Standard Assurances
For Cal OES Federal Non-Disaster Grant Programs
20. California Public Records Act and Freedom of Information Act The Applicant acknowledges that all information submitted in the course of applying for funding under this program, or provided in the course of an entity’s grant management activities that are under Federal control, is subject to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the California Public Records Act, California Government Code section 6250 et seq. The Applicant should consider these laws and consult its own State and local laws and regulations regarding the release of information when reporting sensitive matters in the grant application, needs assessment, and strategic planning process.
EMERGENCY MANAGEMENT PERFORMANCE GRANT (EMPG) AND
AMERICAN RESCUE PLAN ACT (ARPA) –
PROGRAM SPECIFIC ASSURANCES / CERTIFICATIONS
21. Acknowledgment of Federal Funding from DHS
All recipients must acknowledge their use of federal funding when issuing statements, press releases, requests for proposals, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds.
22. Activities Conducted Abroad
All recipients must ensure that project activities carried on outside the United States are coordinated as necessary with appropriate government authorities and that appropriate licenses, permits, or approvals are obtained.
23. Best Practices for Collection and Use of Personally Identifiable Information (PII) DHS defines personally identifiable information (PII) as any information that permits the identity of an individual to be directly or indirectly inferred, including any information that is linked or linkable to that individual. All recipients who collectPII are required to have a publicly-available privacy policy that describes standards on the usage and maintenance of PII they collect. Recipients may also find the DHS Privacy Impact Assessments: Privacy Guidance and Privacy template a useful resource respectively.
24. Copyright
All recipients must affix the applicable copyright notices of 17 U.S.C. §§ 401 or 402 and an acknowledgement of U.S. Government sponsorship (including the award number) to any work first produced under federal financial assistance awards.
Standard Assurances
For Cal OES Federal Non-Disaster Grant Programs
25. Duplication of Benefits
Any cost allocable to a particular federal financial assistance award provided for in 2 C.F.R. Part 200, Subpart E may not be charged to other federal financial assistance awards to overcome fund deficiencies, to avoid restrictions imposed by federal statutes, regulations, or federal financial assistance award terms and conditions, or for other reasons. However, these prohibitions would not preclude recipients from shifting costs that are allowable under two or more awards in accordance with existing federal statutes, regulations, or the federal financial assistance award terms and conditions.
26. Energy Policy and Conservation Act
All recipients must comply with the requirements of 42 U.S.C. § 6201 which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act.
27. Federal Debt Status
All recipients are required to be non-delinquent in their repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowances, and benefit overpayments. See OMB Circular A-129.
28. Fly America Act of 1974
All recipients must comply with Preference for U.S. Flag Air Carriers: (air carriers holding certificates under 49 U.S.C. § 41102) for international air transportation of people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. § 40118) and the interpretative guidelines issued by the Comptroller General of the United States in the March 31, 1981, amendment to Comptroller General Decision B138942.
29. Hotel and Motel Fire Safety Act of 1990
In accordance with Section 6 of the Hotel and Motel Fire Safety Act of 1990, all Applicants must ensure that all conference, meeting, convention, or training space funded in whole or in part with federal funds complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. § 2225a.
Standard Assurances
For Cal OES Federal Non-Disaster Grant Programs
30. Non-supplanting Requirement
All recipients who receive federal financial assistance awards made under programs that prohibit supplanting by law must ensure that federal funds do not replace (supplant) funds that have been budgeted for the same purpose through nonfederal sources.
31. Patents and Intellectual Property Rights
Unless otherwise provided by law, recipients are subject to the Bayh-Dole Act, Pub. L.
No. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq. All recipients are subject to the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards located at 37 C.F.R. Part 401 and the standard patent rights clause located at 37 C.F.R. § 401.14.
32. SAFECOM
All recipients who receive federal financial assistance awards made under programs that provide emergency communication equipment and its related activities must comply with the SAFECOM Guidance for Emergency Communication Grants, including provisions on technical standards that ensure and enhance interoperable communications.
33. Terrorist Financing
All recipients must comply with Executive Order 13224 and U.S. law that prohibit transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. Recipients are legally responsible to ensure compliance with the Order and laws.
34. Reporting of Matters Related to Recipient Integrity and Performance If the total value of the recipient’s currently active grants, cooperative agreements, and procurement contracts from all federal assistance offices exceeds $10,000,000 for any period of time during the period of performance of this federal financial assistance award, you must comply with the requirements set forth in the government-wide Award Term and Condition for Recipient Integrity and Performance Matters located at 2 C.F.R. Part 200, Appendix XII, the full text of which is incorporated here by reference in the award terms and conditions.
Standard Assurances
For Cal OES Federal Non-Disaster Grant Programs
35. USA Patriot Act of 2001
All recipients must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ 175–175c.
36. Use of DHS Seal, Logo, and Flags
All recipients must obtain permission from their DHS Financial Assistance Office, prior to using the DHS seal(s), logos, crests or reproductions of flags or likenesses of DHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials.
Standard Assurances
For Cal OES Federal Non-Disaster Grant Programs
IMPORTANT
The purpose of the assurance is to obtain federal and state financial assistance, including any and all federal and state grants, loans, reimbursement, contracts, etc. The Applicant recognizes and agrees that state financial assistance will be extended based on the representations made in this assurance. This assurance is binding on the Applicant, its successors, transferees, assignees, etc. Failure to comply with any of the above assurances may result in suspension, termination, or reduction of grant funds.
All appropriate documentation, as outlined above, must be maintained on file by the Applicant and available for Cal OES or public scrutiny upon request. Failure to comply with these requirements may result in suspension of payments under the grant or termination of the grant or both and the subrecipient may be ineligible for award of any future grants if the Cal OES determines that any of the following has occurred: (1) the recipient has made false certification, or (2) violates the certification by failing to carry out the requirements as noted above.
All of the language contained within this document must be included in the award documents for all subawards at all tiers. All recipients are bound by the Department of Homeland Security Standard Terms and Conditions 2021, Version 11.4, hereby incorporated by reference, which can be found at:
https://www.dhs.gov/publication/fy15-dhs-standard-terms-and-conditions.
The undersigned represents that he/she is authorized to enter into this agreement for and on behalf of the Applicant.
Subrecipient:
Signature of Authorized Agent:
Printed Name of Authorized Agent:
Title: Date:
Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard FormLLL, 'Disclosure of Lobbying Activities,' in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
EXHIBIT C
Certification Regarding Lobbying
The Subrecipient, as identified below, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Subrecipient understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
Subrecipient: ________________________________________________________________ Signature of Authorized Agent: _______________________________________________ Printed Name of Authorized Agent: ___________________________________________ Title: _____________________________________ Date: _____________________________
Federal Funding Accounting and Transparency Act (FFATA) Financial Disclosure
Public Law (PL) 109-282 Federal Funding Accountability and Transparency Act of 2006, as amended by Section 6202(a) of the Government Funding Transparency Act of 2008 (PL 110-252), which is outlined in the Federal Emergency Management Agency, Grant Programs Directorate Information Bulletin No. 350.
As defined by the Office of Management Budget, the following are subject to FFATA reporting requirements:
1. All new federal awards of $30,000 or more, as of August 13, 2020.
NOTE: Cal OES reports on this requirement in the Federal Funding Accountability and Transparency Act Subaward Reporting System (FSRS).
2. The Total Compensation and Names of the top five executive, if the Subrecipient in the preceding year received:
a. 80 percent or more of its annual gross revenues in Federal Awards; and b. $25,000,000 or more in annual gross revenues from Federal awards; and c. The public does not have access to information about the compensation of the senior executives of the entity.
Subrecipients are required to provide the Executive compensation information in the below chart, if applicable.
Executive Name Title Annual
Salary
Annual Dollar
Value of Benefits
Total
Compensation
Not subject to the Executive Compensation requirement of the FFATA Financial Disclosure.
EXHIBIT D
Federal Funding Accounting and Transparency Act (FFATA) Financial Disclosure
The undersigned represents that he/she is authorized to enter into this agreement for and on behalf of the Applicant.
Subrecipient: ____________________________________________________________________ Signature of Authorized Agent: ___________________________________________________ Printed Name of Authorized Agent: _______________________________________________ Title: _____________________________________ Date: _________________________________
FY21-Project Request-EMPG EOC TechnologyTechnology 1
2021 EMPG
Project Proposal Request
Form / Template
I. Background Information
I A. Requestor Contact Information
Agency Santa Clara County Office of Emergency Management Name Ivan Williams
Position/Title OAC Liaison/Senior Management Analyst
Phone 408-808-7835
Mobile Number
Agency Address Office of Emergency Management
55 West Younger Avenue, Suite 450
San Jose, CA 95110
Email [email protected]
I B. Project Name
EOC Technology
TOTAL PROJECT COST
(Insert the total from Funding section) $80,000 (scalable) I C. Project Type
Use the checkbox to indicate corresponding project
☐ This project is a new Project.
☐ This project is part of an ongoing Project.
☒ This project is for sustainment of a previously funded Project.
II. ALIGNMENT WITH NATIONAL PREPAREDNESS
GOALS by Core Capability and Mission Area
I D. Solution Areas
☐ Planning ☐ Organization ☒ Equipment ☐ Training ☐ Exercises Choose ONLY one Sub Area (Sub Category) for Mission Areas above ☐ Community
Outreach
☐ Conference
☐ Develop and
Enhance Plans,
Protocols and
Systems
☐ Staffing
☐ Day to Day Activities/
/operations that support
emergency management
☒ Information
Technology
☐ Cyber Security
Enhancement Equipment
☒ Interoperable
Communications
Equipment
☒ Other Authorized
Equipment
☐ Staff Expenses
☐ Course Development
☐ Course Delivery and
Evaluation
☐ Staff Expenses
☐ Certification /
Recertification of
instructors
☐ Design/Develop
☐ Conduct / Attend /
Evaluate
☐ Supplies / Materials /
Production Costs
EXHIBIT E
FY21-Project Request-EMPG EOC TechnologyTechnology 2
I E. Core Capability and Community Lifelines - Identify each of the 12 Emergency Management Core Capabilities (or other Core Capability) this project addresses as well as the Community Lifeline(s) this project is most likely to help restore.
Please check all that apply.
☒ Planning ☒ Public Information
& Warning
☒ Operational Coordination ☒ Long-Term
Vulnerability Reduction
☐ Risk and Disaster
Resilience Assessment
☒ Situational
Assessment
☐ Community
Resilience
☐ Threats and Hazard
Identification
☐ Logistics and Supply
Chain
☒ Mass Care Services
☐ Economic
Recovery
☐ Other (please specify)
_____________________________________________________________________ Please identify the Community Lifelines this project is most likely to help stabilize:
☐ Safety and
Security
☒ Food, Water,
Shelter
☒ Health and Medical ☒ Energy (Power & Fuel) ☒ Communications ☐ Transportation ☐ Hazardous Materials
I F. Project Description/Justification - Briefly describe exactly what the project entails (including any equipment purchases or contracting that will be necessary for the project). Please also describe how the project is expected to impact (improve/sustain) the Core Capability(ies) and restore the Community Lifelines identified above.
This project enables Operational Area emergency managers to fully leverage data communication capabilities and sharing of critical information in their EOCs. Laptops and other computers support response and mitigation during emergencies and disasters via common operating picture and resource management web-based programs such as Web EOC, HSIN, COPLink, Mutualink, etc. as well as by supporting situational awareness.
Eligibility of Operational Area jurisdictions for this funding is based on the following criteria:
Equipment criteria—Laptops/Computers
• Funding is primarily for replacement of existing EOC laptops/computers that are at least 4 years old.
• Written justification must be provided if funding is requested for additional laptop capacity (i.e. non-replacement laptops) in the City/Town EOC. This written justification must identify the specific EOC needs the additional laptop(s) would provide for as well as specifically how the laptop will be used in the EOC during an activation. These requests will be evaluated and approved on an individual basis.
• Funding is limited to a maximum of $1,800 per computing device (including all peripherals, tax and shipping).
• Grant funds cannot be used to purchase warranties, maintenance/service agreements, or software that aren’t bundled/included with the laptop.
• Any computing device purchased under this project must be capable of running WebEOC—e.g. able to connect to the city/town network and run the necessary browser or other software to access WebEOC.
Equipment Criteria—Projectors/Screens/Monitors/Displays/Printers/Laminators/Switches/ Networking/Audio or Visual Communications Equipment (e.g. speakers, microphones, cameras, mixers, etc.)
FY21-Project Request-EMPG EOC TechnologyTechnology 3
• Each piece of equipment under this category must be fully described including both equipment quantities and specifications (e.g. 2 50” displays), where in the EOC it will be mounted/ located (e.g. North wall) and how it will be used (e.g. to provide situational awareness, WebEOC status boards, etc.).
• Mounted equipment will require State and Federal Environmental and Historic Preservation (EHP) approval prior to purchase of equipment. Forms must be submitted as soon as possible after grant award.
• Cost estimates, including actual bids/pricing information for the equipment must be provided to the grant manager for review and approval. The overall EOC technology project budget may require prioritization of individual jurisdiction’s specific technology projects.
City/Town Criteria
• The City/Town must email their intent to use EMPG funding for computing devices—along with the number and type (e.g. laptop) of devices and any required justifications—by July 15, 2021.
• Each City/Town must enter into an MOU with the County for the computers by February 28, 2022.
• Each City/Town must procure any approved laptops/computers under an existing competitive contract OR obtain bids (at least 2) in accordance with local (City/Town) and Federal procurement rules (whichever is more restrictive).
Each City/Town must procure any approved computers / equipment and submit all invoices to the County Office of Emergency Management by November 30, 2022.
I G. Does this project require a sole source?
☐ Yes If “Yes”, please explain ☒ No N/A
I H. Installation
- Does this project require installation, new construction or renovation, retrofitting, or modification of existing structures?
☒ Yes, If “Yes”, please: ☒ No
1. Provide an explanation AND Attach a completed Environmental and Historic Preservation screening form (EHP) available from http://www.fema.gov/media-library/assets/documents/90195 Specific Jurisdiction equipment may be mounted and require an EHP. Completed EHP forms will be required once a specific project that requires installation is selected.
III. FUNDING
III A. Proposed funding amount
- Provide the proposed funding amount to be obligated from this Project towards Planning and Equipment elements.
(Please check the appropriate box(es) on the left side for all that apply). - Also, for each funding area selected, provide a brief narrative below describing the items or services being funded.
ELEMENT PROPOSED FUNDING
☐ Planning $
☒ Equipment $80,000
☐ Management & Administration $
FY21-Project Request-EMPG EOC TechnologyTechnology 4
☐ Training $
☐ Exercise $
TOTAL PROJECT COSTS $
Description of Expenditures That Will Be Used for Project Grant Match TBD
AEL # Equipment
- Use this link to locate and provide the Authorized Equipment number needed for equipment approval https://www.fema.gov/authorized-equipment-list ☒ 04HW-01-INHW
04MD-03-DISP
04MD-02-PROJ
Information Technology
☐ Cyber Security Enhancement Equipment
☐ Interoperable Communications Equipment
☐ Detection Equipment
☐ CBRNE Reference Materials
☐ CBRNE Incident Response Vehicle
☐ Physical Security Enhancement Equipment
☐ Power Equipment
☐ CBRNE Logistical Support Equipment
☐ 21GN-00-OCEQ Other Authorized Equipment:
Contact grants manager prior to selected this sub-category III B. Other Source(s) of funding
- List other source(s) of funding that is being requested or utilized for this project (check the appropriate box(es) on the left side)
ELEMENT PROPOSED FUNDING
☐ UASI $
☐ SHSGP $
☐ General Funds $
☐ Other Grant Funds $
TOTAL OTHER FUNDING $N/A
Other Funds:
- Explain how any other funds, such as general funds, UASI, etc., will be used to assist in implementation of this project.
FY21-Project Request-EMPG EOC TechnologyTechnology 5
PROJECT MANAGEMENT AND IMPLEMENTATION
IV A. Milestones
Identify up to 5 additional milestones, with start and end dates, which will be achieved within the performance period under the 2021 EMPG.
No start date should begin before July 1, 2021 and no end date should end after March 31, 2023.
These dates are subject to change based on notification of application approval.
No equipment may be purchased, contracts started or project costs incurred until notified by Grant Administrator that funds may be spent.
If unsure of exact dates, use Quarter timeframes
Include key steps in the procurement process—i.e. RFP issuance, Contract execution, PR issuance, delivery, etc.
MILESTONE
NUMBER
MILESTONE NAME/DESCRIPTION
(1,000 CHARACTER LIMIT)
START DATE
(MM/DD/YYYY)OR
Q1, Q2, Q3, Q4
END DATE
(MM/DD/YYYY)OR
Q1, Q2, Q3, Q4
1 MOU between City/Town and County in Place As early as Dec 1, 2021
No later than
Feb 28, 2022
2 Environmental Historic Preservation (EHP) Forms for FEMA Review Completed (If applicable)
As early as
Nov 1, 2021
No later than
May 31, 2022
3 City/Town Performance Period As early as
July 1, 2020
No later than
March 31 2023
4 City/Town Procurement of Project Equipment (once grant award is made and MOU is signed)
As early as Jan
1, 2022
No later than
Nov 30, 2022
5 Installation and testing of Project Equipment As early as Jan 1, 2022
No later than
Nov 30, 2022
6 City/Town submits invoice to County for reimbursement As early as January 1, 2022
No later than
Dec 31, 2022
IV B. Project Outcomes
- Describe the outcomes and benefits that will be achieved as a result of this project. The outcomes should address specific community lifelines.
EOC laptops and EOC equipment will increase the ability for first responders and emergency managers to effectively collect and provide information and data throughout the operational area and region. In addition, they enhance local emergency managers’ abilities to respond to and mitigate the emergency or disaster. Laptops must meet minimum standard requirements to support WebEOC, HSIN, COPLink, and WebLink as well as other websites and software that may be needed in a disaster.
A laminator with the capacity to create large sized documents and maps provides staff with the ability to quickly create operational maps and charts when a hazard occurs. Maps and charts of relevant information, such as the location of the city’s power lines, can be made in advance and prepared so that in an emergent situation they can be quickly accessed and used.
Enhanced technology in EOCs create more efficient and effective Emergency Operations Center. The equipment will be interoperable with existing communications systems, enabling live updates during hazard events. Situational awareness will be available to all EOC personnel at all times, with multiple screens in various strategic locations around the room projecting and sharing updated information for events throughout the City/Town as well as the region.
Updated technology facilitates the exchange of real time data with outside agencies and provides timely communication and notification to the public when a hazard occurs.
FY21-Project Request-EMPG EOC TechnologyTechnology 6
IV C. Project Deliverables
- Describe the specific deliverables that will be produced as a result of this project.
EOC laptops for jurisdictions within the Operational Area capable of supporting and displaying WebEOC, HSIN, COPLink, and WebLink as well as the other work of an Emergency Operations Center during a disaster.
EOC displays (projector, monitor, wall maps, etc.) will be upgraded to facilitate better situational awareness and to communicate a common operating picture within the EOC as well as facilitate interoperable communication with the public and outside agencies.
New and upgraded audio and visual equipment enhances communication with entities outside the primary EOC location whether during virtual EOC operations (such as during the pandemic) or in coordination with other EOCs, Department Operations Centers (DOCs), Incident Command Posts (ICPs), or others.
WBS #
M T W TH F S S M T W TH F S S TOTAL
12/27/21 12/28/21 12/29/21 12/30/21 12/31/21 1/1/22 1/2/22 1/3/22 1/4/22 1/5/22 1/6/22 1/7/22 1/8/22 1/9/22 HOURS A - EMPG Grant Administration
B - EOAC Liaison
C - CSTI Training
D - EOC Technology
E - ReadySCC App
F - Preparedness Materials and Outreach
G - CADRE Community Preparedness
H - Emergency / Risk Communications
Officer
I - Remote Automated Weather Station
(RAWS)
Emergency Manager CERT Related
Activities
Emergency Manager PLANNING Activities
Emergency Manager TRAINING
Administration, Development and Delivery
or EXERCISE Activities
Emergency Manager OPERATIONAL
READINESS Activities
Emergency Manager COVID-19 Related
Activities
Public Risk Communication Officer/PIO
Actitivies
STO / Vacation / Leave
Total Work Hours
Employee Signature Supervisor's Signature
LABOR DISTRIBUTION
TIME SHEET Week Ending First and Last Name
City/County
Participating
1/9/22 Sample Name SCC OEM
107-G107EM21
PROJECTS
HOURS WORKED BY DAY
EXHIBIT F
CONTRACTOR CERTIFICATION OF COMPLIANCE WITH
COVID-19 VACCINE REQUIREMENTS
(Revised January 4, 2022)
Contractor Information:
Contractor name: Name of Contractor representative:
Contractor phone number: Contractor email address:
Contractor Certification. On behalf of Contractor, I hereby certify that:
1. Contractor has reviewed and is in compliance with all current County requirements regarding COVID-19 vaccination applicable to contractor’s employees working at County facilities, including but not limited to the requirements in the County’s memorandum regarding COVID19 Vaccine Requirement for County Personnel (“County Vaccine Policy”), the County’s memorandum regarding Application of COVID-19 Vaccination Requirement to County Contractors, Interns, and Volunteers, all current State and County Health Officer orders, and any other County requirements. These memoranda and current County policies are accessible at <https://procurement.sccgov.org/doing-business-county/contractor-vaccinations>.
Contractor has also reviewed and is in compliance with the State of California’s July 26, 2021 Public Health Order and December 22, 2021 Public Health Orders. Contractor understands that it is responsible for reviewing and maintaining compliance with all subsequent revisions or amendments to State and County orders and requirements regarding COVID-19.
2. As of the date signed below:
a. Contractor understands that it must confirm, and has confirmed, that all of contractor’s workers (including any subcontractor workers) who routinely perform services for the County onsite and share airspace with or proximity to other people at a County facility as part of their services for the County1 are:
i. Fully vaccinated against COVID-19 and, as of January 24, 2022, up-to-date on any boosters for which they are eligible as defined and required in the County Vaccine Policy; or
1 As established in the County’s Memorandum Regarding Application of COVID-19 Vaccination Requirement to County Contractors, Interns, and Volunteers, contractors performing work at closed construction sites are not required to comply with the County’s vaccination requirements, but must comply with all applicable federal, state, and local public health laws, including but not limited to vaccination, testing, and masking requirements.
EXHIBIT G
ii. Have a legally sufficient and approved medical, disability, or religious exemption from vaccination that has been granted by contractor. b. Contractor has verified and will continue to verify the vaccination status of all staff working on site at any County facility, and has obtained proof of vaccination from its staff in a form consistent with the California Department of Public Health’s Vaccine Records Guidelines and Standards.
3. If contractor seeks to send any workers who are not fully vaccinated and, as of January 24, 2022, up-to-date on boosters for which they are eligible, to any County facility because the contractor has granted them an exemption, contractor shall notify the County in writing by providing a list of any such workers to the COVID-19 Designee for the department that manages the facility where the contractor personnel will be working at least 96 hours in advance of any such worker arriving onsite so that the department has sufficient time to determine whether it will approve the contractor’s requests that its personnel work onsite and, if approved, can ensure that the contractor has complied with all applicable COVID-19 safety requirements for unvaccinated individuals, including, where appliable, regular testing and the use of a fit-tested N95 mask.
2 Notice must be separately provided to each department that manages a facility where contractor seeks to assign personnel to work onsite. Regardless of exemption status, personnel who are not fully vaccinated and, as of January 24, 2022, up-todate on boosters for which they are eligible may not work in higher-risk settings at County facilities.
3 4. If any of contractor’s workers are noncompliant with vaccination or testing requirements, contractor will notify the County Department for which they are providing services immediately and will not permit those workers to go onsite at a County facility without express written permission from the County.
//
//
//
//
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2 If contractor sends workers who are not fully vaccinated and, as of January 24, 2022, up-to-date on boosters for which they are eligible, it is contractor’s obligation to ensure that it has any necessary authorization under the California Confidentiality of Medical Information Act, Cal. Civ. Code §§ 56 et. seq., and under any other laws to share this information with the County.
3 “Higher-Risk Settings” are those identified in the Order of the Health Officer of the County of Santa Clara Requiring Upto-Date COVID-19 Vaccination of Personnel in Higher-Risk Settings, available at: https://covid19.sccgov.org/december28-2021-booster-health-order. There are certain high-risk roles and high-risk areas that are not within higher-risk settings.
Regardless of exemption status, effective no later than February 1, 2022, County personnel are not permitted to work in these high-risk roles and high-risk areas if they are not fully vaccinated and, as of January 24, 2022, up-to-date.
5. Contractor will comply with all reasonable requests by the County for documentation demonstrating the contractor’s compliance with this Certification.
I verify the truth and accuracy of the statements in this Certification under penalty of perjury under the laws of the State of California.
_____________________________________
Name of authorized representative of
Contractor
________________________________
Title
_____________________________________
Signature
________________________________
Date
8 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Tanya Carothers, Environmental Services Administrator
APPROVED BY: City Manager
APPROVE FIRST AMENDMENT TO SOLID WASTE DISPOSAL
CONTRACT
RECOMMENDATION(S)
Authorize the City Manager to execute the First Amendment to the Solid Waste Disposal Contract.
Estimated Time:
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment
Maintaining Infrastructure
REPORT NARRATIVE:
The purpose of this item is to allow the City Council to consider approval of Alternate Disposal Facilities which are closer to the City of Morgan Hill than the currently solely designated Potrero Hills Landfill in Solano County.
Since 2014, Waste Solutions Group (Waste Solutions) has contracted with the cities of Morgan Hill and Gilroy to provide solid waste disposal services at John Smith Road Landfill (John Smith) for the waste collected by Recology. Recology transfers waste from the San Martin Transfer Station to John Smith, a one-way haul of 28 miles. John Smith is owned by the County of San Benito and operated under a contract between the County and Waste Solutions. Waste Solutions has informed Morgan Hill and Gilroy that efforts to modify the landfill's permit to create more disposal capacity have been delayed and that San Benito County has decided to reserve the existing John Smith disposal capacity for waste generated within that county. Effective March 30, 2022, out-ofCounty waste will not be accepted at John Smith for an indefinite period of time, presumably until the capacity expansion is finalized.
The Solid Waste Disposal Agreement with Waste Solutions names Potrero Hills Landfill in Solano County as the sole ‘Alternate Disposal Facility’ in the event that John Smith is unable to accept solid waste from the two cities. Potrero Hills Landfill is located 106 miles from the San Martin Transfer Station. Utilizing this landfill presents significant and
8 possibly insurmountable challenges related to transportation and potential trash pickup scheduling conflicts. Therefore, Waste Solutions has proposed that, in lieu of Potrero Hills Landfill, it will make arrangements for disposal at Kirby Canyon Landfill located in San Jose (11 miles from San Martin), and/or the Monterey Peninsula Landfill in Marina (38 miles from San Martin). Either or both of the suggested alternate landfill options are preferable over Potrero Hills Landfill due to the operational convenience and other benefits that come with a landfill that is closer than 106 miles away.
As of the beginning of April, the City commenced utilization of Kirby Canyon Landfill and/or Monterey Peninsula Landfill as an interim solid waste disposal site. Approval of the proposed First Amendment (Attachment 1) will formally add these two landfills to the Agreement as ‘Alternative Disposal Facilities.’ Recology has been closely involved in planning for this switch and supports the planned temporary shift.
COMMUNITY ENGAGEMENT:
Not Applicable. This is an administrative item and the recommended action will prevent negative impacts to solid waste collection services within the community.
ALTERNATIVE ACTIONS:
The City Council could choose to not approve the First Amendment to the Solid Waste Disposal Contract. In this case, solid waste generated by Morgan Hill would need to be hauled 106 miles to Potrero Hills Landfill, causing significant challenges related to transportation and trash pickup scheduling conflicts.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The Solid Waste Disposal Contract was entered into on July 1, 2014, between Morgan Hill, Gilroy, and Waste Solutions Group of San Benito County, LLC.
FISCAL AND RESOURCE IMPACT:
Per the Solid Waste Disposal Agreement, Waste Solutions will be responsible for paying all documented additional costs resulting from the use of any Alternate Disposal Facilities, and for securing all necessary regulatory approvals needed for Contractor and/or Cities to use the Alternate Disposal Facilities. As a result, changing the disposal site will have no impact on the collection rates charged by Recology at this time.
CEQA (California Environmental Quality Act):
Not a Project.
Approval of the First Amendment is an administrative activity that will not result in direct or indirect physical changes in the environment.
{00101244.DOC.} FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT Page 1
FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT
THIS FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT
(this “Amendment”), by and among the CITY OF GILROY, CALIFORNIA (“Gilroy”), the CITY OF MORGAN HILL, CALIFORNIA (“Morgan Hill” and, together with Gilroy, the “Cities”), and WASTE SOLUTIONS GROUP OF SAN BENITO, LLC, a Delaware limited liability company (“Company”), is entered into as of April __, 2022. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in that certain Solid Waste Disposal Agreement, dated July 1, 2014 (the “Agreement”), by and between the Cities and Company.
RECITALS
WHEREAS, the Cities and Company entered into the Agreement, whereby the Cities agreed to dispose of Waste at the Landfill, and Company agreed to accept same for disposal, upon the terms and conditions set forth in the Agreement; and WHEREAS, the parties desire to amend the Agreement to designate additional landfills as Alternate Disposal Facilities.
AMENDMENT
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE TO AMEND THE AGREEMENT, AS FOLLOWS:
1. Incorporation of Recitals. The foregoing recitals are agreed to, accepted and incorporated herein by reference.
2. Amendment to Section 1.6 (Disposal Facilities). Section 1.6 (Disposal Facilities) of the Agreement is hereby amended and restated in its entirety to read as follows:
“1.6. “Disposal Facilities” means the Landfill or, if the Landfill is incapable of accepting Acceptable Waste for any reason, any of the following solid waste disposal facilities: (i) the Potrero Hills Landfill in Solano County, California; (ii) the Kirby Canyon Landfill in Morgan Hill, California; or (iii) the Monterey Peninsula Landfill in Marina California (each an “Alternate Disposal Facility”).”
3. Counterparts. This Amendment may be executed in one or more facsimile or original counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument.
4. Ratification. All terms and provisions of the Agreement not amended hereby, either expressly or by necessary implication, shall remain in full force and effect. From and after the date of this Amendment, all references to the term “Agreement” in this Amendment and in the original Agreement shall include the terms contained in this Amendment.
{00101244.DOC.} FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT Page 2
5. Conflicting Provisions. In the event of any conflict between the original terms of the Agreement and this Amendment, the terms of this Amendment shall prevail.
6. Authorization. Each party executing this Amendment represents and warrants that it is duly authorized to cause this Amendment to be executed and delivered. [Remainder of page intentionally left blank;
Signature page immediately follows.]
{00101244.DOC.} FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT Page 3 IN WITNESS WHEREOF, the parties execute this First Amendment to Solid Waste Disposal Agreement as of the date first written above.
CITIES:
CITY OF GILROY, CALIFORNIA
By: _________________________________
Name:
Title:
CITY OF MORGAN HILL, CALIFORNIA
By: _________________________________
Name:
Title:
COMPANY:
WASTE SOLUTIONS GROUP OF SAN
BENITO, LLC, a Delaware limited liability
company
By: _________________________________
Name: Paul Nelson
Title: Divisional Vice President
{00101244.DOC.} FIRST AMENDMENT TO SOLID WASTE DISPOSAL AGREEMENT Page 4 EXHIBIT 1
2014 SOLID WASTE DISPOSAL AGREEMENT
1 SOLID WASTE DISPOSAL AGREEMENT
This SOLID WASTE DISPOSAL AGREEMENT this Agreement is made and entered as of July 1 2014 the Effective Date by and among the CITY OF GILROY CALIFORNIA Gilroy the CITY OF MORGAN HILL CALIFORNIA Morgan Hill and together with Gilroy the Cities and WASTE SOLUTIONS GROUP OF SAN BENITO LLC a Delaware limited liability company Company Cities and Company are hereinafter sometimes referred to individually as a Party and jointly as the Parties
RECITALS
WHEREAS Contractor as defined below is the franchised solid waste collector for all Waste as defined below generated within the incorporated city limits of Cities WHEREAS Contractor owns and operates the San Martin Transfer Station located at 14070 Llagas Ave San Martin California the Contractor Transfer Station which besides accepting fianchsed solid waste from Cities accepts self hauled public Waste from residents of Cities
WHEREAS Company operates the John Smith Road Landfill the Landfill and desires to become a provider of solid waste disposal services for Cities WHEREAS Cities conducted a request for proposals for the longterm disposal of the Waste generated within the incorporated city limits of Cities WHEREAS in response to the proposal submitted by Company Cities have awarded to Company an exclusive longterm contract for the disposal of the Waste generated within the incorporated city limits of Cities and
WHEREAS Cities have directed Contractor to haul all Waste collected within the incorporated city limits of Cities delivered to the Contractor Transfer Station to the Landfill
AGREEMENT
NOW THEREFORE for and in consideration of the respective covenants herein contained and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged the Parties agree to the terms and conditions set forth herein 1 Definitions
1 Acceptable Waste or Waste means Solid Waste as defined in California Public Resources Code Division 30 Part 1 Chapter 2 40191 and regulations promulgated thereunder and includes residential waste commercial waste non recycled construction and demolition waste residuals from any material recovery recycling or other waste processing facility and any other combination of these wastes and all other acceptable Class III and Class 11 Wastes provided however the following materials are excluded from the definition of Acceptable Waste a Special Waste b Hazardous Waste c Class I Wastes and d 00059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT I
materials recovered from Acceptable Waste for recycling or other beneficial use and which are not subsequently disposed of in a landfill
12 Contractor means Cities currentlycontracted Waste hauler Recology South Valley a California corporation any successor in interest thereto or any other party Cities subsequently designate as their franchised solid waste collector during the Term 13 CPIU means the Consumer Price Index All Items 1982 84100 for All Urban Consumers CPIU San FranciscoOaklandSan Jose
14 Designated Waste means Designated Waste as defined by State of California under 13173 of Division 7 of the California Water Code
15 Disposal Dis ose or Disposed means the delivery of Acceptable Waste to the Landfill
16 Disposal Facilities means the Landfill or if the Landfill is incapable of accepting Acceptable Waste for any reason the Potrero Hills Landfill in Solano County California the Alternate Disposal Facility
17 Free Liquid means liquid in excess of twentyfive 25 gallons per contained load of waste which readily separates from the solid portions of such waste on delivery to the Landfill under ambient temperature and pressure ie liquid in the waste load that causes the waste to fail the paint filter test prescribed by the Environmental Protection Agency in its Method 9095
18 Hazardous Waste means any waste which is defined or regulated as a hazardous waste toxic substance hazardous chemical substance or mixture or asbestos under applicable law including but not limited to a the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260281 inclusive b the Toxic Substance Control Act 15 USC 2601 et seq c the regulations contained in 40 CFR Parts 761 766 inclusive d California Health and Safety Code 25117 e the California Public Resources Code 40141 and f all successor laws and regulations as may be amended from time to time 19 Special Waste means and includes without limitation Designated Waste and any non Designated Waste that requires special handling or safety procedures at the Landfill during either off loading or burial Examples of Special Waste include but are not limited to fly ashes petroleum contaminated soils waste water treatment plant sludge field plastic trick load quantities of box springs and mattresses toner cartridges appliances wood stumps over two 2 feet in diameter large tree limbs and poles
10 Special Waste Application means the form used by Company to gather information about the proposed Special Waste to be delivered to the Landfill In order to be approved the Special Waste Application must be executed by Company sEnvironmental Manager or authorized representative who thereby approves the waste as Acceptable Waste 11 Ton means a standard or short ton and shall be deemed to be equal to two thousand 2000 pounds
00059528 DOC 31 SOLID WASTE DISPOSAL AGREENIENT 2
1 12 Unacceptable Waste means any and all waste
a the delivery of which at the Landfill would violate any applicable local state or federal laws regulations or orders or conditions of the Landfill soperating permit b which constitutes Hazardous Waste
c which constitutes Special Waste without an approved Special Waste Application
d which in Company ssole and reasonable discretion Company considers to be unacceptable or
e containing Free Liquid without an approved Special Waste Application 2 Term
21 Initial Term This Agreement shall commence on the Effective Date and shall continue for an approximate period of fifteen 15 years ending June 30 2030 the Initial Term unless terminated earlier pursuant to Section 18
2 Extension Term Cities shall have the sole right to extend the Initial Term by no less than two 2 additional five 5year periods ieuntil June 30 2035 and again until June 30 2040 each an Extension Term and together with the Initial Term the Term Cities shall notify Company of its intent to extend the Initial Term and if applicable the first Extension Term no later than one 1 year prior to the end of the Initial Term After the second Extension Term any further extensions of the Term shall be only by written agreement of the Parties 23 Reiection of Extension Term Notwithstanding anything to the contrary in this Section 2 Company shall have the right to reject Cities exercise of either Extension Term pursuant to Section 2 in the event of any of the following i Company scosts to expand the Landfill including Company soperating costs are higher than the documented costs of constructing new landfill airspace as of the Effective Date by a percentage amount greater than the cumulative CPI adjustment calculated pursuant to Section 61 from the Effective Date through the date Cities seek to exercise the applicable Extension Term ii the Landfill can no longer accept Acceptable Waste due to permitted Disposal capacity limitations or iii Company determines in its sole but reasonable discretion that Company is reasonably likely to breach its contractual obligation to San Benito County to maintain at least fifteen 15 years of airspace at the Landfill at all times
3 Exclusive Tonnage Commitment Waste Type and Source In consideration of the preferred Base Rate set forth in Section 5 Cities shall direct Contractor to deliver to the Landfill One Hundred Percent 100 of the Acceptable Waste generated as a result of the City s collection Franchise Agreements Cities warrant that Contractor shall deliver to the Landfill only Acceptable Waste except that Contractor may also deliver Special Waste in accordance with the provisions described in an approved Special Waste Application 00059528DOC 3 SOLID WASTE DISPOSAL AGREEMENT 3
4 Disposal
41 Disposal ofAcceptable Waste Company will accept delivery and Dispose of all properly identified Acceptable Waste from Contractor and Cities from time to time during the term of and according to this Agreement provided however that such waste is Acceptable Waste that Company is capable of accepting and properly Disposing of at the Landfill 42 Inability to Accept Acceptable Waste Except as provided in Sections 10 and 19 in the event that Company fails to accept some or all Acceptable Waste delivered by Contractor pursuant to this Agreement regardless of the reason for such failure the following shall occur
421 Immediately upon Company stemporary inability to accept Acceptable Waste delivered by Contractor pursuant to this Agreement Company shall make whatever arrangements are necessary for the use of the Alternate Disposal Facility and shall direct Contractor to use the Alternate Disposal Facility
42 Company shall be responsible for paying all documented additional costs resulting from the use of the Alternate Disposal Facility under Section 421including any increase in costs for Disposal services whether paid on a perTon lumpsum or other basis and any increase in transport expenses due to increased transport time distance or method incurred by Contractor andor Cities Company is responsible for securing all necessary regulatory approvals needed for Contractor andor Cities to use the Alternate Disposal Facility under Section 42143 Landfill Disposal Area Site Expansions Company has represented to Cities that it will and Company shall demonstrate reasonable efforts to seek approvals for expansion of the current permitted Landfill disposal area and capacity
5 Base Rate During the Term the tipping fee per Ton the Base Rate for the Disposal ofAcceptable Waste at the Disposal Facilities shall be as follows Term Year Proprietary Current Taxes Total Base
Rate Per Ton Per Ton Rate
Year 1 Effective Date December
31 2014 170per Ton 390 2100
Year 2 January 1 2015
December 31 2015 1760per Ton 390 2150
Years 3 15 January 1 2016
December 31 2029 As adjusted As adjusted As adjusted
pursuant to the from time to pursuant to the
provisions of time pursuant provisions of
Section 61 to Section 62 Sections 61
and 62
t00059528 DOC 31 SOLID WASTE DISPOSAL AGREEMENT 4
The Base Rate for any acceptable Special Waste shall be quoted on a casebycase basis 6 Base Rate Adiustments
61 CPI Adjustment Beginning on January 1 2016 and on each anniversary thereof through the end of the Term Company sProprietary Base Rate shall automatically increase by an amount equal to Eighty Percent 80 of the increase in the CPIU for the prior twelve 12 month period Any adjustment based on the CPIU shall be calculated by establishing the percentage difference in CPIU using October as compared to the immediately preceding October during the term ofthis Agreement
62 Changes in Law The Parties acknowledge that solid waste Disposal is a highly regulated and highly taxed enterprise and that taxing authorities frequently raise revenue by imposing taxes on waste Disposal operations and businesses The Parties acknowledge that the Base Rate already includes costs associated with complying with all existing governmental regulations applicable to the Disposal Facilities including but not limited to methane control regulations and the costs of closure and postclosure monitoring If state federal or local government or governmental agencies increase any taxes or impose new taxes surcharges or other fees collectively the Taxes or adopt or modify any compliance and regulatory requirements Change in Law that result in increased operating costs to Company or require Company to make or capital expenditures Company shall have the right to pass the Taxes and increased operating costs resulting from Changes in Law through to Cities in the form of increased Base Rates To the extent that the Taxes Change in Law and other increased operational costs the Increased Costs can be factored into the per ton Base Rate applicable to Cities under this Agreement the Parties hereto shall use good faith efforts to negotiate an adjusted Base Rate that includes Cities equitable share ofthe Increased Costs 7 Turnaround Time of Contractor sVehicles Company shall use commercially reasonable efforts to ensure that the average time required for a vehicles delivering Acceptable Waste pursuant to this Agreement Contractor Vehicles to unload and exit the Landfill is thirty 30 minutes commencing from the time the Contractor Vehicles queue in the Landfill sinbound scale line to the time said vehicles exit over the Landfill sexit scale the Average Turnaround Time provided however that Company shall not be responsible for and shall not be in breach of the provisions of this Section 7 for delays not caused by or under the control of Company including without limitation vehicle breakdown driver negligence lack of cooperation or a vehicle driver parking to use Company srestrooms or telephone Company shall manage the Acceptable Waste receiving and unloading area in order to facilitate access and unloading by Contractor Company shall make available to Contractor a functional tipper at all times The Average Turnaround Time shall be calculated on a thirty 30 calendar day basis as the sum of the vehicle turnaround time for each load of Acceptable Waste delivered by Contractor pursuant to this Agreement during the month divided by the number of loads received during the thirty 30 calendar day period Company shall report the Average Turnaround Time on a regular monthly basis to Cities If this Average Turnaround Time exceeds thirty 30 minutes for two consecutive months or more Company shall meet with Contractor and Cities determine the cause of such exceedance sand reach an acceptable solution with Contractor and Cities to reduce the Average Turnaround Time to an acceptable level t00059528 DOC 31 SOLID WASTE DISPOSAL AGREEMENT 5
8 Tender of Delivery Cities shall direct Contractor to tender Disposal of the Acceptable Waste to Company at those times and places in those quantities and in the manner specified in this Agreement or Special Waste approvals Cities shall direct Contractor to at the same time and place tender to Company those completed documents shipping papers or manifests as are required for lawful transfer of the Acceptable Waste to Company by valid and applicable statutes ordinances orders rules or regulations of the Federal state or local governments Tender of Disposal shall be considered non conforming if not in accordance with this Section andor the specifications of and Special Waste approvals 9 Right To Inspect Waste Material Company shall have the right but not the obligation to inspect sample analyze or test any tendered waste material before accepting such material If the waste material or tender of delivery fails in the opinion of Company to conform to this Agreement Company may a reject all waste material tendered b conditionally accept any or all waste material tendered orc accept any unit or units ofwaste material and reject the rest and
10 Cities
Right
waste
to Reject
offloaded
Unacceptable
at the Landfill
Waste
or the
Company
applicable Disposal
may conditionally
Facility
accept
but may
Contractor s
revoke its
acceptance of any load of waste as Unacceptable Waste at any time it is determined to be Unacceptable Waste such rejected waste will hereinafter be referred to as Rejected Waste Upon Company sgood faith and timely rejection or revocation of acceptance of waste that waste shall become Rejected Waste and Company srejection shall operate to revest title to the Rejected Waste in Contractor and Cities As a condition to its effective rejection of Waste or revocation of its acceptance of any Waste Company will
10 Promptly notify Contractor and Cities specifying the basis for its rejection of such Waste
102 Segregate and properly containerize the Rejected Waste at the Landfill or the applicable Disposal Facility and
103 Allow Contractor and Cities a reasonable opportunity not to exceed seventytwo 72 hours from the time of notice ofrejection to reclaim and remove the Rejected Waste from the Landfill or the applicable Disposal Facility
If Contractor or Cities fail to reclaim and remove the Rejected Waste from the Landfill or the applicable Disposal Facility or arrange for the removal of the Rejected Waste from the Landfill or the applicable Disposal Facility Company may make arrangements for the offsite storage transportation and Disposal of the Rejected Waste at a facility permitted to accept the Rejected Waste In such event Cities shalt promptly reimburse Company for the reasonable costs incurred by Company in testing cleanup handling loading preparing transporting storing Disposing and either returning the Rejected Waste to Contractor andor Cities or transporting and Disposing of the Rejected Waste at a facility permitted to accept the Rejected Waste
11 Acceptance of Waste of Title Company will be vested with title to all Acceptable Waste accepted by the Landfill hereunder on rem oval of the Acceptable Waste from the Transfer Station provided however that the Landfill or the applicable Disposal Facility is 00059528 DM3 SOLID WASTE DISPOSAL AGREEMENT 6
legally permitted to accept such waste and acceptance of such waste is not rejected or revoked under Section 10 Otherwise title to waste delivered by Contractor shall be in and all risks and responsibilities shall be borne by Contractor and Cities 12 Hours of Operation Company shall accept all Acceptable Waste at the Landfill during normal business hours of Monday Friday 800 am 400 pm Saturday Sunday 900 am 300 pm subject to Company sright to change the hours of operation which it may do at any time and from time to time upon giving Contractor and Cities reasonable advance notice of any such change in hours or capacity limitations which reasonable advance notice typically would be no less than ninety 90 days in advance of such change The Landfill will be closed on the following holidays New Years Day Easter Sunday Thanksgiving Day and Christmas Day Company shall give Contractor and Cities reasonable advance notice of any change to the holiday schedule
13 Contractor Landfill Activities Contractor sactivities at the Landfill shall be subject to the applicable provisions of Company spermits and safety and operating procedures made known to Contractor and Cities by Company Cities shall direct Contractor to exercise due care and diligence in the movement and offloading of Waste from its collection vehicles while in the Landfill and shall be responsible for all acts or omissions of its employees subcontractors and their agents and employees in connection with their activities at the Landfill Cities shall direct Contractor to at its sole cost protect its own employees and agents employees of Company and other persons from risk of death injury or bodily harm arising out of or in any way connected with Contractor sactivities at the Landfill Cities shall indemnify defend and hold Company harmless for all acts or omissions of Contractor Contractor semployees agents and independent contractors and their respective agents and employees in connection with their activities at the Landfill
14 Intoxicating Liquors and Drugs Cities shall direct Contractor to establish and keep in place rules prohibiting its employees agents or independent contractors from taking any controlled substances or intoxicating liquors to the Landfill Cities shall direct Contractor to not permit its employees agents or independent contractors to bring anywhere on the Landfill any controlled substances or intoxicating liquors If any employee agent or independent contractor of Contractor shall in the opinion of Company be under the influence of alcohol or controlled substances while at the Landfill Company shall require such person to leave the Landfill immediately
15 Invoicing Dispute of Invoiced Amounts Company will invoice Contractor twice per month in arrears using applicable Base Rates for all Tons of Waste accepted for Disposal at the Landfill in the then immediately preceding invoice period Cities shall direct Contractor to pay undisputed invoiced amounts within thirty 30 days of the date of its receipt of the invoice If Cities or Contractor dispute an invoiced amount they shall do so within the fifteen 15 day period following receipt of the invoice containing the disputed amount and give notice to Company setting forth therein the basis for the disputed amount with sufficient specificity to allow Company to investigate the disputed amount If Cities and Contractor fail to dispute any invoiced amount within fifteen 15 days of receiving the invoice Cities and Contractor shall be conclusively deemed to have waived their right to dispute the amount Tonnage amounts of Waste shall be determined using Company sweigh scales at the Landfill or the applicable 00059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 7
Disposal Facilities and shall be taken from certified weight tags issued by Company or the owneroperator of the applicable Disposal Facilities
16 Insurance The Parties shall obtain and maintain during the term of this Agreement commercial general liability insurance to protect against any claim or demand concerning bodily injury death or property damage and business auto insurance for claims arising out of such Party s operations Each Party hereto agrees to provide the other Party with thirty 30 days written notice of any nonrenewal cancellation decrease or material change in the insurance coverage Each Party on request shall furnish the other Party with a certificate of insurance showing the insurers and the coverages in effect all of which shall be satisfactory to the receiving party in its sole reasonable judgment The type and limits of liability of all insurance required herein shall be as set forth in Exhibit A which is attached hereto and incorporated herein Insurance provided pursuant to this Section 16 shall be written on an occurrence basis or claims made basis All policies except workers compensation shall name the other Party as an additional insured Limits specified in Exhibit A may be provided through any combination of primary umbrella excess deductibles or self insurance policies 17 Ind mni
17 By Cities Cities shall fully and forever defend indemnify and hold harmless Company and its successors assigns officers directors and agents against and in respect of any and all costs losses damages deficiencies expenses or liabilities including court costs and reasonable attorneys fees and expenses threatened suffered or paid to the extent resulting from or arising out of i any breach of any representation or warranty made by Cities in this Agreement or in any certificate document or instrument given pursuant hereto or in connection herewith ii any failure by Cities or Contractor to perform or otherwise fulfill or comply with any undertaking agreement or obligation on the part of Cities or Contractor to be performed fulfilled or complied with hereunder including the payment obligations set forth in Section 15 iii any claim by any third party ofownership of or any rights or interests in any Waste accepted by Company for Disposal at the Landfill or the applicable Disposal Facility iv any bodily injury personal injury or property damage arising out of or in any way related to Cities or Contractor sacts or omissions and v any violation by Cities or Contractor of any federal state county or local law or regulation pertaining to Cities or Contractor soperations This obligation shall survive the expiration or earlier termination of this Agreement 172 By Company Company shall fully and forever defend indemnify and hold harmless Cities and their respective successors assigns officers directors employees and agents against and in respect of any and all costs losses damages deficiencies expenses or liabilities including court costs and reasonable attorneys fees and expenses threatened suffered or paid to the extent resulting from or arising out of i any breach of any representation or warranty made by Company in this Agreement or in any certificate document or instrument given pursuant hereto or in connection herewith ii any failure by Company to perform or otherwise fulfill or comply with any undertaking agreement or obligation on the part of Company to be performed fulfilled or complied with hereunder iii any bodily injury personal injury or property damage arising out of or in any way related to Company sacts or omissions and iv any violation by Company of any federal state county or local law or regulation pertaining to 100059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 8
Company soperations This obligation shall survive the expiration or earlier termination of this Agreement
18 Default Termination
18 Default Event of Default The terms event of default and default shall mean either Party sfailure to observe comply with or perform as the case may be any covenant condition or obligation on its part to be performed complied with or observed as provided in this Agreement
182 Failure to Pay Amounts Due Cities shall be in default hereof if it fails to timely pay any invoiced amount in accordance with the terms set forth in Section 15 above Effective upon
access
not
to
less
the
than
Landfill
five 5
until
days
such
notice
time
to
as
Cities
Cities
Company
have paid
may
Company
suspend
the
Cities
undisputed
and Contractor s
invoiced
amount Notwithstanding any suspension of Cities and Contractor saccess to the Landfill by Company Cities shall remain obligated to comply with all provisions of this Agreement including without limitation Section 3
183 Default Right to Cure A Party shall be in default hereof if it breaches or fails to perform any non monetary covenant condition agreement representation or warranty contained in this Agreement and fails to cure such breach or failure for fifteen 15 days after the other Party has given the breaching Party written default notice provided however that if such failure or breach is of such nature as to not be curable within said fifteen 15day period an event of default shall occur if the breaching or failing Party shall have failed to commence curative action within the prescribed fifteen 15day period and prosecuted the same with due diligence to completion thereafter but in no event beyond fortyfive 45 days after receipt of the default notice
184 Remedy upon Default In any such event of default the non breaching Party may iterminate this Agreement and ii have recourse to any other right or remedy to which it may be entitled by law including but not limited to the right of all damage or loss suffered as a result of such breach or default In the event either Party waives default by the other Party such waiver shall not be construed or determined to be a continuing waiver of the same or any subsequent breach or default
19 Miscellaneous
19 Force Maicure Except with respect to the payment of money owed for Disposal services hereunder the performance of this Agreement by either Party may be suspended and the obligations hereunder excused or extended in the event and during the period that such performance is prevented by a cause or causes beyond that Party sreasonable control but only to the extent such cause or causes were unforeseeable or not the result of that Party snegligent or intentional act or failure to act when there was a duty to act Matters beyond the control of either Party include but are not limited to injunctions or restraining orders making the performance of this Agreement impossible and governmental or judicial action or inaction revoking suspending or preventing issuance of any licenses or permits required for operation of the Landfill in the case of Company or Contractor scollection transfer and transportation facilities NO59528 DM3 SOLID WASTE DISPOSAL AGREEMENT 9
or equipment or adversely affecting the interstate or international flow of Waste a Force Maieure Event In the event of disruption of services due to a Force Majeure Event Company shall and Cities shall direct Contractor to make every reasonable effort to reopen their respective facilities as soon as practicable after the cessation of the cause of suspension of services and will take all reasonable steps to overcome the cause of cessation of services 192 Compliance with Laws During the Term Company will comply with all present and future federal state and local statutes and ordinances regulating the Landfill and with all other rules and regulations and amendments thereto imposed by all federal and state regulatory agencies having jurisdiction over the operation of the Landfill Cities warrant that they and Contractor are and at all times during the Term will be in compliance with all state Federal county and other local laws permits and licenses concerning the collection handling and transportation of waste covered by this Agreement Cities shall direct Contractor to at all times maintain in effect all licenses and permits for the generation ofAcceptable Waste covered by this Agreement
operations
required by any and all agencies that may have jurisdiction over Contractor s 193 Independent Contractor Each Party is and shall perform their respective obligations under this Agreement as independent contractors and as such shall have and maintain complete control over all of their respective employees agents and their conduct of operations Neither Party nor anyone employed by it shall be represent act purport to act or be deemed to be the agent representative or employee of the other Party 194 Entire Agreement This Agreement represents the entire understanding and agreement between the Parties relating to the Disposal of the Waste materials described herein and supersedes any and all prior agreements whether written or oral that may exist between the Parties regarding same and supersedes any and all terms and conditions which may exist in any form with any Party regarding Contractor sand Cities Disposal of Waste at the Landfill 195 Notices All notices or other communications to be given hereunder shall be in writing and shall be deemed given when mailed by Registered or Certified United States mail or by nationally recognized overnight courier with proof of delivery To City ofGilroy City of Gilroy
7351 Rosanna Street
Gilroy CA 95029
Attention City Administrator
Phone 408 846 0400
To City of Morgan Hill City ofMorgan Hill
17575 Peak Ave
Morgan Hill CA 95037
Attention City Manager
Phone 408 7797271
100059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 10
To Company Waste Solutions Group Of San Benito LLC
Attn Division Vice President
2650 John Smith Road
Hollister CA 95023
Phone 831 6374515
Fax 831 6359621
With Copy to Waste Connections Inc
Attn Legal Department
3 Waterway Square Place
Suite I10
The Woodlands Texas 77380
Phone 832 442 2200
Fax 832 4422290
Any changes of address by either Party affecting the notice provision of this Agreement shall be by notice given to the other in the same manner as specified above 196 Attorney sFees In the event of any dispute between the Parties with respect to the subject matter hereof the prevailing Party shall recover its costs and expenses including reasonable attorney fees witness fees including experts and discovery costs all of which shall be included in and as a part of the judgment or award rendered in such litigation or arbitration 197 Specific Services This is an Agreement for the performance of specific services described herein Under no circumstances or conditions shall the operations of the Landfill by Company in accordance with this Agreement be deemed a public function nor has Contractor or Cities acquired an interest ownership or otherwise in the real or personal property or improvements or fixtures at the Landfill by virtue of this Agreement 198 Amendment No amendment modification or change to this Agreement shall be effective unless the same shall be in writing and duly executed by the Parties 199 Applicable Law The terms and conditions of this Agreement shall be construed in accordance with the laws of the State of California without regard for the state conflict of laws rules
190 Section Headings The section headings in this Agreement are inserted for convenience only and shall not be considered as a part of this Agreement or as a limitation or enlargement of the scope or meaning of the particular sections to which they refer and shall not affect the interpretation of any provisions of this Agreement 191 Severability In the event that any provisions of this Agreement shall for any reason be determined to be invalid illegal or unenforceable in any respect the Parties shall negotiate in good faith and agree to such amendments modifications or supplements of or to this Agreement or such other appropriate actions as shall to the maximum extent practicable in light of such determination implant and give effect to the intentions of the Parties as reflected herein and other terms of this Agreement as so amended modified supplemented or otherwise affected by such actions shall remain in full force and effect
00059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 11
192 Further Assurances Each Party shall use all reasonable efforts to provide such information execute and deliver any instruments and documents and take such action as may reasonably be necessary or reasonably requested or required by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumption of obligations other than those contemplated in this Agreement to give full effect to this Agreement and to carry out the intent of this Agreement
Remainder ofPage Intentionally Left Blank Signature Page Follows 00059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 12
IN WITNESS WHEREOF the Parties have executed this Solid Waste Disposal Agreement by their duly authorized agents as ofthe date first above written
CITIES COMPANY
CITY OF GILROY CALIFORNIA WASTE SOLUTIONS GROUP OF SAN
BENITO LLC a Delaware limited liability
company
By
Name Thom s J Hagluntr
Title City Administrator By
Name Paul Nelson
ATTEST Title Divisional Vice President
By
V
Name S awna Freels
Title City Clerk
APPROVED AS TO FORM
By G ci
Name Linda Callon
Title City Attorney
p
CITY OFMHI CALIFORNIA
By T
Name Steve Rymer
Title City Manager
ATTEST
Name
By
Michelle
jjXWilson
Title Deputy City Clerk
APPROVED AS TO FORM
By
Name Renee Gurza
Title City Attorney
14 00059528 DOC 3 SOLID WASTE DISPOSAL AGREEMENT 13
9 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Tanya Carothers, Environmental Services Administrator
APPROVED BY: City Manager
APPROVE FIRST AMENDMENT TO THE AGREEMENT FOR
COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION
PROGRAM
RECOMMENDATION(S)
Authorize the City Manager to execute the First Amendment to the Agreement for Countywide Household Hazardous Waste Collection Program.
Estimated Time:
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment
Advancing Regional Initiatives
REPORT NARRATIVE:
The purpose of this City Council report is to request authorization for the City Manager to execute the First Amendment to the Agreement for the Countywide Household Hazardous Waste (HHW) Collection Program (Attachment 1).
For well over 20 years, Santa Clara County has collected a fee to offset each jurisdiction’s solid waste management and HHW management expenses. The Countywide AB 939 Fee is collected at waste transfer and disposal facilities by facility operators and has two components. The first component is a Program Fee of $1.50 per ton which is charged to assist in funding integrated waste management activities. The second component is the HHW Fee of $2.60 per ton which is held by the County and used to directly offset HHW Collection Program costs associated with the use of the program by each jurisdiction’s residents. The HHW Collection Program provides City residents with the opportunity to participate in several HHW collection events each month, held at a permanent collection center in San Martin. If HHW Fee revenues exceed a jurisdiction’s HHW Collection Program costs at the end of the fiscal year, the remaining funds are transferred to the jurisdictions to be used to promote or support HHW management costs.
In 2021, the Council authorized the City Manager to execute the most recent three-year Countywide HHW Collection Program Agreement (Attachment 2). Because this agreement includes the HHW collection schedule for the year and an annual augmentation amount elected by the City, it requires
9 an annual amendment. The sole purpose of this item is to approve the City’s execution of the First Amendment to the Countywide HHW Collection Program Agreement with the FY 2022-23 schedule and updated augmentation amount. The Countywide HHW Collection Program Agreement includes a base assumption that 4% of each jurisdiction’s households will participate in the program annually. It is estimated that Morgan Hill resident participation in the HHW Collection Program will be more in the range of 10% for FY 2022-23, therefore an augmentation to the 4% base assumption must be specified. For 2022-23, an augmentation of $55,639 is recommended to ensure that all Morgan Hill residents desiring to participate in the program will be allowed to do so.
COMMUNITY ENGAGEMENT:
Inform
The recommended action is an extension of a long-standing program with no changes proposed, so no engagement activities were conducted prior to presenting the amendment for Council consideration. Should the First Amendment be approved, staff will continue to inform the public about the availability of the County program.
ALTERNATIVE ACTIONS:
The Council could decide to not approve the First Amendment and direct staff to further evaluate the provision of these services and the recommended augmentation amount.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The current Countywide HHW Collection Program Agreement was approved by the City Council on June 17, 2021 (Attachment 2). The Council has historically acted annually on either an agreement or an amendment to the agreement for over 20 years.
FISCAL AND RESOURCE IMPACT:
The Discretionary Fund is the balance of AB 939 HHW Fees collected after covering the cost of providing HHW Collection Program services to 4% of Morgan Hill households. The augmentation is the amount the city agrees to pay to the county for participation beyond 4%. For FY 2022-23, the recommended augmentation amount for Morgan Hill is $55,639 to cover the cost of anticipated program participation beyond the 4%. Based on the estimated program cost and the disposal tonnage, the Discretionary Fund in FY 2022-23 will be approximately $18,015. Under the Countywide HHW Collection Program Agreement, the County may use the Discretionary Fund to offset the cost of the HHW Collection Program. Therefore, Morgan Hill can expect an actual contribution to the HHW Collection Program of up to $37,624 ($55,639 - $18,015) for FY 2022-23.
For the past approximately 15 years, the City's AB 939 Discretionary Fund has been enough to cover the augmentation amount. Based on this trend, no funds were budgeted to cover the contribution that will be required to support full resident participation in the HHW Collection Program in FY 2022-23. Since accrued costs for the FY 2022-23 HHW Collection Program will be billed in FY 2023-24, the City will request an updated estimate on the 2022-23 HHW Collection Program costs in early 2023, and add that estimate to the 2023-24 budget during mid-cycle adjustments. It should be noted
9 that the augmentation amount uses the highest possible cost under the Countywide HHW Collection Program Agreement, and actuals at the end of the year are typically lower.
CEQA (California Environmental Quality Act):
Categorical Exemption
Approval of the First Amendment to the Agreement for the Countywide HHW Collection Program is categorically exempt from environmental review under Section 15308 (Actions by Regulatory Agencies for Protection of the Environment) of the CEQA guidelines.
FIRST AMENDMENT TO THE AGREEMENT FOR COUNTYWIDE HOUSEHOLD
HAZARDOUS WASTE COLLECTION PROGRAM
The Agreement for Countywide Household Hazardous Waste Collection Program (AGREEMENT) by and between the City of Morgan Hill (CITY) and the County of Santa Clara (COUNTY) previously entered into on June 17, 2021, is hereby amended as set forth below.
The COUNTY and the CITY agree that:
1. Section 16. ADDITIONAL SERVICES UNDER THIS AGREEMENT is amended in full to read:
16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level.
Additional services shall be made available upon written agreement between the CITY’s authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments (charged at the Variable Cost Per Car rate), door-to-door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.
CITY agrees to augment up to an additional $55,000 to the Countywide HHW Program during Fiscal Year 2022 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
CITY agrees to augment up to an additional $_________ to the Countywide HHW Program during Fiscal Year 2023 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C-1, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate.
Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
55,639
At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt of the annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery of the annual cost statement.
2. Attachment C-1 “HHW Schedule For Collection Events for Fiscal Year 2022/2023” attached hereto and incorporated herein by this reference is hereby added to the AGREEMENT.
Except as provided herein, all terms and conditions of the AGREEMENT shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY, through their duly authorized representatives, have entered into this First Amendment to the AGREEMENT on the last date shown below:
COUNTY OF SANTA CLARA CITY OF MORGAN HILL
Signature: Signature:
Jeffery V. Smith
County Executive
Date: Date:
APPROVED AS TO FORM AND LEGALITY
Willie Nguyen
Deputy County Counsel
Date:
Christina Turner
City Manager
ATTACHMENT C-1: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2022-2023*
2022/Month Day Date Location Type of Event County Holidays/ Notes July Fri 1 San Jose Permanent
Saturday 2 No Event No Event 4th OF JULY WEEK
Wed,Thurs,Fri,Sat 6,7,8,9 San Jose Permanent
Fri,Sat 8,9 San Martin Permanent
Thurs,Fri 14,15 San Jose Permanent
Saturday 16 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 20,21,22,23 San Jose Permanent
Thurs,Fri,Sat 28,29,30 San Jose Permanent
August Wed,Thurs,Fri,Sat 3,4,5,6 San Jose Permanent
Fri,Sat 5,6 San Martin Permanent
Thurs,Fri 11,12 San Jose Permanent
Saturday 13 Mountain View Temporary TBD
Wed,Thurs,Fri,Sat 17,18,19,20 San Jose Permanent
Thurs,Fri,Sat 25,26,27 San Jose Permanent
Wed 31 San Jose Permanent
September Thurs,Fri 1,2 San Jose Permanent
Saturday 3 No Event No Event LABOR DAY WEEKEND
Thurs,Fri,Sat 8,9,10 San Jose Permanent
Fri,Sat 9,10 San Martin Permanent
Wed,Thurs,Fri 14,15,16 San Jose Permanent
Saturday 17 Santa Clara Temporary TBD
Thurs,Fri,Sat 22,23,24 San Jose Permanent
Thurs,Fri 29,30 San Jose Permanent
October Sat 1 San Jose Permanent
Wed,Thurs,Fri,Sat 5,6,7,8 San Jose Permanent
Fri,Sat 7,8 San Martin Permanent
Thurs,Fri 13,14 San Jose Permanent
Saturday 15 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 19,20,21,22 San Jose Permanent
Thurs,Fri,Sat 27,28,29 San Jose Permanent
November Wed,Thurs,Fri,Sat 2,3,4,5 San Jose Permanent
Fri, Sat 4,5 San Martin Permanent
Wed, Thurs 9,10 San Jose Permanent
Fri 11 No Event No Event VETERANS DAY
Saturday 12 San Jose Permanent
Wed,Thurs,Fri,Sat 16,17,18,19 San Jose Permanent
Wednesday 23 San Jose Permanent
Thurs,Fri,Sat 24,25,26 No Event No Event THANKSGIVING
Wed 30 San Jose Permanent
December Thurs,Fri,Sat 1,2,3, San Jose Permanent
Fri, Sat 2,3 San Martin Permanent
Wed,Thurs,Fri,Sat 7,8,9,10 San Jose Permanent
Thurs,Fri,Sat 15,16,17 San Jose Permanent
Wed,Thurs 21,22 San Jose Permanent
Fri,Sat 23,24 No Event No Event CHRISTMAS
Wed,Thurs 28,29 San Jose Permanent
Fri,Sat 30,31 No Event No Event NEW YEAR'S DAY
*SUBJECT TO CHANGE
HHW SCHEDULE FOR FISCAL YEAR 2022/2023*
ATTACHMENT C-1: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2022-2023* (Continued) 2023/Month Day Date Location Type of Event County Holidays/ Notes January Thurs,Fri,Sat 5,6,7 San Jose Permanent
Fri, Sat 6,7 San Martin Permanent
Wed,Thurs,Fri 11,12,13 San Jose Permanent
Saturday 14 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 18,19,20,21 San Jose Permanent
Thurs,Fri 26,27 San Jose Permanent
Saturday 28 Santa Clara Temporary TBD
February Wed,Thurs,Fri,Sat 1,2,3,4 San Jose Permanent
Fri, Sat 3,4 San Martin Permanent
Thurs,Fri,Sat 9,10,11 San Jose Permanent
Wed,Thurs,Fri,Sat 15,16,17,18 San Jose Permanent
Thurs,Fri,Sat 23,24,25 San Jose Permanent
March Wed,Thurs,Fri,Sat 1,2,3,4 San Jose Permanent
Fri, Sat 3,4 San Martin Permanent
Thurs,Fri,Sat 9,10,11 San Jose Permanent
Wed,Thurs,Fri,Sat 15,16,17,18 San Jose Permanent
Thurs,Fri,Sat 23,24,25 San Jose Permanent
Wed,Thurs,Fri 29,30,31 San Jose Permanent
April Sat 1 San Jose Permanent
Wed,Thurs,Fri,Sat 5,6,7,8 San Jose Permanent
Fri, Sat 7,8 San Martin Permanent
Thurs,Fri 13,14 San Jose Permanent
Saturday 15 Sunnyvale Temporary TBD
Wed,Thurs,Fri 19,20,21 San Jose Permanent
Saturday 22 Los Altos Temporary TBD
Thurs,Fri 27,28 San Jose Permanent
Saturday 29 Santa Clara Temporary TBD
May Wed,Thurs,Fri,Sat 3,4,5,6 San Jose Permanent
Fri, Sat 5,6 San Martin Permanent
Thurs,Fri,Sat 11,12,13 San Jose Permanent
Wed,Thurs,Fri,Sat 17,18,19,20 San Jose Permanent
Wed,Thurs,Fri 24,25,26 San Jose Permanent
Saturday 27 No Event No Event MEMORIAL DAY WEEKEND
June Thurs,Fri,Sat 1,2,3 San Jose Permanent
Fri, Sat 2,3 San Martin Permanent
Thurs,Fri 8,9 San Jose Permanent
Saturday 10 Milpitas Temporary TBD
Wed,Thurs,Fri,Sat 14,15,16,17 San Jose Permanent
Thurs,Fri,Sat 22,23,24 San Jose Permanent
Wed,Thurs,Fri 28,29,30 San Jose Permanent
*SUBJECT TO CHANGE
HHW SCHEDULE FOR FISCAL YEAR 2022/2023-continued*
10 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Tanya Carothers, Environmental Services Administrator
APPROVED BY: City Manager
APPROVE SECOND AMENDMENT TO GILROY STAFF SERVICES
AGREEMENT
RECOMMENDATION(S)
Authorize the City Manager to execute the Second Amendment to the Gilroy Staff Services Agreement for Stormwater Permitting Requirements and Environmental Management Services.
Estimated Time:
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment
Advancing Regional Initiatives
REPORT NARRATIVE:
The purpose of this item is to provide the City Council with an opportunity to consider an amendment to the City’s staff services agreement with the City of Gilroy that would add a full-time benefited Environmental Services Technician to the Stormwater Program (see Attachment 1). The Technician would be shared between the two cities. This Second Amendment also updates the agreement to include revised bill rates for Environmental Services Division staff plus related expenses, and minor text updates including revisions to the Terms for Staff Services.
Since 2015, the City of Morgan Hill has shared a full-time Environmental Programs Coordinator with the City of Gilroy to run the Stormwater Program in both cities. Gilroy reimburses the City for 50 percent of the Environmental Program Coordinator position and associated overhead costs. This shared staff arrangement has resulted in efficient and effective use of resources to achieve stormwater compliance over the past seven years. As stormwater requirements have grown, both Morgan Hill and Gilroy have supplemented with consultant work and in-house interns to meet the increasing needs of the program. In January 2021, the City of Morgan Hill hired a part-time temporary Environmental Services Technician to provide additional focused help in meeting Water Board expectations for Stormwater Program compliance. The City of Gilroy has determined that they also require additional Stormwater Program support, and has
10 expressed an interest in paying 50 percent of a full-time benefited Environmental Services Technician starting in fiscal year 2022-23.
COMMUNITY ENGAGEMENT:
Not Applicable.
This is an administrative item and the recommended action does not impact services provided within the community.
ALTERNATIVE ACTIONS:
The City Council could decline to approve the Second Amendment to the Staff Services Agreement with Gilroy. In this case, the City of Morgan Hill would seek to continue employment of a part-time temporary Environmental Services Technician to support the increasing needs of the Stormwater Program. However, the City would be unable to provide sufficient staff services for Gilroy to keep up with the increasing compliance needs of their Stormwater Program.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On March 16, 2015, the City entered into an agreement (Agreement) to provide staff services for the implementation of stormwater permitting requirements and environmental services through June 30, 2019. On May 15, 2019, the City approved the First Amendment to the Agreement to extend the term of the Agreement for another five years through June 30, 2024.
FISCAL AND RESOURCE IMPACT:
As indicated in Exhibit B of the Second Amendment to the Agreement, payments from the City of Gilroy to the City of Morgan Hill for staff services are estimated to range from $187,097 to $194,663 annually, over the next two years of the remaining term of the Agreement after being amended with increased costs to cover the proposed Environmental Services Technician. These funds will be used to pay 50 percent of the full costs of the Environmental Programs Coordinator, 50 percent of the full costs of the proposed Environmental Services Technician, and 12 percent of the full costs of the Environmental Services Administrator.
The remaining 50 percent of the costs for the proposed Environmental Services Technician will be partially funded by fees including the Post Construction Requirement Fee (PCR Fee) and the Stormwater Pollution Prevention Program (SWPPP) Construction Inspection Intake and Review Fee.
The position will also be funded through transfers from Water (650) and Wastewater (640).
The proposed budget for FY 2022-23 and FY 2023-24 will include the Gilroy reimbursement revenue within the General Fund (010). The PCR Fee will go into Stormwater (232) and the SWPPP Construction Inspection Intake and Review Fee will go into Development Services (206). The Environmental Services Technician will only be hired if the agreement with Gilroy for the increased service is finalized. No budget amendments are needed at this time. Completing work for the City of Gilroy is included in the work program of the Community Services Department.
CEQA (California Environmental Quality Act):
10 Not a Project.
This is an organizational/administrative action that will not result in direct or indirect physical changes to the environment.
SECOND AMENDMENT TO AGREEMENT FOR PROVIDING STAFF SERVICES FOR THE
IMPLEMENTATION OF STORMWATER PERMITTING REQUIREMENTS AND
ENVIRONMENTAL SERVICES TO THE CITY OF GILROY
This SECOND AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by and between the CITY OF GILROY, a municipal corporation (“GILROY”), and the CITY OF MORGAN HILL, a municipal corporation (“MORGAN HILL”).
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Second Amendment to Agreement is entered into based upon the approval of the City of Morgan Hill City Council on ______________ and the City of Gilroy approval on ________________.
2. GILROY and MORGAN HILL entered into that Agreement to provide staff services (STAFF SERVICES AGREEMENT) on March 16, 2015.
3. GILROY and MORGAN HILL entered into a “First Amendment” on June 17, 2019, extending the length of the STAFF SERVICES AGREEMENT and adding reimbursement amounts for the extended term.
The STAFF SERVICES AGREEMENT and the First Amendment thereto are attached as Exhibit “1” to this Second Amendment.
4. MORGAN HILL has hired a half time Environmental Services Technician in 2021 to provide additional help in meeting Water Board expectations for Stormwater Program compliance, and has agreed to hire a full-time Environmental Services Technician to also provide half-time Environmental Services Technician staff services to GILROY; and
5. GILROY and MORGAN HILL have agreed that MORGAN HILL will provide the services of a second half-time staff position at the Environmental Technician level to GILROY and that GILROY will reimburse MORGAN HILL for MORGAN HILL's costs incurred to employ this position and carry out this work in the amount of one-half of the actual costs to MORGAN HILL for the position.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments: All terms and conditions of the STAFF SERVICES 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. Section 3 shall be amended and replaced in its entirety by the following:
“Section 3. STATEMENT OF COSTS.
GILROY shall reimburse MORGAN HILL for all costs incurred by MORGAN HILL pursuant to this AGREEMENT, which may include, but are not limited to, direct costs for labor and benefits, field work supplies for use while in GILROY (e.g., PPE, boots, rain gear, inspection tools, etc.), and training and travel expenses. The terms related to staff resources to be provided by
MORGAN HILL, as well as estimated costs to MORGAN HILL of the resources provided by MORGAN HILL to GILROY pursuant to this AGREEMENT are shown in EXHIBIT “A” and EXHIBIT “B,” respectively, which are attached hereto. Cost estimates are for budgetary purposes only and are not intended to limit the parties’ obligations under this AGREEMENT.
MORGAN HILL shall use all funds paid to MORGAN HILL by GILROY pursuant to this AGREEMENT solely for providing staff services to GILROY. The contribution of GILROY to MORGAN HILL under this Agreement shall not exceed $54,441 for FY 2014/2015; $94,614 for FY 2015/2016; $100,750 for FY 2016/2017; $107,341 for FY 2017/18; $114,423 for FY 2018/2019; $121,854 for FY 2019/2020; $130,036 for FY 2020/2021; $138,835 for FY 2021/2022; $187,097 for FY 2022/23; and $194,663 for FY 2023/2024 unless MORGAN HILL has notified GILROY that the estimated amounts will not be adequate to reimburse MORGAN HILL for actual costs and GILROY agrees that an increase in the amount is warranted.” B. Section 7 shall be amended and replaced in its entirety by the following:
“Section 7.0 TERMINATION
A. MORGAN HILL or GILROY may terminate this AGREEMENT by giving notice to the other party of not less than thirty (30) days.
B. If either party fails to perform any of its material obligations under this AGREEMENT, then, in addition to all other remedies available by law, the non-defaulting party may terminate this AGREEMENT immediately upon written notice to defaulting party.
C. The MORGAN HILL City Manager, or their delegatee or designee, is authorized to terminate this AGREEMENT on behalf of MORGAN HILL.
D. The GILROY City Administrator, or their delegatee or designee, is authorized to terminate this AGREEMENT on behalf of GILROY.
E. In the event of termination, MORGAN HILL shall deliver to GILROY copies of all reports, documents, or other data generated by MORGAN HILL for or under this AGREEMENT.
GILROY shall be responsible for payment to MORGAN HILL of the cost of any services properly rendered in accordance with this Agreement prior to termination within 30 days of termination.”
C. Section 16 shall be amended and replaced in its entirety by the following:
“Section 16.0 WAIVER
Each party to this AGREEMENT agrees that the waiver by any party of any breach or violation of any term or condition of this AGREEMENT shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition of this AGREEMENT. The acceptance by any party of the performance of the services performed by MORGAN HILL or any other work or service under this AGREEMENT shall not be deemed to be a waiver of any term or condition of this AGREEMENT.”
D. Exhibit “A” of the original agreement shall be amended and replaced in its entirety by the attached Exhibit “A”.
E. Exhibit “B” of the original agreement shall be amended and replaced in its entirety by the attached Exhibit “B”.
2. Conflicts. In the event of a conflict between the terms and provisions of this Second Amendment to Agreement and the terms and provisions of the STAFF SERVICES AGREEMENT, as amended, the terms of this Second Amendment to Agreement shall govern and control.
3. Authority to Execute. The individuals who are signing this Second Amendment to Agreement on behalf of entities represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Second Amendment to the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the EFFECTIVE DATE first set forth above.
GILROY
APPROVED AS TO FORM:
_________________________________
Andy Faber
City Attorney
ATTEST:
_________________________________
Thai Pham
City Clerk
CITY OF GILROY,
a municipal corporation
_________________________________
Jimmy Forbis
City Administrator
MORGAN HILL
APPROVED AS TO FORM:
_________________________________
Donald Larkin
City Attorney
CITY OF MORGAN HILL,
a municipal corporation
__________________________________
Christina Turner
City Manager
ATTEST:
________________________________
Michelle Bigelow, City Clerk
EXHIBIT A
DESCRIPTION OF STAFF RESOURCES TO BE PROVIDED AND TERMS RELATED TO
ADMINISTERING STAFF RESOURCE
The purpose of this Exhibit is to describe the work anticipated to be conducted under this AGREEMENT and the general terms relating to the employment of the staff resources (STAFF) provided under this AGREEMENT.
1. Work Locations - The primary office location for STAFF shall be MORGAN HILL’s offices. If desired by GILROY and if GILROY provides a comfortable, productive, functioning, and professional workspace, STAFF shall work in GILROY offices and attend meetings and work directly with customers in GILROY. GILROY office setup including, but not limited to, computer equipment and programs, telephone, office supplies, business cards, and ergonomic needs shall be provided by GILROY. The scheduling of STAFF’s work in GILROY can be designed to provide both regular office hours and flexibility to work in GILROY at additional times as desired. STAFF scheduling shall be arranged through the MORGAN HILL manager.
2. Management and Supervision - MORGAN HILL shall provide primary management and supervision of STAFF. MORGAN HILL shall communicate monthly with GILROY to ensure that STAFF is providing expected services to GILROY. Any and all disciplinary activities, if needed, shall be conducted solely by MORGAN HILL with costs thereof shared equally by GILROY.
Environmental Services Technician shall be supervised and assigned tasks by the Environmental Programs Coordinator.
3. Recruitment and Hiring - MORGAN HILL will conduct the recruitment, administer interviews, and complete background analysis to employ STAFF, with costs thereof to be shared equally by GILROY. GILROY shall be invited to participate in the interview and selection process.
4. General Description of Work Activities - While it is understood that the work associated with this AGREEMENT is dynamic and may fluctuate over time depending on General Permit requirements and GILROY’s interests, the following general work activities are expected to be core activities under the AGREEMENT:
a. Track program accomplishments and work activities to develop related reports. b. Evaluate the water quality elements of development plans and provide comments to GILROY staff and development applicants.
c. Conduct public education and outreach activities.
d. Assist GILROY staff in identifying other General Permit requirements to be completed by other GILROY departments.
e. Update and administer the requirements of the Operation and Maintenance Program for Post Construction Stormwater Treatment Features.
5. Management Services - MORGAN HILL will provide management services to GILROY relating to solid waste management, stormwater pollution prevention, and environmental services. These services will include, but not be limited to, preparing annual regulatory reports recording solid waste diversion, interacting with state and local representatives on GILROY's behalf, representing GILROY at regional meetings, and responding to queries from GILROY staff on a variety of environmental programs.
EXHIBIT B
COST ESTIMATE
14-15* 15-16 16-17 17-18 18-19
Staff (50% FTE) $25,154 $62,886 $68,011 $73,554 $79,549 Indirect Service Charges $674 $1,684 $1,821 $1,970 $2,130 Training $200 $500 $500 $500 $500
Cell Phone $72 $180 $180 $180 $180
Mileage Reimbursement $100 $250 $250 $250 $250
Total Half Time Staff $26,200 $65,500 $70,762 $76,454 $82,609 Management Staff (12% FTE) $27,504 $28,355 $29,206 $30,082 $30,984 Indirect Service Charges $736 $759 $782 $805 $829
Total Management $28,241 $29,114 $29,987 $30,887 $31,814 Total $54,441 $94,614 $100,750 $107,341 $114,423
--------------------------------------------------------------------------------------------------------------------------- 19-20 20-21 21-22 22-23 23-24
Staff (50% FTE) $86,032 $93,044 $100,627 $155,100 $161,500 Indirect Service Charges $2,304 $2,492 $2,695 $2,914 $3,152 Training $500 $500 $500 $1,000 $1,000
Cell Phone $0 $0 $0 $0 $0
Mileage Reimbursement $250 $250 $250 $250 $250
Field Work Supplies/PPE $400 $400
Total Half Time Staff $89,086 $96,285 $104,071 $159,664 $166,302 Management Staff (12% FTE) $31,914 $32,871 $33,857 $26,500 $27,400 Indirect Service Charges $854 $880 $906 $933 $961
Total Management $32,768 $33,751 $34,764 $27,433 $28,361 Total $121,854 $130,036 $138,835 $187,097 $194,663
* costs for 14/15 are estimated for 40% of the fiscal year for the staff position and 100% of the fiscal year for the management position.
FIRST AMENDMENT TO AGREEMENT FOR PROVIDING STAFF SERVICES FOR THE
IMPLEMENTATION OF STORMWATER PERMITTING REQUIREMENTS AND
ENVIRONMENTAL SERVICES TO THE CITY OF GILROY
...,.- This FIRST AMENDMENT TO AGREEMENT is entered into and becomes effective on ...Ju� 11 2-0t9 (Effective Date), by and between the CITY OF GILROY, a municipal corporation ("GILROY"), and the City of MORGAN HILL, a municipal corporation ("MORGAN HILL").
RECITALS
The following recitals are a substantive part of this Agreement:
1. This First Amendment to Agreement is entered into based upon the approval of the City of Morgan Hill City Council on \Iii� \ S. 1 A, o I') and the City of Gilroy approval on ,TunL 111 to I q .
2. GILROY AND MORGAN HILL entered into that agreement to provide staff services (STAFF SERVICES AGREEMENT) on March 16, 2015. The agreement is attached as Exhibit "1" to this First Amendment.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments: All terms and conditions of the STAFF SERVICES 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. Section 2 shall be amended and replaced in its entirety by the following:
"Section 2. TERM.
This AGREEMENT shall become effective as of the EFFECTIVE DATE and shall terminate on June 30, 2024 unless this AGREEMENT is amended or GILROY or MORGAN HILL exercises the right to terminate this AGREEMENT pursuant to Section 7 of this AGREEMENT, below."
B. Section 3 shall be amended and replaced in its entirety by the following:
"Section 3. STATEMENT OF COSTS.
GILROY shall reimburse MORGAN HILL for all costs incurred by MORGAN HILL pursuant to this AGREEMENT, which may include, but are not limited to, direct costs for labor and benefits and training and travel expenses. The estimated costs to MORGAN HILL of the resources provided by MORGAN HILL to GILROY pursuant to this AGREEMENT are shown in EXHIBIT "B," which is attached hereto. These estimates are for budgetary purposes only and are not intended to limit the parties' obligations under this AGREEMENT. MORGAN HILL shall use all funds paid to MORGAN HILL by GILROY pursuant to this AGREEMENT solely for providing staff services to GILROY. The contribution of GILROY to MORGAN HILL under this Agreement shall not exceed $54,441 for FY 2014/2015; $94,614 for FY 2015/2016; $100,750 for FY 1
Exhibit 1
2016/2017; $107,341 for FY 2017/18; $114,423 for FY 2018/2019; $121,854 for FY 2019/2020; $130,036 for FY 2020/2021; $138,835 for FY 2021/2022; $148,299 for FY 2022/23; and $158,480 for FY 2023/2024 unless MORGAN HILL has notified GILROY that the estimated amounts will not be adequate to reimburse MORGAN HILL for actual costs and GILROY agrees that an increase in the amount is warranted."
C. Exhibit "B" of the original agreement shall be amended and replaced in its entirety by the attached Exhibit "B".
2. Conflicts. In the event of a conflict between the terms and provisions of this First Amendment to Agreement and the terms and provisions of the STAFF SERVICES AGREEMENT, the terms of this First Amendment to Agreement shall govern and control.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the EFFECTIVE DATE first set forth above.
fu/·
GILROY
APPROVED AS TO FORM:
An�
City Attorney
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MORGAN HILL
APPROVED AS TO FORM:
� Donald -��� Larkin
City Attorney
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Gabriel Gonzalez � -
City Administrator
CITY OF MORGAN HILL,
�rporation
2
EXHIBITS
COST ESTIMATE
14-15* 15-16 16-17 17-18 18-19
Staff (50% FTE) $25,154 $62,886 $68,011 $73,554 $79,549 Indirect Service Charges $674 $1,684 $1,821 $1,970 $2,130 Training $200 $500 $500 $500 $500
Cell Phone $72 $180 $180 $180 $180
Mileage Reimbursement $100 $250 $250 $250 $250
Total HalfTime Staff $26,200 $65,500 $70,762 $76,454 $82,609 Management Staff (12% FTE) $27,504 $28,355 $29,206 $30,082 $30,984 Indirect Service Charges $736 $759 $782 $805 $829
Total Management $28,241 $29,114 $29,987 $30,887 $31,814 Total $54,441 $94,614 $100,750 $107,341 $114,423
-------... --------------------------------------------- ---------------------------
------
------------·-------------.. ----------
19-20 20-21 21-22 22-23 23-24
Staff (50% FTE) $86,032 $93,044 $100,627 $108,828 $117,697 Indirect Service Charges $2,304 $2,492 $2,695 $2,914 $3,152 Training $500 $500 $500 $500 $500
Cell Phone $0 $0 $0 $0 $0
Mileage Reimbursement $250 $250 $250 $250 $250
Total Half Time Staff $89,086 $96,285 $104,071 $112,492 $121,599 Management Staff (12% FTE) $31,914 $32,871 $33,857 $34,873 $35,919 Indirect Service Charges $854 $880 $906 $933 $961
Total Management $32,768 $33,751 $34,764 $35,807 $36,881 Total $121,854 $130,036 $138,835 $148,299 $158,480
* costs for 14/15 are estimated for 40% of the fiscal year for the staff position and 100% of the fiscal year for the management position
3
Staff (50% FTE)
Indirect Service Charges
Training
Cell Phone
Mileage Reimbursement
Total Half Time Staff
Management Staff (12% FTE)
Indirect Service Charges
Total Management
Total
EXHIBIT B
COST ESTIMATE
14-15* 15-16
$25,154 $62,886
$674 $1,684
$200 $500
$72 $180
$100 $250
$26,200 $65,500
$27,504 $28,355
$736 $759
$28,241 $29,114
$54,441 $94,614
16-17 17-18
$68,011 $73,554
$1,821 $1,970
$500 $500
$180 $180
$250 $250
$70,762 $76,454
$29,206 $30,082
$782 $805
$29,987 $30,887
$100,750 $107,341
* costs for 14/15 are estimated for 40% of the fiscal year for the staff position and 100% of the fiscal year for the management position 8 18-19
$79,549
$2,130
$500
$180
$250
$82,609
$30,984
$829
$31,814
$114,423
Exhibit 1
SECTION 1. PURPOSE; DELEGATION.
The purpose of this AGREEMENT is to promote efficiency and an economy of operations and resources in complying with the requirements of the General Permit adopted by the State of California. To achieve this end, MORGAN HILL will provide a one-half time staff resource to GILROY to support GILROY'S activities to comply with the General Permit and, in addition, shall provide management services relating to solid waste management, stormwater pollution prevention, and environmental services as set forth in Exhibit "A" (which is attached hereto and incorporated herein), subject to and in accordance with this AGREEMENT. Exhibit "A" may be amended from time to time by the written consent of all parties to this AGREEMENT.
SECTION 2. TERM.
This AGREEMENT shall become effective as of the EFFECTIVE DATE and shall terminate on June 30, 2019, unless this AGREEMENT is amended or GILROY or MORGAN HILL exercises the right to terminate this AGREEMENT pursuant to Section 7 of this AGREEMENT, below.
SECTION 3. STATEMENT OF COSTS.
GILROY shall reimburse MORGAN HILL for all costs incurred by MORGAN HILL pursuant to this AGREEMENT, which may include, but are not limited to, direct costs for labor and benefits and training and travel expenses. The estimated costs to MORGAN HILL of the resources provided by MORGAN HILL to GILROY pursuant to this AGREEMENT are shown in EXHIBIT "B," which is attached hereto. These estimates are for budgetary purposes only and are not intended to limit the parties' obligations under this AGREEMENT. MORGAN HILL shall use all funds paid to MORGAN HILL by GILROY pursuant to this AGREEMENT solely for providing staff services to GILROY.
The contribution of GILROY to MORGAN HILL under this Agreement shall not exceed $54,441 for FY 2014/2015; $94,614 for FY 2015/2016; $100,750 for FY 2016/2017; $107,341 for FY 2017/18; and $114,423 for FY 2018/2019 unless MORGAN HILL has notified GILROY that the estimated amounts will not be adequate to reimburse MORGAN HILL for actual costs and GILROY agrees that an increase in the amount is warranted.
SECTION 4. PAYMENT FOR SERVICES.
MORGAN HILL will invoice GILROY bi-annually for costs incurred to provide staff services for the previous six (6) months by sending GILROY an invoice. Invoices shall be sent out by April 30 (for the January-June period) and by October 31 (for the JulyDecember period) of each year. GILROY shall pay MORGAN HILL the amounts invoiced within forty-five (45) days of their receipt of such invoices. 2
SECTION 5. INDEMNIFICATION.
In lieu of and notwithstanding the pro rata risk allocation which might otherwise be imposed between the parties to this AGREEMENT pursuant to Government Code· Section 895.6, the Parties agree that all losses or liabilities incurred by a party shall not be shared pro rata, but instead, pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, its officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, board members, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of 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 6. RECORDS.
MORGAN HILL shall keep itemized and detailed work or job records of all costs incurred and services rendered pursuant to this AGREEMENT. MORGAN HILL 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.
SECTION 7. TERMINATION.
A. MORGAN HILL or GILROY may terminate this AGREEMENT as of the first day of July of any year by giving notice to the other party not less than ninety (90) days prior to the July 1.
B. If MORGAN HILL fails to perform any of its material obligations under this AGREEMENT, then, in addition to all other remedies available by law, GILROY may terminate this AGREEMENT immediately upon written notice to MORGAN HILL.
C. The MORGAN HILL City Manager, or his delegatee or designee, is authorized to terminate this AGREEMENT on behalf of MORGAN HILL.
D. The GILROY City Administrator, or his delegatee or designee, is authorized to terminate this AGREEMENT on behalf of GILROY.
E. In the event of termination, MORGAN HILL shall deliver to GILROY copies of all reports, documents, or other data generated by MORGAN HILL for or under this AGREEMENT. GILROY shall be responsible for payment to MORGAN HILL of the cost of any services properly rendered in accordance with this Agreement prior to termination within 30 days of termination.
3
SECTION 8. AMENDMENTS.
This AGREEMENT may be modified only by a written amendment duly executed by the parties to this AGREEMENT.
SECTION 9. NON DISCRIMINATION.
No party to this AGREEMENT shall discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this AGREEMENT.
SECTION 10. ASSIGNABILITY.
MORGAN HILL acknowledges and understands that the expertise and experience of MORGAN HILL is a material consideration inducing GILROY to enter into this AGREEMENT. MORGAN HILL may not assign nor transfer any interest in this AGREEMENT, nor the performance of any of its duties and responsibilities under this AGREEMENT, without the prior written consent of GILROY. Any attempt by MORGAN HILL to so assign or transfer this AGREEMENT or the performance of any of MORGAN HILL'S duties and responsibilities under this AGREEMENT shall be null and void and of no force or effect.
SECTION 11. NOTICES.
All notices and other communications required or allowed to be given under this AGREEMENT to a party shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective party as follows:
GILROY :
MORGAN HILL:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attention: CITY ADMINISTRATOR
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, California 95037
Attention: CITY MANAGER
SECTION 12. GOVERNING LAW.
The law governing this AGREEMENT shall be that of the State of California. 4
SECTION 13. VENUE.
If suit is brought under this AGREEMENT, venue shall be vested exclusively in the state courts of the State of California, County of Santa Clara, or, if federal jurisdiction is appropriate, exclusively in the United States District Court, Northern District of California, San Jose, California.
SECTION 14. COMPLIANCE WITH LAWS.
All parties to this AGREEMENT shall comply with all applicable laws, rules, regulations, codes and ordinances of the federal, state and local governments in the performance of the SERVICES and its other duties and obligations under this AGREEMENT.
SECTION 15. OWNERSHIP OF MATERIALS.
All reports, documents, photographs, or other materials generated by MORGAN HILL or other person engaged directly or indirectly by MORGAN HILL to perform the work set forth herein shall be and remain the joint property of GILROY and MORGAN HILL.
SECTION 16. WAIVER.
Each party to this AGREEMENT agrees that the waiver by any party of any breach or violation of any term or condition of this AGREEMENT shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition of this AGREEMENT.
The acceptance by any party of the performance of the services performed by GILROY I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
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5
or any other work or service under this AGREEMENT shall not be deemed to be a waiver of any term or condition of this AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the EFFECTIVE DATE first set forth above.
GILROY
APPROVED AS TO FORM:
LtfH:it
rea
��
11m.-- i\ �
) City Attorney
MORGAN HILL
APPROVED AS TO FORM:
'/101� Ren� Guga
City Attorney
6 CITY OF GILROY,
a unicipal corporation
Thomas J. aglund
City Administrator
CITY OF MORGAN HILL,
a municipal corporation
St��--
City Manager
EXHIBIT A
DESCRIPTION OF STAFF RESOURCES TO BE PROVIDED AND TERMS RELATED
TO ADMINISTERING STAFF RESOURCE
The purpose of this Exhibit is to describe the work anticipated to be conducted under this AGREEMENT and the general terms relating to the employment of the staff resources (STAFF) provided under this AGREEMENT.
1. Work Locations - The primary office location for STAFF shall be MORGAN Hill's offices. If desired by GILROY and if GILROY provides a reasonable work location, STAFF shall work in GILROY offices and attend meetings and work directly with customers in GILROY. The scheduling of STAFF's work in GILROY can be designed to provide both regular office hours and flexibility to work in GILROY at additional times as desired. STAFF scheduling shall be arranged through the MORGAN HILL manager.
2. Management and Supervision - MORGAN HILL shall provide primary management and supervision of STAFF. MORGAN HILL shall communicate monthly with GILROY to ensure that STAFF is providing expected services to GILROY. Any and all disciplinary activities, if needed, shall be conducted solely by MORGAN HILL with costs thereof shared equally by GILROY.
3. Recruitment and Hiring - MORGAN HILL will conduct the recruitment, administer interviews, and complete background analysis to employ STAFF, with costs thereof to be shared equally by GILROY. GILROY shall be invited to participate in the interview and selection process.
4. General Description of Work Activities - While it is understood that the work associated with this AGREEMENT is dynamic and may fluctuate over time depending on General Permit requirements and GILROY's interests, the following general work activities are expected to be core activities under the AGREEMENT:
a. Track program accomplishments and work activities to develop related reports.
b. Evaluate the water quality elements of development plans and provide comments to GILROY staff and development applicants.
c. Conduct public education and outreach activities.
d. Assist GILROY staff in identifying other General Permit requirements to be completed by other GILROY departments.
5. Management Services - MORGAN HILL will provide management services to GILROY relating to solid waste management, stormwater pollution prevention, and environmental services. These services will include, but not be limited to, preparing annual regulatory reports recording solid waste diversion, interacting with state and local representatives on GILROY's behalf, representing GILROY at regional meetings, and responding to queries from GILROY staff on a variety of environmental programs.
7
Staff (50% FTE}
Indirect Service Charges
Training
Cell Phone
Mileage Reimbursement
Total Half Time Staff
Management Staff (12% FTE)
Indirect Service Charges
Total Management
EXHIBIT B
COST ESTIMATE
14-15* 15-16
$25,154 $62,886
$674 $1,684
$200 $500
$72 $180
$100 $250
$26,200 $65,500
$27,504 $28,355
$736 $759
$28,241 $29,114
16-17 17-18 18-19
$68,011 $73,554 $79,549
$1,821 $1,970 $2,130
$500 $500 $500
$180 $180 $180
$250 $250 $250
$70,762 $76,454 $82,609
$29,206 $30,082 $30,984
$782 $805 $829
$29,987 $30,887 $31,814
Total $54,441 $94,614 $100,750 $107,341 $114,423
* costs for 14/15 are estimated for 40% of the fiscal year for the staff position and 100% of the fiscal year for the management position 8
11 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Mario Jimenez, Associate Engineer
APPROVED BY: City Manager
APPROVE FINAL MAP FOR APPLE TREE - TRACT NO. 10523 AND
RELATED SUBDIVISION IMPROVEMENTS AGREEMENT
RECOMMENDATION(S)
1. Approve the Final Map;
2. Authorize the City Manager to execute the Subdivision Improvements Agreement with 18755 OLD MONTEREY LLC, a California Limited Liability Company; and
3. Authorize the recordation of the Final 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:
Apple Tree – Tract 10523 is a six (6) lot residential subdivision on a 1.13 Acre site located on the Southwest corner of Old Monterey Road and Mustard Avenue (see attached Site Map).
The Developer, 18755 OLD MONTEREY LLC, has completed all the conditions specified by the Planning Commission in the approval of the project’s Tentative Map on June 11, 2019, and the Council’s approval of the project’s Design Review Permit on October 8, 2019. 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 Map.
The Developer has furnished the City with the necessary documents to complete the processing of the Final Map and has made provisions to provide the City with the required fees, security, and insurance prior to recordation of the Final Map. The Final
11 Map conforms to the requirements of the Subdivision Map Act, and conditions of approval have been met. Staff recommends that City Council approve the Final 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 11, 2019, the Planning Commission approved the project’s Tentative Map.
Residents within a 300 feet radius were informed of the Planning Commission’s intent to approve the Tentative Map for the project, in which a public hearing was held to allow the public to be involved and voice their concerns over Tentative Map requirements.
On October 8, 2019, Planning staff presented the project’s Design Review permit request to the City Council. In addition, residents within a 300 feet radius were informed of the City Council’s intent to approve the Design Review Permit for the project, in which another public hearing was held.
ALTERNATIVE ACTIONS:
There is no feasible alternative action as the Developer has met the requirements of the Tentative Map conditions approved by the Planning Commission to file for a Final Map approval.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
June 11, 2019 – Planning Commission adopted Resolution No. 19-06, approving the Tentative Map for the project and Resolution No. 19-07 recommending approval of the Development Agreement (DA2018-0001) to the City Council.
September 18, 2019 – City Council adopted Ord. No. 2303, approving the Development Agreement (DA2018-001)
August 4, 2021 – City Council adopted Ord. No. 2324, approving the amendments to the Development Agreement (DA2018-0001)
FISCAL AND RESOURCE IMPACT:
Development review costs for this project are paid for from development processing fees.
CEQA (California Environmental Quality Act):
The project is Categorical Exempt from CEQA and meets the criteria for class 15332 – In-Fill Development exemption. A CEQA Categorical Exemption Memorandum has been prepared and adopted for the project.
County of Santa
O
0 75 150 300 450 600
Feet
SITE MAP
APPLE TREE TRACT 10523
Land Development Department
Engineering and Utilities Division
TRACT 10523
Document Path: G:\R-14\PROJ\GIS\John\Mario_Tract 10523.mxd
12 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Michael Horta, Human Resources Director
APPROVED BY: City Manager
APPROVE FOURTH AMENDMENT TO AGREEMENT WITH
INNOVATIVE CLAIMS SOLUTIONS, INC.
RECOMMENDATION(S)
Authorize the City Manager to execute and administer a Fourth Amendment to Agreement with Innovative Claims Solutions, Inc. to provide third party claims administration for workers’ compensation extending the agreement for one additional year of service at annual amount of $34,380, for a new total contract amount of $240,980 over 7 years.
Estimated Time:
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Preserving and Cultivating Public Trust
2022-2023 Strategic Priorities
Fiscal Sustainability
REPORT NARRATIVE:
The current agreement with Innovative Claim Solutions (ICS) has been in effect since June 2016. During this time, ICS has administered several lengthy and complex workers’ compensation case settlements that resulted in City Council review and approval. ICS has expended significant resources and continues to educate and inform Human Resources, departmental workers’ compensation liaisons, and the City Attorney on the particular workers’ compensation cases, as well as the general aspects of workers’ compensation and case law. In early 2016, staff conducted a joint Request For Proposal (RFP) with the City of Gilroy for such services, through which ICS was selected as the most qualified firm to provide the services. ICS was also the lowest overall cost as a result of the RFP. ICS has offered to provide its services for an additional year without an increase to their current fees. The City plans on conducting another RFP within the fiscal year. Therefore, staff recommends that Council approve the Fourth Amendment to Agreement, increasing the contract amount by $34,380 to a revised not to exceed amount of $240,980.
12 COMMUNITY ENGAGEMENT:
Inform
This report serves to inform the community of the recommended fourth amendment to the agreement.
ALTERNATIVE ACTIONS:
The Council could choose not to approve the fourth amendment to the agreement with ICS and direct staff to conduct an RFP or consider a different third-party administrator for workers’ compensation in the interim.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The Council approved the City’s current agreement with ICS on May 18, 2016, as well as subsequent amendments.
FISCAL AND RESOURCE IMPACT:
The fourth amendment to the agreement would increase the compensation by $34,380 over one year. Costs for these services are budgeted and paid from the Workers’ Compensation Fund (770) (GL#:770.8220.42231).
CEQA (California Environmental Quality Act):
This is an administrative action that will not result in physical changes in the environment.
1 FOURTH AMENDMENT TO AGREEMENT
INNOVATIVE CLAIMS SOLUTIONS, INC.
This FOURTH AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and INNOVATIVE CLAIMS SOLUTIONS, INC., a California Corporation ("CONSULTANT").
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Fourth Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on ___________, ____, 20___.
2. The CITY and CONSULTANT entered into that “Consultant Agreement” made as of June 14, 2016, for consultant services for a maximum compensation of Sixty-Nine Thousand Eighty and no/100 dollars ($69,080.00) (“CONSULTANT AGREEMENT”).
3. The CITY and CONSULTANT entered into a “First Amendment to Agreement” made as of June 7, 2018, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to One Hundred Three Thousand Four Hundred Sixty and no/100 dollars ($103,460.00).
4. The CITY and CONSULTANT entered into a “Second Amendment to Agreement” made as of November 14, 2019, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to One Hundred Seventy-Two Thousand Two Hundred Twenty and no/100 dollars ($172,220.00).
5. The CITY and CONSULTANT entered into a “Third Amendment to Agreement” made as of June 29, 2021, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to Two Hundred Six Thousand Six Hundred and no/100 dollars ($206,600.00). The CONSULTANT AGREEMENT, and the First, Second and Third Amendments thereto are attached as Exhibit “1” to this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments: All terms and conditions of the CONSULTANT 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 June 14, 2016, until June 30, 2023."
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 TWO HUNDRED FORTY THOUSAND NINE HUNDRED EIGHTY AND NO/100 DOLLARS ($240,980.00) and shall be billed based on the rate and basis set forth in revised Exhibit B dated March 28, 2022.
2 2. Conflicts. In the event of a conflict between the terms and provisions of this Fourth Amendment to Agreement and the terms and provisions of the CONSULTANT AGREEMENT or any earlier amendment, the terms of this Fourth Amendment to Agreement shall govern and control.
TWO SIGNATURES ARE REQUIRED FOR CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
ATTEST: CITY OF MORGAN HILL
Michelle Bigelow, City Clerk Christina J. Turner, City Manager Date: Date:
APPROVED AS TO FORM:
Donald A. Larkin, City Attorney
INNOVATIVE CLAIMS SOLUTIONS, INC.
By:
By:
Date: Title:
Date:
Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
By:
Title:
Date:
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Dan Greco, VP of Client Services
4/4/22
Pete Stephens, CFO
4/4/22
DocuSign Envelope ID: G6A64AF2- 923F- 48EF- B101- E012466FOBA7 EXHIBIT 1
THIRD AMENDMENT TO AGREEMENT
INNOVATIVE CLAIMS SOLUTIONS, INC.
6/ 29/
AMENDMENT TO AGREEMENT is entered into and becomes effective on Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, CITY") and INNOVATIVE CLAIMS SOLUTIONS, INC., a California Corporation (" CONSULTANT").
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Third Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on June , 23 , 20 21 .
2. The CITY and CONSULTANT entered into that "Consultant Agreement" made as of June 14, 2016, for consultant services for a maximum compensation of Sixty -Nine Thousand Eighty and no/ 100 dollars 69,080. 00) (" CONSULTANT AGREEMENT").
3. The CITY and CONSULTANT entered into a " First Amendment to Agreement" made as of June 7, 2018, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to One Hundred Three Thousand Four Hundred Sixty and no/ 100 dollars ($ 103,460.00).
4. The CITY and CONSULTANT entered into a " Second Amendment to Agreement" made as of November 14, 2019, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to One Hundred Seventy -Two Thousand Two Hundred Twenty and no/ 100 dollars ($ 172, 220. 00). The CONSULTANT AGREEMENT, and the First, Second and Third Amendments thereto are attached as Exhibit 1" to this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments: All terms and conditions of the CONSULTANT 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 June 14, 2016, until June 30, 2022."
B. Rates as described in Exhibit B dated May 22, 2019, are continued in place through June 30, 2022.
C. 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
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 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." D. Paragraph 9 shall be amended and replaced in its entirety by the following to correct reference from SERVICE PROVIDER to CONSULTANT:
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 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
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B1O1- E012466FOBA7 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." Signatures on the Next Page
3
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
2. Conflicts. In the event of a conflict between the terms and provisions of this Third Amendment to Agreement and the terms and provisions of the CONSULTANT AGREEMENT or any earlier amendment, the terms of this Third Amendment to Agreement shall govern and control.
TWO SIGNATURES ARE REQUIRED FOR CORPORATIONS:
1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND 2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
ATTEST:
ED 5' g ed by:
11' 6,,4.'
N' skteioBlow, City Clerk
Date: 6/ 29/ 2021
APPROVED AS TO FORM:
Donald A. Larkin, City Attorney
Docuftned by:
BY: 061ma lw
45EM273EA2464—
Date: 6/ 24/ 2021
4 CITY OF MORGAN HILL
D— Signed by:
C • iw54424<Turner, City Manager
Date: 6/ 29/ 2021
INNOVAT VE C WS SOLUTIONS, INC.
U
1 f'
By: G4,)eq 1
wrs i ' vr 0
Title: R , r -E' S j/ J - ' r 0
Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
Dates . (' t Z4---C'D Y
QO-i r t r'L rc h 1 Ivy, kl
Title: . Pres 1 Um-T- +- U G
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: ( o 3 / 2 0 L (
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7 EXHIBIT 1
I Z — I _ U5 3
SECOND AMENDMENT TO AGREEMENT
INNOVATIVE CLAIMS SOLUTIONS, INC.
T is SECOND AMENDMENT TO AGREEMENT is entered into and becomes effective on Effective Date), CI ") by THE CITY OF MORGAN HILL, a municipal corporation, and INNOVATIVE CLAIMS SOLUTIONS, INC., a California Corporation ("CONSULTANT"),
RECITALS
TheThe following recitals are a substantive part of this Agreement:
1. CouncilThis takenSecond on _..) Amendment to i
to Agreement is entered into pursuant to the action of the Morgan Hill City 212, 20
2. The CITY and CONSULTANT entered into that -"Consultant Agreement" made as of June 14, 2016, for DOLLARS ($ consultant69,services 080.00) (" for a maximum compensation of SIXTY-NINE THOUSAND EIGHTY AND NO/ 100 CONSULTANT AGREEMENT").
3. The CITY and CONSULTANT entered into a " First Amendment to Agreement' made as of June 7, 2018, under which the maximum compensation under the CONSULTANT AGREEMENT, as amended, was increased to ONE HUNDRED THREE THOUSAND FOUR HUNDRED SIXTY AND NO1100 DOLLARS 103,460.00). The CONSULTANT AGREEMENT and the First Amendment thereto are attached as Exhibit 1" to this Agreement.
AGREEMEM
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments:
attached as Exhibit " 1," All terms and conditions of the CONSULTANT AGREEMENT, as amendedas made as set forth below: shall remain in full force and effect; except that the following amendments shal, I be A. Paragraph 2 shall be amended and replaced in its entirety by the following:
June 2. Term14, 2016, of Agreement. until June 30, 2021." This Agreement shall be effective and cover services rendered from B. Effective July 1, 2019, CONSULTANT' S billing rates are set forth in the revised Exhibit " B" dated May 22, 2019, approved by CITY and attached hereto and incorporated herein by this reference. 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 SEVENTY- TWO THOUSAND TWO HUNDRED TWENTY AND NO/ 100 DOLLARS ($ 172, 220. 00) and shall be billed based on the rate and basis set forth in Exhibit B.
DocuSign Envelope ID: C6A64AF2- 923F-48EF- 8101- EO12466FOBA7 C. Paragraph 5 shall be amended and replaced in its entirety by the following:
i 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 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 i authorized to terminate this AGREEMENT, in whole or in part, on behalf of CITY.
F
D. Paragraph 7. 2. 2 shall be amended and replaced in its entirety by the following:
l
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.
2
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
2. Conflicts_ In the event of a conflict between the terms and provisions of this Second Amendment to Agreement and the terms and provisions of the CONSULTANT AGREEMENT or any earlier amendment, the terms of this Second Amendment to Agreement shall govem and control.
TWO SIGNATURES ARE REQUIRED FOR CORPORATIONS:
1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND 2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER,
ATTIE CITY OF M G
le Bige. f
w, Dep City Clerk Christina J. Tu er, Mana gr
Date: j Date: l 111- I Pi
APPROVED AS TO FORM:
D Wald A. Larkin, C' Attorney
Date: ) 0- TY) q
INNOVATIVE CLAI SOLUTIONS, INC.
By:
Title:, r
Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
Da
By: ;
Title:
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: G . , 2 ` \Q
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
REVISED EXHIBIT B
INNOVATIVE CLAIMS SOLUTIONS, INC. — SECOND AMENDMENT TO AGREEMENT MAY 22, 2019
City shall pay CONSULTANT:
1. An annualized fee of $34, 380 for the period of July 1, 2019 —June 30, 2020; and
2. an annualized fee of $34, 380 for the period of July 1, 2020 — June 30, 2021.
The payments will be made in equal monthly installments of $2,865.00. 4
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 IZ- ol- I( D- oS-s
EXHIBIT " 1"
FIRST AMENDMEMT TO AGREEMENT
INNOVATIVE CLAIPAS SOLUTIONS, INC.
t This FIRST AMENOMj- 14T TO AGREEMENT is entered into and becomes effective on Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, (" CIT."
CONSULTANT"). ) and, INNOVATIVE CLAIMS SOLUTIONS, INC., a California corporation
RECITALS
The following recitals are a substantive part of this Agreement:
1. This First Amendment to Agreement is entered into pursuant to the action of the Morgan Hili City Council taken on May 18, 2016.
2. The CITY and CONSULTANT entered into that "Consultant Agreement" made as of June 14, 2016, for consultant services for a maximum compensation of SIXTY-NINE ' THOUSAND EIGHTY AND NO/ 100 DOLLARS ($ 69,080. 00) (" CONSULTANT AGREEMENT"). The CONSULTANT AGREEMENT is attached as Exhibit " 1" to this Agreement.
AGREEMEWT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
I. Amendments: All terms and conditions of the CONSULTANT 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 coder services rendered from June 14, 2016, until June 30, 2018."
B. Paragraph 4. 1 shall be amended and replaced in its entirety by the following
4. 1. Amount. Compensation underthis Agreement shall not exceed ONE HUNDRED THREE THOUSAND FOUR HUNDRED SIXTY AND N01100 DOLLARS
103,460.00) and shall be bitted based on the rate and basis set forth in the revised Exhibit B dated May 17, 2016, attached hereto and incorporated herein by this reference" C. Paragraph 8 shall be amended and replaced in its entirety by the following:
9. " Comoliance with Law.
9. 1 SERVICE PROVIDED 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
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B1O1- EO12466FOBA7 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.. 92 Without limiting , the provisions of Section 90. 1 above, each worker Perform ing Work under this Agree`me0t shail.,be paid at a rate not less than the Prevailing image as defined in Sections 1771 and 1774 of the Labor Code. The - prevailing wage rates are available online at htlpaf/vvWw. dncca gov/dlsr. 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 ++corker the difference between the applicable prevailing wage rate and the .amount actually paid to that worker.
9. 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. Under Labor Code section 1771. 4, this Agreement is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.
9.4 Compliance with Wage and Hour Laws: SERVICE PROVIDER, and any allapplicable
employss to complete
orkuder this, Agreement, shall comply with p ys
and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code. agencies
Standards
exhausted
Final Judgments,
include:
Enforcement,
decision,
or.the time the
Decisions,
or
federal to
order"
appeal
or any
Department
and
raters
other
has
Orders:
expired.
governmental
to
of
one
For
Labor, Relevant
for
purposesof
which
the
entity
California investigatory
all
or
this
appeals
division
Division
Section,
government
tasked
have
of
a "
Labor
been f
with
the investigation and enforcement of wage and hour laws.
Prior Judgments against SERVICE PROVIDER andlor 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.
DocuSign Envelope ID: C6A64AF2- 923F-48EF- B101- EO12466FOBA7 Judgments or Pecisions During Term of Contract: Ifat 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 iwork under, this Agreement has violated any, applicablewage and'hour law, or SERVICI= PROVIDERIeams ofSuCh 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 i
i 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 foal judgrnenf, decision dr:
order. CITY resenies the right to require "SERVICE PROVIDER to enter into an agreement with CITY regarding the manner in which any such final judgment, i decision, or order will be. satisfied.
City's Right to Withhold Payment: Where SERVICE PROVIDER or any subcontractor it employs to perform work underthis Agreement has been found in violation of any applicable wage and hour law bya final judgment, e 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 fin full.
Material Breach: Failure to comply with any pari 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 95087. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section."
Signatures on Naw Page]
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7
2. Confltecte. In the event of a conflict tietwiwin the tams and provisions of this First Amendment to Agreement and the terms and provisions of the CONSULTANT, the terms of this First Amendment to Agreement shall govern and control.
TWO SIGNATURES ARE REQUIRED FOR CORPORATIONS:
1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT, MD 2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
A. T: CITY OF O7GAN HILL
MPI II Date: Ol /
i/ City
11 : - 7/ Date:
APPROVED AS TO FORM: INNOVA iVE CLAIMS SOL TION INC.
Attorney by: 1 Date:
Jam- — 1 ' Title: P 7r v'! J 1+ 7 5
If Corporate: Chairman, President or
Vice President
Date:
Print Name and Title of Signer.
If Corporate: Secretary. Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: S - 2,1 - 20 t IPage 302 of 492
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
REVISED EXHIBIT B
INNOVATIVE CLAIMS SOLUTIONS, INC. - FIRST AMENDMENT TO AGREEMENT MAY 17, 2018
City shall pay CONSULTANT an annualized fee of $34,360 for the period of July 1, 2018 — June 30, 2019, and payments %MMI be made in equal monthly installments of $2,665.00. 5
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 EXHIBIT 9111T
C094OULTAMV AGREEMENT
Innovalve Clare Solueions, Inc.
THIS and becomes effective on ' ( Effective Date),
Solutions,
D
ILL, a n unci al cp ora;ion, ) y P rP (" CITY" , and Innovative claws rp ( I1i±aULTi4NT j hereinafter referred to co,llectivety as "Perlles. p in consideration of ;the promises and the muiuel covenants contalned in tfils Agreement, the P+ehiea egree es follows:
1. 01tv Authorit . This Agreement Is entarred Into pursuant to action of the Morgan Rill City Council taken on , . lj_,
JIL. 24 LIZ
2 Term of Aareamentr: This Agreement shall cover services rendered froom the Efactive Date of this Agneement' UlJtii June 30,' 2018 at which time CONSULTANTS services & all be compfated. The City Manager is autlorized fit eirtend the term of this Agreement for a maximum period of ane year. Any such extension shall be in writing and signed by both Parties this Agreement. 3 Scone of Seryiee. The services to be performed by CONSULTANT shall be worMrs compensation claims administration pt further described in ExlhibK A.
4. Conipensation. CONSULTANT snail be compensated es folto",
4. 1. Amount. $ 69 08000. Tota! compensation to CONSULTM9 under this Agreeinent. during Its Initial term set "forth in Section 2' above shall not -exceed sixty nine thousand 'slghly° dollars and shall be. billed based 'on the rate and bells. set forth in Euhlbit B: If the. t; ity Manager extends the term of this Agnement for up to one year pursuant to the provisions of Section 2 City ger shall have the authority to increase the maximum compensation above, the Ci NAana allovued to be paid to CONSULTANT during that exsended term period, so long- as City Council has appropriated sufficient funds therefor, the OMies..mutually agree to such amount In, a writing signed by both Parties to tMs Agreement and provided further that in no event shall such maximum compensation allowed during tie® extended -term period eiiceed an additional five percent ( 5%) above the compenestion allowed to be paid to CONSULTANT during the initial term of this Agreement..
4. 2. ail. ling. CONSULTANT shall provide CITY with a monthly invoice containing the dated, detalled, and itemized descriptions, of all services performed and expenses incurred (if such expenses are reimbursable pursuant to Enhibit C) by CONSULTANT. 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 hcurty rate, the minimum unit of billed time ahmrll not eucsed one tenth of ora hour. CITY shijil pay for = Mm and expenses ( if so provided in F4A1bIt' 3) up to the omit of compensation set forth above that in the CITY' s judgment were necessary and reasonable. Services for -work perform"ed and expenses incumsd In excess * 2 the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.
5. Terrnihatioh. Ci7Y or CONSULTANT shall have the right to terminale this Agreement, without cause, by giving thirty (30) days' written notice or less.under urgent circumstances. Upon such terminatipn, CONSULTANT shall submit to CITY an itemized statement of services performed for,which compensation has not been paid. CITY may require CONSULTANT to complete cerialn work product or documents and CONSULTANT shalt deliv®r to CITY all documents in itz pow Sion without additional compensation to
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7 8 CONSULTANT. The CITY Manager of CITY Is authorized to terminate thin AGREEMENT on behalf of CiTY.
6. performance ' of W.6i.1c, CONSULTANT represents that it 1s qualified by :Virtue of experience, training, education, end eupertise `to accomplish these services: Sen ices shall be performed by CONSULTAtiTT in accordance: wtn :professional •practices in a manner consistent with a level of care, competence and skill exercised by `qualified hrembers° of the CONSt1LTANT' S' profession. By dejivery .of completed work; CONSULTANT cerllflas that the work conforms to•the "regriirements of'this Agreetnenf and all applicable federal, state and local taws: If CONSULTANT desires to leave or stare any of CONSULTANIT's equipment at a CIN site While CONSULTANT`is,pe forming work or service pursuant to this Agreement, CONSULTANT will first obtain the consant of CITY's °City Manager, or his delegate, to do so, and any such std°rage, shall odour only in the manner and' location allowed by such CiTY official and entirely at CONSULTANTts sole risk.
7. insurance Requirements. CONSULTANT shall procure and provide proof of to Insurance coverage recjuired by this section in the form of certificates and endorsements.; The required Insurance must COVET the activities of CONSULTANT, including its , subcontractors, relating to or arising from ' the performance of any vyork or ,service indor this Agreement, and must remain in full force and 'effect at all times during tho period covered by this Aareernent. The coverages may ba arra3nged provided
for
by
the
excess
frdi ilriits
or "
requirod umbrellas" or by
poiiclea,
a combination
prwIded
of
00ch
underiying
ouch" policy
policies
compiles
Withunder the
with
abalance s
the
requirements set forth herein CONSULTANT further undpratends that the CITY rtiaserves the right to modify the insurance aequtremem¢ s set $oe4h herein, with thirty ( 30) days' notice provided to L CONSULTANT, at any time as doomed necessary to protect tlrea interests of the CITY.
7. 1. Insurance Types:end Amounts:
7. 1. 1. iCon n erciai General Liability fGGLI. CONSULTANT shall maintain CGL against claims and liabilities for personal injury, death, orproperty damage providing protection in the minimum amount of (i) one million doliais ($ 1, x00, 000. 00) for bodily injury or death to any one person -for any onii' accident or occurrence and at least one million doffrs (; 1; 9, 000,000.00) for property damage, or (i) the maximum amount of such insurance available to . CONSULTANT under CONSULTANT's combined insurance policies (including any excess or °umb Ila" policies), whichever is greater.
7. 1. 2. Automobile .Liability. CONSULTANT st>gll maintain Automobile Limbitity covering all ownzd, nor-onm W and hind automoialles ( U CONSULTANT does not own automobiles, then CONSULTANT shall maintain Hired/ Non- owned Automobile Liability) against claims and Ilabilittes for, p final 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, 60D,000.00) for property damage, or ( ti) the maximum amount of such Insurance available to . CONSULTANT under CONSULTANVs combined Insurance policies:( including any excess or °umbrella° poticiea), whichever is greater.
7.1. 3. Woflcerg' Compensation Insurance and EmMover' s Liability. CONSULTANT shall maintain 1Norkers Compensation oovenage, las required by lava, in the minimum amount of (I) one rnlBion dollars ($ 1, 000,000.00) for any one accident or occurrence, or ( Ii) the mm ilmum amount of such insurance w aftle to CONSULTAUT cruder CONSULTAiVIT' s combined insurance pollclas ( including any encase or ° umbrella°
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 policies), whichever is greater. If CONSULTANT is self -Insured, CONSULTANT shall provide its Certificate of Permission to Self -Insure, duly autitwftd by the Department or Industrial Relations.
7. 1. 4. Pollution fEnvironmental) Liability: If the performances of CONSULTANT' S work or service under this Agraremenl Involves hazardous moterials, contaminated still disposal, anti/ora risk of accldental release of fuel oil, chemicals or other toxic gaseir or hazardous materials, COidSULTANT shall procure and maintain Pollution Liability covering the oonbaactoes liability for bodily injury, property damage and environmental damage resulting from pollrflion and related cleanup costs arising out of the wwk or services to be performed under this Agreement. Coverage shah be provided for bath work performed on site, as well as during thra transport of hazardous materials. Such coverage shall 'be in the minimum amount of ( 1) one million ;dollars ($ 1, 00n, o00. 00) for any one accident of occurrence, or ( II) the rnax mum amount of such ihsurance available to CONSULTANT under CONSULTANT% combined insurance policies including any excess or "umbrella" polEdes), whichever is greater.
7. 1. 5. Professional Liability.
7. 1. 5. 1. If the pa armsince of CONSULTANT' S work or service under this Agreement involves professional and/or technical services ( examples include, but are not limited to, architectk engineers, land asurvayors, and appraisers), CONSULTANT shall procure and maintain either aamclaims macde or occurrence Smogs and Omission liability insurance In ft minimum ount of C) one million dollars ($ 1, 000, 000. 00) each clahn, or { ii) the maximum amount of such insurance available to CONSULTANT under CONSULTARrs 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 twat five ( 5) years after the completion of work performed under. this Agreement.
7. 1. 5.2. tf the perk mranoo of CONSULTANT' s work or service under this Agreement relates to information Technology or related setvicM ( examples include, but are not limited to computer programmers, hlardware englnrurs, or other systems consultants), CONSULTANT shall procure and maintain a claims ms.dae Errors and Omission habiltty insurance, Including Cyber Liability and Data Smach, in the minimum amount of.. (i) one million dollars ($ 1, 000,000.00) each claim, or ( il) the maximum amount of such Insurance evallable to CONSULTANT under CONSULTANT's combined Insurance policies ( Including any excess or " umbralls" policies), whiehaver Is greater:
7. 1. 5. 3. If the perfomrance of CONSULTAi!! T's work or service under this Agreement involves contract with minors, CONSULTANT ahall procure and maintain Sexual Abuse and Molestation insurance In the minimum amma t of (i) one million dollars ($ 1, 000,000.00) each c bIm, or (II) the maximum amount of such insurance available to CONSULTANT under CONSULTANT' s combined insurance poems Including arty exons or °umbrella" polides), whichaever is greater.
7.2, Sndoraements. CONSULTANT shall provide proof of the following andomements, listed for each policy for which endorsements ere required, as outlined below:
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7
7.2. 1. General 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 addition Insureds,
7.2-.1. 2. the insurer waives the right of subrogatlon against the City of Morgan Hill land the CITY' S elected, or appointed 00 , boards, agencies, afttcers, ager+ts, employees, and volunteelrs;, and,
72. 1. 3. Insurance shall be primary non- contributing.
7.22. UVorkers Compensation.
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:
7. 3. Pa6lification of Insurers. All insurance required pursuant to this Agreement must be issued by a company licensed and admitted, or othsrwiae legally authorized to carry out insurance business in the State of California, and each Insurer must have a current A.M. BssVe financial strength rating of "A" or better and an financial size rating of" Uil" or better.
7.4. Certificates. CONSULTANT shaWfurnish CITY of Morgan Bill with copies of all policies or certificates, as outlined herein, whether new or modified, promptly upon receipt. No policy subject to' the CONSOLTANTs agreement with the CITY shall be canceled or materially changed except alter 1hirty.( 30) da3yW notice 6y the insurer to CITY. Certificates, including renewal certificates, may be mailed electronically to 1gncpnt anortaanhilLCaaloi, or delivered to the Cartificate bolder address provided' herein Cartificats Folder arsddrecs:
City of Morgan Hill
Attn: Risk Manopment
17575 Peat: Avenue
Morgan Hill, CA 9503T
B. Non -Liability of Officials and EmptOVees of the CITY, No offici>ai or employee of CITY shall be personally Cable for any'default or liability under This Agreement.
9. Compliance With Law. CONSULTANT and its oFfii errs, employees, agents, and subcontractors shall comply with of applicable laws, ordinances, administrative regulations, and permftting 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, martial status, age, sexual orientation, national otigid, mental disability, physical disability, medical condition, or anoestry, in any activity pursuant to this Agreetneni%
10. Independent - Contractor. CONSULTANT Is an independent icontreder and not an agent or employee of CITY.
4
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
11. Confidentiality. All data, .documents, or other information recalved by CONSULTANT from CITY or prepared in connection with CONSULTANT' S seniioes under this Agreement are desrnad confidential and shall not be disclosed to any third party by CONSULTANT without prior written consent by CITY.
12. Conflict of;Interest °and k0ortinsa. CONSULTANT shah at all times avoid conflict of interest or appearance of conflict of interest In Worrmance of this AgresmenL 13, Notices. All notices shall be personally delivered or mallsd, via first class mail to the below listed address. These addresses shall be used for delivery of service of process. Nation shall be effective five (5) days after date of mating, or upon date of personal delivery.
Address of CONSULTANT is as follows:
Innovative Claims Solutions, Inc.
P.O. Sox 5128
San Ramon, CA 94583
Address of CITY Is as follomt
Human Resources with a copy to:
City of Morgan HID City Clark
17575 Peels Avenue City of Morgan Hill
Morgan HID, CA 05037 17575 Pack Avenus
Morgan HDI, CA 86037
14. Licenses, Perrnits 2ndf6es. CONSULTANT shat obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes and regulations of the federal, aW.te and local gpvarnmprit.
15. Maintenance of Roe rds.
Maintenance. CONSULTANT shall prepare, maintain, and preserve all reports and re= ds that may be required by federal, state, and CITY rules and ordinances relded to services Provided under this Agreement. CONSULTANT shall maintain records for a period of at least 3 years after receipt of final payntesrrt under this Agreement If any litigation, claim, negotiation, audit omption, or other action relating to this AgWmaent is pending at the end of the 3 year period, & hen CQNSULTANT shall retain said arec: orde until such : action is resolved.
15. 2. Access to and Audit of Records. The CITY shall have the right to ini amiss, monitor and audit all records, documents, aondltions, and aclMliss of the CONSULTANT end its subcontractors related to services under this Agreemord. Pursauaant to Government code Section 8645.7, if IND Agreement involves the expenditure of public funds in excess of 10,000, the Parties to this Agreement may be subject, aft the request of `the CITY or as pad of any audit, of the CITY, to the examinatlon and audit of the Skate Auditor pertaelhing to matters connected vAh the performance of this Agreement for a period of three years after final payment under the Agreement.
15. 3. Ownership . of Work product. All doc um®nts or othsar information developed or received by CONSULTANT for work performed under this Agreement shall be the property of CITY.
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7 CONSULTANT shall provide CITY with copies of these items upon demand or upon termination of this Agreement
16. FaWili th `.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; arid' (3) It understands the difFir+clllties antl restriGtlons 'of the wont under this Agreement.
Should CONSULTANT sliscovor: any .conditions materially differing from time inherent in the work or as represented, by CITY; it. sfiall immediately inform CITY and shall not proceed, except et CONSULTANT'S risk, untilwritten instructions are receivedYrotti CITY.
I
i 17. Timo of Essence. Time is of the essence in the performance of this Agreement.
10. 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 he void and, at'CITY' s option, shall terminate" this Agreement affective as of the date of such atterOpted asslgnrn t.
19. 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.
i
i
20. Defense and Indemnification.
20. 1. Defense and indemnification. CONSULTANT shall, to the fullest eadent permitted by law, inde= fy, ass CiTY. its elected or ,appointed officials, boards, agencies, 7 officers, ffliabilitiesis , agents, employees, and volunteers (' INDEMNITEES") from and against any and all claims; ages 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 for the `failure .to comply with any obligations contained in this Agreement by CONSULTANT, and/ or its agents, officers, 'employees, i
subcoritractors, or independent contractors (" CLAIM'').
20.2: 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 arisjng from the sole negligence or willful misconduct of the CITY. 20, 3. Not limited by insurance. The indemnity, defense and hold harmless provisions of this i I Agreement apply to allCLAiNIs alleged against an INDEMNITEE, regardless of whether any M insurance policies are applicable. Policy limits do not act as a Ilmitation upon the amount of indemnification or defense to be provided by CONSULTANT.
20.4. Riaht 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 CONSOLTANTs failure to pay CITY promptly any indemnification arising under this Section (20) and s any amount due CITY from CONSULTANT arising from CONSULTANTS failure either to ( 1) pay j taxes on amounts received pursuant to this Agreement or ( ii) comply with appllcable workers' compensation lawns.
4 f
20; 5. Interoretation. This Section shall constitute an agreement or contract of indemnity; incorporating the interpretations under California Civil Code Sectlon 2778. It is expressly understood and agreed that the obligation of the CONSULTANT to indemnify the INDEMNITEE shall
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 be as broad and inclusive as permitted by the laws of the State of Catifomis and $ hail survive termination of this Agreement.
21. Entire Anreernent; Modification; Conflicting Provisions. This Agreement constitutes the entire Agreement between theParties and supersedes any previous agreements, ora) or written. This Agreement may be modified or provisions waived only by a subsequent, mutual written agreement executed .by CITY and .CONStlLTAiVT If the previsions contained in the main ,body of this Agreement conflict with any provision contained In an exhibit b this Agresrn®nt, the provisibns ofthe main body of this, Agreement shall govern and coMmi over any provision contained In an exhibit to ihis AgreemOnt.
22. Goverhing Law and Venue. This Agreement shall be construed in accordance with the laws of the ttate of California. This Agreement ;was entered into and is to be performed in the County of Santa Clara.
An action or dis Ute arisln out of this Agreement shall only be brought in Santa Clara County, 23, interpretation. This Agreement Is a negotiated document and shall be deemed to have been drafted joii tly' by the Parties, and no rule of coristruction or interpretation shall apply ,against any particular Party based, on a contention that the Agreement Was drafted by one of the Parties lrncluding,' but not limited to, California Civil Code § ' ifi54, the provisions of which ' are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
24. 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 nest of the Agreement shall remain in fup force and effect•and shall in no way be affected orinvalidated, bind an and all uccessore in
legal reresentatives and/
V ermittedgAgreement shall
25. Bindin Agreement, Notwithstanding provisions this
p gnees or y 13 p
transferees of CONSULTANT in the some manner as If those successors in interest, legal representatives or other permitted aesignsera or transfrems had entered into this Agreement originally.. i
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- EO12466FOBA7
6. Authoribi to Execute. Those individuals who are signing this Agreement on behalf of entities represent and warrant that they are, respegLUvely, duly authorizedtosign on behalf of the entities and to bind the "entities fully to each and all' of -the obligations set forth in this Agreemeni.
IN 'IffiTHESS THEREOF, these Parties have executed this Agmement on the day and year shown below, AS SET FORTH, IN CA. CORP. CODE g 313, TWO SIGNATURES ARE REQUIRED FOR CALIFORNIA CORPORATIONS:
1 ) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND i ( 2) SEGRETAlRY,, ASSISTANT SECRETARY, CHIEF FINANCIAL_ OFFICER OR ASSISTANT i TREASURER ATFES ,:
AInn. f-.
Ci y Cl ik/, '
City Clerl:
l'tU ichelle Wilson
Print Name
Date: 4; Jbe.
APPROVED AS TO FORM:
k
1 V
rim City Attot in y
Gary Baum
Print Name
o 14lI o
CITY OF MORGAN HILL
City Mat ger
Steve
Date: 4.11
cry,
v- C r C Mks l-' cM
Title: rCS i der2 1 coo
Print Name and Title of Signer,
If Corporate: Chairman, Progdettt or
Vice PresidenA
Date: g p
aVAA w
Title: r5 L dxwt 4 G to
Print blame and Title of Signer.--"
IF Corporate: Secretary, Assistant
Secretary. Chief Financial Qificsr or
Assistant Treasurer
Date: - q h e.
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7
F-WHODIT A
SIdCPE OF SERVECES
f
Claims Administration. ICS shall adhere to the foilowing ciraims administration standards and procedures,
1. ICS shall review and process reported claims for wrorhors' compensation benefits that have not been dosed as of the Effective Date of this Agreement and closed claims that reopen on or after the Effective Date. ICS shall have no responsibility other then custody of files and statistical reporting for claims closed prior to the ERadve Daae.
2. Determine liability for claimed Injuries and Illnesses in accordance vdth California Workers' Compensation taws.
S. Review and process all claims in accordance with ruin and regulations established by the Division of industrial Relations, Department of SelfInsurance plans,
4. Establish files containing medical and factual information on each reported claim bae%w with complete accounting records and maintain same in accordance 1 vitt statutory time requirements.
S. ICS shall make all workers compensation disability payments and send all notices in a timely and accurate manner and in conformance in all material respects with all applicable provisions ofthe California Gabor Code and the California wrorkers' compensation laws, rules and regulations.
S. Determine nature and extent of permanent disability and ®mange for informal disability rating whenever possible to avoid Wolters' Compensation Appeals Board litigation.
Explain to and assist employee in completing necessary firms for permanent disabiliity ratings.
S. Review cornpute and pay all informal rating, findings and awards, life pensions or compromise and release settlements.
9. Maintain and establish reserve estimates for each reported claim.
10. Arrange for and supervise all necessary investigations to determine eligibility for compensation benefits and/or liability of negligent, third parties.
11. identify, recommend and obtain special fraud investigations atter obtaining advance authority from the CLIENT.
12. As a service to the CLiENT, ICS will report ell excess claims to excess relnsuranm carrier, aithwQh the final responsibility for repor9ing such claims Is that of the CLIENT's. 13, Arranga end superviss rehabrilltatlon sam lira vhersa indhWed.
14. Arrange for and set up system for payment of banefite and allocated expenses In accordance with CLIEWro nerds,
IS. ICS shall prepared wrNh the Distance of the CLIENT all reports, which are now, or will be required by the State of California or other government. agencies vdlth respect to self-funded programs.
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- B101- E012466FOBA7
16. ICS shall subscribe to and pay for enrollment In the lndez Bureau System and will report to the Index Bureau on ear,4and every indemnity clatm.' the per claim cost of this service shall be posted as an j allocated expense to the CLIENT. 17: On behalf of the Client, ICS will perform aq uariorhers compensation claim repariing services required by the Medicare Medicaid aril SCHIP Extensign Act ( NiMSEA) Section 111 Mandatory Reporting to the Centers for Medicare & medicaid Services ( CMS) for the periods ( dent ed in ttrie cpnlraot I
18. iCS will comply with the pefformamce standards as required by the City's excess carrier. ICS will advise if there are any exc:eptlons, or When compliance with stew standards may impact our annual fee.
B. Medical Administration. iCS shall adhere to the foiloviring medical administration standards:
1. Authorize, review and monitor all medical treatment required on injury or illness claims.
2. Audit and pay all medical expenses in a timely manner, and within statutory guldelin",
3. Maintain close contact with IreOng physicians to ensure employees receive proper medical treatment and we returned to full employment at earliest date.
I
4. Arrange for medical -legal opinions in disputed cases, conferring with medical examiners, CLIENT, and legal counsel where indicated.
c
S. Consult as required with CLIENT on those cases wherry injury residual might invohra restriction Iand/or retirement potential
C. Legal Administration. iCS shell adhere to the following legal administration standards:
I
1. Refer litigated cases, when,neecied, to attorneys recommended by ICS and approval! 6y CLIENT for purposes 0 defending CLIENT' s interests before Workers' Compensation Appeals Board and the court.
2. Work closely with counsel In preparing defense of Iitigated cases.
3. Obtain CLIENT' S authorization on all sattl2ments or st'wulations schen required.
4. Work closely with applicant' s attorney and legal counsel in informal dispositions of litigated cases.
S. Attend, when required, Workers' Compensation Appeals Board h©arings.
6. - Dischar9e on behalf of CLIENT, all legal obligations to its injured employees impoaad by Workers' Compensation Appeals Board and higher courts.
7. Protect and pmserve CLIENT' s interests in all potential subrogation came. 1 D. Medical Coat Containment Service& ICS shalt odhare to tho followring medical cost containment services dartdards:
i
1. ICS shall use and cooperate fully with the designated medical cost containment vendor ( bill review and utilization review service provider) to review the medical bills for the CLIENT and other medical charges and provide necessary utilization review services' relating to'treatmeni requests on all claims of industrial Injury or Illness.
10
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 2 Unless otherwise direpted, ICS will select the service provider to be utilized and CLIENT w11 pay for such services. The ipity of Morgan Hill shag be responsible for ea Managed Care Services and Loss Adjustment Expenses. Managed Care Senrirss shall include medical bill review, utillzstion reviews, and Medical . management. Costs far such amices are documented in Exhibit ®; hmmer, bill review s rAoss shaft W billed at a rate not to exosed $ 30.00 per bill. Loss Adjustment Expenses shall include all reasonable expenses necessary to the adjustment of a claim In accordance urith the Service Agreement, in tuding, but not limited to, fees for ongsg ft defiance corned, court reportera, expert witnessee and field investigators, incurred on behalf ofthe City of Morgan K11.
E. information Systems, iCS will provide a computer system with appropriate data babe management capabilities to maintain records related to the admintotration of the Cllarft workers' compensation program.
ICS shall coordinate data entry for employees to the program and for services supplied by ICS. the CLIENT shall have access tie the computer system during normal w.orictng hours and access to the database through its own corirputers at its own expense. iCS shall provide computer-generated reports that are reasonably requested on a regular basis as detailed in section F below.
F. Statistical. ICS will adhere to the following statistical report production obligations rand provide all required reports to the client at agreed to intervals.
1. Report to CLIENT, monthly status of claim payments and reserves on an Individual claim basis and in the aggregate.
2. Report to CLIENT, quarterly loss analysis of claims filed by frrrquency and severity.
3. Moist in the preparation of ail reports required by the Slate of California or other Governmental agencies rebrling to Workers' Compenzatlon claims.
4. ICS will prepare the federal Informmlion return ( Form 1099) by the statutory deadline for all payments subject to 1099 reporting made by, ICS on behalf of the CLIENT during the term of this Agreement.
5. Additional ad-hoc reports will be provided to CLIENT at their request at no additional cost. Special report requests ftt requhe programmkV time will be charged to CLiENT at $150 per hour, which Is our direct cost. Our sydem is capable of genera" standardized reports as follows" i Claim Logs
Claim Activity
Claim Cost iatan
Claim Cost Summary
Claim Cost Summary by Year
ExaminerActivity
Examiner Case Log
Frequency Repft
LoceMon Summmy
Management Summary
Multiple Chime Usting
Occurrence Cost
OSHA
Payment Type Totals
Vendor Payments Sumnis1fy
State Annual Rgmt
11
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7
6. Ad- hoc reports queries, which require no speedic programming will be provided at no cost to CLIENT.
G. Banking Services. ICS will adhere to the following ervioas standards, as directed by the clients:
I The CLIENT,agrees-to establish, fund ani, replenish -en account at a financial, Institution agreed upon by the CLIENT and jCS for the purpose of payUtg benefits to workers or care-propiderg end to pay Aliocated Loss Adjustment Expenses.,
2. All funds lathe CLIENT Account belong to the -CLIENT. ICS shall have authority to W* e checks on the CLIENT Account, however, two signatures' may be required atclient' s requested level,
3. IGS shall have authority to pay Allocated Loss Adjustment Expenses from the CLIENT Account to vendors. ICS shall, provide the CLIENT with detailed accountings of the expenditures from the CLIENT Account.
4. ICS agreas to make records poriinent to the CLIENrs account available to CLIENT for audit purpoaaa at oil reasonable tincts With at least 24 hours' notice.
6. ICS agreesr es to maintain CLIEN s trust fund account, if CLIENT elects such arrangement Otherwise, CLIENT is responsible for ail reconciliation and bankingprom' se's involved wth CLIENT account.
6. , Additional services, including but not -limited to, field and investigative services, legal expenses„ managed cam seruices, index bureau inquiries; bbl review and all services which are_provide' d by outside vendors on behalf of the.CLIEi Tshall be paid. out of the' CLIEh1T's account, or trust account, H. Assignments. ICS shall not assign this Agreement, nor any part thereof. 9 ° 00.2 Of the California Code of Regulations all files closed for more than 5 five eas shall 6adenofred. UPON CLIEidT direclion ICS shall return the files) to CLIENT, y destroy files) or maintain irte( s) ai CLIEf' e rpenss wrlth en off=sito storage facility.
J:, Cooperation. In the event of early termination or non -renewal, both parties will,cooperate In good faith to implement a trancition. to a new service providerwdh minimum disruption°to the provision of benefits to workeis. IGS will make available to client, arid to a new service provider, all tiles, summary data, records and infnrmation° developad with respect to`this Agreement, Including ail loss records and a iecord layout describing the formai Qf the data tapes. Such `146rmatlnn shall be made available eiackarliaally whenever possible. The CLIENT shall assume all responsib11lty for open claims os of the effectIva °date of termination.
K. Files Ail claims files, records, reports and other documents pertaining to employee claims are the property of the CLIENT and CLIENT may audit or inspect the files atany time during normal business hours. ICS shall turn over possession of all files and other documents to the CLIENT or its designee promptly upon the effective dela of termination Or non•Whewal df this Agreement, The CLIENT shall allow iCS to Mvlew all files and other documents with information relating to its performance Puraushtto this agreement.
L. Penalties and Eines. ICS and client agree to the fallowing standards, protocols aftd principoie relating -46 the fines end penalties:
12
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7
1. iCS and CLiENT hereto acknowledge the various penalties and administrative fines that contained In The California Workers' Compensation Reform Act of 1969 (effective January 1, 1990 and January 1, 1591) that may be Imposed on both employers and claim administrators.
2. ICS will be responsible for any fine$ or penalties associated with yuesffonable or converted claims that ICS denies without first consulting and ohtainingapproval by`the CLIEMTfor denial of the olsim( s), ICS Will not ba,responsiblir for any fines _or p6hollies levied by the Division of,Workers' Compensation or any oilier judicial or quasl Judicial organization for improper denial of a deim( s) if, over the objections 6f - ICS CS has denied said cls m(s),at bo directinn ofthe CLIENT.
3. The CLIENT shall be responsible for all penalties there ICS has not been glven sufficient notice such that ICS has had ai least seven (7) working days In which to inva sNate the cialm and to pay temporary disability or Wild the required wage continuation notice before the penalties were messed. ICS shall be responsible for all penalties In which a Puns had seven ( 7) or more working days in which to Investigate and pay teinporary dibablilty or send a wage continuation notice. For the purposes of this secflon working day" means sit days except Saturdays, Sundays, and commonly observed holidays.
4. The services as described in this Agreement shall he performed in all material respects in accordance with applicable laws, rales, regulations and standards of governments) authoritiae including, in particular, applicable Workers' Compansatlon Laws of the State of California.
S. This Agreement shall be construed in accordance with, and governed by, the Intefnal laws aV the State of California and the venue for any disputes Is the county of Santa Clara as requested by the CLIENT, 13
DocuSign Envelope ID: C6A64AF2- 923F- 48EF- 8101- EO12466FOBA7 Cilly :shall Pay CQNSt1LTANT an annualized fee of $34,380 for the period of July 1. 24,1G - Jujjn. 30, 2017 and an annualized fee of $34, 7130 forthe period of July 1, 2097 - June 30, 201 :
For FY 16/1,17, payments will be Made In equal monthly InsWilments Da . 911 ad foz FVIMIR, lOYMa Vries 1} e made in equal monthly" fnstalfinents of $2, 891. 66. 14
REVISED EXHIBIT B
INNOVATIVE CLAIMS SOLUTIONS, INC.-FOURTH AMENDMENT TO AGREEMENT MARCH 28, 2022
CITY shall pay CONSULTANT:
An annualized fee of $34,380 for the period of July 1, 2016-June 30, 2017 An annualized fee of $34,700 for the period of July 1, 2017-June 30, 2018 An annualized fee of $34,380 for the period of July 1, 2018-June 30, 2019 An annualized fee of $34,380 for the period of July 1, 2019-June 30, 2021 An annualized fee of $34,380 for the period of July 1, 2021-June 30, 2022; and An annualized fee of $34,380 for the period of July 1, 2022-June 30, 2023.
The payments will be made in equal monthly installments of $2,865.00 for the current term July 1, 2022- June 30, 2023.
13 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Yat Cho, Senior Project Manager
APPROVED BY: City Manager
AWARD EAST DUNNE AVENUE REHABILITATION PROJECT AND
APPROVE CONSULTANT AGREEMENT WITH CSG CONSULTANTS,
INC. FOR FEDERAL-AID PROJECT SUPPORT AND CONSTRUCTION
INSPECTION SERVICES
RECOMMENDATION(S)
1. Approve the East Dunne Avenue Rehabilitation Project plans and specifications;
2. Award contract to A. Teichert & Son, Inc. DBA Teichert Construction for the East Dunne Avenue Rehabilitation Project in the amount of $2,153,195;
3. Authorize the expenditure of construction contingency funds not to exceed $430,639;
4. Authorize the City Manager to execute and administer the construction contract with A. Teichert & Son, Inc. DBA Teichert Construction; and
5. Approve and authorize the City Manager to execute and administer a consultant agreement with CSG Consultants, Inc. in the amount of $175,000 for Federal-Aid project support and construction inspections.
Estimated Time: Not Applicable
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
2022-2023 Strategic Priorities
Transportation
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
REPORT NARRATIVE:
The East Dunne Avenue Rehabilitation Project is included in the adopted 2021-22 through 2025-26 Capital Improvement Program (CIP). The project will replace, repair and/or overlay pavement along East Dunne Avenue between lower Thomas Grade to
13 the eastern City limit (See Attachment 1).
For Fiscal Year (FY) 2021-22, the Federal Highway Administration (FHWA) and Caltrans have programmed the City's East Dunne Avenue Pavement Rehabilitation Project to receive federal grant funding for the construction phase of this project. This project is programmed to receive $857,000 in federal-aid funding through the One Bay Area Grant Program (OBAG 2) and the City is required to comply with FHWA and Caltrans construction administration procedures and requirements in order to receive the grant reimbursement for this construction project. The project received FHWA and Caltrans authorization to proceed with the project bidding in February 2022 and was advertised for the project starting on February 25, 2022. The bid opening was held on March 23, 2022 and six (6) bids received are listed below:
BIDDER: TOTAL BID
AMOUNT:
A. Teichert & Son DBA
Teichert Construction*
$2,153,195.00
Granite Construction
Company
$2,162,805.00
McKim Corporation $2,230,750.90
Monterery Peninsula
Engineering, Inc.
$2,544,784.00
O’Grady Paving, Inc.** $1,908,580.00
Graniterock Company** $2,163,016.00
*Lowest responsive and responsible bidder
**Non-responsive bids
Upon review of the bid proposals, O'Grady Paving, Inc. and Granite Rock Company did not provide the required federal forms with their bid proposals, as part of the bid submittal process, and their bid proposals were considered non-responsive. Teichert Construction was the second lowest bidder that submitted all of the required federal forms and required City forms with their bid proposal, and therefore is the lowest responsive and responsible bidder for this project's contract award. Teichert Construction is an experienced contractor with many years of paving construction experience and recently completed the 2021 Pavement Resurfacing Project for the City.
Teichert Construction's bid amount of $2,153,195, is approximately 10% under the engineer's estimate of $2,400,000. Staff recommends the award of the contract to Teichert Construction for $2,153,195 and anticipates construction to commence in June 2022 and be completed by October 2022.
The federal grant funds secured for this project will require the City to follow the procedures and guidelines from the Caltrans Local Assistance Procedures Manual (LAPM) that include but are not limited to: civil rights and disadvantaged business
13 enterprises; advertisement and award of the project; construction contract administration and inspection; and project completion. The City is required to maintain project records to support the adequacy of the field supervision, inspection and testing; conformance to contract specifications; and payments to the contractor. The project's files will be reviewed by Caltrans Construction Oversight Engineers throughout construction for compliance with federal and state requirements. The project requires additional federal administration and inspection support by an outside consultant.
Additionally, due to the very significant work occurring across the City additional general inspection services are required as well. City staff are recommending a contract services agreement with CSG Consultants, Inc. to comply with federal and state requirements and maintain eligibility for federal grant reimbursements for the construction costs. CSG Consultants' services shall include federal aid support to the City's CIP team related to the project's construction administration files, preparing Caltrans LAPM forms and reporting, construction inspections, preparing construction invoicing to Caltrans, and project closeout with Caltrans. Staff recommends the approval of the proposed CSG Consultants, Inc. in the amount of $175,000 to complete this project. CSG Consultants were selected as an on-call consultants by the City through a competitive RFP process. However, due to the size of this funding and unique requirements, a separate consultant agreement is necessary. CSG has extensive experience and has previously supported pavement inspection work with the City.
The plans and specifications may be found on the City's web page under the Government tab and the Community Projects site (https://www.morganhill.ca.gov/1436/Project-Plans-Specifications-and-Bid-Res) COMMUNITY ENGAGEMENT:
Inform
Once the project is awarded, City staff will be coordinating communication efforts prior to and during the project through citywide emails, social media posts, and routine updates on the website. Regular updates will be made frequently to inform the community of impacts, roadway closure, and other inconveniences that may arise due to construction. The contractor will provide written notifications to affected residents and businesses in advance of any construction activities.
ALTERNATIVE ACTIONS:
City Council may elect not to award this construction contract and request the project be re-bid. Staff does not recommend this alternative as the project is programmed and authorized to receive federal grant funding during FY2021-22. Rebidding this project may not yield any additional savings, delay the project for a minimum of three months, and potentially jeopardize the City's $857,000 federal grant funding for this project.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On March 2, 2022, City Council received an update regarding pavement rehabilitation planning for calendar years 2021 through 2024. On October 20, 2021, the City Council approved CALTRANS Disadvantaged
13 Business Enterprise (DBE) Implementation Agreement in association with the East Dunne Pavement Rehabilitation Project.
On June 17, 2020, City Council adopted the FY 2020-21 through 2025-26 Capital Improvement Project.
On April 3, 2019, City Council approved a funding agreement with the Santa Clara Valley Transportation Authority (VTA) for the 2016 Measure B Local Streets and Roads Program.
On April 4, 2018, the City Council approved a resolution of local support for this specific project and authorized the filing of the grant application.
FISCAL AND RESOURCE IMPACT:
If the award of the construction contract to Teichert Construction is approved, the total authorization for this project would be $2,583,834, which includes a 20% contingency of $430,639.
If the consultant agreement with CSG Consultants, Inc. is approved, the total authorization for the services would be $175,000.
There are sufficient funds within the FY2021-22 Budget for this project (519000). The Street CIP Fund (308) is funded through a variety of dedicated funding sources that are specific for the rehabilitation and maintenance of City roadways and cannot be used fo other purposes.
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 the CEQA Guidelines (Existing Facilities), as the subject work involves the repair, maintenance, or minor alteration of existing City facilities involving negligible or no expansion of use of those facilities.
Sources: Esri, HERE, Garmin, USGS, Intermap, INCREMENT P, NRCan, Esri Japan, METI, Esri China (Hong Kong), Esri Korea, Esri (Thailand), NGCC, (c) OpenStreetMap contributors, and the GIS User Community 0 375 750 1,500 2,250 3,000
Feet
PROJECT MAP
EAST DUNNE AVENUE
REHABILITATION PROJECT
STPL-5152(022)
E. Dunne Ave.
LOWER
THOMAS GRADE RD.
EASTERN CITY LIMITS
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CONSULTANT AGREEMENT
CSG Consultants, 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 CSG Consultants, 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 December 31, 2022 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 provide construction inspection and Federal-aid project support services as further described in Exhibit A.
4. Compensation. CONSULTANT shall be compensated as follows:
4.1. Amount. $175,000.00. Total compensation to CONSULTANT under this Agreement during its initial term set forth in Section 2 above shall not exceed One Hundred Seventy-Five 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 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
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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.
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
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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 self-insured, 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, 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
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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.
7.1.7. Crime/Fidelity Bond. If the performance of CONSULTANT’S work or service under this Agreement relates to or involves handling of CITY monies, CONSULTANT shall procure and maintain Crime insurance, in the minimum amount of: (i) three hundred thousand dollars ($300,000.00) per occurrence, covering all CONSULTANT’S officers and employees, for loss of CITY monies caused by dishonesty and/or theft.
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. “Additionally Insured” - The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds on a form at least as broad as ISO Form CG 20 10 for ongoing operations.
7.2.1.2. “Waiver of Rights of Subrogation” - The insurer waives the right of subrogation against the City of Morgan Hill and CITY’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers; and
7.2.1.3. “Primary and Non-Contributing” - Insurance shall be endorsed to be primary and non-contributory and will not seek contribution from the City’s insurance or selfinsurance and shall be at least as broad as ISO Form CG 20 01.
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 non-compliance with any insurance requirements in this section 7. Certificates, including renewal certificates, may be mailed
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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 shall inform
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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:
CSG Consultants, Inc.
550 Pilgrim Drive
Foster City, CA 94404
Address of CITY is as follows:
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Yat Cho
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. 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”).
21.2. 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 or willful misconduct of the CITY.
21.3. 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 CONSULTANT.
21.4. 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.
21.5. 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 CONSULTANT 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. 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,
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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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28. Authority to Execute. Those individuals who are signing this Agreement on behalf of entities represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
IN WITNESS THEREOF, these Parties have executed this Agreement on the day and year shown below.
AS SET FORTH IN CA. CORP. CODE § 313, TWO SIGNATURES ARE REQUIRED FOR CALIFORNIA CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
ATTEST: CITY OF MORGAN HILL
City Clerk/Deputy City Clerk City Manager
Michelle Bigelow Christina J. Turner
Print Name Print Name
Date: Date:
APPROVED AS TO FORM: CSG Consultants, Inc.
City Attorney By:
Donald A. Larkin
Print Name
Date:
Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
Date:
By:
Date:
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
U:\Legal Forms\Consultant Agreements\City Standard Consultant Agreement.Docx
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EXHIBIT A
SCOPE OF SERVICES
CSG PROPOSAL TO THE CITY OF MORGAN HILL
CONSTRUCTION MANAGEMENT SERVICES FOR EAST DUNNE AVENUE REHABILITATION PROJECT Scope Of Work
CSG has provided construction inspection services on projects for clients throughout California. Our approach to performing construction inspection promotes flexibility, efficiency and providing the right expertise to match the project’s specific needs. We have managed projects from the advertise bid award phase through project close out. Provided below is a breakdown of CSG’s typical construction inspection approach.
CONSTRUCTION PHASE
After the award of a project and prior to start of construction, CSG will lead or participate in the following steps.
Utility Company Coordination—Utility work can greatly impact the progress of a construction project. To minimize the impact, it will be critical to work with the City to establish a working relationship with the utilities for the life of the project, identify all utility work and anticipate potential conflicts as soon as possible, incorporate the utility companies into the project team meetings, clarify protocols and construction crews’ availabilities, and strategize contingencies for unforeseen circumstances.
During the Construction Phase, CSG will be responsible and will enforce requirements typically requested by jurisdictions.
Providing detailed documentation using the Citypreferred form of documentation Daily inspector’s report
Tracking of any subcontractor’s work
Any safety issues regarding contractor
Maintaining project files
Date and time stamping of all documents
Maintaining Submittal Logs
Maintaining Submittal Distribution Lists
RFI log (submittal, review, and return)
Correspondence logs and tracking
Tracking status of contract change orders
Tracking status of RFI's
Tracking potential claims
Tracking weekly statements of working
days
Tracking Buy America and other contract
requirements
Documenting contractor’s detours, lane
closures and staging plans
Documenting contractors’ labor
compliance performance
Approve “Schedule of Values” submitted
by contractor
Provide monthly reports documenting
construction progress, etc.
Provide expenditure report
Tracking progress pay estimates and
overall project budget
Monitor Contractor’s Performance—Throughout the project, the inspectors will enforce all requirements of applicable codes, specifications, and contract drawings. There will be daily communication and coordination with the contractor. This will limit miscommunication, resolve issues on the field level to anticipate project progress, address deficiencies, and minimize delays. CSG’s Construction Manger will assist City staff in preparation of bi-weekly and monthly updates that include schedule status, work progress, key issues, anticipated impacts, potential change orders and budget status projections. Our CM Team will also schedule and coordinate third party material testing and sampling as required by the City’s QAP and per specifications.
Construction Schedule Monitoring—Our staff will conduct weekly project meetings to review the project’s status, update the project schedule, discuss any outstanding items, resolve disagreements and work collaboratively towards the successful completion of each phase of the project. The contractor’s construction schedule will be used during these meetings as a tool to track the progress of construction relative to the allowable working days and approved budget. All changes that impact the baseline schedule will be closely monitored and discussed at the weekly meetings. Schedule updates are critical for accurately monitoring the Contractor’s progress and evaluating potential claims and CCO’s that might arise. 12
CSG PROPOSAL TO THE CITY OF MORGAN HILL
CONSTRUCTION MANAGEMENT SERVICES FOR EAST DUNNE AVENUE REHABILITATION PROJECT 13 Weekly Statement of Working Days—CSG’s Inspectors will monitor and document working days weekly per the Caltrans Local Assistance Procedures Manual (LAPM). This includes contract times and documenting time extensions.
Daily Inspector Report—CSG uses an effective and detailed report system that tracks contractor personnel and equipment, work progress and field changes while coordinating with the contractor daily to reduce confusion. This system has proved to be a useful and important component in the reduction of future issues.
Our Inspector’s report will be accompanied by daily photos.
Maintaining Photos and Videos—Photos will be taken continuously during construction. All signage and lane closure setups will be documented, and photos taken to illustrate prior striping and, in case of accidents, to provide documentation of the change associated with the ongoing work. A similar procedure undertaken at the beginning of construction will also be done at project closeout. Photos will be taken of the completed project and will be part of the final package to be submitted to the City with all project documents.
Managing Change Orders—Inspectors will bring any unforeseen changes to the attention of the City Resident Engineer or Project Manager. Some of our Inspectors are well versed in drafting change orders and can take on this task if needed by the City. Upon the issuance of a change order, the work will be monitored and tracked, including labor, equipment and materials. On a force account change order, our inspectors employ a technique of requiring the Contractor’s foreman to agree to and sign the work order to eliminate disputes at the time of payment.
Our primary approach to managing change orders will be to utilize bid item prices as much as possible, if applicable. Otherwise, an agreed upon lump sum and force account will be applied as a last resort if an agreement cannot be established or time is of the essence. In the case of an urgent change, an authorization to proceed with a not-to-exceed amount will be provided. All changes will promptly be brought to the attention of the City’s Project Manager prior to authorization of any additional expenditure.
Managing Claims—CSG’s knowledgeable staff will utilize its understanding of the design process, contract language, scheduling, construction techniques and costs to provide the City with critical information it needs to manage construction claims. CSG will provide the City with an assessment of the outstanding issues. Our staff will assist in developing a strategy to resolve claims and disputes.
Record Keeping / Contract Administration- With this project being federally funded CSG will bring their experience administering such contracts and provide the services needed to comply with the Local Assistance Procedure Manual. This includes
• Establishing logs for material testing, change orders, RFIs, Submittals • Conducting employee interviews
• Requesting and reviewing Subcontractor’s request and DBE forms • Monitoring the DBE goal on a monthly basis
• Ensuring the material submitted to site matches the approved submittals • Reviewing the bid / award documents for compliance
• Developing quantity sheets for progress payments
• Writing memorandum of understanding for all change orders • Performing an independent cost analysis for every change order Requests for Information (RFI’s)/ Design Clarifications—Our staff will receive and process all RFI’s from the contractor. They will conduct meetings if required to define, clarify, and resolve all RFI’s expeditiously. They will prepare responses to RFI’s to the extent possible. All of their direct responses will be in writing and will be answered within 24 hours. If an RFI requires the input of the designer, they will immediately provide a copy (via e-mail or fax) of the RFI to the designer and will follow-up with a phone call to discuss the nature of the request. The City’s Project Manager will be kept informed of all design-related RFI’s. Records of all RFI’s and responses to the contractor will be properly filed and will be available at all times.
Progress Payments—Our staff will be responsible for reviewing and recommending progress payments to contractor. Progress payment records will be maintained, and measurement and payment will be made in accordance with the contract documents and the City’s procedures for progress payments. Inspector records
CSG PROPOSAL TO THE CITY OF MORGAN HILL
CONSTRUCTION MANAGEMENT SERVICES FOR EAST DUNNE AVENUE REHABILITATION PROJECT 14 will be used to corroborate contractor requests. Our staff will meet with the contractor representative to compare item quantities at the end of each shift or when the contractor is performing item quantity measurements. This procedure eliminates most, if not all, conflicts at the time of progress payment submittal and processing.
Our team will also submit a monthly budget status review document to the City’s Project Manager that provides an overview of project’s financial status, a projection for anticipated future costs, and an update of the overall budget status versus the contractor’s construction progress. CSG’s inspectors will measure and track quantities on a daily basis, in conjunction with preparation of the daily field report. These quantities will be measured and compared with the measurements taken by the contractor’s superintendent so that potential conflicts can be resolved prior to the submission of a progress payment. At the end of the agreed upon pay period, the Contractor’s progress payments will be reviewed for accuracy.
Labor Compliance—Inspectors will verify the contractor’s compliance with labor laws, including performing spot check labor surveys and interviews and verifying certified payrolls to make sure the contractor is paying prevailing wages to its employees. They will report their findings to the City’s labor compliance officer in a manner and frequency that is acceptable to the labor compliance office.
Non-Compliant Work—Inspectors will use the mini memo out on the project to inform the Contractor of non-compliance of the Project Plans or Specifications. In addition, they will include the non-compliance in the inspector’s daily diary. Our inspectors will immediately report non-compliance work, so that an official letter is prepared to communicate to contractor and City Project Manager. All reporting of non-compliance work will be accomplished within 48 hours after the occurrence to facilitate the Contractor’s timely correction of the deficiencies.
Final Inspection Punch List—With every project, the inspector generates a document listing work that does not conform to contract specifications. The inspector will work with the contractor to ensure proper completion of all projects prior to final payment. A walkthrough with all stakeholders will be conducted, and a punch list will be developed for the contractor to complete. No project is fully completed until all punch list work is addressed and finalized.
Record File—Inspectors will ensure that the contract administration, documentation and filing system are prepared and maintained in accordance with CSG’s Construction Management Filing System. Our construction managers have used this program successfully on several large construction projects to monitor, coordinate, review and respond to, for example, submittals, RFI’s, potential changes, and change orders. The construction management filing system allows the project manager to track all areas of coordination to ensure complete and timely accomplishment of critical or time-sensitive items. This system can be tailored to each job and access can be provided to key members of the project team including City staff, the designer, and the contractor. The system enables the team to remain updated on the latest status of submittals, RFI’s, and action item ownership. The CM team will upload all project record files to the City’s project filing system (E-Builder) at the end of the project or as directed by the Project Manager.
Environmental Compliance—CSG staff will review all documents associated with project including EIR’s or Negative Declaration documents to ensure contractor’s full compliance before/during and possibly after construction.
POST-CONSTRUCTION PHASE
A project is only truly completed when all construction is complete, including the punch list items; the final payment is approved and accepted; the project paperwork is completed and archived, and as-builts are complete. Tasks performed under this phase include:
CSG PROPOSAL TO THE CITY OF MORGAN HILL
CONSTRUCTION MANAGEMENT SERVICES FOR EAST DUNNE AVENUE REHABILITATION PROJECT 15 Completion of all project documentation change
order summary, final detailed estimate, project
acceptance documentation, and a claims
management/resolution
Final walkthrough involving the contractor, the
City, engineering and maintenance staff, the
designer and other relevant stake holders
Completion of all items on the final construction
punch list
Preparation of final payment estimate and
resolving all of the contractor’s exceptions
to proposed final estimate
Preparing a final construction project report
per Chapter 17 of the LAPM
Preparation of final “As-Built” records
including record drawings and all
discovered utility locations and changes
16 Updated March 2022
EXHIBIT B
SCHEDULE OF COMPENSATION RATES
CSG PROPOSAL TO THE CITY OF MORGAN HILL
CONSTRUCTION MANAGEMENT SERVICES FOR EAST DUNNE AVENUE REHABILITATION PROJECT 17 Cost Proposal
Provided below is CSG’s breakdown of hours and proposed cost. We understand this project is scheduled for 75 calendar days. CSG is proposing construction inspection, as well as an additional ¼ time inspector for peak periods of construction. Material testing has not been included in our cost, as we understand the City will contract these services separately.
Construction Inspection and Construction Support Services for East Dunne Avenue Rehabilitation Project
Services Hourly
Rate
Working
Days
Hours Precon /
Closeout Total Hours Cost per Day
Federal Aid Support $230 $38,500
Construction Inspector $150 75 8 120 720 $108,000
Additional Construction
Inspector $150 75 2 40 190 $28,500
TOTAL COST: $175,000
2022 Engineering Division Hourly Rates
CSG services are billed on a time-and-materials basis according to our Standard Rates, shown below.
Professional Engineering Services 2022
Hourly Rate
Engineering Trainee $70
Administrative Assistant $80
Analyst $135
Engineering Designer/CASp Inspection & Consultation $145 Construction Inspector $150
Senior Analyst $160
Assistant Resident Engineer $175
Assistant Engineer $150
Associate Engineer $180
Senior Construction Inspector $165
Senior Engineer $205
Senior Land Surveyor $205
Resident Engineer $210
Structure Representative $210
Senior Structural Engineer $225
Senior Project Manager $225
Principal Engineer $240
Senior Principal Engineer $260
Two-Person Survey Crew $340
Sustainability Program Management Services Hourly Rate
Sustainability Program Analyst $140
Sustainability Program Senior Analyst $165
Sustainability Program Manager $195
All hourly rates include overhead costs including, but not limited to, salaries, benefits, Workers Compensation Insurance, travel and office expenses. CSG will coordinate the pickup and return of plans to and from CSG offices.
Overtime work will be billed at 1.5x the hourly rates indicated in the table above. On each anniversary of the contract start date, CSG will initiate a rate increase based on change in CPI-U for the applicable region. CSG will mail/email an invoice every month for services rendered during the previous month. 18
19 Updated March 2022
EXHIBIT C
SCHEDULE OF PERFORMANCE
Consultant shall provide services as outlined in the scope of services as needed and as directed by City staff during the construction of the project.
14 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Rebecca Garcia, Housing Director
APPROVED BY: City Manager
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(S)
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
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Preserving and Cultivating Public Trust
Enhancing Diversity and Inclusiveness
Advancing Regional Initiatives
2022-2023 Strategic Priorities
Affordable Housing and Homelessness
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:
POLICY CONSIDERATIONS:
JEMCOR Development Partners, LLC (“JEMCOR” or the “Borrower”), is approved to build a 100 percent affordable housing development project, Village at Madrone,
14 comprised of 249 multi-family units, ranging from 30% of the Area Median Income (AMI) to 60% AMI. These apartments will serve as workforce housing, and are located at the northeast corner of Monterey Road and Madrone Parkway.
The City is required to hold this public hearing allowing community members to speak in favor of or against the use of tax-exempt bonds for the financing of the Project. The City Council’s only role is to listen to public testimony regarding the appropriateness of bond financing. Following the close of the hearing, the City must approve the issuance of the bonds for the financing of the Project. The City has no financial obligation or legal risk with the bond issuance.
To finance this new construction Project of Village at Madrone, JEMCOR Development Partners have applied and received a very competitive award for Federal Low Income Housing Tax Credits (“LIHTC”) from the California Tax Credit Allocation Committee and a tax-exempt bond allocation from the California Debt Limit Allocation Committee (“CDLAC”).
The Borrower, JEMCOR, requested that the California Municipal Finance Authority (“CMFA”), a joint exercise of powers authority and public entity of the State of California, serve as the municipal issuer of the tax-exempt revenue bonds in an aggregate principal amount not to exceed $85,000,000. The tax-exempt bond financing is a “conduit” financing in which the City has no exposure for the debt. Rather, JEMCOR, the sponsor, asks the CMFA to issue the bonds upon CDLAC’s authorization and then solicits a lender who purchases all of the bonds in a private sale. CMFA is a public entity that is authorized and experienced in the issuance of such bonds.
As the nature of the financing vehicle is tax-exempt, the Tax and Equity Fiscal Responsibility Act (“TEFRA”) requires the local jurisdiction to support the transaction.
This requirement is fulfilled through the public hearing approving the conduit financing after public notice is published seven days prior, allowing the community members an opportunity to speak in favor of or against the use of tax-exempt bonds for the financing of the Project. Following the close of the TEFRA Hearing, the City must approve the issuance of the bonds for the financing of the Project through a resolution.
CALIFORNIA MUNICIPAL FINANCE AUTHORITY:
The CMFA was created on January 1, 2004, pursuant to a joint exercise of powers agreement to promote economic, cultural, and community development through the financing of economic development and charitable activities throughout California. The bonds to be issued by the CMFA for the Project will be the sole responsibility of the Borrower, and the City will have no financial, legal, moral obligation, liability, or responsibility for the Project or the repayment of the bonds for the financing of the Project. All financing documents with respect to the issuance of the bonds will contain clear disclaimers that the bonds are not obligations of the City or the State but are to be paid for solely from funds provided by the Borrower. Outside of holding the TEFRA Hearing and adopting the required resolution, no other participation or activity of the City or the City Council with respect to the issuance of the bonds will be required.
14 COMMUNITY ENGAGEMENT:
The community was informed by a notice published in the Morgan Hill Times on March 25, 2022.
ALTERNATIVE ACTIONS:
There are no alternative actions as the City must approve the resolution after the public hearing.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
Government Code Section 65915(f)(3)(D)(i) and 65915(d)(2)(D) required the City to grant an 80 percent Density Bonus and three concessions. The resolution was adopted by the City Council on April 21, 2021.
FISCAL AND RESOURCE IMPACT:
There is no fiscal impact to the City. The Bonds will be issued as limited obligations of CMFA, payable solely from revenues and receipts derived from a loan to be made by CMFA to the Borrower with the Bond proceeds. The City bears no liability with respect to the issuance of the Bonds. Further, the City is not a party to any of the financing documents related to the Bond issuance and is not named in any of the disclosure documents describing the Bonds or the proposed financing.
CEQA (California Environmental Quality Act):
This is not a project but rather an administrative activity that will not result in direct or indirect physical changes in the environment. Thus, the administrative activity of the project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3).
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MORGAN HILL APPROVING THE ISSUANCE BY THE
CALIFORNIA MUNICIPAL FINANCE AUTHORITY
MULTIFAMILY HOUSING REVENUE BONDS FOR
VILLAGE AT MADRONE
WHEREAS, Village at Madrone, LP (the "Borrower") a partnership of which JEMCOR Development Partners, LLC (the "Developer") or a related person to the Developer is the general partner, has requested that the California Municipal Finance Authority (the "Authority") adopt a plan of financing providing for the issuance of exempt facility bonds for a qualified residential rental project pursuant to Section 142(a)(7) of the Internal Revenue Code of 1986 (the "Code") in one or more series issued from time to time, including bonds issued to refund such exempt facility bonds in one or more series from time to time, and at no time to exceed $85,000,000 in aggregate principal amount (the "Bonds"), to finance or refinance the acquisition, construction, improvement and equipping of a multifamily rental housing project located at 18960 Monterey Street, Morgan Hill, California (the "Project"); and
WHEREAS, pursuant to Section 147(f) of the Code, the issuance of the Bonds by the Authority must be approved by the City of Morgan Hill (the "City") because the Project is located within the territorial limits of the City; and
WHEREAS, the City Council of the City (the "City Council") is the elected legislative body of the City and is one of the "applicable elected representatives" required to approve the issuance of the Bonds under Section 147(f) of the Code; and WHEREAS, the Authority has requested that the City Council approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirement of Section 147(f) of the Code and the requirements of Section 4 of the Joint Exercise of Powers Agreement Relating to the California Municipal Finance Authority, dated as of January 1, 2004 (the "Agreement"), among certain local agencies, including the City; and
WHEREAS, pursuant to Section 147(f) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to approve the issuance of the Bonds by the Authority;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
Section 1. The above recitals are true and correct.
Section 2. The City Council hereby approves the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this resolution constitute approval of the issuance of the Bonds by the Authority, for the purposes of (a) Section 147(f) of the Code by the applicable elected representative of the governmental unit having jurisdiction over the area
City of Morgan Hill
Resolution No. 22-xxx
in which the Project is located, in accordance with said Section 147(f) and (b) Section 4 of the Agreement.
Section 3. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents that they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this resolution and the financing approved hereby.
Section 4. This resolution shall take effect immediately upon its passage.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Morgan Hill at a regular meeting held on the April 20, 2022.
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 a regular meeting held on April 20, 2022.
WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.
DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk
TAX AND EQUITY FISCAL
RESPONSIBILITY ACT (TEFRA) HEARING
VILLAGE AT MADRONE APARTMENTS
TEFRA HEARING:
• City is required to hold public hearing to allow the community an opportunity to speak in favor of or against use of taxexempt bonds for financing of a Project • Council's only role is to listen to public testimony regarding appropriateness of bond financing
• Following close of hearing, City must approve issuance of bonds through resolution
• City has no financial obligation or legal risk with bond issuance
TEFRA HEARING (cont.)
• Approving the issuance of bonds to finance the acquisition and construction of Village at Madrone Apartments, owned and operated by Jemcor Development Partners
• Jemcor applied and received an award for Federal Low Income Housing Tax Credits from the California Tax Credit Allocation Committee and a taxexempt bond allocation • Jemcor requested that the California Municipal Finance Authority serve as the issuer of the tax-exempt revenue bonds in an amount not to exceed $85,000,000
TEFRA HEARING (cont.)
• The proceeds of the bonds will be used to finance the acquisition, construction, equipping, and improvement of Village at Madrone Apartments
• The Project meets the Council's goals of creating affordable communities and leveraging outside financing
• Notices were published in the Morgan Hill Times on March 25, 2022
Village at Madrone Apartments
249 Units
RECOMMENDATION:
• 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
• Adopt resolution approving the issuance of bonds by the California Municipal Finance Authority, for the acquisition, construction, equipping and improvement of Village at
Madrone Apartments
15 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Attorney
APPROVE DONATION OF MONUMENT SIGNS FROM LEADERSHIP
MORGAN HILL
RECOMMENDATION(S)
1. Review new City of Morgan Hill monument signs proposed by Leadership Morgan Hill;
2. Approve installation of monument signs at proposed locations;
3. Approve the design of the monument signs; and
4. Authorize the Public Services Director to execute agreements as needed with Leadership Morgan Hill and associated contractors to complete the installation.
Estimated Time: 30 Minutes
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Supporting our Youth, Seniors, and Entire Community
REPORT NARRATIVE:
The 2022 Class of Leadership Morgan Hill has reached out to the City looking to coordinate their annual class project. Each year Leadership Morgan Hill hosts a leadership class for community members specific to Morgan Hill. Part of completion of the program requires the class to complete a public service project. The class of 2022 has proposed the development and construction of two monument signs within the City.
The class has also proposed the installation of bicycle safety signage at multiple locations throughout the City. The donation of the monument signs require the approval of the City Council.
The Class has proposed the installation of the two monument signs along Monterey Road. The locations for the monument signs are at the northwest corner of the intersection of Monterey Road and old Monterey Road and the southeast corner of the intersection of Monterey Road and Butterfield Boulevard. The locations are further shown in Attachment 1. City staff concur with the recommendation for these locations and believe the proposed signs will enhance the City by providing welcoming gateway signage.
15 The proposed design for the signs was completely created by the Class and is included as Attachment 2.The City staff believe that in general the signs are designed well. The Council may want to consider providing additional direction on sign design. Additionally, the signs include the term "A Caring Community Est. 1906". The class has developed this phrasing. The Council may wish to provide direction to the class in this area as well.
City staff intend to require that wording approved at this time related to the term be installed in a way that can be removed/replaced in the future should the Council determine another alternate term is more appropriate for the City. Finally, the Leadership Class would like the City to provide direction on the color scheme of the signs. City staff would plan to work with the Leadership class on the final color scheme, but the Council could choose to provide additional feedback on the color scheme as well.
In addition to the monument sign, the class has proposed developing artwork for the rear side of the sign at Monterey and Old Monterey Roads. This artwork has not yet been provided and will need to be reviewed by the Library, Culture and Arts Commission before returning to the Council. The class is also proposing the cleaning and landscaping of the City-owned property located near the sign at Monterey and Old Monterey, which will be an additional benefit to the City.
In total, the preliminary estimate for the value of all the work is $30,000. The class intends to raise funds and secure in-kind donations to fund the project. To recognize those supporting the project, the Class has proposed installation of engraved pavers next to signs and smaller signage on the back of the signs. Since the signage is adjacent to City roadways, City staff shall work with the class to ensure that recognition signage is not easily visible from the roadway.
COMMUNITY ENGAGEMENT:
Empower
The project was brought forward by community members enrolled in Leadership Morgan Hill (Class) and will be implemented by these community members.
ALTERNATIVE ACTIONS:
As an alternative to approving the monument signs, the Council may choose any of the following alternatives or provide the class and City staff with other direction.
1. Approve the project concept, but request additional design work or changes occur to the sign before approving. In this scenario, City staff would work with the Commission to update designs based upon the City Council direction.
2. Approve the project concept, but refer the sign design to the Library, Culture and Arts Commission or Planning Commission for review of the signage. City staff would work with the designated Commission to provide additional review before returning to Council.
3. Approve the project with specific changes and requirements as designated by the
15 Council.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The City has worked with Leadership Morgan Hill on various class projects over the last two decades. The City Council has most recently approved the utility box art project conducted in 2018 and the installation of artistic bike racks in the Downtown in 2019.
FISCAL AND RESOURCE IMPACT:
The installation of the monument signs in the proposed location is not anticipated to create significant ongoing operational expenses. The maintenance of the signs themselves shall be limited to graffiti removal and repair associated with the signs.
CEQA (California Environmental Quality Act):
Categorical Exemption
Minor alterations to existing City facilities, including the installation of signs, falls within the CEQA categorical exemption of Class 1, Existing Facilities.
4/13/22 CG
3XEOLF6HUYLFHV'HSDUWPHQW /HDGHUVKLS0+6LJQ/RFDWLRQV 1 2
Monterey Road
Old
Monterey Road
4/13/22 CG
3XEOLF6HUYLFHV'HSDUWPHQW /HDGHUVKLS0+6LJQ/RFDWLRQV 2 2
Monterey Road
Butterfield Road
16 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Nichole Martin, Community Services Coordinator
APPROVED BY: City Manager
PROVIDE POLICY DIRECTION FOR FY 22-23 COMMUNITY FUNDING
REQUESTS
RECOMMENDATION(S)
Provide policy direction regarding requests for community funding.
Estimated Time: 30 minutes
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Supporting our Youth, Seniors, and Entire Community
Preserving our Community History
Enhancing Diversity and Inclusiveness
2022-2023 Strategic Priorities
Fiscal Sustainability
Community Outreach, Engagement, and Messaging
Economic Development
REPORT NARRATIVE:
Annually, the City Council considers funding requests from local non-profit organizations that host community-wide events. In November 2021, City Council adopted Council Policy CP-21-02 (Attachment 1), to establish a process for community organizations to request funding to support fee waivers, event sponsorship, and other funding requests from City Council.
To be considered for this funding, the following criteria must be met:
a. The organization requesting funding must be a nonprofit. b. The program, event, or activity provides a direct benefit to the Morgan Hill community.
c. Programs in alignment with the City Council’s Goals and Priorities shall be given priority. City Council priorities are established by the City Council in January of each year.
d. Each organization must submit an inclusivity statement describing how the organization and/or the proposed activity is inclusive of the entire community.
16 e. Existing programs and events may be given priority.
On February 11, 2022, staff provided Community Funding Request Applications to organizations that have previously received fee waivers for facility use, event support, or program support from the City of Morgan Hill. The applications were provided via email to these contacts. The application and information about the process was also posted on the City’s website, in the weekly 411, and on the City’s Facebook page. Applications were due on March 18, 2022, at 5:00 pm.
The City of Morgan Hill received applications from nineteen (19) organizations, for a total of twenty-five (25) applications. Some organizations submitted multiple applications for different events. The funding requests total approximately $285,000 (for comparison purposes, the FY 21-22 budget is $116,000). The requests include 11 new fee waiver requests and 8 organizations requesting significant increases in funding. The funding breakdown includes approximately $50,000 in fee waivers for use of the Community Center, $115,000 in funding to support events, and $120,000 to support programs.
City Staff are requesting direction from City Council on how to evaluate the applications and make a recommendation, which will be presented at the Budget Workshop scheduled for May 25, 2022. Specifically, City staff desire to have the following questions answered by the City Council:
1. Should the approved policy be the guide for prioritizing available funding?
2. Shall existing events and programs that have received funding in the past receive priority?
3. Should fee waiver requests at the CCC that are less likely to impact rental revenue be prioritized?
4. Are there any other priorities the Council would like to include? Additionally, one item related to public art may be eligible for use of City Art Funds. City staff intend to take that item to the Library, Culture and Arts Commission to make a recommendation to the City Council ahead of the Council Budget Workshop.
COMMUNITY ENGAGEMENT:
Inform and Involve
The Community Funding Request Applications were sent via email to organizations that have recently received Council support for events, fee waivers/facility use, or for partnership program support. Additionally, the application was posted to the website through a Newsflash, in the weekly 411, and on the City’s Facebook page, providing information on the annual process. Allowing community organizations to propose funding involves the community in the decision-making process of allocating City funds for community use.
16 ALTERNATIVE ACTIONS:
Provide City Staff with additional policy direction for Community Funding funding requests that have been received as part of this process.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
Annually, the City Council has made decisions to provide funding to support non-profit community events that benefit the entire community. In November 2021, City Council adopted Council Policy (CP-21-02) Council Funding Requests. With this policy in place, the City is bringing forward all funding requests through a single process.
FISCAL AND RESOURCE IMPACT:
Community Funding is budgeted within the City Council’s budget, and funded from the General Fund (010). The requested funding totals $285,000; for comparison purposes, the FY 21-22 budget is $116,000. City Staff will make a recommendation to City Council for Community Funding Requests as a part of the May 25, 2022 Budget Workshop.
CEQA (California Environmental Quality Act):
Not a Project
Council funding ultimately supports events held on public property. The support and permitting of the City to allow these events is categorically exempt under Class 1 Existing facilities, which consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination.
CITY OF MORGAN HILL
CITY COUNCIL POLICIES AND PROCEDURES
CP-21-02
SUBJECT: CITY COUNCIL FUNDING REQUESTS
EFFECTIVE DATE: NOVEMBER 3, 2021
REVISED DATE: NA
ORIGINATING DEPARTMENT: COMMUNITY SERVICES DEPARTMENT
Purpose
The purpose of this policy is to establish a process for community organizations to request funding to support fee waivers, event sponsorship, and other funding requests from the City Council. The policy is intended to allow the City Council to fully evaluate all funding requests at one time along with budget appropriation.
Policy
1. Applicant Criteria
a. The organization requesting funding must be a nonprofit. b. The program, event, or activity provides a direct benefit to the Morgan Hill community.
c. Programs in alignment with the City Council’s Goals and Priorities shall be given priority. City Council priorities are established by the City Council in January of each year.
d. Each organization must submit an inclusivity statement describing how the organization and/or the proposed activity is inclusive of the entire community. e. Existing programs and events may be given priority.
2. Application Availability and Deadline
a. Applications for the next Fiscal Year (July-June) will be available on the City’s website annually in February.
b. Completed applications will be due annually in March.
3. Review and Approval Process
a. Applications will be reviewed by the City staff.
b. Funding applications and details will be included annually in the Budget Development or Mid-Cycle Budget Review process.
c. The City Manager will make recommendations on funding to the City Council based on established Council priorities and funding constraints. d. The City Council shall award and include final funding within the Budget.
4. Reporting Requirements
DocuSign Envelope ID: 87764CAC-F5F2-4AC2-921C-27D9BF34420E
a. Within thirty days following the conclusion of the funded activity, the organization must submit a report to the City reporting out pertinent information related to the activity. For ongoing activities, an annual report must be submitted by July 30 for the prior fiscal year. b. The report shall include a record of the use of City funds and statistics and information that provides details on the activity’s impact to the community.
5. Late Requests
a. Requests received after the deadline shall not be accepted by City staff.
6. Council Member Initiated Event and Fee Waiver Requests a. A member of the City Council may request a fee waiver or funding be provided for an event by applying with the above application process by the March deadline. b. All Council Member initiated requests occurring after the March deadline must be provided to the City Manager 90 days in advance of the event to allow sufficient time to bring to City Council for approval.
c. The City Staff shall prepare a report for the City Council for approval of any Council Member initiated requests.
This policy shall remain in effect until modified by the City Council.
APPROVED:
_______________________________
RICH CONSTANTINE, MAYOR
DocuSign Envelope ID: 87764CAC-F5F2-4AC2-921C-27D9BF34420E
17 CITY COUNCIL STAFF REPORT
MEETING DATE: April 20, 2022
PREPARED BY:
Bill Norman, Police Sergeant
APPROVED BY: City Manager
INTRODUCE AN ORDINANCE ESTABLISHING ENFORCEMENT
EFFORTS FOR SIDESHOW PARTICIPANTS AND SPECTATORS
RECOMMENDATION(S)
1. Waive first and second reading of the ordinance; and
2. Introduce an ordinance establishing a process to prohibit spectators from participating in illegal speed contests, exhibitions of speed or reckless driving exhibitions.
Estimated Time: 5 Minutes
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Preserving and Cultivating Public Trust
Guiding Documents
Public Safety Master Plan
REPORT NARRATIVE:
Due to the recent popularity of various movies, TV shows, and social media posts, illegal street racing has become more than just a few vehicles racing on a lonely road.
Instead, in many of the cities throughout the Bay Area, these gatherings have become major events with very large crowds. With the growing popularity statewide of “sideshows”, these events have become more and more difficult to safely handle and control due to limited staffing and the lack of officers who possess the knowledge to properly enforce state vehicle codes related to illegal street racing.
In an effort to combat these issues, many cities statewide have begun to adopt spectator ordinances in order to address illegal street racing and sideshow events.
These ordinances have allowed police officers to issue a misdemeanor citation to spectators who are found gathering at either an illegal street race/sideshow, or preparation areas for a street race/sideshow. These spectator ordinances have proven to be effective in not only preventing spectators from gathering but in reducing the
17 number of people willing to break the law by watching these illegal events. They have also reduced the number of spectators who have been injured or killed.
The illegal street racing crowds tend to look for areas within different cities where enforcement action by police officers is less likely to occur. Typically, when these large groups are confronted by law enforcement, they tend to have backup meeting areas within other nearby locations. By utilizing different social media platforms, these large groups can find different locations very quickly so they can continue their law-breaking behavior uninterrupted. People within these groups often show a lack of concern for anyone else’s safety, especially for any spectators surrounding the events. As recently as fall 2021, there were several reports in the Bay Area where spectators suffered lifethreatening injuries.
Since the spectator ordinance is being presented as a municipal code, citations will be issued by police officers and misdemeanor cases will be heard by the City Attorney instead of being heard via traditional court hearings. This will ensure that each person associated with these events will be prosecuted to the fullest extent of the law by our City Attorney's Office.
With the growing amount of support from the community and law enforcement leaders, now is the perfect time to set forth this ordinance in order to address the growing public safety concern and quality-of-life issues. The Morgan Hill Police Department has has responded to one sideshow in our City and prevented nearly a dozen others from occurring in the past two years.
COMMUNITY ENGAGEMENT:
This Staff Report serves to inform the community of the Police Department’s desire to establish an ordinance prohibiting spectators at illegal speed contests, exhibition of speed or reckless driving exhibitions.
ALTERNATIVE ACTIONS:
Should the City Council decline to adopt this ordinance, the Police Department will be hampered in their efforts to reduce illegal “sideshows”, preserve public safety and prevent future acts from occurring.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
Not Applicable
FISCAL AND RESOURCE IMPACT:
With the adoption of this proposed ordinance, enforcement costs would be minimal and absorbed within existing duties.
CEQA (California Environmental Quality Act):
Not a project.