Agenda packet — Morgan Hill City Council, June 19, 2024 (part 3 of 4)

6 Revised June 2024
MANNER IN WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

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

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

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

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

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

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

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

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Address of CONSULTANT is as follows:

Hanna-Brunetti
7651 Eigleberry Street
Gilroy, CA 95020
Address of CITY is as follows:

Maria Angeles
Senior Civil Engineer
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:

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

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

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

16. Maintenance of Records.

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

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

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

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

Should CONSULTANT discover any conditions materially differing from those inherent in the work or DocuSign Envelope ID: AB88A0B8-212C-49EC-8512-D6AE2C6E0E2F

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as represented by CITY, it shall immediately inform CITY and shall not proceed, except at CONSULTANT'S risk, until written instructions are received from CITY.

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

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

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

21. Defense and Indemnification.

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

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

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

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

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

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

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

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

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

25. Notice of Security and/or Privacy Incident. If CONSULTANT, or its subconsultant, suspect, discover or are notified of a data security incident or potential breach of security and/or privacy relating to CITY PII, PHI and/or PCI, CONSULTANT shall immediately, but in no event later than forty-eight (48) hours from suspicion, discovery or notification of the incident or potential breach, notify CITY of such incident or potential breach. CONSULTANT shall, upon CITY’s request, investigate such incident or potential breach, inform the CITY of the results of any such investigation, and assist the CITY in maintaining the confidentiality of such information. In addition to the foregoing, CONSULTANT shall provide CITY with any assistance necessary to comply with any state and/or federal laws requiring the provision of notice of any privacy incident or security breach with respect to any CITY PII, PHI and/or PCI to the affected or impacted individuals and/or organizations, in addition to any notification to applicable state and federal agencies. CONSULTANT agrees that it shall reimburse CITY for all expenses, costs, attorneys’ fees, and resulting fines, penalties, and damages associated with such incident, breach, investigation and/or notification.

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.

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transferees of CONSULTANT in the same manner as if those successors in interest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.

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

29. 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.
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[Signatures on Next Page]
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30. Authority to Execute. Those individuals who are signing this Agreement on behalf of entities represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.

IN WITNESS THEREOF, these Parties have executed this Agreement on the day and year shown below.

AS SET FORTH IN CA. CORP. CODE § 313, TWO SIGNATURES ARE REQUIRED FOR CALIFORNIA CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.

ATTEST: CITY OF MORGAN HILL

City Clerk/Deputy City Clerk City Manager
Michelle Bigelow

Christina J. Turner
Print Name Print Name

Date: Date:

APPROVED AS TO FORM: HANNA-BRUNETTI

City Attorney By:

Donald A. Larkin
Amanda Musy-Verdel,
Chief Executive Officer and Chief
Financial Officer
Print Name
Date:

Print Name and Title of Signer.

If Corporate: Chairman, President or Vice
President
Date:

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EXHIBIT A

SCOPE OF SERVICES
The following are the types of tasks that are included in the CONSULTANT'S scope of services:

1. Review of tract maps and parcel maps for conformance with the Subdivision Map Act. Provide stamp and signature on maps and other documents, as necessary, as the Acting City Surveyor.

2. Review of land surveying aspects of tentative maps for conformance with City standards as part of the City’s entitlement process.

3. Review of lot line adjustments, certificates of compliance, vacation or abandonment of public rightof-way and public easements, plat maps, legal descriptions, and closure calculations for technical accuracy.

4. Perform traditional topographic surveys to determine locations and elevations of existing improvements, structures, and topographic features.

5. Develop legal descriptions and plat maps, and other survey-related tasks as needed.

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EXHIBIT B

SCHEDULE OF COMPENSATION RATES
CONSULTANT'S services will be billed on a time-and-materials basis according to the Standard Hourly Rates shown below for fiscal years 2024, 2025, and 2026. Any changes to the rate schedule shall be reflected in a written amendment between the Parties.

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EXHIBIT C

SCHEDULE OF PERFORMANCE
CONSULTANT'S services will be on an as needed, on-call basis.

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EXHIBIT D
Third Party Data Use Agreement

1. CONSULTANT agrees that it shall not use any information provided by CITY for any purpose other than for work performed pursuant to this Agreement without the prior express written consent of CITY. CONSULTANT also hereby acknowledges that the data delivered by CITY is for use by CONSULTANT only, and is not to be released to any other party by any means whatsoever, including the Internet, without prior written consent of CITY. CONSULTANT shall provide written notice to CITY of any subcontractor with whom Geographic Information System data (GIS DATA) is shared for purposes of performing work under this Agreement.

2. All data and files are intended for the use within the ordinary course of users’ business and may not be sold, placed on the internet or otherwise provided to other parties. All data shall comply with all statutes such as California State Law, Government Code section 7928.205 which prohibits any state or local agency from posting the home address or telephone number of any “elected or appointed official,” residing spouse, or child on the internet, and Revenue and Taxation Code sections 408,408.1, 408.3, and 409 permitting the County Assessor to collect fees for certain information.

3. CITY, as rightful owners, shall retain all rights, title, interest, and copyright of the data. Any products using the GIS DATA must give credit to CITY as the source of the information. Any and all derivative products of the GIS DATA are owned by CITY and may not be used for any purpose other than performing work pursuant to this Agreement without prior written permission of CITY.

All derivative products and resulting data shall be provided to CITY Project Manager and CITY GIS Manager at the completion of the work.

4. CONSULTANT and CITY understand and agree that the information provided pursuant to this Agreement is the product of professional services paid for by CITY and shall remain property of CITY. CONSULTANT may retain copies, including copies stored on magnetic media, only for information and reference, in connection with CONSULTANT'S use for work performed for CITY.

5. All of the above terms and conditions apply to any subcontractor retained by CONSULTANT.

6. In the event of a conflict between the terms and provisions of this Third Party Data Use Agreement and the terms and provisions of the CONSULTANT AGREEMENT, the terms of the CONSULTANT AGREEMENT shall govern and control.

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Certificate Of Completion
Envelope Id: AB88A0B8212C49EC8512D6AE2C6E0E2F Status: Completed Subject: Complete with Docusign: Hanna - Brunetti
Source Envelope:

Document Pages: 15 Signatures: 1 Envelope Originator:

Certificate Pages: 5 Initials: 0 City Clerk's Office
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
17575 Peak Ave
Morgan Hill, CA 95037
[email protected]
IP Address: 35.131.77.142
Record Tracking
Status: Original
6/10/2024 8:37:46 AM
Holder: City Clerk's Office
[email protected]
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: City of Morgan Hill Location: DocuSign Signer Events Signature Timestamp
Amanda Musy Verdel
[email protected]
Security Level: Email, Account Authentication
(None)
Signature Adoption: Drawn on Device
Using IP Address: 71.9.48.60
Sent: 6/10/2024 8:39:51 AM
Viewed: 6/10/2024 8:44:01 AM
Signed: 6/10/2024 8:44:48 AM
Electronic Record and Signature Disclosure:

Accepted: 6/10/2024 8:44:01 AM
ID: 8db51239-3885-45de-bf39-b26a095757c8
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Maria Angeles
[email protected]
Senior Civil Engineer
Security Level: Email, Account Authentication
(None)
Sent: 6/10/2024 8:44:49 AM
Viewed: 6/10/2024 9:58:12 AM
Electronic Record and Signature Disclosure:

Accepted: 9/29/2023 9:18:56 AM
ID: 85a7bb16-5cdd-4f6f-81a2-0e5e8830f210
Angel Echavarria
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: 6/10/2024 8:44:50 AM
Viewed: 6/10/2024 8:48:12 AM
Electronic Record and Signature Disclosure:

Accepted: 5/24/2024 10:56:44 AM
ID: bdcf4ca3-452e-40ae-a03c-88df7eef4f85

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Carbon Copy Events Status Timestamp
Amanda Musy Verdel
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: 6/10/2024 8:44:50 AM
Electronic Record and Signature Disclosure:

Accepted: 6/10/2024 8:44:01 AM
ID: 8db51239-3885-45de-bf39-b26a095757c8
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 6/10/2024 8:39:51 AM
Certified Delivered Security Checked 6/10/2024 8:44:01 AM Signing Complete Security Checked 6/10/2024 8:44:48 AM
Completed Security Checked 6/10/2024 8:44:50 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure

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ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, City of Morgan Hill (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system.

Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.

Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below.

Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below.

Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us.

All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 5/29/2020 4:52:24 PM Parties agreed to: Amanda Musy Verdel, Maria Angeles, Angel Echavarria, Amanda Musy Verdel

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Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us.

How to contact City of Morgan Hill:

You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows:

To contact us by email send messages to: [email protected] To advise City of Morgan Hill of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at [email protected] and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address.

If you created a DocuSign account, you may update it with your new email address through your account preferences.

To request paper copies from City of Morgan Hill
To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email
to [email protected] and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any.

To withdraw your consent with City of Morgan Hill
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:

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i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to [email protected] and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process..

Required hardware and software
The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guidesigning-system-requirements.

Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.

By selecting the check-box next to ‘I agree to use electronic records and signatures’, you confirm that:
 You can access and read this Electronic Record and Signature Disclosure; and  You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and
 Until or unless you notify City of Morgan Hill as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by City of Morgan Hill during the course of your relationship with City of Morgan Hill.

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CONSULTANT AGREEMENT FOR DESIGN PROFESSIONALS

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

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

2. Term of Agreement. This Agreement shall cover services rendered from July 1, 2024 until June 30, 2027 at which time CONSULTANT’S services shall be completed (“Initial Term”). The City Manager is authorized to extend the term of this Agreement for a maximum of two additional one-year extensions (“Extended Term”). Any such extension shall be in writing and signed by both Parties to this Agreement.

3. Scope of Service. The services to be performed by CONSULTANT shall be On-Call Map Review and City Surveyor Services for the Engineering Division as further described in Exhibit A.

4. Compensation. CONSULTANT shall be compensated as follows:

4.1. Amount. $39,000. Total compensation to CONSULTANT under this Agreement during its Initial Term set forth in Section 2 above shall not exceed Thirty Nine Thousand dollars, and shall be billed based on the rate and basis set forth in Exhibit B. The City Manager shall have the authority to increase the maximum compensation allowed to be paid to CONSULTANT during the 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 the amount set forth in Section 4.1.1 below.

4.1.1. Additional Compensation. The City Manager shall have the authority to approve additional compensation in an amount not to exceed $29,000 during the Extended Term, for a combined total maximum compensation amount of $68,000.

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

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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

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

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

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

7.1. Insurance Types and Amounts.

7.1.1. Commercial General Liability (CGL). CONSULTANT shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

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

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

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

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

7.1.5. Professional Liability.

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

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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7.1.5.2. If the performance of CONSULTANT’S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), CONSULTANT shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to CONSULTANT under CONSULTANT’S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

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

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

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

7.2.1.1. “Additionally Insured” - The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds on a form at least as broad as ISO Form CG 20 10 for ongoing operations.

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

7.2.1.3. “Primary and Non-Contributing” - Insurance shall be endorsed to be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20

01. 7.2.2. Workers Compensation.

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

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

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

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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

Certificate Holder address:

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

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

9. Compliance with Law.

9.1. CONSULTANT and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. CONSULTANT and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon any basis prohibited by State or Federal law, including but not limited to, race, color, creed, religion, gender, marital status, age, sexual orientation, national origin, mental disability, physical disability, medical condition, or ancestry, in any activity pursuant to this Agreement.

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

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

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

AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS DISCLOSED ANY FINAL

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

AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS SATISFIED AND COMPLIED WITH – OR HAS REACHED AGREEMENT WITH THE CITY REGARDING THE DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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MANNER IN WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

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

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

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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7 Revised June 2024
Address of CONSULTANT is as follows:

RUGGERI-JENSEN-AZAR
8055 Camino Arroyo
Gilroy, CA 95020
Address of CITY is as follows:

Maria Angeles
Senior Civil Engineer
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:

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

16. Maintenance of Records.

Should CONSULTANT discover any conditions materially differing from those inherent in the work or DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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8 Revised June 2024
as represented by CITY, it shall immediately inform CITY and shall not proceed, except at CONSULTANT'S risk, until written instructions are received from CITY.

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

21. Defense and Indemnification.

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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IN WITNESS THEREOF, these Parties have executed this Agreement on the day and year shown below.

ATTEST: CITY OF MORGAN HILL

City Clerk/Deputy City Clerk City Manager
Michelle Bigelow

Christina J. Turner
Print Name Print Name

Date: Date:

APPROVED AS TO FORM: RUGGERI-JENSEN-AZAR

City Attorney By:

Donald A. Larkin
Arminta Jensen, Executive Vice
President and the Chief Financial
Officer
Print Name
Date:

Print Name and Title of Signer.

If Corporate: Chairman, President or Vice
President
Date:

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B 6/14/2024

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EXHIBIT A

SCOPE OF SERVICES
The following are the types of tasks that are included in the CONSULTANT'S scope of services:

1. Review of tract maps and parcel maps for conformance with the Subdivision Map Act. Provide stamp and signature on maps and other documents, as necessary, as the Acting City Surveyor.

2. Review of land surveying aspects of tentative maps for conformance with City standards as part of the City’s entitlement process.

4. Perform traditional topographic surveys to determine locations and elevations of existing improvements, structures, and topographic features.

5. Develop legal descriptions and plat maps, and other survey-related tasks as needed.

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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EXHIBIT B

SCHEDULE OF COMPENSATION RATES
CONSULTANT'S services will be billed on a time-and-materials basis according to the Standard Hourly Rates shown below. Any changes to the rate schedule shall be reflected in a written amendment between the Parties.

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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EXHIBIT C

SCHEDULE OF PERFORMANCE
CONSULTANT'S services will be on an as needed, on-call basis.

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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1 Updated June 2020

EXHIBIT D
Third Party Data Use Agreement

All derivative products and resulting data shall be provided to CITY Project Manager and CITY GIS Manager at the completion of the work.

5. All of the above terms and conditions apply to any subcontractor retained by CONSULTANT.

DocuSign Envelope ID: 8240574B-2DA9-4990-A4B3-93D8EFAEBD3B

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Certificate Of Completion
Envelope Id: 8240574B2DA94990A4B393D8EFAEBD3B Status: Completed Subject: Complete with Docusign: RJA - City Consultant Agreement for Design Professionals Source Envelope:

Document Pages: 15 Signatures: 1 Envelope Originator:

Security Level: Email, Account Authentication
(None) Signature Adoption: Pre-selected Style
Using IP Address: 47.47.91.170
Sent: 6/10/2024 8:45:27 AM
Viewed: 6/14/2024 9:47:50 AM
Signed: 6/14/2024 9:49:37 AM
Electronic Record and Signature Disclosure:

Accepted: 6/14/2024 9:47:50 AM
ID: a9451b99-05b6-48e6-9c83-9b7a3da505c7
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Maria Angeles
[email protected]
Senior Civil Engineer
Security Level: Email, Account Authentication
(None)
Sent: 6/14/2024 9:49:38 AM
Viewed: 6/14/2024 9:58:15 AM
Electronic Record and Signature Disclosure:

Accepted: 9/29/2023 9:18:56 AM
ID: 85a7bb16-5cdd-4f6f-81a2-0e5e8830f210
Angel Echavarria
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: 6/14/2024 9:49:38 AM
Electronic Record and Signature Disclosure:

Accepted: 5/24/2024 10:56:44 AM
ID: bdcf4ca3-452e-40ae-a03c-88df7eef4f85

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Carbon Copy Events Status Timestamp
Arminta Jensen
[email protected]
Exec. V. P.

Security Level: Email, Account Authentication
(None)
Sent: 6/14/2024 9:49:39 AM
Electronic Record and Signature Disclosure:

Accepted: 6/14/2024 9:47:50 AM
ID: a9451b99-05b6-48e6-9c83-9b7a3da505c7
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 6/10/2024 8:45:27 AM
Certified Delivered Security Checked 6/14/2024 9:47:50 AM Signing Complete Security Checked 6/14/2024 9:49:37 AM
Completed Security Checked 6/14/2024 9:49:39 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure

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All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 5/29/2020 4:52:24 PM Parties agreed to: Arminta Jensen, Maria Angeles, Angel Echavarria, Arminta Jensen

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How to contact City of Morgan Hill:

If you created a DocuSign account, you may update it with your new email address through your account preferences.

To withdraw your consent with City of Morgan Hill
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:

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1 Negotiated June 2024

CONSULTANT AGREEMENT FOR DESIGN PROFESSIONALS
MNS ENGINEERS, INC.

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

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

2. Term of Agreement. This Agreement shall cover services rendered from July 1, 2024 until June 30, 2027 (“Initial Term”) at which time CONSULTANT’S services shall be completed. The City Manager is authorized to extend the term of this Agreement for a maximum of two additional one-year extensions (“Extended Term”). Any such extension shall be in writing and signed by both Parties to this Agreement.

3. Scope of Service. The services to be performed by CONSULTANT shall be On-Call Map Review and City Surveyor Services for the Engineering Division as further described in Exhibit A.

4. Compensation. CONSULTANT shall be compensated as follows:

4.1. Amount. $39,000. Total compensation to CONSULTANT under this Agreement during its initial term set forth in Section 2 above shall not exceed Thirty Nine Thousand dollars, and shall be billed based on the rate and basis set forth in Exhibit B. The City Manager shall have the authority to increase the maximum compensation allowed to be paid to CONSULTANT during that Extended Term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement, and provided further that in no event shall such maximum compensation allowed for the extended term exceed the amount set forth in Section 4.1.1 below.

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7.1. Insurance Types and Amounts.

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combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

7.1.5. Professional Liability.

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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

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

01. 7.2.2. Workers Compensation.

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

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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Certificate Holder address:

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

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

9. Compliance with Law.

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

AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS DISCLOSED ANY FINAL

AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS SATISFIED AND COMPLIED WITH – OR HAS REACHED AGREEMENT WITH THE CITY REGARDING THE DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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MANNER IN WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.

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

11. Confidentiality. All data, documents, or other information received by CONSULTANT from CITY or prepared in connection with CONSULTANT’S services under this Agreement are deemed confidential and shall not be disclosed to any third party by CONSULTANT without prior written consent by CITY. Confidential shall not include information or materials that: (1) were, on the effective date of this Agreement, generally known to the public; (2) become generally known to the public after the effective date of this Agreement other than as a result of the act or omission of CONSULTANT; (3) were rightfully known to CONSULTANT prior to receipt from CITY; (4) are or were disclosed by the CITY to a third party generally without restriction on disclosure; or (5) are requested by any court or government agency pursuant to written court order, subpoena, regulation, or process of law.

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

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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Address of CONSULTANT is as follows:

MNS ENGINEERS, INC.
2025 Gateway Place, Suite 328
San Jose, CA 95110
Address of CITY is as follows:

Maria Angeles
Senior Civil Engineer
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:

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

16. Maintenance of Records.

16.3. Ownership of Work Product. Except for CONSULTANT’s pre-existing concepts, ideas, materials, data and standard details, all documents or other information developed or received by CONSULTANT for work performed under this Agreement shall be the property of CITY. CONSULTANT shall provide CITY with copies of these items upon demand or upon termination of this Agreement. Any reuse or modification by CITY of CONSULTANT’s work for any project other than the project for which CONSULTANT DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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prepared, without CONSULTANT’s prior written consent shall be at the sole risk of CITY and CITY agrees to indemnify and hold harmless CONSULTANT from all costs, losses, and expenses, including legal fees, incurred as a result of any such use or decision by CITY.

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

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

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

20. 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 documented attorney fees, costs and expenses incurred.

21. Defense and Indemnification.

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25. Notice of Security and/or Privacy Incident. If CONSULTANT, or its subconsultant, suspect, discover or are notified of a data security incident or potential breach of security and/or privacy relating to CITY PII, PHI and/or PCI, CONSULTANT shall immediately, but in no event later than forty-eight (48) hours from suspicion, discovery or notification of the incident or potential breach, notify CITY of such incident or potential breach. CONSULTANT shall, upon CITY’s request, investigate such incident or potential breach, inform the CITY of the results of any such investigation, and assist the CITY in maintaining the confidentiality of such information. In addition to the foregoing, CONSULTANT shall provide CITY with any assistance necessary to comply with any state and/or federal laws requiring the provision of notice of any privacy incident or security breach with respect to any CITY PII, PHI and/or PCI to the affected or impacted individuals and/or organizations, in addition to any notification to applicable state and federal agencies. CONSULTANT agrees that it shall reimburse CITY for all DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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expenses, costs, attorneys’ fees, and resulting fines, penalties, and damages associated with such incident, breach, investigation and/or notification.

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

29. Electronic Signatures. Unless otherwise prohibited by law or CITY policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the CITY.
///
///
///
///
///
///
///
[Signatures on Next Page]
DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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IN WITNESS THEREOF, these Parties have executed this Agreement on the day and year shown below.

ATTEST: CITY OF MORGAN HILL

City Clerk/Deputy City Clerk City Manager
Michelle Bigelow

Christina J. Turner
Print Name Print Name

Date: Date:

APPROVED AS TO FORM: MNS ENGINEERS, INC.

City Attorney By:

Donald A. Larkin

Jeff Edwards, Vice President
Print Name
Date:

Print Name and Title of Signer.

If Corporate: Chairman, President or Vice
President
Date:

By:

Wes McClendon, Chief Financial
Officer

Date:

Print Name and Title of Signer.

If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198 6/10/2024
6/10/2024

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EXHIBIT A

SCOPE OF SERVICES
The following are the types of tasks that are included in the CONSULTANT'S scope of services:

1. Review of tract maps and parcel maps for conformance with the Subdivision Map Act. Provide stamp and signature on maps and other documents, as necessary, as the Acting City Surveyor.

2. Review of land surveying aspects of tentative maps for conformance with City standards as part of the City’s entitlement process.

4. Perform traditional topographic surveys to determine locations and elevations of existing improvements, structures, and topographic features.

5. Develop legal descriptions and plat maps, and other survey-related tasks as needed.

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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EXHIBIT B

SCHEDULE OF COMPENSATION RATES
CONSULTANT'S services will be billed on a time-and-materials basis according to the Standard Hourly Rates shown below for calendar year 2024. The standard fee rates provided for each classification are subject to 5% annual escalation or the most recent US Bureau of Labor Statistics Consumer Price Index, whichever is higher, for each calendar year.

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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14 Negotiated June 2024

EXHIBIT C

SCHEDULE OF PERFORMANCE
CONSULTANT'S services will be on an as needed, on-call basis.

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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1 Updated June 2020

EXHIBIT D
Third Party Data Use Agreement

All derivative products and resulting data shall be provided to CITY Project Manager and CITY GIS Manager at the completion of the work.

5. All of the above terms and conditions apply to any subcontractor retained by CONSULTANT.

DocuSign Envelope ID: 0E155DF4-DA1C-4EC9-881A-3579D4303198

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Certificate Of Completion
Envelope Id: 0E155DF4DA1C4EC9881A3579D4303198 Status: Completed Subject: Complete with Docusign: MNS ENGINEERS - City Consultant Agreement for Design Professionals Source Envelope:

Document Pages: 15 Signatures: 2 Envelope Originator:

Certificate Pages: 5 Initials: 0 City Clerk's Office
AutoNav: Enabled
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Time Zone: (UTC-08:00) Pacific Time (US & Canada)
17575 Peak Ave
Morgan Hill, CA 95037
[email protected]
IP Address: 35.131.77.142
Record Tracking
Status: Original
6/10/2024 10:56:01 AM
Holder: City Clerk's Office
[email protected]
Location: DocuSign
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Jeff Edwards
[email protected]
Vice President
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Wes McClendon
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Electronic Record and Signature Disclosure:

Accepted: 6/10/2024 11:04:28 AM
ID: dddc1f09-4db7-4ee5-adff-e96d51e34dbb
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
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Carbon Copy Events Status Timestamp
Maria Angeles
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Senior Civil Engineer
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Electronic Record and Signature Disclosure:

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Carbon Copy Events Status Timestamp
Accepted: 9/29/2023 9:18:56 AM
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Angel Echavarria
[email protected]
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Electronic Record and Signature Disclosure:

Accepted: 5/24/2024 10:56:44 AM
ID: bdcf4ca3-452e-40ae-a03c-88df7eef4f85
Jeff Edwards
[email protected]
Vice President
Security Level: Email, Account Authentication
(None)
Sent: 6/10/2024 11:04:43 AM
Electronic Record and Signature Disclosure:

Accepted: 6/10/2024 11:00:59 AM
ID: eb3ad57c-da4b-4d7a-90f9-10efe9dd83c3
Wes McClendon
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: 6/10/2024 11:04:43 AM
Electronic Record and Signature Disclosure:

Accepted: 6/10/2024 11:04:28 AM
ID: dddc1f09-4db7-4ee5-adff-e96d51e34dbb
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 6/10/2024 10:58:31 AM
Certified Delivered Security Checked 6/10/2024 11:04:28 AM Signing Complete Security Checked 6/10/2024 11:04:40 AM Completed Security Checked 6/10/2024 11:04:43 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure

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All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 5/29/2020 4:52:24 PM Parties agreed to: Jeff Edwards, Wes McClendon, Maria Angeles, Angel Echavarria, Jeff Edwards, Wes McClendon

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How to contact City of Morgan Hill:

If you created a DocuSign account, you may update it with your new email address through your account preferences.

To withdraw your consent with City of Morgan Hill
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:

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City Council
Meeting Minutes
Mark Turner - Mayor
Marilyn Librers - Mayor Pro Tem
Gino Borgioli - Council Member
Rene Spring - Council Member
Yvonne Martinez Beltran - Council Member
Wednesday, June 5, 2024 6:00 PM
Council Chamber Building
17555 Peak Avenue, Morgan Hill, CA 95037

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June 5, 2024
2 CALL TO ORDER
Mayor Turner called the City Council meeting to order at 6:00 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

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

SILENT INVOCATION

PLEDGE OF ALLEGIANCE

PROCLAMATIONS
Proclaiming the month of June as LGBTQ+ Pride Month

CITY COUNCIL REPORTS
Mayor Turner congratulated staff for the Economic Mobility Symposium that was held on Thursday, May 30, 2024. He said that it was a great event with lots of good information and wonderful speakers. He thanked Frank Leal for hosting the event at the Granada Theatre. He mentioned that he is part of the Cities Association board and the Legislative Action Council. On Thursday, June 13, 2024, the Cities Association is hosting the Annual Membership Dinner. He recognized the Rotary and Kiwanis Club for hanging the senior banners throughout Downtown, celebrating the Morgan Hill Unified School District's seniors from Live Oak, Central, and Sobrato High Schools. He volunteered at the Mushroom Festival and said that it was a tremendous success.

Valley Water will be doing a presentation at the Community and Cultural Center regarding Anderson Dam on June 6, 2024 at 6:00 p.m.

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June 5, 2024
3 CITY MANAGER'S REPORT
City Manager Christina Turner thanked the Mayor for discussing the Economic Mobility Symposium. There were over 150 attendees and 10 panelists. She shared that we showed a video that we will be making available to the public. This video was made possible by a grant that we received. It highlights diverse local residents, discussing crucial connections between affordable housing and a thriving community. She announced that the Aquatics Center opens on Saturday, June 8, 2024 for the summer season. She also spoke about the Cities Association of Santa Clara County mental health awareness initiative that aims to bring to light issues like anxiety, depression, and loneliness within the community. Today they delivered signs to each city to place at city facilities and downtown areas, featuring the "988" mental health crisis hotline and a QR code link to online resources. This aligns with Council Member Spring's request to address loneliness in our Community. The visible presence of these signs in common community areas will serve as a constant reminder that support is available, encouraging people to seek assistance. By providing immediate access to mental health resources, the campaign fosters a sense of connection and community support.

Additionally, the Cities Association is working on the development of a social media toolkit for community outreach to further extend the campaign's reach, engaging residents through various online platforms and to help normalize conversations around mental health and loneliness, reducing stigma and encouraging individuals to connect with others, share their experiences, and access support services.

CITY ATTORNEY'S REPORT
None

OTHER REPORTS
Council Member Librers spoke about spending 14 days in China at an international conference. They discussed topics such as economic trade, economic development in both countries, and friendship cities. They had an environmental day and she planted a tree in the mountains and tagged Morgan Hill on it. They discussed EV research and flying cars. They are looking for students 12 - 21 for student exchange, as well as adult cultural exchange for adults ages 21 - 40. She said that there was over 30 nations worldwide represented at these conferences. There were only 3 states involved besides California. She was chosen to represent the America's and gave a 30 minute speech about Silicon Valley, California and Morgan Hill.

Council Member Martinez Beltran attended the Gavilan College graduation. She also attended the Mushroom Festival which seemed like a great success. She attended the kick off of digital equity labs working with lower income Spanish speakers who are working to become computer-literate. She attended the pride flag raising, and shared that there will be a pride celebration at Chachos on July 13, 2024. She attended Coyote Creek day, keeping Coyote Creek clean. She also mentioned that she just came back from a Thousand Trails ribbon cutting, adding several cabins. She spoke about a presentation from Kathy Napoli from the Historical Society on Native Americans in her

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June 5, 2024
4 kids class.

PUBLIC COMMENT
Public comment opened at 6:17 p.m.

Brian Sullivan 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: Council Member Borgioli
SECONDER: Council Member Spring
AYES: Council Member Spring, Council Member Borgioli, Council Member Martinez Beltran, Mayor Turner, Mayor Pro Tem Librers
NAYS: None
ABSTAIN: None
ABSENT: None

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.

Public comment opened at 6:22 p.m.

Joe Baranowski was called to speak on item 5.

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

MOTION:

Approving consent calendar items 1, 2 and 4 through 6.

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

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June 5, 2024
5 ABSTAIN: None
ABSENT: None

1. APPROVE A CONSULTANT AGREEMENT WITH INNOVATIVE CLAIM SOLUTIONS, INC. FOR THIRD PARTY CLAIMS ADMINISTRATION FOR

WORKERS' COMPENSATION
Recommendation:

Approve a five-year agreement with Innovative Claim Solutions, Inc. to provide third party claims administration for workers' compensation in an amount not to exceed $193,662.

2. APPROVE COUNTYWIDE AB 939 AND HOUSEHOLD HAZARDOUS WASTE

COLLECTION AGREEMENTS
Recommendation:

Authorize the City Manager to Execute the Countywide AB 939 and Household Hazardous Waste Collection Agreements.

4. APPROVE SECOND AMENDMENT TO THE FISCAL YEAR (FY) 2023/24

COUNTYWIDE SOLID WASTE SERVICES FOOD RECOVERY PROGRAM
AND THE NEW FY 2024/25 CONTRACT WITH JOINT VENTURE SILICON VALLEY
Recommendation:

1. Approve the second amendment to the FY 2023/24 Joint Venture Silicon Valley consultant agreement to extend the effective date of services from July 4, 2023, until June 30, 2025;

2. Approve a new consultant agreement with Joint Venture Silicon Valley for FY 2024/25 Edible Food Recovery Program services in the amount of $636,563; and

3. Authorize the City Manager to execute and administer the second amendment to the 2023/24 consultant agreement and the new 2024/25 consultant agreement with Joint Venture Silicon Valley.

5. APPROVE THE MAY 15, 2024 CITY COUNCIL MEETING MINUTES AND THE MAY 22, 2024 BUDGET WORKSHOP MINUTES
Recommendation:

Approve minutes.

6. AWARD CONTRACTS FOR EMERGENCY ON-CALL SPILL RESPONSE

CLEANUP SERVICES
Recommendation:

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June 5, 2024
6 1. Award service agreements to GrayMar Environmental Services, Inc. ("GrayMar"), HCI Environmental & Engineering Service ("HCI"), and Clean Harbors Environmental Services, Inc. ("Clean Harbors") for emergency on-call spill response cleanup services for up to $100,000 each; and

2. Authorize the City Manager to execute and administer the Agreements.

ITEM PULLED FOR DISCUSSION

3. APPROVE MEMORANDUM OF UNDERSTANDING FOR PARTICIPATION IN

THE COUNTYWIDE FOOD RECOVERY PROGRAM
Recommendation:

Authorize the City Manager to enter into a Memorandum of Understanding that will allow the City to participate in the Countywide Food Recovery Program for SB 1383 compliance, and also to administer and oversee the program in the City's capacity as Countywide Solid Waste Services Administrator and Contracting Agent.

Tanya Carothers answered questions.

Public comment opened at 6:43 p.m. There being no requests to speak, public comment closed.

MOTION:

Approving the recommended action.

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

PUBLIC HEARINGS

7. ADOPT RESOLUTION ORDERING ANNUAL ASSESSMENTS AND RELATED

ACTIONS FOR CITY OF MORGAN HILL LANDSCAPE ASSESSMENT

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June 5, 2024
7 DISTRICT NUMBER 1
Recommendation:

1. Open and close the Public Hearing; and

2. Adopt resolution confirming Fiscal Year (FY) 2024-25 annual assessments and ordering the levy of assessments for the District.

Keri Russell provided the report.

The public hearing opened at 6:47 p.m. There being no requests to speak, the public hearing closed.

MOTION:

Approving the recommended action.

OTHER BUSINESS

8. DISCUSS WHETHER TO CHANGE THE CITY TREASURER POSITION FROM

ELECTIVE TO APPOINTIVE, AND IF THE COUNCIL WISHES TO PROCEED,

ADOPT A RESOLUTION SUBMITTING THE QUESTION TO THE VOTERS Recommendation:

1. Provide direction to staff regarding changing the City Treasurer position from elective to appointive; and

2. If approved, adopt resolution that would submit to the voters a ballot measure to change the City Treasurer position from elected to appointed.

City Clerk Michelle Bigelow provided a presentation and report.

Public comment opened at 7:05 p.m. There being no requests to speak, public comment closed.

SUBSTITUTE MOTION:

Direct staff to bring forward in the Spring of 2026, a measure changing the

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June 5, 2024
8 Treasurer from elected to appointed for the 2026 election.

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

Direct staff to bring back term limit measure on the June 19, 2024 City Council Meeting to add Treasurer.

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

FUTURE COUNCIL INITIATED AGENDA ITEMS
Council Member Martinez Beltran would like to look at rv tourism.

Mayor Pro Tem Librers would like to explore an ordinance that prohibits tents on City sidewalks and within so many feet of City property.

CLOSED SESSION
City Attorney Larkin announced the closed session item.

Conference with Legal Counsel – Existing Litigation (§ 54956.9) City of Morgan Hill v. Rocke and Glenda Garcia et al. (Santa Clara County Case No. 21CV385524)

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June 5, 2024
9 OPPORTUNITY FOR PUBLIC COMMENT
Public comment opened at 7:24 p.m. There being no requests to speak, public comment closed.

ADJOURN TO CLOSED SESSION
The meeting adjourned to closed session at 7:24 p.m.

ADJOURNMENT
There being no further business, Mayor Turner adjourned the meeting at 7:55 p.m.

Minutes Prepared by:

Michelle Bigelow, City Clerk

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9 CITY COUNCIL STAFF REPORT
MEETING DATE: June 19, 2024
PREPARED BY:

Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager

AWARD ON-CALL DOOR AND GATE REPAIR MAINTENANCE

SERVICE AGREEMENT WITH WEST COAST DOORS AND GATES FOR
A TOTAL NOT TO EXCEED AMOUNT OF $200,000

RECOMMENDATION(S)

1. Award a two-year maintenance service agreement to West Coast Doors and Gates for a not to exceed amount of $200,000 for on-call door and gate repair services with three one-year extensions, subject to budget appropriation; and

2. Authorize the City Manager to execute and administer the Agreement.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
2024-2025 Strategic Priorities
Fiscal Sustainability
REPORT NARRATIVE:

The purpose of this report is to provide the City Council with an opportunity to consider awarding an agreement to West Coast Doors and Gates for on-call door and gate repair services in the amount of $200,000.

The City has contracted for door and gate repair services for many years on an on-call, as-needed basis as the City does not have the staffing resources to perform the work internally. As the City's current on-call door and gate repair maintenance service agreement expires on June 30, 2024, the Request for Proposals (RFP) was issued on April 22, 2024. All contractors responding to the RFP were required to possess a current and valid California Contractor State Licensing Board (CSLB) license in the classification required by law to perform the work: CSLB C-61/D-28 (Doors, Gates & Activating Devices) and/or C-28 (Lock and Security Equipment).

In soliciting proposals for this project, the City notified contractors on the City's bidders' list with the CSLB C-61/D-28 and C-28 classifications. The RFP was also advertised in

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9 the Morgan Hill Times on April 19, 2024. The bids were posted on the City of Morgan Hill website, Public Purchase online bid service, County of Santa Clara Builders Exchange, Bay Area Builders Exchange, and San Francisco Builders Exchange.

On May 20, 2024, three proposals were received in response to the RFP from McKendry Door Sales, Inc., Nor-Cal Overhead, Inc., and West Coast Doors and Gates.

An evaluation committee of two Maintenance Services staff evaluated and scored the three proposals. The proposals were first evaluated based on narrative responses to questions regarding previous experience, work quality, client relations, and the local office's staff qualifications. Proposals that received a minimum 40 of 50 possible points then had their cost proposals reviewed to determine which proposals offered the best overall value to the City. Based on the RFP's scoring criteria, below are the scores for the responses to the narrative questions (Attachment 1). West Coast Doors and Gates scored the highest with 41 points.

Contractor Narrative Score
West Coast Doors and
Gates

41.0 points
Nor-Cal Overhead, Inc. 40.0 points
McKendry Door Sales, Inc. 37.5 points
Since West Coast Doors and Gates, and Nor-Cal Overhead both scored the minimum 40 points, their cost proposals were reviewed to determine which proposal offered the best overall value to the City (Attachment 2). Although their hourly rates were similar, Nor-Cal Overhead had additional service fees, and a minimum 2-hour charge for each repair job. Due to these additional factors, the evaluation committee determined that West Coast Doors and Gates offered the best overall value to the City.

Staff recommends the award of the on-call door and gate repair maintenance service agreement to West Coast Doors and Gates for a total not-to-exceed amount of $200,000 for two years (Attachment 3). Repairs would be performed on an as-needed basis upon pre-approval by City Maintenance staff. The City's actual repair costs will be contingent upon the circumstances and frequency of repair needs. The new agreement will have a two-year term with authorization for the City Manager to execute three consecutive one-year extensions with the annual price increases not to exceed 5% of the prior year's annual pricing. If approved, the initial two-year term will be from July 1, 2024 to June 30, 2026.

COMMUNITY ENGAGEMENT:

On-call door and gate repair is a routine, and standard service provided at City facilities.

Staff will post signage informing the public of any door and gate repairs that affect the use of City facilities. If the door and gate repairs will occur over several days, a general notice will be posted on the City's website and on Nextdoor Morgan Hill informing residents of any disruptions to services at City facilities.

ALTERNATIVE ACTIONS:

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9 An alternative action is to not approve this agreement, and to direct staff to issue another Request for Proposals (RFP) and extend the current agreement with West Coast Doors and Gates for six months. It is not anticipated that issuing a new RFP would result in better value to the City, so this alternative is not recommended.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The City has not taken prior action on this agreement. Since the current on-call doors and gates repair agreement is expiring on June 30, 2024, this RFP process was conducted.

FISCAL AND RESOURCE IMPACT:

The cost of door and gate repairs are budgeted in the building maintenance budgets for individual City facilities and parks. The $200,000 not-to-exceed amount in this agreement is recommended to ensure the City has a sufficient allocation to obtain needed repairs in a timely manner in order to limit any disruption to services or public safety issues.

CEQA (California Environmental Quality Act):

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

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Possible
Points McKendry Nor-Cal West
Coast
COMMENTS - Justification for each Selection Criteria's
point score
20 15.5 15.5 15

1. How many years has your company been in business under its present business name?

2. Describe your previous experience providing door and gate repair services at like-sized public agencies and/or private companies

3. Describe management personnel's experience with accounts of similar size and scope, company structure, and staff assigned to the resulting agreement.

4. State any and all instances of being disqualified, removed, or otherwise prevented from completing the terms of any previous contracts over the past five (5) years. Give names, street addresses and phone number and explain the circumstances.

McKendry: Very experienced and thorough in detailing
their work experience. Almost 20 years of experience.

Nor-Cal: Worked with cities and counties. 20 years of
experience.

West Coast: Good experience, stated that Owner deals
directly with all customers and clients. 28 years of
experience.
15 11 13.5 14

1. List three (3) like-sized customers that you have provided on-call door and gate repair services to within the last three (3) years. Provide the following information for each contact:
a. Customer Name
b. Customer Contact Person's Name
c. Phone Number
d. Email Address
e. Number of years your firm has provided electrical on-call services to Customer. f. Names of facilities/locations where services have been provided.

McKendry: Generally good references. Noted that
vendor's techs live in Sacramento and getting personnel out in an emergency can be a challenge. Billing is not
always timely.

Nor-Cal: Good references, in one instance did not respond to emergency in a timely manner.

West Coast: Excellent references with nothing negative to say.
15 11 11 12

1. For the local office to serve this contract, list the following:

A. Total number of staff assigned to the City of Morgan Hill B. Names and qualifications of key staff including years in the industry and with your firm.

C. Number of new hires in the last six months.

McKendry: Did not demonstrate that local staff are
assigned, which could impact response time.

Nor-Cal: Did not demonstrate that local staff are assigned.

Proposal noted response time for routine maintenance
was one day and emergency was 4 hours instead of 4
hours and 2 hours per scope of work.

West Coast: Demonstrated ability to provide responsive
staff for routine and emergency work.
50 37.5 40 41 TOTAL POINTS AWARDED
Section 3: Qualifications of Staff to be assigned to provide on-call door and gate repair services at City facilities (Up to 15 points)
Attachment #1 - City of Morgan Hill - CSD2024-019
On-Call Door & Gate Repair Contractor RFP Evaluation Committee Scoring May 2024
Selection Criteria
Section 1. Previous Experience in providing a superior level of service on like-sized public or private projects (Up to 20 points)
Section 2: Assessment of Work Quality, Performance and Working Relationships with Current and Recent Clients (Up to 15 points)

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On-Call Door and Gate Repairs RFP: Pricing Comparison
Nor-Cal Overhead
West Coast Doors &
Gates
Hourly Shop Rate Door & Gate
Repair (M-F: 8am to 5 pm) $ 235.00 $ 245.00
Contractor's Additional Costs or
Min. Hours
Service Call Fee plus 2-hour minimum.
$135 SCF(M-F: 8 a.m.-5 p.m.) + ($235 x2) =
$605 none
Hourly Overtime Rate Door &
Gate Repair Services (M-F: 5 pm
to 8 am)
$270 (M-F: 5 p.m.-10 p.m.)
$390 (M-F: 10 p.m.-5 a.m.) $ 495.00
Contractor's Additional Costs or
Min. Hours
Service Call Fees plus minimum 2 hours
$195 SCF (M-F: 5 p.m.-10 p.m.) + ($270 x 2) =
Total $735
$235 SCF (M-F: 10 p.m. to 5 am.) + ($390 X 2)=
Total $1,015 none
Hourly Saturday, Sunday and
Holiday Rate-Door & Gate Repair
Services
$270 (Sat. 8 am-5 pm)
$390 (Sat. 5 p.m.-10 p.m.)
$470 (Sat. 10 p.m.-5 am)
$390 (Sun. 8 am-5 pm)
$390 (Sun 5 p.m.-10 p.m.)
$470 (Sunday 10 p.m.-5 am $ 495.00
Contractor's Additional Costs or
Min. Hours
Service Fees plus minimum 2 hours
$195 SCF (Sat 8am-5 p.m) + ($270 X 2)=Total
$735
$235 SCF (Sat 5 pm-10 pm) + ($390 X 2) Total
$1,015
$390 SCF (Sat 10 pm-5 am) + ($470 X 2)=
Total $1,330
$235 SCF (Sun 8 am-5 pm) + ($390 X 2) = Total
$1,015
$275 SCF (Sun 5 pm-10 pm) + ($390 X 2) =
Total $1,055
$390 SCF (Sun 10 pm-5 am) +($470 X 2) =
Total $1,330 none
Equipment Rate Schedule $625-$975 Included in hourly rate Contractor's Comments on
Equipment Schedule Forklifts, 19' scissor lift, 26' scissor lift Not specified Attachment #2
City of Morgan Hill CSD2024-019, May 2024

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1 Updated: May 2023

MAINTENANCE SERVICE AGREEMENT
West Coast Doors and Gates
THIS AGREEMENT is entered into and becomes effective on _______________ (Effective Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and West Coast Doors and Gates a California sole proprietorship ("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. City Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on ___________, ____, 20___.

2. Term of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until June 30, 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 of three one-year extensions. Any such extension shall be in writing and signed by both Parties to this Agreement.

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

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

4.1. Amount. $200,000.00. Total compensation to SERVICE PROVIDER under this Agreement during its initial term set forth in Section 2 above shall not exceed Two 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 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 each subsequent extended one-year term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDER for one year of service during the immediately preceding prior year of service.

4.2. Billing. SERVICE PROVIDER shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services performed and expenses incurred (if such expenses are reimbursable pursuant to Exhibit B) 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.

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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 all documents in its possession without additional compensation to SERVICE PROVIDER. The City Manager is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.

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.

5.2. Temporary Suspension of Services. CITY’S need for services may be suspended due to unforeseeable or unavoidable circumstances beyond its control. Such circumstances include, but are not limited to, earthquake, fire, explosion, flood, or other natural catastrophe; governmental legislation, condemnation, acts, orders, or regulation; war or acts of terrorism; strikes or labor difficulties; and quarantine, epidemic, or pandemic.

CITY shall provide a 5-days’ written notice or less under urgent circumstances to temporarily suspend services at specific CITY facilities. CITY reserves the right to request which CITY facilities are to be serviced or not serviced due to unforeseeable or unavoidable circumstances; and the level of service at each CITY facility. Upon suspension, SERVICE PROVIDER shall submit to CITY an itemized statement of services performed for which compensation has not been paid up to the date of the suspension. No further payments will be made for services provided after the date of the suspension. CITY shall provide 5 days’ written notice when the circumstances for the suspension of specific facilities’ services are removed for SERVICE PROVIDER to commence providing services.

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.

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6.2. Storage of Service Provider’s Equipment. 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.

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 SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

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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 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.

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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.

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

8.2.1. General Liability 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.

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 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. 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 A.M.

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

8.4. Certificates. SERVICE PROVIDER shall furnish CITY with copies of all 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

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

Certificate Holder address:

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

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 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.

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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(S) HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS.

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

Judgments or Decisions During Term of Contract: If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or SERVICE PROVIDER learns of such a judgment, decision, or order that was not previously disclosed, SERVICE PROVIDER shall inform the City Attorney, no more than fifteen (15) days after the judgment, decision or order becomes final or of learning of the final judgment, decision or order. SERVICE PROVIDER and its subcontractors shall promptly satisfy and comply with any such judgment, decision, or order, and shall provide the City Attorney with documentary evidence of compliance with the final judgment, decision, or order within five (5) days of satisfying the final judgment, decision, or order. CITY reserves the right to require SERVICE PROVIDER to enter into an agreement with CITY regarding the manner in which any such final judgment, decision, or order will be satisfied.

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

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

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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:

West Coast Doors and Gates
305 Vineyard Town Center #360
Morgan Hill, CA 95037
Attn: John Komar
Address of CITY is as follows:

Keri Russell, Maint. Mgnr.

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

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

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.

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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 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 personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the performance of this Agreement or the failure to comply with any obligations contained in this Agreement by 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 CLAIMS alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by SERVICE PROVIDER.

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

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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.

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.

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.
///
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Signatures are on the following page.

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EXHIBIT A

SCOPE OF SERVICES
The Contractor will provide full-service, on-call door and gate repair services and administer the duties and responsibilities set forth below in compliance with all applicable laws, regulations, policies and procedures.

Services to be performed include the furnishing of all labor, materials, tools, equipment, supplies, services, tasks and incidental and customary work necessary to competently perform on-call door and gate repair work at various City facilities and per Work Hours (see Attachment A).

The work will include the provision of a total maintenance and repair program consisting of a variety of tasks including, but not limited to, installing, replacing, and testing door and gate components and other related issues as they arise and are necessary to insure safe, well maintained doors and gates for City employees and the public. The exact scope and number of projects and tasks are unknown at the time of contract execution.

The Contractor shall leave work areas free of all dirt, litter, lubricants, or other materials utilized to perform door and gate maintenance.

The Contractor shall erect barricades, warning signs, and any other devices to prevent unauthorized access by the public or unauthorized City staff to work areas.

The Contractor shall respond to all requests for repairs within four (4) hours. Emergency repairs as required, 24 hours per day, 365 days per year, including holidays shall have a two (2) hour response time. All costs for labor and materials for these calls shall be included in proposals submitted to Maintenance staff.

Contractor will be responsible for providing labor, supervision, materials, equipment, transportation, service and the shop facilities necessary to perform high quality work.

Contractor will also be responsible for discarding all used materials. 2-1 SCOPE OF SERVICE The Contractor shall provide full-service on-call door and gate repair services to City Facilities as outlined in this document. Contractor shall retain professional personnel who have successfully and competently provided municipal facility door and gate repair services on projects of similar scope and complexity. It shall be the Contractor’s responsibility to effectively repair and maintain, to the satisfaction of the City representative, all aspects of door and gate systems in City defined facilities with minimal downtime. All maintenance and repairs shall be provided in accordance with the highest standards of the industry, skill, workmanship, applicable trade practices, shall meet warranties and be in conformance to all applicable laws, codes and regulations. The successful Contractor’s door and gate repairs shall, at a minimum, include but not be limited to the specifications outlined herein.
2-2 SERVICES TO BE PROVIDED It is the Proposer’s responsibility to provide an appropriate level of staffing and provide appropriate tools and vehicles necessary to support all facility door and gate maintenance and repair functions during hours of operation and for response after normal working hours. Proposer shall maintain the appropriate license and will

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comply with all other license, insurance and permit requirements of the City, State and Federal governments, as well as all other requirements of the law.

2-3 TERM OF SERVICE The term of the contract will be from July 1, 2024 through June 30, 2026. The City, at its option, may renew this contract for up to three, one year periods, beginning on July 1, 2026. This option will be exercised only if the contractor has demonstrated superior performance in provision of On-Call Door and Gate Repair Services to the City.

Pricing entries in the Bid Proposal apply to the period of July 1, 2024 to June 30, 2026. If the contract is renewed, it will be reviewed each subsequent year beginning on July 1, 2026 per the terms of the City’s Maintenance Service Agreement.
2-4 WORK HOURS Scheduled maintenance and repairs shall typically occur during normal business hours. Facility business hours are:
- Aquatics Center is open weekdays from 5:00 a.m. to 8:00 p. m., Saturdays from 7:00 a.m. to 12:00 p.m. (summer season to 6:30 p.m.), and Sundays 11:30 a.m. to 6:30 p.m. (summer season only).
- Centennial Recreation Center is an active facility on Weekdays from 5:00 a.m. to 9:30 p.m., Saturdays and Sundays from 6:30 a.m. to 5:00 p.m. - City Hall is open Monday-Friday 8:00 a.m. – 5 p.m.
- Chambers Building is open Monday-Friday 8:00 a.m. – 5 p.m. - The Community and Cultural Center is open Monday-Friday 8:00 a.m. – 5 p.m. - The Police Department is open Monday-Friday 8 a.m. – 5:30 p.m. - The Public Works Corporation Yard is open Monday-Thursday 6:30 a.m. – 4:00 p.m. and Fridays from 6:30 a.m. -3:00 p.m.
- El Toro Fire Station is open 24 hours
- Dunne Hill Fire Station is open 24 hours
2-5 SERVICE AVAILABILITY The contractor shall have trouble-call service available on a twenty-four hours a day, seven days a week basis with a response time not to exceed the following:

EMERGENCIES……………………….two-hour response time
NON-EMERGENCIES……………… four-hour response time
Time to respond shall start when the City calls the problem into Contractor’s designated emergency phone number. Additionally, the contractor shall provide the ability to respond immediately to situations involving the health and safety of employees and/or the public and the comfort and operational capability of any public meeting space. Routine repairs, service requests or other non-urgent tasks shall be completed within one (1) working day from the date of request by City Representative.
2-6 TROUBLE-CALL/REPAIR SERVICE Should the City request the contractor to make unscheduled, emergency door replacement or repairs, the City shall be responsible for labor and travel costs associated therewith. These costs, as listed in the proposal, will be a critical part of the bid evaluation in determining the lowest responsive and responsible contractor.

Rates shall be firm for the term of the contract. The City reserves the right to contract with others for trouble calls and repairs.

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2-7 BILLABLE WORK The Contractor shall not bill for unnecessary repairs, for repairs that were not completed satisfactorily, for repairs that did not fix an identified problem, or for facility visits that are made by staff unqualified to complete needed repairs. 2-8 LICENSING, STAFFING, WORKMANSHIP AND QUALITY LEVEL The Contractor shall provide a staffing level to perform on-call door and gate repair services at designated City facilities in a thorough and professional manner, so that the City is provided with reliable and high quality maintenance at all times. The Contractor shall possess and maintain a C-61/D-28 Doors, Gates and Activating Devices Contractor license and/or C-28 Lock and Security Equipment license issued by the State of California Contractors Licensing Board through the term of the contract. All personnel performing work under this Contract shall possess and maintain a state journeyman certification and be directly employed and supervised by the Contractor. Any assigned apprentice shall work directly under the supervision of a qualified journeyman. The Contractor shall provide management and technical supervision through competent supervisors as required. The Contractor shall be responsible for the skills, methods and actions of all employees, subcontractors and for all work done. 2-9 MAINTENANCE AND REPAIR LOCATIONS See Attachment A
2-10 TOOLS AND EQUIPMENT The Contractor shall furnish and maintain all equipment necessary for properly servicing and maintaining doors and gates in City buildings. The City of Morgan Hill reserves the right to inspect equipment to be used to perform services under this contract. Any equipment determined to be in poor condition must be replaced immediately, at the contractor’s expense. Failure to provide suitable equipment for carrying out all requirements of this contract may be grounds for termination. 2-11 PARTS AND MATERIALS The Contractor shall furnish all parts and materials necessary for properly maintaining and repairing doors and gates in City buildings. Mark-up on parts and materials may not exceed 10% of Contractor’s cost. Invoices must identify the work performed, cost of labor, parts/materials used, parts/materials cost, and parts/materials markup cost. 2-12 INSPECTIONS AND REMEDIES So as to ensure consistent quality of the work being performed, the City Representative will perform periodic inspections of doors and gates to ensure compliance with the contract specifications. Inspections may be made by the City at any time to confirm that work performed meets specifications. If corrective work is required, the City will provide a written list of items and the Contractor shall correct deficiencies as directed. If deficiencies are not corrected in a timely manner, the City may perform the work using others and deduct the cost from the Contractor's payment. 2-13 DAMAGES The Contractor will be responsible for all damages to the facility or contents caused by Contractor, their staff or subcontractors during the performance of their duties. 2-14 SAFETY & SECURITY The Contractor and staff shall follow all established safety procedures and shall take special care not to endanger the public in any way. The Contractor is responsible for the security of all doors at the conclusion of work in each room. All exterior doors should remain locked at all times. Interior doors that are found open or unlocked shall be left in the same position/condition in which they were found. 2-15 FINGERPRINTING (Live Scan State of California Criminal Records Check): All Contractor staff who will be working on City facilities must pass a State of California Department of

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15 Updated: May 2023
Justice (DOJ) Criminal Records and FBI Background Check at the contractor’s expense. The background checks can be performed at a Live Scan State of California Criminal Records Check locations or at the City of Morgan Hill Police Department. If the Contractor choses to complete the background check at the Morgan Hill Police Department, the fingerprinting appointments can be scheduled by calling 408-776-7300 or via online at https://calendly.com/mhpdrecords/30min . The Morgan Hill Police Department is located at 16200 Vineyard Boulevard, Morgan Hill. The total fee is currently $69.00 per person ($20.00 for PD appointment and $32 for DOJ check and $17 for FBI check) payable at the time of the appointment. The Contractor is responsible for providing the City of Morgan Hill with updated records check information for their employees.
2-16 EMERGENCY SITUATIONS For medical or public safety emergencies occurring at the Facilities call 9-1-1. For all building maintenance emergencies (water leaks, etc.) contact the Maintenance Manager or designated staff to report the issue immediately (24 hours/day).

Please see next page for Attachment A - City of Morgan Hill Municipal Facilities Locations

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ATTACHMENT A
To EXHIBIT A

CITY OF MORGAN HILL

MUNICIPAL FACILITIES LOCATIONS

DOORS AND GATES TO BE MAINTAINED AT THESE LOCATIONS

BUILDING/FACILITY ADDRESS SQUARE

FOOTAGE
Aquatics Center (office area) 16200 Condit Road 5,294
Centennial Recreation Center 171 West Edmundson
Avenue 25,135
City Hall 17575 Peak Avenue 13,900
Community and Cultural Center
and Playhouse 17000 Monterey Road 20,500; 5,000
Community Garden Railroad Avenue
Council Chamber Building 17555 Peak Avenue 12,104
Police Department 16200 Vineyard Boulevard 43,286
Public Works Corporation Yard 100 Edes Court 4,583
Dunne Hill Fire Station 2100 East Dunne Avenue
El Toro Fire Station 18300 Old Monterey Road
All other parks and City-owned
properties
16

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EXHIBIT B

SCHEDULE OF COMPENSATION RATES
17

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18 Updated: May 2023

EXHIBIT C

SCHEDULE OF PERFORMANCE
The Contractor shall respond to non-emergency requests for repairs within four (4) hours. After hours repair calls will be responded to within four (4) hours of opening for regular business hours of the next business day.

The Contractor shall respond to all emergency requests for repairs within two (2) hours.

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10 CITY COUNCIL STAFF REPORT
MEETING DATE: June 19, 2024
PREPARED BY:

Chris Ghione, Public Services Director
APPROVED BY: City Manager

APPROVE THE REAL PROPERTY AGREEMENT WITH FATTORIA
PUBLIC MARKET, INC. TO LEASE AND OPTION FOR SALE OF CITY

OWNED AGRICULTURAL PROPERTY FOR AGRI-TOURISM

DEVELOPMENT

RECOMMENDATION(S)

1. Authorize the City Manager to execute an option to lease with future option of sale of City-owned Agricultural Property to Fattoria Public Market; and

2. Authorize the City Manager to execute future lease and sale agreements as outlined in the option agreement.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment and Preserving Open Space and Agricultural Land 2024-2025 Strategic Priorities
Fiscal Sustainability
Economic Development and Tourism
Healthy Community
REPORT NARRATIVE:

In July 2015, the City Council authorized the purchase of 25.8 acres for a future baseball/softball field facility (Ball Field Property). The property is located south of the intersection of Condit Road and Tennant Avenue, adjacent to Highway 101. The property is within the unincorporated County. The purchase was made to “land bank” the property until a time when the City would have funding to develop the property. At the time of purchase of the property, it was believed that future annexation would bring the properties within the City limits, but it was also understood that if the properties were not annexed that they could be developed by the City in the County.

In 2016, the property was part of the annexation request made to the Santa Clara County Local Area Formation Commission (LAFCO). The annexation was denied by LAFCO. Several entities, including the County of Santa Clara and the Santa Clara Valley Open Space Authority have noted preferences for continued use of the site for

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10 agriculture. In February 2019, the City Council directed City staff to look at the opportunity to find an alternate, more suitable recreation site that could allow the existing site to continue to be used for agriculture. This alternative site was identified in 2021 and the City Council approved purchase of 19.58 acres located on Monterey Road just south of Butterfield Boulevard.

With the acquisition of the new site, the former Ball Field Property was transferred to the City's Agricultural and Open Space Preservation Fund. An agricultural easement will be necessary to permanently preserve the former Ball Field Property for agriculture.

In 2022, the City has received interest from multiple parties that expressed a desire to use the City owned property for more active agricultural purposes. In June 2023, the City released a full Request for Proposals with the purpose to explore interest from private agricultural business operators for use of the City property for a mid- to longterm lease or property use arrangement. The guiding criteria for the property use was noted as:
• General agricultural use that continues to use the property productively. • Use supports agri-tourism and economic development for the region and the City of Morgan Hill.
• Opportunity to develop a portion of the site with agri-voltaics. • Generation of lease revenue for the City of Morgan Hill. • Safe use of the site from a traffic and public safety perspective. • Use is allowed under existing Santa Clara County Zoning.

On November 15, 2023, the City Council selected Terra Amico's proposal (Attachment 2) for development of the site. Since that time the owners of Terra Amico have changed the project name and formal business entity to Fattoria Public Market, Inc (FPM). The City staff have worked to develop an agreement for a lease with option to purchase in association with the development of the site by FPM. The proposed agreement is included in Attachment 1. The significant agreement points include:

Option to Lease – FPM option to lease for the due diligence and planning period of 5 years.

Term
• 5 Year Option for FPM to start lease - This allows time for planning to progress through the County development process.
• Option notification is required by June 15 of the year prior for the lease to commence on January 1 of the following year.
• 10-Year Lease Term – Upon FPM execution of lease agreement (following notification of option to lease).
• Option of Lease Extension of two additional 5 Year Terms if capital investment and goals are met:
o Investment of $250,000 capital dollars will provide FPM with the option to

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10 extend lease term by 5 years.
o Investment of $500,000 of capital dollars will provide FPM with the option to extend lease term by an additional 5 years.
o Capital Investment must be for improvements identified in agreement. o Capital Investments are considered improvements on the property (not equipment or vehicles) that have a life expectancy of over 10 years.

Usage
• FPM shall have the right to use the property for the purposes outlined in the agreement.
• FPM shall have the right to continue basic farming use of the property. • Other uses shall require written permission by the City.

Option to Purchase
• FPM shall have the right to purchase the property for the fair market appraised value of the property if it has made $500,000 in investment towards the project. • Prior to the sale, the City will place an agricultural easement on the property permanently limiting the use of the property to agriculture.

Note: Placement of the easement will reduce the fair market value and purchase price for the property.

City Standard Terms
• Included are City standard terms to protect the City and ensure performance by FPM, including terms on insurance, indemnity, risk management, and legal protection for the City.

COMMUNITY ENGAGEMENT:

Inform
The notice informing interested parties of the RFP was placed on the City's website.

City staff also provided the RFP directly to those expressing interest in agri-tourism in the area through past communications and processes.

ALTERNATIVE ACTIONS:

The City Council could choose not to move forward with the lease and option to purchase with Fattoria Public Market, Inc. and provide alternate direction to the City staff.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

July 15, 2015 – The City Council authorized the purchase of the Ball Field Site.

February 6, 2019 – The City Council provided direction on development of the Ball Field

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10 Site.

August 4, 2021 - The City Council approved the purchase of new park land and the transfer of the existing Ball Field site to the Agriculture and Open Space Fund.

November 15, 2023 - The City Council directed staff to enter into negotiations with Terra Amico for an agri-tourism related lease.

FISCAL AND RESOURCE IMPACT:

Revenue of $13,000 per year will be received upon execution of the option to lease of the City-owned property, with potential increased revenue of 10% of net profits from the site being possible after development of the site. Revenues would be placed into the Agricultural and Open Space Preservation Fund. Should the option to purchase be executed in the future, millions of dollars would be expected to be paid into the Fund.

CEQA (California Environmental Quality Act):

Categorical Exemption
The option to lease is exempt under CEQA exemption Class 1 Exisitng Facilities as the lease itself does not require any change in use. Future development of the site requires additional environmental review.

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City of Morgan Hill Request for Proposals
Agricultural Farming Businesses to Lease CityOwned Agricultural Land August 11, 2023
Agricultural Institute of Marin — The Center for Food & Agriculture (for illustrative purposes only) | Multistudio + April Philips Design Works

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2 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land About Our Team
Fattoria Public Market will be a year-round indoor Farmers Market and Regional Food Hub, allowing farmers, ranchers and other local food producers to have a permanent
location to distribute their goods directly to consumers and institutional buyers. By selling directly in a controlled and shared environment, agricultural producers thrive and as consumers, we connect with our local food producers to create secure, healthy food systems. As an added benefit, we preserve the rich agricultural history of Santa Clara County for future generations.

Organization Information
Organization Name
Fattoria Public Market
Contact
Joe Raineri
Phone
408-209-7667
Email
[email protected]
Organization Details
Terra Amico Corporation and its subsidiaries have been in business for more than 15 years, currently operating as a California C Corporation. The corporation has never been involved in litigation and is currently managed by Joe Raineri as CEO, Lisa Raineri as COO, and Trevor Raineri as Program and Marketing Director. Presently Terra Amico Corporation has a crew of 15 people. If the City of Morgan Hill awards this contract to our proposal, we plan to form a new entity, most likely a California C Corporation. As a new entity, Fattoria Public Market will be led by Joe and Lisa Raineri as Principals and the appointed Board of Directors, and will fill positions as appropriate based on stage and funding.

Collaboration Team Members
• Joe Raineri, Terra Amico Corporation, CEO
• Lisa Raineri, Terra Amico Corporation, COO
• Lauren Maass, Multistudio, Principal-in-Charge
• Teresa Jan, Multistudio, Director of Climate Positive Design • Graham Smith, Multistudio, Planning
• Amanda Harper, Multistudio, Brand Experience
• Patricia Algara, BASE Landscape Architecture, Principal-inCharge • Dan Rubins, Fehr and Peers, Traffic Engineering Consultant • Nahum Goldberg, NG Associates, Food Services Consultant • Josiah Cain, Sherwood Design Engineers, Civil Engineering • Brian Turner, CMTA, MEP Engineering
• City of Morgan Hill
• County of Santa Clara
• Julie Morris, Santa Clara County Ag Liaison
• TBD, Structural Engineering and Acoustic Consultant
Advisory Board
• Richard Furtado, Founder and Partner, South Bay
Construction
• Debbie Furtado, Designer, Owner of Horse Thief Vineyards, Partner in South Bay Construction.
• Steve Borkenhagen, Founding Partner and Former Market Manager, San Pedro Square Market
• Zack Andrade, Founder and President, Spinaca Farms
• Tim Herlihy, Founder and President, Creative
Manufacturing Solutions
• Jen and Sam Thorp, Founders, Owners, Farmers, Spade and Plow Organics
• Jess Brown, Executive Director, Santa Clara County Farm Bureau

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3 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

1. Description of Development
Proposal
This proposal is for the development of a Public Market and Regional Food Hub on the 25.6 acres of property at the intersection of Hwy 101 and Tennant Avenue. The working name is Fattoria Public Market, referring to “farm”.

Fattoria Public Market will be a year-round indoor farmer’s market and food hub, purposely designed to allow local
agricultural producers the opportunity to sell their goods directly to both institutional and individual consumers at their peak of freshness. The marketplace will alleviate the burden that farmers, ranchers and other agricultural producers face when struggling to sell their goods at pop-up roadside stands and weekly parking lot farmers markets. By selling directly to consumers in a predictable environment, farmers can
increase their income, economically thrive and allow the South County’s agricultural history to continue into the future.

Regional food hubs have been identified by the USDA as a feasible model to advance local agriculture and agricultural start up endeavors. Fattoria Public Market will also include a food hub that provides cold and dry storage, production facilities, packing and distribution, and cooperative marketing services. These collaborative services will make it easier for farmers to gain entry into new and additional markets with high barriers to entry for them individually.

Fattoria Public Market will also be a gathering place for the community and will serve as an enhanced tourist destination within Morgan Hill. The Market will include an event facility for local public and private events, farm education programs to teach the public about the rich agricultural history of Santa Clara County, an operating farm and gardens on site, demonstration gardens, a plant nursery, winery and beer gardens, a Greenhouse Tasting Room serving local food within hours of harvest, and a food truck venue.

Fattoria Public Market will serve as a year-round destination for foodies of all ages to come together in a one of a kind space designed to unite the agricultural producers of our region with the local consumers that they serve. Its presence will support local agriculture, agritourism, and the arts while connecting South Santa Clara, San Benito, and Monterey
County producers to the Bay Area markets.

Why here in South Santa Clara County/
Morgan Hill?
Increased agricultural infrastructure in our community means:
• Improved efficiency and sustainability of the local food system and increased food availability.
• Increased access to healthy foods, especially fresh produce (fruits and vegetables), in underserved communities;
• Increased support for the continued viability of agriculture; • Increased focus on agritourism, creation of new jobs locally and development of new economic opportunities
• Opportunity for partnership with Silicon Valley Clean Energy for Agrivoltaics demonstration and usage
• Preservation of valuable farmlands
• Revenue Generation for Morgan Hill
Credit: DeDAKKAS

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4 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land What is a Food Hub?
The USDA defines a food hub as a “business or organization that actively manages the aggregation, distribution, and marketing of course-identified food products primarily from local and regional producers to strengthen their ability to satisfy wholesale, retail, and institutional demand.” Agricultural infrastructure commonly is defined to encompass aggregation, packing, processing, storage, marketing and distribution capacity and facilities, including “food hubs.” The Food Hub is an extension of the core retail component of the Fattoria Public Market, extending the reach from individual retail consumers to industrial buyers.

What problems can it solve?
The challenge for Small-Medium Sized Agricultural Producers:

Limited Distribution and Marketing Capacity — Producers often don’t have the available capital or access to facilities to store, process, and distribute their products. Furthermore, due to limited staff or lack of experience, they are not always able to devote the attention necessary to develop successful business relationships with key wholesale buyers or have the resources to develop an effective marketing strategy by themselves.

The challenge for Institutional Buyers:

Logistics — Wholesale buyers often find it too costly to purchase products directly from numerous farms and prefer to reduce transaction costs by buying product from distributors.

Consequently, regional food hubs have emerged as an effective way to overcome these infrastructural and market barriers. For those smaller and mid-sized producers who wish to scale up their operations or diversify their market channels, food hubs offer a combination of production, distribution, and marketing services that allows them to gain entry into new and additional markets that would be difficult or impossible to access on their own. For larger producers, food hubs can provide the product-differentiation strategies and marketing services to ensure the best possible price in the market place.

Moreover, for wholesalers, distributors, retailers, and food service buyers who would like to purchase larger volumes of locally and regionally grown products, food hubs lower the procurement costs by providing a single point of purchase for consistent and reliable supplies of source-identified products from local and regional producers.

Regional food hubs are key mechanisms for creating large, consistent, reliable supplies of mostly locally or regionally produced foods. At the core of food hubs is a business management team that actively coordinates supply chain logistics. Food hubs work on the supply side with producers in areas such as sustainable production practices, production planning, season extension, packaging, branding, certification, and food safety—all of which is done to enable these producers to access wholesale customers, such as buyers for food service institutions and retail stores. Simultaneously, food hubs also work on the demand side by coordinating efforts with other distributors, processors, wholesale buyers, and even consumers to ensure they can meet the growing market demand for sourceidentified, sustainably produced, locally or regionally grown products. 4 Credit: Plaça del Mercat de Figueres Page 355 of 431
5 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land Regional food hubs are increasing market access for local and regional producers. Institutional food buyers face
difficulty finding small and medium sized local producers who can provide a consistent supply of product. These hubs complement and add considerable value to the current food distribution system.

Regional food hubs are having significant economic, social, and environmental impacts within their communities. In
addition to core operational facilities, the Fattoria Public Market food hub can provide training and assistance in areas such as sustainable production, season extension, postharvest handling, branding, certification and food safety.

Public markets increase agritourism opportunities for all members of the community including hotels, restaurants, wineries, and travel and leisure activities. Agritourism is becoming increasingly popular in large and small communities across the country – and for good reason. Today’s travelers have become bored with mundane and predictable tourist
trap activities; instead, today’s travelers crave adventurous, immersive, and valuable experiences. Agri-tourism provides the unique opportunity of mutual benefit between both the community’s visitors and the local farms and businesses that help establish these location’s character and history. Through agri-tourism, cities and farms are able to teach the rich history of local agriculture through operations and leave a lasting impression upon curious visitors wanting to truly experience and connect with their food, drink, flora, and fauna.

Fattoria Public Market will be designed and constructed as a model for regenerative agriculture, architecture and building construction. The development seeks to demonstrate opportunities for zero waste local food infrastructure and regenerative agriculture that operates without the use
of fossil fuels by utilizing both bio-based practices and technological solutions to limit our extraction of natural resources such as energy and water. Energy efficiency will be achieved through bio-climatic architecture and design, rooftop solar, agrivoltaics, and wind energy; On-site water management including permeable surfaces, bioswales and
rainwater harvesting will be deployed for recharging the aquifer and reducing water use. Water efficiency including waterless urinals, composting toilets, low flow fixtures, drips, drip irrigation, and greywater treatment will be implemented.

Composting, waste management stations, and biodigester will be incorporated to turn compost and manure into nutrients, and back in the soil as a demonstration of regenerative farming. The diverse crops, pollinator gardens, farm animals, and bee farming altogether provide a rich biodiverse habitat for sustainable farming, education, and agricultural tourism.

Our Vision for Fattoria Public Market
The following programming elements for the Fattoria Public Market create a synergy that is not only engaging and
invites participation, but also educational and demonstrates sustainable living. The spaces, both interior and exterior, support adjacency of activities and encourages gathering of community agricultural and hospitality businesses.
• Main Building houses both the Indoor Public Market and the Regional Food Hub. The Indoor Public Market would
allow the community to have access to local, year-round agricultural products on a consistent basis. The space
would accommodate year-round producers that meet
the requirements of County Health Regulations (e.g. fish mongers, butchers). The Regional Food Hub encompassing
cold storage, dry storage, co-packing and collaborative services including packing, distribution and marketing. It also includes commercial kitchen for food processing and catering/food truck use.
• Outdoor Canopy for seasonal producers. These spaces
would allow seasonal agricultural producers an opportunity to market their products efficiently without the burden of attending parking lot farmers markets and pop-up roadside stands.
• Post and beam Indoor Event Facility and Outdoor Event Facility available for use by individuals, corporate and government entities, and large-scale public events,
workshops, retreat and celebration.
• Farm to Fork Demonstration and Tasting Venue – Farm to Fork- serving seasonal dishes featuring locally grown food that is prepared and served by local chefs within hours of being harvested.
• Outdoor Piazza will be centrally flanked by the Main
Building, Outdoor Canopy, Indoor Event Facility, and
Farm to Fork Tasting Venue. The design intent is for all indoor programming to easily expand into the Piazza to
accommodate outdoor gathering and seating. The Piazza
will host outdoor performances and varying gathering sizes while highlighting views of the farm.
• Wine and Beer Garden – allowing local winemakers and
brewers to collaborate on tastings and events.
• Co-op Farm onsite including livestock, composting,
demonstration farms, bee sanctuary, fungi lab, and gardens, and plant nursery. 3rd Party container vertical farming may also be incorporated on-site. Landscape berm might be provided along the highway to provide noise buffer.

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6 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

2. Estimated Timeline of
Development and Operations
Design, Documentation, and Entitlements: 1-1/2 to 2 Years The master planning/ conceptual design phases through permitting may follow the timelines below and will include approvals from different Authorities Having Jurisdiction (AHJ’s). As the proposed property is not within Morgan Hill city limits and considered part of County of Santa Clara, reviews and approvals will bridge between city and county agencies. The following list is assumed but not limited to:
• Local Fire Department
• County Health Department
• City and County zoning, planning and building review agencies • Wet and Dry Utility Companies
• Public Right-Of-Way and Traffic Engineer AHJ
See the forthcoming section on County Zoning and Permitting for additional information. *It is assumed that planning approval may run concurrently with design development and construction document phases. If planning approval is required prior to drawing documentation, this may add an additional 6 months to the process.

Construction Administration: 1 Year
2023 2024 2025 2026 SEP OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR APR MAY JUN

JULAUGSEP

NEGOTIATE DETAILS AND FINALIZE CONTRACT WITH CITY OF MH

MASTER PLANNING/CONCEPT DESIGN

ENTITLEMENTS/DISCRETIONARY APPROVALS
DESIGN DEVELOPMENT *

CONSTRUCTION DOCUMENTS

BUDGET/COST ESTIMATING

BIDDING/CONTRACTING

PERMITTING (FAST TRACK PROCESS FOR AG USAGE)

CONSTRUCTION

FUNDRAISING

OPENING

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7 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

3. Anticipated Use Levels, Target
Markets, and Preliminary Vehicle
Access Planning
Target Markets
• Consumers — Individual consumer, including local residents and tourists, wanting to purchase fresh, local agricultural products, learn about agricultural practices or eat and drink at an inspiring venue.
• Institutional Buyers — Industrial buyers including schools, hospitals and restaurants looking to purchase a wide array of fresh local agricultural products at wholesale pricing.

Day to Day Operations
The major uses of the property are proposed as follows:
• Year-Round Indoor Farmers Market
• Food Hub for local farmers, ranchers, and other food
producers
• Event “Barn” with indoor and outdoor event spaces
• Nursery for vegetable starter plants and other native and drought tolerant species
• Wine and Beer Garden for local winemakers and brewers • Operating farm surrounding the improvements including demonstration gardens.
• Educational programming with local public and private school districts focused on climate smart agriculture and regenerative farming in practice
• Special Events such as cooking demonstrations, cooking classes, gardening classes, seasonal pumpkin patch, “Live” Christmas tree farm, school field trips, and food truck experiences.
• Annual Community Harvest Festival highlighting the grape harvest and the South County Wine Trail. This family
friendly festival can help fill the void from other Morgan Hill festivals that have been recently suspended.

Site Access and Circulation Reviews
Fehr & Peers will assist the development team by providing multimodal site access and circulation recommendations
early in the process to minimize site design changes later in the environmental review process. We will participate in two site plan review cycles. With each review cycle we will help the development team refine the multimodal access and circulation of the project and assist on any traffic-related planning approval. We will focus on the following:
• Pedestrian access and circulation including street-oriented entrances, pathways to transit, driveway treatments, and pathways to parking.
• Bicycle access and circulation including routes to bike parking.
• Vehicle access and circulation including street and
driveway locations and permitted driveway turn
movements.
• Emergency and service vehicle access.
• On-street and off-street loading areas for transportation network companies, taxis, shuttles, trucks, and waste
management/garbage truck access.
• Location of car-share parking (if any).

Credit: Xiafu Farmers’ Market

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8 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

4. Detailed Description of
Understanding of County Zoning
and Permitting
The County policies have identified this area for agricultural and resources preservation designating the site as appropriate for “Agricultural Medium Scale” land uses, designation within the “Scenic Roads Combining District,” and zoned “Agriculture Preservation.” To implement the land use and policies desired by the county, the proposed development plan aligns with the land use intent, zoning purpose, use regulations, and development standards for the A-20ac-sr zoning category of Santa Clara County. The intent is to create a mixed-use, sustainable, agriculture-based destination to demonstrate best practices through the creation of a Public Market and Food Hub.

A use permit will be required for the Event Structure and the Farm to Fork Tasting Venue to ensure that use of these elements can be supported by the site and to account for their environmental impacts. The Event Structure will be used for a variety of activities from educational to entertainment programming for people visiting the site and bringing people to the site. The Farm to Fork Tasting Venue will engage people in the preparation of local, site food resources through a test kitchen and on-site food offerings. Application will be made to the Santa Clara County Planning Commission for approval of the use permits as part of the entitlement process prior to development of the site.

All components described in this proposal are permitted under current zoning but may be subject to use permits and architectural site approval. Preliminary meetings have been held with key stakeholders in Santa Clara County who support this proposal and are supportive of its development on this parcel.

Permitted Uses:
• Food Hubs for local farmers and ranchers
• Operating Farm on site
• Demonstration Gardens
• Seed Starting and Plant Nursery
• Year-Round Indoor Farmers Market allowing farmers to sell directly to consumers
• Educational Programs and Field trips for educating
children and adults about the history of agriculture in the area as well as the future of farming
• Beer Garden and Wine Garden for local brewers and
vintners to sell direct to consumers.
• Greenhouse Tasting Room
Credit: Getty Salad Garden

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9 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

5. Incorporation of Solar Agriculture
Component (Agrivoltaics)
One of the guiding principles of Fattoria Public Market is to educate the community, farmers and our policy makers about farming practices that are climate smart.

Agrivoltaics is a new form of solar energy for agricultural systems that can be demonstrated on-site. We have had
discussions with Tony Eulo at Silicon Valley Clean Energy and indicated a willingness to work with SVCE on an area dedicated to demonstration of an agrivoltaics system as part of the Climate Smart Agriculture program at Fattoria Public Market.

Some of the benefits of Agrivoltaics include:
• Farmers benefit from utilizing farmland to grow crops as well as produce energy
• Agrivoltaics protect certain plants and soils from the harmful effects of direct sun exposure all day, making them yield more, and by keeping the soil cooler they require less water.

Credit: Dennis Schroeder / NREL Page 360 of 431
10 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

6. Lease Payment and/or Desired
Financial Agreement with the City
It is our understanding that the City of Morgan Hill will continue with the existing organic farm lease on a month to month basis with existing tenant until such time as we have secured all necessary approvals and permits from Santa Clara County and commence construction.

At the start of construction and development Fattoria Public Market, lease payments would be made to the City of Morgan Hill at the rate of $13,000 per year. (Based on $500/acre per ag land value.)
Fattoria Public Market opens to the public and is operating at a net profit, the City of Morgan Hill will be paid an additional 10% of net revenue from operations. (e.g. Net Revenue in 2026 is $500,000, the City of Morgan Hill would receive an additional $50,000)
Lessee to have an exclusive option to purchase the property anytime during the lease term at the unimproved Agricultural Land Value at the time option is exercised.

Lease term to be 15 years.

Credit: Chef Josh Sutcliff at Profound Microfarm
Credit: Restaurante Shiro Peralada

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11 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land

7. References and Past Work
San Pedro Square Market
Tom McEnery, Steve Borkenhagen
Food hall with a mix of boutique food eateries
and beer, wine and cocktails. Terra Amico
was the primary designer/builder of furniture,
fixtures, and millwork. Salvaged and repurposed
historic elements from project site.

San Jose, California
Reference
Steve Borkenhagen, Partner and Market Manager
[email protected] | 408.813.5984
Relevant Program Elements
Food Hall; Public Market; Eateries; Bars
Terra Amico Corporation
Terra Amico is more than just a furniture company – it’s a family. Founded in 2010 by certified green builder Joe, and his wife Lisa, Terra Amico revolves around the idea of long term sustainability. It aims to create unique, stylish, and functional furniture for all spaces and needs.

Terra Amico is now one of the largest custom wood and steel furniture/fixture/millwork manufacturers in the state of California.

The company has artfully handcrafted custom furnishings for thousands of clients. From homes, to restaurants, to offices, hotels and retail stores, Terra Amico furniture is present at many locations across the country and even the world.

We are a team of almost 30 people, who are passionate about what we do, and thankful for the opportunity to do what we love.

In addition to fabricating unique statement pieces of furniture, we are proud to be teaching the art of woodworking to the next generation. All of our children have worked with us, as well as most of their friends. We are fortunate to be able to see our passion for creating and fabricating handed down as the torch is passed to the next generation.

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12 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land State Street Market
Bon Appetit, Los Altos Community Investments
Designed and fabricated furniture, millwork, fixtures, planters, and displays.

Los Altos, California
Reference
Robert Hindman, Managing Director Los Altos
Community Investments
[email protected] |
408.841.6366
Relevant Program Elements
Food Hall
Google, Inc., eBay, Paypal, Pinterest, Amazon
One Workplace, Pivot Interiors, InsideSource
Designed and fabricated furniture, millwork, fixtures, displays, office furnishings, barn doors, and various creative projects including “adult” playgrounds, dog parks and RV themed workspaces.

Nationwide
Reference
Mark Bulman, Account Executive, One Workplace
[email protected] | 408.667.4586
Relevant Program Elements
Creatively Enhanced Workspace; Corporate Cafes;
Collaborative Work Areas
Bay Area Bars and Restaurants
Orchard City Kitchen, Paper Plane, Luna Mexican Kitchen, Sushi Confidential, Palmerinos
Designed and fabricated furniture, millwork, fixtures, displays, lighting Northern California
Reference
Randy Musterer, Founder and CEO, Sushi
Confidential
[email protected] | 408.761.7341
Relevant Program Elements
Restaurants; Bars

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13 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land Multistudio
Multistudio has been in business for 49 years,evolving from an architecture firm to a multidisciplinary practice that also includes brand experience, city design, education design, and interiors. Our team consists of members of different backgrounds, disciplines, and practice areas to help insure that the spaces we design connect with the people they are intended for. Our process is highly collaborative and investigative. We immerse ourselves in specifics of the site and seek to uncover the unique challenges and opportunities as we aspire to establish a strong source of pride and identity for the city of Morgan Hill. We enter into this opportunity with the intention of creating an experience that improves the community’s relationship to their local food system, stokes urban vitality and promotes people’s health, happiness, and well-being.

The depth of our expertise in the hospitality sector helps us conceive spaces, such as the one proposed, that all visitors find welcoming, easy to navigate, and memorable. We aim to develop a compelling brand idea that can be expressed holistically over a connected system of interrelated touchpoints. These touchpoints may include physical environments, graphics and interiors, amenities and activities, digital platforms, entertainment and educational programs. Ultimately we are charged with orchestrating and enhancing a dynamic and cohesive experience that resonates with audiences and reinforces the regenerative food hub mission.

Master Plan of The Center for Food and Agriculture
Marin Institute of Agriculture
A zero-waste farmers market and educational space dedicated to healthier food culture. The Center will foster deeper connections between our community and their favorite farmers’ market, and advance the collective efforts for better food, a cleaner climate, and economic justice for a part of the renewed food system.

Marin, California
6,820 sqft (4.7 acre site)
Reference
Andy Naja-Riese, CEO, Agricultural Institute of
Marin
[email protected] | 415.472.6100
Relevant Program Elements
Visitor Center; Demo Kitchen; Workshop Meeting
Rooms; PV Canopy; Plaza; Education Farm Garden;
Greenhouse; Climate Garden; Learning Yurt;
Farmer’s Market; Restroom Stations; Cold Storage
Yosemite Valley
Aramark
Working with Aramark, we redesigned the concession spaces to maximize the enjoyment of nature; improve circulation to move visitors from entry to eating more efficiently; and celebrate the history of the park and unique story of each destination.

Yosemite National Park
18,000 sqft (Degnan’s); 22,000 sqft
(Base Camp); 17,800 sqft (Curry Village)
Reference
Bob Concienne, Vice President of Operations,
Aramark
[email protected] | 720.255.9548
Relevant Program Elements
Eateries

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14 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land The American Royal
American Royal
The new complex is envisioned as an innovative hub for agricultural education and events that combines diverse programs, including 5,000- seat and 3,500-seat arenas, an outdoor arena, exposition barns, a museum, an exhibition hall, and outdoor festival space to host a range of industry events, rodeos, and horse shows, as well as an education and welcome center for food and agricultural education.

Kansas City, Kansas
1,000,000 sqft
Reference
Peter Lacy, President, Lacy & Company
[email protected] | 816.531.7000
Relevant Program Elements
Auditorium, Barns, Educational Exhibits, Kids
Programming, Bar, Cafe, Outdoor Plaza with Event
Space, Festival Grounds
BASE Landscape Architecture
BASE Landscape Architecture is an optimistic and insatiably curious team with a portfolio that spans multiple sectors and typologies, including education and play, parks and gardens, residential, and public spaces. BASE is a Woman & Minority-Owned Business Enterprise (WMBE) and a Local Business Enterprise (LBE) in San Francisco, with another office in beautiful Portland, Oregon.

Treasure Island Job Corps Farm
Treasure Island Job Corps
The one acre Treasure Island Community Farm was designed with a strong focus on educational and highly productive agricultural programs. Patricia Algara, along with Willow Rosenthal of City Sliker Farms, and Architecture for Humanity consulted with the Job Corps center to develop a farm plan that included the farm site design and a planting plan of specific crops that had been researched and tested as the best producing crops for this area. The plan also included methods to integrate green construction of the planting beds and various structures (chicken coop, greenhouse, farm stand, etc.) that the students could perform themselves
Treasure Island, California
1 acre site
Reference
Corey Block, Farm Coordinator, Treasure Island Job
Corps
[email protected] | 415.217.7999
Relevant Program Elements
Farm, Gardens, Greenhouse, Farm Stand

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1 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land — Conceptual Site Plan

8. Conceptual Site Plan
18 24
23 19
17 22 16
20 15
14 8
10 11
4 3
9 1
2 12
13 5
7 21
25 26
Tennant Ave
Murphy Ave
S Valley Frwy
N
Fisher Ave
123456789
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 Pedestrian Entry Plaza with Wind Turbine Tree
Indoor Public Market & Regional Food Hub
Outdoor Canopy
Piazza
Event Facility
Farm to Fork Tasting Venue
Nursery
Wine & Beer Garden
Bike Parking
Guest Parking
Rideshare Pick up / Drop off Point
Support Parking & Delivery
Waste Management
Domestic Animals: goats, chicken, & cows
Climate Educational Garden
Soil Lab + Biodigester
Compost
Co-op Farm
Fungi Lab
Fruit Trees Garden
Pollinator Shelters & Garden
Acoustic Orchard Berm
Cistern
Agrivoltaics
Pedestrian Gateway
Potential MoGo Stop
6

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2 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land — Conceptual Site Plan

1. Pedestrian Entry
Plaza with Wind
Turbine Tree

2. Indoor Public
Market & Regional
Food Hub

3. Outdoor Canopy

4. Piazza

5. Event Facility
1 2
3 4 5
Credit: New World Wind
Credit: Östermalms Food Hall
Credit: Harbour Market Vodice Credit: Puerto Protal’s Farmers Market Credit: The Barn at Botley Hill by Haley Bray Photography

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3 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land — Conceptual Site Plan

6. Farm to Fork
Tasting Venue

8. Wine & Beer
Garden

14. Domestic
Animals: goats,
chicken, and, cows

15. Climate
Educational Garden

16. Soil Lab +
Biodigester
14 15 16
Credit: Goat Feeding / Freepik.com
Credit: Agricultural Institutute of Marin — The Center for Food & Agriculture (for illustrative purposes only) | Multistudio + April Philips Design Works
Credit: BASE Landscape Architecture
Credit: Kony V Design Atlanta Beer Garden
6 Credit: DeDAKKAS
8

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4 City of Morgan Hill RFP for Agricultural Farming Businesses to Lease City-Owned Agricultural Land — Conceptual Site Plan

17. Compost

18. Co-op Farm

19. Fungi Lab

21. Pollinator
Shelters & Garden

24. Agrivoltaics
19 21 24
Credit: Jacks Solar Farm by Werner Slocum NREL
Credit: BASE Landscape Architecture
Credit: BASE Landscape Architecture
17 18
Credit: Hirzel Farms Credit: reNature. agroforestry

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REAL PROPERTY AGREEMENT
This Option to Lease and Lease with Option to Purchase ("Agreement") is entered into and becomes effective on ____________ 2024 (“Effective Date”), by and between the City of Morgan Hill, a California municipal corporation (''CITY") and Fattoria Public Market, Inc., a California corporation ("LESSEE"). LESSEE and CITY are sometimes referred to herein individually as a "Party", and collectively as the "Parties."

RECITALS
A. The CITY currently owns approximately 25.8 acres of property at the southeast corner of the intersection of Highway 101 and Tennant Avenue (“Property”), identified by assessor parcel numbers 817-14-004, 817-14-005, and 817-14-009, located in the unincorporated area of Santa Clara County adjacent to the CITY boundary. The Property is owned for the purpose of agricultural preservation. The Property is currently being used for agricultural purposes: the planting, growing, harvesting, and selling of crops.

B. The CITY desires to find a tenant for the land that provides an agricultural benefit to the CITY for which the use is aligned with the County of Santa Clara’s zoning, with the ultimate goal of transferring the Property to a third party for agricultural purposes and preservation.

C. In June 2023, the CITY released a Request for Proposals seeking a private agricultural farming business to lease the CITY-owned agricultural land.

D. Terra Amico, Inc. submitted a proposal for the development of a Public Market and Regional Food Hub (“Public Market”) on the CITY-owned agricultural land. Fattoria Public Market, Inc. has been formed for the purpose of implementing the proposal.

E. The Parties desire to work jointly to explore the potential use of the Property.

F. The Parties desire to enter into an agreement by which prospective LESSEE shall have an option for a prescribed period to lease the premises.

G. Prospective LESSEE additionally desires to acquire the exclusive right to purchase the Property under the specific terms in this Agreement.

In consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as follows:

OPTION TO LEASE
SECTION ONE.

CREATION OF OPTION
LESSEE is granted an option to lease Property owned by CITY on the terms as provided in this Agreement. This option shall be valid for five years from the Effective Date for the due diligence and planning period and must be exercised on or before the date of expiration of option, or it shall expire.

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CITY may terminate this option if prospective LESSEE is not diligently pursuing entitlements for a period of 12 months or more from Santa Clara County.

SECTION TWO.

EXERCISE OF OPTION
A. LESSEE may exercise this option to lease the Property at any time during the term of the option by giving written notice no later than June 15 of the year prior to starting the lease on January 1 to CITY of its intention to exercise the option. Notice shall be given to:

Chris Ghione, Public Services Director
17555 Peak Ave.

Morgan Hill, CA 95037
B. CITY will prepare and deliver a written lease agreement containing terms as provided in this agreement (“Lease”) and shall receive the first year’s payment of rent under the Lease from LESSEE, on delivery of the executed Lease.

SECTION THREE.

FORM OF LEASE
Any Lease agreement subsequently executed by the Parties shall be drafted to comply with all local and state requirements for leases. The Lease shall be in substantially the same form as the lease form attached to this Agreement as Exhibit C.

SECTION FOUR.

AGRICULTRUAL PRESERVATION
Preserving the Property for agricultural purposes is the primary goal of the CITY in entering into the Agreement. CITY reserves the right to place an agricultural easement on the Property at any time during the length of this Agreement.

SECTION FIVE.

OPTION TO PURCHASE
A. Prospective LESSEE shall have the option during the term of the Lease to purchase the Property and the buildings and facilities located on the Property at a price based on the appraised fair market value of the Property. As described in the Lease, certain conditions precedent must be met prior to exercising the option to purchase.

B. Prospective LESSEE must give written notice to CITY of its intention to exercise the option granted in this Section Five as described in the Lease.

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C. The fair market value of the Property shall be determined by an independent appraisal by a qualified individual or firm to be agreed to by the Parties as more specifically described in the Lease.

SECTION SIX.

STANDARD TERMS
A. Jurisdiction; Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California. Jurisdiction over any disputes arising out of this Agreement shall be vested in the courts of the County of Santa Clara, State of California. Venue of any action brought in connection with the Agreement shall lie in Santa Clara County Superior Court.

B. Time is of the Essence. Time is of the essence in each and all of the provisions of this Agreement.

C. Waiver. The waiver by either party of a breach or event of default by the other party of any agreement herein shall not be deemed to be a waiver by that party of any covenant of the Agreement. Such waiver by either party shall not constitute a waiver of any future breach by the other party of the same or other covenants of this Agreement.

D. Severability It is agreed that if any covenant, condition, or provision contained herein is held to be invalid by any court of competent jurisdiction, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained.

E. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, and any representation or statements heretofore or contemporaneously made with respect to such subject matter, whether oral or written, are merged herein. Except as otherwise expressly provided in this Agreement, this Agreement may be altered or amended only by written instrument executed by both Parties hereto.

F. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.

G. Signatures. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective entities.

H. 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.

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Exhibit A
Capital Investments
Main Building houses both the Indoor Public Market and the Regional Food Hub. The Indoor Public Market would allow the community to have access to local, year-round agricultural products on a consistent basis. The space would accommodate year-round producers that meet the requirements of County Health Regulations (e.g. fish mongers, butchers). The Regional Food Hub encompassing cold storage, dry storage, co-packing and collaborative services including packing, distribution and marketing. It also includes commercial kitchen for food processing and catering/food truck use.

Outdoor Canopy for seasonal producers. These spaces would allow seasonal agricultural producers an opportunity to market their products efficiently without the burden of attending parking lot farmers markets and pop-up roadside stands.

Post and beam Indoor Event Facility and Outdoor Event Facility available for use by individuals, corporate and government entities, and large-scale public events, workshops, retreat and celebration.

Farm to Fork Demonstration and Tasting Venue – Farm to Fork- serving seasonal dishes featuring locally grown food that is prepared and served by local chefs within hours of being harvested.

Outdoor Piazza will be centrally flanked by the Main Building, Outdoor Canopy, Indoor Event Facility, and Farm to Fork Tasting Venue. The design intent is for all indoor programming to easily expand into the Piazza to accommodate outdoor gathering and seating. The Piazza will host outdoor performances and varying gathering sizes while highlighting views of the farm.

Wine and Beer Garden – allowing local winemakers and brewers to collaborate on tastings and events.

Co-op Farm onsite including livestock, composting, demonstration farms, bee sanctuary, fungi lab, and gardens, and plant nursery. 3rd Party container vertical farming may also be incorporated on-site. Landscape berm might be provided along the highway to provide noise buffer.

The Property shall be developed in general conformance to the Site Plan attached to the proposal, subject to the County’s approval.

Site access and circulation is described in the Proposal, and is subject to review by the City and approval by the County.

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Exhibit B
Proposed Uses
The major uses of the property are proposed as follows:
• Food Hub for local farmers, ranchers, and other food producers • Event “Barn” with indoor and outdoor event spaces
• Nursery for vegetable starter plants and other native and drought tolerant species • Wine and Beer Garden for local winemakers and brewers • Operating farm surrounding the improvements including demonstration gardens. • Educational programming with local public and private school districts focused on climate smart agriculture and regenerative farming in practice. • Special Events such as cooking demonstrations, cooking classes, gardening classes, seasonal pumpkin patch, “Live” Christmas tree farm, school field trips, and food truck experiences.
• Annual Community Harvest Festival highlighting the grape harvest and the South County Wine Trail.
• Seed Starting and Plant Nursery
• Educational Programs and Field trips for educating children and adults about the history of agriculture in the area as well as the future of farming. • Work with SVCE on an area dedicated to demonstration of an agrivoltaics system as part of the Climate Smart Agriculture program as described in the Lease. • The continuation of basic farming.

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EXHIBIT C
Contents
PROVISIONS OF LEASE ..................................................................................................................................2

1. Parties and Premises.............................................................................................................................2

2. Term.....................................................................................................................................................2

3. Rent ......................................................................................................................................................2 4 Usage....................................................................................................................................................4 5 Maintenance and Alterations................................................................................................................5 6 Insurance Types and Amounts; Indemnity...........................................................................................6

7. Damage or Destruction.......................................................................................................................10

8. Default and remedies..........................................................................................................................11

9. Capital Investments............................................................................................................................13

10. Option to Purchase.........................................................................................................................13

11. Assignment and Subleasing ...........................................................................................................15

12. Nondiscrimination..........................................................................................................................15

13. Hazardous Materials......................................................................................................................16

14. Termination....................................................................................................................................16

15. Taxes..............................................................................................................................................17

16. Notices...........................................................................................................................................17

18. Governing Law. .............................................................................................................................19

17. Waiver............................................................................................................................................19

18. Severability ....................................................................................................................................19

19. Entire Agreement...........................................................................................................................19

20. Amendment....................................................................................................................................19

21. Time is of the Essence. ..................................................................................................................19

22. Binding Effect................................................................................................................................19

23. Authority........................................................................................................................................19

24. Interpretation of Conflicting Provisions ........................................................................................19

25. Proposal .........................................................................................................................................19

25. Successors and Assigns..................................................................................................................20

26. Third-Party Rights. ........................................................................................................................20

27. Headings ........................................................................................................................................20

28. Construction of Lease ....................................................................................................................20

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29. Incorporation of Recitals................................................................................................................20

30. Recordation of Lease .....................................................................................................................20

31. Counterparts...................................................................................................................................20

PROVISIONS OF LEASE

1. Parties and Premises.

1.1. The parties to this LEASE as described herein are the City of Morgan Hill, a California municipal corporation (“CITY”) and Fattoria Public Market, Inc., a California corporation (“LESSEE”). LESSEE and CITY are sometimes referred to herein individually as a "Party", and collectively as the "Parties."

1.2. The premises to be leased are owned by the CITY consisting of approximately 25.8 acres of property at the southeast corner of the intersection of Highway 101 and Tennant Avenue (“PREMISES”), identified by assessor parcel numbers 817-14- 004, 817-14-005, and 817-14-009, located in the unincorporated area of Santa Clara County adjacent to the CITY boundary. It is the intent to lease the entire PREMISES.

2. Term. The term of the lease (“LEASE”) shall be for ten years effective as of the Commencement Date, with the option to extend for two additional five-year periods as described below (“Lease Term”).

2.1. The Commencement Date shall be January 1 in the year the LEASE begins.

2.2. Option of LEASE Extension of two additional 5 Year Terms if Capital Investment and Goals are met as described in Section 9.

2.3. Either Party may terminate the LEASE for cause in the event of an uncured default as set forth in Section 8 of this LEASE by providing written notice of termination to the other Party.

3. Rent.

3.1. Base rent. Payment of rent will be due in advance of each year on the first day of the year payable at $13,000 annually. Rent is considered late if paid more than 10 days after the due date.

3.2. Profit Payments as Additional Rent. Once Fattoria Public Market opens to the public and is operating at a net profit of any amount, LESSEE shall pay to CITY an additional 10% of net profit from all income generated at the PREMISES (“Profit Payment”).

3.2.1 After operations are open to the public, LESSEE shall submit financial statements to CITY as described herein:

3.2.2 Net profits shall be determined by subtracting all reasonable, actual, and necessary expenses incurred and paid for the management and operation of the Public Market (“REASONABLE EXPENSES”) from the GROSS RECEIPTS generated (“NET PROFIT”), as described below.

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3.2.3 Reasonable Expenses ("REASONABLE EXPENSES") are defined as follows:

3.2.3.1 Expenses must have a direct nexus to operations and maintenance of the PREMISES or be directly related to the direct
administration of operations and maintenance to be considered paid for the management and operation of the Public Market.

3.2.3.2 Marketing and promotion of the Public Market shall all be considered REASONABLE EXPENSES.

3.2.3.3 Capital acquisition of equipment or property over $10,000 shall not be a REASONABLE EXPENSE unless approved in writing
by the CITY prior to purchase. CITY shall consider whether the capital acquisition of equipment or property is an expense that is reasonably necessary for the operation of the Public Market when approving or disapproving the expense.

3.2.3.4 The CAPITAL INVESTMENTS outlined in Section 9 shall not be included in REASONABLE EXPENSES.

3.2.3.5 Loan repayment shall not be considered as a REASONABLE EXPENSE unless approved in advance by the CITY.

3.2.3.6 Rent paid to the City as outlined in the shall be considered a REASONABLE EXPENSE.

3.2.4 GROSS RECEIPTS Defined: For the purposes of this section and this LEASE, the term “GROSS RECEIPTS" shall mean:

3.2.4.1 The total amount of money LESSEE received for the use of the PREMISES to operate the Public Market;

3.2.4.2 The total amount of money LESSEE received for sale of any goods, services (whether or not these services are performed as a part of or in connection with the sale of goods), and

3.2.4.3 The total amount of money LESSEE received for advertising in connection with the Public Market and this LEASE.

3.2.5 GROSS RECEIPTS shall not include:

3.2.5.1 Any sales taxes, use taxes, or excise taxes required by law to be included in or added to the purchase price and collected from the consumer or purchaser and paid by LESSEE.

3.2.5.2 California Redemption Value (CRV).

3.2.5.3 Refunds from, or the value of, merchandise, supplies, or equipment returned to shippers, suppliers, or manufacturers;

3.2.5.4 Receipts from the sale (at cost) of uniforms, clothing, or supplies to LESSEE'S employees where such uniforms, clothing, or supplies are required to be worn or used by its employees.

3.2.5.5 Receipts from any sale in which the subject of such sale, or some part thereof, is thereafter returned by the purchaser to and accepted by LESSEE, to the extent of any refund actually granted or adjustment actually made, either in the form of cash or credit.

3.2.5.6 The amount of any cash or quantity discounts received from sellers, suppliers, or manufacturers.

3.2.6 Biannual Reports:

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3.2.6.1 LESSEE shall transmit a Statement of Revenue and Expense in the form of a Profit and Loss Statement (Exhibit “X”), for every six-month period during the Term. Along with the Statement of Revenue and Expense, LESSEE must pay the PROFIT
PAYMENT to the CITY.

3.2.6.2 LESSEE shall maintain and submit to the CITY monthly statistical information and reports semiannually (July-December and January- June) on the following:

3.2.6.2.1 Number of Daily Visitors to the site

3.2.6.2.2 GROSS RECEIPTS and net profits, expenses, and revenues.

3.2.6.2.3 LESSEE shall provide statistics for all hosted major events, including estimated attendance,
estimated percentage of overnight stays, average
travel distance to reach the facility. MAJOR
EVENTS are defined as those events where it is
anticipated that there will be more than 500
attendees.

3.3 Taxes and Utilities.

3.3.1 Taxes. As provided in Section 15 herein, and pursuant to California Revenue and Tax Code Section 107.6, lessee is responsible to pay all property taxes for the PREMISES, as well as pay all property taxes assessed against improvements it places on the PREMISES.

3.3.2 Utilities. The lessee shall pay the cost of water, sewer, gas, electricity, and other public or private services as applicable to the PREMISES. 4 Usage.

4.1 LESSEE shall have the right to use the PREMISES for the development of a Public Market and Regional Food Hub (“Public Market”) and for the purposes outlined in its proposal and as further described in Exhibit B, including the right to continue basic farming use of the PREMISES:

4.1.1 Fattoria Public Market will be a year-round indoor farmer’s market and food hub, purposely designed to allow local agricultural producers the opportunity to sell their goods directly to both institutional and individual consumers at their peak of freshness.

4.1.2 Fattoria Public Market will also include a regional food hub that provides cold and dry storage, production facilities, packing and distribution, and cooperative marketing services to advance local agriculture and agricultural start up endeavors.

4.1.3 Fattoria Public Market will also be a gathering place for the community and will serve as an enhanced tourist destination within Morgan Hill.

The Market will include an event facility for local public and private events, farm education programs to teach the public about the rich agricultural history of Santa Clara County, an operating farm and gardens on site, demonstration gardens, a plant nursery, winery and beer

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gardens, a Greenhouse Tasting Room serving local food within hours of harvest, and a food truck venue.

4.2 Any other uses shall require written permission from the CITY.

4.3 LESSEE shall work in good faith with the CITY and Silicon Valley Clean Energy towards the goal of the installation of agrivoltaics (Solar over agriculture) on the site. The CITY desires to maximize the possible use of 2.5 acres that do not have structures as potential agrivoltaics opportunity locations.

4.4 LESSEE shall conduct its business in a lawful manner and shall not use or permit the use of the PREMISES in any manner that will tend to create waste or a nuisance.

4.5 LESSEE shall comply, at its sole cost and expense, with any and all laws, ordinances, rules, regulations, or orders of any federal, state, or local government which may apply to the operation of the Public Market and Regional Food Hub.

4.6 LESSEE shall conduct farming of the PREMISES in full compliance with all local, state, and federal rules regarding the use of fertilizers and pesticides.

4.7 PREMISES are leased to lessee on an “as is” basis. Prior to entering into this LEASE, LESSEE has made a thorough and independent examination of the PREMISES and all matters relating to LESSEE's decision to enter into this LEASE.

LESSEE is thoroughly familiar with all aspects of the PREMISES, including its historical use for agricultural purposes, and is satisfied that they are in any acceptable condition and meet LESSEE's needs. LESSEE hereby accepts the PREMISES in its condition existing as of the Commencement Date or the date that LESSEE takes possession of the PREMISES, whichever is earlier. CITY shall have no obligation for construction work or improvements on the PREMISES, and CITY's contribution to the construction and improvements consists only of delivery of possession of the PREMISES to LESSEE in their as-is condition and with all existing faults, if any.
5 Maintenance and Alterations.

5.1 LESSEE shall take good care of the PREMISES and keep the PREMISES in good working order and in a clean, safe and sanitary condition according to the best practices of the industry.

5.2 It is intended that LESSEE shall make significant improvements to the PREMISES as described in its proposal, as further outlined in Exhibit A, at its own cost and expense (“CAPITAL INVESTMENTS”), and LESSEE may make other improvements, installations, alterations, or additions to the PREMISES subject to CITY approval (collectively referred to as “Alterations”).

5.3 Any Alterations shall not be made without CITY’s prior written consent.

5.3.1 Along with any request for consent, and prior to submittal to the County for permitting, LESSEE will deliver to CITY schematic plans for the development of the demised PREMISES and names and addresses of all prospective contractors for the Alterations.

5.3.2 CITY shall review the “schematic plans” within 60 days after their submission. LESSEE shall address all concerns raised by CITY prior to submittal to the County.

5.3.3 Prior to submittal to the County, LESSEE shall submit to CITY “working drawings” that are intended to be submitted to the County for permitting,

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for development of the demised PREMISES. CITY will review the working drawings within 60 days after their submission. LESSEE shall address all concerns raised by CITY prior to submittal to the County.

5.3.4 LESSEE will submit working drawings to County of Santa Clara for plan check and pay such fees as may be required by the County and diligently pursue any needed permits for construction.

5.3.5 LESSEE will cause all approved Alterations to be constructed (i) in a good and workmanlike manner, (ii) in compliance with all Applicable Laws (State of California, County of Santa Clara, and City of Morgan Hill laws), and (iii) in accordance with the Rules and Regulations and with any design guidelines established by CITY.

5.4 LESSEE shall pay the cost and expense of all Alterations. Prior to commencing any Alterations, LESSEE shall deliver the following to CITY in form reasonably satisfactory to CITY: (i) builder's insurance (“Builder’s Risk”) in an amount at least equal to the replacement value of the Alterations, and (ii) evidence that LESSEE and each of LESSEE's contractors have in force commercial general liability insurance insuring against construction related risks in at least the form, amounts and coverages required of LESSEE under Section 6. The insurance policies described in clauses (ii) and must name CITY as additional insureds.

5.4.1 CITY may inspect construction of the Alterations. Immediately upon completion of any Alterations, LESSEE will furnish CITY with contractor affidavits and full and final lien waivers and receipted bills covering all labor and materials expended and used in connection with the Alterations.

5.4.2 All Alterations LESSEE makes or causes to be made to the PREMISES become the property of the CITY upon installation and inspection by the CITY, excluding movable trade fixtures, equipment, and furniture. Title to all improvements placed on the PREMISES by either Party shall vest in CITY upon completion and acceptance by the CITY.

5.5 LESSEE will keep the PREMISES free from any mechanics', material providers', or other liens arising out of any work performed, materials furnished or obligations incurred by or for LESSEE. In the event that LESSEE shall not, within ten (10) days following the imposition of any such lien, cause the lien to be released of record by payment or posting of a proper bond, CITY shall have, in addition to all other remedies provided herein and by law, the right but not the obligation to cause any such lien to be released by such means as it shall deem proper, including payment of the claim giving rise to such lien. All such sums paid by CITY and all expenses incurred by it in connection therewith (including, without limitation, reasonable counsel fees) shall be payable to CITY by LESSEE upon demand. CITY shall have the right at all times to post and keep posted on the PREMISES any notices permitted or required by law or that CITY shall deem proper for the protection of CITY, the PREMISES, from mechanics' and material providers' liens. 6 Insurance Types and Amounts; Indemnity

6.1 Insurance. LESSEE 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 LESSEE, including liability for damage or

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injury to the property or person (including death) of any LESSEE, contractor of lessee, sublessee, or invitee of LESSEE or any other person entering upon or using the PREMISES, or any structure thereon, or any part thereof, and arising from LESSEE’s use and occupancy thereof, and must remain in full force and effect at all times during the period covered by this LEASE. 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. LESSEE further understands that CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to LESSEE, at any time as deemed necessary to protect the interests of CITY. The procurement of the required insurance will not be construed to limit LESSEE's liability under this LEASE or to fulfill LESSEE's indemnification obligations under this LEASE. LESSEE shall, at lessee’s sole cost and expense, obtain and keep in effect during the Term:

6.1.1 Commercial General Liability (CGL). LESSEE shall maintain CGL 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 LESSEE under LESSEE’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

6.1.1.1 CGL policy may not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.

6.1.1.2 CGL policy must include contractor’s protected coverage, blanket contractual, and completed operations.

6.1.2 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.

6.1.3 Automobile Liability. LESSEE shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if LESSEE does not own automobiles, then LESSEE 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 LESSEE under LESSEE’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

6.1.4 Workers’ Compensation Insurance and Employer’s Liability. LESSEE 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 LESSEE under LESSEE's combined insurance policies

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(including any excess or “umbrella” policies), whichever is greater. If LESSEE is self-insured, LESSEE shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.

6.1.5 Pollution (Environmental) Liability: If the performance of LESSEE’s work or service under this LEASE involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, LESSEE shall procure and maintain Pollution Liability covering LESSEE'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 LEASE. 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 LESSEE under LESSEE’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.

6.1.6 Professional Liability: If the performance of LESSEE’s work or service under this LEASE involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, legal services, and appraisers), LESSEE 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 LESSEE under LESSEE’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater. Further, if LESSEE maintains a claims-made policy, LESSEE shall provide written evidence of such insurance to CITY for at least five (5) years after the completion of work performed under this LEASE.

6.1.6.1 If the Lessee will utilize the services of a Professional Consultant to perform work associated with the improvements, then Lessee may opt to have the professional liability coverages provided by Lessee’s Professional Consultant, provided that a written contract is executed between Lessee and the Professional Consultant whereby the written contract specifically requires the Professional Consultant to fulfill the City insurance requirements as outlined in this Agreement. Verification of the written contract must be provided to City upon request.

6.1.7 Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.

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

6.2.1 General Liability, Automobile, and Pollution Liability.

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6.2.1.1 “Additionally Insured” endorsements naming the City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers as additional insureds; and

6.2.1.2 “Primary and Non-Contributing” endorsements stating that the policy is primary non-contributing.

6.2.2 For all Policies except Builder’s Risk and Professional Liability.

6.2.2.1 “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.

6.2.3 General Liability:

6.2.3.1 “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.

6.3 Qualification of Insurers. All insurance required pursuant to this LEASE 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.

6.4 Certificates. LESSEE shall 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, LESSEE shall promptly furnish CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to this LEASE shall be canceled or materially changed except after thirty (30) days' notice by the insurer 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

6.5 Indemnity. LESSEE shall indemnify, protect, defend and save and hold CITY, and its respective trustees, directors, officers, agents and employees, harmless, from and against any and all losses, costs, liabilities, claims, damages and expenses, including, without limitation, reasonable attorneys' fees and costs and reasonable investigation costs, incurred in connection with or arising from: (a) any default by LESSEE in the observance or performance of any of the terms, covenants or conditions of this LEASE on LESSEE' s part to be observed or performed, or (b) the use or occupancy or manner of use or occupancy of the PREMISES by LESSEE or any person or entity claiming through or under LESSEE, or (c) the condition of the PREMISES or any occurrence on the PREMISES from any cause whatsoever, except to the extent caused by the gross negligence or willful misconduct of CITY,

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or (d) any acts, omissions or negligence of LESSEE or of the contractors, agents, servants, employees, visitors, customers, or licensees of LESSEE, in, on or about the PREMISES. LESSEE' s obligations under this Section 6 shall survive the termination of the LEASE.

7. Damage or Destruction.

7.1 Definition. The term “casualty”, for purposes of this LEASE, includes (but is not limited to) the following acts or events:

7.1.1 Extreme events of nature including but not limited to fire, flood, bad weather, earthquake, and other similar occurrences;

7.1.2 Any act of war, terrorism, or bio- terrorism, where “bio- terrorism” shall mean the release (or threatened release) of an airborne agent or other contaminant that is or could adversely affect the Building or its occupants.

7.2 This section applies only to property in which title has vested in the CITY.

Specifically excluded is any property which LESSEE is constructing pursuant to this LEASE prior to acceptance by and transfer of title to the CITY.

7.3 If the PREMISES or any portion thereof are damaged by fire or other Casualty, CITY shall forthwith repair the same (except for Alterations installed by or on behalf of LESSEE for which title has not yet passed to CITY) provided that such repairs can be made within one hundred eighty (180) days after the date of such damage under the laws and regulations of the federal, state and local governmental authorities having jurisdiction thereof and are covered by the proceeds of any insurance maintained by CITY. In such event, this LEASE shall remain in full force and effect except that LESSEE shall be entitled to a proportionate reduction of Base Rent and Additional Rent while such repairs are being made as provided below.

7.3.1 Within thirty (30) days after the date of such damage, CITY shall notify LESSEE whether or not such repairs are covered by any insurance maintained by CITY and whether such repairs can be made within one hundred eighty (180) days after the date of such damage. CITY's determination thereof shall be binding on LESSEE.

7.3.2 If such repairs cannot be made within one hundred eighty (180) days from the date of such damage or such damage is not so covered by insurance, CITY shall have the option within thirty (30) days after the date of such damage to notify LESSEE of its election to terminate this LEASE as of a date specified in such notice, which date shall not be less than thirty (30) nor more than sixty (60) days after notice is given. If CITY notifies LESSEE that or such damage is not so covered by insurance, CITY shall either: (a) notify LESSEE of CITY' s intention to repair such damage, in which event this LEASE shall continue in full force and effect, CITY shall diligently prosecute such repairs to completion, and the Base Rent and Additional Rent shall be reduced as provided herein; or (b) notify LESSEE of CITY's election to terminate this LEASE as of a date specified in such notice, which date shall be not less than thirty (30) nor more than sixty (60) days after notice is given. If such notice to terminate is given by CITY, this LEASE shall terminate on the date specified in such notice.

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7.3.3 In case of termination, the Base Rent and Additional Rent shall be reduced by a proportionate amount based upon the extent to which such damage interfered with the business carried on by LESSEE in the PREMISES, and LESSEE shall pay such reduced Base Rent and Additional Rent up to the date of termination. CITY agrees to refund to LESSEE any Base Rent and Additional Rent previously paid for any period of time subsequent to such date of termination.

7.3.4 The repairs to be made hereunder by CITY shall not include, and CITY shall not be required to repair, any damage by fire or other cause to the property of LESSEE or any damage caused by the negligence of LESSEE, its contractors, agents, licensees or employees or any repairs or replacements of any paneling, decorations, railings, floor coverings, or any Alterations, additions, fixtures, or improvements installed on the PREMISES by or at the expense of LESSEE.

7.3.5 If CITY elects or is required hereunder to repair, reconstructor restore the PREMISES after any damage or destruction thereto, LESSEE shall, at its own expense, as soon as reasonably practicable, replace or fully repair, reconstruct or restore all Alterations installed by LESSEE and all other of LESSEE' s improvements, fixtures, and property. LESSEE hereby waives the provisions of any statute or law that may be in effect at the time of the occurrence of any such damage or destruction, under which a lease is automatically terminated, or a LESSEE is given the right to terminate a lease upon such an occurrence.

7.4 LESSEE shall have no interest in or claim to any portion of the proceeds of any insurance or self-insurance maintained by CITY. Except as otherwise provided herein, CITY shall have no interest in or claim to any portion of the proceeds of any insurance maintained by LESSEE under Section 6.

7.5 LESSEE agrees at all times after any damage to or destruction of the improvements on the PREMISES, or any portion thereof, to continue the operation of its business therein to the extent practicable. If CITY is required or elects to make any repairs, reconstruction or restoration of any damage or destruction to the PREMISES under any of the provisions of this Section 7, LESSEE shall not be entitled to any damages by reason of any inconvenience or loss sustained by LESSEE as a result thereof.

During the period commencing with the date of any such damage or destruction that CITY is required or elects hereunder to repair, reconstruct or restore, and ending with the completion of such repairs, reconstruction or restoration the Base Rent and Additional Rent shall be proportionately reduced based upon the extent to which such damage and the making of such repairs by CITY shall interfere with the business carried on by LESSEE in the PREMISES. The full amount of Base Rent and Additional Rent shall again become payable immediately upon the completion of such work of repair, reconstruction, or restoration. Except as expressly hereinabove provided, there shall be no reduction, change or abatement of any rental or other charge payable by LESSEE to CITY hereunder, or in the method of computing, accounting for or paying the same.

8. Default and remedies.

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8.1 Default by Lessee. LESSEE shall commit an event of default in the event that:

8.1.1 LESSEE shall fail to remit any payment due to CITY under Section 3 of this LEASE within ten (10) business days after receipt by LESSEE of the CITY’s written demand,

8.1.2 LESSEE or any of its officers, employees, agents, invitees, subtenants or licensees violates any other term, covenant or condition of this LEASE and such violation continues beyond thirty (30) days after CITY has provided written notice thereof to LESSEE, or if the nature of the cure of such term, covenant or condition reasonably requires more than thirty (30) days to remedy, if LESSEE does not commence the cure of such term, covenant or condition within such thirty (30) day period and diligently pursue such cure to completion thereafter,

8.1.3 LESSEE ceases to use the PREMISES or to operate its services as set forth in Exhibit B beyond thirty (30) days after CITY has given written notice to resume operation, or

8.1.4 If a trustee or receiver is appointed to take possession of substantially all of LESSEE’s assets located in the PREMISES or of LESSEE’s interest in this LEASE, where possession is not restored to LESSEE within thirty (30) days.

8.2 Remedy. On the occurrence of any such event of default, CITY may elect to terminate this LEASE (which termination shall be evidenced by a written notice of termination from CITY to LESSEE) and resume possession of the PREMISES, thereafter using the same for its own purposes without having to account to LESSEE therefor. Any partial payment of any payment due to CITY under this LEASE from LESSEE and accepted by CITY shall not render ineffective any notice given by CITY to the LESSEE pursuant to the terms of this LEASE or California Code of Civil Procedure Section 1161, et seq., or any successor statute thereto.

8.3 Default by City. CITY shall not be in default unless CITY fails to perform its obligations under this LEASE within a reasonable time, but in no event later than thirty (30) days after written notice by LESSEE to CITY specifying wherein CITY has failed to perform such obligations. If the nature of CITY'S obligation is such that more than thirty (30) days are required for performance, then CITY shall not be in default if CITY commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. LESSEE'S obligation to provide written notice to CITY of a default by CITY is limited to those instances where knowledge of CITY'S default is within the actual knowledge of LESSEE.

8.4 Remedies: If CITY fails to cure a prospective default within the time periods outlined above, LESSEE shall have the option to cure the default or to terminate this LEASE, in addition to any other remedies at law not inconsistent herewith.

Should LESSEE elect to cure the default, all reasonable costs associated with such cure, including reasonable attorneys' fees incurred and awarded as a result of any legal action or proceeding brought to enforce or interpret this LEASE (if any), shall be reimbursed by CITY to LESSEE within thirty (30) days of receipt of LESSEE'S invoice for said costs which shall be accompanied by invoice and receipts to document LESSEE’S cost to cure said default, and by any Court Order awarding

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reasonable attorney’s fees incurred to cure said default. However, upon CITY'S failure to so reimburse LESSEE within thirty (30) days of receipt of LESSEE’S invoice for said costs, at LESSEE'S option, said costs shall be deducted from rent due hereunder. If CITY'S default hereunder prevents LESSEE'S use of the PREMISES, there shall be an abatement of rental payments for the period of such non-use.

9. Capital Investments.

9.1 Capital investments are described in detail in the LESSEE’s proposal and in Exhibit A to the Real Property Agreement (“CAPITAL INVESTMENTS”).

9.2 Investment of $250,000 Capital Dollars will provide the Parties with the option to extend Lease Term by 5 years.

9.3 Investment of $500,000 cumulative Capital Dollars will provide the Parties with the option to extend Lease Term by an additional 5 years.

9.4 CAPITAL INVESTMENTS must be for improvements identified in proposal (Exhibit A to the Real Property Agreement)

9.5 CAPITAL INVESTMENTS are considered improvements on the PREMISES (not equipment or vehicles) that have a life expectancy of over 10 years.

9.6 CAPITAL INVESTMENTS shall include at least 75% hard cost investment in improvements to the PREMISES.

9.7 Soft costs such as permitting, engineering, and design costs may be counted up as up to 25% of the investment.

9.8 Hard and soft costs must be documented through detailed receipts, clearly documenting labor, materials, and any other related costs and expenses.

9.9 Operational expenses, maintenance expenses, and repairs to the PREMISES shall not be included as investment.

10. Option to Purchase

10.1 Option. LESSEE is granted an exclusive option to purchase the PREMISES on the terms and conditions of this Section 10 (“Option Agreement”).

10.2 Consideration. Consideration for the option is the commitment by the LESSEE to develop the PREMISES with the Capital Improvements as described in Section 9 above and use the PREMISES as described in Exhibits A and B to the Real Property Agreement.

10.3 Option Term. The option may be exercised at any time during the term of the LEASE, and any extended term, as described above in Section 2 (“Option Term”), provided the requirements described in Section 9 above are met.

10.3.1 LESSEE may not exercise the option during any holdover period.

10.3.2 LESSEE may not be in default of the LEASE.

10.3.3 The purchase option terminates on the termination of the LEASE for any reason.

10.4 Exercise. LESSEE may exercise this option to purchase the PREMISES at any time during the Option Term by giving written notice to CITY of its intention to exercise the option. The exercise must be exercised without condition or qualification.

Notice shall be given to:

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Morgan Hill City CouncilJune 19, 2024

Morgan Hill City Council
June 19, 2024