Regular Meeting Agenda
City Council
Mark Turner - Mayor
Rene Spring - Mayor Pro Tem
Gino Borgioli - Council Member
Marilyn Librers - Council Member
Yvonne Martínez Beltrán - Council Member
Wednesday, November 15, 2023 6:00 PM
Council Chamber Building
17555 Peak Avenue, Morgan Hill, CA 95037
Morgan Hill City Council meetings are held in person with the option for the public to attend in-person or view by teleconference/video conference. Information on how the public may observe and participate in the meeting is located below.
MEETING PARTICIPATION AND PUBLIC COMMENT
City Council meetings will be live-streamed on Channel 17, the City’s website, and the City’s Facebook page.
Those members of the community that would like to view the meetings remotely may do so by joining virtually at: https://bit.ly/MHCityCouncilMeeting, by calling (669) 900-9128, then enter the webinar id: 873 3200 8380# or on our website at https://www.morganhill.ca.gov/2101/Agendas-Minutes.
Public comment may only be provided in the following ways:
• In-person at the City Council Meeting;
• In writing
o Via email to [email protected]; or
o Hard copy hand delivered or by mail to the City Clerk at 17575 Peak Avenue, Morgan Hill, CA 95037.
Please email your comments to the City Clerk no later than 3:00 p.m. on Tuesday (the day before the City Council meeting) for your comments to be submitted to the members of the City Council with sufficient time to review the comments. You may continue to provide written comments up to noon on Wednesday (the day of the
November 15, 2023
2 meeting) although Council Members may not have sufficient time to review them before the meeting. Public comments submitted to the City Clerk after 12:00 p.m. the day of the meeting will be provided to the City Council as time allows.
Written comments WILL NOT be read aloud during the City Council Meeting. Please note that written comments are posted on the City’s website. It is recommended that you do not include any personal information that you do not want to be posted on the web.
CALL TO ORDER
ROLL CALL ATTENDANCE
DECLARATION OF POSTING AGENDA
SILENT INVOCATION
PLEDGE OF ALLEGIANCE
PROCLAMATIONS
Proclaiming the month of November as Morgan Hill Community Philanthropy Month
PRESENTATIONS
YAC Presentation
CITY COUNCIL REPORTS
Council Member Librers
November 15, 2023
3 CITY MANAGER'S REPORT
CITY ATTORNEY'S REPORT
OTHER REPORTS
PUBLIC COMMENT
This opportunity for public comment is for items that are not on the agenda. If you would like to make comments on an item that is on the agenda, please wait until we get to that item to offer your comments. Members of the public are entitled to address the City Council concerning any item within the Morgan Hill City Council’s subject matter jurisdiction. Public comments are limited to no more than three minutes. Except for certain specific exceptions, the City Council is prohibited from discussing or taking action on any item not appearing on the posted agenda. Public comment is intended for comments. Questions posed during public comment are not generally answered. If you have questions, please send them to the City Clerk at [email protected] to receive a response. (See additional noticing at the end of this agenda)
ADOPTION OF AGENDA
CONSENT CALENDAR
Items appearing on the Consent Calendar are considered routine and may be approved by one motion. Pursuant to City Council Policies and Procedures (CP 97-01), any member of the Council or public may request to have an item removed from the Consent Calendar for comment and action.
1. ACCEPT DONATION OF UP TO $20,000 FOR INSTALLATION OF
IMPROVEMENTS AT COMMUNITY PARK FROM THE ROTARY CLUB OF
MORGAN HILL
Recommendation:
Authorize the City Manager to accept a donation of funding and services valued up to $20,000 for the installation of new pathways, trees, tables, landscaping and associated improvements.
2. APPROVE AMENDMENT TO ON-CALL WATER AND SEWER REPAIR
CONTRACT WITH GOLDEN BAY CONSTRUCTION
Recommendation:
Authorize the City Manager to execute an amendment to the on-call water and sewer repair contract with Golden Bay Construction with compensation up to $750,000.
November 15, 2023
4 3. APPROVE PUBLIC IMPROVEMENTS FINANCING AGREEMENT WITH
ADVENT LUTHERAN CHURCH OF MORGAN HILL
Recommendation:
1. Approve a Public Improvements Financing Agreement with Advent Lutheran Church of Morgan Hill; and
2. Authorize the City Manager to execute, administer and further negotiate the Financing Agreement as necessary.
4. APPROVE A REIMBURSEMENT AGREEMENT WITH NORDSTROM CAL
HOMES, LLC FOR OUT-OF-TRACT PUBLIC IMPROVEMENTS ADJACENT TO THE DUNNE MURPHY SUBDIVISION (TRACT NO. 10387)
Recommendation:
1. Approve a Reimbursement Agreement with NORDSTROM CAL HOMES, LLC;
2. Authorize the City Manager to execute the Reimbursement Agreement; and
3. Adopt a resolution to amend FY 2023-24 budget to appropriate $305,748 in the Traffic Impact Fund (309).
5. APPROVE CONSULTANT AGREEMENT WITH IMS INFRASTRUCTURE
MANAGEMENT SERVICES, LP FOR SIDEWALK
ASSESSMENT IN THE AMOUNT OF $156,950
Recommendation:
1. Approve and authorize the City Manager to execute a consultant agreement with IMS Infrastructure Management Services in the amount of $156,950 for the completion of a sidewalk and curb ramp assessment; and
2. Adopt a resolution to amend the FY 2023-24 budget to appropriate $156,950 in the Public Facilities Fund (346).
6. APPROVE MEMORANDUM OF UNDERSTANDING (MOU) WITH MORGAN
HILL POLICE OFFICERS' ASSOCIATION (POA), MOU WITH COMMUNITY
SERVICE OFFICERS' ASSOCIATION (CSOA) AND MOU WITH THE
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES (AFSCME) AND CORRESPONDING SALARY SCHEDULES;
AND APPROVE MANAGEMENT, PROFESSIONAL, AND CONFIDENTIAL
EMPLOYEES RESOLUTION, ELECTED OFFICIALS AND COUNCIL
APPOINTED AND PART-TIME TEMPORARY AND SEASONAL EMPLOYEES
SALARY SCHEDULES
November 15, 2023
5 Recommendation:
1. Approve a Memorandum of Understanding (MOU) with POA effective December 24, 2023 - December 31, 2025 and corresponding salary schedules;
2. Approve a MOU with CSOA effective December 24, 2023 - December 31, 2025 and corresponding salary schedules;
3. Approve a MOU with AFSCME effective December 24, 2023 - December 31, 2025 and corresponding salary schedules pending ratification;
4. Approve the Management, Professional, and Confidential Employees Resolution effective December 24, 2023 and corresponding salary schedules;
5. Approve the Part-Time Temporary and Seasonal Employees salary schedule effective December 24, 2023;
6. Approve the Elected Officials and Council Appointed salary schedules; and
7. Receive update regarding the salaries of the Elected Officials and potential future amendment of Sections 2.04.020 Salary of Council Members and 2.04.030 Salary of the Mayor of the Chapter 2.04 City Council of the Municipal Code of the City of Morgan Hill.
7. APPROVE SECOND AMENDMENT TO MISSION LINEN SUPPLY SERVICE
AGREEMENT
Recommendation:
1. Approve the Second Amendment to the Service Agreement with Mission Linen Supply for a fourth year of services for $20,000, for a total contract amount of $80,000; and
2. Authorize the City Manager to execute and administer one additional oneyear extension of the Service Agreement subject to future budget appropriations.
8. APPROVE THE NOVEMBER 1, 2023 CITY COUNCIL MEETING MINUTES Recommendation:
Approve minutes.
9. APPROVE THE 2024 CITY COUNCIL MEETING SCHEDULE
Recommendation:
Review, discuss, if needed, amend, and approve the 2024 City Council meeting schedule.
10. RECEIVE REPORT REGARDING UPCOMING 2024 COMMISSION
VACANCIES PER MADDY ACT
November 15, 2023
6 Recommendation:
Receive report.
PUBLIC HEARINGS
11. AFFIRM OR MODIFY PLANNING COMMISSION APPROVAL OF A
CONDITIONAL USE PERMIT AND DESIGN PERMIT TO ALLOW AN
APPROXIMATELY 5,000 SQUARE FOOT DRIVE-THROUGH RESTAURANT (CHICK-FIL-A) ON A 1.82 ACRE SITE AT SUTTER AND COCHRANE Recommendation:
1. Open/close public hearing; and
2. Adopt a resolution affirming the decision of the Planning Commission to adopt Resolution No. 23-08 approving the Conditional Use Permit and Resolution No. 23-09 approving the Design Permit.
12. ADOPT AMENDMENT TO THE MORGAN HILL MUNICIPAL CODE TO
CREATE A VEHICLE SALES OVERLAY ZONE (-VS) AT COCHRANE AND US 101
Recommendation:
1. Open/close public hearing;
2. Waive first and second reading of the Ordinance Amendment; and
3. Introduce Ordinance Amendment
OTHER BUSINESS
13. RECEIVE UPDATE AND PROVIDE INPUT ON THE TRANSPORTATION
MASTER PLAN
Recommendation:
1. Receive an update on the Transportation Master Plan; and
2. Provide input to the project team.
14. PROVIDE DIRECTION REGARDING POTENTIAL MUNICIPAL CODE TEXT AMENDMENTS TO THE CITY OF MORGAN HILL’S AMUSEMENT &
ENTERTAINMENT AND NOISE ORDINANCES
Recommendation:
Provide Strategic Direction for amending the identified chapters of the Municipal Code.
November 15, 2023
7 15. DIRECT THE CITY MANAGER TO NEGOTIATE AGRO-TOURISM USE ON CITY-OWNED AGRICULTURAL PROPERTY WITH TERRA AMICO, INC.
Recommendation:
Authorize the City Manager to negotiate an agreement for agro-tourism development on City-owned property located at the southeast corner of Highway 101 and Tennant Avenue with Terra Amico, Inc.
16. PROVIDE DIRECTION TO STAFF ON PROPOSED FUTURE COUNCIL
INITIATED AGENDA ITEMS
Recommendation:
Determine if the majority of the City Council wants the following items agendized at a future meeting for discussion:
1. Consider providing more lead time for posting City Council agendas;
2. Consider a discussion on the Agricultural Mitigation Policy 18.152.050 - Mitigation ratio;
3. Consider a discussion on potential funding mechanisms for public art;
4. Consider revisiting City Council Policy 21-02, City Council Funding Requests; and
5. Consider a discussion on options for providing public comment and the transparency of remote meeting participants.
FUTURE COUNCIL INITIATED AGENDA ITEMS
Note: in accordance with Government Code Section 54954.2(a), there shall be no discussion, debate and/or action taken on any request other than providing direction to staff to place the matter of business on a future agenda.
ADJOURNMENT
November 15, 2023
8 NOTICE
Any documents produced by the City and distributed to the majority of the City Council less than 72 hours prior to an open meeting, will be made available for public inspection at the City Clerk’s Counter at City Hall located at 17575 Peak Avenue, Morgan Hill, CA, 95037 and at the Morgan Hill Public Library located at 660 West Main Avenue, Morgan Hill, California, 95037 during normal business hours. (Pursuant to Government Code 54957.5)
PUBLIC COMMENT
Members of the Public are entitled to directly address the City Council concerning any item that is described in the notice of this meeting, before or during consideration of that item. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located in the foyer of the Council Chambers and deliver it to the Minutes Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful. When you are called, proceed to the podium and the Mayor will recognize you. If you wish to address the City Council on any other item of interest to the public, you may do so during the public comment portion of the meeting following the same procedure described above. Please limit your comments to three (3) minutes or less.
Please submit written correspondence to the Minutes Clerk, who will distribute correspondence to the City Council.
Persons interested in proposing an item for the City Council agenda should contact a member of the City Council who may request an item on the agenda for a future City Council meeting. Council discussion or action may not be taken until your item appears on an agenda. This procedure is in compliance with the California Public Meeting Law (Brown Act) Government Code §54950.
City Council Policies and Procedures (CP 03-01) outlines the procedure for the conduct of public hearings.
Notice is given, pursuant to Government Code Section 65009, that any challenge of Public Hearing Agenda items in court, may be limited to raising only those issues raised by you or on your behalf at the Public Hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to the Public Hearing on these matters.
The time within which judicial review must be sought of the action by the City Council, which acted upon any matter appearing on this agenda is governed by the provisions of Section 1094.6 of the California Code of Civil Procedure.
For a copy of City Council Policies and Procedures CP 97-01, please contact the City Clerk’s office (408) 779-7259, (408) 779-3117 (fax) or by email [email protected].
AMERICANS WITH DISABILITIES ACT (ADA)
In compliance with the Americans with Disabilities Act, if you are a disabled person and you need a disability-related modification or accommodation to participate in this meeting, please contact the City Clerk's Office at (408)779-7259, (408)779-3117 (fax) or by email [email protected]. Requests must be made as early as possible and at least two-full business days before the start of the meeting.
November 15, 2023
9
November
Developmental Asset #34:
Cultural Competence
Young people have knowledge of and comfort with
people of different cultural/racial/ethnic
backgrounds.
The Developmental Relationship
Framework
The Developmental relationship Framework
provides support for youth by…
- Emphasizing how relationship’s function
- Illuminating how specific relationships can
be strengthened
- Encouraging youth to reflect and be
intentional with their interactions
- Inspiring youth to be resilient when they
face challenges
- Categorizing specific areas of
development and how adults can help to
nourish them
November
Complementary Asset:
Believe in me
Believe in me -
Make me feel known and valued
DJ William,
YAC Active
Member
Meeting People from all Cultures
◆ Debate Class
◆ Impact of Peers
◆ Unique and special cultures
Stephanie Chen,
YAC Active
Member
A Taste of Diversity
◆ School offers foods from different cultures
◆ Familiarity with different cultures
◆ Cultures are more appreciated and enjoyed
Julianna Bristol,
YAC Board Member
Experiences encouraging cultural competence
◆ My mixed family
◆ Different cultures
◆ Impact of cultural diversity in my life
“To be culturally humble means that I
am willing to learn”
-Joe
Gallagher
1 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Manager
ACCEPT DONATION OF UP TO $20,000 FOR INSTALLATION OF
IMPROVEMENTS AT COMMUNITY PARK FROM THE ROTARY CLUB
OF MORGAN HILL
RECOMMENDATION(S)
Authorize the City Manager to accept a donation of funding and services valued up to $20,000 for the installation of new pathways, trees, tables, landscaping and associated improvements.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Supporting our Youth, Seniors, and Entire Community
Enhancing Diversity and Inclusiveness
2022-2023 Strategic Priorities
Fiscal Sustainability
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
Urban Forest Management Plan
REPORT NARRATIVE:
The Rotary Club of Morgan Hill has brought forward a project to make further improvements to Community Park adjacent to the Morgan Hill Magical Bridge Playground. Rotary is proposing to add trees, irrigation, picnic tables and accessible pathways to the area identified in the attachment. Rotary's donation will be made via direct funding provided to the City to purchase equipment/materials and install improvements as well as perform in kind work to improve the area. The purpose of the improvements is to provide a shaded area for families to utilize adjacent to the playground. The improved area would not be for a rentable picnic space, but would be intended to provide seating for drop in use.
COMMUNITY ENGAGEMENT:
Empower
The project was brought forward by community members from the Rotary Club of
1 Morgan Hill in consultation with City staff and will be implemented by both volunteers and City staff.
ALTERNATIVE ACTIONS:
The City Council could choose not to accept the donation and provide staff and the Rotary Club with alternate feedback. This would result in the project not moving forward.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The City has worked with the Rotary Club of Morgan Hill on various projects and initiatives for decades. Most recently the Rotary Club of Morgan Hill has provided ongoing funding and volunteer work for the improvement and maintenance of Galvan Park. This work has included improvement projects, new equipment and monthly volunteer work. In September 2017, the City Council accepted the Rotary Club donation of $100,000 in funding towards improvements that were part of the Downtown Parks Project.
FISCAL AND RESOURCE IMPACT:
The Rotary Club improvement project at Community Park is not anticipated to create significant ongoing operational expenses. The largest operational expenses will be related to tree trimming that will be required many years down the road. The Project will require support from the Public Services Department, but improvements to a City park facility will be made that otherwise would not be improved.
CEQA (California Environmental Quality Act):
Categorical Exemption
Categorically exempt from the requirements of the California Environmental Quality Act (CEQA) Guidelines pursuant to: 1) Section 15304 Class 4 “Minor Alterations to Land” for the construction of new pathways, bicycle paths, changes to existing landscaping, grading, and cut and fill of soils and 2) Section 15311 Class 11 “Accessory Structures” for the construction of appurtenant structures in a publicly owned park.
11/1/23 $(
Public Services Department Rotary Volunteer Project Area 1 1
2 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Manager
APPROVE AMENDMENT TO ON-CALL WATER AND SEWER REPAIR
CONTRACT WITH GOLDEN BAY CONSTRUCTION
RECOMMENDATION(S)
Authorize the City Manager to execute an amendment to the on-call water and sewer repair contract with Golden Bay Construction with compensation up to $750,000.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Protecting the Environment and Preserving Open Space and Agricultural Land Maintaining and Enhancing Infrastructure
REPORT NARRATIVE:
In August 2023, the City entered into a contract with Golden Bay Construction, in addition to Anderson Pacific Engineering Construction, to provide on-call underground construction work supporting water, wastewater and storm water work. The intent of having multiple on-call contractors is to undertake emergency repairs while at the same time ensuring the best value for the City. The City requests cost estimates from on-call contractors prior to initiating work when possible.
Immediately following the contract, the City utilized Golden Bay to replace a sewer main below Main Avenue. The City had just received CCTV video noting that the major sewer line between Main Avenue and the railroad tracks was in need of repair/replacement.
The on-call contract with Golden Bay was utilized to complete this work quickly ahead of the pavement work that was scheduled to occur this month. This was done to prevent severe damage to the new pavement in the future. During the work, additional unforeseen needs were discovered that required work on lines connecting to the main.
The entirety of the work was completed in October at a cost of approximately $295,000.
This left $105,000 on the on-call contract with Golden Bay.
The City has been working with contractors on numerous repairs relating to the storms that occurred in early 2023. The majority of repairs have been completed. However, going into October, one very difficult repair had not been completed. This repair was a damaged sewer main that was damaged due to a major hillside landslide. For five months, the City has been attempting to find contractors to complete this work, but had
2 been unsuccessful due to the difficulty in accessing the site. Staff had contacted all City on-call contractors and multiple other contractors that specialized in the type of work.
Golden Bay provided notice to the City that the company could complete the work. Due to the nearing rainy season, City staff considered this work an emergency and authorized Golden Bay to move forward with the work. The majority of the work is substantially complete, with only some restoration work needing completion. The estimated project costs are approximately $350,000. City staff have been working with FEMA and the City's insurance pool on this project and others and believes it will receive reimbursement of the funds for this specific project directly from FEMA.
City staff is recommending increasing the contract with Golden Bay to $750,000 to cover the cost of this work and leave some remaining funds available for other small emergency work.
COMMUNITY ENGAGEMENT:
Not Applicable
Ongoing maintenance of City infrastructure, including emergency response, is an expected service provided by the City.
ALTERNATIVE ACTIONS:
The Council could choose to only fund the emergency work with Golden Bay without additional funding for future needs. This is not recommended as Golden Bay has demonstrated it has strong capabilities at reasonable rates.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The Council previously approved the initial on-call contracts with Golden Bay Construction on August 23, 2023.
FISCAL AND RESOURCE IMPACT:
Funding for the work performed comes from the Sewer Repair and Replacement Project, funded through the Sewer Capital Project Fund 643. Reimbursement from FEMA to the Fund of approximately $350,000 in costs is anticipated.
CEQA (California Environmental Quality Act):
Categorical Exemption
This project is Categorically Exempt pursuant to Section 15301 of CEQA Guidelines because the work to be performed is the repair of existing City infrastructure involving no expansion of existing use.
1 FIRST AMENDMENT TO AGREEMENT
GOLDEN BAY CONSTRUCTION, INC.
This FIRST AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and GOLDEN BAY CONSTRUCTION, INC., a California Corporation ("SERVICE PROVIDER"), hereinafter referred to collectively as the “Parties".
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 Hill City Council taken on ___________, ____, 20___.
2. The CITY and SERVICE PROVIDER entered into that “Maintenance Service Agreement” made as of September 8, 2023, for services for a maximum compensation of Four Hundred Thousand Dollars ($400,000.00) (“SERVICE AGREEMENT”). The SERVICE AGREEMENT is attached as Exhibit “1” to this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Amendments: All terms and conditions of the SERVICE AGREEMENT, as amended, as attached as Exhibit "1,” shall remain in full force and effect; except that the following amendments shall be made as set forth below:
A. Paragraph 4.1 shall be amended and replaced in its entirety by the following:
"4.1. Amount. Compensation under this Agreement shall not exceed SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00) and shall be billed based on the rate and basis set forth in Exhibit B. If the City Manager extends the term of this Agreement 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 SERVICE PROVIDER during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDER for one year of service during the initial term of this Agreement. ///
///
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[Signatures on the Next page]
2 2. Electronic Signatures. Unless otherwise prohibited by law or CITY policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the CITY.
3. 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 SERVICE AGREEMENT, 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; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
ATTEST: CITY OF MORGAN HILL
Michelle Bigelow, City Clerk Christina Turner, City Manager Date: Date:
APPROVED AS TO FORM: GOLDEN BAY CONSTRUCTION, INC.
Donald Larkin, City Attorney 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
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
MAINTENANCE SERVICE AGREEMENT
GOLDEN BAY CONSTRUCTION, INC.
THIS AGREEMENT is entered into and becomes effective on 9/8/2023 (Effective Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and Golden Bay Construction, Inc. a California corporation ("SERVICE PROVIDER") 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. Cltv Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on August, -2L, 20..u_.
2. Term of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until June 30, 2026, at which time SERVICE PROVIDER'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 SERVICE PROVIDER shall be on-call water and sewer repairs as further described in Exhibit A.
4. Compensation. SERVICE PROVIDER shall be compensated as follows:
4.1. Amount. $400,000. Total compensation to SERVICE PROVIDER under this Agreement during its initial term set forth in Section 2 above shall not exceed Four Hundred 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 pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to SERVICE PROVIDER during that extended tenn period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDER for one year of service during the initial tenn of this Agreement.
4.2. Billing. SERVICE PROVIDER shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services perfonned and expenses incurred (if such expenses are reimbursable pursuant to Exhibit B) by SERVICE PROVIDER on a monthly basis unless otherwise specified in Exhibit B. All invoices shall be sent to the CITY addressed to the department head or project manager identified below in Section 14 Notices. Payment will be made to SERVICE PROVIDER within thirty (30) days of receipt of invoice by CITY. Any rate charged shall be prorated where services• are interrupted or not provided for any rate period (for example, any monthly rate charge should be prorated when services were interrupted or provided for only part of the month). For services billed on an hourly rate, the minimum unit of billed time shall not exceed one tenth of one hour. CITY shall pay for services and expenses (if so provided in Exhibit B) up to the limit of compensation set forth above, that in the CITY'S judgment were necessary and reasonable. Services for work performed and expenses incurred in excess of the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.
1 Updated: May 2023
EXHIBIT 1
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
5. Termination. CITY or SERVICE PROVIDER shall have the right to terminate this Agreement, without cause, by giving thirty (30) days' written notice or less under urgent circumstances. Upon such termination, SERVICE PROVIDER shall submit to CITY an itemized statement of services performed for which compensation has not been paid. CITY may require SERVICE PROVIDER to complete certain work product or documents and SERVICE PROVIDER shall deliver to CITY an documents in its possession without additional compensation to SERVICE PROVIDER. The City Manager is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.
5. 1. Non-Appropriations. Notwithstanding anything contained in this Agreement to the contrary, if insufficient funds are appropriated, or funds are otherwise unavailable in the budget for CITY for any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify SERVICE PROVIDER of such occurrence, and this Agreement shall terminate after the last day during the fiscal year for which appropriations shall have been budgeted for CITY or are otherwise available for payments.
6. Performance of Work. SERVICE PROVIDER represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services. Services shall be performed by SERVICE PROVIDER in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of SERVICE PROVIDER'S profession. By delivery of completed work, SERVICE PROVIDER certifies that the work conforms to the requirements of this Agreement and all applicable federal, state, and local laws. SERVICE PROVIDER is liable for any property damage caused by SERVICE PROVIDER or its Subcontractors during performance of the services and shall notify the CITY of damage within 24 hours of the occurrence. SERVICE PROVIDER must promptly repair or replace any real or personal property damage and must promptly restore the property to its original or intended condition. CITY may repair or replace the real or personal property damage if SERVICE PROVIDER fails to do so, and the cost of the repairs or replacement may be deducted or offset from any compensation due to SERVICE PROVIDER.
6.1. Schedule. SERVICE PROVIDER shall perform all work and services under this Agreement in conformance with the time schedule set forth on Exhibit C, "Schedule of Performance," attached hereto and incorporated herein by this reference. The City Manager is authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement.
6.2. Storage of Service Provider's Eguipment. If SERVICE PROVIDER desires to leave or store any of SERVICE PROVIDER'S equipment at a CITY site while SERVICE PROVIDER is performing work or service pursuant to this Agreement, SERVICE PROVIDER will first obtain the consent of the City Manager, or his/her delegate, to do so, and any such storage shall occur only in the manner and location allowed by such CITY official and entirely at SERVICE PROVIDER'S sole risk.
7. Hazardous Materials. Without limiting any other requirement or obligation of SERVICE PROVIDER under this Agreement, if SERVICE PROVIDER needs to use any material or chemical considered to be a hazardous material under any federal, state or local law, regulation or policy, SERVICE PROVIDER agrees to fully and timely abide by and comply with all laws, regulations and policies pertaining to the use, transport, removal, handling, disposal or other activity related to any and all such materials or chemicals. Prior to commencement of work or services under this Agreement, SERVICE PROVIDER shall provide CITY with a complete list of the hazardous materials SERVICE PROVIDER reasonably anticipates it may need to use to provide the services of SERVICE PROVIDER under this Agreement, together with the reasonably anticipated quantities thereof, if requested by CITY. 2 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
8. Insurance Requirements. SERVICE PROVIDER shall procure and provide proof of the insurance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of SERVICE PROVIDER, including its subcontractors, employees and agents, relating to or arising from the performance of any work or service under this Agreement, and must remain in full force and effect at all times during the period covered by this Agreement. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or "umbrella" policies, provided each such policy complies with the requirements set forth herein. Any deductibles or self-insured retentions must be declared to and approved by City. SERVICE PROVIDER further understands that CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days' notice provided to SERVICE PROVIDER, at any time as deemed necessary to protect the interests of CITY.
8.1. Insurance Types and Amounts.
8.1.1. Commercial General Liability (CGL}. SERVICE PROVIDER shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
8.1.2. Automobile Liability. SERVICE PROVIDER shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if SERVICE PROVIDER does not own automobiles, then SERVICE PROVIDER shall maintain Hired/Nonowned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVI CE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
8.1.3. Workers' Compensation Insurance and Employer's Liability. SERVICE PROVIDER shall maintain Workers Compensation coverage, as required by law, in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater. If SERVICE PROVIDER is self-insured, SERVICE PROVIDER shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.
8.1.4. Pollution (Environmental) Liability. If the performance of SERVICE PROVIDER'S work or service under this Agreement involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, SERVICE PROVIDER shall procure and maintain Pollution Liability covering the SERVICE PROVIDER'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 3 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
8.1.5. Professional Liability.
8.1.5.1. If the performance of SERVICE PROVIDER'S work or service under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), SERVICE PROVIDER shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater. Further, if SERVICE PROVIDER maintains a claims-made policy, SERVICE PROVIDER shall provide written evidence of such insurance to CITY for at least five (5) years after the completion of work performed under this Agreement.
8.1.5.2. If the performance of SERVICE PROVIDER'S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), SERVICE PROVIDER shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
8.1.6. Sexual Abuse/Molestation Liability (SML): If the performance of SERVICE PROVIDER'S work or service under this Agreement involves contact with minors, SERVICE PROVIDER shall procure and maintain Sexual Abuse and Molestation insurance in the minimum amount of: (i) . two hundred thousand dollars ($200,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
82. Endorsements. SERVICE PROVIDER shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:
8.2.1. General Liability and pollution liability (when pollution liability applies).
8.2.1.1. "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.
4 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
8.2.1.2. "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
8.2.1.3. "Primary and Non-Contributing" - Insurance shalt be endorsed to be primary and non-contributory and will not seek contribution from the City's insurance or self-insurance and shall be at least as broad as ISO Form CG 20
01. 8.2.2. Workers Compensation.
If the performance of SERVICE PROVIDER'S work or service under this Agreement involves access to or activity on any property or premises owned or occupied by the CITY, including, but not limited to, SERVICE PROVIDER'S presence during site visits and meetings, then insurer waives the right of subrogation against the City of Morgan Hill and the CITY'S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.
8.3. 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 AM.
Best's financial strength rating of "A" or better and a financial size rating of "VI I" or better.
8.4. Certificates. SERVICE PROVIDER shalt furnish CITY with copies of all certificates as outlined herein, whether new or modified, promptly upon receipt. In the event of a claim or legal action, SERVICE PROVIDER shall promptly furnish CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to SERVICE PROVIDER'S agreement with CITY shall be canceled or materially changed except after thirty (30) days' notice by the insurer to CITY. A "material change" is a change that results in noncompliance with any insurance requirements in this section 8. Certificates, including renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address provided herein.
Certificate Holder address:
City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037
9. Non-Liability of Officials and Employees of CITY. No official or employee of CITY shall be personally liable for any default or liability under this Agreement.
10. Compliance with Law.
10.1. SERVICE PROVIDER and its officers,· employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. SERVICE PROVIDER and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon any basis prohibited by State or Federal law, including but not limited to, race, color, creed, religion, gender, marital status, age, sexual 5 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 orientation, national origin, mental disability, physical disability, medical condition, or ancestry, in any activity pursuant to this Agreement.
10.2. Without limiting the provisions of Section 10.1 above, each worker performing work under this Agreement shall be paid at a rate not less than the prevailing wage as defined in Sections 1771 and 1774 of the Labor Code. The prevailing wage rates are available online at http://www.dir.ca.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 ($200.00) for each calendar day, or portion thereof, for each worker paid less than the applicable prevailing wage rate. SERVICE PROVIDER shall also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker.
10.3. DIR Registration. CITY will not accept a Bid Proposal from or enter into a contract with a SERVICE PROVIDER, without first receiving proof to the satisfaction of CITY that SERVICE PROVIDER and its subcontractors are registered with the California Department of Industrial Relations to perform public work under Labor Code Section 1725.5, subject to limited legal exceptions. Under Labor Code section 1771.4, this Agreement is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.
10.4. Compliance with Wage and Hour Laws: SERVICE PROVIDER, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code.
Final Judgments, Decisions, and Orders: For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time to appeal has expired. Relevant investigatory government agencies include: the federal Department of Labor, the California Division of Labor Standards Enforcement, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
Prior Judgments against SERVICE PROVIDER and/or its Subcontractors: BY SIGNING
THIS AGREEMENT, SERVICE PROVIDER AFFIRMS THAT IT HAS DISCLOSED ANY
FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR
INVESTIGATORY GOVERNMENT AGENCY FINDING -IN THE FIVE (5) YEARS
PRIOR TO EXECUTING THIS AGREEMENT -THAT SERVICE PROVIDER OR ITS SUBCONTRACTOR($) HAS VIOLA TED ANY APPLICABLE WAGE AND HOUR LAWS.
SERVICE PROVIDER FURTHER AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S)
HAS SATISFIED AND COMPLIED WITH - OR HAS REACHED AGREEMENT WITH
THE CITY REGARDING THE MANNER IN WHICH IT WILL SATISFY -ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.
Judgments or Decisions During Term of Contract: If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or SERVICE PROVIDER learns of such a judgment, decision, or order that was not previously disclosed, SERVICE PROVIDER shall inform the City Attorney, no more than fifteen (15) days after the judgment, decision or order becomes final or of learning of the final 6 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 judgment, decision or order. SERVICE PROVIDER and its subcontractors shall promptly satisfy and comply with any such judgment, decision, or order, and shall provide the City Attorney with documentary evidence of compliance with the final judgment, decision or order within five (5) days of satisfying the final judgment, decision or order. CITY reserves the right to require SERVICE PROVIDER to enter into an agreement with CITY regarding the manner in which any such final judgment, decision, or order will be satisfied.
City's Right to Withhold Payment: Where SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has been found in violation of any applicable wage and hour law by a final judgment, decision or order of a court or government agency, CITY reserves the right to withhold payment to SERVICE PROVIDER until such judgment, decision or order has been satisfied in full.
Material Breach: Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.
Notice to City Related to Wage Theft Prevention: Notice provided to the City Attorney as required under this Section shall be addressed to: City Attorney, City of Morgan Hill, 17575 Peak Avenue, Morgan Hill, CA 95037. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.
11. Independent Contractor. SERVICE PROVIDER is an independent contractor and not an agent or employee of CITY.
12. Confidentiality. All data, documents, or other information received by SERVICE PROVIDER from CITY or prepared in connection with SERVICE PROVIDER'S services under this Agreement are deemed confidential and shall not be disclosed to any third party by SERVICE PROVIDER without prior written consent by CITY.
13. Conflict of Interest and Reporting. SERVICE PROVIDER shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.
14. Notices. All notices shall be personally delivered or mailed, via first class mail to the below listed address. These addresses shall be used for delivery of service of process. Notices shall be effective five (5) days after date of mailing, or upon date of personal delivery.
Address of SERVICE PROVIDER is as follows:
Golden Bay Construction, Inc.
3826 Depot Road
Hayward, CA 94545
7 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 Address of CITY is as follows:
Utilities Division
City of Morgan Hill
100 Edes St.,
Morgan Hill, CA 95037
with a copy to:
City Clerk
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
15. Licenses, Permits and Fees. SERVICE PROVIDER shall obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes and regulations of the federal, state and local government.
16. Service Provider's Proposal. If applicable, this Agreement shall include SERVICE PROVIDER'S proposal or bid which is incorporated herein. In the event of any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.
17. Maintenance of Records.
17.1. Maintenance. SERVICE PROVIDER shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and CITY rules and ordinances related to services provided under this Agreement. SERVICE PROVIDER shall maintain records for a period of at least 3 years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the 3-year period, then SERVICE PROVIDER shall retain said records until such action is resolved. 17 .2. Access to and Audit of Records. CITY shall have the right to examine, monitor and audit all records, documents, conditions, and activities of SERVICE PROVIDER and its subcontractors related to services under this Agreement. Pursuant to Government Code Section 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 CITY or as part of any audit of CITY, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.
17.3. Ownership of Work Product. All documents or other information developed or received by SERVICE PROVIDER for work performed under this Agreement shall be the property of CITY. SERVICE PROVIDER shall provide CITY with copies of these items upon demand or upon termination of this Agreement.
18. Familiarity with Work. By executing this Agreement, SERVICE PROVIDER represents that:
{ 1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the difficulties and restrictions of the work under this Agreement. Should SERVICE PROVIDER discover any conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY and shall not proceed, except at SERVICE PROVIDER'S risk, until written instructions are received from CITY.
19. Time of Essence. Time is of the essence in the performance of this Agreement.
20. No Assignment. Neither this Agreement nor any portion shall be assigned by SERVICE PROVIDER, without prior written consent of CITY. Any attempted assignment not first approved by 8 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 CITY shall be void and, at CITY'S option, shall terminate this Agreement effective as of the date of such attempted assignment.
21. Attorney Fees. In any legal action, dispute or arbitration arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred.
22. Defense and Indemnification.
22.1. Defense and Indemnification. SERVICE PROVIDER shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers ("INDEMNITEES") from and against any and all claims, liabilities, expenses, liens, or damages of any nature, including liability for bodily injury, property damage or person.al 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 SERVICE PROVIDER, and/or its agents, officers, employees, subcontractors, or independent contractors ("CLAIM").
22.2. Exceptions. SERVICE PROVIDER is not required to indemnify INDEMNITEES against liability for bodily injury, property damage or personal injury, or any other loss, damage or expense arising from the sole negligence or willful misconduct of CITY.
22.3. Not limited by insurance. The indemnity, defense and hold harmless provisions of this Agreement apply to all CLAlMs alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by SERVICE PROVIDER.
22.4. Right to Offset. CITY shall have the right to offset against any compensation due SERVICE PROVIDER under this Agreement any amount due CITY from SERVICE PROVIDER as a result of SERVICE PROVIDER'S failure to pay CITY promptly any indemnification arising under this Section (22) and any amount due CITY from SERVICE PROVIDER arising from SERVICE PROVIDER'S failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers' compensation laws.
22.5. Interpretation. This Section shall constitute an agreement or contract of indemnity, incorporating the interpretations under California Civil Code Section 2778. It is expressly understood and agreed that the obligation of SERVICE PROVIDER to indemnify the INDEMNITEE shall be as broad and inclusive as permitted by the laws of the State of California and shall survive termination of this Agreement.
23. Entire Agreement; Modification; Conflicting Provisions. This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agreements, oral or written. This Agreement may be modified or provisions waived only by a subsequent mutual written agreement executed by CITY and SERVICE PROVIDER. If the provisions contained in the main body of this Agreement conflict with any provision contained in an exhibit to this Agreement, the provisions of the main body of this Agreement shall govern and control over any provision contained in an exhibit to this Agreement.
24. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. This Agreement was entered into and is to be performed in the County of Santa Clara. Any action or dispute arising out of this Agreement shall only be brought in Santa Clara County. 9 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
25. Interpretation. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, California Civil Code § 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
26. Preservation of Agreement. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
27. Binding Agreement. Notwithstanding the provisions of Section 20 above, this Agreement shall bind any and all successors in interest, legal representatives and/or other permitted assignees or transferees of SERVICE PROVIDER in the same manner as if those successors in interest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.
28. Electronic Signatures. Unless otherwise prohibited by law or CITY policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the CITY.
II
II
[Signatures on Next Page]
10 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
29. 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:
OocuSigned by:
.AJt�\..Jk \s,·Jo""
• c�ty City Clerk
Michelle Bigelow
Print Name
Date: 9/8/2023
APPROVED AS TO FORM:
�-.... � .. 1i"'"'LJ. latl:iu,
Donald A. Larkin
Print Name
Date: 9/6/2023
451401
Contractor's License Number(s) (if applicable)
Expiration Date(s) _
113
_
1 _
12_
02_
4 ______ _
Seal:
CITY OF MORGAN HILL
DocuSigned by:
_f, Yi iiv, ,a, w 1 .r
Christina J. Turner
Print Name
Johnny Zanette - President
Print Name and Title of Signer.
If Corporate: Chairman, President or Vice
President
Date: 8/15/2023
By:
··lJtt;��
Brent Zanette - Secretary
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: 8/15/2023
1000002870
Contractor's DIR Registration Number(s) (if applicable) Expiration Date(s) _6_/_30_/2_0_25 _______ _
11 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
EXHIBIT A
SCOPE OF SERVICES
This project is to provide water and sewer repairs on an on-call, as-needed, time-and-materials basis for a period of two (2) years with the option for three (3) additional single year extensions. The City's intent is to enter into agreements with one to three qualified contractors for the provision of these services. Any tasking shall be initiated solely by the City. Further, execution of the agreements by the City does not in any way guarantee that any tasking or request for on-call services will be issued to any party. Moreover, execution of the agreements by the City shall not entitle contracted parties to any form of payment or compensation from the City without first having issued tasking or request for services from a contractor.
Typical work to be performed under this contract includes repair of water service leaks, water main leaks, hydrant repair, valve replacement, water service replacement, meter installation, sewer main repairs, sewer lateral repair, manhole repair or installation, backfill of excavations, compaction, and final paving of streets. From time to time the City may request service for a backhoe with operator and/or laborers to assist the City repair crew. The Contractor also may be requested to do patch paving work. City staff and equipment will be made available for assistance with shutdowns and some activities.
The work to be performed under this contract consists of furnishing all tools, equipment, materials, supplies, and manufactured articles to complete the services as needed. It shall also include the furnishing of all transportation and services, including fuel, power, water, and essential communications, and for the performance of all labor, work, or other operations required for the fulfillment of the contract in strict accordance with the Contract Documents and City's Standard Details for Construction Standard Details for Construction -Link currently in effect.
The Contractor may utilize the services of specialty subcontractors on those parts of the work that, under normal contracting practices, are performed by specialty subcontractor. It is understood that at least SO percent of the work to be performed shall be performed by the successful Contractor. Any subcontractor used must adhere to the same terms and conditions as the successful contractor. The Contractor is representing to City that he/she and any subcontractor has all appropriate licenses, certifications, and registrations to perform the work hereunder. The Contractor shall be fully responsible to the City for the performance of his/her subcontractors, and of persons either directly or indirectly employed by them.
City Responsibilities
City's personnel will identify and assess specific projects or repairs. The City will notify Contractor of general locations requiring construction or repair, and a general description of the field conditions at repair locations, and materials to be provided by the City. The City's Project Manager or designated representative will direct the general process to be followed but shall not generally direct the means or methods to be used by the Contractor. The City will provide base maps or record drawings of facilities when they are requested and available. All work to be completed will be agreed upon prior 12 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 to the commencement of work with a general scope of services. Drawings will be provided if applicable. The City will issue a written task order and attach the contractor's scope of work for projects that are not an emergency. Notification of residents whose service may be interrupted will be the responsibility of the City.
Contractor's Responsibilities
The Contractor will provide a scope of work for each project that is not an emergency. The scope of work will be the basis for the project and will serve as supplement to the contract documents for that particular project. The scope of work shall include a not to exceed amount for the project. The Contractor shall be responsible for providing the following to complete the services in a timely manner as outlined below:
• Qualified Labor
• Tools
• Equipment, including all necessary Safety Equipment
• Materials and Supplies
• Transportation
• Services (including fuel, power, water, and communications) • Sheeting and shoring as required
• Traffic control devices and measures
For an emergency repair the Contractor shall make every effort to begin the repair within four (4) hours of notification that a repair is needed. Notification of the repair will made in the form of a phone call. The City is aware that the Contractor may have other commitments. The Contractor shall notify the City if they do not have the manpower to mobilize a crew to begin the repair within the allotted time. If the Contractor cannot mobilize the City will contact the other Contractor on the list.
If none of the Contractors on the short list derived this solicitation can do the work within the time frame, the City reserves the right to seek assistance from another contracting firm.
Contractor is responsible for damage resulting from performing work and clean-up of effected area.
The Contractor shall incur these damage costs and not pass these charges to the City.
The Contractor shall be cautioned that the City has Asbestos Cement Pipe (ACP) in some areas of the water distribution system as well as the wastewater collection system. Some of the repairs may be on ACP lines. The Contractor and its employees shall be properly trained for working on these ACP lines. All current OSHA standards shall be followed.
As some of the infrastructure falls outside of City limits, the Contractor will have to obtain encroachment permits, if needed, in the jurisdiction where the work is taking place. 13 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 Repair Standards
The Contractor is responsible for meeting all contract conditions and City's Standard Details for Construction (link on page 9), specifications, and drawings. If the City's Inspectors determine that any repair work is substandard, the Contractor shall be advised thereof orally and in writing, and shall redo all such work at the expense of the Contractor. The City's Project Manager and Inspectors will determine a time when the re-work is to be completed and re-inspect the repair to determine if the repair has been performed satisfactorily. The Contractor shall comply with all Federal, State, and local safety rules and regulations.
Materials and Supplies
At the time of notification, the City will provide the Contractor with a list of City supplied materials.
The Contractor is responsible for having a reliable supply chain in place to obtain, in a timely manner, all additional materials and supplies needed for the required repair. All materials and supplies obtained by the Contractor for the work must be new and free from defects. There will be no markup or other cost charged to the City for materials and supplies used from the City's inventory. The City will deliver small materials and fittings such as repair clamps, corp stops, etc. to the project site.
Any bulk materials such as aggregate base, temporary asphalt paving, etc. provided by the City shall be picked up by the Contractor at the City's Corporation Yard.
Disposal of Materials
All materials shall be disposed of in a manner that does not adversely affect the environment and is consistent with local, state, and federal laws and regulations.
Response Schedule
Emergency Repair - The Contractor will make every effort to begin emergency repairs within the notification specified herein, or in accordance with a schedule approved by the City; Notification to the Contractor may be in the form of a telephone call, facsimile, or e-mail, depending on the urgency of the repair. The City reserves the rights, in its sole discretion, to require a more rapid response should it deem it to be necessary. A typical emergency repair will have a response time of four (4) hours. If repair cannot be started within this period, the City reserves the right to obtain the services of other Contractors.
Scheduled Repair - If a scheduled repair cannot be started within twenty-four (24) hours of the City's scheduled time of repair, the Contractor shall provide the City accurate estimate of when work can start. The City will work with the Contractor in regards to other commitments the Contractor may have. However, the City reserves the right to seek outside assistance from other Contractors if scheduling cannot be agreed upon and repairs are determined by the City, in its sole discretion, to be as required.
Physical Location of Underground Utilities
14 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 The City is responsible for providing all utility maps or record drawings to perform repairs.
Facilities Shown or Indicated - Unless it is otherwise expressly provided in the section below, Protection of Existing Facilities, the City shall not be responsible for the accuracy or completeness of information or data shown on the City's water and sewer system base maps or any other utility information, and the Contractor shall have full responsibility for reviewing and checking all such information and data, for locating all Underground Utilities for coordination of the work with the owners of such Underground Utilities during construction, for the safety and protection thereof and repairing any damage thereto resulting from the work, the cost of which will be considered as having been included in the contract price. Existing utility lines that are shown, or the locations of which are made known to the Contractor prior to excavation and that are to be retained, and all utility lines that are constructed during excavation operations shall be protected from damage during excavation and back-filling and if damaged, shall be immediately repaired by the Contractor except as the owner of the utility or other facility may otherwise direct. All repairs due to damage are subject to inspection and approval by an authorized representative of the property owner before being concealed by backfill or other work. The obligations set forth in this paragraph and other paragraphs concerning underground work shall apply to such damage as may occur after back-filling or is not discovered until after completion of the back-filling.
Facilities Not Shown or Indicated - If an Underground Utility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the City's water and sewer system base maps and not otherwise made known to the Contractor prior to excavation, which the Contractor could not reasonably have been expected to be aware of based on the presence of other visible facilities, such as buildings, meter and junction boxes, on or adjacent to the site of the repair, the Contractor shall identify the owner of such Underground Utility and give written notice thereof to the City in accordance with the requirements of the next section, Protection of Existing Facilities. In the event that the Contractor damages any existing utility lines that are not shown or the locations of which are not made known to the Contractor prior to excavation, a written report thereof shall be made immediately to the City. If directed by the City, repairs shall be made by the Contractor.
To the extent required by Government Code section 4215, all costs of locating, repairing damage to, and removing or relocating such utility facilities not shown or indicated, and for the necessary idling of equipment on the project which was actually working on that portion of the work which was interrupted or idled by removal or relocation of such utility facilities not shown or indicated, which costs were not incurred due to the failure of the Contractor to exercise reasonable care, will be paid for as time and materials.
Protection of Existing Facilities
General -_The Contractor shall protect all existing utilities and improvements not designated for removal and shall restore damaged or temporarily relocated utilities and improvements to a condition equal to or better than they were prior to such damage or temporary relocation.
Restoration shall be to the reasonable satisfaction of the City or to the affected utility or franchisee. 15 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 The Contractor shall verify the exact locations and depths of all utilities or improvements shown and the Contractor shall make exploratory excavations of all utilities or improvements that may interfere with the Work. The number of exploratory excavations required shall be that number which is sufficient to determine the alignment and grade of the utility or improvement. The Contractor shall notify and obtain concurrence with City staff of that number of exploratory excavations.
It shall be the Contractor's responsibility to see that all utilities or other improvements are adequately protected from damage due to such operations. The Contractor shall exercise care in all excavations to avoid damage to existing underground facilities. This shall include hand digging in those areas where underground facilities are known to exist until they have been sufficiently located to avoid damage to the facilities. No additional compensation shall be provided the Contractor for compliance with the provisions of this section or for the damage and repair of facilities due to the lack of such care.
Right-of-Way - The Contractor shall not do any work that would affect any oil, gas, sewer, or water pipeline; any telephone, telegraph, communication wire or cable, or electric transmission line; any fence; or any other structure, nor shall the Contractor enter upon the right-of-way involved until notified by the City's representative that the City has secured authority therefore from the appropriate authority. All oil and gasoline pipelines, power, and telephone or other communication cable ducts, gas and water mains, irrigation lines, sewer lines, storm drain lines, poles, and overhead power and communication wires and cables encountered along the line of the Work shall remain continuously in service during all the operations under the Contract, unless other arrangements satisfactory to the City are made with the owner of said pipelines, duct, main, irrigation line, sewer, storm drain, pole, or wire or cable.
In case it shall be necessary to move the property of any public utility or franchise holder, the Contractor shall provide written and just cause for utilities to be moved, and such utility company or franchise holder will, upon request of the Contractor, be notified in writing by the City to move such property within a specified reasonable time. When utility lines that are to be removed are encountered within the area of operations, the Contractor shall notify the City's Engineer a sufficient time in advance for the necessary measures to be taken to prevent interruption of service.
This procedure is intended to prevent the Contractor from arbitrarily deciding to cut through any other utility's or any franchisee's facilities. It allows the City to coordinate such work with those agencies and set the timeline and sequence of such work. After authorization has been obtained, the Contractor shall give said party due notice of its intention to begin work, and shall give said party convenient access and every facility for removing, shoring, supporting, or otherwise protecting such pipeline, transmission line, ditch, fence, or structure, and for replacing same. The Contractor shall provide such special protection as may be necessary to protect all known utilities and other improvements that may be impaired during construction operations and shall take all possible precautions for the protection of unforeseen utility lines or other improvements to provide for uninterrupted service.
Utilities to be Removed/Relocated - Where the proper completion of the repair work requires the temporary or permanent removal and/or relocation of an existing utility or other improvement that is 16 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 shown, the Contractor shall remove and, without unnecessary delay, temporarily replace or relocate such utility or facility. In all cases of such temporary removal or relocation, restoration to the former location shall be accomplished by the Contractor in a manner that will restore or replace the utility or improvement as nearly as possible to its former location and to as good or better condition than found prior to removal.
Restoration of Pavement:
A. General. All paved areas, including asphalt concrete berms, cut or damaged during construction, shall be replaced with in accordance with the specifications of the public authority that has jurisdiction over the site of the work. The City of Morgan Hill and the County of Santa Clara own public right of ways within the City's service area. All temporary and permanent pavements shall conform to the requirements of the affected pavement owner. All pavements that are subject to partial removal shall be neatly saw cut in straight lines per specifications.
B. Temporary Resurfacing.:. Wherever required by the public authority with jurisdiction over the site of the work, the Contractor shall place temporary surfacing promptly after back-filling and shall maintain such surfacing for the period of time fixed by said authority before proceeding with the final restoration of improvements.
C. Permanent Resurfacing. In order to obtain a satisfactory junction with adjacent surfaces, the Contractor shall comply with the applicable City or County Specifications, at its expense. The City will pay for initial testing. Any required re-testing and correction costs will be the responsibility of the Contractor.
D. Restoration of Sidewalks or Private Driveways. Wherever sidewalks or private roads have been removed for purposes of construction, the Contractor shall place suitable temporary sidewalks or roadways promptly after back-filling and shall maintain them in satisfactory condition for the period of time fixed by the authorities having jurisdiction over the affected portions before proceeding with the final restoration or, if no such period of times is so fixed, the Contractor shall maintain said temporary sidewalks or roadways until the final restoration thereof has been made.
Final restorations shall be in accordance with any applicable City and/or general construction codes.
Notification by the City - For routine repairs, the City shall notify Underground Service Alert (1-800- 642-2444) forty-eight (48) hours prior to any excavation in the vicinity of any existing underground facilities, including all water, sewer, storm drain, gas, petroleum products, or other pipelines; all buried electric power, communications, or television cables; all traffic signal and street lighting facilities; and all roadway and state highway rights-of-way.
Facility Access
Continuous access to the City's facilities shall be provided at all times during the Project. Such access shall be suitable for large vehicles, e.g. chemical delivery and sludge hauling trucks. Access routes shall be provided for each planned project.
17 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 Water Quality Protection and Stormwater Quality
The Contractor shall take all necessary steps to protect the storm drain system from discharges of construction-related wastewater, including saw cutting slurry, concrete washout, sedimentcontaminated and runoff, sewage overflows, and highly-chlorinated discharges from water line testing. This will require the use of Best Management Practices (BMPs) such as providing sediment controls on downstream storm drain inlets, collecting and removing saw cutting slurry, providing an area for concrete washout, and directing highly-chlorinated discharges to the sanitary sewer or by dechlorinating this water. The Contractor is responsible for damage resulting from performing repair and clean-up of effected area.
Trench Excavation
The maximum length of trench excavation in advance of the pipe laying operation shall be SO feet, and the maximum amount of trench remaining open without backfill shall be SO feet. No trench in public areas shall be left open during periods when the Contractor is not at the site of work; trenches in these areas shall either be backfilled and temporarily paved, where applicable, or covered with steel trench plates as specified in the technical specifications.
Underground Facilities
The Contractor shall exercise care in all excavations to avoid damage to existing underground facilities. This shall include potholing and hand digging in those areas where underground facilities are known to exist until they have been sufficiently located to avoid damage to the facilities.
Prior to fabrication of any materials, the Contractor shall verify the locations and elevations of existing underground facilities to ensure proper connection and/or clearance.
The Contractor shall exercise care in maintaining those pipes and facilities to be abandoned and/or removed which are required for the continuing operation of the existing facilities until such time as they can be abandoned. The Contractor shall exercise extreme caution in working in any area adjacent to existing facilities. It is essential that the existing facilities be maintained in service until the new work is ready for full time operation and is placed in service.
No additional compensation shall be provided the Contractor for compliance with the provisions of this section for the damage and repair of such facilities due to the lack of care, and the Contractor shall be responsible for the direct and indirect costs resulting from the damage and repair of such facilities.
Working Hours
For Emergency Repairs working hours may be any day of the week at any time. The crews that respond to the emergency shall comply with applicable labor codes for hours worked. 18 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 For Scheduled Repairs normal City staff working hours are from 7:00 a.m. to 3:30 p.m., excluding weekends and City holidays. Unless otherwise approved in writing by the City, repair work shall be allowed only between the hours of 7:00 a.m. and 8:00 p.m. on weekdays and, when approved in writing in advance by the City, 9:00 a.m. to 6:00 p.m. on weekends and holidays. These working hours may be adjusted on a job by job basis depending on nature of the project and specific encroachment permit conditions for the project.
The Contractor shall notify the City at least 48 hours prior to any work outside the normal working hours defined above, on weekends or holidays.
Noise Abatement
All operations at the site of the repairs shall be performed so as to minimize unnecessary noise.
Special measures shall be taken to suppress noise during night hours. Noise levels due to Contractor's activities shall not exceed the levels specified by local ordinance.
Internal combustion engines used on the work shall be equipped with a muffler of a type recommended by the manufacturer. No internal combustion engine shall be operated without said muffler.
Warranty and Scheduled Maintenance
The Contractor hereby agrees to make, at its own expense, all repairs or replacements necessitated by defects in materials or workmanship, in those components provided, installed, replaced and/or modified by the Contractor, and pay for any damage to other works resulting from such defects, which becomes evident within one (1) year after the date of acceptance of installation work, or within such longer period of time as may be prescribed by law or by the terms of any applicable special guarantee required by the Agreement. This warranty shall include all parts and labor and the performance of all manufacturers' recommended maintenance. This in no way shall limit, amend, or reduce any manufacturer's warranty. The Contractor further assumes responsibility for a similar guarantee for all work and materials provided by subcontractors. This warranty shall not apply to existing equipment that was not modified or significantly adjusted so as to change its operation. The Contractor also agrees to indemnify, defend and hold the City harmless from liability of any kind arising from damage due to covered defects. Prior to the final acceptance of installation work, the Contractor shall provide phone numbers for around- the-clock notification of the need for emergency service repairs, a schedule showing specific dates for routine maintenance service calls.
The Contractor shall respond within four (4) hours of City's emergency service call after receipt of notice from the City, and promptly make all repairs arising out of defective materials, workmanship, or equipment. If a service response does not occur within four (4) hours, or diligent efforts are not made to effect repairs, the City will notify the Contractor (by fax or voice mail if no representative is available) of its intent to secure another service provider. Thereafter, the City is authorized to make such repairs, and the Contractor shall be liable for the cost thereof. In case of emergency, where, in 19 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 the opinion of the City, delay could cause serious loss or damage, repairs may be made without notice being sent to the Contractor, and the expense in connection t The Contractor shall direct all of its equipment suppliers and/or manufacturers to promptly provide to it and to the City any and all information concerning product defects or other problems and shall promptly forward to the City any such information received, whether before, during, or after the warranty period.
Prior to the expiration of the warranty period, the City reserves the right to hold a meeting and require the attendance of the Contractor. The purpose of the meeting is to review warranties, bonds, and maintenance requirements, and determine required repair or replacement of defective items. 20 Updated: May 2023
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
EXHIBITS
SCHEDULE OF COMPENSATION RATES
On-Call Services for Water and Sewer Repairs
Per Page 6 of this RFP, this work is subject to prevailing wage. The hourly wages to be paid laborers, workers, or mechanics shall not be less than the DIR prevailing wage rates for an hour's work in the same trade or occupation in Santa Clara County. Prevailing wage rates are available online at http://www.dir.ca.gov/dlsr.
Descriatlon Unit Houclv Rate
1. LABOR
a. Project Manager Hour $ 163.00
Foreman/Superintendent $ 128.00
b. Hour
c. Equipment Operator Hour $ 122.00
d. Journeyman Hour $ 105.00
e. Laborer or Equivalent Hour $ 98.00
2. EQUIPMENT
a. Boom Truck Hour $ NIA
b. Service Vehicle (utility body pickup) or Hour $ 37.00 Equivalent
c. Backhoe (Case 580E or comparable) Hour $ 65.00
d. Welder Hour $ NIA
e. Compressor (150 cfm) Hour $ 19.00
f. 5 yd Dump Truck Hour $ 51.00
g. 24-inch Vibratory Smooth Drum Roller Hour $ 33.00
3. MOBILIZATION AND DEMOBILIZATION
21
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640 Mobilization and Demobilization
4. OVERHEAD AND PROFIT
Overhead and Profit
S. MATERIALS MARKUP
Materials Markup - Cannot exceed 25%
6, SUBCONTRACTOR MARKUP
Subcontractor Markup
7 % (Fill In)
20 % (Fill In)
15 % (Fill In)
15 % (Fill In)
22
DocuSign Envelope ID: 15730DF4-9AD5-484A-BB45-F35FAF621640
EXHIBITC
SCHEDULE OF PERFORMANCE
This is an on-call as needed agreement.
For each job under this agreement, the City will request a detailed task order proposal from the Contractor. The Contractor proposal shall include an Itemized breakdown of hourly labor and equipment rates as well as all materials and material mark up costs. The City's project manager will Issue a notice to proceed if the proposal is accepted. The Contractor will Issue an invoice at the ·completion of the each task order, and shall include a detalled breakdown of all hourly charges for labor and equipment, materials, and material mark up costs. 22 Updated: May 2023
3 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Charlie Ha, Supervising Civil Engineer
APPROVED BY: City Manager
APPROVE PUBLIC IMPROVEMENTS FINANCING AGREEMENT WITH
ADVENT LUTHERAN CHURCH OF MORGAN HILL
RECOMMENDATION(S)
1. Approve a Public Improvements Financing Agreement with Advent Lutheran Church of Morgan Hill; and
2. Authorize the City Manager to execute, administer and further negotiate the Financing Agreement as necessary.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
2022-2023 Strategic Priorities
Transportation
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:
Advent Lutheran Church of Morgan Hill is located at 16870 Murphy Avenue (APN: 817- 19-030) just south of the 14-lot Dunne Murphy subdivision - Tract No. 10387 (see Attachment 1).
The Church entered into a Deferred Improvement Agreement with the City in May of 1980. Under the terms of the Deferred Improvement Agreement, the Church was allowed to improve the property at 16870 Murphy Avenue and defer the installation of the frontage improvements (sidewalk, curb, gutter, street widening, street lights,etc) along Murphy Avenue. In 2001, the Church once again requested a deferral of the requirement to install the public improvements across the property frontage as it sought a development permit from the City. The City granted the Church's request and the agreement was amended on January 3, 2001. Per the Deferred Improvement Agreement, the Church was required to complete the frontage improvements upon a 30-day notice by the City.
3 With the Dunne Murphy subdivision developing at the corner of East Dunne Avenue and Murphy Avenue, there was an opportunity for the subdivision to construct the frontage improvements across the Church's property with the understanding that the cost for these improvements would be reimbursed to them once the work was completed.
The Dunne Murphy development has completed the Church frontage improvements and a separate Council action will reimburse the cost of the frontage improvements to them.
The City informed the Church of the need to fulfill the obligation in the Deferred Improvement Agreement earlier in the year. The Church stated that funding the improvements now would be a financial hardship for them. In order to support the Church's obligation per the Deferred Improvement Agreemen and improve the infrastructure as needed, it was proposed that the Church enter into a Finance Agreement with the City for the cost of the frontage improvement construction. The Church agreed with this proposal.
Prior to completion of the public improvements, the Church and the City agreed to the estimated construction cost of $281,812 with the scope listed in the following table.
CONSTRUCTION COST ESTIMATE - 16870 MURPHY AVENUE ADVENT LUTHERAN
CHURCH MURPHY FRONTAGE IMPROVEMENTS
Item Description Total
1 Tree removal and clearing $6,600
2 Sawcut and remove existing asphalt to
centerline $5,643
3 Sawcut and remove existing parking
lot asphalt and curb $9,650
4 Grade for half street improvements
including off haul $47,600
5 Grade for parking lot improvements
including off haul $9,795
6 5" AC on 14.5" CL II AB $78,300
7 9' wide asphalt grind and 2" AC
overlay along centerline $9,129
8 4" AC on 13" CL II AB - Parking lot $11,025
9 Curb and gutter on 13.5" CL II AB $12,291
10 Vertical curb - Parking lot $7,920
11 Sidewalk on 4" CL II AB $14,030
12 Driveway approach on 6" CL II AB $4,876
13 Signing and striping $3,040
14 Relocate existing fire hydrant behind
curb and gutter $5,680
15 Relocate existing water lines along
frontage $19,080
3 16 Remove existing storm drain inlet -
parking lot $745
17 Sub-total Construction Cost $245,404
18 General Liability Insurance -
$18.36/$1000 of (Sub-total)
Construction Cost
$4,506
19 GC Overhead - 5% of (Sub-total)
Construction Cost $12,270
20 Construction Staking - 4% of (Subtotal) Construction Cost $9,816 21 Geotechnical Observation and Testing
- 4% of (Sub-total) Construction Cost $9,816
22 Total Construction Cost Estimate at
16870 Murphy Avenue Frontage $281,812
The total loan amount of $281,812 shall be paid in 300 equal monthly installments and shall bear interest at 2% percent per annum compounded annually. The monthly installment of $1,194.47 will commence on the first day of the first month following acceptance of the Murphy Avenue frontage improvements. The construction work has been reviewed and deemed complete. Therefore, staff recommends that the City enter into a Public Improvements Finance Agreement (see Attachment 2) with Advent Lutheran Church for a loan amount of $281,812 to repay the construction cost of the Church's frontage public improvements.
COMMUNITY ENGAGEMENT:
This report serves to inform the community of the proposed Finance Agreement with Advent Lutheran Church of Morgan Hill.
ALTERNATIVE ACTIONS:
The Council could choose to not enter into this Finance Agreement with the Church.
This is not recommended as it would result in the City not being repaid for the cost of the construction improvements.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On May 3, 2017, the City Council approved the Final Map and Subdivision Improvements Agreement for Dunne Murphy - Tract 10387.
On June 16, 2021, the City Council approved an extension of time for the Subdivision Improvements Agreement for Dunne Murphy - Tract No. 10387.
FISCAL AND RESOURCE IMPACT:
The reimbursement amount of $281,812 will be returned to the City's Traffic Impact Fund (309).
CEQA (California Environmental Quality Act):
3 A Mitigated Negative Declaration was adopted for the Dunne Murphy subdivision on February 9, 2016.
RECORDING REQUESTED BY:
CITY OF MORGAN HILL
WHEN RECORDED MAIL DOCUMENT TO:
CITY CLERK
CITY OF MORGAN HILL
17575 PEAK AVENUE
MORGAN HILL, CA 95037
(RECORD AT NO FEE PURSUANT TO GOVERNMENT
CODE SECTION 27383)
APN: 817-19-030 SPACE ABOVE THIS LINE FOR RECORDER’S USE
PUBLIC IMPROVEMENTS FINANCING AGREEMENT
This Public Improvements Financing Agreement (the "Agreement") is entered into as of_________________________________, 2023, by the CITY OF MORGAN HILL, a California municipal corporation (the “City”) and ADVENT LUTHERAN CHURCH OF MORGAN HILL, a California non-profit corporation (the "Borrower"), with reference to the following facts and purposes:
RECITALS
A. The City and Borrower have entered into this Public Improvements Financing Agreement (the "Agreement") for the construction of public improvements for the widening of Murphy Road along the frontage of 16860 Murphy Avenue, Morgan Hill, Ca 95037 (APN 817-19-030).
B. Borrower owns real property in the City described in the attached Exhibit A (the "Subject Property") upon which frontage public improvement will be made (the “Improvements”).
C. City and Borrower entered into a Deferred Improvement Agreement dated May 6, 1980, which was amended on January 3, 2001. Under the terms of the Deferred Improvement Agreement, Borrower is required to complete the Improvements upon notice by the City.
D. In order to allow for timely completion of the Improvements, City has agreed to provide a loan to the Borrower in the aggregate amount of two hundred eighty-one thousand, eight hundred twelve dollars ($281,812) to finance the Improvements.
E. Upon complete payment(s) under this agreement, the prior agreements with the City:
1. Deferred Improvement Agreement dated May 6, 1980 (Document 6761440)
2. Amendment to Deferred Improvement Agreement dated January 3, 2001 (Document: 15529616)
Shall be deem completed.
NOW, THEREFORE, the City and the Borrower agree as follows:
ARTICLE 1. Loan
Section 1.1 Loan Amount.
City agrees to loan to Borrower the amount of two hundred eighty-one thousand, eight
2 hundred twelve Dollars ($281,812) (the “Loan Amount”), being the cost of the Improvements that are required by the City to be completed.
Section 1.2 Loan Repayment.
Borrower shall execute a Promissory Note for the Loan Amount due in the form attached hereto and incorporated herein as Exhibit B. Payments shall be due under the Promissory Note as follows:
The Loan Amount shall be paid in equal monthly installments of 300 payments and shall bear interest at 2% percent per annum compounded annually. The monthly installment of $1194.47 shall commence on Initial Payment Date, which shall be the first day of the first month following acceptance of the Murphy Avenue frontage improvements.
ARTICLE 2. Default and Remedies
2.1 Default by Owner.
Failure or delay by Borrower in making any payment due under the Promissory Note or this Agreement shall be deemed a default hereunder. No notice shall be due from City specifying the default as Borrower agrees that it is fully aware of the repayment schedule under this Agreement and is responsible for making timely and complete payments under the Promissory Note without any further notice from City. If City elects to give any notice of a default to Borrower, any delay or failure to give any notices shall not constitute a waiver of any default, nor shall it change the time of default. Further, any failure or delay by City in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights and remedies.
2.2. City Remedies.
Upon a default by Borrower under this Agreement or the Promissory Note, then City may, in its sole discretion: (i) terminate this Agreement, and Borrower shall be liable to City for any damages caused by such default, and City may thereafter commence an action for damages against Borrower with respect to such default; and/or, (ii) commence an action for specific performance of the terms of this Agreement pertaining to such default; and/or, (iii) declare all sums disbursed by City hereunder, at the option of City, to be immediately due and payable, and City shall be released from any and all further obligations to Borrower under the terms of this Agreement. Borrower agrees that City’s rights and remedies hereunder shall be cumulative and that City shall not be liable to Borrower or any other party for City’s exercise of its rights and remedies under this Agreement.
ARTICLE 3. General Provisions
3.1. Time is Of the Essence:
Time is of the essence in the performance of all obligations under this Agreement and the Other Loan Documents.
3 3.2.Notice:
Any notice requirement set forth herein shall be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows:
Borrower: Advent Lutheran Church of Morgan Hill
16870 Murphy Road
Morgan Hill, Ca 95037
City: City of Morgan Hill Copy to: City Clerk
17575 Peak Avenue City of Morgan Hill
Morgan Hill, CA 95037 17575 Peak Avenue
Attention: Finance Director Morgan Hill, CA 95037
Such addresses may be changed by notice to the other party given in the same manner as provided above.
3.3.Other Provisions:
(a) If either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder or under any of the Loan Documents, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees which shall be fixed by the court. (b) If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired. (c) This Agreement, the Promissory Note and any other instruments given pursuant to this Agreement shall be construed in accordance with and be governed by the laws of the State of California. Any action commenced about this Agreement or any of the Loan Documents shall be filed in the Santa Clara County Superior Court.
(d) This Agreement may not be changed orally, but only by agreement in writing signed by the Borrower and the City.
(e) This Agreement and the Promissory Note (“Loan Documents”) together embody the agreement between the City and the Borrower for the payment of the Improvements. No verbal agreements or conversations with any officer, agent or employee of the City prior to the execution of this Agreement shall affect or modify any of the terms or obligations contained in the Loan Documents. Any such verbal agreement shall be considered unofficial information and in no way binding upon the City.
(f) This Agreement and its terms and conditions shall be binding on the successor in interest to Borrower or the Subject Property.
(g) No official or employee of the City shall be personally liable for any default or liability under this Agreement.
(h) The Borrower covenants there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, disability, national origin, or ancestry in any activity pursuant to this Agreement.
4 (i) The Borrower shall comply with all applicable laws ordinances, codes, and regulations of the federal, state, and local governments. (j) The Borrower shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.
(k) Whenever any approval, notice, direction, consent, request, waiver of condition or other action by the City is required or permitted under this Agreement, such action may be given, made, or taken by the City Manager or Finance Director, or by any person who shall have
(l)been designated in writing to the Borrower by the City Manager or Finance Director, without further approval by the City Council, and any such action shall be in writing.
(m) The following exhibits are attached to and incorporated by reference in this Agreement:
Exhibit A Legal Description of the Subject Property
Exhibit B Form of Note - Promissory Note
(n) If any term or provision of any Loan Document conflicts with any term or provision of this Agreement, the term or provision of this Agreement shall control to the extent of such conflict.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
BORROWER: CITY:
ADVENT LUTHERAN CHURCH OF
MORGAN HILL
CITY OF MORGAN HILL
By: By:
Christina Turner, City Manager
Date: Date:
Approved as to Form: Attest:
By: By:
Donald A. Larkin, City Attorney Michelle Bigelow, City Clerk Date: Date:
5 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Santa Clara
On 20__, before me, a Notary Public in and
for said County and State, personally appeared
proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY PUBLIC
(ABOVE AREA FOR NOTARY SEAL)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Santa Clara
On 20__, before me, a Notary Public in and
for said County and State, personally appeared
proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY PUBLIC
(ABOVE AREA FOR NOTARY SEAL)
6 EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
All that real property situated in the City of Morgan Hill, Santa Clara County, State of California being more particularly described as follows:
PARCEL B, as shown on the Map entitled, “PARCEL MAP”, which Map was filed for record in the office of the Recorder of the County of Santa Clara, State of California, on July 9, 1974, in Book 343 of Maps, page 1.
7 EXHIBIT B
FORM OF NOTE
Promissory Note
$___________ Morgan Hill, California
________________, 2023
FOR VALUE RECEIVED, _______________________ (the "Borrower") promises to pay to the City of Morgan Hill (the "City"), or order, the principal sum of ______________Dollars ($_________), with interest as provided below.
1. Fee Financing Agreement. This Note is made pursuant to the terms of the Fee Financing Agreement (the "Agreement") dated ______________, 2023, entered into between the Borrower and the City. All capitalized terms used but not defined in this Note shall have the meanings set forth in the Agreement.
Interest; Repayment Terms. The indebtedness evidenced by this Note shall bear interest at the rate of [insert rate: LAIF plus ½ %] per annum compounded annually and shall be due and payable in ___ monthly installments of $_______ per month, beginning on the first day of the month following payment of the Down Payment if such Down Payment is made prior to the 15th of the month. If the Down Payment is made after the 15th of the month, the first installment shall be due on the first day of the second month following payment of the Down Payment. Payments shall continue on the first day of each month thereafter until the full principal and all interest thereon had been paid.
2. Late Charge. The Borrower acknowledges that late payment of amounts owing under this Note will cause the City to incur costs not contemplated by this Note, the exact amount of such costs being difficult and impractical to assess. Such costs include without limitation, processing and accounting charges. Therefore, if any payment under this Note is not received within thirty (30) days of the date due, the Borrower agrees to pay to the City an additional amount of Two Hundred Dollars ($200) as a late charge. The parties agree that the late charge represents a reasonable sum considering all the circumstances existing at the date of the execution of this Note and represents a fair and reasonable estimate of the costs the City would incur by reason of late payment and that proof of actual damages would be costly and inconvenient. Acceptance of a late charge shall not constitute a waiver of default and shall not prevent the City from exercising any other rights or remedies available to the City. Any payment deferred in accordance with the provisions of this Note shall not be subject to a late charge.
3. Prepayment. The Borrower shall have the right to prepay all or a portion of the principal and interest due under this Note without any charge or penalty being made therefore.
4. Deed of Trust. This Note is secured by the Deed of Trust of even date herewith.
5. Acceleration. As more fully set forth in Section 5 of the Agreement, upon the occurrence of Default as defined in the Agreement or Deed of Trust, the City shall have the right to declare all unpaid principal and accrued interest immediately due and payable. Neither acceptance by the City of the payments provided for herein nor any failure by the City to pursue
8 its legal and equitable remedies upon default shall constitute a waiver of the City's right to require prompt payments when due of all principal and interest owing or to declare a default and exercise all of its rights under this Note, the Deed of Trust, and the Agreement.
6. No Offset. The Borrower hereby waives any rights of offset it now has or may hereafter have against the City, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Note.
7. Waiver; Attorneys' Fees. The Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorneys' fees. If an action is instituted on this Note, the undersigned promises to pay, in addition to the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys' fees in such action.
8. Manner and Place of Payment. All payments of principal and interest and any late charge due under this Note, as well as any additional payments set forth in the Deed of Trust, shall be payable in lawful money of the United States of America at the office of the City as set forth in Section 7(b) of the Agreement or at such other address as the City may provide to the Borrower by notice in accordance with Section 7(b) of the Agreement.
9. Assignment. The City's rights under this Note may be assigned in its sole discretion.
10. Conflict. If any term or provision of this Note conflicts with any term or provision of the Agreement, the term or provision of the Agreement shall control to the extent of such conflict.
11. Joint and Several Liability. If the Note is executed by more than one person or entity as Borrower, the obligations of each such person or entity shall be joint and several. No person or entity shall be a mere accommodation maker, but each such person shall be primarily and directly liable hereunder.
[Name of Borrower]
By: ______________________________
Its: ______________________________
4 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Charlie Ha, Supervising Civil Engineer
APPROVED BY: City Manager
APPROVE A REIMBURSEMENT AGREEMENT WITH NORDSTROM
CAL HOMES, LLC FOR OUT-OF-TRACT PUBLIC IMPROVEMENTS
ADJACENT TO THE DUNNE MURPHY SUBDIVISION (TRACT NO.
10387)
RECOMMENDATION(S)
1. Approve a Reimbursement Agreement with NORDSTROM CAL HOMES, LLC;
2. Authorize the City Manager to execute the Reimbursement Agreement; and
3. Adopt a resolution to amend FY 2023-24 budget to appropriate $305,748 in the Traffic Impact Fund (309).
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
2022-2023 Strategic Priorities
Transportation
REPORT NARRATIVE:
Dunne Murphy - Tract No. 10387 is a 14 unit residential subdivision (12 new units and 2 existing units) located on the southeast corner of East Dunne Avenue and Murphy Avenue (see Attachment 1). Subdivision developments, such as the Dunne Murphy subdivision, are required to complete in-tract public improvements, which typically include all public street improvements to the centerline of the project's frontage street(s).
On the other hand, "out-of-tract" public improvements that are constructed by a project that are beyond the project's street frontage, and/or past the street centerline are eligible for reimbursement by the City.
The Dunne Murphy subdivision is an approved Residential Development Control System (RDCS) project, which made commitments to provide out-of-tract improvements at $12,861 per unit. The twelve (12) new units were subject to the RDCS commitments while the two existing units were not subject to the commitments under the RDCS guidelines. The total amount committed by the project to out-of-tract public improvements is $154,332.
4 As part of the project's Tentative Map conditions of approval, the developer, NORDSTROM CAL HOMES, LLC, was required to perform the following:
1. Underground the overhead utilities along the project's frontage on East Dunne Avenue from the project's easterly property line to the next junction pole located 135 feet west of the centerline of Murphy Avenue. The total length of undergrounded utilities along East Dunne Avenue is 735 feet, where 135 feet of undergrounded utilities are considered out-of-tract improvements as it is beyond the project's frontage and past the centerline of Murphy Avenue to the west.
2. Complete the out-of-tract frontage public improvements along Murphy Avenue, adjacent to the property that is south of the project site, located at 16870 Murphy Avenue (APN: 817-19-030) and currently owned by Advent Lutheran Church.
The developer has completed the project's in-tract and out-of-tract public improvements.
Since the out-of-tract improvements are not the financial responsibility of the developer, the developer is seeking reimbursement for a portion of the undergrounding along East Dunne Avenue, and the frontage public improvements at 16870 Murphy Avenue.
The following table shows the breakdown of the construction cost of the out-of-tract improvements, less the RDCS commitments, and the reimbursement amount to the developer for the construction of the out-of-tract public improvements.
Undergrounding Out-of-Tract Improvement along East
Dunne Avenue
Cost
Design Drawings $1,379.31
Electric Contract - PG&E $82,212.18
Telecommunications Contract - Wave $6,234.65
Cable Contract - Charter Spectrum $8,353.97
Undergrounding Work by Contractor $63,593.94
Traffic Control $1,500
Subtotal $163,274.05
Frontage Out-of-Tract Improvements at 16870 Murphy
Avenue
Cost
Construction of Murphy Avenue frontage $272,226.16
General Liability Insurace $4,998.07
General Contractor Overhead $13,611.31
Construction Staking $4,000.00
Geotechnical Observation and Testing $1,970.00
Subtotal $296,805.54
Total Out-of-Tract Construction Cost $460,079.59
4 RDCS Commitment ($12,861.00 per unit x 12 units) to
be used towards the cost of out-of-tract public
improvements.
-
$154,332.00
Total Reimbursement Amount $305,747.59
The total cost of the design, utility contracts, and construction of the out-of-tract public improvements is $460,080. After subtracting the cost of the RDCS commitment in the amount of $154,332, the total reimbursement amount is $305,748. It should be noted that the majority of the frontage out-of-tract improvements cost at 16870 Murphy Avenue shall be paid back to the City through a separate finance agreement with Advent Lutheran Church.
The cost and construction work has been reviewed and deemed complete. Therefore, staff recommends that the City enter into a Reimbursement Agreement (see Attachment 2) with the developer, NORDSTROM CAL HOMES, LLC, for a reimbursement amount of $305,748 to cover the construction cost of the out-of-tract public improvements completed by the Dunne Murphy Subdivision project.
COMMUNITY ENGAGEMENT:
This report serves to inform the community of the proposed Reimbursement Agreement with NORDSTROM CAL HOMES, LLC.
ALTERNATIVE ACTIONS:
There is no feasible alternative action as the Developer has completed the out-of-tract public improvements adjacent to the subdivision project.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On May 3, 2017, the City Council approved the Final Map and Subdivision Improvements Agreement for Dunne Murphy - Tract No. 10387.
On June 16, 2021, the City Council approved an extension of time for the Subdivision Improvements Agreement for Dunne Murphy - Tract No. 10387.
FISCAL AND RESOURCE IMPACT:
The reimbursement amount of $305,748 will be funded from the City's Traffic Impact Fund (309). An appropriation of $305,748 is required from the Traffic Impact Fund. The Traffic Impact Fund is currently showing a negative fund balance. However, the timing of receipt of grant funds is the current reason for the negative balance. In addition, the majority of this cost ($281,812) shall be paid back to the City through a separate finance agreement with Advent Lutheran Church.
CEQA (California Environmental Quality Act):
A Mitigated Negative Declaration was adopted for the project on February 9, 2016.
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R E I M B U R S E M E N T A G R E E M E N T
DUNNE MURPHY – TRACT NO. 10387
NORDSTROM CAL HOMES, LLC
THIS AGREEMENT is made this day of , 2023, by the
CITY OF MORGAN HILL, a municipal corporation ("CITY"), and NORDSTROM CAL HOMES, LLC, a California Limited Liability Company ("DEVELOPER").
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to City Council approval on November 15, 2023.
2. CITY desired the DEVELOPER to furnish out-of-tract undergrounding improvements along East Dunne Avenue west of the centerline of Murphy Avenue and out-oftract public improvements along the frontage of the adjacent property to the south at 16870 Murphy Avenue owned by Advent Lutheran Church.
3. DEVELOPER agreed to, at its own cost and expense, install these improvements ("IMPROVEMENTS").
4. DEVELOPER requests that CITY reimburse it for a portion of the cost incurred for IMPROVEMENTS.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement. This Agreement covers services rendered from the date of building permit issuance for the project until such time as the amount or portion for reimbursement has been paid to DEVELOPER or its designee. This Agreement shall terminate in two years or upon full reimbursement, whichever occurs first.
2. Scope of Project. The Project scope consists of:
a) Undergrounding of existing overhead utilities along East Dunne Avenue, west of the centerline of Murphy Avenue.
b) Construction of curb, gutter, sidewalk, driveway approach, relocation of various utilities, and street asphalt pavement widening of Murphy Avenue along the street frontage of 16870 Murphy Avenue.
3. IMPROVEMENTS PROVIDED. IMPROVEMENTS performed by DEVELOPER consisted of the following: out-of-tract undergrounding along East Dunne Avenue west of the centerline of Murphy Avenue and out-of-tract public improvements along the frontage of the adjacent
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property to the south at 16870 Murphy Avenue owned by Advent Lutheran Church (see attached Exhibit A).
4. Compensation. DEVELOPER had expended the following amount in construction of IMPROVEMENTS:
4.1 Amount. Four hundred sixty thousand seventy-nine dollars fifty-nine cents ($460,079.59).
4.2 Portion to be Reimbursed. Three hundred five thousand seven hundred forty-seven dollars fifty-nine cent ($305,747.59).
4.3 Payment. CITY shall reimburse DEVELOPER upon completion of the improvements to CITY’s satisfaction.
4.4 Records of Expenses. DEVELOPER has kept records in which complete and correct entries are made of all construction costs, including overhead, related to IMPROVEMENTS. These records have been made available to CITY upon request.
4.5 Termination. CITY and DEVELOPER shall have the right to terminate this Agreement, without cause, by giving not less than thirty (30) days written notice of termination as provided in Paragraph 12 below.
5. Assignment of Payments.
5.1 Payment Stream. DEVELOPER may assign the payments upon written instruction to CITY as provided in Paragraph 12 below. CITY shall have no liability whatsoever for failure to follow these instructions or for any claim by any entity for the funds or for their assignment.
7. 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.
8. Non-Discrimination. DEVELOPER covenants there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, disability, sexual orientation, national origin, or ancestry, in any activity pursuant to this Agreement.
9. Independent Contractor. It is agreed to that DEVELOPER shall act and be an independent contractor and not an agent or employee of CITY.
10. Compliance with Law. DEVELOPER shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government.
11. Conflict of Interest and Reporting. DEVELOPER shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.
12. Notices. All notices shall be personally delivered or mailed, via first class mail to the below
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listed addresses. 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. a. Address of DEVELOPER is as follows:
Nordstrom Cal Homes, LLC
Jenny Huang
16890 Monterey Street
Morgan Hill, CA 95037
b. Address of CITY is as follows: With a copy to:
Public Works Director City Clerk
City of Morgan Hill City of Morgan Hill
17555 Peak Avenue 17555 Peak Avenue
Morgan Hill, CA 95037 Morgan Hill, CA 95037
13. Licenses, Permits and Fees. DEVELOPER shall obtain a City of Morgan Hill Business License, all permits, and licenses as may be required by this Agreement.
14. Time of Essence. Time is of the essence in the performance of this Agreement.
15. Limitations Upon Subcontracting and Assignment. Neither this Agreement nor any portion shall be assigned by DEVELOPER without prior written consent of CITY.
16. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement.
17. Indemnification. DEVELOPER agrees to protect, and hold harmless CITY and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damage to property, or interference with use of property, arising out of, or in any way connected with performance of the Agreement by DEVELOPER, DEVELOPER'S agents, officers, employees, subcontractors, or independent contractors hired by DEVELOPER. The only exception to DEVELOPER'S responsibility to protect, defend, and hold harmless CITY, is due to the sole negligence of CITY. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DEVELOPER.
18. Modification. 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 subsequent mutual written agreement executed by CITY and DEVELOPER.
19. California Law. This Agreement shall be construed in accordance with the laws of the State of California. Any action commenced about this Agreement shall be filed in the central branch of the Santa Clara County Superior Court.
20. Interpretation. This Agreement shall be interpreted as though prepared by both parties.
21. Preservation of Agreement. Should any provision of this Agreement be found invalid or
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unenforceable, the decision affected only the provision interpreted, and all remaining provisions shall remain enforceable.
IN WITNESS THEREOF, these parties have executed this Agreement on the day and year shown below.
CITY OF MORGAN HILL "DEVELOPER"
NORDSTROM CAL HOMES, LLC
By: ________________________ By:_________________________ Christina J. Turner, City Manager Jenny Huang, Manager
Date: ____________ Date: ____________
ATTEST: APPROVED AS TO FORM:
______________________________ _______________________________ Michelle Bigelow, City Clerk Donald A Larkin, City Attorney Date: ____________ Date: ____________
11/02/2023
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Exhibit A
CONSTRUCTION COST - 16870 MURPHY AVENUE ADVENT LUTHERAN CHURCH MURPHY FRONTAGE IMPROVEMENTS Item Description Total
1 Tree removal and clearing $6,600.00
2 Retaining walls $1,880.00
3 Sawcut and remove existing asphalt to centerline $5,643.00 4 Sawcut and remove existing parking lot asphalt and curb $9,650.00 5 Grade for half street improvements including off haul $47,600.00 6 Grade for parking lot improvements including off haul $9,795.00 7 5" AC on 14.5" CL II AB $73,080.00
8 9' wide asphalt grind and 2" AC overlay along centerline $8,568.00 9 4" AC on 13" CL II AB - Parking lot $10,500.00
10 Curb and gutter on 13.5" CL II AB $12,291.00
11 Vertical curb - Parking lot $7,920.00
12 Sidewalk on 4" CL II AB $14,030.00
13 Driveway approach on 6" CL II AB $4,876.00
14 Signing and striping $3,040.00
15 Relocate existing fire hydrant behind curb and gutter $5,680.00 16 Remove existing storm drain inlet - parking lot $745.00 17 Relocate 2 olive trees in order to grade a slope for the landscape area $9,250.00 18 Over-ex and add base rock to street section due to unsuitable soils $2,126.00 19 Lower 1" and 2" water services $5,835.00
20 Install sleeves and drain line under sidewalk $1,478.00 21 Install sleeve under north driveway $456.00
22 Install drain box in planter strip $1,196.00
23 Remove landscaping behind sidewalk along frontage $3,490.00 24 Grade landscape slope along frontage $6,380.00
25 Add geogrid along Murphy frontage $2,641.00
26 PG&E fee to relocate gas valve in street curb $4,314.56 27 PG&E fee to relocate gas valve in street curb $13,161.60 28 Sub-total Construction Cost $272,226.16
29 General Liability Insurance - $18.36/$1000 of (Sub-total) Construction Cost $4,998.07 30 GC Overhead - 5% of (Sub-total) Construction Cost $13,611.31 31 Construction Staking $4,000.00
32 Geotechnical Observation and Testing $1,970.00
33 Total Construction Cost at 16870 Murphy Avenue Frontage $296,805.54
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CONSTRUCTION COST - UNDERGROUNDING OVERHEAD UTILITY ALONG EAST DUNNE AVENUE WEST OF MURPHY AVENUE CENERLINE ( RULE 20)
No. Description Total
34 Portion of undergrounding PG&E west of Murphy centerline (135 ft out of 783 ft = 17.24%) $63,593.94 35 Portion of PG&E's Rule 20 fee (135 ft out of 783 ft = 17.24%) $82,212.18 36 Traffic Control Plan (Murphy Closure for Rule 20) $1,500.00 37 Portion of Astound Broadband (wave) fees (135 ft out of 783 ft = 17.24%) $6,234.66 38 Portion of Tarrar's Rule 20 design fee (135 ft out of 783 ft = 17.24%) $1,379.31 39 Portion of Charter Spectrum undergrounding fees (135 ft out of 783 ft = 17.24%) $8,353.97 40 Total Construction Cost of undergrounding overhead $163,274.05
DUNNE MURPHY RDCS COMMITMENTS TO PROVIDE OUT OF TRACT PUBILC IMPROVEMENTS No. Description Total
A
School Pedestrian Safety improvement at $4950 per unit (note: total new units are 12 of 14; 2 units are existing) -$59,400.00
B Public Facilities - Public Improvements at $4400 per unit -$52,800.00 C Public Facilities - Capital Improvements at $1100 per unit -$13,200.00 D Public Facilities - Circulation Efficiency at $2,200 per unit -$26,400.00 E Public Facilities - Bike Lanes at $211 per unit -$2,532.00 F Total RDCS Commitments -$154,332.00
Total Construction Cost (33+40) $460,079.59
Total RDCS Commitments (F) -$154,332.00
Total Reimbursement Amount (33+40-F) $305,747.59
RESOLUTION NO. 23-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MORGAN HILL APPROVING AN AMENDMENT TO
THE CITY’S FISCAL YEAR 2023-2024 BUDGET IN THE
TRAFFIC IMPACT FUND (FUND NO. 309) TO
APPROPRIATE $305,748
WHEREAS, the City of Morgan Hill, a municipal corporation and general law city duly organized and existing under and pursuant to the Constitution and laws of the State of California (“City”), is authorized to enter into contracts and agreements for the benefit of the City; and WHEREAS, the reasons supporting this Resolution are set forth in detail in that certain City Council Staff Report entitled “Approve a Reimbursement Agreement with Nordstrom Cal Homes, LLC for Out-of-Tract Public Improvements Adjacent to the Dunne Murphy Subdivision (Tract No. 10387)” submitted for City Council consideration at its meeting of November 1, 2023, submitted to the City Council by the City Manager (the “Staff Report”), the contents of which Staff Report are incorporated herein by this reference; and WHEREAS, recommended amendments are needed and proposed to the City’s previously adopted Annual Budget for Fiscal Year 2023-2024 as set forth on Exhibit A to this Resolution, to appropriate the requisite funds to implement the actions authorized by this Resolution; and WHEREAS, the consideration by City Council of the adoption of this Resolution has been duly noticed pursuant to applicable laws and has been placed upon the City Council Meeting Agenda on the date set forth in the Staff Report, or to such date that the City Council may have continued or deferred consideration of this Resolution, and on such date the City Council conducted a duly noticed public meeting at which the City Council provided members of the public an opportunity to comment and be heard and considered any and all testimony and other evidence provided in connection with the adoption of this Resolution; and WHEREAS, the City Council determines that adoption of this Resolution is in the public interest.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
Section 1. Recitals. The City Council does hereby find, determine and resolve that all of the foregoing recitals are true and correct.
Section 2. Approval and Authorization. The City Council does further resolve, order and/or direct as follows:
a. That the City’s previously adopted Fiscal Year 2023-2024 Budget, as the same has been amended to date, is hereby further amended in accordance with and as
City of Morgan Hill
Resolution No. 23-XXX
reflected on Exhibit A attached hereto and incorporated herein by this reference; and
b. That the City Clerk is hereby authorized and directed to forward a copy of this Resolution to the City’s Finance Director, who is hereby authorized and directed to take all actions necessary to implement the terms of this Resolution pertaining to the Fiscal Year 2023-2024 Budget of City.
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Morgan Hill at its meeting held on this 15th day of November 2023 by the following vote:
AYES: COUNCIL MEMBERS: None
NOES: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
APPROVED: ATTEST:
___________________________________ _______________________________ MARK TURNER, 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. 23-xxx adopted by the City Council at the meeting held on the 15th day of November 2023.
WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.
DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk
City of Morgan Hill
Resolution No. 23-XXX
EXHIBIT A
AGENDA BUDGET SCORECARD
FISCAL YEAR 2023-2024
ADJUSTMENT # 017
FUND: 309 Traffic Impact Fund
FUNTION: 40 Public Services
DEPARTMENT: 40 Public Services
DIVISION: 8053 Traffic Impact
OBJECT: 42231 Contract Services
AGENDA DATE: 11/15/23
AGENDA ITEM TITLE:
07/01/23 06/30/24
UN-AUDITED PROJECTED
BEGINNING AMENDED ENDING
FUND ESTIMATED APPROPRI- FUND
BALANCE REVENUES ATIONS BALANCE
ORIGINAL BUDGET 3,613,394 1,276,925 5,197,546 (307,227)
CUMULATIVE REVISIONS PRIOR - - - -
TO RECOMMENDED ACTION
RECOMMENDED ACTION - 305,748 (305,748)
RESULTOF RECOMMENDED ACTION 3,613,394 1,276,925 5,503,294 (612,975) Reimbursement Agreement with Nordstrom Cal Homes
5 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Manager
APPROVE CONSULTANT AGREEMENT WITH IMS INFRASTRUCTURE
MANAGEMENT SERVICES, LP FOR SIDEWALK
ASSESSMENT IN THE AMOUNT OF $156,950
RECOMMENDATION(S)
1. Approve and authorize the City Manager to execute a consultant agreement with IMS Infrastructure Management Services in the amount of $156,950 for the completion of a sidewalk and curb ramp assessment; and
2. Adopt a resolution to amend the FY 2023-24 budget to appropriate $156,950 in the Public Facilities Fund (346).
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Protecting the Environment and Preserving Open Space and Agricultural Land Maintaining and Enhancing Infrastructure
2022-2023 Strategic Priorities
Transportation
REPORT NARRATIVE:
This item provides an opportunity for the City Council to approve the implementation of a Citywide sidewalk assessment. The sidewalk assessment will assist the City in addressing and prioritizing sidewalk repairs and upgrades to curb ramps to current ADA standards. Most of the costs for the assessment will be paid using risk management grant funds from PLAN JPA, which is the City's shared risk pool. The purpose of the assessment is to identify repairs and upgrades that will reduce liability risks.
In July 2023, the City issued a request for proposals for the Citywide sidewalk assessment. The City received five responses from the companies listed in the table below. The five proposals were evaluated by a committee of the City consisting of the Maintenance Manager, GIS Administrator and Public Services Director. The scoring for the evaluated proposal is outlined in the table below.
5 Criteria ARCOR Inc.
Blue
Accessibility
ConsultantsIMS
Paratum
Solutions
Precision
Concrete
Cutting
Demonstrated professional quality on
similar projects and past experience. 7.5 8.5 13 7.2 8.5 Experience of personnel/subconsultants. 7.5 9 12 7.9 9 Quality of proposal. 10 10 13.5 10.25 5.5
Ability to meet all aspects of the
requirements of the RFP. 8.5 9 13.5 8.75 6.5
Costs 16 24 40 20 16
Total Score 49.5 60.5 92 54.1 45.5
The IMS proposal demonstrated a strong understanding of City needs, a very strong resume of similar past work, and the technical ability to complete the work at a high level. Ultimately, IMS will use a variety of technologies, including Lidar, to record conditions of sidewalks and curb ramps and link those conditions into the City's GIS database. Once completed, the data will be used by City Staff to develop plans for repairs and upgrades to curb ramp and sidewalks.
COMMUNITY ENGAGEMENT:
Since sidewalk maintenance is a regular and expected City maintenance service, no specific engagement activities were conducted to inform the community about this request for proposals. The City will utilize its communication channels to inform the community of assessment work prior to it occurring.
ALTERNATIVE ACTIONS:
The City Council could elect not to move forward with the sidewalk assessment project and provide staff alternate direction.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
There are no previous actions related to this item.
FISCAL AND RESOURCE IMPACT:
The agreement would require appropriation of funds totaling $156,950 in the Public Facilities Fund (346). The City will be reimbursed for $144,565 from the City's insurance pool's risk management grant funding. There are available funds within the Fund 346 to cover the remaining costs of $12,385.
CEQA (California Environmental Quality Act):
5 Categorical Exemption
The planned maintenance and management of city facilities falls within the CEQA categorical exemption of Class 1, Existing Facilities.
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CONSULTANT AGREEMENT FOR DESIGN PROFESSIONALS
IMS Infrastructure Management Services, LP
THIS AGREEMENT is entered into and becomes effective on _______________ (Effective Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and IMS Infrastructure Management Services, LP a Delaware limited partnership ("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 June 30, 2024 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 sidewalk and curb ramp inspection as further described in Exhibit A.
4. Compensation. CONSULTANT shall be compensated as follows:
4.1. Amount. $156,950.00. Total compensation to CONSULTANT under this Agreement during its initial term set forth in Section 2 above shall not exceed One Hundred Fifty Six Thousand Nine Hundred Fifty dollars and shall be billed based on the rate and basis set forth in Exhibit B. If the City Manager extends the term of this Agreement pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to 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
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compensation has not been paid. CITY may require CONSULTANT to complete certain work product or documents and CONSULTANT shall deliver to CITY all documents in its possession without additional compensation to CONSULTANT. The City Manager of CITY is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.
5.1. Non-Appropriations. Notwithstanding anything contained in this Agreement to the contrary, if insufficient funds are appropriated, or funds are otherwise unavailable in the budget for CITY for any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify CONSULTANT of such occurrence, and this Agreement shall terminate after the last day during the fiscal year for which appropriations shall have been budgeted for CITY or are otherwise available for payments.
6. Performance of Work. CONSULTANT represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services. Services shall be performed by CONSULTANT in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of the CONSULTANT’S profession. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement and all applicable federal, state, and local laws. CONSULTANT shall perform all work and services under this Agreement in conformance with the time schedule set forth on Exhibit C, "Schedule of Performance," attached hereto and incorporated herein by this reference. CITY'S City Manager is authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement. If CONSULTANT desires to leave or store any of CONSULTANT’S equipment at a CITY site while CONSULTANT is performing work or service pursuant to this Agreement, CONSULTANT will first obtain the consent of CITY'S City Manager, or his/her delegate, to do so, and any such storage shall occur only in the manner and location allowed by such CITY official and entirely at CONSULTANT’S sole risk.
7. Insurance Requirements. CONSULTANT shall procure and provide proof of the insurance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of CONSULTANT, including its subcontractors, employees, and agents, relating to, or arising from, the performance of any work or service under this Agreement, and must remain in full force and effect at all times during the period covered by this Agreement. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or “umbrella” policies, provided each such policy complies with the requirements set forth herein. Any deductibles or self-insured retentions must be declared to and approved by City. CONSULTANT further understands that the CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to CONSULTANT, at any time as deemed necessary to protect the interests of the CITY.
7.1. Insurance Types and Amounts.
7.1.1. Commercial General Liability (CGL). CONSULTANT shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
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7.1.2. Automobile Liability. CONSULTANT shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if CONSULTANT does not own automobiles, then CONSULTANT shall maintain Hired/Non-owned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
7.1.3. Workers’ Compensation Insurance and Employer’s Liability. CONSULTANT shall maintain Workers Compensation coverage, as required by law, in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater. If CONSULTANT is selfinsured, CONSULTANT shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.
7.1.4. Pollution (Environmental) Liability. If the performance of CONSULTANT’S work or service under this Agreement involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, CONSULTANT shall procure and maintain Pollution Liability covering the CONSULTANT’S liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Agreement.
Coverage shall be provided for both work performed on site, as well as during the transport of hazardous materials. Such coverage shall be in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
7.1.5. Professional Liability.
7.1.5.1. If the performance of CONSULTANT’S work or service under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), CONSULTANT shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater. Further, if CONSULTANT maintains a claims-made policy, CONSULTANT shall provide written evidence of such insurance to the CITY for at least five (5) years after the completion of work performed under this Agreement.
7.1.5.2. If the performance of CONSULTANT’S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers,
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hardware engineers, or other systems consultants), CONSULTANT shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
7.1.6. Sexual Abuse/Molestation Liability (SML): If the performance of CONSULTANT’S work or service under this Agreement involves contact with minors, CONSULTANT shall procure and maintain Sexual Abuse and Molestation insurance in the minimum amount of: (i) two hundred thousand dollars ($200,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
7.2. Endorsements. CONSULTANT shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:
7.2.1. General Liability and pollution liability (when pollution liability applies).
7.2.1.1. “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 self-insurance 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
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agreement with the CITY shall be canceled or materially changed except after thirty (30) days' notice by the insurer to CITY. A "material change" is a change that results in noncompliance with any insurance requirements in this section 7. Certificates, including renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address provided herein.
Certificate Holder address:
City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037
8. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable for any default or liability under this Agreement.
9. Compliance with Law.
9.1. CONSULTANT and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. CONSULTANT and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon any basis prohibited by State or Federal law, including but not limited to, 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.
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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 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:
IMS Infrastructure Management Services, LP
Attn: Jim Tourek
6001 West Parmer Lane, Suite 370-8933
Austin, Texas 78727
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Address of CITY is as follows:
Chris Ghione
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
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void and, at CITY'S option, shall terminate this Agreement effective as of the date of such attempted assignment.
20. Attorney Fees. In any legal action, dispute or arbitration arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred.
21. Defense and Indemnification.
21.1. Defense and Indemnification for Design Professional Services. Consistent with California Civil Code Section 2782.8, for design professional services to be performed under this agreement by a design professional, as that term is defined under said Section 2782.8, CONSULTANT shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers (“INDEMNITEES”) from and against any and all claims, liabilities, expenses, liens, or damages of any nature, including liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, and/or its agents, officers, employees, subcontractors, or independent contractors in performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement (“CLAIM”) to the extent of CONSULTANT’S proportionate percentage of fault.
21.2. Defense and Indemnification for Non-Design Professional Services. For all services performed under this agreement not covered by Section 21.1 above, CONSULTANT shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers (“INDEMNITEES”) from and against any and all claims, liabilities, expenses, liens, or damages of any nature, including liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the performance of this Agreement or the failure to comply with any obligations contained in this Agreement by CONSULTANT, and/or its agents, officers, employees, subcontractors, or independent contractors (“CLAIM”).
21.3. Exceptions. CONSULTANT is not required to indemnify INDEMNITEES against liability for bodily injury, property damage or personal injury, or any other loss, damage or expense arising from the sole negligence, active negligence, or willful misconduct of the CITY.
21.4. Not limited by insurance. The indemnity, defense and hold harmless provisions of this Agreement apply to all CLAIMS alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by CONSULTANT.
21.5. Right to Offset. CITY shall have the right to offset against any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’S failure to pay CITY promptly any indemnification arising under this Section (21) and any amount due CITY from CONSULTANT arising from CONSULTANT’S failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers' compensation laws.
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21.6. Interpretation. This Section shall constitute an agreement or contract of indemnity, incorporating the interpretations under California Civil Code Section 2778. It is expressly understood and agreed that the obligation of the CONSULTANT to indemnify the INDEMNITEE shall be as broad and inclusive as permitted by the laws of the State of California and shall survive termination of this Agreement.
22. Entire Agreement; Modification; Conflicting Provisions. This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agreements, oral or written. This Agreement may be modified, or provisions waived, only by a subsequent mutual written agreement executed by CITY and CONSULTANT. If the provisions contained in the main body of this Agreement conflict with any provision contained in an exhibit to this Agreement, the provisions of the main body of this Agreement shall govern and control over any provision contained in an exhibit to this Agreement.
23. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. This Agreement was entered into and is to be performed in the County of Santa Clara. Any action or dispute arising out of this Agreement shall only be brought in Santa Clara County.
24. Interpretation. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, California Civil Code § 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
25. Preservation of Agreement. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
26. Binding Agreement. Notwithstanding the provisions of Section 19 above, this Agreement shall bind any and all successors in interest, legal representatives and/or other permitted assignees or transferees of CONSULTANT in the same manner as if those successors in interest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.
27. ☐ Data Sharing. This Agreement requires access by CONSULTANT to CITY’S Geographic Information System (GIS) DATA for CONSULTANT to perform the work. CITY agrees to provide the GIS DATA to CONSULTANT solely for the purpose of performance of contracted work with the CITY upon the terms and conditions specified in Exhibit D, incorporated herein by this reference.
28. Electronic Signatures. Unless otherwise prohibited by law or CITY policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the CITY.
[Signatures on Next Page]
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29. 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: IMS Infrastructure Management Services, LP 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 Services Agreement For Design Professionals.Docx 11/2/23
Michael Nieminen, CEO
John Till, Controller
11/2/23
Exhibit A Sope of Services
Overview
The consultant shall collect data and assess City sidewalks documenting all sidewalk deficiencies, including use of a standard rating system on the severity of the deficiency.
The consultant shall collect and assess curb ramp ADA compliance on the following attributes: ramp slope, cross slope, road slope & cross slope, flare slopes, ramp width, landing area, and tactile pad (truncated dome) per current Caltrans Standards.
Scope Location
Location of assessed sidewalks and curb ramps are identified in following map and further identified in detail in the GIS data provided by the City to consultant.
County of Santa Clara, Bureau of Land Management, Esri, HERE, Garmin, INCREMENT P, NGA, USGS Streets
City Limit
¯
0 0.5 1
Miles
City of Morgan Hill
Sidewalk Assessment RFP:
Streets to be Assessed
City of Morgan Hill GIS
7/18/2023
Path: Q:\Maintenance\Projects\RFPs\SidewalkAssessment\Maps\SidewalkAssessment_RFP\SidewalkAssessment_RFP.aprx
Project Approach
The data collected will identify trip hazards resulting from sidewalk panels that are uneven as well as distresses requiring sidewalk repair or replacement. To complete the project, the trip hazards will be classified into four categories as requested by the City and delivered in a KMZ file or geodatabase.
The IMS project approach for sidewalk condition and asset inventory projects typically follows the 7 steps shown in the graphic below.
Project Kickoff
IMS has standardized a project approach based upon our 38 years of pavement and asset management experience. Detailed conversations with our clients allow IMS to tailor a solution to the specific needs of an individual municipality. A prerequisite for a successful project is an initial project meeting with the City team members and the IMS team. This early communication is critical to ensuring that we are fully aligned with the City’s overall vision for this project as well as the specific data needs for the City.
IMS will ensure that the plan remains current with any further data needs. IMS Project Initiation Form and GIS Setup Form are part of the process, where the outcome will include a final project plan and an approved schedule in collaboration with the City’s staff and stakeholders to be established prior to data collection.
Another critical component of project prep is ensuring the Master Asset List (MAL) is understood and accepted before the project begins. The MAL acts as a data dictionary and gives full transparency into what sidewalk distress data can be expected to be included in the final database that will be delivered. It also includes all assumptions made about each attribute domain and type, so any subjectivity during rating can be understood clearly.
Revised Data Submittal Outline/GIS Format/Quality Standards Quality Management Plan
Based on discussions with the City during the project initiation and kickoff meetings, IMS will develop a projectspecific version of our standard QMP for this project. The plan will address the following:
Phase 1. Project Planning – Before Data Collection
• Project team and schedule
• Rater calibration
• Equipment calibration and control sites
Phase 2. Project Execution – During Data Collection and Processing • Pilot data collection, processing, and reporting
• Production data collection and processing
• Routine equipment inspection and calibration procedures Phase 3. Data Delivery – Post Data Processing
• City acceptance and corrective action procedures
• Final data review
• Data delivery and final report
The final QMP plan will consist of these elements, all of which will be formalized prior to data collection.
GIS Survey Mapping & Network Referencing
Data collection is unique in every jurisdiction, varying by network complexity, the mix of urban and rural roadways, type of terrain, schedule constraints, and most notably, the analysis and data delivery requirements.
To facilitate a standard approach that yields deliverables tailored to our clients’ needs, IMS has the our Unify™ Suite of collection, processing, and viewing software. The comprehensive software relies on street centerline GIS data provided by the City to build all successive processes which include calibration, collection, processing, analysis, and reporting. The Unify™ Suite eliminates the need to use numerous scripts and transformations to produce the geodatabase and tabular deliverables.
The IMS technical team will review the City-provided sidewalk network files (expected in an ESRI GIS file format) that define the routes to be collected. If discrepancies arise, they will be noted and discussed for resolution with the City before the start of data collection. The finalized road network will be loaded into the Drive™ software, which defines the pavement network segmentation and attribution to be collected and delivered, minimizing routing problems and location errors. The GIS files will include attributes such as Sidewalk Section ID, Street Name, Street Type, beginning description, ending description, start reference, and end reference for each segment.
Sidewalk Condition Data Collection
IMS will collect data using its state-of-the-art LiDAR system. The LIDAR unit captures a 360-degree field of view by collecting dense point cloud patterns that can be collected with a single pass at posted traffic speeds on local roadways. Asset grade horizontal accuracy (sub meter) is possible with this system without supplemental ground control. This method provides detailed data to determine if the sidewalks are compliant with current local standards. This data is processed by IMS technicians into the final deliverable. This reduces the need for double passing many roadways as required with pavement data collection surveys.
Accompanying the LIDAR unit, IMS uses the state-of-the-art Ladybug 360-degree cameras. These cameras provide imagery at 36 megapixels that creates the colorized point cloud used in developing the 3D image of the desired ramp attributes.
IMS will use the data collected to provide a Sidewalk Condition Index (SWCI) which is a 0-100 score that is like the Pavement Condition Index (PCI) used for assessing street pavements. The SWCI was developed by IMS in 2014 when we launched our SST platform.
By using the SWCI IMS will provide an approach to sidewalk management that is similar to the approach used for pavement management – detailed, objective, and repeatable surveys that provide a solid foundation for multi-year budgeting maintenance and rehabilitation planning.
Sidewalk Ramp Data Collection
A pedestrian curb ramp is defined as an inclined plane needed wherever a sidewalk or other pedestrian walkway crosses a curb. Similarly to the pre-survey prep for the sidewalk assessment, IMS will create a review map of all current ramps to be confirmed by City staff as a function of the IMS routing plan.
Ramp locations will be verified via the GPS-linked imagery and aerial photography. Updates to the existing database will be confirmed with County staff prior to any adjustments. The table structure for the ramp inventory is included on the next page. This will be modified to match the City terminology, or any modifications made as a part of negotiations and reflected in the MAL.
The ramp condition assessment is completed via measurements derived from the point cloud captured by the mobile LiDAR unit.
Data Processing and QC/QA
Sidewalk Distresses
The sidewalk distress locations will be reported in a GIS database. We will also summarize these findings at the segment level for integration into the Easy Sidewalk Analysis spreadsheet for SWCI calculation purposes. The raw GIS files can be used for precisely locating slabs that need to be repaired, which can be used in conjunction with the spreadsheet deliverable, which will help to determine priority.
Ramps
Point Cloud Processing – The raw point cloud data from the LiDAR unit is processed into a user-friendly format for use in TopoDOT for Microstation. Upon completion of the point cloud processing, IMS tiles the network for identification of the intersection ramps and delivery to our extraction team.
Smart Cell Extraction – The IMS extraction team uses a Smart Cell library developed by IMS. The Smart Cells are applied to each ramp in the point cloud and sized according to the visible geometry of the pedestrian curb ramp. Once sized, the Smart Cell auto calculates all the geometric units of measure identified in the Master Asset List (i.e., ramp slope, landing slope, flare slope, facility dimensions, etc.) Ramp Join & QC – The pedestrian curb ramp geometric attributes are joined to the appropriate ramp and assigned to a Curb Ramp QC technician who validates the geometry measurements captured during Smart Cell Extraction. Any error or anomalies found during QC are corrected using the point cloud collected in the field.
Sidewalk Condition Survey QC/QA
Sidewalk and ramp inventory and condition GIS data goes through a series of quality checks before it is delivered. These include:
• General review involves an overall cursory scan of the dataset to visually identify any anomalies before proceeding with more detailed checks. A sort of each attribute should yield complete information without unexpected gaps. Any gaps are noted and further investigated in subsequent checks. • Positional accuracy checks ensure that features collected with GPS align with aerial photographs, street centerline and other attributes.
• Geometry checks ensure that features are of the expected geometry and that no invalid or null geometries exist. These checks can also include connectivity checks if delivered features have expected geometric relationships, such as the relationship of a ramp point to a sidewalk line. • Database Schema Checks – Schema checks ensure that the delivered geodatabase conforms to the schema specifications outlined in the Master Asset List (MAL) at the onset of the project. Checks include a review of features, feature types and naming, attribute types and naming, coordinate system, and allowed geometries. • Attribute completeness checks ensure that feature classes are fully populated according to domains outlines in the MAL. Logical consistency checks may be performed if a feature has multiple attribute relationships that need validated.
• Attribute accuracy checks ensure that the data captured in the feature class agrees with the source data used to create the feature.
Data Formatting and Loading
Collected 360-degree imagery and lidar “point cloud” datasets will be processed and compiled by IMS data technicians for review by the IMS QC/QA team. Validated sidewalk distresses and ramp measurements will be entered into our “Easy Sidewalk Analysis” (ESA) spreadsheet. The ESA spreadsheet converts the validated data into SWCI scores. SWCI scores along with the validated sidewalk distresses and ramp measurements are then exported to a geodatabase for integration with the City’s asset management system, Cityworks.
Ramp measurements are captured from the LiDAR point cloud using TopoDOT for Micro Sidewalk Maintenance Recommendations
The key to the success of the project and meeting the City’s needs is the development of a prioritized sidewalk and ADA ramp rehabilitation plan. Important steps in the process are identifying the correct rehabilitation costs and developing a logical Remaining Service Life for each sidewalk.
The Sidewalk and ADA ramp report and recommendations will include:
• Sidewalk and ramp location inventory/attribute report • Location of non-existent sidewalk ramps needed to meet ADA compliance • Analysis parameters –define/develop estimated average sidewalk life, rehab payment max life, sidewalk deterioration curves, burden rates, and minimum percentage for gaps to be filled. • Present condition ranking – detailed condition data including Good/Fair/Poor, distress types, RSL, material, reviews of each ramp and ranking of the ramps.
• Fix all deficiency costs –identifies the upper limit of spending by rehabilitating all ramps and sidewalks to meet ADA compliance requirements, assuming unlimited funding. • Replacement program & funding levels –funding necessary to replace / repair sidewalks and ramps over a period of time.
• Draft 5-year rehabilitation and prioritized sidewalk/ramp plans – based on condition, available budget, and level of service constraints; a minimum of three budget runs will be completed.
• Final prioritized plan – incorporates feedback from stakeholder departments, complete with budget and level of service constraints.
Asset Management Software Integration
Data collected during this process will be populated in a geodatabase that will be compatible both with the City’s GIS and Cityworks, per the requirements set forth in Attachment 3 of the City’s solicitation. All of IMS’ deliverables are associated with either sidewalks (i.e., lines in GIS) or ramps (i.e., points in GIS). Establishing a Master Asset List (MAL) compatible with the City’s Cityworks implementation is critical to ensure the success of the project. If the City has not formally defined a MAL for this project, the IMS team will work collaboratively with the City to establish this prior to field data acquisition.
Proposed Data Submittal Outline/GIS Data Format
The collected sidewalk condition data will be analyzed by the IMS team using our Easy Sidewalk Analysis (ESA) spreadsheet-based sidewalk management tool. The results of the analysis will be detailed in a report, which will summarize sidewalk deficiencies and repair costs in order of repair priority. The report will contain charts, graphs, and tables to present the condition assessment data. Sidewalk deficiencies and repair costs will be provided in a geodatabase formatted for integration into the City’s GIS and asset management system.
The collected curb ramp condition data will also be analyzed by the IMS team using ESA, and the results will include the same data required and provided for the sidewalk report and additionally shall include all data required related to the status of each curb ramp in meeting current ADA standards. The data collected shall be interpreted in report format with appropriate charts, graphs, tables to present the condition assessment data.
Curb ramp deficiencies and repair costs will also be provided in a geodatabase formatted for integration into the City’s GIS and asset management system.
Required Components to be included in Work
1. Project Initiation/Kick-off – Consultant shall meet with City Staff and review existing limited data provided by the City, review GIS standards and integration with the City GIS software and asset management system (Cityworks). The consultant shall discuss and review current City maintenance program and practices, to assist in determining data collection needs and format.
2. Consultant shall provide a revised Data Submittal Outline/GIS Data Format/Quality Standards based on discussions during the Initiation/Kick-off meeting.
3. Review Existing GIS Mapping –Consultant shall work with the City staff to ensure sidewalk and curb ramp data can be integrated with the City’s GIS system and future asset management software (Cityworks).
4. Network Referencing – The consultant shall develop survey route maps to meet the data collection needs of the City.
5. Sidewalk Condition Data Collection – Consultant shall utilize a data collection platform to that meets the minimum requirements of the City.
a. 3-Dimensional surface imaging technology (not line scan). b. High-precision GPS enabled system for geo-locating
c. Imaging of all noted sidewalk deficiencies and curb ramps d. All systems and data streams should be geotagged and time synchronized with an approved interval.
e. Notes of deficiency, such as uplift, surface deterioration, bump, depression, distortions and cracking shall be collected and rated on an approved sidewalk condition index based on a 0-100 scale. Cause of deficiency (example: tree root), if known, shall be noted. Consultant shall assist the city in determining and selecting these criteria.
f. All survey work shall be performed on dry sidewalk and in lighting conditions that assure usable data.
6. Data Processing and QA/QC – The consultant shall perform data reduction, analysis, and QA/QC of collected data. The consultant shall submit a Quality Management Plan (QMP) for approval prior to the start of work. The consultant shall re-survey at a minimum 10% of the sidewalk and curb ramp to perform quality checks against the recent inspection data. No more than 15% of the resurveyed segments shall have a difference in SCI of more than 15 points.
7. Data Formatting and Loading – The consultant shall create and format all data files to be loaded into any existing or proposed database (GIS, and Maintenance Management System) and upload data to it.
City shall review submitted data to ensure quality in formatting and usability. Consultant shall be required to reformat, re-assess, and/or resubmit data that does not meet quality standards established in item 2 above.
8. Sidewalk Maintenance Recommendations - The consultant shall provide documentation and review maintenance and repair strategies with the City. This should include the recommendation and selection of appropriate treatments such as replacement, edge grind and other methods. Unit costs (dollar/square ft.) from most recent sidewalk and curb ramp projects will be made available to the consultant. The consultant shall use the Sidewalk Condition Index (SCI) (0-100 scale) to provide recommended sidewalk maintenance treatment for each segment with estimated cost for repair, also based on other factors such as route to school, and/or adjacency. The maintenance and repair data should also be provided as a GIS layer and in tabular format. The consultant shall assist the City in reviewing, creating, and reporting a prioritization system for this multi-year rehabilitation program.
9. Asset Management Software Integration - All results from the consultant shall be provided for integration into the City’s GIS and asset management system, using the data format outlined in Attachment 3. All collected data shall be formatted and ready for the City to import into City systems.
Deliverables
The following are the required deliverables of the project.
1. Consultant shall provide a written electronic report of the Sidewalk deficiencies and repair costs in order of repair priority. This shall include all components and data outlined in the scope of services. The data collected shall be interpreted in report format with appropriate charts, graphs, tables to present the condition assessment data. The consultant shall factor in a minimum of 3 rounds of revisions for the draft reports.
2. Consultant shall provide all data collected on sidewalk deficiencies and repair costs in required format for integration into the City’s GIS and asset management system. This shall include all data outlined in the scope of services.
3. Consultant shall provide a written electronic report related to all curb ramps within the City. This report shall include all the same data required and provided for the sidewalk report and additionally shall include all data required related to the status of each curb in meeting current ADA standards. The data collected shall be interpreted in report format with appropriate charts, graphs, tables to present the
condition assessment data. The consultant shall factor in a minimum of 3 rounds of revisions for the draft reports.
4. Consultant shall provide all data collected related to all curb ramps within the City for integration into the City’s GIS and asset management system. This shall include all data outlined in the scope of services.
12 Updated May 2023
EXHIBIT B
SCHEDULE OF COMPENSATION RATES
Cost to provide all assessment and deliverables associated with sidewalk assessment, analysis, and report. Fee is per sidewalk mile assessed. $405.00/sidewalk mile Cost to provide all assessment and deliverables associated with curb ramp assessment, analysis and reporting. Fee is per curb ramp assessed. $48.00/curb ramp Estimated Sidewalks Miles 190 x $405 = $76,950
Estimated Curb Ramps 1250 x $48 = 60,000
Contingency = $20,000
Total Contract Amount = $156,950
13 Updated May 2023
EXHIBIT C
SCHEDULE OF PERFORMANCE
Completion of all project components by the end of the contract term.
RESOLUTION NO. 23-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MORGAN HILL APPROVING AN AMENDMENT TO
THE CITY’S FISCAL YEAR 2023-2024 BUDGET IN THE
PUBLIC FACILITIES NON AB1600 (FUND NO. 346) TO
APPROPRIATE $156,950
WHEREAS, the City of Morgan Hill, a municipal corporation and general law city duly organized and existing under and pursuant to the Constitution and laws of the State of California (“City”), is authorized to enter into contracts and agreements for the benefit of the City; and WHEREAS, the reasons supporting this Resolution are set forth in detail in that certain City Council Staff Report entitled “Approve Consultant Agreement with IMS Infrastructure Management Services LP for Sidewalk Assessment” submitted for City Council consideration at its meeting of November 1, 2023, submitted to the City Council by the City Manager (the “Staff Report”), the contents of which Staff Report are incorporated herein by this reference; and WHEREAS, recommended amendments are needed and proposed to the City’s previously adopted Annual Budget for Fiscal Year 2023-2024 as set forth on Exhibit A to this Resolution, to appropriate the requisite funds to implement the actions authorized by this Resolution; and WHEREAS, the consideration by City Council of the adoption of this Resolution has been duly noticed pursuant to applicable laws and has been placed upon the City Council Meeting Agenda on the date set forth in the Staff Report, or to such date that the City Council may have continued or deferred consideration of this Resolution, and on such date the City Council conducted a duly noticed public meeting at which the City Council provided members of the public an opportunity to comment and be heard and considered any and all testimony and other evidence provided in connection with the adoption of this Resolution; and WHEREAS, the City Council determines that adoption of this Resolution is in the public interest.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
Section 1. Recitals. The City Council does hereby find, determine and resolve that all of the foregoing recitals are true and correct.
Section 2. Approval and Authorization. The City Council does further resolve, order and/or direct as follows:
a. That the City’s previously adopted Fiscal Year 2023-2024 Budget, as the same has been amended to date, is hereby further amended in accordance with and as reflected on Exhibit A attached hereto and incorporated herein by this reference; and
City of Morgan Hill
Resolution No. 23-XXX
b. That the City Clerk is hereby authorized and directed to forward a copy of this Resolution to the City’s Finance Director, who is hereby authorized and directed to take all actions necessary to implement the terms of this Resolution pertaining to the Fiscal Year 2023-2024 Budget of City.
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Morgan Hill at its meeting held on this 15th day of November 2023 by the following vote:
AYES: COUNCIL MEMBERS: None
NOES: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
APPROVED: ATTEST:
___________________________________ _______________________________ MARK TURNER, 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. 23-xxx adopted by the City Council at the meeting held on the 15th day of November 2023.
WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.
DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk
City of Morgan Hill
Resolution No. 23-XXX
EXHIBIT A
AGENDA BUDGET SCORECARD
FISCAL YEAR 2023-2024
ADJUSTMENT # 016
FUND: 346 Public Facilities (Non AB1600)
FUNTION: 40 Public Services
DEPARTMENT: 40 Public Services
DIVISION: 8049 Public Facility
OBJECT: 42231 Contract Services
AGENDA DATE: 11/15/23
AGENDA ITEM TITLE:
07/01/23 06/30/24
UN-AUDITED PROJECTED
BEGINNING AMENDED ENDING
FUND ESTIMATED APPROPRI- FUND
BALANCE REVENUES ATIONS BALANCE
ORIGINAL BUDGET 2,970,080 822,102 1,321,382 2,470,800
CUMULATIVE REVISIONS PRIOR - - - -
TO RECOMMENDED ACTION
RECOMMENDED ACTION 144,565 156,950 (12,385)
RESULT OF RECOMMENDED ACTION 2,970,080 966,667 1,478,332 2,458,415 Sidewalk assessment
6 CITY COUNCIL STAFF REPORT
MEETING DATE: November 15, 2023
PREPARED BY:
Michael Horta, Human Resources Director
APPROVED BY: City Manager
APPROVE MEMORANDUM OF UNDERSTANDING (MOU) WITH
MORGAN HILL POLICE OFFICERS' ASSOCIATION (POA), MOU WITH
COMMUNITY SERVICE OFFICERS' ASSOCIATION (CSOA) AND MOU
WITH THE AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES (AFSCME) AND CORRESPONDING SALARY
SCHEDULES; AND APPROVE MANAGEMENT, PROFESSIONAL, AND
CONFIDENTIAL EMPLOYEES RESOLUTION, ELECTED OFFICIALS
AND COUNCIL APPOINTED AND PART-TIME TEMPORARY AND
SEASONAL EMPLOYEES SALARY SCHEDULES
RECOMMENDATION(S)
1. Approve a Memorandum of Understanding (MOU) with POA effective December 24, 2023 - December 31, 2025 and corresponding salary schedules;
2. Approve a MOU with CSOA effective December 24, 2023 - December 31, 2025 and corresponding salary schedules;
3. Approve a MOU with AFSCME effective December 24, 2023 - December 31, 2025 and corresponding salary schedules pending ratification;
4. Approve the Management, Professional, and Confidential Employees Resolution effective December 24, 2023 and corresponding salary schedules;
5. Approve the Part-Time Temporary and Seasonal Employees salary schedule effective December 24, 2023;
6. Approve the Elected Officials and Council Appointed salary schedules; and
7. Receive update regarding the salaries of the Elected Officials and potential future amendment of Sections 2.04.020 Salary of Council Members and 2.04.030 Salary of the Mayor of the Chapter 2.04 City Council of the Municipal Code of the City of Morgan Hill.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Fostering a Positive Organizational Culture
Preserving and Cultivating Public Trust
2022-2023 Strategic Priorities
6 Fiscal Sustainability
REPORT NARRATIVE:
The City’s negotiating team and the POA and CSOA bargaining units have respectively reached agreements related to Memorandums of Understanding (MOUs) for an additional two-year contract period. The new terms for the MOUs are December 24, 2023 through December 31, 2025.
The POA agreement was ratified by POA members on November 5, 2023 and the CSOA agreement was ratified by CSOA members on November 10, 2023. The AFSCME agreement is scheduled for a vote by AFSCME members on November 14, 2023. Subsequent to the meeting, prior to the City Council meeting on November 15, 2023, a supplement to this staff report will be provided with the outcome of this vote along with a copy of the agreement language if ratified. All the agreements fall within the negotiating economic parameters given by the City Council. These parameters were based on the “Employee Compensation Guiding Principles” that were adopted by the City Council on May 17, 2017, which included seven guiding principles, including: (1) recruitment and retention, (2) fiscal sustainability, (3) compensation structure, (4) market-based compensation, (5) internal equity, (6) transparency and accountability, and (7) legal compliance.
The total compensation package offered to the bargaining unit members is competitive with that of our twelve local comparator government employers in this region and provides incentive for employees to continue employment with the City of Morgan Hill.
The compensation and benefits provided to our employees allow the City to continue to recruit and retain a quality workforce.
All provisions included in the POA and CSOA MOUs, which affect wages, shall be implemented December 24, 2023.
POA
A summary of the major components of the recommended POA MOU is provided below.
• Base Salary Increases for Sworn Personnel (Police Officer, Police Corporal, Police Sergeant) and Non-Sworn Personnel (Multi-Service Officer)
5.00% effective December 24, 2023
5.00% effective December 22, 2024
• Specialized Pay Assignments: Increase pay by 4% effective December 24, 2023 and increase pay by 4% effective December 22, 2024 (per pay period):
2024 2025
Police Officer $281.22 $292.47
Police Corporal $309.34 $321.71
6 Police Sergeant $337.46 $350.96
• FTO Pay: Increase to $5.00 per hour.
•
• Bilingual Pay: Increase to $300.00 per month.
•
• Health: The City will contribute (monthly) to the City’s health plans up to the following monthly amounts:
2024 2025
Employee + Family $2,661.51 $2,794.58
Employee + 1 $2,127.42 $2,233.79
Employee Only $1,062.60 $1,115.73
Health-In- Lieu
(waive)
$610 $610
• Night Differential: $150 a month for employees working 7 p.m. to 7 a.m.
CSOA
A summary of the major components of the recommended CSOA MOU is provided below.
• Base Salary Increases
4.00% effective December 24, 2023
4.00% effective December 22, 2024
• Bilingual Pay: Increase to $500.00 per month.
• Health: The City will contribute (monthly) to the City’s health plans up to the following monthly amounts:
2024 2025
Employee + Family $2,593.49 $2,723.16
Employee + 1 $2,089.51 $2,193.99
Employee Only $983.43 $1,032.62
Health-In- Lieu (waive)$715 $715
• Deferred Compensation Program: City shall contribute two percent (2%) of an
6 employee’s base salary to a 457 Deferred Compensation plan per pay period.
Management, Professional, and Confidential Employees Resolution and Corresponding Salary Schedules
Annually, the City Council considers revisions to the City’s existing Management, Professional, and Confidential Employees Resolution based on a recommendation from the City Manager. All provisions included in this Resolution which affect wages and benefits are recommended to be implemented beginning December 24, 2023. A summary of the components of the recommended Resolution is provided below:
• Salary: Employees covered by the Resolution are recommended to receive a 5% salary increase effective December 24, 2023 and 5% effective December 22, 2024.
• Deferred Compensation Program: City shall continue to contribute two percent (2%) of an employee’s base salary to a 457 Deferred Compensation plan per pay period at the time of hire. Additionally, the City will now also contribute one percent (1%) after 5 years of service and an additional one percent (1%) after 10 years of service.
• Health Benefit: The City will contribute to the City’s medical and dental plans as follows:
2024 2025
Employee + Family $2,574.54 $2,703.27
Employee + 1 $1,964.63 $2,062.86
Employee Only $982.32 $1,031.44
Health / Dental In-Lieu
(waive)
$610 $610
To align the compensation for the Executive Management team with other agencies for employee retention purposes, the Management Resolution includes an additional onetime 3% adjustment for the Group 1-A: Executive Management positions.
The Management Resolution has updated salary bands for three positions within the Public Services Department, the Recreation Manager, Maintenance Manager, and Public Services Administrative Manager. Over the last five years all three positions, have seen increasing levels of responsibility and breadth in oversight as a result of a push towards recovering and containing costs related to the Public Service functions associated with Recreation and Maintenance. The oversight responsibility for the positions has also increased with the management of significant grant funded projects,
6 increases in the amount and variety of infrastructure maintained and operated by the City, and increased complexity in work resulting from ever increasing State requirements.
Part-Time Temporary and Seasonal Employees Salary Schedule The Part-Time Temporary and Seasonal Salary Schedule has been updated to align with the increased minimum wage of $16.00 per hour which takes effect January 1, 2024. Some positions show more significant increases in the pay scale than others to account for compaction issues related to the hierarchy of positions in a series. The new salary schedule is designed to support recruitment and retention of part-time teammates in the Recreation Division, within the existing budget.
New position classifications have been identified to support various departments with specific functions; Administrative Specialist, Environmental Services Specialist, Facilities Maintenance Assistant, and GIS Analyst more specifically. Hourly rates for other part-time positions have also been updated.
Elected Officials and Council Appointed Salary Schedules Under the California Public Employees’ Retirement System (CalPERS) regulations, the City Council is required to adopt salary schedules for all identified employee positions, including Mayor, City Council, Treasurer, City Manager, and City Attorney. Attached are the Appointed and Elected Officials Salary Schedules which include a merit increase, as well as CPI increases effective July 1, 2021, July 1, 2022 and July 1, 2023 that were included in both the City Manager and City Attorney employment agreements.
Adjustment to the Salaries of the Elected Officials
On June 29, 2023, Governor Gavin Newsom signed Senate Bill 329 (SB329) into law, which amends Section 36516 of the Government Code, allowing for the first city council member pay cap increases in nearly four decades. SB 329 increases the maximum amounts of salary that can be approved by city ordinance, based on the population of the city. For cities with populations over 35,000 up to and including 50,000, the salary limit for councilmembers is $1,275 per month. The salary limit may be increased from the 2024 cap in an amount not exceeding the greater of either 5% for each calendar year from the operative date of the last adjustment of the salary or an amount equal to inflation since January 1, 2024, based on the California Consumer Price Index (not to exceed 10% per calendar year).
While SB 329 goes into effect on January 1, 2024, it is important to note that pursuant to Government Code section 36516.5, any council salary increase may take effect only when at least one member of the council commences a new term.
Staff will be bringing an ordinance for adoption on December 6, 2023 and recommending adoption of City Council salaries at the new 2024 limit effective after the 2024 election, to be implemented as per the requirements above. SB329 does not set a maximum salary for the mayor or treasurer. Staff will be proposing that they receive a salary increase at the same percentage as the City Council.
6 COMMUNITY ENGAGEMENT:
Inform
The Human Resources Team will post the approved POA, CSOA and AFSCME MOUs and corresponding salary schedules, Management, Professional, and Confidential Employees Resolution and corresponding salary schedules, and the Part-Time Temporary and Seasonal Employees and Elected Official and Council Appointed salary schedules on the Human Resources website page as is the City’s practice for all labor agreements and salary information.
ALTERNATIVE ACTIONS:
Negotiations with represented bargaining units were conducted within the parameters set by the City Council. Council could choose to provide alternative direction related to the Management, Professional, and Confidential Employees Resolution. Council could modify the proposed Part-Time Temporary and Seasonal Employees Salary Schedule, provided all positions are paid at least the minimum wage.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On November 17, 2021, the City Council approved a two-year POA MOU from December 26, 2021 – December 31, 2023, and corresponding salary schedules.
On November 17, 2021, the City Council approved a two-year AFSCME MOU from December 26, 2021 – December 31, 2023, and corresponding salary schedules.
On December 15, 2021, the City Council approved a two-year CSOA MOU from December 26, 2021 – December 31, 2023, and corresponding salary schedules.
On November 17, 2021, the City Council approved the Management, Professional, and Confidential Employees Resolution and corresponding salary schedules.
On March 2, 2022, the City Council approved the Management, Professional, and Confidential Employees Resolution and corresponding salary schedules.
On December 7, 2022, the City Council approved the Part-Time Temporary and Seasonal Employees salary schedule.
FISCAL AND RESOURCE IMPACT:
The fiscal impact of the MOUs, the Management Resolution, Part-Time Temporary and Seasonal Employees and Elected Official and Council Appointed salary schedules is within the City Council’s approved parameters. For the current fiscal year (2023-24), staff anticipate savings from vacancies will sufficiently cover the net cost. Therefore, no budgetary appropriations are needed. The cost for future years will be built into the upcoming budget. For Fiscal Year (FY) 2024-25, the additional increase to the forecast is approximately $1.0 million to the General Fund and $0.7 million to other funds. For Fiscal Year (FY) 2025-26, the additional increase to the forecast is approximately $1.2 million to the General Fund and $0.9 million to other funds.
Part-Time Temporary and Seasonal Employees Salary Schedule – There is no fiscal impact to increase the minimum part-time temporary and seasonal employees’ salaries from the current California minimum wage rate of $15.00 per hour to the California new minimum wage requirement of $16.00 per hour effective January 1, 2024. The fiscal impact to increase salary ranges was known and included in the adopted budget. Future
6 salary increases would have a fiscal impact as select positions’ salary increases fall within the new ranges.
CEQA (California Environmental Quality Act):
Not a Project - Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
MEMORANDUM OF UNDERSTANDING
Morgan Hill Police Officers’ Association
December 2426, 20231 – December 31,
20253
POA
MEMORANDUM OF UNDERSTANDING
December 2426, 20231 – December 31, 20253
TABLE OF CONTENTS
Article I. TERM........................................................................................................................ 5 Article II. REPRESENTATION...................................................................................................... 5 Section 2.05 New Employee Orientation .................................................................................... 5 Section 2.07 Payroll Deductions/Authorizations......................................................................... 5 Section 2.12 Meet & Confer Process........................................................................................... 6 Section 2.14 Association Meetings.............................................................................................. 6 Article III. MANAGEMENT RIGHTS ............................................................................................. 7 Article IV. DEFINITIONS.............................................................................................................. 8 Section 4.03 Personnel Rules ...................................................................................................... 8 Section 4.06 Interpretation ......................................................................................................... 8 Article V. SALARY, WAGES & PAID BENEFITS ............................................................................. 8 Section 5.01 Salaries.................................................................................................................... 8 Section 5.04 Specialized Pay Assignments.................................................................................. 8 Section 5.13 Out of Class............................................................................................................. 9 Section 5.15 Higher Class Assignment Pay.................................................................................10 Section 5.17 Holiday Pay ............................................................................................................10 Section 5.19 Other Pay ...............................................................................................................10 Section 5.20 Callback Pay ...........................................................................................................10 Section 5.22 Shift Supervisor Pay...............................................................................................10 Section 5.24 5.18 FTO Pay ..........................................................................................................10 Section 5.26 Bilingual Pay...........................................................................................................10 Section 5.28 Court Pay ...............................................................................................................11 Section 5.30 Court Stand By Pay ................................................................................................12 Section 5.32 Rest Period Between Shifts ...................................................................................12 Section 5.34 Overtime Pay and Compensatory Time................................................................ 12 Section 5.39 In- House Department Training .............................................................................13 Section 5.42 Outside Department Training................................................................................13
Section 5.45 Base Work Schedules.............................................................................................13 Section 5.47 Health Benefits......................................................................................................14 Section 5.53 Uniforms................................................................................................................15 Article VI. EDUCATIONAL INCENTIVE PAY PROGRAM ............................................................... 17 Section 6.01 Educational Incentive Pay Program.......................................................................17 Section 6.04 Tuition Reimbursement.........................................................................................17 Article VII. TYPES OF LEAVE/LEAVE PROCEDURES...................................................................... 18 Section 7.01 Sick Leave...............................................................................................................18 Section 7.06 Vacation Time ........................................................................................................18 Section 7.14 Extended Leave Policy ...........................................................................................19 Section 7.17 Bereavement Leave...............................................................................................20 Section 7.20 Family Illness and Medical Appointments............................................................ 20 Section 7.23 Maternity Leave.....................................................................................................20 Article VIII. MISCELLANEOUS BENEFITS ............................................................................... 21 Section 8.01 Retirement/Pension...............................................................................................21 Section 8.06 Gym Equipment.....................................................................................................23 Section 8.08 Hepatitis B Vaccinations ........................................................................................23 Article IX. MISC POLICIES AND PROCEDURES............................................................................ 23 Section 9.02 Watch Swaps.........................................................................................................23 Section 9.09 Work Stoppage, Any Job Action, Slowdown......................................................... 24 Section 9.13 Light Duty Assignment...........................................................................................25 Section 9.17 Substance Abuse Policy .........................................................................................25 Section 9.21 Emergency Waiver Provision.................................................................................26 Section 9.23 Preferred Vacation Sign-up and Shift Selection.....................................................26 Section 9.26 Sign-up Procedures (Sworn Classifications)...........................................................27 Section 9.34 Department Seniority ............................................................................................28 Section 9.36 Facial Hair...............................................................................................................28 Section 9.48 Vehicles..................................................................................................................28 Section 9.40 Practice Firearms Training .....................................................................................28 Article X. COMPLAINT/GRIEVANCE PROCEDURE ..................................................................... 29 Section 10.07 Definition of a Grievance .......................................................................................29 Section 10.11 Grievance Procedure .............................................................................................29
Section 10.16 Employee Relations Panel......................................................................................30 Section 10.19 General Conditions ................................................................................................31 Article XI. RATIFICATION/FUTURE MEETINGS........................................................................... 32 Article XII. EXHIBIT A Salary Schedules...................................................................................... 33
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
5 This Memorandum of Understanding ("MOU") has been executed by representatives of the MORGAN HILL CITY COUNCIL ("City") and representatives of the MORGAN HILL POLICE OFFICERS’ ASSOCIATION ("Association"). City and Association may be referred to collectively as "Parties" and individually as a "Party."
Article I. TERM
Section 1.01 The term of this MOU shall commence December 246, 20231 and end December 31, 20253.
Article II. REPRESENTATION
Section 2.01 Association is a recognized employee organization within the meaning of City’s EmployerEmployee Relations Resolution No. 4955.
Section 2.02 Association represents all employees in the Police Unit which consists of City classifications of Multi Service Officer, Police Officer, Police Corporal, and Police Sergeant.
Section 2.03 A Police Officer Trainee is a person being considered for hiring as a Police Officer with City.
Police Officer Trainees are not classified City employees, not covered by this MOU and are not represented by Association. A Police Officer Trainee signs a separate contract to attend a P.O.S.T. Certified Academy ("Academy"). Upon successful completion of the Academy, the Police Officer Trainee is hired as a Police Officer and begins to receive a regular salary and benefits pursuant to this MOU.
Section 2.04 All employees within the bargaining unit represented by the Association may voluntarily join the Association and pay dues, initiation fees, and general assessments, as well as payment of any other membership benefit program sponsored by the organization (hereinafter “payroll deductions”) as determined by the Association. It shall be the responsibility of the Association to maintain a record of employees who have given their written consent to join and pay dues to the Association. The Association shall certify to the City the identity of such members and the amount of such payroll deductions to be deducted.
Section 2.05 New Employee Orientation
Section 2.06 The City shall provide the Association with reasonable advance notice of the start date of any new hire to a represented classification. The City shall provide the Association with an exclusive 30- minute meeting with any new employee or group of employees covered by this MOU, during the employee orientation (i.e., the first two (2) days of employment). The specific date, time, and location of the 30- minute union meeting with new employees will be coordinated by the Chief of Police and the President of the Association.
Section 2.07 Payroll Deductions/Authorizations
Section 2.08 The City agrees to deduct the periodic payroll deductions from the paycheck of each employee who voluntarily executes a valid authorization form as certified by the Association, or pursuant to an authorization form tendered to the City by either the Association or the employee. All sums deducted by the City shall be remitted to the Association in an expedient manner and at the intervals requested by the Association (i.e., no more than seven (7) calendar days after the deduction), together with a list of names of each employee for whom a deduction was made.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
6 Section 2.09 If an employee member in the bargaining unit desires to revoke, cancel or change prior dues deduction authorization, the City shall direct the employee member to the Association. Any such dues deduction revocation, cancellation and/or change shall only be effective when submitted by the Association directly to the City and is subject to the terms and conditions as set forth in the original payroll deduction/authorization.
Section 2.10 Notification will be provided to the City’s Payroll Division. Change, cancellation or deduction requests received by the City prior to the 15th of the month will be processed the first full pay period of the following month. Change, cancellation and deduction requests received by the City on or after the 15th of the month will be processed the second full pay period of the following month.
Section 2.11 The Association shall indemnify and hold the City and its agents and employees harmless from any cost, expense, fee or liability resulting from any claims, demands, lawsuits, or any other action arising from the operation of this Section 2.02.
Section 2.12 Meet & Confer Process
Section 2.13 Association is the only employee organization which is entitled to meet and confer with City on behalf of employees.
Section 2.14 Association Meetings
Employees shall be allowed to attend one (1) Association meeting per month on-duty for not longer than one-and-a-half (1.5) hours, subject to call out. The Association meeting must be for the purpose of Association business and is not a social event. If on-duty Unit Members could be affected by any Association meetings, Association must give three (3) days notice to the Police Chief ("Chief") or his/her designate.
Section 2.15 Association's Elected and Appointed Officers ("Association Officers") and employees may be granted limited privileges to utilize City owned equipment as follows:
(a) Association Officers may utilize the Police Department ("Department") email system to post official notices to its membership or conduct necessary official business that cannot be conveniently conducted in anotherfashion. Likewise, employees may utilize thissystem to reply to notices or other necessary Association business.
(b) Association Officers or their designates may utilize City's telephones within the Police Station or their department issued cell phone to conduct official Association business for local calls only. All long distance or message calls must be made collect with the use of a private phone credit card. (c) Association Officers or their designates may utilize City's copy machines within the Police Station to reproduce noticesto its membership, other official correspondence using Association stationary, and copies of the MOU for distribution to its membership. Reproducing multiple copies of large documents or large quantities (more than twenty-five (25) copies) of short documents may only be allowed with permission of the Chief.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
7 (d) Official business shall be defined as notifying employees of meetings, Association activities, or other official communications, such as preparing election ballots, correspondence, etc. Not included in official business are items such as actually voting on Association issues, lobbying or campaigning with respect to Association issues, expressing personal or political views, making statements which are injurious to individuals or the Department, or other similar transmissions. (e) The Chief or his/her designate shall monitor these privileges during the term of this MOU. Should the Chief or his/her designate detect an abuse of these privilege(s), he/she shall notify the Association Officers and allow Association to be heard. If additional abuses are detected after having placed Association on notice, the Chief may unconditionally revoke any or all of these privileges.
Section 2.16 A maximum of four (4) Association Officers shall be allowed to utilize a cumulative total of forty (40) hours per year of release time for Association business and attendance of Association related functions including, but not limited, to meetings, seminars, and schools. Release time shall be granted subject to minimum staffing requirements of the Police Department ("Department") and is subject to Chief and/or City's City Manager ("City Manager") approval.
Section 2.17 Representatives of City and Association have met and conferred, pursuant to the provisions of the Meyers-Milias-Brown Act and Resolution No. 4955, for the purpose of reaching agreement concerning all matters within the scope of representation for employees during the term of this MOU.
Section 2.18 An agreement has been reached.
Section 2.19 This MOU sets forth the full and entire understanding of the Parties regarding the matters set forth herein, and any other prior or existing understanding or agreements by the Parties, whether formal or informal, regarding any such matters, are hereby superseded or terminated in their entirety.
Section 2.20 It is agreed and understood that each Party hereto voluntarily and unqualifiedly waives its right to negotiate and agrees that the other Party shall not be required to negotiate with respect to any matter covered herein during the term of this MOU Nothing in this paragraph shall preclude the Parties from jointly agreeing to meet and confer on any issue(s) within the scope of representation during the term of this MOU.
Section 2.21 No agreement, alteration, understanding, variation, waiver, or modification of any of the terms or provisions contained herein shall, in any manner, be binding upon the Parties hereto unless made and executed in writing by all Parties hereto and, if required, approved and implemented by City and Association.
Article III. MANAGEMENT RIGHTS
Section 3.01 The rights of City, as exercised by the City Council and the City Administration, include, but are not limited to,: 1) the exclusive right to determine the mission of its constituent departments, commissions and boards, 2) the right to set standards of service and determine the procedures andstandards of selection for employment, 3) the right to direct its employees, 4) the right to take disciplinary action, 5) the right to relieve its employees from duty because of lack of work or other legitimate reasons, 6) the right to maintain the efficiency of governmental operations, 7) the right to determine the methods,
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
8 means, and personnel by which government operations are to be conducted, 8) the right to determine the content of job classifications, 9) the right to require that employees work overtime, and 10) the right to and exercise complete control and discretion over its organization and the technology of performing its work.
These rights are absolute, except that any agreement between City and Association evidenced by a MOU under Government Code § 3500 et. seq. shall take precedence over any of the above enumerated management rights and such MOU will be honored in good faith during the life of this MOU, subject to City’s right to determine when an emergency exists and to take all necessary action to carry out its mission in emergencies.
Section 3.02 Nothing in this Article III shall be construed to limit, amend, decrease, revoke, or otherwise modify the rights vested in City by any law regulating, authorizing, or empowering City to act or refrain from acting.
Article IV. DEFINITIONS
Section 4.01 The terms “Salaries”, “Wages” or “Salary and Wages” shall mean the gross monthly base pay prior to any deductions.
Section 4.02 The term “Personnel Rules” as used in this MOU means those regulations titled “City of Morgan Hill Personnel Rules and Regulations” enacted by Resolution No. 1485 and thereafter and hereafter amended.
Section 4.03 Personnel Rules
Section 4.04 The Personnel Rules are incorporated by reference as though fully and completely set forth in this MOU.
Section 4.05 It is understood that, during the term of this MOU, City will be reviewing and updating, where needed, the Personnel Rules. City shall meet and confer with Association on revisions that are withinthe scope of representation.
Section 4.06 Interpretation
Section 4.07 In the event a conflict in interpretation between the Personnel Rules, as included by reference, and similar sections contained in this MOU, the language in the MOU will be used for interpretation.
Article V. SALARY, WAGES & PAID BENEFITS
Section 5.01 Salaries
Section 5.02 The salaries and wages paid by City to employees will be in accordance with the job classifications they hold with pay rates to be amended as follows according to City’s adopted salary range schedule. The adopted Salary Schedule, as may be amended from time to time, is attached hereto as Appendix A and is incorporated herein by this reference.
Section 5.03 Sworn Classifications (Police Officer, Police Corporal, and Police Sergeant) and Non-Sworn Classifications (Multi Service Officer): Effective the pay period including December 246, 20231, the employee’s base salary shall be increased four five percent (54.0%). Effective the pay period including January 1December 22, 20243, the employee’s base salary shall be increased by four five percent (45.0%).
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
9 Section 5.04 Specialized Pay Assignments
Section 5.05 Employees may be assigned to special assignment work which entitles the employee to specialty pay, as outlined below (a "“Specialized Pay Assignment"”).
Section 5.06 The Specialized Pay Assignments are Canine (any rank), School Resource Officer, Special Weapons and Tactics ("“SWAT"”) (any rank), Hostage Negotiation team, Crime Scene Investigation Team, Regional Auto Theft Task Force (Officer/Corporal), Regional Enforcement Allied Computer Task Force (any rank), Detective (Sergeant/Corporal/Officer) and Traffic (Corporal/Officer). These collateral duties are at-will and at the discretion of the Chief of Police. The pay received by these employees when they are assigned to a Specialized Pay Assignment ("Specialty Pay") shall be increased per pay period by 4% effective December 246, 20231 and increased per pay period by 4% effective the pay period including January 1, 2022December 22, 2024. Specialized Pay Assignments shall be paid according to the following:
2022 2023
Police Officer $260 per pay period $270.40 per pay period Police Corporal $286 per pay period $297.44 per pay period Police Sergeant $312 per pay period $324.48 per pay period 2024 2025
Police Officer $281.22 per pay period $292.47 per pay period Police Corporal $309.34 per pay period $321.71 per pay period Police Sergeant $337.46 per pay period $350.96 per pay period Section 5.07 Employees in the Detective, Canine, Special Weapons and Tactics ("“SWAT"”), Hostage Negotiation Team, Crime Scene Investigation Team, Task Force, and Traffic motor Specialized Pay Assignments will bebe for the special assignment and knowledge associated to their assignment. Due to the expertise, these employees are expected to respond to incidents as deemed by the supervisor outside of their normal working hours. If an employee has two unexcused missed call outs within a calendar year the employee is subject to removal from the specialized assignment. required to be on call for on a rotational basis.
Section 5.08 Employees in the Detective, Canine, and Task Force Specialized Pay Assignments will be given a Department issued vehicle and associated equipment and are required to keep the vehicle and associated equipment immediately available and either keep Morgan Hill Dispatch advised of their location or maintain call-back availability by carrying their Department issued cell phone.
Section 5.09 Traffic Officers and Corporals are assigned to use Department-issued motorcycles for traffic enforcement. Traffic Officers and Corporals will not receive Specialty Pay until successful completion of Motor Officer School.
Section 5.10 Canine Officer(s) (any rank) are only eligible for Specialty Pay during periods when assigned an animal as part of their duties.
Section 5.11 The Canine Officer (any rank) shall be authorized to receive three-and-one-half (3.5) hours weekly on at the Overtime Pay rate for animal care ("“Canine Care Pay"”). No additional time shall be worked without the express approval of the Canine Sergeant. Canine Officer(s) are only eligible for animal care pay during periods when assigned an animal as part of their duties.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
10 Section 5.12 With the exception of the Canine Care Pay as specified above, employees who are assigned to these Specialized Assignments will not be entitled to any type of additional pay for the performance of these Specialized Assignments.
Section 5.13 Out of Class
Section 5.14 A supervisor may assign in writing an employee to work “Out of Class” in a higher classification and receive “Out of Class Pay” if (a) the employee will assume the full range of duties of the
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
11 higher classification, (b) the assignment is for a limited duration, (c) the assignment will not and does not exceed 960 hours in a fiscal year and (d) is to a position in a higher class that is vacant during recruitment for a permanent employee (i.e. does not include a vacancy due to an employee on leave). Out of Class Pay shall be at the pay step in the higher class closest to but no less than 5.0% higher than the employee’s base pay and is intended to be PERSable compensation under Government Code section 20480. To qualify as Out of Class Pay rather than Higher Class Assignment Pay (see next paragraph), the assignment must be approved by the Police Chief’s designee and the Human Resources Division.
Section 5.15 Higher Class Assignment Pay
Section 5.16 A supervisor may also assign in writing an employee to work in a higher class and receive “Higher Class Assignment Pay” if the employee will assume the full range of duties of the higher classification and does not qualify for Out of Class Pay. Higher Class Assignment Pay shall also be at the pay step in the higher class closest to but no less than 5.0% higher than the employee’s base pay but is not PERSable compensation under Government Code section 20480.
Section 5.17 Holiday Pay
Section 5.18 Holiday Pay for entitled employees shall be six and a half percent (6.5%) of the employee’s base salary. If the City Council declares an additional holiday for City employees during this MOU, an additional onehalf percent (.5%) Holiday Pay will be granted to employees.
Section 5.19 Other Pay
Section 5.20 Callback Pay
Section 5.21 "“Callback Pay"” is any assignment worked which is not contiguous with an employee’s regularshift. Callback Pay is paid at a two (2) hour minimum at the employee’s Overtime Pay hourly rate. When overtime worked is contiguous to a regular shift, either preceding or afterwards, it is a "“ShiftExtension"” and shall be compensated at the normal Overtime Pay rate for completed fifteen (15) minute increments worked.
Section 5.22 Shift Supervisor Pay
Section 5.23 Effective December 30, 2018, the City shall pay an additional two dollars and fifty cents ($2.50) per hour for Police Officers temporarily assigned to work as Shift Supervisors.
Section 5.24 5.18 FTO Pay
Section 5.25 Effective December 2430, 202318, Police Officers serving as Field Training Officers shall receive additional compensation of fivetwo dollars and fifty cents ($52.0050) per hour for time spent training newly hired Police Officers.
Section 5.26 Bilingual Pay
Section 5.27 Employees identified by the Chief to use Spanish in the course of performing their work duties and who have successfully completed the certification process, as outlined below, shall receive the following compensation:
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
12 (a) Employees hired prior to June 30, 2013 shall receive five percent (5%) of the employee’s base salary.
On July 1, 2013, that amount will be calculated and converted to a fixed amount. Should there be subsequent adjustments to base salaries, the amount determined on July 1, 2013 shall remain fixed in perpetuity. For employees hired on, or after July 1, 2013,Effective December 24, 2023 employees shall receive a monthly stipend of threeone hundred dollars ($3100.00). (b) The certification process shall be completed by a provider contracted by Human Resources or three (3) person panel established by Human Resources to determine conversational competence.
Employees shall be subject to recertification effective on or after December 24, 2023 and every two (2) years, unless the certification is waived by City.
(c) An eligible employee may request to be tested for bilingual certification at any time.
Section 5.28 Court Pay
Section 5.29 "“Court Pay"” is any court assignment worked which is not contiguous with a regular shift.
Court Pay is paid at a four (4) hour minimum at the employee’s Overtime Pay hourly rate. (a) The minimum an employee can receive for a court appearance cannot cause the employee to receive a rate of pay which overlaps into their regular shift. The time between the start of the court appearance and the start of the scheduled shift shall be paid as governed under the Department’s Policy Manual Section 1038, which is hereby incorporated by this reference and the employee will be required to report to work. The same overlap rule applies for a court appearance which begins within thirty (30) minutes of the end of a regular shift.
(b) Employees shall be compensated for travel time. "“Travel Time"” is any time in excess of the time the employee spends going to and from a court appearance. If the sum of the Travel Time and the court appearance does not exceed the four (4) hour minimum paid for court appearances or if the time overlaps into the employee’s regularshift, no additional Overtime Pay will be paid. Normal commute is defined as the time necessary for an employee to travel from their residence to the Police Station based on the distance and prevailing commuter speeds and congestion. (c) Employees are not required to drive a City vehicle to court but may be provided a City vehicle for outof-County travel, if available. Employees will be reimbursed at the current IRS rate for use of their personal vehicle when making in-County or out-of-County court appearances. (d) Except as provided herein, employees receiving Court Pay shall not receive reimbursement for meals nor overtime pay for court meal recesses. Employees held over through a court lunch recess, but then released from court immediately following the recess, shall receive Overtime Pay for the lunch recess not to exceed one (1) hour.
(e) Only one (1) four (4) hour minimum compensation for an off-duty court appearance will be paid per day. If additional off duty court appearances are required beyond the time covered by the four (4) hour minimum, the employee shall be paid at the Overtime Pay rate for actual hours worked as
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
13 governed by Policy Manual Section 1038.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
14 Section 5.30 Court Stand By Pay
Section 5.33 "“Court Stand By"” is defined astime in which the off-duty activity of an employee isrestricted due to the inevitability of said employee having to respond to court within the succeeding twenty-four (24) hours
(a) In the event that employees are assigned by the Chief or his/her designate to remain on call for the purposes of Court Stand By, the employee shall receive one quarter (1/4) straight time pay for every hour on standby with a two (2) hour minimum and an eight (8) hour maximum per court day. (b) The Chief or his/her designate shall be responsible for informing appropriate court officials of the above stated Court Stand By procedure and any conflicts resulting from the procedure.
Section 5.32 Rest Period Between Shifts
Section 5.33 Employees who are assigned to and actually work more than four (4) hours between two (2) regularly scheduled twelve (12) hour patrol shifts shall be entitled to an eight (8) hour rest period between said shifts. The eight (8) hour rest period may not necessarily consist of eight (8) consecutive hours, depending upon the circumstances. If any portion of the eight (8) hour rest period occurs during the employee’s regularly scheduled twelve (12) hour shift, the employee shall receive normal compensation for that time.
For example, a Police Officer goes off duty at 7:00 a.m. and is subpoenaed to court at 8:00 a.m. The Police Officer remains in court until 3:00 p.m. and is scheduled to return to work at 7:00 p.m. In this case, the Police Officer could return to work at 10:00 p.m. without loss of hours or the need to use accrued time off for the three (3) hour period of the regular work shift. (a) The employee is responsible to contact the on-duty Watch Commander to request this rest period as soon as he or she is aware that it will be required so that ample time is available to arrange for replacement officers if necessary.
(b) The on-duty Watch Commander may exercise discretion as to the exact time the employee must report back to work, based on individual circumstances and operational needs, so long as it complies with the intent of this section.
(c) Thissection shall not apply to voluntary overtime work assignments between shifts which are worked at the option of the individual employee.
(d) Thissection shall not apply in emergencies such as mutual aid mobilizations or natural disasters.
Section 5.34 Overtime Pay and Compensatory Time
Section 5.35 The City has established a 14 day / 86-hour Section 207(k) work period for purposes of Fair Labor Standards Act (FLSA) overtime hours. The established work period begins at 12:01 a.m. every other Sunday and ends every other Saturday, fourteen (14) days later at 12:00 midnight.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
15 Section 5.36 MOU "“Overtime Pay"” and / Compensatory Time ("“Comp Time"”) are for hours worked outside an employee’s regular work schedule, and are paid at one-and-a-half (1.5) times an employee’s FLSA regular rate of pay. Overtime Pay and Comp Time shall be calculated on a minimum of fifteen (15) minute increments actually worked outside of the employee’s regular work shift. For clarification, this
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
16 equates to 15-29 minutes = 15 minutes of overtime pay, 30 -– 44 minutes = 30 minutes of overtime pay and so on. All such time must be approved in advance with the employee’s supervisor or the Chief.
Section 5.37 Employees will have the option of receiving either Overtime Pay or Comp Time. The Comp Time accrual limit for the term of this MOU is one hundred eighty (180) hours. Comp Time will be cashed out at the FLSA regular rate at time of separation. Comp Time may also be cashed out at the FLSA regular rate each calendar year via an irrevocable cash out election form to the extent and in manner provided in section 7.08.
Section 5.38 Employees may elect to contribute via payroll deduction to the City’s Deferred Compensation Plans. Employee contributions can be lump sum contributions or percentage of base wages contributions.
Employees must submit a completed "“Deferred Compensation Enrollment/Change Form"” to the Human Resources Office for changes in their deferred compensation contributions. Changes shall be effective the second full pay period following receipt by Human Resources of the applicable Deferred Compensation Enrollment/Change Form.
Section 5.39 In- House Department Training
Section 5.40 When a Department in-house training falls on an employee’s scheduled day off and the employee attends the training, the affected employee will have the option of receiving Comp Time, if eligible, or pay if Comp Time is at 180 hours, for the training time or, upon approval by the employee’s supervisor, the employee may schedule adjust. “Schedule Adjust"” is defined as the act of taking the equivalent number of hours off within the same pay period.
Section 5.41 All schedule requests must be approved in advance by the employee’s supervisor.
Section 5.42 Outside Department Training
Section 5.43 When an outside Department training falls on an employee’s day off and the employee attends the training, the affected employee will Schedule Adjust. If the Department is not able to make a schedule adjustment, the employee may take Comp Time or receive Overtime Pay.
Section 5.44 All provisions included in this MOU which affect base wages, including salary, promotions, step increases, etc., shall be implemented beginning the first full pay period following the effective date of this MOU.
Section 5.45 Base Work Schedules
Section 5.46 Employees will work schedules based upon assignment as follows:
(a) The "“Work Day"”, for pay purposes, shall be a twenty-four (24) hour period within which the employee’sregularly scheduled shift begins.
(b) Employees assigned to the Patrol Division will work an approved flexible schedule of five (5) twelve (12) hour Work Days and two (2) ten (10) hour Work Days totaling no more than eighty (80) hours per pay period.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
17 (c) Employees assigned to the Special Operations Division will work an approved flexible schedule days totaling no more than eighty (80) hoursin each pay period. The schedule shall be the traditional 4/10 schedule, meaning four (4) ten (10) hour days with three (3) consecutive days off each week. (d) School Resource Officersshall work a traditional 9/80 schedule which consists of five (5) nine (9) hour days one (1) week and four (4) nine (9) hour days on the alternate week or a 4/10 schedule which consists of four (4) ten (10) hour days depending on department needs. (e) Employees assigned to Task Forcesto work in conjunction with other government agenciesshall work schedules which are compatible with the joint needs of the Department and the other agency, not to exceed eighty (80) hours in each pay period.
(f) Specialty Pay Assignments are limited to a two (2) year assignment with two (2) one (1) year renewals based on the approval of the Special Operations Division Captain. Field Training Officer assignments shall be a two (2) year assignment, which assignment may be extended each year for one year based on the approval of the Special Operations Captain.
(g) Employees assigned to any other Special Assignment that do not fall into any of the assignments listed in 5.47 (b)through 5.47 (f) will work an approved flexible schedule totaling no more than eighty (80) hours per pay period.
(h) Employees on extended leave (excluding vacation and Comp Time) of two (2) weeks or more will be assigned a base forty (40) hour per week, Monday through Friday, 8:00 a.m. to 5:00 p.m. work schedule. For such individuals who are on Workers Compensation or 4850 leave, the schedule reassignment will not affect compensation.
(i) The Chief retains the right to make any special exceptions to the above schedules. If at any time it becomes evident to the Chief that the most efficient use of staffing to meet the workload demands of the community are not being met, the Chief reserves the right to modify work schedules on a temporary or permanent basis. The City will attempt to give the affected employees as much notice as possible, but at least five (5) full calendar days prior to the effective date of any temporary schedule change.
(j) Any permanent schedule change requires a meet and confer with City and Association.
Section 5.47 Health Benefits
Section 5.48 The City will contribute to the City’s medical and dental health plans as follows:
(a) For employees with family coverage, up to $2,273661.51/month in 20242 and up to $2,387794.58/month in 20253.
(b) For employees with employee plus one coverage, up to $21,127.42817/month in 20242, and up to
$21,233.79908/month in 20253.
(c) For employees with employee only coverage, up to $9081,062.60/month in 20242 and up to $953
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
18 1,115.73 in 20253.
POA, Morgan Hill MOU December 246, 20231 – December 31, 20253
19 (d) Employees enrolling in City health but not using the maximum amount available from the City for their premium category (ee only, ee+1, ee+family) shall not be entitled to the surplus. Employees enrolling in plans whose cost exceedsthe maximum amount available from the City fortheir premium category shall have the difference deducted on a pre-tax basis from their paycheck. The deductions are effective the first paycheck in December.
(e) Employees who waive medical coverage and annually provide proof of alternative medical coverage shall be entitled to a taxable cash in lieu payment of six hundred ten dollars ($610.00) per month. (f) If an employee waives medical and elects dental coverage, the employee shall be entitled to a taxable cash in lieu payment of six hundred ten dollars ($610.00) per month but will pay the appropriate dental premium.
Section 5.49 City agrees to provide, at City's expense, up to one hundred percent (100%) of the premium costs per employees for the Psychological Health Program as presently constituted.
Section 5.50 All employees shall have the option of continuing their current medical insurance at the employee’s own cost after retirement. This option can continue as long as there is no lapse in coverage and the employee pays the monthly premium to the California Public Employees' Retirement System ("CalPERS") or to the Finance Department as per their billing requirements.
Section 5.51 Effective January 1, 2004, City agrees to provide, at City's expense, one hundred percent (100%) of the premium cost per employees for enrollment in a Basic Long-Term Medical Care Program.
Section 5.52 City has formed a labor – management committee headed by the City Manager to address the issue of worksite wellness. The Wellness Committee will continue to design, plan, and implement worksite policies and programs that encourage healthy outcomes and enhance the quality of life for all employees.
Section 5.53 Uniforms
Section 5.54 Effective July 1, 2013, City shall provide a single once a year one thousand four hundred ($1,400) payment of uniform allowance to employees. The paymentshall be made on or about July 1st of each year and will be considered to be payment for the preceding year. Upon an employee’s separation from City, the employee will receive a prorated uniform allowance payment for the period worked up tothe date of separation. The uniform allowance is for uniform cleaning and replacement of worn uniforms. Employees assigned to the Specialty Assignments of Canine, Bike Patrol, Hostage Negotiation Team, and Special Weapons and Tactics ("SWAT") shall receive an additional fifty-dollar ($50.00) uniform allowance per year.
Section 5.55 Newly hired employees will, at time of hire, be provided an initial uniform as follows:
(a) One Two (12) Short Sleeve Wool Shirts
(b) One Two (12) Long Sleeve Wool Shirts
(c) One Three (13) Wool Pants
(d) One (1) Short Sleeve BDU Shirt
(e) One (1) Long Sleeve BDU Shirt
(c)(f)Two (2) BDU Pants
(d)(g) One (1) Belt
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20 (e)(h) One (1) Hat Class A
(f)(i) One (1) Baseball Cap
(g)(j)One (1) Ultra Duty Jacket
(h)(k) One (1) pair Shoes
Thereafter, employees shall be paid the annual uniform maintenance and replacement allowance asset forth in 5.47 above.
Section 5.56 City shall pay for the replacement of uniforms/clothing damaged due to the performance of job duties on a prorated basis, based on the age of the uniform and upon the recommendation of the Police Chief or his/her designate. For the purpose of this section, the useful life of uniform items shall be assumed as follows:
(a) Uniform Shirts/Pants Two (2) years
(b) Uniform Jackets Five (5) years
(c) Uniform Hats Five (5) years
If available, employees shall provide receipts establishing date of purchase.
Section 5.57 Authorized personal property such as watches, glasses, etc. damaged due to the performance of job duties shall be replaced up to a seventy-five-dollar ($75.00) limit upon the recommendation of the Police Chief or his /her designate. For prescription glasses, this limit will be one hundred twenty-five dollar ($125.00) for prescription glasses. No reimbursement, however,shall be made for personal property which the employee is using on a voluntary basisin lieu of an item which has been provided by City.
Section 5.58 Newly hired employees, at time of hire, will have their safety equipment including gun, baton, handcuffs, flashlight, duty jacket, rain pants, leather, and related equipment furnished by City as per Department Policy Manual Section 1046, hereby incorporated by reference. City will repair or replace existing safety equipment owned by employees hired before July 1, 1997 as they are damaged, worn out, or as Department Specifications change, not to exceed the cost of City provided safety equipment.
Section 5.59 Employees who were hired before February 4, 1990 may request, or may be issued, mandatory safety equipment to include: gun, baton, handcuffs, flashlight, rain gear, leather, and related equipment. If any of these items are personally owned when they become worn out or damaged, they shall be replaced with City issued equipment in lieu of repair, except that City may choose to repair, rather than replace, a personally owned firearm or holster. In no event shall City's expense for repairing or replacing personally owned firearms or holsters exceed the cost of City provided equipment.
Section 5.60 City shall provide a Threat Level III protective vest, including shock plate, to all employees. City shall replace a vest after it has been in service for five (5) years, has been compromised, or is otherwise unserviceable per industry standards. Employees in an assignment that requiresthem to wear a uniform must wear the City issued protective vest at all times. Employees in a non-uniform assignment are not required to wear a vest at all times while on duty but shall maintain the vest in an accessible location and should wear the vest when engaged in planned, high risk events. This provision applies only to vests purchased by City after March 4, 1990.
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21 Section 5.61 Duty Badges are provided to all employees. Duty Badges are personalized with each employee’s badge number after they pass their 1-year hiring probation period. When the employee leaves employment (unless termination is the reason for leaving employment), they may keep their personalized duty badge providing a release of liability memo is signed. Any Police Officer employee that was previously issued a personalized flat badge, may keep their flat badge providing a release of liability memo is signed. Any nonpersonalized duty or flat badge is property of the Morgan Hill Police Department and must be returned at the end of employment.
Section 5.62 Night Differential
Section 5.63 Effective December 24, 2023 shall pay night differential of one hundred and fifty dollars ($150) a month to employees working 7 p.m. to 7 a.m.
A night-shift supervisor may recommend an officer assigned to work nights be moved to day shift based on officer wellness. Any decision to reassign an officer will be made based on documented evidence, and in consultation with all Sergeants and Captains. The reassignment will be treated the same as if the officer being reassigned is on modified duty. There will be no need to back-fill the position unless the team falls below minimum staffing. If the team falls below minimum staffing, reassignments will be made based on seniority.
Any reassignment under this provision may be temporary.
The language in section is meant to be a two (2) year pilot program.
Section 5.64 Retiree Trust/VEBA
The City will research and administer a voluntary retiree trust where members of the Association intend to join within the first year of the contract. The sole purpose of which is to provide funding for medical expenses and health insurance costs for eligible retirees or qualified family members of eligible retirees as established by the Trust. Participation in the Trust shall be voluntary and any associated fees will be deducted from plan participant’s accounts.
Article VI. EDUCATIONAL INCENTIVE PAY PROGRAM
Section 6.01 Educational Incentive Pay Program
Section 6.02 All employees who have completed their original probationary period shall have the option of participating in the Educational Incentive Pay ("EIP") Program.
Section 6.03 Rates of Pay for the EIP Program shall be:
(a) Five percent (5%) - Intermediate P.O.S.T. Certificate (b) Seven- and one-half percent (7.5%) - Advanced P.O.S.T. Certificate and/or B.A. or B.S. Degree Section 6.04 Tuition Reimbursement
Section 6.05 Tuition reimbursement will work on the following basis:
(a) The Chief must approve all classes in advance.
(b) Reimbursement will be given upon successful completion of the class. See Article 6 of this MOU for
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22 use in conjunction with the EIP Program.
(c) City will not reimburse for personal transportation, lodging, or meal costs. (d) Employees may receive a total of up to one thousand dollars ($1,000.00) annually in tuition reimbursement according to the following schedule:
(i) Up to three hundred fifty dollars($350.00) may be used for work-related courses or training subject to the approval of the Chief.
(ii) Employees may use an additional three hundred dollars ($300.00), or a total of six hundred fifty dollars ($650.00) annually, for courses taken at a community college or toward an Associate of Arts or Science degree.
(iii) Employees may use an additional six hundred fifty dollars ($650.00) or a total of one thousand dollars ($1,000.00) annually, for courses taken at a four-year college or university which will result in a Bachelor’s or Master’s degree.
(e) For classes or training which have been scheduled in advance and approved by the Chief as listed above, City will reimburse the employee for any out of pocket expenses he or she may have incurred if the employee is required to miss their class to cover another shift. The employee must notify the Chief at the time they are being reassigned of any potential schedule conflicts. Failure to do so will
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23 result in no reimbursement.
Article VII. TYPES OF LEAVE/LEAVE PROCEDURES
Section 7.01 Sick Leave
Section 7.02 Sick Leave credit shall be accumulated on the basis of eight (8) hours per month. The employee’s accumulated Sick Leave is unlimited.
Section 7.03 City will pay twenty-five percent (25%) of unused annual Sick Leave at the end of each calendar year. This payment will be based on semi-annual calculations, made on June 1st and December 1st of each year. The balance of Sick Leave will be added to the employee’s accumulated Sick Leave.
Section 7.04 City has amended its PERS contract to provide for Government Code § 20965 credit for unused Sick Leave. One hundred percent (100%) of the employee’s unused Sick Leave will be converted into service time and added to the employee’s retirement eligibility upon retirement.
Section 7.05 Employees are entitled to twelve (12) hours of paid time off per fiscal year to be used as personal leave time. The use of this leave must be approved in advance by the Chief or his/her designee and shall be deducted from the employee’s current year Sick Leave accrual.
Section 7.06 Vacation Time
Section 7.07 Vacation Time Accrual shall be as follows:
(a) Eighty (80) hours Vacation Time per year from the date of hire through the second (2nd) year of employment.
(b) Eighty-eight (88) hours Vacation Time during the third (3rd) year of employment. (c) One hundred four (104) hours Vacation Time during the fourth (4th) year of employment. (d) One hundred twelve (112) hours Vacation Time during the fifth (5th) year of employment. (e) One hundred twenty (120) hours Vacation Time during the sixth (6th) year of employment. (f) One hundred twenty-eight (128) hours Vacation Time during the seventh (7th) year of employment. (g) One hundred thirty-six (136) hours Vacation Time during the eighth (8th) year of employment. (h) One hundred forty-four (144) hours Vacation Time during the ninth (9th) year of employment. (i) One hundred fifty-two (152) hours Vacation Time during the tenth (10th) year of employment. (j) One hundred sixty (160) hours Vacation Time after the tenth (10th) year of service. (k) Maximum accumulation of Vacation Time shall not be more than the equivalent of three (3) years’ annual accrual effective December 31, 2024 and two (2) years' annual accrual effective June 30, 2025. Employees may “float” over this maximum accrual during the fiscal year but will lose any
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24 accumulated Vacation Time over the equivalent of three (3) years’ annual accrual effective December 31, 2024 and two (2) years' annual accrual effective June 30, 2025.on June 30th of
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25 each fiscal year.
(l)(k)If a vacation is canceled due to 7.23 below, employees will not lose any accrued Vacation Time.
However, employees will be required to reschedule the Vacation Time in a reasonable period of time in accordance with Sections 7.22 and 7.24 below.
Section 7.08 An employee may submit an Irrevocable Cash-Out Declaration Form to cash out up to eighty (80) hours of accrued vacation and/or comp time in the following calendar year. For calendar year 2024 an additional forty (40) hours of accrued vacation and/or comp time may be cash out for a maximum total of 120 hours. To be effective, the Form must be received by payroll no later than December 1st 15th of the year prior to the calendar year in which the employee wishes to cash-out vacation and/or comp time. It is understood that an employee using vacation or comp time shall always use vacation or comp time earned in prior years first before using vacation or comp time earned in the current year.
Section 7.09 The employee shall specify the pay period in the following calendar year in which the employee wishes the cash-out to occur. If no pay period is specified, the City shall process and pay the cash- out request in the pay period including November 1st. Employees are responsible for ensuring a sufficient balance of available accrued vacation and/or comp time on the date of the requested cash-out. Accrued comp time shall be cashed out first and then accrued vacation once an accrued comp balance is exhausted. If there is an insufficient balance, the maximum available up to eighty (80) hours will be cashed out.
Section 7.10 As part of the City’s open enrollment packet each year, the City will provide all employees with a copy of the Irrevocable Cash-Out Declaration form and a reminder of the for submission of the Form.
Section 7.11 Employees may request Vacation Time off of one (1) week (the equivalent of thirty-four (34) consecutive hours or more) in one (1) of the following ways:
(a) Preferred vacations sign-up procedure beginning with Section 9.23 of this MOU. (b) Other vacations may be requested at any time during the year on a first come, first serve basis.
Approval of other Vacation Time is subject to adequate staffing due to the scheduling of preferred vacations, training assignments, or other leaves which may take precedence.
Section 7.12 Approved Vacation Time and/or Comp Time will not be canceled unless there is an unforeseen and/or urgentstaffing need. Comp Time shall not be denied if, at the time of request, the request itself will not place a shift below minimum allowed number, with the exception of a planned or outstanding major event. (a) Sergeant or Watch Commander is responsible for approving vacation time off requests that fall on their shift rotation.
(b) Division Captain is responsible for approving vacation time off requests that fall outside of the officers current shift rotation.
Section 7.13 If an employee signs up for enough preferred vacation to bring them below the vacation accrual limit by June 30th, City cancels the employee’s preferred vacation, and the employee is unable to reschedule in the current fiscal year, causing them to be above the limit on June 30th, City will cash out the Vacation Time to bring the employee in compliance with the limit or, at the employee’s option, the Vacation Time will be rescheduled within sixty (60) days,subject to departmental approval and Preferred Vacation Sign- Up Rules, as defined in Section 9.23.
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26 Section 7.14 Extended Leave Policy
Section 7.15 In the event that an employee is absent from work for illness or injury or disability or per the Family Medical Leave Act or California Family Rights Act, unless notified otherwise, the time off will be
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27 coded and deducted from the leave banks in the following order: (1) accumulated sick leave, (2) accumulated comp time, and (3) accumulated vacation time. If a determination issubsequently made by City that the leave taken was for a job related illness or injury, all sick leave, comp time, and vacation time used to cover the leave will be credited back to the employee in an amount up to the worker’s compensation determination.
Employees without accrued/credited time off will be coded on payroll as "absent without pay." Section 7.16 City and Association acknowledge that City has the authority, in its discretion, to place employees on paid administrative leave in appropriate circumstances. Examplesinclude investigations, waiting periods for disciplinary hearings of use of weapons, etc.
Section 7.17 Bereavement Leave
Section 7.18 Employees shall, per occurrence, be granted Bereavement Leave when a death occurs in the employee’s or the employee’s spouse's immediate family. For the purpose of this section, "immediate family" is defined as father, mother, brother, sister, spouse, natural or legally adopted child, step-child, in- laws, grandparents, and grandchildren. Up to three (3) days of Bereavement Leave shall be granted when the death and service are within the State of California and up to five (5) days when the death or service is outside the State. Bereavement Leave usage shall not be charged against the employee’s Sick Leave or Vacation Time.
Employees may also use up to two (2) additional days of Sick Leave to supplement their allotted Bereavement Leave if other circumstances require absence during that time.
Section 7.19 Requests for additional Bereavement Leave beyond the allotted three (3) or five (5) days, shall be subject to the approval of the employee’s Division Captain and deducted from the employee’s accumulated Comp Time, Personal Leave, or Vacation Time. Special circumstances beyond this definition may be considered on a case-by-case basis and must be approved by the City Manager.
Section 7.20 Family Illness and Medical Appointments
Section 7.21 Employees may utilize accrued Sick Leave for an illness or injury of a member of their immediate household, or per the FMLA, including bonding and caring for a partner after the birth or adoption of a child Paid leave for birth or adoption of a new child shall not exceed the use of four (4) weeks of accrued Sick Leave.
Accrued Sick Leave may also be used for the employee’s medical and dental appointments where it is not feasible forthe employee to schedule the appointment on the employee’s own time. All appointments may only be taken with prior approval of the Watch Commander. Prior approval is not needed for emergency appointments; however, the Watch Commander must be notified.
Section 7.22 Pursuant to Personnel Rule 18.03, the Chief may require a physician's certificates attesting to the nature of the illness, injury, or treatment.
Section 7.23 Maternity Leave
Section 7.24 A pregnant employee shall be entitled to a Leave of Absence without pay for up to one hundred and twenty (120) days. This Leave shall commence upon certification from the employee’s attending physician that she is no longer capable of performing the regular duties of her position. Upon expiration of the approved Leave, the employee shall be reinstated to her former position or to a comparable one if her former position is abolished during the period of leave and the employee would otherwise not have been laid off. Prior to the employee being reinstated, the Chief may require a
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28 statement from the employee’s attending physician that the employee is physically capable of resuming the regular duties of her position.
Section 7.25 Where the Chief believes that the employee should be placed on leave sooner than prescribed by her physician due to her inability to perform the regular duties of her position or for the protection of the employees' personal health and safety, the Chief, with the concurrence of the City Manager, shall direct the employee to be examined by a second physician. The cost of this examination shall be paid by City.
Section 7.26 An employee may, based upon medical factors, request that her leave be extended beyond one hundred and twenty (120) days and shall submit a supporting statement from her attending physician to Human Resources. The Chief, with the prior approval of the City Manager, may extend the Leave for an additional one hundred and twenty (120) days.
Article VIII. MISCELLANEOUS BENEFITS
Section 8.01 Retirement/Pension
(a) Sworn/Public Safety Employees
(i) For employees hired on or before January 1, 2013 (“Classic Employees”) as defined in Government Code Section 7522.02(c) of the Public Employees' Pension Reform Act of 2013 ("PEPRA") and employees hired after January 1, 2013 that do not meet the definition of “New Members” under PEPRA, City agrees to continue its Safety contract with CalPERS to provide the single highest year and the "3% @ 50" basic retirement formula, that was in effect as of July 1, 2007. (ii) For employees hired on or after January 2, 2013 (“New Members”) as defined in Government Code Section 7522.04(f) of PEPRA, City agrees to continue its Safety contract with CalPERS to provide for the three (3) highest years compensation average and the" 2.7% @ 57" retirement formula. (iii) Safety (sworn) PEPRA employees: Beginning with CalPERS rates effective July 1, 2013, at which time the PEPRA rate was 23.0%, the PEPRA employees’ obligation was 11.50% and the City’s obligation was 11.50%, the City and Association agreed that safety (sworn) PEPRA employees would not pay less than 11.50% and would split future increases to the PEPRA rates, including both the normal cost and any unfunded actuarial liability, above 23.0% at a 50/50 ratio. For example, the overall CalPERS safety PEPRA obligation was 22.65% in FY 15-16 with the PEPRA employees’ obligation still at 11.50% and the City’s obligation at 11.15%. On July 1, 2016, the effective PEPRA rate increased to 23.62%% for FY 16-17. Therefore, City paid half of the 0.62% increase over the base year PEPRA cost of 23.00%(equal to 0.31%) and safety PEPRA employees paid the other half (also equal to
0.31%). This methodology will be used in subsequent years should CalPERS increase the PEPRA Safety rates. This methodology has been used in each year subsequent to FY 2016-17 and will be used in future years should CalPERS increase the Safety PEPRA contribution rates. (iv)(iii) Effective July 1, 2023, Safety (sworn) PEPRA employees will share the employer’s CalPERS contribution rate at 1.02%. Effective July 1, 2024, Safety (sworn) PEPRA employees will share the employer’s CalPERS contribution rate at 1.607%.
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29 (v)(iv) Safety (sworn) Classic Employees: Safety (sworn) classic employees shall contribute, in addition to the employee classic CalPERS rate of 9.0%, an additional 6.12% towards the classic employer CalPERS contribution rate (i.e. the total safety (sworn) classic employee contribution obligation shall be 15.12%, (9.00% employee share + 6.12% of the employer share). As soon as administratively feasible, pursuant to Government Code section 20516, the City shall amend its contract with the CalPERS to convert the additional sworn employee contribution of 6.12% to the employee share. (b) Non-Sworn/Miscellaneous Employees
(i) For non-sworn employees hired on or before January 1, 2013(“Classic Employees”) as defined in Government Code section 7522.02(c) of the Public Employees’ Pension Reform Act (“PEPRA”) and employees hired after January 1, 2013 that do not meet the definition of “New Members” under PEPRA, City agrees to continue its miscellaneous contract with CalPERS for all applicable retirement benefits in effect on July 1, 2007 which will provide the single highest year and the “2.5% @ 55" basic retirement formula.
(ii) For non-sworn employees that are considered “New Members,” as defined in Government Code section 7522.04(f) of PEPRA, hired on or after January 1, 2013, the miscellaneous contract will provide for the three (3) highest years compensation average and the “2.0% @ 62” retirement formula.
(iii) The City’s CalPERS employer contribution rate for miscellaneous employees is “blended” and factors both “Classic” and “PEPRA” employees. The City and Association agreed that, beginning with CalPERS rates effective July 1, 2014, the City and miscellaneous employees would split future increases to the City’s employer contribution rate at a fifty/fifty (50/50) ratio. For example, for miscellaneous employees in FY 13-14, the City’s contribution rate was 16.38%, the classic miscellaneous employee contribution rate was 8.0% and the PEPRA employees’ rate/obligation was
6.25% (which was 50% of the normal cost at that time). On July 1, 2014, the City’s contribution rate for miscellaneous employees increased to 18.50%. Thus, starting in July 2014, miscellaneous employees started contributing fifty percent (50%) of the increase to the employer contribution rate, i.e. (18.50% - 16.38%) = 2.12% / 2 = 1.06%. Accordingly, for FY2014-15, classic miscellaneous employees’ obligation increased from 8.0% to 9.06% and PEPRA miscellaneous employees’ obligation increased from 6.25% to 7.31%. This methodology has been used in each subsequent year to FY 2015-16 and will be used in future years should CalPERS increase the miscellaneous contribution rate..
(iv) The City will continue to offer the CalPERS “2.5% @ 55” retirement program for “Classic Employees.” The retirement plan shall continue all present options for “Classic Employees” including Credit for Unused Sick Leave (Government Code § 20965), the Fourth Level of 1959 Survivor Benefit (Government Code § 21574), Two Years Additional Service Credit (Government Code § 20903), and the One-Year Final Compensation (Government Code § 20042). The employee’s base salary includes the eight percent (8%) CalPERS employee contribution and will be deducted from the employee’s gross earnings pursuant to IRS § 414 (h)(2). Two dollars ($2.00) per month will be deducted from employees’ paychecks pursuant to the 1959 Survivor Benefit
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30 (ninety three cents ($0.93) per pay period). Any provision above may not conflict with the terms and conditions in Government Code § 7522.02(c).
(v) Effective July 1, 2022, non-sworn Union Members will share the employer’s CalPERS contribution rate at 6.12%. The employee’s contribution towards employer’s share of pension cost will be capped at 6.12%. The City and Union members agree to split any rate decrease below the FY 2022-23 employer’s CalPERS contribution rate of 28.77% at a 50/50 ratio.
Section 8.02 Long Term Disability Insurance shall be paid by employees through payroll deduction.
Section 8.03 City will provide reimbursement for traveling, lodging, and meal expenditures incurred by employees traveling on City business in accordance with existing Policies and Procedures. Overtime Pay will be paid for travel time, other than court time, if it is beyond the established work week.
Section 8.04 Employees may be entitled to three (3) fifteen (15) minute breaks and one (1) forty-five (45) minute break during each twelve (12) hour shift. Employees working less than a twelve (12) hour shift shall be entitled to two (2) fifteen (15) minute breaks and one (1) thirty (30) minute break during the shift.
Employees may request to take the fifteen (15) minute breaks in conjunction with the forty-five (45) minute break, workload permitting, at the discretion of the on-duty Watch Commander.
Section 8.05 Employees are responsible for the employees' nine percent (9%) CalPERS contribution deferred from federal and state income taxes pursuant to IRS Section 414(h)(2).
Section 8.06 Gym Equipment
Section 8.07 City agreesto maintain the existing gym equipment in the Police Station forthe term ofthis MOU.
Section 8.08 Hepatitis B Vaccinations
Section 8.09 City agreesto provide Hepatitis-B shots for employees. (a) If the employee selects a medical plan which provides this benefit, the employee in these classifications must get the shots through their medical plan. (b) If not covered by their group medical plan, employees wishing to receive the Hepatitis-B shots must submit a written request to the Human Resources Office. The Human Resources Office will contact the medical office currently being used for City medical examinationsto set up the first appointment. (c) Charges for Hepatitis-B shots for these employees pursuant to 8.09(b) above will be paid by City.
Article IX. MISC POLICIES AND PROCEDURES
Section 9.01 The Parties to this MOU recognize and acknowledge that the services performed by the employees are essential to the public health, safety, and general welfare of the residents of City.
Section 9.02 Watch Swaps
Section 9.03 A "Watch Swap" is a voluntary agreement between two employees of similar rank to tradea specific and equal number of work shifts. When one employee agrees to work for another, the second employee must reciprocate by working an equal amount oftime for the first employee. When a trade is agreed
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31 upon and reciprocated, both involved Employees will have accounted for two thousand eighty (2080) base work hours per year.
Section 9.04 Employees may negotiate Watch Swaps among other Employees provided that:
(a) The involved employees complete the "Watch Swap Request" at the bottom of the "Overtime Form" at least one (1) working day prior to the Watch Swap;
(b) The on-duty Watch Commander for the affected shift approvesthe request; (c) The trade is among members of a similar rank. Police Officers may negotiate a Watch Swap with Police Officers and Corporals, Corporals may negotiate a Watch Swap with any rank, and Sergeants may negotiate a Watch Swap with Sergeants and Corporals. (d) The regularly scheduled employee shall code his/her time sheet as if he/she had worked.
Section 9.05 The Reverse Portion of the Watch Swap may occur at any time at the employee’s direction, provided that the steps listed above are also followed for the reverse portion of the Watch Swap. The Reverse Portion of the Watch Swap is the sole responsibility of the two involved employees. No employee shall have any recourse with the Department for failure to pay back a shift or for working in excess of eighty (80) hours per pay period without Overtime Pay in which a Watch Swap was negotiated.
Section 9.06 Watch Swaps are intended to be a convenience for the regularly scheduled employee and it is the sole responsibility of the regularly scheduled employee to ensure that his/her replacement reports to work. If for any reason the replacement employee fails to appear for duty, the regularly scheduled employee will be ordered back to work or, if that is not possible, will be considered to have taken the day off without pay. Since Watch Swaps are usually the result of inadequate staffing to allow that employee to take time off by other means, the regularly scheduled employee may not account for the missing time by use of Sick Leave, Comp Time, or the like.
Section 9.07 The on-duty Watch Commander shall not approve a Watch Swap for the purposes of allowing the regularly scheduled employee to work an overtime assignment the same day. The Watch Commander may disapprove Watch Swap requests due to operational needs, including days on which there are planned special events that require maximum available staffing, etc.
Section 9.08 The Chief may evaluate this process from time to time and may suspend this process if it becomes apparent that employees are failing to honor Watch Swap commitments.
Section 9.09 Work Stoppage, Any Job Action, Slowdown
Section 9.10 Association agrees that, under no circumstances, will it recommend, encourage, or cause a work stoppage, any job action, or slowdown in any office or department of City or curtail any work, restrict any production, or interfere with any operation of City. In the event any such work stoppage, job action, or slowdown is instigated by Association, City shall not be required to negotiate on the merits of any dispute which may have given rise to such work stoppage until said work stoppage has ceased.
Section 9.11 In the event of any work stoppage during the term of this MOU, whether by Association or by any employee, Association by its Association Officers shall immediately declare in writing and publicize that such work stoppage is illegal and unauthorized and further direct its employees in writing to cease the said
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32 conduct and resume work. Copies of such written notice shall be served upon City. If, in the event of any work stoppage, job action, or slowdown, Association promptly and in good faith performs the obligations of this Section 9.09, provided Association has not otherwise authorized, permitted, or encouraged such work stoppage, Association shall not be liable for any damages caused by the violation of this Section 9.09.
Section 9.12 City shall not be liable for any damages caused by the violation of this Section 9.09. City shall have the right to discipline, including termination, any employee who instigates, participates in, or gives leadership to any work stoppage activity herein prohibited. City shall also have the right to seek full legal redress, including damages, against any such employee.
Section 9.13 Light Duty Assignment
Section 9.14 In the event an employee is injured and may be able to return to work but not able to perform all their normal duty assignments, a temporary “Light Duty Assignment" may be made by City for each injury, provided that a suitable Light Duty Assignment is available within the Department. To be eligible for such a Light Duty Assignment, City may require the employees to provide the Human Resources Office with a medical statement from his/her treating physician that clearly states the medical limitations and abilities of the employee. City may require a second orthird doctor’s determination at City's expense. No initial orsubsequent light duty assignment may exceed ninety (90) days, and all light duty assignments will be evaluated and may not be extended without approval of the Police Chief or Police Chief’s designee.
Section 9.15 An employee receiving such a Light Duty Assignment could be reassigned to any type of forty (40) hour work week or reduced work schedule and may be assigned to any type of job or task consistent with the Light Duty limitations upon the determination of the Chief. Once the employee is certified by City doctor as no longer in need of a Light Duty Assignment, the employee will be reassigned to their normal work.
Section 9.16 In the event an employee is injured and unable to return to work for a specific period of time and is on City-approved leave, the employee is required to (1) respond by phone within eight (8) hours upon receiving a call from Human Resources or Division Captain and (2) to inform Human Resources and Division Captain if the employee will be away from their primary residence for a duration exceeding seven (7) calendar days.
Section 9.17 Substance Abuse Policy
Section 9.18 City and Association mutually agree City will maintain a drug-free workplace. Alcohol and drug abuse on the job will not be tolerated and will result in immediate disciplinary action. Drug or alcohol abuse off the job, which can be shown to affect the job performance or safety of the employee or other employees, will be documented and will result in quick disciplinary action up to and including termination. City cannot and will not put its employees or members of the general public in danger by having employed an employee on duty who may be a risk to themselves or others.
Section 9.19 City does not intend to test any employees for drug use unless a documented reasonable suspicion exists. City agrees to be bound by applicable State and Federal Laws.
Section 9.20 Association and City recognize the need for a drug-free workplace and the need to assist employees whose job performance is impaired due to chemical or alcohol dependency. Association and City agree to abide by the Substance Abuse Policy dated May 3, 2006, as adopted by the City Council, and incorporated herein by this reference.