. • The data gathered will be shared with / available to the operator or agency in multiple formats:
o Dashboards to visualize rider, driver, and performance data, aggregated across a period or at an individual trip/driver level
o Weekly and monthly performance reports provided in Excel, in a performance format to be mutually agreed upon
o Exports of the raw data (rides, vehicles, times, locations etc.) in CSV format that can be further analyzed by the operator or agency staff if they desire Software Security, Reliability & Privacy Requirements
• The passenger and driver apps are ‘stateless’ and do not store any confidential passenger data on the local device.
• All data is stored securely in the cloud (Amazon Web Services – ‘AWS’). • The passenger and driver apps communicate securely with the cloud-based platform using RESTful APIs.
• RideCo’s Platform Software has a 99.9%+ historical uptime performance record. • Data is encrypted in transit using standard HTTPS, using an SSL wildcard certificate. • All public facing webservers have been hardened using industry standard practices. • Internal networks are shielded by AWS security groups which define allowable ports and IP addresses for internal services.
• APIs are all secured using token authentication using an identity management system. Tokens are only valid for one user and can only be acquired by successfully authenticating against our authentication API. APIs used by internal components are never exposed publicly. For certain API calls, throttling exists to prevent against DOS type attacks. • Daily backups of production databases for disaster recovery. • Software does not store any payment card or billing information on RideCo’s servers. • The mobile applications and operations dashboards include their own terms of service to end users that include provisions relating to data privacy, confidentiality, and intellectual property rights.

On-Demand across Entire City
Parameters of Service Model
Service Model Virtual Stop to Virtual Stop
Service Hours Monday – Friday: 7 am to 10 pm
Saturday – Sunday: 7 am to 7 pm
Virtual Stops Virtual Stops within 5-8 minutes of
walking
Service Frequency 15-minutes
Vehicles 3 Minivans
On-Demand
Morgan Hill

RESOLUTION NO. 21-_____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF MORGAN HILL APPROVING AN AMENDMENT TO
THE CITY’S FISCAL YEAR 2021-2022 BUDGET IN THE
GENERAL FUND (FUND NO. 010) TO APPROPRIATE
$60,000, THEREFOR
WHEREAS, the City of Morgan Hill, a municipal corporation and general law city duly organized and existing under and pursuant to the Constitution and laws of the State of California (“City”), is authorized to enter into contracts and agreements for the benefit of the City; and WHEREAS, the reasons supporting this Resolution are set forth in detail in that certain City Council Staff Report entitled “Approve Innovative Transit Agreements” submitted for City Council consideration at its meeting of April 6, 2022, submitted to the City Council by the City Manager (the “Staff Report”), the contents of which Staff Report are incorporated herein by this reference; and
WHEREAS, recommended amendments are needed and proposed to the City’s previously adopted Annual Budget for Fiscal Year 2021-2022 as set forth on Exhibit A to this Resolution, to appropriate the requisite funds to implement the actions authorized by this Resolution; and WHEREAS, the consideration by City Council of the adoption of this Resolution has been duly noticed pursuant to applicable laws and has been placed upon the City Council Meeting Agenda on the date set forth in the Staff Report, or to such date that the City Council may have continued or deferred consideration of this Resolution, and on such date the City Council conducted a duly noticed public meeting at which the City Council provided members of the public an opportunity to comment and be heard and considered any and all testimony and other evidence provided in connection with the adoption of this Resolution; and WHEREAS, the City Council determines that adoption of this Resolution is in the public interest.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:

Section 1. Recitals. The City Council does hereby find, determine and resolve that all of the foregoing recitals are true and correct.

Section 2. Approval and Authorization. The City Council does further resolve, order and/or direct as follows:
a. That the City’s previously adopted Fiscal Year 2021-2022 Budget, as the same has been amended to date, is hereby further amended in accordance with and as reflected on Exhibit A attached hereto and incorporated herein by this reference; and

City of Morgan Hill
Resolution No. 21-_____

b. That the City Clerk is hereby authorized and directed to forward a copy of this Resolution to the City’s Finance Director, who is hereby authorized and directed to take all actions necessary to implement the terms of this Resolution pertaining to the Fiscal Year 2021-2022 Budget of City.

Section 3. This Resolution shall take effect immediately upon adoption.

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Morgan Hill at its meeting held on this 6
th day of April 2022 by the following vote:

AYES: COUNCIL MEMBERS: None
NOES: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
APPROVED: ATTEST:
___________________________________ _______________________________ RICH CONSTANTINE, Mayor MICHELLE BIGELOW, City Clerk
 CERTIFICATION 
I, Michelle Bigelow, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No. 21-_____ adopted by the City Council at the meeting held on the 6th day of April 2022.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk

AGENDA BUDGET SCORECARD
FISCAL YEAR 2021‐2022
ADJUSTMENT # 011
FUND: 010 General Fund
DEPARTMENT: 2170 Innovative Transit
OBJECT: 42231 CONTRACT SERVICES
AGENDA DATE: 02/02/22
AGENDA ITEM TITLE:
07/01/21 06/30/22

PROJECTED PROJECTED

BEGINNING AMENDED ENDING
FUND ESTIMATED APPROPRI‐ FUND

BALANCE REVENUES ATIONS BALANCE
ORIGINAL BUDGET      24,896,179     43,435,456     44,689,214       23,642,421 CUMULATIVE REVISIONS PRIOR                      ‐ ‐                                   210,530           (210,530)

TO RECOMMENDED ACTION
RECOMMENDED ACTION                    ‐             60,000           (60,000) RESULT OF RECOMMENDED ACTION      24,896,179      43,435,456     44,959,744        23,371,891 Innovative Transit

8 CITY COUNCIL STAFF REPORT
MEETING DATE: April 6, 2022
PREPARED BY:

Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager

APPROVAL OF SECOND AMENDMENT TO AGREEMENT WITH WEST

COAST DOOR AND GATE

RECOMMENDATION(S)

1. Approve the Second Amendment to the On-Call Maintenance Service Agreement with West Coast Door and Gate for one additional year of service for $40,000 for a total contract amount of $100,000;

2. Determine that competitive bids upon notice would not likely result in a lower price to the City from a responsible bidder or would cause unnecessary expense or delay under the circumstances per Section 3.04.150 (1) of the Morgan Hill Municipal Code; and

3. Authorize the City Manager to execute and administer the amendment with West Coast Door and Gate.

Estimated Time:

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
2022-2023 Strategic Priorities
Fiscal Sustainability
REPORT NARRATIVE:

The purpose of this report is to provide the City Council with an opportunity to consider a second amendment to the City's maintenance service agreement for on-call door and gate replacement and repairs at City facilities.

The City has contracted with West Coast Door and Gate since September 2016 to provide on-call door and gate replacement and repair services. In May 2019, the City released a Request for Proposals (RFP) for on-call door and gate replacement and repair services. No proposals were received. The City then contacted West Coast Door and Gate and entered into the current on-call agreement in August 2019. This current agreement expires on June 30, 2022. The original amount of the agreement was

8 $60,000 for two years per City Manager authority. On July 6, 2021, the First Amendment extended the term one year to June 30, 2022. During FY 19-20 and FY 20- 21, the average annual amount of expenditures for these types of services was $29,500. This Amendment is proposing an increase of $40,000 for on-call services that would ensure there is sufficient funding available should there be an increase in these types of services. Per the Second Amendment, West Coast Door and Gate has also agreed not to increase their hourly rate for this agreement.

Section 3.04.150 (1) of the Morgan Hill Municipal Code authorizes this action if the Council determines that competitive bids upon notice would not be likely to result in a lower price to the City from a responsible bidder or would cause unnecessary expense or delay under the circumstances. Staff has been highly satisfied with the services provided by West Coast Door and Gate. Since no proposals were received as a result of the last RFP for on-call door and gate replacement and repair services, and West Coast Door and Gate has agreed not to increase their hourly rates, staff recommends that the second amendment be approved based on the City Council's determination that soliciting bids would not likely result in a lower price to the City from a responsible bidder or would cause unnecessary expense or delay under the circumstances. The Second Amendment would extend the term by one year and the total compensation amount would increase by $40,000 to a not to exceed amount of $100,000.

COMMUNITY ENGAGEMENT:

Not Applicable
As the provision of door and gate replacement and repairs are a regular and expected City service, no efforts were made to inform the community about this proposed agreement amendment.

ALTERNATIVE ACTIONS:

The City Council could decline to approve the amendment and instead direct staff to proceed with a request for proposals (RFP) for on-call door and gate replacement and repair services, so that a new agreement is in place by July 1, 2022.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The City has not taken prior action on this agreement. The amount of the original agreement was $60,000, therefore it was approved via City Manager Authority on August 19, 2019. The First Amendment was approved via City Manager authority on July 6, 2021 with no increase to the amount of the contract.

FISCAL AND RESOURCE IMPACT:

The funding for on-call door and gate replacement and repair is included in the contract services line items of individual City facilities.

CEQA (California Environmental Quality Act):

Categorical Exemption
The activities described in this Staff Report are categorically exempt under CEQA,

8 specifically pursuant to Section 15301 (c) of the CEQA Guidelines (Existing Facilities), as the subject work involves the repair, maintenance or minor alterations of existing City facilities involving negligible or no expansion of use of those facilities.

1 SECOND AMENDMENT TO AGREEMENT

WEST COAST DOOR AND GATE
This SECOND AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and WEST COAST DOOR AND GATE, a California Sole proprietorship ("SERVICE PROVIDER").

RECITALS
The following recitals are a substantive part of this Agreement:

1. This Second Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on ___________, ____, 20___.

2. The CITY and SERVICE PROVIDER entered into that “Maintenance Service Agreement” made as of August 19, 2019, for services for a maximum compensation of Sixty-Thousand Dollars ($60,000.00) (“MAINTENANCE SERVICE AGREEMENT”).

3. The CITY and SERVICE PROVIDER entered into a “First Amendment to Agreement” made as of July 6, 2021, under which the maximum compensation under the MAINTENANCE SERVICE AGREEMENT, as amended, was not increased. The MAINTENANCE SERVICE AGREEMENT and the First Amendment thereto are attached as Exhibit “1” to this Agreement.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

1. Amendments: All terms and conditions of the MAINTENANCE SERVICE AGREEMENT, as amended, as attached as Exhibit "1,” shall remain in full force and effect; except that the following amendments shall be made as set forth below:

A. Paragraph 2 shall be amended and replaced in its entirety by the following:
"2. Term of Agreement. This Agreement shall be effective and cover services rendered from August 20, 2019, until June 30, 2023. The City Manager is authorized to extend the term of this Agreement for up to an additional one-year period. City Manager may exercise this option only if, in City Manager’s discretion, SERVICE PROVIDER has demonstrated superior performance in provision of on call door and gate repair services to CITY. Any such extension shall be in writing and signed by both parties to this Agreement."
B. Paragraph 4.1 shall be amended and replaced in its entirety by the following:
"4.1. Amount. Compensation under this Agreement shall not exceed ONE HUNDRED THOUSAND AND NO/00 DOLLARS ($100,000.00) and shall be billed based on the rate and basis set forth in Exhibit B. If the City Manager extends the term of this Agreement pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to SERVICE PROVIDER during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- 8064- OCOF2AB1A336

FIRST AMENDMENT TO AGREEMENT

WEST COAST DOOR AND GATE
This FIRST AMENDMENT TO AGREEMENT is entered into and becomes effective on 7/ 6/ 2021 ( Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, CITY") and WEST COAST DOOR AND GATE, a California Sole Proprietorship (" SERVICE PROVIDER" or "CONSULTANT' or "CONTRACTOR").

RECITALS
The following recitals are a substantive part of this Agreement:

1. This First Amendment to Agreement is entered into based upon the authority of the City Manager pursuant to Chapter 3. 04 of the Morgan Hill Municipal Code.

2. The CITY and SERVICE PROVIDER entered into that " Maintenance Service Agreement" made as of August 19, 2019, for services for a maximum compensation of Sixty Thousand and no/ 100 dollars 60, 000. 00) (" MAINTENANCE SERVICE AGREEMENT'). The MAINTENANCE SERVICE AGREEMENT is attached as Exhibit 1" to this Agreement.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

1. Amendments: All terms and conditions of the MAINTENANCE SERVICE AGREEMENT, as amended, as attached as Exhibit " 1," shall remain in full force and effect; except that the following amendments shall be made as set forth below:

A. Paragraph 2 shall be amended and replaced in its entirety by the following:

2. Term of Agreement. This Agreement shall be effective and cover services rendered from August 19, 2019, until June 30, 2022. The Agreement may be renewed for up to two additional years if SERVICE PROVIDER has demonstrated superior performance in provision of on- call door and gate repair services to CITY, subject to approval by City Council. Any such extension shall be in writing and signed by both Parties to this Agreement." B. Paragraph 5 shall be amended by adding the following:

5. 1 Non -appropriations. Notwithstanding anything contained in this Agreement to the contrary, if insufficient funds are appropriated, or funds are otherwise unavailable in the budget for CITY for any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify SERVICE PROVIDER of such occurrence, and this Agreement shall terminate after the last day during the fiscal year for which appropriations shall have been budgeted for CITY or are otherwise available for payments." Signatures on the Next Page
EXHIBIT 1
1228-04-19-115

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- 8064- OCOF2AB1A336 21 - Q-0nWcts-- In the event cit a wmlirt betwewn The terms arw prdvh jdns. Gf this 1"Fiz.91 Amendmarit to Agreemcntand rrheterm-s and provisions aflhe MAINTENANCE SERVJQAGREEMENT, the terra? soll this Firm Ansendrnant to Agreement shall govern and Cbhtrbl_ TWO S&GNATURES ARE REQUORED FOR CORPORATIONS;
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ATTEST;
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Date' 7/ 7/ 2021
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Date: 6/ 30/ 2021

CITY OF MORGAN HILL
by:

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Date- 7/ 6/ 2021 --
By:

Title:

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DocuSign Envelope ID: 7C1EF45F- CDB9-4FC2- BO64- OCOF2AB1A336

EXHIBIT I

MAINTENANCE SERVICE AGREEMENT
West Coast Door and Gate
THIS AGREEMENT is entered into and becomes effective on ( Effective Date), by and between the CITY OF MORGAN HILI_, a municipal corporation, ("CITY"), and West Coast Door and Gate a California sole proprietorship (" SERVICE PROVIDER" or " CONTRACTOR") hereinafter referred to collectively as " Parties." In consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows.

1. City Authority. This Agreement is entered into pursuant to the authority of the City Manager pursuant to Chapter 3.04 of the Dorgan Hill Municipal Code. _

2. Term of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until June 30 2021 at which time SERVICE PROVIDER' S services shall be completed. The Agreement may be renewed for up to three additional years if the SERVICE PROVIDER has demonstrated superior performance in provisiorrof services to the CITY. The City Manager is authorized to extend the term of this Agreement for a maximum period of one year. Additional extensions may be subject to approval by City Council. Any such extension shall be in writing and signed by both Parties to this Agreement.

3. Scope of Service,. The services to be performed by SERVICE PROVIDER shall be on- call door and gate maintenace and repair services as further described in Exhibit A.

4. Compensation. SERVICE PROVIDER shall be compensated as follows:

4. 1. Amount. $ 60,000.00. Total compensation to CONSULTANT under this Agreement during its initial term set forth in Section 2 above shall not exceed Sixty Thousand dollars and shall be billed based on the rate and basis set forth in Exhibit 8. If the City Manager extends the term of this Agreement for up to one year pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to CONSULTANT during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended term exceed 106% of the maximum compensation allowed to be paid to CONSULTANT for one year of service during the initial term of this Agreement.

4.2. Billing. SERVICE PROVIDER shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services performed and expenses incurred ( if such expenses are reimbursable pursuant to Exhibit B) bySERVICE PROVIDER on a monthly basis unless otherwise specified in Exhibit B. All invoices shall be sent to the CITY addressed to the department head or project manager identified below in Section 14 Notices. Payment will be made to SERVICE PROVIDER within thirty (30) days of receipt of invoice by CITY. Any rate charged shall be prorated where services are interrupted or not provided for any rate period for example, any monthly rate charge should be prorated when services were interrupted or provided for only part of the month). For services billed on an hourly rate, the minimum unit of billed time shall not exceed one tenth of one hour. CITY shall pay for services and expenses if so provided in Exhibit B) up to the limit of compensation set forth above, that in the CITY"s judgment were necessary and reasonable. Services for work performed and expenses incurred in excess of the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.
1 Updated: May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- BO64- OCOF2AB1A336

5. Termination. CITY or SERVICE PROVIDER shall have the right to terminate this Agreement, without cause, by giving thirty ( 30) days' written notice or less under urgent circumstances. Upon such termination, SERVICE PROVIDER shall submit to CITY an itemized statement of services performed for which compensation has not been paid. CITY may require SERVICE PROVIDER to complete certain work product or documents and SERVICE PROVIDER shall deliver to CITY all documents in its possession without additional compensation to SERVICE PROVIDER. The City Manager is authorized to terminate this AGREEMENT, in whole or in part, on behalf of CITY.

8. Performance of Work. SERVICE PROVIDER represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services. Services shall be performed by SERVICE PROVIDER in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of SERVICE PROVIDER' S profession. By delivery of completed work, SERVICE PROVIDER certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws. SERVICE PROVIDER shall perform all work and services under this Agreement in conformance with the time schedule set forth on Exhibit C, " Schedule of Performance," attached hereto and incorporated herein by this reference. The City Manager is authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement. If SERVICE PROVIDER desires to leave or store any of SERVICE PROVIDER' s equipment at a CITY site while SERVICE PROVIDER is performing work or service pursuant to this Agreement, SERVICE PROVIDER will first obtain the consent of the City Manager, or his/ her delegate, to do so, and any such storage shall occur only in the manner and location allowedby such CITY official and entirely at SERVICE PROVIDER' s sole risk.

7. Hazardous Materials. Without limiting any other requirement or obligation of SERVICE PROVIDER under this Agreement, if SERVICE PROVIDER needs to use any material or chemical considered to be a hazardous material under any federal, state or local law, regulation or policy, SERVICE PROVIDER agrees to fully and timely abide by and comply with all laws, regulations and policies pertaining to the use, transport, removal, handling, disposal or other activity related to any and all such materials or chemicals. Prior to commencement of work or services under this Agreement, SERVICE PROVIDER shall provide CITY with a complete list of the hazardous materials SERVICE: PROVIDER reasonably anticipates it may need to use to provide: the services of SERVICE PROVIDER under this Agreement, together with the reasonably anticipated quantities thereof, ifrequested by CITY.

8. Insurance Reggirements. SERVICE PROVIDER shall procure and provide proof of the insurance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of SERVICE PROVIDER, including its subcontractors, employees and agents, relating to or arising from the performance of any work or service under this Agreement, and must remain .in full force and effect at all times during the period covered by this Agreement. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or " umbrella" policies, provided each such policy complies with the requirements set forth herein.

SERVICE PROVIDER further understands that CITY reserves the right to modify the insurance requirements set forth herein, with thirty ( 30) days" notice provided to SERVICE PROVIDER, at any time as deemed necessary to protect the interests of CITY.

8. 1. Insurance Tvaes and Amounts.

8. 1 . 1. Commercial General Liability ( CGL). SERVICE PROVIDER shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of, (i) one million dollars ($ 1, 000,000. 00) for bodily injury or death to any one person for any one accident or occurrence and at least one million dollars ($ 1, 000,000.00) for property damage, or ( ii) the maximum amount of such 2 Updated: May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- BO64- OCOF2AB1A336 insurance available to SERVICE PROVIDER under SERVICE PROVIDER' s combined insurance policies ( including any excess or "umbrella" policies), whichever is greater.

8. 1. 2. Automobile Liability. SERVICE PROVIDER shall maintain Automobile Liability covering all owned, non -owned and hired automobiles ( if SERVICE PROVIDER does not own automobiles, then SERVICE PROVIDER shall maintain Hired/ Non- owned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1, 000, 000. 00) for bodily injury or death to any one person for any one accident or occurrence and at least one million dollars ($ 1, 000, 000. 00) for property damage, or ( ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER' s combined insurance policies ( including any excess or " umbrella" policies), whichever is greater.

8. 1. 3. Workers' Compensation Insurance and Employer' s Liability. SERVICE PROVIDER shall maintain Workers Compensation coverage, as required by law, in the minimum amount of. ( i) one million dollars ($ 1, 000, 000. 00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER' s combined insurance policies ( including any excess or umbrella" policies), whichever is greater. If SERVICE PROVIDER is self-insured, SERVICE PROVIDER shall provide its Certificate of Permission to Self -Insure, duly authorized by the Department of Industrial Relations.

8. 1. 4. Pollution ( Environmental) Liability. If the performance of SERVICE PROVIDER' s work or service under this Agreement involves hazardous materials, contaminated soil disposal, and/ or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, SERVICE PROVIDER shall procure and maintain Pollution Liability covering the contractor's liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Agreement. Coverage shall be provided for both work performed on site, as well as during the transport of hazardous materials.

Such coverage shall be in the minimum amount of. ( i) one million dollars 1, 000,000. 00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER' s combined insurance policies ( including any excess or " umbrella" policies), whichever is greater.

8. 1. 5. Professional Liability.

8. 1; 5. 1. If the performance of SERVICE PROVIDER' s work or service under this Agreement involves professional and/ or technical services ( examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), SERVICE PROVIDER shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: ( i) one million dollars 1, 000,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER' s combined insurance policies including any excess or "umbrella" policies), whichever is greater. Further, if SERVICE PROVIDER maintains a claims -made policy, SERVICE PROVIDER shall provide written evidence of such insurance to CITY for at least five ( 5) years after the completion of work performed under this Agreement.
3 Updated. May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- 6064- OCOF2AB1A336

81. 5. 2. If the performance of SERVICE PROVIDER's work or service under this Agreement relates to Information Technology or related services ( examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), SERVICE PROVIDER shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (1) one million dollars ($ 1, 000, 000. 00) each claim, or ( ii) the maximum amount of such insurance available to SERVICE PROVIDER under, SERVICE PROVIDER' s combined insurance policies ( including any excess or umbrella" policies), whichever is greater.

8. 1. 5.3. If the performance of SERVICE PROVIDER's work or service under this Agreement involves contact with minors, SERVICE PROVIDER shall procure and maintain Sexual Abuse and Molestation insurance in the minimum amount of: (i) two hundred thousand dollars ($ 200,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER's combined insurance policies ( including any excess or "umbrella" policies), whichever is greater.
2- Endorsements. SERVICE PROVIDER shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below;

8. 2. 1. General Liability.

8. 2. 1. 1. The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds;

8.2. 1.2. the insurer waives the right of subrogation against the City of Morgan HIII and CITY' s elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers; and,

8. 2. 1. 3. insurance shall be primary non- contributing.

8.2.2. Workers Compensation.

If the performance of CONSULTANT'S work or service under this Agreement involves access to or activity on any property or premises owned or occupied by the CITY, including, but not limited to, CONSULTANT' S presence during site visits and meetings, thea insurer waives the right of subrogation against the City of Morgan Hill and the CITY's elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.

8.3. guaiification of Insurers. All insurance required pursuant to this Agreement must be issued by a company licensed and admitted, or otherwise legally authorized to carry out insurance business in the State of California, and each insurer must have a current A.M. Best's financial strength rating of "A" or better and a financial size rating of "VII" or better.

8. 4. Certificates. SERVICE PROVIDER shall furnish CITY with copies of all policies or certificates as outlined herein, whether new or modified, promptly upon receipt. No policy subject to SERVICE PROVIDER' s agreement with CITY shall be canceled or materially changed except after thirty ( 30) days' notice by the insurer to CITY. Certificates, including renewal certificates, 4 Updated: May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- 8064- OCOF2AB1A336 may be mailed electronically to riskmgmt_@moraanhill. ca. c ov or delivered to the Certificate Holder address provided herein
Certificate Holder address:

City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037

9. Pion -Liability of Officials and EmRloyees of CITY. No official or employee of CITY shall be personally liable for any default or liability under this Agreement.

10. Compliance with Law.

10. 1. SERVICE PROVIDER and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. SERVICE PROVIDER and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, sexual orientation, national origin, mental disability, physical disability, medical condition, or ancestry, in any activity pursuant to this Agreement.

10. 2. Without limiting the provisions of Section 10. 1 above, each worker performing work under this Agreement shall be paid at a rate not less than the prevailing wage as defined in Sections 1771 and 1774 of the Labor Code. The prevailing wage rates are available online at htto:/Iwww.dir.ca-gov/disr. SERVICE PROVIDER shall post a copy of the applicable prevailing rates at the Worksite. Pursuant to Labor Code Section 1775, SERVICE PROVIDER and any Subcontractor shall forfeit to CITY as a penalty up to two hundred dollars ($200. 00) for each calendar day, or portion thereof, for each worker paid less than the applicable prevailing wage rate. SERVICE PROVIDER shall also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker.

10. 3. DIR Registration. CITY will not accept a Bid Proposal from or enter into a contract with a SERVICE PROVIDER, without first receiving proof to the satisfaction of CITY that SERVICE PROVIDER and its subcontractors are registered with the California Department of Industrial Relations to perform public work under Labor Code Section 1725.5, subject to limited legal exceptions. Linder Labor Code section 1771. 4, this Agreement is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.

10. 4. Compliance with Wage and Hour Laws: SERVICE PROVIDER, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code.

Final Judgments, Decisions, and Orders: For purposes of this Section, a " final judgment, decision, or order"' refers to one for which all appeals have been exhausted or the time to appeal has expired. Relevant investigatory government agencies include: the federal Department of Labor, the California Division of Labor Standards Enforcement, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
5 Updated: May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- 8064- OCOF2AB1A336 Prior Judgments against SERVICE PROVIDER and/ or its Subcontractors. BY SIGNING THIS

AGREEMENT, SERVICE PROVIDER AFFIRMS THAT IT HAS DISCLOSED ANY FINAL

JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY FINDING — IN THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT — THAT SERVICE PROVIDER OR ITS SUBCONTRACTOR(S) HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. SERVICE PROVIDER FURTHER

AFFIRMS THAT IT OR ITS SUBCONTRACTOR( S) HAS SATISFIED AND COMPLIED WITH

OR HAS REACHED AGREEMENT WITH THE CITY REGARDING THE MANNER IN WHICH IT WILL SATISFY— ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

Judgments or Decisions During Term of Contract: If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or SERVICE PROVIDER learns of such a judgment, decision, or order that was not previously disclosed, SERVICE PROVIDER shall inform the City Attorney, no more than fifteen ( 15) days after the judgment, decision or order becomes final or of learning of the final judgment, decision or order.

SERVICE PROVIDER and its subcontractors shall promptly satisfy and comply with any such judgment, decision, or order, and shall provide the City Attorney with documentary evidence of compliance with the final judgment, decision or order within five ( 5) days of satisfying the final judgment, decision or order. CITY reserves the right to require SERVICE PROVIDER to enter into an agreement with CITY regarding the manner in which any such final judgment, decision, or order will be satisfied.

City' s Right to Withhold Payment: Where SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has been found in violation of any applicable wage and hour law by a final judgment, decision or order of a court or government agency, CITY reserves the right to withhold payment to SERVICE PROVIDER until such judgment, decision or order has been satisfied in full.

Material Breach: Failure to comply with, any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/ or any other remedies available under this Agreement and/ or law.

Notice to City Related to Wage Theft Prevention: Notice provided to the City Attorney as required under this Section shall be addressed to: City Attorney, City of Morgan Hill, 17575 Peak. Avenue, Morgan Hill, CA 95037.. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

11. Independent Contractor. SERVICE PROVIDER is an independent contractor and not an agent or employee of CITY.

12. Confidentiality. All data, documents, or other information received by SERVICE PROVIDER from CITY or prepared in connection with SERVICE PROVIDER' S services under this Agreement are deemed confidential and shall not be disclosed to any third party by SERVICE PROVIDER without prior written consent by CITY.

13. Conflict of Interest and ReRortinai. SERVICE. PROVIDER shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement. 6 Updated: May 2019

DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- BO64- OCOF2AB1A336

14. Notices. All notices shall be personally delivered or mailed, via first class mail to the below listed address. These addresses shall be used for delivery of service of process. Notices shall be effective five ( 5) days after date of mailing, or upon date of personal delivery.

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DocuSign Envelope ID: 7C1EF45F- CDB9- 4FC2- BO64- OCOF2AB1A336 Address of SERVICE PROVIDER is as follows:

John Komar
West Coast Door and Gate
305 Vineyard Towncenter # 360
Morgan Hill, CA 95+037
Address of CITY is as follows:

Keri Russell, Maintenance with a copy to:

City of Morgan Hili City Clerk
17575 Peak Avenue City of Morgan Hill
Morgan Hill, CA 95037 17575 Peak Avenue
Morgan Hill, CA 95037

15. Licenses, Permits and Fees. SERVICE PROVIDER shall obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes and regulations of the federal, state and local government.

16. CONSULTANT' S Proposal, If applicable, this Agreement shall include CONSULTANT'S proposal or bid which is incorporated herein. In the event of any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.

17. Maintenance of Records.

17. 1: Maintenance. SERVICE PROVIDER. shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and CITY rules and ordinances related to services provided under this Agreement. SERVICE PROVIDER shall maintain records for a period of at least 3 years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the 3 -year period, then SERVICE PROVIDER shall retain said records until such action is resolved.

17. 2. Access to and Audit of Records. CIT`( shall have the right to examine, monitor and audit all records, documents, conditions, and activities of SERVICE PROVIDER and its subcontractors related to services under this Agreement. Pursuant to Government Code Section 8545. 7, if this Agreement involves the expenditure of public funds in excess of $ 10, 000, the Parties to this Agreement may be subject, at the request of CITY or as part of any audit of CITY, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.

17.3. Ownership of Work Product. All documents or other information developed or received by SERVICE PROVIDER for work performed under this Agreement shall be the property of CITY.

SERVICE PROVIDER shall provide CITY with copies of these items upon demand or upon termination of this Agreement.

18. Familiarity with. Work. By executing this Agreement, SERVICE PROVIDER represents that: ( 1) it has investigated the work to be performed; ( 2) it has investigated the site of the work and is aware of all conditions there; and ( 3) it understands the difficulties and restrictions of the work under this Agreement.

Should SERVICE PROVIDER discover any conditions materially differing from those inherent in the work or 8 Updated; May 2019