Morgan Hill City Council
January 17, 2024

Regular Meeting Agenda
City Council
Mark Turner - Mayor
Marilyn Librers - Mayor Pro Tem
Gino Borgioli - Council Member
Rene Spring - Council Member
Yvonne Martínez Beltrán - Council Member
Wednesday, January 17, 2024 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

January 17, 2024
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

PRESENTATIONS
YAC Presentation
Trusted Response Urgent Support Team (TRUST) Presentation

CITY COUNCIL REPORTS
Mayor Turner

CITY MANAGER'S REPORT
New Hire, Promoted, and Retired Employee Recognitions

January 17, 2024
3 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)
Public Comment

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. ADOPT ORDINANCE 2351, NEW SERIES, AMENDING 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
Recommendation:

Waive the reading, adopt Ordinance No. 2351, New Series, and declare that said title which appears on the agenda, shall be determined to have been read by title and further reading waived.

2. APPROVE ARTIST AND ARTWORK FOR GALVAN PARK RESTROOM
Recommendation:

1. Approve the selection of artist Abigail Dunnivan and artwork on the Galvan Park Restroom; and

January 17, 2024
4 2. Authorize the City Manager to execute and administer artist agreement for the artwork.

3. APPROVE SECOND AMENDMENT TO ON-CALL REPAIR CONTRACT WITH

GOLDEN BAY CONSTRUCTION FOR A NEW TOTAL COMPENSATION UP TO $950,000
Recommendation:

Authorize the City Manager to execute a second amendment to the on-call water and sewer repair contract with Golden Bay Construction with compensation up to $950,000.

4. APPROVE THE FINAL MAP FOR THE LUMBER YARD PHASE 2 PROJECT – TRACT NO. 10621 (DEPOT STREET AND EAST DUNNE AVENUE), AND

THE FIRST AMENDMENT TO THE SUBDIVISION IMPROVEMENTS
AGREEMENT FOR THE LUMBER YARD PHASE 1 – TRACT NO. 10541 Recommendation:

1. Approve the Final Map for the Lumber Yard Phase 2 Project (Tract No. 10621);

2. Authorize the recordation of the Lumber Yard Phase 2 Final Map;

3. Approve the First Amendment to the Subdivision Improvements Agreement for the Lumber Yard Phase 1 Project (Tract No. 10541);

4. Authorize the City Manager to execute the First Amendment to the Lumber Yard Phase 1 Subdivision Improvements Agreement with MH LUMBERYARD 49, LLC; and

5. Authorize the recordation of the First Amendment to the Subdivision Improvements Agreement.

5. APPROVE THE FINAL MAP FOR THE KERLEY RESIDENTIAL PROJECT - TRACT NO. 10609 (19380 MONTEREY ROAD WITH ASSESSOR PARCEL NUMBERS 726-42-001 AND 726-42-002) AND RELATED SUBDIVISION

IMPROVEMENTS AGREEMENT
Recommendation:

1. Approve the Final Map;

2. Authorize the City Manager to execute the Subdivision Improvements Agreement with CIVIC MONTEREY ROAD, LLC;
and

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

6. APPROVE THE DECEMBER 6, 2023 CITY COUNCIL MEETING MINUTES

January 17, 2024
5 Recommendation:

Approve Minutes.

7. AUTHORIZE THE CITY MANAGER TO EXECUTE AGREEMENT WITH ACT PRIVATE SECURITY & INVESTIGATIONS INC. FOR SECURITY SERVICES Recommendation:

Authorize the City Manager to execute and administer a two and a half year agreement with ACT Private Security & Investigations Inc, in the amount of $155,000 for security services.

8. AWARD AQUATICS CENTER RECREATION POOL REPLASTERING

PROJECT
Recommendation:

1. Award contract to Earl Adams Tile - Coping & Plastering, Inc. dba Adams Pool Solutions in the amount of $137,262 and contingency funds not to exceed $27,452; and

2. Authorize the City Manager to execute and administer that certain construction contract with Earl Adams Tile - Coping & Plastering, Inc. dba Adams Pool Solutions.

9. AWARD COMMUNITY PARK DG PATHWAYS PROJECT
Recommendation:

1. Award Decomposed Granite (DG) Pathways Project to Angkor Engineering, Inc. in the amount of $51,825 and contingency funds not to exceed $25,913; and

2. Authorize the City Manager to execute and administer that certain construction contract with Angkor Engineering, Inc.

10. PAVEMENT CONDITION UPDATE AND PAVEMENT REHABILITATION

PLANNING UPDATE
Recommendation:

Receive updates.

11. PURCHASE OF MOBILE OFFICE SPACE FOR AQUATICS CENTER AND

OUTDOOR SPORTS CENTER USE
Recommendation:

1. Approve the purchase of mobile office space for $100,000; and

2. Authorize the City Manager to execute necessary agreements to complete the purchase with approval of the City Attorney.

January 17, 2024
6 12. RECEIVE MONTHLY BUDGET UPDATE AND NOVEMBER 2023 FINANCIAL

AND INVESTMENT REPORTS
Recommendation:

Accept and file report.

13. APPROVE STATE OF CALIFORNIA, OFFICE OF EMERGENCY SERVICES'

UNIVERSAL RESOLUTION DESIGNATING APPLICANT'S AGENT FOR

DISASTER ASSISTANCE
Recommendation:

1. Designate City Manager, Finance Director, or Senior Accountant to submit for Disaster Assistance to the State of California, Office of Emergency Services, for the purpose of obtaining certain federal financial assistance; and

2. Direct the City Clerk to certify the Designation of Applicant’s Agency Resolution to the State of California, Office of Emergency Services.

OTHER BUSINESS

14. ADOPT RESOLUTION FOR AN EXCEPTION TO THE 180-DAY WAITING

PERIOD TO APPOINT RETIRED ANNUITANT, ANDREW CRABTREE, TO

SERVE AS TEMPORARY EXTRA HELP (GOVERNMENT CODE SECTIONS 7522.56 AND 21224) IN THE DEVELOPMENT SERVICES DEPARTMENT TO

PERFORM WORK AS A RETIRED ANNUITANT
Recommendation:

Adopt Resolution for an exception to the 180-day waiting period to appoint Andrew Crabtree, a retired annuitant, to serve as temporary extra help (Government Code Sections 7522.56 and 21224) in the Development Services Department to perform work as a Retired Annuitant.

15. PROVIDE DIRECTION REGARDING CITY COUNCIL TERM LIMITS AND

MAYORAL TERM
Recommendation:

1. Provide direction to staff regarding the drafting of an ordinance creating term limits that would be submitted to the voters in November 2024; and

2. Provide direction to staff regarding the mayoral term.

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.

January 17, 2024
7 CLOSED SESSION
THREAT TO PUBLIC SERVICES OR FACILITIES (§ 54957)
Consultation with: Morgan Hill Police Department, Chief of Police

OPPORTUNITY FOR PUBLIC COMMENT

ADJOURNMENT

January 17, 2024
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.

January 17, 2024
9

January
Developmental Asset #14:

Adult Role Model
Parent(s) and other adults model positive,
responsible behavior.

January
Complementary Asset:

Navigate—Guide me through hard situations and
systems.

Sofia RuizMcGinty,
YAC Active
Member My Inspiration
◆ Learning the value of hard work
◆ Trial and error
◆ My future goals

Doris Chiang, YAC
Board Member
A Living Example
◆ Finding one’s true calling
◆ Choosing personal values
◆ Inspiring, not telling

Arya Vaid,
YAC Board Member
The Right Path
◆ Stepping out of my comfort zone
◆ Open to try new things
◆ Confidence

“A role model in the flesh provides more than
inspiration; his or her very existence is confirmation
of possibilities one may have every reason to doubt,
saying, yes, someone like me can do this.”
-
Sonia Sotomayor

From: D. Muirhead
To: CC Public Comment
Subject: [EXTERNAL] non-agenda comment for next City Council meeting Date: Thursday, January 11, 2024 11:12:55 AM
Happy New Year to the City Administration and City Council Teammates, This is a non-agenda comment for the next City Council meeting.

I feel that the process for evaluating whether or not to put an item on a future agenda was not followed with respect to the recent agenda distribution topic. My understanding is that you discuss if you want staff to spend time on preparing an item and not the pros and cons of the item itself. Those would come in the staff report and presentation and Council discussion.

So the Mayor's objection on this agenda proposal, that it might cause incomplete material, should have been addressed when the item was put on an agenda and not as a reason to vote against putting it on an agenda.

I don't assume that all the work for a meetings agenda item is done in the 2-3 weeks preceding that meeting. I would have liked to hear from staff how an agenda item is prepared and why that prevents giving the public more time to consider the material being presented at a Council meeting. Since other agencies manage to give the public longer lead times, this could have been an opportunity to explain why the City Administration process should not change.

Regards, Doug Muirhead, Morgan Hill resident
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1 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Dat Nguyen, Finance Director
APPROVED BY: City Manager
ADOPT ORDINANCE 2351, NEW SERIES, AMENDING 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

RECOMMENDATION(S)
Waive the reading, adopt Ordinance No. 2351, New Series, and declare that said title which appears on the agenda, shall be determined to have been read by title and further reading waived.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Fostering a Positive Organizational Culture
Preserving and Cultivating Public Trust
2022-2023 Strategic Priorities
Fiscal Sustainability
Community Outreach, Engagement, and Messaging
REPORT NARRATIVE:

On December 6, 2023, the City Council introduced Ordinance No. 2351 New Series, by the following roll call vote: AYES: Librers, Martinez Beltran,Turner, Spring; NOES:

None; ABSTAIN: None; ABSENT: Borgioli.

On June 29, 2023, Governor Gavin Newsom signed Senate Bill 329 (SB 329) 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).

1 SB 329 does not set a maximum salary for the mayor. Staff recommends that the mayor receives a salary increase at the same percentage as the City Council or $3,397 per month.

COMMUNITY ENGAGEMENT:

Inform
A 10-day public hearing notice for the December 6, 2023 City Council meeting was published on Friday, November 24, 2023 in the edition of the Morgan Hill Times.

ALTERNATIVE ACTIONS:

Not Applicable.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

On June 21, 2006, the City Council adopted Ordinance 1780 New Series, setting the salary of Council Members at $313/month and the salary of the Mayor at $834/month.

FISCAL AND RESOURCE IMPACT:

The fiscal impact of the proposed salary adjustment is approximately $80,000/year to the General Fund.

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.

ORDINANCE NO. 2351, NEW SERIES

AN ORDINANCE OF THE CITY OF MORGAN HILL
AMENDING SECTIONS 2.04.020 (“SALARY OF
COUNCIL MEMBERS”) AND 2.04.030 (“SALARY OF THE
MAYOR”) OF TITLE 2 (“ADMINISTRATION AND
PERSONNEL), CHAPTER 4 (“CITY COUNCIL), OF THE

MORGAN HILL MUNICIPAL CODE TO ADJUST THE

SALARIES OF COUNCIL MEMBERS AND THE MAYOR

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

Section 1. Section 2.04.020 of Chapter 4 of Title 2 of the Municipal Code is amended to read as follows:
“2.04.020--Salary of council members.

Pursuant to the provisions of Section 36516 of the Government Code, each of the members of the city council shall receive a monthly salary of one thousand-two hundred seventy-five dollars ($1,275) at the same intervals as other city employees are paid.

Pursuant to Section 36516.5 of the Government Code, this section shall take effect whenever one or more members of the city council begins a new term of office, after the adoption of the ordinance codified in this section.

Section 2. Section 2.04.030 of Chapter 2 of Title I of the Municipal Code is amended to read as follows:

2.04.030--Salary of the mayor.

Pursuant to Section 36516.1 of the Government Code, which permits a mayor elected pursuant to Sections 34900 to 34904, inclusive, of the Government Code to be provided with compensation in addition to that which he or she receives as a council member, the mayor of the city shall receive an additional monthly salary of two thousand-one hundred twenty-two dollars ($2,122)
Pursuant to Section 36516.5 of the Government Code, this section shall take effect whenever one or more members of the city council begins a new term of office, after the adoption of the ordinance codified in this section.

Section 2. Severability. Should any provision of this ordinance be deemed unconstitutional or unenforceable by a court of competent jurisdiction, such provision shall be severed from the ordinance, and such severance shall not affect the remainder of the ordinance.

Section 3. Effective Date; Posting. This ordinance shall become effective on the 31st day after adoption. The City Clerk is hereby directed to publish this Ordinance or a summary thereof pursuant to Government Code Section 36933.

City of Morgan Hill
Ordinance No. 2351, New Series

THE FOREGOING ORDINANCE WAS INTRODUCED AT A MEETING OF THE CITY COUNCIL HELD ON THE 6th DAY OF DECEMBER 2023, AND WAS FINALLY ADOPTED AT A MEETING OF THE CITY COUNCIL HELD ON THE 17th DAY OF JANUARY 2024, AND SAID ORDINANCE WAS DULY PASSED AND ADOPTED IN ACCORDANCE WITH LAW BY THE FOLLOWING VOTE:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:

MARK TURNER, Mayor MICHELLE BIGELOW, City Clerk
 CERTIFICATE OF THE CITY CLERK 

I, MICHELLE BIGELOW, CITY CLERK OF THE CITY OF MORGAN HILL, CALIFORNIA, do hereby certify that the foregoing is a true and correct copy of Ordinance No. 2351, New Series, adopted by the City Council of the City of Morgan Hill, California at their regular meeting held on January 17, 2023.

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

DATE:

MICHELLE BIGELOW, City Clerk

2 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Keri Russell, Maintenance Manager
APPROVED BY: City Manager

APPROVE ARTIST AND ARTWORK FOR GALVAN PARK RESTROOM

RECOMMENDATION(S)

1. Approve the selection of artist Abigail Dunnivan and artwork on the Galvan Park Restroom; and

2. Authorize the City Manager to execute and administer artist agreement for the artwork.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Supporting our Youth, Seniors, and Entire Community
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
REPORT NARRATIVE:

In August 2023, the City of Morgan Hill, issued a call for artists to submit proposals for the design, fabrication, and installation of public art at the new Galvan Park Restroom.

This project seeks to create a new mural on the new restroom building with a Latinx theme. The City of Morgan Hill has a budget of $5,000 to create an art piece on the newly installed restroom. The City and Commission has previously worked with an artist to complete artwork on a similar restroom at both Magical Bridge Playground and Railroad Park. The funding is intended to cover all project costs including design, fabrication, and installation.

The City received five proposals from artists. The proposals received can be viewed utilizing the following links:
• Abigail Dunnivan -
https://morganhill.ca.gov/DocumentCenter/View/46257/Abigail-DunnivanApplication • Jose Maya - https://morganhill.ca.gov/DocumentCenter/View/46268/Jose-MayaApplicationPage 21 of 370 2 • Lina Velasquez - https://morganhill.ca.gov/DocumentCenter/View/46259/LinaVelasquez-Application- • Sheryl Cathers - https://morganhill.ca.gov/DocumentCenter/View/46261/SherylCathers-Application- • Teresa Anguiano -
https://morganhill.ca.gov/DocumentCenter/View/46262/Teresa-AnguianoApplication-?bidId= A sub-committee of the Library, Culture and Arts Commission and City Teammates provided the initial review of the artwork. While the committee thought many of the art pieces would work they had a strong recommendation to recommend Abigail Dunnivan's piece based on how it represents the Latinx Community, tells a full story across all sides of the restroom, and uses strong vibrant colors in the design.

On December 5, 2023, the Library, Culture and Arts Commission reviewed the artwork.

The Commission liked the piece but felt like it did not represent all Latinx Communities.

The Commission accepted the concept art but requested the artist include other Latinx cultures through native flowers. The artwork has been revised to meet the recommendations of the Commission and included as Attachment 1.

COMMUNITY ENGAGEMENT:

Empowered local artists to design the mural.

ALTERNATIVE ACTIONS:

The Council may choose not to move forward with the recommended actions or provide other alternative direction to City staff.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The Library, Culture and Arts Commission recommended approval for the artist and artwork on December 5, 2023.

FISCAL AND RESOURCE IMPACT:

The proposed artist agreement would include funding of $5,000 for the restroom art work. Funding for the artwork is included in the Park Maintenance budget.

CEQA (California Environmental Quality Act):

Categorical Exemption
Minor alterations to existing City facilities fall within the CEQA categorical exemption of Class 1, Exisiting Facilities.

Galvan Park Mural Design

Side 1

Side 2

Side 3

Side 4

3 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Chris Ghione, Public Services Director
APPROVED BY: City Manager

APPROVE SECOND AMENDMENT TO ON-CALL REPAIR CONTRACT

WITH GOLDEN BAY CONSTRUCTION FOR A NEW TOTAL
COMPENSATION UP TO $950,000

RECOMMENDATION(S)
Authorize the City Manager to execute a second amendment to the on-call water and sewer repair contract with Golden Bay Construction with compensation up to $950,000.

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

3 months, the City has been attempting to find contractors to complete this work, but had 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.

On November 15, 2023, the City Council approved increasing the contract with Golden Bay Construction to $750,000. The intent was to complete the work and leave some funds on the on-call contract with Golden Bay. At the time of the Council report, the restoration work for the landslide and sewer line repair project was not complete.

However, staff estimated costs to complete the work at approximately $350,000.

Unfortunately, restoration work was much more significant than anticipated due to significant damage to private roadways that were needed to access the site. This resulted in the costs totaling approximately $480,000. City staff have been working with FEMA and the City's insurance pool on this project and other projects from the 2023 storms and believe reimbursement of funds for this specific project will be received directly from FEMA.

While the project is complete, it has depleted the on-call contract with Golden Bay.

Golden Bay has been the City's most responsive and available contractor for emergency work. They were the only contractor willing to take on the complicated landslide work and provide on-call rates that are competitive. When performing on-call work, the City requests quotes and estimates from the pool of on-call contractors the City has under contract. The City staff recommend increasing the contract with Golden Bay to $950,000 to allow the City to continue soliciting estimates for other small emergency on-call work projects.

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 would result in Golden Bay not being able to provide on-call work for the City.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The Council previously approved the initial on-call contracts with Golden Bay Construction on August 23, 2023 and amended the contract on November 15, 2023.

FISCAL AND RESOURCE IMPACT:

Funding for the past work performed comes from the Sewer Repair and Replacement Project, funded through the Sewer Capital Project Fund 643. Reimbursement of these costs is anticipated. Future on call work may be funded through various City

3 infrastructure funds.

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 SECOND AMENDMENT TO AGREEMENT
GOLDEN BAY CONSTRUCTION, INC.

This SECOND AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and 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 Second Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on ___________, ____, 20___.

2. The CITY and SERVICE PROVIDER entered into that “Maintenance Service Agreement” made as of September 8, 2023, for services for a maximum compensation of Four Hundred Thousand Dollars ($400,000.00) (“SERVICE AGREEMENT”).

3. The CITY and SERVICE PROVIDER entered into a “First Amendment to Agreement” made as of November 26, 2023, under which the maximum compensation under the SERVICE AGREEMENT, as amended, was increased to Seven Hundred Fifty Thousand Dollars ($750,000.00). The SERVICE AGREEMENT and the First Amendment thereto are attached as Exhibit “1” to this Agreement.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

1. Amendments: All terms and conditions of the 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 NINE HUNDRED FIFTY THOUSAND DOLLARS ($950,000.00) 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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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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DocuSign Envelope ID: 3DFB2E23-B901-4DCF-A2EB-B6F71BD0E23C 15 11/26/2023
November 23
EXHIBIT 1

DocuSign Envelope ID: 3DFB2E23-B901-4DCF-A2EB-B6F71BD0E23C 11/22/2023
11/26/2023 11/27/2023

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
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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
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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: 3DFB2E23-B901-4DCF-A2EB-B6F71BD0E23C

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
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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
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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: 3DFB2E23-B901-4DCF-A2EB-B6F71BD0E23C

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
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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
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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
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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]
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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:

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 _______ _
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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)
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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
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4 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Maria Angeles, Senior Civil Engineer
APPROVED BY: City Manager
APPROVE THE FINAL MAP FOR THE LUMBER YARD PHASE 2
PROJECT – TRACT NO. 10621 (DEPOT STREET AND EAST DUNNE

AVENUE), AND THE FIRST AMENDMENT TO THE SUBDIVISION
IMPROVEMENTS AGREEMENT FOR THE LUMBER YARD PHASE 1 –
TRACT NO. 10541

RECOMMENDATION(S)

1. Approve the Final Map for the Lumber Yard Phase 2 Project (Tract No. 10621);

2. Authorize the recordation of the Lumber Yard Phase 2 Final Map;

3. Approve the First Amendment to the Subdivision Improvements Agreement for the Lumber Yard Phase 1 Project (Tract No. 10541);

4. Authorize the City Manager to execute the First Amendment to the Lumber Yard Phase 1 Subdivision Improvements Agreement with MH LUMBERYARD 49, LLC; and

5. Authorize the recordation of the First Amendment to the Subdivision Improvements Agreement.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment and Preserving Open Space and Agricultural Land Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

The Lumber Yard Project is a two-phased, mixed-use development consisting of 40 attached townhome style units, and one mixed-use building with office space on the ground floor and 9 condominium units on the second and third floors. The proposed development has a total of 49 residential units and is located on the former Hale Lumber site on the east side of Depot Street, between Fifth Street and East Dunne Avenue (see attached Site Map – Attachment 1).

In conjunction with the Lumber Yard Project and pursuant to City Council’s approval on September 1, 2021 of a second amendment to the Disposition and Development

4 Agreement (DDA) between the Subdivider/Developer, MH Lumber Yard 49, LLC, and the City, the Developer was required to realign Depot Street through the Morgan Hill Community & Cultural Center (CCC) parking lot then connect to Church Street. Also pursuant to the DDA, after construction of the mixed-use building, the building’s ground floor office space will be conveyed by the Developer to the City for future City use.

The Depot Street realignment was substantially completed in Spring 2023 and has resulted in approximately 0.29 acres of excess Depot Street right-of-way. Pursuant to the DDA, this excess right-of-way area will be conveyed to the Developer and the area will be incorporated into Phase 2 of the project. On September 6, 2023, the City Council approved and adopted Resolution 23-043 that declared the summary vacation of the excess Depot Street right-of-way. A Quitclaim Deed was recorded on November 3, 2023 which conveyed the vacated area to the Developer.

Lumber Yard Phase 2 Final Map (Tract No. 10621)
The Phase 2 Final Map (Tract No. 10621 and shown as Attachment 2) being recommended for City Council approval shows 20 of the project’s 49 total residential units and the mixed-use building. The other residential units were part of the previouslyapproved Final Map for Phase 1 (Tract No. 10541).

The Developer has furnished the City with the necessary documents to complete the processing of the Phase 2 Final Map and has made provisions with a Title Company for the recordation of the map. The Final Map conforms to the requirements of the Subdivision Map Act, and conditions of approval have been met. Staff recommends that City Council approve the Phase 2 Final Map.

Lumber Yard Phase 1 Final Map and Subdivision Improvements Agreement (Tract No. 10541)
The Phase 1 Final Map (Tract No. 10541) and related Subdivision Improvements Agreement (SIA) were approved by the City Council on December 1, 2021.

The original developer of the Lumber Yard Project, The Latala Group, LLC, and the original property owners/original subdivider, Robert V. Hammond and Linda Hammond, Trustees of the Robert V. Hammond and Linda Hammond Revocable Trust dated May 28, 1991, Robert V. Hammond, Jr., and Robert M. Traurig, jointly executed the SIA with the City on December 6, 2021 requiring the public improvements of the project be completed within eighteen (18) months from the date of the recording of the Phase 1 Final Map (no later than June 9, 2023). The SIA also allowed the City Manager to extend the agreement by not more than six (6) months.

On December 21, 2021, a Grant Deed was recorded with the Santa Clara County Recorder that transferred the property from the original subdivider to the current Developer/Owner, MH LUMBERYARD 49, LLC.

MH LUMBERYARD 49, LLC has requested an extension of the SIA due to construction delays caused by the arson fire incident that occurred in June 2023 which destroyed the project’s model Building 2 that was under construction. The building’s framing and

4 foundation, and adjacent Depot Street frontage improvements had to be removed and rebuilt. The project also experienced delays finalizing the construction of the Depot Street realignment improvements and with PG&E involving the undergrounding of the existing overhead utility lines fronting the project along Depot Street. As previously mentioned, the Depot Street realignment has been substantially completed and has been open for public use since last spring. The remaining public improvements to be completed include the undergrounding of the overhead utility lines and completing the project’s frontage improvements along Depot Street and East Dunne Avenue.

Staff recommends an extension of the SIA and the completion of the public improvements by an additional 18 months from the original completion date of June 9, 2023. If the extension is approved, the new expiration date of the SIA will be December 9, 2024.

Staff recommends that City Council authorize the City Manager to sign and record the First Amendment to the SIA (Attachment 3) on behalf of the City.

COMMUNITY ENGAGEMENT:

Involve and Inform
On September 10, 2019, the Planning Commission approved the project’s Tentative Map. Residents within a 300 feet radius were informed of the Planning Commission’s intent to approve the Tentative Map for the project, in which a public hearing was held to allow the public to be involved and voice their concerns over Tentative Map requirements.

On September 19, 2019, Planning staff presented the project’s Design Review permit request to the Downtown Association. In addition, residents within a 300-foot radius were informed of the City Council’s intent to approve the Design Review Permit for the project, in which another public hearing was held.

This report also serves to inform the community of the recommended amendment to the project’s Subdivision Improvements Agreement.

ALTERNATIVE ACTIONS:

There is no feasible alternative action on the Final Map approval as the Developer has met the requirements of the Tentative Map conditions approved by the Planning Commission to file for the Phase 2 Final Map approval.

On the recommended amendment to the SIA, City Council could decide not to approve the amendment. The Developer will then be required to enter into a new Subdivision Improvements Agreement with the City to complete the remaining public improvements required of the project.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

September 10, 2019 – Planning Commission approved the Tentative Map for the project

4 and recommended approval of the Design Review Permit to City Council.

October 2, 2019 – City Council reviewed and approved the Design Review Permit for the project.

September 1, 2021 – City Council adopted Resolution 21-041 amending the Disposition and Development Agreement (DDA) with the Developer; and Council also adopted Resolution 21-042 amending Fiscal Year 2021-22 Budget appropriations related to this project.

December 1, 2021 – City Council approved the Phase 1 Final Map (Tract No. 10541) and related Subdivision Improvements Agreement.

September 6, 2023 – City Council approved and adopted Resolution 23-043 that (1) declared the Summary Vacation of the excess Depot Street right-of-way; (2) established the new Depot Street right-of-way; and (3) added a Public Utility Easement at the CCC.

FISCAL AND RESOURCE IMPACT:

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

CEQA (California Environmental Quality Act):

Project
The Final Master Environmental Impact Report (FMEIR) for the Morgan Hill Downtown Specific Plan was certified in November 2009 in conformance with California Environmental Quality Act (CEQA) Guidelines Section 15175(a), which identified the impacts of the Downtown Specific Plan in order to streamline the later environmental review of projects and approvals required to implement the Specific Plan. The intent was for the Downtown Specific Plan MFEIR to be a program-level document from which subsequent development consistent with the Specific Plan could tier from in conformance with CEQA Guidelines Section 15176(d)).

In addition, an Environmental Impact Report (EIR) for the Morgan Hill 2035 Project, was prepared in accordance with CEQA and certified by the Morgan Hill City Council on July 27, 2016. (SCH #2015022074). CEQA Guidelines Section 15164 states that the lead agency or a responsible agency shall prepare an Addendum to a previously certified EIR if some changes or additions are necessary, but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.

An Addendum was completed and provided CEQA analysis for the project as part of the adopted 2009 Downtown Specific Plan MFEIR. As part of the Addendum, a Transportation Impact Analysis concluded consistency with both the General Plan and Downtown Specific Plan. The Addendum found no impacts that were not previously disclosed in the General Plan FEIR or the Downtown Specific Plan Master FEIR, nor would it result in a substantial increase in the magnitude of any significant

4 environmental impacts previously identified.

RECORDING REQUESTED BY

WHEN RECORDED RETURN TO

CITY OF MORGAN HILL
City Clerk’s Office
17575 PEAK AVENUE
MORGAN HILL, CA 95037
(RECORD AT NO FEE PURSUANT TO
GOVERNMENT CODE SECTION 27383) THE AREA ABOVE IS RESERVED FOR RECORDER'S USE

FIRST AMENDMENT TO SUBDIVISION IMPROVEMENTS AGREEMENT
THE LUMBER YARD – TRACT NO. 10541

THIS FIRST AMENDMENT TO THE SUBDIVISION IMPROVEMENTS AGREEMENT (“AMENDMENT”) is dated as of this _______ day of ________________, 2024, is entered into by and between the CITY OF MORGAN HILL, a California municipal corporation (“CITY”), and MH LUMBERYARD 49, LLC, a California Limited Liability Company, (“SUBDIVIDER”).

SUBDIVIDER and CITY are collectively referred to as the “Parties”.

RECITALS
The following recitals are a substantive portion of this AMENDMENT:

1. The CITY and SUBDIVIDER entered into that Subdivision Improvements Agreement (ORIGINAL AGREEMENT) on December 6, 2021 to develop the property located on the east side of Depot Street, between Fifth Street and East Dunne Avenue, in Morgan Hill, California, (APNs 726-13-061 through 726-13-064) as a two-phased, mixed-use development consisting of 40 attached townhome style units, and one mixed-use building with office space on the ground floor and 9 condominium units on the second and third floors. The first phase of the project is designated as Tract No. 10541 (“Project”). The ORIGINAL AGREEMENT was recorded on December 9, 2021 with the Santa Clara County Recorder as document number 25190632.

2. At the time of execution of the ORIGINAL AGREEMENT, Robert V. Hammond and Linda Hammond, Trustees of the Robert V. Hammond and Linda Hammond Revocable Trust dated May 28, 1991, Robert V. Hammond, Jr., and Robert M. Traurig, were the original owners/original subdivider, and the original developer was The Latala Group, LLC.

3. On December 21, 2021, a Grant Deed was recorded with the Santa Clara County Recorder as document number 25200591, that transferred the property from the original owners to the SUBDIVIDER.

4. On December 9, 2021, the final map for Tract No. 10541 was recorded with the Santa Clara County Recorder in Book 944 of Maps, pages 21 through 26.

5. Pursuant to the ORIGINAL AGREEMENT, the SUBDIVIDER is required to perform and complete all public improvements within eighteen (18) months from the date of the recording of the Final Map (no later than June 9, 2023). Pursuant to Section 6 of the ORIGINAL AGREEMENT, the City Manager may extend the deadline for completion by not more than six (6) months at her reasonable discretion and determination that granting the extension will not be detrimental to the public welfare.

6. On December 11, 2023, the SUBDIVIDER submitted a written request to extend the deadline by an additional twenty-four (24) months to complete the public improvements due to project delays caused by the arson fire incident at the project site that occurred in June 2023, and additional delays during the construction of the Depot Street realignment improvements and with the coordination with PG&E to underground the existing overhead utility lines.

7. The City Engineer deemed that the extension of the deadline by an additional eighteen (18) months (no later than December 9, 2024) is necessary to allow the SUBDIVIDER to continue the completion of the remaining public improvements which include the undergrounding of the overhead utility lines and the construction of the project’s frontage improvements along Depot Street and East Dunne Avenue.

8. Pursuant to Section 17.32.270 of the Morgan Hill Municipal Code (Chapter 17.32, Improvements and Improvement Agreements), the completion date may further be extended by the City Council upon written request by the SUBDIVIDER and the submittal of adequate evidence to justify the extension. If City Council approves the extension, the SUBDIVIDER shall enter into a Subdivision Improvement Extension Agreement with the CITY.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

1. All terms and conditions of the ORIGINAL AGREEMENT shall remain in full force and effect, except that the following amendments shall be made as set forth below.

The first paragraph of Section 6 of the ORIGINAL AGREEMENT is amended to read as follows:

Section 6. Timing of Performance
Subdivider agrees to perform and complete all Improvements within thirty-six (36) months from the date of the recording of the Final Map. The Subdivider may request the City Council to further extend the deadline for completion upon written request by the Subdivider and the submittal of adequate evidence to justify the extension. / /
/ /

2. Those individuals who are signing this AMENDMENT 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 AMENDMENT.

IN WITNESS THEREOF, the parties have executed this AMENDMENT on the day and year shown below.

ATTEST: CITY OF MORGAN HILL
By: By:

Michelle Bigelow, City Clerk Christina J. Turner, City Manager Date: Date:

APPROVED AS TO FORM: "Subdivider"
By:

MH LUMBERYARD 49, LLC, a California
Limited Liability Company
Donald A. Larkin, City Attorney
Date:

By: Van Daele Homes of Northern
California, Inc., a California
corporation
Its: Managing Manager
By:

Name:

Title:

Date:

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)

5 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Lynette Kong, Associate Engineer
APPROVED BY: City Manager

APPROVE THE FINAL MAP FOR THE KERLEY RESIDENTIAL
PROJECT - TRACT NO. 10609 (19380 MONTEREY ROAD WITH
ASSESSOR PARCEL NUMBERS 726-42-001 AND 726-42-002) AND

RELATED SUBDIVISION IMPROVEMENTS AGREEMENT

RECOMMENDATION(S)

1. Approve the Final Map;

2. Authorize the City Manager to execute the Subdivision Improvements Agreement with CIVIC MONTEREY ROAD, LLC; and

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

COUNCIL PRIORITIES, GOALS & STRATEGIES
2022-2023 Strategic Priorities
Economic Development
Guiding Documents
Morgan Hill 2035 General Plan
Storm Drain Master Plan
Water System Master Plan
Wastewater System Master Plan
REPORT NARRATIVE:

Kerley - Tract 10609 is a 93-unit residential condominium development located at 19380 Monterey Road, the former Family RV site, and is approximately 250 feet southeast of the Monterey Road/Burnett Avenue intersection as shown on the attached Site Map (Attachment 1). The project is bounded to the north by Irish Construction and a private landscape contractor, to the east by Madrone Mobilehome Estates and to the south by Superior Auto and Repair.

The project site is composed of two parcels with a total area of approximately 4.62 acres. The larger of the two parcels, labeled as “Parcel C" on the Final Map, has an area of 3.93 acres while the second parcel, labeled as “Parcel B" on the Final Map, has an area of 0.74 acres.

5 All the streets to be constructed within the development will be privately-owned and maintained by the Developer and future Homeowners Association (HOA).

The Developer, CIVIC MONTEREY ROAD, LLC, has met all the conditions specified by the Planning Commission in the approval of the project's Vesting Tentative Map and Design Review Permit (Resolution No. 22-17). The City Council is required to approve the Final Map (Attachment 2) if it conforms to all the requirements of the Subdivision Map Act, and any conditions of approval for the Vesting Tentative Map.

The Developer has furnished the City with the necessary documents to complete the processing of the Final Map and has made provisions to provide the City with the required fees, security, and insurance prior to the recordation of the Final Map. The Final Map has met the conditions of approval and conforms to the requirements of the Subdivision Map Act.

Staff recommends that City Council approve the Final Map and authorize the City Manager to sign the Subdivision Improvements Agreement (Attachment 3) pending review and approval by the City Attorney.

COMMUNITY ENGAGEMENT:

Inform
The project's notice of the appeal hearing was publicly noticed in November 2022, which included a mailing to property owners within 600 feet of the project, and was noticed in the newspaper for the minimum 10-day period.

The project’s Vesting Tentative Map for Condominium Purposes and Design Permits were publicly noticed in September 2022, which included a mailing to property owners within 600 feet of the project, and was noticed in the newspaper for the minimum 10-day period.

The project's development information webpage was created on the City's website to inform the public of the project's Vesting Tentative Map and Design Review applications.

ALTERNATIVE ACTIONS:

There are no feasible alternative actions as the Developer has met the requirements of the Vesting Tentative Map conditions approved by the Planning Commission to file for a Final Map approval and has furnished the necessary documents to complete the processing of the Subdivision Improvements Agreement.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

November 16, 2022 — City Council held a public hearing on an appeal on the project and adopted Resolution No. 22-055 which denied the appeal and reaffirmed the decision of the Planning Commission to approve the project, subject to the conditions of

5 approval.

September 13, 2022 — Planning Commission held a public hearing on the project and adopted Resolution No. 22-17 which approved the project's single-lot Vesting Tentative Subdivision Map (SD2021-0004) and Design Permit (SR2021-0014).

February 16, 2022 — City Council adopted Resolution No. 22-004 which granted one concession for the proposed development to increase the floor area ratio.

FISCAL AND RESOURCE IMPACT:

Development review costs for this project are paid with development processing fees collected from the Developer.

CEQA (California Environmental Quality Act):

Categorical Exemption
The project is exempt pursuant to CEQA Guidelines Section 15332, Class 32 (In-fill development). A Notice of Exemption was filed for this project at the County of Santa Clara on November 18, 2022.

Job Number: 212008
Date of Preparation: 02/10/2023
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Opinion of Probable Cost For Bonding Purposes (Public Improvements)

KERLEY TOWNHOMES
February 10, 2022
Morgan Hill, CA
Revision Date Revision Description
In providing this Opinion of Probable Cost, the Client understands that the Design Professional has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the Design Professional is not a Professional Cost Estimator. The Design Professional makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. It is the Client's responsibility to review all unit prices and make changes as the Client sees fit to reflect the actual market prices the Client is experiencing and to reflect the Client's method of operation.

This document shall be considered incomplete unless accompanied by all sheets, including notes.

SUMMARY
A. DEMOLITION $96,540
B. PAVING & CONCRETE $89,234
C. WATER $225,750
D. SANITARY SEWER $2,980
E. MISCELLANEOUS $252,712
$667,216
$100,082
Total Improvements: $767,298
Sub-Total Improvements:

Contingency 15%

Job Number: 212008
Date of Preparation: 02/10/2023
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Opinion of Probable Cost For Bonding Purposes (Public Improvements)

KERLEY TOWNHOMES
February 10, 2022
Morgan Hill, CA
Revision Date Revision Description
In providing this Opinion of Probable Cost, the Client understands that the Design Professional has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the Design Professional is not a Professional Cost Estimator. The Design Professional makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. It is the Client's responsibility to review all unit prices and make changes as the Client sees fit to reflect the actual market prices the Client is experiencing and to reflect the Client's method of operation.

This document shall be considered incomplete unless accompanied by all sheets, including notes.

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
A. DEMOLITION

1. Demo, Removal, & Offhaul of Ex- AC Swk 1,530 SF $3.00 $4,590

2. Demo, Removal, & Offhaul of Ex- Curb and Gutter 460 LF $4.00 $1,840

3. Demo, Removal, & Offhaul and Disposal of Ex- 8" ACP Water 500 LF $120.00 $60,000

4. Abandonment of existing Sewer service connection 1 LS $2,000.00 $2,000

5. Demo, Removal, & Offhaul of Ex- Irrigation Box 2 EA $500.00 $1,000

6. Demo, Removal, & Offhaul of Ex- AC Pavement 7,680 SF $3.00 $23,040

7. Demo, Removal, & Offhaul of Ex- Trees 5 EA $600.00 $3,000

8. Sawcut 535 LF $2.00 $1,070 4
Sub-Total Demolition: $96,540

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
B. PAVING & CONCRETE

1. 4" PCC Sidewalk & base 2,420 SF $5.00 $12,100

2. 6" PCC Sidewalk & base at EVA Driveway 260 SF $6.00 $1,560

3. PCC Curb and Gutter 485 LF $35.00 $16,975

4. Accessible Ramp 2 EA $2,000.00 $4,000

5. Concrete Driveway Approach 343 SF $10.00 $3,429

6. AC Pavement (5"/12") Public Street 7,310 SF $7.00 $51,170 Sub-Total Paving & Concrete: $89,234

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
C. WATER

1. Fire Hydrant 3 EA $5,000.00 $15,000

2. 6" Master Water Meter, Vault and Bypass 2 EA $6,000.00 $12,000

3. 8" Water incl. valves, thrust blocks, etc. 570 LF $275.00 $156,750

4. 6" Double Detector Check Assembly 2 EA $10,000.00 $20,000

5. Connect to existing 2 EA $8,000.00 $16,000

6. 2" Irrigation Water Meter Service 1 EA $3,000.00 $3,000

7. 2" Irrigation Backflow Preventer 1 EA $3,000.00 $3,000 Sub-Total Water: $225,750

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
D. SANITARY SEWER

1. 8" SS, (PVC) 14 LF $70.00 $980

2. 8" SS (PVC) connect to existing 1 EA $2,000.00 $2,000 Sub-Total Sanitary Sewer: $2,980

Job Number: 212008
Date of Preparation: 02/10/2023
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Opinion of Probable Cost For Bonding Purposes (Public Improvements)

KERLEY TOWNHOMES
February 10, 2022
Morgan Hill, CA
Revision Date Revision Description
In providing this Opinion of Probable Cost, the Client understands that the Design Professional has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the Design Professional is not a Professional Cost Estimator. The Design Professional makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. It is the Client's responsibility to review all unit prices and make changes as the Client sees fit to reflect the actual market prices the Client is experiencing and to reflect the Client's method of operation.

This document shall be considered incomplete unless accompanied by all sheets, including notes.

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
E. MISCELLANEOUS

1. Electrolier 4 EA $10,000.00 $40,000

2. Traffic control 1 LS $5,000.00 $5,000

3. Erosion and sediment control measures 1 LS $5,000.00 $5,000

4. Overhead utility undergrounding and joint trench facilities 550 LF $102.82 $56,550

5. Replacement of traffic signal detector loops in northbound lane 2 EA $2,000.00 $4,000

6. Landscaping, street trees, and irrigation improvements 1 LS $135,161.23 $135,161

7. Thermoplastic striping 1 LS $7,000.00 $7,000
Sub-Total Miscellaneous: $252,712

Job Number: 212008
Date of Preparation: 02/10/2023
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Opinion of Probable Cost For Bonding Purposes (Public Improvements)

KERLEY TOWNHOMES
February 10, 2022
Morgan Hill, CA
Revision Date Revision Description
In providing this Opinion of Probable Cost, the Client understands that the Design Professional has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the Design Professional is not a Professional Cost Estimator. The Design Professional makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. It is the Client's responsibility to review all unit prices and make changes as the Client sees fit to reflect the actual market prices the Client is experiencing and to reflect the Client's method of operation.

This document shall be considered incomplete unless accompanied by all sheets, including notes.

ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL
NOTES

1. THIS IS A PRELIMINARY OPINION OF PROBABLE COST BY THE CIVIL ENGINEER. THE CIVIL ENGINEER MAKES NO

REPRESENATION CONCERNING THE ABOVE ITEMS SHOWN IN CONNECTION WITH THE PLANS AND SPECIFICATIONS BEING PREPARED.

2. QUANTITIES SHOWN HEREIN ARE CALCULATED FROM KERLEY TOWNHOMES IMPROVEMENT PLANS DATED FEBRUARY 2023, WHICH ARE SUBJECT TO REVISION.

3. COST FIGURES SHOWN HEREIN ARE CONCEPTUAL ONLY. ACTUAL COSTS ARE DEPENDENT ON THE ITEMS SHOWN

ON THE PLANS AT BIDDING TIME, THE GENERAL MARKET SITUATION, THE CONTRACTOR'S WORKLOAD, SEASONAL FACTORS, LABOR AND MATERIAL COST, ETC.

4. ITEMS SHOWN ABOVE AND THEIR ASSOCIATED COSTS ARE SUBJECT TO REVISION DUE TO CHANGES, ADDITIONS, AND DELETIONS RESULTING FROM ON-GOING AGENCY REVIEW.

5. COSTS ASSOCIATED WITH JOINT TRENCH CONSTRUCTION RULE 20 UNDERGROUNDING AND PRIVATE STREET LIGHTING ARE

EXCLUDED FROM THIS OPINION OF PROBABLE COST

6. COSTS FOR INDIVIDUAL SANITARY SEWER BACKFLOW PREVENTERS, WATER PRESSURE REDUCERS, AND WATER PRESSURE BOOSTERS ARE NOT INCLUDED IN THIS OPINION OF PROBABLE COST. THE BUILDER SHOULD BUDGET FOR THESE ITEMS WITH THE BUILDING COSTS.

7. EROSION CONTROL COSTS ARE FOR INITIAL INSTALLATION ONLY AND DO NOT INCLUDE ONGOING MAINTENANCE OR SUBSEQUENT YEARLY INSTALLATIONS/MODIFICATIONS.

8. THE CONTINGENCY SHOWN SHOULD BE VERIFIED BY THE CLIENT. THE CONTINGENCY SHOWN IN THIS

OPINION OF PROBABLE COST IS INTENDED TO INDICATE GENERAL UNCERTAINTY AND SHOULD NOT BE USED AS A VARIANCE TO ACTUAL CONSTRUCTION COST.

9. PAVEMENT STRUCTURAL SECTION THICKNESS SHOWN IS PRELIMINARY. FINAL DESIGN THICKNESS WILL BE

DETERMINED FROM THE FINAL SOIL TESTING AND PAVEMENT SECTION DESIGN BY THE GEOTECHNICAL ENGINEER.

10. THIS DOCUMENT DOES NOT INCLUDE COSTS TO ACQUIRE RIGHT-OF-WAY NEEDED FOR THIS PROJECT.

11. PAVEMENT AND FINE GRADING FOR DRIVEWAYS AND DRIVEWAY PANS TO INDIVIDUAL LOTS/HOMES ARE NOT INCLUDED.

12. GEOTECHNICAL MITIGATION INCLUDING SLIDE REPAIR, SUBDRAINS, KEYWAYS, AND OVEREXCAVATION IS NOT INCLUDED IN THIS OPINION OF PROBABLE COSTS.

13. EARTHWORK QUANTITIES SHOWN ON THIS OPINION OF PROBABLE COST ARE APPROXIMATE QUANTITIES AND ARE FURNISHED FOR INFORMATION ONLY. THE ACTUAL AMOUNT OF EARTH MOVED WILL VARY DEPENDING ON THE PROPERTIES OF THE SOILS ENCOUNTERED, THE CONTRACTOR'S METHOD OF OPERATION, ETC.

14. a. CONSTRUCTION STAKING
b. GEOTECHNICAL ENGINEERING OR TESTING
c. OVERSIZING OF UTILITIES FOR ADDITIONAL CAPACITY
THIS CONCEPTUAL COST ANALYSIS EXCLUDES THE FOLLOWING:

Job Number: 212008
Date of Preparation: 02/10/2023
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Opinion of Probable Cost For Bonding Purposes (Public Improvements)

KERLEY TOWNHOMES
February 10, 2022
Morgan Hill, CA
Revision Date Revision Description
In providing this Opinion of Probable Cost, the Client understands that the Design Professional has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the Design Professional is not a Professional Cost Estimator. The Design Professional makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. It is the Client's responsibility to review all unit prices and make changes as the Client sees fit to reflect the actual market prices the Client is experiencing and to reflect the Client's method of operation.

This document shall be considered incomplete unless accompanied by all sheets, including notes. d. FENCING
e. BUILDING RELATED COSTS OR FEES
f. FINANCING CHARGES
g. REIMBURSABLE AGREEMENTS OR REFUNDABLE DEPOSITS
h. PLANNING AND OTHER CONSULTANT FEES
I. LANDSCAPING AND FINISH GRADING
j. CITY AND OTHER AGENCY FEES, INCLUDING MAP AND IMPROVEMENT PLAN FEES k. ENVIRONMENTAL MITIGATION
l. BONDS AND BONDING FEES
m. IMPROVEMENTS NOT SHOWN ON THE PLANS
n. IMPROVEMENTS FOR CUSTOM LOTS
o. EROSION CONTROL
p. SCHOOL DISTRICT FEES
q. ASSESSMENT DISTRICT FEES
r. PROFESSIONAL DESIGN FEES (CIVIL, STRUCTURAL, ARCHITECTURAL, ETC.) s. MONITORING DURING CONSTRUCTION

City Council
Meeting Minutes
Mark Turner - Mayor
Rene Spring - Mayor Pro Tem
Gino Borgioli - Council Member
Marilyn Librers - Council Member
Yvonne Martinez Beltran - Council Member
Wednesday, December 6, 2023 5:30 PM
Council Chamber Building
17555 Peak Avenue, Morgan Hill, CA 95037

SPECIAL/REGULAR MEETING
A special meeting of the City Council was called at 5:30 p.m. for the purpose of conducting a closed session.

SPECIAL MEETING
5:30 p.m. Closed Session

December 6, 2023
2 CALL TO ORDER
Mayor Turner called the Special City Council meeting to order at 5:30 p.m.

ROLL CALL ATTENDANCE
City Clerk Michelle Bigelow called the roll.

PRESENT Rene Spring, Gino Borgioli, Yvonne Martinez Beltran, Mark Turner, Marilyn Librers
ABSENT None
Council Member Borgioli joined the meeting at 6:00 p.m. and left the meeting at 9:08 p.m.

DECLARATION OF POSTING AGENDA
City Clerk Michelle Bigelow declared the posting of the agenda.

CLOSED SESSION
City Attorney Donald Larkin announced the closed session item.

Conference with Legal Counsel – Anticipated Litigation
Significant exposure to litigation pursuant to
§ 54956.9(b): (Two Cases)

OPPORTUNITY FOR PUBLIC COMMENT
Public comment opened at 5:31 p.m. There being no requests to speak, public comment closed.

ADJOURN TO CLOSED SESSION
The meeting adjourned to closed session at 5:31 p.m.

REGULAR MEETING
Mayor Turner called the Regular City Council meeting to order at 6:00 p.m.

December 6, 2023
3 SILENT INVOCATION

PLEDGE OF ALLEGIANCE

PRESENTATIONS
YAC Presentation

CITY COUNCIL REPORTS
Council Member Spring shared that he is the chair of the Santa Clara Valley Habitat Agency Governing Board, and they are doing a lot of great work preserving land in the Bay Area and South County, including the Tilton Ranch. He also shared that he is the chair of the South County Regional Wastewater Authority, which is in the process of expanding the wastewater facility that serves Morgan Hill and Gilroy. He has recently attended many events, including the Kiwanis Holiday parade, a special service in support of Congregation Emeth, a 50th-anniversary service of Advent Lutheran Church, and more. He thanked all those who volunteer in the area. They make South County amazing.

December 6, 2023
4 CITY MANAGER'S REPORT
City Manager Christina Turner encouraged everyone to sign up for the City's weekly 411 email. She announced the "I Belong" community survey and community meetings.

Lastly, she announced that City offices will be closed for the holidays from December 22, 2023 through January 1, 2024.

CITY ATTORNEY'S REPORT
City Attorney Don Larkin shared that there was no reportable action from the closed session item.

OTHER REPORTS
Council Member Martinez Beltran shared that she attended League Leaders in San Diego. They discussed safeguarding local revenues, expanding investments to prevent and reduce homelessness and increasing the supply of affordable housing, improving public safety, and strengthening climate change and disaster preparedness. She also thanked the Council for their support of the Holiday Posada event.

Mayor Turner announced that he attended a Caltrain Local Policy Makers Group gathering to discuss Caltrain funding. They are $2 billion short on the 12 crossings they are discussing. He also attended a ribbon cutting at Mariposa Preschool with the Chamber of Commerce.

PUBLIC COMMENT
Public comment opened at 6:15 p.m.

Ben Palm was called to speak.

There being no further requests to speak, public comment closed.

ADOPTION OF AGENDA
MOTION:

Adopting the agenda as posted.

RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Librers
AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: None

December 6, 2023
5 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.

MOTION:

Approving consent calendar items 1 through 4, 6, and 8 through 19.

RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Borgioli
AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: None

1. ACCEPT THE ANNUAL SENATE BILL (SB) 165 REPORT FOR COMMUNITY FACILITIES DISTRICT NO. 2014-1 (FISHER CREEK)
Recommendation:

Accept and file the report.

2. ACCEPT THE CITY'S ANNUAL COMPREHENSIVE FINANCIAL REPORT FOR THE FISCAL YEAR ENDED JUNE 30, 2023
Recommendation:

Accept the City’s Annual Comprehensive Financial Report for the Fiscal Year Ended June 30, 2023.

3. ADOPT RESOLUTION APPROVING AND MAKING FINDINGS RELATED TO THE ASSEMBLY BILL (AB) 1600 DEVELOPMENT IMPACT FEE ANNUAL REPORT FOR FISCAL YEAR 2022-23
Recommendation:

1. Adopt resolution making findings for unexpended development impact fees; and

2. Accept the annual development impact fee report.

4. ADOPT RESOLUTION AND ADOPT ORDINANCE 2349, NEW SERIES,

December 6, 2023
6 ADDING CHAPTER 3.26 (“TOURISM BUSINESS IMPROVEMENT DISTRICT”) TO TITLE 3 (“REVENUE AND FINANCE”) OF THE MORGAN HILL

MUNICIPAL CODE ESTABLISHING AND RENEWING THE MORGAN HILL

TOURISM BUSINESS IMPROVEMENT DISTRICT
Recommendation:

1. Adopt resolution; and

2. Waive the reading, adopt Ordinance No. 2349, New Series, and declare that said title, which appears on the agenda, shall be determined to have been read by title and further reading waived.

6. ADOPT RESOLUTION CERTIFYING COMPLIANCE WITH STATE HOUSING LAWS IN ORDER TO RECEIVE $3,921,000 IN ONE BAY AREA GRANT CYCLE 3 (OBAG 3) FUNDING FOR THE MONTEREY ROAD TRAFFIC,

BICYCLE, AND PEDESTRIAN IMPROVEMENTS PROJECT
Recommendation:

Adopt a resolution for self-certifying compliance with State housing laws that is required for receiving One Bay Area Grant Cycle 3 (OBAG 3) funding for the Monterey Road Traffic, Bicycle, and Pedestrian Improvements Project.

8. ADOPT WEED ABATEMENT RESOLUTION, EXEMPT FROM CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) UNDER SECTION 15304(I) Recommendation:

Adopt resolution declaring weeds and brush to be a nuisance and setting the hazardous vegetation public hearing for February 21, 2024.

9. ADOPT RESOLUTION AUTHORIZING CALIFORNIA CLIMATE

INVESTMENTS - DEPARTMENT OF FORESTRY AND FIRE PROTECTION (CAL FIRE) FIRE PREVENTION GRANT APPLICATION
Recommendation:

Adopt a resolution authorizing a grant application to the California Department of Forestry and Fire Protection and authorizing the City Manager to execute associated grant documents.

10. APPROVE A THREE-YEAR SERVICE AGREEMENT WITH ALPHA
ANALYTICAL LABORATORIES, INC. FOR A NOT-TO-EXCEED AMOUNT OF $225,000 FOR WATER LABORATORY TESTING AND ANALYSIS SERVICES Recommendation:

Approve and authorize the City Manager to execute and administer a three-year service agreement for a not-to-exceed amount of $225,000 with Alpha Analytical Laboratories, Inc., for water laboratory testing and analysis services.

December 6, 2023
7 11. APPROVE CONTRACT WITH SCS ENGINEERS FOR COMPLETION OF A FOOD WASTE PREVENTION STUDY IN THE AMOUNT OF $111,538
Recommendation:

Authorize the City Manager to enter into an agreement with SCS Engineers for completion of a Food Waste Prevention Study.

12. APPROVE FIRST AMENDMENT TO THE TUCKER CONSTRUCTION ONCALL FENCING CONTRACT, AND AUTHORIZE CITY MANAGER TO

EXTEND CONTRACT UP TO TWO YEARS
Recommendation:

1. Approve the first amendment to the on-call contract for public works projects with Tucker Construction, Inc. for an additional year of services for $150,000, for a total contract amount of $250,000; and

2. Authorize the City Manager to execute and administer two additional oneyear extensions of the on-call contract in annual amounts that would not increase the price of the contract for the immediately preceding year by more than five percent (5%) annually.

13. APPROVE JOINT POWERS AGREEMENT FOR ENACTMENT OF THE CITIES

ASSOCIATION OF SANTA CLARA COUNTY, JOINT POWERS AUTHORITY (CASCC JPA)
Recommendation:

1. Approve the proposed Joint Powers Agreement;

2. Authorize Mayor Turner or his alternate, Councilmember Librers, to report approval of the Agreement to the CASCC Board of Directors; and

3. Authorize the City Manager to execute the Agreement.

14. APPROVE SIXTH AMENDMENT TO DESIGN SERVICES AGREEMENT WITH HYDROSCIENCE ENGINEERS, INC. FOR THE NEW SEWER TRUNK LINE PROJECT FOR AN ADDITIONAL AMOUNT OF $280,246
Recommendation:

1. Approve Sixth Amendment to Service Agreement for Design Professionals with HydroScience Engineers, Inc. to provide additional services for the New Sewer Trunk Line to Gilroy project for an additional $280,246, for a total not-to-exceed amount of $2,059,956; and

2. Authorize the City Manager to execute and administer the amended services agreement.

December 6, 2023
8 15. APPROVE THE NOVEMBER 15, 2023 CITY COUNCIL MEETING MINUTES Recommendation:

Approve Minutes.

16. AUTHORIZE THE CITY MANAGER TO EXECUTE A PURCHASE

AGREEMENT WITH CADENCE TEAM FOR THE NETWORK EQUIPMENT IN THE NOT-TO-EXCEED AMOUNT OF $242,241, INCLUDING CONTINGENCY Recommendation:

Authorize the City Manager to execute a purchase agreement for network equipment with Cadence Team in the amount of $242,241, including a 10% contingency of $22,022.

17. AWARD AND APPROVE AN AGREEMENT WITH IRISH EXCAVATION IN THE AMOUNT OF $74,780 FOR CONSTRUCTION OF THE WOODLAND

BOOSTER STATION RETAINING WALLS
Recommendation:

Approve and authorize the City Manager to execute and administer an agreement with Irish Excavation in the amount of $74,780 to install two retaining walls at the Woodland Booster Station.

18. AWARD A TWO-YEAR LANDSCAPE MAINTENANCE AGREEMENT TO

MEDALLION LANDSCAPE MANAGEMENT, LLC IN THE AMOUNT OF
$371,712 FOR CITY FACILITIES AND ASSESSMENT DISTRICTS
Recommendation:

1. Award a two-year contract to Medallion Landscape Management, LLC in the amount of $371,712 to service Group 2 - City Facilities, Group 4 - Landscape Assessment Districts, including an extra services allocation of $30,000 per year; and

2. Authorize the City Manager to execute and administer the Maintenance Service Agreement with Medallion Landscape Management, LLC. and to extend the agreement for up to three (3) additional one-year terms.

19. RECEIVE MONTHLY BUDGET UPDATE AND OCTOBER 2023 FINANCIAL

AND INVESTMENT REPORTS
Recommendation:

Accept and file report.

ITEM PULLED FOR DISCUSSION

5. ADOPT ORDINANCE 2350, NEW SERIES, ADDING SECTION 18.30.070

December 6, 2023
9 (VEHICLE SALES OVERLAY ZONE (-VS)) OF CHAPTER 18.30 (OVERLAY ZONES AND COMBINING DISTRICTS) OF TITLE 18 (ZONING) OF THE

MUNICIPAL CODE OF THE CITY OF MORGAN HILL ESTABLISHING THE

VEHICLE SALES OVERLAY ZONE (-VS) TO ALLOW VEHICLE- RELATED

USES AND OTHER COMPATIBLE USES IN DIFFERENT PARTS OF THE

CITY THAT CAN SUPPORT SUCH A USE
Recommendation:

Waive the reading, adopt Ordinance No. 2350, New Series, and declare that said title, which appears on the agenda, shall be determined to have been read by title and further reading waived.

City Attorney Donald Larkin provided a brief description of the item.

Public comment opened at 6:24 p.m. The following people were called to speak:

Joe Baranowski
Miguel Jimenez
Nick Gaich, Chamber of Commerce
There being no further requests to speak, public comment closed.

MOTION:

Approving the recommended action.

RESULT: Passed
MOVER: Council Member Librers
SECONDER: Council Member Borgioli
AYES: Council Member Borgioli, Mayor Turner, Council Member Librers NAYS: Mayor Pro Tem Spring, Council Member Martinez Beltran ABSTAIN: None
ABSENT: None

7. ADOPT RESOLUTION JOINING BUILD THE FUTURE SANTA CLARA COUNTY
Recommendation:

Adopt resolution joining Build the Future Santa Clara County in advocating for comprehensive and collaborative solutions to solve the child care crisis.

City Manager Christina Turner provided a brief report.

Public comment opened at 6:40 p.m. There being no requests to speak, public comment closed.

MOTION:

Approving the recommended action.

December 6, 2023
10 RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Borgioli
AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: None

OTHER BUSINESS

20. REVIEW SECTION 15.63 OF THE MUNICIPAL CODE AND PROVIDE

DIRECTION REGARDING THE PROHIBITION OF NATURAL GAS

INFRASTRUCTURE IN NEW BUILDINGS
Recommendation:

1. Review Section 15.63 of the Municipal Code and discuss the prohibition of natural gas infrastructure in new buildings; and

2. Take no action to amend Section 15.63 of the Municipal Code, which prohibits natural gas infrastructure in new buildings.

Environmental Services Administrator Tanya Carothers provided a presentation and report.

The meeting recessed at 7:08 p.m. and reconvened at 7:17 p.m.

Public comment opened at 7:17 p.m. The following people were called to speak:

Nancy Lowe
Zoe Elizabeth, Silicon Valley Clean Energy
Jorge Uribe
Keerthi Sriram
Sofia Ruiz McGinty
DJ William
Margaret McCann
Rocke Garcia
There being no further requests to speak, public comment closed.

MOTION:

Take no action.

RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Mayor Pro Tem Spring

December 6, 2023
11 AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: None

21. PROVIDE DIRECTION REGARDING THE KEEPING OF ROOSTERS WITHIN

CITY LIMITS
Recommendation:

Provide direction regarding whether to prohibit the keeping of roosters within the City of Morgan Hill.

Police Captain Mario Ramirez provided a report.

Public comment opened at 8:10 p.m.

Judy McAndress was called to speak.

There being no further requests to speak, public comment closed.

MOTION:

Recommend staff to prohibit the keeping of roosters within the City of Morgan Hill.

RESULT: Failed
MOVER: Mayor Turner
SECONDER: Council Member Borgioli
AYES: Council Member Borgioli, Mayor Turner
NAYS: Mayor Pro Tem Spring, Council Member Martinez Beltran, Council Member Librers
ABSTAIN: None
ABSENT: None
Direction was provided to staff to explore mediation and take further code enforcement action to address this.

22. PROVIDE DIRECTION TO STAFF ON WHETHER TO ALLOW PUBLIC

COMMENT ON ZOOM
Recommendation:

Provide direction to staff on whether to allow public comment on Zoom.

City Clerk Michelle Bigelow provided the report.

Public comment opened at 8:44 p.m. The following people were called to speak:

December 6, 2023
12 Joe Baranowski
Brian Sullivan
There being no further requests to speak, public comment closed.

MOTION:

Direct staff to come back at goal setting in February with a staff report exploring how to securely have online participation allowing public comment on Zoom and looking into allowing public video.

RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Mayor Turner
AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: None

23. SELECT AND APPOINT CITY COUNCIL MAYOR PRO TEMPORE
Recommendation:

1. Open floor to nomination(s) for Mayor Pro Tempore; and

2. Select a Council Member to serve as Mayor Pro Tempore per City Council Policy 99-01.

City Clerk Michelle Bigelow provided the report.

Public comment opened at 9:04 p.m. There being no requests to speak, public comment closed.

MOTION:

Appointing Marilyn Librers to serve as Mayor Pro Tem for 2024.

RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Martinez Beltran
AYES: Mayor Pro Tem Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None

December 6, 2023
13 ABSENT: None

24. 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;

5. Consider a discussion on special event security requirements;

6. Consider revisiting the Economic Development Blueprint; and

7. Consider a discussion on imposing a Commercial Vacancy Tax.

City Manager Christina Turner led the City Council through each of the requested items.

Public comment opened at 9:17 p.m. There being no requests to speak, public comment closed.

1. 2 yes: Martinez Beltran and Spring / 2 no: Turner and Librers - no further action

2. 3 yes: Librers, Spring, and Martinez Beltran / 1 no: Turner - bring a report back

3. 3 yes: Librers, Spring, and Turner / 1 no: Martinez Beltran - bring a report back

4. 2 yes: Librers and Turner / 2 no: Spring and Martinez Beltran - no further action

5. 4 yes: Librers, Spring, Turner, and Martinez Beltran - bring a report back

6. 4 yes: Librers, Spring, Turner, and Martinez Beltran - bring a report back

7. 3 yes: Librers, Spring, and Martinez Beltran / 1 no: Turner - bring a report back

PUBLIC HEARINGS

25. INTRODUCE ORDINANCE AMENDING 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
Recommendation:

1. Open/close public hearing;

December 6, 2023
14 2. Waive first and second reading of the Ordinance; and

3. Introduce Ordinance by title.

Finance Director Dat Nguyen provided the report.

The public hearing opened at 9:52 p.m.

Miguel Jimenez was called to speak.

There being no further requests to speak, the public hearing closed.

MOTION:

Waiving the first and second reading of the ordinance.

RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Martinez Beltran
AYES: Mayor Pro Tem Spring, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: Council Member Borgioli
MOTION:

Introducing the ordinance.

RESULT: Passed
MOVER: Mayor Pro Tem Spring
SECONDER: Council Member Librers
AYES: Mayor Pro Tem Spring, Council Member Martinez Beltran, Mayor Turner, Council Member Librers
NAYS: None
ABSTAIN: None
ABSENT: Council Member Borgioli

FUTURE COUNCIL INITIATED AGENDA ITEMS
Council Member Librers requested an item to discuss whether the City should continue to have an elected treasurer.

December 6, 2023
15 ADJOURNMENT
There being no further business, Mayor Turner adjourned the meeting at 10:04 p.m.

Minutes Prepared by:

Michelle Bigelow, City Clerk

7 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Andrew Aguilar, Community Services Supervisor
APPROVED BY: City Manager

AUTHORIZE THE CITY MANAGER TO EXECUTE AGREEMENT WITH
ACT PRIVATE SECURITY & INVESTIGATIONS INC. FOR SECURITY

SERVICES

RECOMMENDATION(S)
Authorize the City Manager to execute and administer a two and a half year agreement with ACT Private Security & Investigations Inc, in the amount of $155,000 for security services.

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

The Community and Cultural Center’s meeting rooms are rented by private parties, nonprofit organizations and businesses for numerous types of events. To ensure safety and protect the facility, the City requires that security personnel are present at all events that include dancing and/or alcohol. The City has historically contracted with a private security firm to provide this service due to needed expertise and provide the services at affordable rates. The City passes the cost for these services on to the rental customers.

The agreement also allows for security services to be requested for additional one-time or ongoing events at other locations in the City as needed. A Request for Proposals (RFP) was issued in August 2023 to identify companies that can provide security services for the City. The RFP was posted to the City’s website. In addition, staff distributed the RFP announcement via email to area security services firms.

The City received twenty-one proposals. Of those proposals, 13 were deemed incomplete and unresponsive. City Staff from the Public Services Department evaluated

7 the remaining 8 proposals deemed responsive. The proposals were evaluated on submission thoroughness, experience, pricing, and proposed plan to perform the scope of work. The proposals were narrowed down to five companies, listed below:
• ACT Private Security & Investigations Inc.
• Citi Guard Inc.
• Coleman Security & Investigations Inc.
• Condor Security of America Inc.
• TLBC Inc.

A list of all companies providing responsive proposals and associated scoring is included in Attachment 1.

The City staff then invited the five top scoring companies to interviews. The final scoring of these five companies was updated based on submitted proposals and the completed interviews with the same criteria: experience, pricing, and proposed plan to perform the scope of work. Based on this assessment, staff recommends the award of a two and a half year consultant agreement to ACT Private Security & Investigations Inc. The agreement authorizes the City Manager to extend the term for a maximum of two, twoyear extensions, along with a maximum compensation for each subsequent year after the initial term of no more than 105% of the immediately proceeding year.

COMMUNITY ENGAGEMENT:

Not Applicable
Security services are a necessary component of operating the Community and Cultural Center and no direct community engagement on this topic was believed necessary. The RFP was posted on the City website, which provides an opportunity for local vendors to subscribe to and receive notifications for City bids, proposals, and quotes.

ALTERNATIVE ACTIONS:

City Council could decide not to approve the agreement and direct staff to identify an alternate model for providing security services. This would likely increase cost and have a negative impact on customer satisfaction.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

In July 2016, the City entered into a two -year agreement with Asset Protection Private Security. On September 27, 2017, the City Council approved the first amendment to the agreement to increase the not-to-exceed total compensation which was necessary due to additional rental activity at the Community and Cultural Center and other City security needs. On May 16, 2018, City Council approved the Second Amendment to extend the term for an additional year and increase the total compensation. On April 17, 2019, City Council approved the third and final amendment to a revised not-to-exceed total compensation of $145,000 and extended the term for a fourth year. On March 18, 2020, the City Council approved a new two-year agreement with Asset Protection Private

7 Security, Inc.

FISCAL AND RESOURCE IMPACT:

The agreement is subject to budget appropriation. Funding of $155,000 for this agreement is included in the current Fiscal Year 2023-24 budget and will be recommended for inclusion in the upcoming recommended biennial budget, in the General Fund (010), within the Public Services Department Recreation Division (010.2150.42231). The expenditures are fully offset by revenue.

CEQA (California Environmental Quality Act):

Categorical Exemption
The planned maintenance and management of City facilities falls within the CEQA categorical exemption of Class 1, Existing Facilities.

Security Services RFP_Scoring Summary

NARRATIVE SCORING NARRATIVE SCORING
ACT
Armed
Force
Security Citi Guard Coleman Condor Oracle TLBC Treasured Points
Available ACT
Armed Force
Security Citi Guard Coleman Condor Oracle TLBC Treasured Throughness & Understading of Tasks 15.0 13.0 10.5 11.0 11.0 14.0 4.5 10.5 9.5 Background & Experience 15.0 13.0 9.5 10.5 11.5 13.0 5.5 8.5 9.0 Staff Expertise & Experience 15.0 11.0 9.5 9.5 11.0 13.5 2.5 10.0 9.0 Recent Public Sector Experience 8.3 7.3 6.3 6.7 8.7 4.7 4.3 6.3

10.0 References 10.0 8.7 9.0 7.7 7.0 9.0 5.7 5.3 5.3
SUBTOTAL- NARRATIVE POINTS 65.0 54.0 45.8 45.0 47.2 58.2 22.9 38.6 39.1

BID PRICING BID PRICING SCORING
Item
Price from
Lowest
Bidder ACT
Armed
Force
Security Citi Guard Coleman Condor Oracle TLBC Treasured Points
Available ACT
Armed Force
Security Citi Guard Coleman Condor Oracle TLBC Treasured Hourly Rate: Weekdays (Mon-Thurs) 25.00 40.00 65.00 40.00 45.00 37.95 25.00 36.50 45.00 14% 5.0 3.1 1.9 3.1 2.8 3.3 5.0 3.4 2.8 Hourly Rate: Weekends (Fri, Sat,Sun) 27.00 40.00 65.00 40.00 45.00 37.95 27.00 36.50 45.00 71% 25.0 16.9 10.4 16.9 15.0 17.8 25.0 18.5 15.0 Hourly Rate: Holidays 30.00 60.00 97.50 60.00 67.50 56.93 30.00 54.75 65.00 14% 5.0 2.5 1.5 2.5 2.2 2.6 5.0 2.7 2.3 SUBTOTAL-PRICING POINTS 35.0 22.5 13.8 22.5 20.0 23.7 35.0 24.7 20.1 GRAND TOTAL 100.0 76.5 59.6 67.5 67.2 81.9 57.9 63.3 59.2 2 6 3 4 1 8 5 7
Point Score is lowest bidder's item price divided by each Contractor's item price times the number of points available.

Security Services RFP_Scoring Summary
NARRATIVE SCORING Finalist Interview Scoring
ACT Citi Guard Coleman Condor TLBC
Points
Available ACT Citi Guard Coleman Condor TLBC
Ability to Meet all Aspects of the Scope of Work

15.0 14.5 13.0 12.0 12.0 6.0
Experience on Similar Events/Facilities

15.0 14.5 11.0 13.0 11.5 5.0
Demonstrated adequete training for guards

15.0 12.0 11.5 11.0 11.5 7.0
Professionalism 10.0 8.7 8.3 6.3 8.3 8.0
Ability to communicate clearly

5.0 4.5 3.8 3.5 3.7 3.3
Demonstrated Flexibility 5.0 4.8 4.0 3.8 4.0 3.0

65.0 59.0 51.6 49.6 51.0 32.3

BID PRICING BID PRICING SCORING
Item
Price from
Lowest
Bidder ACT Citi Guard Coleman Condor TLBC
Points
Available ACT Citi Guard Coleman Condor TLBC
Hourly Rate: Weekdays (Mon-Thurs) 36.50 40.00 40.00 45.00 37.95 36.50 14% 5.0 4.6 4.6 4.1 4.8 5.0 Hourly Rate: Weekends (Fri, Sat,Sun) 36.50 40.00 40.00 45.00 37.95 36.50 71% 25.0 22.8 22.8 20.3 24.0 25.0 Hourly Rate: Holidays 54.75 60.00 60.00 67.50 56.93 54.75 14% 5.0 4.6 4.6 4.1 4.8 5.0 SUBTOTAL-PRICING POINTS 35.0 31.9 31.9 28.4 33.7 35.0
GRAND TOTAL 100.0 91 84 78 85 67
Point Score is lowest bidder's item price divided by each Contractor's item price times the number of points available.

8 CITY COUNCIL STAFF REPORT
MEETING DATE: January 17, 2024
PREPARED BY:

Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager

AWARD AQUATICS CENTER RECREATION POOL REPLASTERING

PROJECT

RECOMMENDATION(S)

1. Award contract to Earl Adams Tile - Coping & Plastering, Inc. dba Adams Pool Solutions in the amount of $137,262 and contingency funds not to exceed $27,452; and

2. Authorize the City Manager to execute and administer that certain construction contract with Earl Adams Tile - Coping & Plastering, Inc. dba Adams Pool Solutions.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Maintaining and Enhancing Infrastructure
2023-2024 Strategic Priorities
Fiscal Sustainability
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
REPORT NARRATIVE:

The purpose of this item is to provide the City Council with an opportunity to consider the award of a contract to Earl Adams Tile - Coping & Plastering, Inc. dba Adams Pool Solutions ("Adams Pool Solutions") in the amount of $137,262 to complete the replastering of the Morgan Hill Aquatics Center's (AC) recreation pool. The scope of work for the AC Recreation Pool Replastering project ("Project") includes all the labor and material necessary to replaster the recreation pool's entire 4,400 square foot surface including the removal and replacement of attached equipment, and materials including drain covers and inlets. The Contractor will also be responsible for the refilling of the pool's water. The AC's recreation pool was last replastered in 2012, and industry standards recommend that pools are replastered every ten years.

8 In soliciting for this contract, the City published a Notice Inviting Bids in the Morgan Hill Times on November 17, 2023 and November 24, 2023. Staff also posted the bid documents on the City website and the Public Purchase Online Service. The bid documents were also sent to the Builders Exchange of Santa Clara County, San Francisco Builders Exchange, Construction BidBoard, and Dodge and Data Analytics. A bid solicitation was issued on November 20, 2023. Contractors registered on the City's Informal Bidders List with the required Contractor State Licensing Board (CSLB) license Class C-53 (Swimming Pools) or Class A (General Engineering) were also notified of the bid. A non-mandatory pre-bid job walk was held at the AC on December 7, 2023 and two contractors attended. On December 18, 2023, two bids were received.

Name of Contractor Bid Amount
Earl Adams Tile-Coping &
Plastering, Inc dba Adams Pool
Solutions
$137,262
USA Construction LLC $238,960
Adams Pool Solutions was the lowest bidder. The company has over 27 years of industry knowledge and experience in the replastering of commercial pools including replastering pools for jurisdictions including the City of Gilroy. City staff is recommending that the City Council award the contract to Adams Pool Solutions and authorize the City Manager to execute and administer the agreement (Attachment 1).

COMMUNITY ENGAGEMENT:

Inform
The Recreation Pool Replastering project is scheduled to take place from February through March 2024. Several weeks before the Recreation Pool replastering begins, signs will be posted at the Aquatics Center informing customers of the upcoming project and pool closure. AC Welcome Desk staff will be kept fully informed of the construction schedule, so that they can keep AC customers up to date on the progress of the project.

Information on the closure will also be shared directly with members via social media and email communications.

ALTERNATIVE ACTIONS:

The City Council could decide not to approve this project. Postponing this work is not recommended as replastering the pool is needed as the current plaster has begun to fail in many locations.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

Not applicable.

FISCAL AND RESOURCE IMPACT:

If approved, the total funding authorization for this contract will be $164,714, which

8 includes the contract amount of $137,262, and a 20% contingency of $27,452. The project is an approved Capital Improvement Project (CIP) #PR1005.375.40.40.8051.86360 Recreation Facility Renovation project and is within budget.

CEQA (California Environmental Quality Act):

Categorical Exemption
The activities described in this staff report are categorically exempt under CEQA, specifically pursuant to Section 15301 (c) of the CEQA Guidelines (Existing Facilities), as the subject work involves the repair, maintenance or minor alteration of existing City facilities involving negligible or no expansion of use of those facilities.

AC Rec Pool Replastering Project CONTRACT
CSD2024-008 Page 1
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CONTRACT
This public works contract (“Contract”) is entered into by and between the City of Morgan Hill (“City”) and Earl Adams Tile-Coping & Plastering, Inc. dba Adams Pool Solutions (“Contractor”) for work on the Aquatic Center Recreation Pool Replastering Project (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct on the Project. On January 17, 2024, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below.

2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.

2.1 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Technical Specifications;

2.10 Change Orders, if any;

2.11 Notice of Award;

2.12 Notice to Proceed; and

2.13 The following: N/A No additional documents

3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

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4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor One Hundred Thirty Seven Thousand Two Hundred Sixty-Two Dollars ($137,262.00) (the “Contract Price”), for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.

5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 30 working days from the commencement date given in the Notice to Proceed (“Contract Time”) and in no case later than April 1, 2024. By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of Five Hundred Dollars ($500.00) per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract Price will be reduced accordingly.

7. Labor Code Compliance.

7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.

7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.

7.3 DIR Registration. City will not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code Section 1725.5, subject to limited legal exceptions.

8. Workers’ Compensation Certification. Pursuant to Labor Code Section 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code Section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”

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9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code Section 1090 et seq., or the Political Reform Act, as set forth in Government Code Section 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed.

Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice required by the Contract Documents must be made in writing, signed, dated, and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF (or comparable) file. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows:

City:

City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
Phone: (409) 779-7259
Attn: City Clerk
Email: [email protected]
Copy to: [email protected]
Contractor:

Name: Earl Adams Tile-Coping & Plastering Inc. dba Adams Pool Solutions Address: 3675 Old Santa Rita Road
City/State/Zip: Pleasanton, CA 94588
Phone: (925) 828-3100
Attn: Debra Eula
Email: [email protected]
Copy to: [email protected]

12. General Provisions.

12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent.

This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.

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12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Superior Court of Santa Clara County, and no other place. Contractor waives any right it may have pursuant to Code of Civil Procedure Section 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.

12.6 Severability. If any provision of the Contract Documents, is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.

12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code Section 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code Section 313. If Contractor is a partnership, signature by a general partner with authority to bind the partnership is required. If Contractor is a limited liability company (LLC), a signature by a member or manager with authority to bind the LLC is required.

12.9 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 are on the following page.]

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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.

The parties agree to this Contract as witnessed by the signatures below:

CITY OF MORGAN HILL:
_______________________________
Christina J. Turner
City Manager
Date: _________________________
Attest:
______________________________
Michelle Bigelow
City Clerk
Date: _______________________
Approved as to Form:
________________________________
Donald A. Larkin
City Attorney
Date: _________________________
CONTRACTOR:

EARL ADAMS TILE-COPING &
PLASTERING INC. dba ADAMS POOL

SOLUTIONS
_________________________
Signature
__________________________
Name/Title [print]
Date: ____________________
Corporate entities must provide a
second signature:
_________________________
Signature
__________________________
Name/Title [print]
Date: ______________________
_726779____________________
Contractor’s License Number(s)
_08/31/2024_________________
Expiration Date(s)
Seal:
___1000006072____________________
Contractor’s DIR Registration Number(s)
___06/30/2025_______________
Expiration Date

END OF CONTRACT

AC Rec Pool Replastering Project PAYMENT BOND
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Version: January 2021

PAYMENT BOND
The City of Morgan Hill (“City”) and Earl Adams Tile-Coping & Plastering Inc. dba Adams Pool Solutions (“Contractor”) have entered into a contract for work on the Aquatic Center Recreation Pool Replastering Project (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).

1. General. Under this Bond, Contractor as principal and _______________ __________________________, its surety (“Surety”), are bound to City as obligee in an amount not less than One Hundred Thirty Seven Thousand Two Hundred Sixty Two Dollars ($137,262) (“Bond Sum”), under California Civil Code Sections 9550, et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor

2. Surety’s Obligation. If Contractor or any of its Subcontractors fails to pay a person authorized in California Civil Code Section 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor and its Subcontractors, under California Unemployment Insurance Code Section 13020, with respect to the work and labor, then Surety will pay the obligation.

3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code Section 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond.

4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety’s obligations under this Bond will be null and void. Otherwise, Surety’s obligations will remain in full force and effect.

5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code Sections 2819 and 2845. City waives the requirement of a new bond for any supplemental contract under Civil Code Section 9550. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows:

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Attn: _______________________________
Address: ____________________________
City/State/Zip: ________________________
Phone: _____________________________
Email: ______________________________

6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Superior Court of Santa Clara County, and no other place. Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.

7. Effective Date; Execution. This Bond is entered into and is effective on ____________________, 20__.

SURETY: CONTRACTOR:
s/ _________________________ s/ _________________________ Name: _____________________ Name: _____________________ Title: ______________________ Title: ______________________ (Attach Acknowledgment with Notary
Seal and Power of Attorney)
APPROVED AS TO FORM:

By:______________________________
Donald A. Larkin, City Attorney
Date:__________________________

END OF PAYMENT BOND

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Version: January 2021

PERFORMANCE BOND
The City of Morgan Hill (“City”) and Earl Adams Tile-Coping & Plastering Inc. dba Adams Pool Solutions (“Contractor”) have entered into a contract for work on the Aquatic Center Recreation Pool Replastering Project (“Project”). The Contract is incorporated by reference into this Performance Bond (“Bond”).

1. General. Under this Bond, Contractor as principal and _______________ ________________________________________, its surety (“Surety”), are bound to City as obligee for an amount not less than One Hundred Thirty Seven Thousand Two Hundred Sixty-Two Dollars ($__________________) (the “Bond Sum”) to ensure Contractor’s faithful performance of its obligations under the Contract. By executing this Bond, Contractor and Surety bind themselves and their respective heirs, executors, administrators, successors and assigns, jointly and severally, to the provisions of this Bond.

2. Surety’s Obligations. Surety’s obligations are co-extensive with Contractor’s obligations under the Contract. If Contractor fully performs its obligations under the Contract, including its warranty obligations under the Contract, Surety’s obligations under this Bond will become null and void.

Otherwise, Surety’s obligations under this bond will remain in full force and effect.

3. Waiver. Surety waives any requirement to be notified of and further consents to any alterations to the Contract made under the applicable provisions of the Contract Documents, including changes to the scope of Work or extensions of time for performance of Work under the Contract.

Surety waives the provisions of Civil Code Sections 2819 and 2845.

4. Application of Contract Balance. Upon making a demand on this Bond for completion of the Work prior to acceptance of the Project, City will make the Contract Balance available to Surety for completion of the Work under the Contract. For purposes of this provision, the Contract Balance is defined as the total amount payable by City to Contractor as the Contract Price minus amounts already paid to Contractor, and minus any liquidated damages, credits, or backcharges to which City is entitled under the terms of the Contract.

5. Contractor Default. Upon written notification from City that Contractor is in default under Article 13 of the Contract General Conditions, time being of the essence, Surety must act within the time specified in Article 13 to remedy the default through one of the following courses of action:

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5.1 Arrange for completion of the Work under the Contract by Contractor, with City’s consent, but only if Contractor is in default solely due to its financial inability to complete the Work;

5.2 Arrange for completion of the Work under the Contract by a qualified contractor acceptable to City, and secured by performance and payment bonds issued by an admitted surety as required by the Contract Documents, at Surety’s expense, or

5.3 Waive its right to complete the Work under the Contract and reimburse City the amount of City’s costs to have the remaining Work completed.

6. Surety Default. If Surety defaults on its obligations under the Bond, City will be entitled to recover all costs it incurs due to Surety’s default, including legal, design professional, or delay costs.

7. Notice. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows:

Attn: _______________________________
Address: ____________________________
City/State/Zip: ________________________
Phone: _____________________________
Fax: _______________________________
Email: ______________________________

8. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Superior Court of Santa Clara County, and no other place. Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
[Signatures are on the following page.]

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9. Effective Date; Execution. This Bond is entered into and effective on ____________________, 20___.

SURETY: CONTRACTOR:
s/ _________________________ s/ _________________________ Name: _____________________ Name: _____________________ Title: ______________________ Title: ______________________ (Attach Acknowledgment with Notary
Seal and Power of Attorney)
APPROVED AS TO FORM:

By:______________________________
Donald A. Larkin, City Attorney
Date:__________________________

END OF PERFORMANCE BOND

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GENERAL CONDITIONS
Article 1 - Definitions

1.1 Definitions. The following definitions apply to all of the Contract Documents unless otherwise indicated, e.g., additional definitions that apply solely to the Specifications or other technical documents. Defined terms and titles of documents are capitalized in the Contract Documents, with the exception of the following (in any tense or form): “day,” “furnish,” “including,” “install,” “work day” or “working day.”
Allowance means a specific amount that must be included in the Bid Proposal for Work that may or may not be included in the Project, depending on conditions that will not become known until after bids are opened. If the Contract Price includes an Allowance and the cost of performing the Work covered by that Allowance is greater or less than the Allowance, the Contract Price will be increased or decreased accordingly.

Article, as used in these General Conditions, means a numbered Article of the General Conditions, unless otherwise indicated by the context.

Change Order means a written document duly approved and executed by City, which changes the scope of Work, the Contract Price, or the Contract Time.

City means the City of Morgan Hill, acting through its City Council, officers, employees, and authorized representatives.

City Engineer means the City Engineer for City and his or her authorized delegee(s) designated to oversee and manage the Project on City’s behalf.

Claim means a separate demand by Contractor for a change in the Contract Time or Contract Price, that has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected by City, in whole or in part; or a written demand by Contractor objecting to the amount of Final Payment.

Contract means the signed agreement between City and Contractor for performing the Work required for the Project, and all documents expressly incorporated therein.

Contract Documents means, collectively, all of the documents listed as such in Section 2 of the Contract, including the Notice Inviting Bids; the Instructions to Bidders; addenda, if any; the Bid Proposal, and attachments thereto; the Contract; the Notice of Award and Notice to Proceed; the payment and performance bonds; the General Conditions; the Special Conditions; the Project Plans and Specifications; any Change Orders; and any other documents

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expressly made part of the Contract Documents. The Contract Documents do not include documents provided “For Reference Only,” or documents that are intended solely to provide information regarding existing conditions.

Contract Price means the total compensation to be paid to Contractor for performance of the Work, as set forth in the Contract and as may be amended by Change Order or adjusted for an Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies, or equipment following submission of the Bid Proposal. The Contract Price is deemed to include all applicable federal, state, and local taxes.

Contract Time means the number of days specified for complete performance of the Work, as set forth in the Contract and as may be amended by Change Order.

Contractor means the individual, partnership, corporation, or joint-venture that has signed the Contract with City to perform the Work.

Day means a calendar day unless otherwise specified.

Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural or engineering services for the Project. If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Engineer.

DIR means the California Department of Industrial Relations.

Drawings has the same meaning as Plans.

Engineer means the City Engineer for the City of Morgan Hill and his or her authorized delegee(s).

Excusable Delay is defined in Section 5.3(B), Excusable Delay.

Extra Work means new or unforeseen work added to the Project, as determined by the Engineer in his or her sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s bid was submitted; Work that is substantially different from the Work as described in the Contract Documents at bid time; or Work that results from a substantially differing and unforeseeable condition.

Final Completion means Contractor has fully completed all of the Work required by the Contract Documents to the City’s satisfaction, including all punch list items, and any required commissioning or training, and has provided the City with all required submittals, including the instructions and manuals, product warranties, and as-built drawings.

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Final Payment means payment to Contractor of the unpaid Contract Price, including release of undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents.

Furnish means to purchase and deliver for the Project.

Government Code Claim means a claim submitted pursuant to California Government Code § 900 et seq.

Hazardous Materials means any substance or material identified now or in the future as hazardous under any Laws, or any other substance or material that may be considered hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.

Including, whether or not capitalized, means “including, but not limited to,” unless the context requires otherwise.

Inspector means the individual(s) or firm(s) retained or employed by City to inspect the workmanship, materials, and manner of construction of the Project and its components to ensure compliance with the Contract Documents and all Laws.

Install means to fix in place for materials, and to fix in place and connect for equipment.

Laws means all applicable local, state, and federal laws, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any governmental entity with jurisdiction over any of the Work or any performance of the Work, including health and safety requirements.

Non-Excusable Delay is defined in Section 5.3(D), Non-Excusable Delay.

Plans means the City-provided plans, drawings, details, or graphical depictions of the Project requirements, but does not include Shop Drawings.

Project means the public works project referenced in the Contract.

Project Manager means the individual designated by City to oversee and manage the Project on City’s behalf and may include his or her authorized delegee(s) when the Project Manager is unavailable. If no Project Manager has been designated for this Project, any reference to Project Manager is deemed to refer to the Engineer.

Recoverable Costs is defined in Section 5.3(F), Recoverable Costs.

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Request for Information or RFI means a Contractor’s written request for information about the Contract Documents, the Work or the Project, submitted to City in the manner and format specified by City.

Section, when capitalized in these General Conditions, means a numbered section or subsection of the General Conditions, unless the context clearly indicates otherwise.

Shop Drawings means drawings, plan details or other graphical depictions prepared by or on behalf of Contractor, and subject to City acceptance, which are intended to provide details for fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.

Specialty Work means Work that must be performed by a specialized Subcontractor with the specified license or other special certification, and that the Contractor is not qualified to self-perform.

Specifications means the technical, text specifications describing the Project requirements, which are prepared for and incorporated into the Contract by or on behalf of City, and does not include the Contract, General Conditions or Special Conditions.

Subcontractor means an individual, partnership, corporation, or joint-venture retained by Contractor directly or indirectly through a subcontract to perform a specific portion of the Work. The term Subcontractor applies to subcontractors, suppliers, fabricators, and equipment lessors of all tiers, unless otherwise indicated by the context. A third party such as a utility performing related work on the Project is not a Subcontractor, even if Contractor must coordinate its Work with the third party.

Technical Specifications has the same meaning as Specifications.

Work means all of the construction and services necessary for or incidental to completing the Project in conformance with the requirements of the Contract Documents.

Work Day or Working Day, whether or not capitalized, means a weekday when the City is open for business, and does not include holidays observed by City.

Worksite means the place or places where the Work is performed, which includes, but may extend beyond the Project site, including separate locations for staging, storage, or fabrication.

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Article 2 - Roles and Responsibilities

2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Engineer.
(B) Engineer. The Engineer, acting within the authority conferred by the City Council, is responsible for administration of the Project on behalf of City, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project.

The Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents. (C) Project Manager. The Project Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as City’s representative, for daily administration of the Project on behalf of City.

Unless otherwise specified, all of Contractor’s communications to City (in any form) will go to or through the Project Manager. City reserves the right to reassign the Project Manager role at any time or to delegate duties to additional City representatives, without prior notice to or consent of Contractor.
(D) Design Professional. The Design Professional is responsible for the overall design of the Project, and to the extent authorized by City, may act on City’s behalf to ensure performance of the Work in compliance with the Plans and Specifications, including any design changes authorized by Change Order. The Design Professional’s duties may include review of Contractor’s submittals, visits to any Worksite, inspecting the Work, evaluating test and inspection results, and participation in Project-related meetings, including any pre-construction conference, weekly meetings, and coordination meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.

2.2 Contractor.
(A) General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of City, and with minimal inconvenience to the public.
(B) Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. Contractor is

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solely responsible for, and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents. From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft.
(C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative. (D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants, as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved superintendent is physically present to supervise the Work. Contractor must provide written notice to City, as soon as practicable, before replacing the superintendent. (E) Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents and Laws and applicable manufacturer’s recommendations. Contractor has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications

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pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
(F) Meetings. Contractor, its project manager, superintendent, and any primary Subcontractors requested by City, must attend a preconstruction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners.
(G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project. The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any. Contractor will take date and time-stamped photographs to document general progress of the Project, including site conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration. Contractor will maintain copies of all subcontracts, Projectrelated correspondence with Subcontractors, and records of meetings with Subcontractors. Upon request by the City, Contractor will permit review of and/or provide copies of any of these construction records. (H) Responsible Party. Contractor is solely responsible to City for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials, or services for or on behalf of Contractor or the Subcontractors. Upon City’s written request, Contractor must promptly and permanently remove from the Project, at no cost to City, any employee, Subcontractor, or employee of a Subcontractor who the Engineer has determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents.
(I) Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by City to be deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials, parts or equipment that do not conform to the requirements under the Plans, Specifications and every other Contract Document, as determined by City, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and grades shown on the Plans or established by City, and any Extra Work

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performed without City’s prior written approval. If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five days following notice from City, or within the time specified in City’s notice to correct, City may elect to have the defective Work corrected by its own forces or by a third party, in which case the cost of correction will be deducted from the Contract Price. If City elects to correct defective Work due to Contractor’s failure or refusal to do so, City or its agents will have the right to take possession of and use any equipment, supplies, or materials available at the Project site or any Worksite on City property, in order to effectuate the correction, at no extra cost to City. Contractor’s warranty obligations under Section 11.2, Warranty, will not be waived nor limited by City’s actions to correct defective Work under these circumstances. Alternatively, City may elect to retain defective Work, and deduct the difference in value, as determined by the Engineer, from payments otherwise due to Contractor. This paragraph applies to any defective Work performed by Contractor during the one-year warranty period under Section 11.2.
(J) Contractor’s Records. Contractor must maintain all of its records relating to the Project in any form, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include, but are not limited to, complete Project cost records and records relating to preparation of Contractor’s bid, including estimates, take-offs, and price quotes or bids. (1) Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.
(2) Contractor must continue to maintain its Project-related records in an organized manner for a period of five years after City’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, City is entitled to inspect or audit any of Contractor’s records relating to the Project or to investigate Contractor’s plant or equipment during Contractor’s normal business hours. The record-keeping

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requirements set forth in this subsection 2.2(J) will survive expiration or termination of the Contract.
(K) Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Plans, Specifications, Addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related written interpretations. These documents must be available to City for reference at all times during construction of the Project.

2.3 Subcontractors.
(A) General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors, subject to the 50% limitation set forth in the Instructions to Bidders. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequately trained workforce. Each Subcontractor must obtain a City business license before performing any Work.
(B) Contractual Obligations. Contractor must require each Subcontractor to comply with the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, including the generally applicable terms of the Contract Documents, and to likewise bind their subcontractors. Contractor will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor. Copies of subcontracts must be available to the Engineer upon request. Before a Subcontractor commences Work on the Project, Contractor must provide the Engineer a written statement with the name of the Subcontractor, a description of each portion of the Work performed by the Subcontractor, and the percentage of the overall Work to be performed by the Subcontractor. (C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to City, subject to the prior rights of any surety, but only if and to the extent that City accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.

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(D) Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code Section 4107, Contractor is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If City determines that a Subcontractor is unacceptable to City based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code Section 4107(a), City may request removal of the Subcontractor from the Project. Upon receipt of a written request from City to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to City, will either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in compliance with Public Contract Code Section 4107, as applicable.

2.4 Coordination of Work.
(A) Concurrent Work. City reserves the right to perform have performed, or permit performance of other work on or adjacent to the Project site while the Work is being performed for the Project. Contractor is responsible for coordinating its Work with other work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City. To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor.
(B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work.

Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work

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or activities performed by City’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.

2.5 Submittals. Unless otherwise specified, Contractor must submit to Engineer for review and acceptance, all schedules, Shop Drawings, samples, product data and similar submittals required by the Contract Documents, or upon request by Engineer. Unless otherwise specified, all submittals, including Requests for Information (RFIs) are subject to the provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed. (A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current City-accepted schedule for the Work and within the applicable time specified elsewhere in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project.
(C) Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).
(D) Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal.
(E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by City is not an assumption of risk or liability by City. (F) Enforcement. Any Work performed or any material furnished, installed, fabricated, or used without City’s prior acceptance of a required

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submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work or material, repairs to other affected portions of the Work, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector.
(G) Excessive RFIs. An RFI will be considered excessive or unnecessary if the City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.

2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Engineer for review and acceptance at least 30 days before the Work will be performed. If City requires changes, the corrected Shop Drawings must be resubmitted to the Engineer for review within the time specified by the Engineer. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by City. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of Contractor’s responsibility.

2.7 Access to Work. Contractor must afford prompt and safe access to any Worksite by City and its employees, agents, or consultants authorized by City; and upon request by City, Contractor must promptly arrange for City representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.

2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project site must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions relating to their respective job functions, including safety and security requirements. Upon written notification from the Engineer, Contractor and its Subcontractors must immediately discharge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such

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discharged personnel may not be re-employed or permitted on the Project in any capacity without City’s prior written consent.

Article 3 - Contract Documents

3.1 Interpretation of Contract Documents.
(A) Plans and Specifications. The Plans and Specifications included in the Contract Documents are complementary. If Work is shown on one but not on the other, Contractor must perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. The Plans and Specifications are deemed to include and require everything necessary and reasonably incidental to completion of the Work, whether or not particularly mentioned or shown. Contractor must perform all Work and services and supply all things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the Plan(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation. Contractor may request access to underlying or background information in City’s possession that is necessary for Contractor to form its own conclusions. (B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Engineer and wait for a response from City before proceeding further with the related Work. The RFI must notify the City of the issue and request clarification, interpretation, or direction. The Engineer’s clarification, interpretation, or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining City’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results. Timely submission of a clear and complete RFI is essential to avoiding delay. Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Engineer is Non-Excusable Delay. If Contractor believes that City’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but

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may submit a timely Change Order request in accordance with the Contract Documents. (See Article 5 and 6.)
(C) Figures and Dimensions. Figures control over scaled dimensions.
(D) Technical or Trade Terms. Any terms that have well-known technical or trade meanings will be interpreted in accordance with those meanings, unless otherwise specifically defined in the Contract Documents.
(E) Measurements. Contractor must verify all relevant measurements in the Contract Documents and at the Project site before ordering any material or performing any Work, and will be responsible for the correctness of those measurements or for costs that could have been avoided by independently verifying measurements.
(F) Compliance with Laws. The Contract Documents are intended to comply with Laws and will be interpreted to comply with Laws.

3.2 Order of Precedence. Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. Unless otherwise specified in the Special Conditions, in case of any conflict or inconsistency among the Contract Documents, the following order of precedence will apply, beginning from highest to lowest, with the most recent version taking precedent over an earlier version:
(A) Change Orders;
(B) Addenda;
(C) Contract;
(D) Notice to Proceed;
(E) Appendix B- Federal Contract Requirements (only if used); (F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
(I) Technical Specifications;
(J) Plans;
(K) Notice of Award
(L) Notice Inviting Bids;
(M) Appendix A – Federal Bidding Requirements (only if used); (N) Instructions to Bidders;
(O) Contractor’s Bid Proposal and attachments;
(P) The City’s standard specifications, as applicable; and (Q) Any generic documents prepared by and on behalf of a third party, that were not prepared specifically for this Project, such as Caltrans Standard Specifications or Caltrans Special Provisions.

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3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard Specifications of the State of California, Department of Transportation (“Caltrans”), including “Standard Specifications,” “Caltrans Specifications,” “State Specifications,” or “CSS,” means the most current edition of Caltrans’ Standard Specifications, unless otherwise specified (“Caltrans Standard Specifications”), including the most current amendments as of the date that Contractor’s bid was submitted for this Project. The following provisions apply to use of or reference to the Caltrans Standard Specifications or Special Provisions:
(A) Limitations. None of the “General Provisions” of the Caltrans Standard Specifications, i.e., Sections 1 through 9, applies to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents. (B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications or Special Provisions and a provision of these Contract Documents, as determined by City, the provision in the Contract Documents will govern. (C) Meanings. Terms used in the Caltrans Standard Specifications or Special Provisions are to be interpreted as follows:
(1) Any reference to the “Engineer” is deemed to mean the City Engineer.
(2) Any reference to the “Special Provisions” is deemed to mean the Special Conditions, unless the Caltrans Special Provisions are expressly included in the Contract Documents listed in Section 2 of the Contract.
(3) Any reference to the “Department” or “State” is deemed to mean City.

3.4 For Reference Only. Contractor is responsible for the careful review of any document, study, or report provided by the City or appended to the Contract Documents solely for informational purposes and identified as “For Reference Only.” Nothing in any document, study, or report so appended and identified is intended to supplement, alter, or void any provision of the Contract Documents.

Contractor is advised that City or its representatives may be guided by information or recommendations included in such reference documents, particularly when making determinations as to the acceptability of proposed materials, methods, or changes in the Work. Any record drawings or similar final or accepted drawings or maps that are not part of the Contract Documents are deemed to be For Reference Only. The provisions of the Contract Documents

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are not modified by any perceived or actual conflict with provisions in any document that is provided For Reference Only.

3.5 Current Versions. Unless otherwise specified by City, any reference to standard specifications, technical specifications, or any City or state codes or regulations means the latest specification, code or regulation in effect at the time the Contract is signed.

3.6 Conformed Copies. If City prepares a conformed set of the Contract Documents following award of the Contract, it will provide Contractor with two hard copy (paper) sets and one copy of the electronic file in PDF format. It is Contractor’s responsibility to ensure that all Subcontractors, including fabricators, are provided with the conformed set of the Contract Documents at Contractor’s sole expense.

3.7 Ownership. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.

Article 4 - Bonds, Indemnity, and Insurance

4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of Award, Contractor is required to provide a payment bond and a performance bond, each in the penal sum of not less than 100 percent of the Contract Price, and each executed by Contractor and its surety using the bond forms included with the Contract Documents.
(A) Surety. Each bond must be issued and executed by a surety admitted in California. If an issuing surety cancels the bond or becomes insolvent, within seven days following written notice from City, Contractor must substitute a surety acceptable to City. If Contractor fails to substitute an acceptable surety within the specified time, City may, at its sole discretion, withhold payment from Contractor until the surety is replaced to City’s satisfaction, or terminate the Contract for default.
(B) Supplemental Bonds for Increase in Contract Price. If the Contract Price increases during construction by five percent or more over the original Contract Price, Contractor must provide supplemental or replacement bonds within ten days of written notice from City pursuant to this Section, covering 100% of the increased Contract Price and using the bond forms included with the Contract Documents.

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4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend, and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and consultants, (individually, an “Indemnitee,” and collectively the “Indemnitees”) from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation of Contractor under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. This indemnity requirement applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s bid for the Contract. Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of this Contract. City will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code Section 9201.

Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract.

4.3 Insurance. No later than ten days following issuance of the Notice of Award, Contractor must procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements acceptable to City. The required insurance must cover the activities of Contractor and its Subcontractors relating to or arising from the performance of the Work, and must remain in full force and effect at all times during the period covered by the Contract through the date of City’s acceptance of the Project. 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. If Contractor fails to provide any of the required coverage in full compliance with the requirements of the Contract Documents, City may, at its sole discretion, purchase such coverage at Contractor’s expense and deduct the cost from payments due to Contractor, or terminate the Contract for default.

Contractor further understands that City reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to Contractor, at any time as deemed necessary to protect the interests of City. The procurement of the required insurance will not be construed to limit Contractor's liability under this Contract or to fulfill Contractor's indemnification obligations under this Contract.
(A) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. If the City’s Risk Manager determines that the deductibles and/or self-insured

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retentions are unacceptably high, at City’s option, Contractor must either reduce or eliminate the deductibles and/or self-insured retentions as they apply to City and all required Additional Insured; or must provide a financial guarantee, to City’s satisfaction, guaranteeing payment of losses and related investigation, claim administration, and legal expenses. (B) Policies and Limits. The following insurance policies and limits are required for this Contract unless otherwise specified in the Special Conditions:
(1) Commercial General Liability Insurance (“CGL”). Contractor shall maintain CGL and must include coverage for liability arising from Contractor’s or its Subcontractor’s acts or omissions in the performance of the Work against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) two million dollars ($2,000,000.00) combined single limit each occurrence and either a general aggregate limit of four million dollars ($4,000,000.00) or a general aggregate limit of two million dollars ($2,000,000.00) as applied on a “per project” or “per location” basis, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
a. CGL policy may not exclude explosion, collapse,
underground excavation hazard, or removal of lateral
support.
b. CGL policy must include contractor’s protected coverage, blanket contractual, and completed operations.
(2) Builder’s Risk Insurance: The Builder’s Risk Insurance policy must be issued on occurrence basis, for all-risk coverage (including Flood and Earthquake) on a one hundred percent (100%) completed value basis on the insurable portion of the Project for the benefit of City.
(3) Workers’ Compensation Insurance and Employer’s
Liability: Contractor shall maintain Workers Compensation coverage, as required by law. The policy must comply with the requirements of the California Workers’ Compensation
Insurance and Safety Act and provide protection 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 Contractor under Contractor’s

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combined insurance policies (including any excess or “umbrella” policies), whichever is greater. If Contractor is self-insured, Contractor must provide its Certificate of Permission to SelfInsure, duly authorized by the Department of Industrial Relations.
(4) Automobile Liability: Contractor shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if Contractor does not own automobiles, then Contractor 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, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
(5) Pollution (Environmental) Liability: If the performance of Contractor’s work or service under this Contract involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, Contractor shall procure and maintain Pollution Liability covering Contractor's liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Contract. 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 Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
(6) Professional Liability:
a. If the performance of Contractor’s work or service under this Contract involves professional and/or technical services (examples include, but are not limited to, architects,
engineers, land surveyors, legal services, and appraisers), Contractor 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 Contractor under Contractor’s combined
insurance policies (including any excess or “umbrella”

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policies), whichever is greater. Further, if Contractor maintains a claims-made policy, Contractor shall provide written evidence of such insurance to City for at least five (5) years after the completion of work performed under this Contract.
b. If the performance of Contractor’s work or service under this Contract relates to Information Technology or related
services (examples include, but are not limited to computer programmers, hardware engineers, or other systems
consultants), Contractor 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 Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater. (C) Required Endorsements. Contractor must provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:
(1) For all Policies except Builder’s Risk and Professional Liability:
a. “Waiver of Subrogation” endorsements providing that the carrier agrees to waive any right of subrogation it may have against the City of Morgan Hill and the City’s elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.
(2) General Liability, Automobile, and Pollution Liability:
a. “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 and at least as broad as ISO Form CG 20 37 for completed operations.

b. “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.
(3) General Liability:

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a. “Separation of Insureds” endorsements stating that the inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
(D) Subcontractors. Contractor must ensure that each Subcontractor is required to maintain the same insurance coverage required under this Section 4.3, with respect to its performance of Work on the Project, including those requirements related to the additional insureds and waiver of subrogation. Contractor must confirm that each Subcontractor has complied with requirements as outlined herein. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.
(E) Qualification of Insurers. All insurance required pursuant to this Contract 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 “VIII” or better. (F) Certificates. Contractor must 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, CONSULTANT shall promptly furnish CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to Contractor’s Contract with City shall be reduced, canceled, allowed to expire, or materially changed except after thirty (30) days' notice by the insurer to City, unless due to non-payment of premiums, in which case ten (10) days written notice must be made to City. Certificates, including renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address as follows:

City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037
(G) Contractor’s Responsibilities. This Section 4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage. Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments,

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deductibles, or self-insured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage.

Article 5 - Contract Time

5.1 Time is of the Essence. Time is of the essence in Contractor’s performance and completion of the Work, and Contractor must diligently prosecute the Work and complete it within the Contract Time. (A) General. Contractor must commence the Work on the date indicated in the Notice to Proceed, and must fully complete the Work in strict compliance with all requirements of the Contract Documents and within the Contract Time. Contractor may not begin performing the Work before the date specified in the Notice to Proceed.
(B) Authorization. Contractor is not entitled to compensation or credit for any Work performed before the date specified in the Notice to Proceed, with the exception of any schedules, submittals, or other requirements, if any, that must be provided or performed before issuance of the Notice to Proceed
(C) Rate of Progress. Contractor and its Subcontractors must, at all times, provide workers, materials, and equipment sufficient to maintain the rate of progress necessary to ensure full completion of the Work within the Contract Time. If City determines that Contractor is failing to prosecute the Work at a sufficient rate of progress, City may, in its sole discretion, direct Contractor to provide additional workers, materials, or equipment, or to work additional hours or days without additional cost to City, in order to achieve a rate of progress satisfactory to City. If Contractor fails to comply with City’s directive in this regard, City may, at Contractor’s expense, separately contract for additional workers, materials, or equipment or use City’s own forces to achieve the necessary rate of progress. Alternatively, City may terminate the Contract based on Contractor’s default.

5.2 Schedule Requirements. Contractor must prepare all schedules using standard, commercial scheduling software acceptable to Engineer, and must provide the schedules in electronic and paper form as requested by the Engineer. In addition to the general scheduling requirements set forth below, Contractor must also comply with any scheduling requirements included in the Special Conditions or in the Technical Specifications. (A) Baseline (As-Planned) Schedule. Within ten calendar days following City’s issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed), Contractor must submit to City for

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review and acceptance a baseline as-planned schedule using critical path methodology showing in detail how Contractor plans to perform and fully complete the Work within the Contract Time including labor, equipment, materials and fabricated items. The baseline schedule must show the order of the major items of Work and the dates of start and completion of each item, including when the materials and equipment will be procured.

The schedule must also include the work of all trades reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity.
(1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers. Contractor must also retain documentation of the purchase order date(s).
(B) City’s Review of Schedules. City will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven days, must correct the schedule to address the exceptions. City’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for Contractor’s unexcused failure to do so.
(C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and three week look-ahead schedule, in the format specified by City, for review and acceptance with each application for a progress payment or when otherwise specified by City, until completion of the Work.

The updated progress schedule must show: how the actual progress of the Work as constructed to date compares to the baseline schedule; reflect any proposed changes in the construction schedule or method of operations, including to achieve Project milestones within the Contract Time; and identify any actual or potential impacts to the critical path.

Contractor must also submit periodic reports to City of any changes in the projected material or equipment delivery dates for the Project.

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(1) Float. The progress schedule must show early and late completion dates for each task. The number of days between those dates will be designated as the “float.” Any float belongs to the Project and may be allocated by the Engineer to best serve timely completion of the Project.
(2) Failure to Submit Schedule. Reliable, up-to-date schedules are essential to efficient and cost-effective administration of the Project and timely completion. If Contractor fails to submit a schedule within the time periods specified in this Section, or submits a schedule to which City has noted exceptions that are not corrected, City may withhold up to ten percent from payment(s) otherwise due to Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code Section 7102.
(D) Recovery Schedule. If City determines that the Work is more than one week behind schedule, within seven days following written notice of such determination, Contractor must submit a recovery schedule, showing how Contractor intends to perform and complete the Work within the Contract Time, based on actual progress to date.
(E) Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current City-accepted schedule unless otherwise directed by City. City’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect City’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.
(F) Posting. Contractor must at all times prominently post a copy of the most current City-accepted progress or recovery schedule in its on-site office.
(G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.

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(H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding City of Morgan Hill-observed holidays, during City’s normal business hours, except as expressly provided in the Special Conditions, or as authorized in writing by City. City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.

5.3 Delay and Extensions of Contract Time.
(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must promptly notify the Engineer in writing, regardless of the nature or cause of the delay, so that City has a reasonable opportunity to mitigate or avoid the delay. (B) Excusable Delay. The Contract Time may be extended if Contractor encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond Contractor’s control, and which Contractor could not have avoided or mitigated through reasonable care, planning, foresight, and diligence, provided that Contractor is otherwise fully performing its obligations under the Contract Documents. Grounds for Excusable Delay may include fire, natural disasters, including earthquake or unusually severe weather, acts of terror or vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions of third parties, encountering unforeseeable hazardous materials, unforeseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis.
(C) Weather Delays. A “Weather Delay Day” is a Working Day during which Contractor and its forces, including Subcontractors, are unable to perform more than 40% of the critical path Work scheduled for that day due to adverse weather conditions which impair the ability to safely or effectively perform the scheduled critical path Work that day. Adverse weather conditions may include rain, saturated soil, and Project site cleanup required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, City-approved schedule. Contractor will be entitled to a noncompensable extension of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month as determined by reliable records, including monthly rainfall averages, for the

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preceding ten years (or as otherwise specified in the Special Conditions or Specifications).
(1) Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time.
(2) Contractor will not be entitled to an extension of time for a Weather Delay Day to the extent Contractor is responsible for concurrent delay on that day.
(3) Contractor must take reasonable steps to mitigate the consequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Site, materials, and equipment.
(D) Non-Excusable Delay. Delay which Contractor could have avoided or mitigated through reasonable care, planning, foresight and diligence is “Non-Excusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for Non-Excusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay. Non-Excusable Delay includes delay caused by:
(1) weather conditions which are normal for the location of the Project, as determined by reliable records, including monthly rainfall averages, for the preceding ten years;
(2) Contractor’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time;
(3) Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services necessary for completion of the Work within the Contract Time;
(4) foreseeable conditions which Contractor could have
ascertained from reasonably diligent inspection of the Project site or review of the Contract Documents or other information provided or available to the Contractor;
(5) Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers.
(6) performance or non-performance by Contractor’s
Subcontractors or suppliers;

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(7) the time required to respond to excessive RFIs (see Section

2.5(G));
(8) delayed submission of required submittals, or the time required for correction and resubmission of defective submittals; (9) time required for repair of, re-testing, or re-inspection of defective Work;
(10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or
(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.
(E) Compensable Delay. Pursuant to Public Contract Code Section 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”). Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay. Delay due to causes that are beyond the control of either City or Contractor, including Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section

7.18, or the actions or inactions of third parties or other agencies, is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay. (F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above.

Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit.
(G) Request for Extension of Contract Time or Recoverable Costs.

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days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to the Recoverable Costs will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request procedures in Article 6, below. Strict compliance with these requirements is necessary to ensure that any delay or consequences of delay may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Recoverable Costs that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived. (1) Required Contents. The request must include a detailed description of the cause(s) of the delay, and must also describe the measures that Contractor has taken to mitigate the delay and/or its effects, including efforts to mitigate the cost impact of the delay, such as by workforce management, or by a change in sequencing.

If the delay is still ongoing at the time the request is submitted, the request should also include Contractor’s plan for continued mitigation of the delay or its effects.
(2) Delay Days and Costs. The request must specify the number of days of Excusable Delay claimed, or provide a realistic estimate if the duration of the delay is not yet known. If the Contractor believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amount of and basis for the Recoverable Costs that are claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or cost must be updated in writing and submitted with all required supporting documentation as soon as the actual time and cost is known. The maximum extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay exceeds any concurrent Non-Excusable
Delay. Contractor is entitled to an extension of Contract Time, or compensation for Recoverable Costs, only if, and only to the extent that, such delay will unavoidably delay Final Completion. (3) Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual impacts, including scheduling and cost impacts, with a time impact analysis using critical path methodology, and demonstrating the unavoidable delay to Final Completion. The time impact analysis must be submitted in a form or format acceptable to City.

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(4) Burden of Proof. Contractor has the burden of proving that the delay was an Excusable or Compensable Delay, as defined above; Contractor has fully complied with its scheduling obligations in Section 5.2, Schedule Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Final Completion, and any Recoverable Costs claimed by Contractor were actually incurred and were reasonable under the
circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the waiver, alteration, or limitation of the applicability of Public Contract Code Section 7102.
(6) No Waiver. Any grant of an extension of Contract Time or compensation for Recoverable Costs due to Compensable Delay will not operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay.
(7) Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or compensation for Recoverable Costs, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work.

Contractor’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract Time or compensation for Recoverable Costs is to comply with the dispute resolution provisions set forth in Article 12, below.

5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code section 7203, if Contractor fails to achieve Final Completion within the Contract Time, City will charge Contractor in the amount specified in the Contract for each calendar day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized delegee.
(A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable or Compensable Delay, as set forth above. (B) Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents.

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(C) Setoff. City is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, City is entitled to recover the balance from Contractor or its performance bond surety.
(D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Final Completion does not constitute City’s acceptance of the Project and will not operate as a waiver of City’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Final Completion.
(E) Other Remedies. City’s right to liquidated damages under this Section applies only to damages arising from Contractor’s Non-Excusable Delay or failure to complete the Work within the Contract Time. City retains its right to pursue all other remedies under the Contract for other types of damage, including damage to property or persons, costs or diminution in value from defective materials or workmanship, costs to repair or complete the Work, or other liability caused by Contractor.

Article 6 - Contract Modification

6.1 Contract Modification. Subject to the limited exception set forth in subsection (D) below, any change in the Work or the Contract Documents, including the Contract Price or Contract Time, will not be a valid and binding change to the Contract unless it is formalized in a Change Order, including a “no-cost” Change Order or a unilateral Change Order.

Changes in Work will not operate to release, limit, or abridge Contractor’s warranty obligations pursuant to Article 11 or any obligations of Contractor’s bond sureties.
(A) City-Directed Changes. City may direct changes in the scope or sequence of Work or the requirements of the Contract Documents, without invalidating the Contract. Such changes may include Extra Work as set forth in subsection (C) below, or deletion or modification of portions of the Work. Contractor must promptly comply with City-directed changes in the Work in accordance with the intent of the original Contract Documents, even if Contractor and City have not yet reached agreement as to adjustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code Section 7101, except to the extent authorized in

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advance by City in writing, and subject to any applicable procedural requirements for submitting a proposal for value engineering cost savings. (B) Disputes. In the event of a dispute over entitlement to or the amount of a change in Contract Time or a change in Contract Price related to extra City-directed change in the Work, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute. Likewise, in the event that City and Contractor dispute whether a portion or portions of the Work are already required by the Contract Documents or constitute Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract Documents, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute, as directed by City. If Contractor refuses to perform the Work in dispute, City may, acting in its sole discretion, elect to delete the Work from the Contract and reduce the Contract Price accordingly, and self-perform the Work or direct that the Work be performed by others. Alternatively, City may elect to terminate the Contract for convenience or for cause.

Contractor’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Work is to comply with the dispute resolution provisions set forth in Article 12, below.
(C) Extra Work. City may direct Contractor to perform Extra Work related to the Project. Contractor must promptly perform any Extra Work as directed or authorized by City in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement on adjustments to the Contract Price or Contract Time for such Extra Work. If Contractor believes it is necessary to perform Extra Work due to changed conditions, Contractor must promptly notify the Engineer in writing, specifically identifying the Extra Work and the reason(s) the Contractor believes it is Extra Work. This notification requirement does not constitute a Change Order request pursuant to Section 6.2, below. Contractor must maintain detailed daily records that itemize the cost of each element of Extra Work, and sufficiently distinguish the direct cost of the Extra Work from the cost of other Work performed. For each day that Contractor performs Extra Work, or Work that Contractor contends is Extra Work, Contractor must submit no later than the following Working Day, a daily report of the Extra Work performed that day and the related costs, together with copies of certified payroll, invoices, and other documentation substantiating the costs (“Extra Work Report”). The Engineer will make any adjustments to Contractor’s Extra Work Report(s) based on

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the Engineer’s records of the Work. When an Extra Work Report(s) is agreed on and signed by both City and Contractor, the Extra Work Report(s) will become the basis for payment under a duly authorized and signed Change Order. Failure to submit the required documentation by close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day. (D) Minor Changes and RFIs. Minor field changes, including RFI replies from City, that do not affect the Contract Price or Contract Time and that are approved by the Engineer acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time.
(E) Remedy for Non-Compliance. Contactor’s failure to promptly comply with a City-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, City may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.

6.2 Contractor Change Order Requests. Contractor must submit a request or proposal for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request or proposal.
(A) Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Engineer within ten calendar days of the date that Contractor first encounters the circumstances, information or conditions giving rise to the Change Order request, even if the total amount of the requested change in the Contract Price or impact on the Contract Time is not yet known at that time. If City requests that Contractor propose the terms of a Change Order, unless otherwise specified in City’s request, Contractor must provide the Engineer with a written proposal for the change in the Contract Price or Contract Time within five working days of receiving City’s request, in a form satisfactory to the Engineer.
(B) Required Contents. Any Change Order request or proposal submitted by Contractor must include a complete breakdown of actual or estimated costs and credits, and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts, and if applicable, Extra Work Reports. Any estimated cost must be updated in writing as soon as the actual amount is known.

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(C) Required Documentation. All claimed costs must be fully documented, and any related request for an extension of time or delayrelated costs must be included at that time and in compliance with the requirements of Article 5 of the General Conditions. Upon request, Contractor must permit City to inspect its original and unaltered bidding records, subcontract agreements, subcontract change orders, purchase orders, invoices, or receipts associated with the claimed costs. (D) Required Form. Contractor must use City’s form(s) for submitting all Change Order requests or proposals, unless otherwise specified by City.
(E) Certification. All Change Order requests must be signed by Contractor and must include the following certification:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Change Order request are true and correct. Contractor warrants that this Change Order request is comprehensive and complete as to the Work or Changes referenced herein, and agrees that any costs, expenses, or time extension requests not included herein are deemed waived.”

6.3 Adjustments to Contract Price. The amount of any increase or decrease in the Contract Price will be determined based on one of the following methods listed below, in the order listed with unit pricing taking precedence over the other methods. Markup applies only to Cityauthorized time and material Work, and does not apply to any other payments to Contractor. For Work items or components that are deleted in their entirety, Contractor will only be entitled to compensation only for those direct, actual, and documented costs (including restocking fees), reasonably incurred before Contractor was notified of the City’s intent to delete the Work, with no markup for overhead, profit, or other indirect costs.
(A) Unit Pricing. Amounts previously provided by Contractor in the form of unit prices, either in a bid schedule or in a post-award schedule of values pursuant to Section 8.1 Schedule of Values, will apply to determine the price for the affected Work, to the extent applicable unit prices have previously been provided for that type of Work. No additional markup for overhead, profit, or other indirect costs. will be added to the calculation. (B) Lump Sum. A mutually agreed upon, all-inclusive lump sum price for the affected Work with no additional markup for overhead, profit, or other indirect costs;

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(C) Time and Materials. On a time and materials basis, if and only to the extent compensation on a time and materials basis is expressly authorized by City in advance of Contractor’s performance of the Work and subject to any not-to-exceed limit. Time and materials compensation for increased costs or Extra Work (but not decreased costs or deleted Work), will include allowed markup for overhead, profit, and other indirect costs, and which may include a not-to-exceed limit, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of 15%:
(1) All direct labor costs provided by the Contractor, excluding superintendence, project management, or administrative costs plus 15 percent markup;
(2) All direct material costs provided by the Contractor, including sales tax, plus 15 percent markup;
(3) All direct plant and equipment rental costs provided by the Contractor, plus 15 percent markup;
(4) All direct additional subcontract costs plus ten percent markup for Work performed by Subcontractors; and
(5) Increased bond or insurance premium costs computed at 1.5% percent of total of the previous four sums.

6.4 Unilateral Change Order. If the parties dispute the terms of a proposed Change Order, including disputes over the amount of compensation or extension of time that Contractor has requested, the value of deleted or changed Work, what constitutes Extra Work, or quantities used, City may elect to issue a unilateral Change Order, directing performance of the Work, and authorizing a change in the Contract Price or Contract Time for the adjustment to compensation or time that the City believes is merited.

Contractor’s sole recourse to dispute the terms of a unilateral Change Order is to submit a timely Claim pursuant to Article 12, below.

6.5 Non-Compliance Deemed Waiver. Contractor waives its entitlement to any increase in the Contract Price or Contract Time if Contractor fails to fully comply with the provisions of this Article. Contractor will not be paid for unauthorized Extra Work.

Article 7 - General Construction Provisions

7.1 Permits, Fees, Business License, and Taxes.

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(A) Permits, Fees, and City Business License. Contractor must obtain and pay for all permits, fees, or licenses required to perform the Work, including a City business license. Contractor must cooperate with and provide notifications to all government agencies with jurisdiction over the Project, as may be required. Contractor must provide City with copies of all records of permits and permit applications, payment of required fees, and any licenses required for the Work.
(B) Taxes. Contractor must pay for all taxes on labor, material and equipment, except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.

7.2 Temporary Facilities. Contractor must provide, at Contractor’s sole expense, any and all temporary facilities for the Project, including an onsite staging area for materials and equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to safely perform the Work along with any incidental utility services. The location of all temporary facilities must be approved by the City prior to installation. Temporary facilities must be safe and adequate for the intended use, and installed and maintained in accordance with Laws and the Contract Documents. Contractor must fence and screen the Project site and, if applicable, any separate Worksites, including the staging area, and its operation must minimize inconvenience to neighboring properties. Additional provisions pertaining to temporary facilities may be included in the Specifications or Special Conditions.
(A) Utilities. Contractor must install and maintain the power, water, sewer and all other utilities required for the Project site, including the piping, wiring, internet and Wi-Fi connections, and any related equipment necessary to maintain the temporary facilities.
(B) Removal and Repair. Contractor must promptly remove all such temporary facilities when they are no longer needed or upon completion of the Work, whichever comes first. Contractor must promptly repair any damage to City’s property or to other property caused by the installation, use, or removal of the temporary facilities, and must promptly restore the property to its original or intended condition.

7.3 Noninterference and Site Management. Contractor must avoid interfering with City’s use of its property at or adjacent to the Project site, including use of roadways, entrances, parking areas, walkways, and structures. Contractor must also minimize disruption of access to private property in the Project vicinity. Contractor must coordinate with affected property owners, tenants, and businesses, and maintain some vehicle and pedestrian access to their residences or properties at all times. Temporary

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access ramps, fencing or other measures must be provided as needed.

Before blocking access to a private driveway or parking lot, Contractor must provide effective notice to the affected parties at least 48 hours in advance of the pending closure and allow them to remove vehicles.

Private driveways, residences and parking lots must have access to a roadway during non-Work hours.
(A) Offsite Acquisition. Unless otherwise provided by City, Contractor must acquire, use and dispose of, at its sole expense, any Worksites, licenses, easements, and temporary facilities necessary to access and perform the Work.
(B) Offsite Staging Area and Field Office. If additional space beyond the Project site is needed, such as for the staging area or the field office, Contractor may need to make arrangements with the nearby property owner(s) to secure the space. Before using or occupying any property owned by a third party, Contractor must provide City with a copy of the necessary license agreement, easement, or other written authorization from the property owner, together with a written release from the property owner holding City harmless from any related liability, in a form acceptable to the City Attorney.
(C) Traffic Management. Contractor must provide traffic management and traffic controls as specified in the Contract Documents, as required by Laws, and as otherwise required to ensure public and worker safety, and to avoid interference with public or private operations or the normal flow of vehicular, bicycle, or pedestrian traffic.

7.4 Signs. No signs may be displayed on or about City’s property, except signage which is required by Laws or by the Contract Documents, without City’s prior written approval as to size, design, and location.

7.5 Project Site and Nearby Property Protections.
(A) General. Contractor is responsible at all times, on a 24-hour basis and at its sole cost for protecting the Work, the Project site, and the materials and equipment to be incorporated into the Work until the City has accepted the Project, excluding any exceptions to acceptance, if any.

Except as specifically authorized by City, Contractor must confine its operations to the area of the Project site indicated in the Plans and Specifications. Contractor is liable for any damage caused by Contractor or its Subcontractors to the Work, City’s property, the property of adjacent or nearby property owners and the work or personal property of other contractors working for City, including damage related to Contractor’s failure to adequately secure the Work or any Worksite.

AC Rec Pool Replastering Project GENERAL CONDITIONS
CSD2024-008 Page 47
Version: July 2023
(1) Subject to City’s approval, Contractor will provide and install safeguards to protect the Work; any Worksite, including the Project site; City’s real or personal property and the real or personal property of adjacent or nearby property owners, including plant and tree protections.
(2) City wastewater systems may not be interrupted. If the Work disrupts existing sewer facilities, Contractor must immediately notify City and establish a plan, subject to City’s approval, to convey the sewage in closed conduits back into the sanitary sewer system.

Sewage must not be permitted to flow in trenches or be covered by backfill.
(3) Contractor must remove with due care, and store at City’s request, any objects or material from the Project site that City will salvage or reuse at another location.
(4) If directed by Engineer, Contractor must promptly repair or replace any property damage, as specified by the Engineer.

However, acting in its sole discretion, City may elect to have the property damage remedied otherwise, and may deduct the cost to repair or replace the damaged property from payment otherwise due to Contractor.
(5) Contractor will not permit any structure or infrastructure to be loaded in a manner that will damage or endanger the integrity of the structure or infrastructure.
(B) Securing Project Site. After completion of Work each day, Contractor must secure the Project site and, to the extent feasible, make the area reasonably accessible to the public unless City approves otherwise. All excess materials and equipment not protected by approved traffic control devices must be relocated to the staging area or demobilized. Trench spoils must be hauled off the Project site daily and open excavations must be protected with steel plates. Contractor and Subcontractor personnel may not occupy or use the Project site for any purpose during non-Work hours, except as may be provided in the Contract Documents or pursuant to prior written authorization from City. (C) Unforeseen Conditions. If Contractor encounters facilities, utilities, or other unknown conditions not shown on or reasonably inferable from the Plans or apparent from inspection of the Project site, Contractor must immediately notify the City and promptly submit a Request for Information to obtain further directions from the Engineer. Contractor must avoid taking any action which could cause damage to the facilities or utilities pending further direction from Engineer. The Engineer’s written