Morgan Hill City Council
August 28, 2024

4 Updated February 2024

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.

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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

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

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

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

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

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

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

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

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

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

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

Address of CONSULTANT is as follows:

HydroScience Engineers, Inc.

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Bill Slenter, P.E.

Address of CITY is as follows:

Development Services Center
David Gittleson P.E.

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

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

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

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

16. Maintenance of Records.

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

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

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

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

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

18. Time of Essence. Time is of the essence in the performance of this Agreement. 10569 Old Placerville Rd,
Sacramento, CA 95827 Page 199 of 468
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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.

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

9 Updated February 2024
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.

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.

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

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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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August 2, 2024
Dave Gittleson, P.E
Associate Engineer
5180 Soquel Drive
Capitola, CA 95010
Subject: Proposal to provide engineering services for Eagle View Well Site Improvements Project
Dear Dave:

HydroScience Engineers, Inc., (HydroScience) is pleased to present the City of Morgan Hill (City) with our understanding, approach, proposed staff, scope of work, budget, and schedule to provide engineering services for the design of the Eagle View Drive Well Site Improvements Project.

Understanding and Approach
The Eagle View Well will be a new production well for the City of Morgan Hill that will pump groundwater in an existing 12-inch water distribution main. Referring to the “Eagle View Test Hole and Monitoring Well Installation Summary and Design Report” (Test Hole Report), Luhdorff and Scalmanini Consulting Engineers (L&S), February 2024, the well will be used to improve the management of the City's existing water source by adding a new water supply to the distribution system. After the well construction is complete, it is expected to supply drinking water with a design capacity of 800 gallons per minute (gpm) while meeting the primary and secondary water quality standards.

The well site is currently undeveloped. It is approximately 3,600 square feet in area, located northeast of Eagle View Drive and White Moon Drive intersection in Morgan Hills, California. This project includes well development, pump selection, site development, well equipping, piping, electrical power, and associated controls for constructing a production well. The discharge piping from the new well will connect to the existing 12-inch water main on Eagle View Drive including a valve cluster. The wellhead will be constructed on a concrete pedestal, within an enclosed CMU control building that will house the pump controls.

The project will be developed in to two phases with two sets of contract documents:

1. Phase I includes drilling, developing, and testing the water quality for the production well.

The data obtained during this phase will inform the design of Phase II. HydroScience will prepare plans, specifications, and estimates for drilling a well, pump selection and water quality testing based on the results from the Test Hole report. A Preliminary Design Report (PDR) will be issued with recommendations for Phase II

2. Phase II includes well equipping, piping, site development, building, hypochlorite dosing, electrical and controls. HydroScience will prepare plans, specifications, and estimate for well equipment, piping, site development, CMU building, chemical treatment, electrical and controls, and provide engineering services during construction.

EXHIBIT A

SCOPE OF WORK

City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

HydroScience proposes to design the well facilities, the mechanical facilities required to equip a production well of up to 800 gpm capacity, including chlorination facilities for disinfection, and engineering services during construction (ESDC). The following is the project approach for the two-phase project:

Phase I – Well Drilling:

HydroScience will prepare plans, specifications, and estimates (PSE) to drill, develop, and test the well, providing the information required for pump selection for a production well. Per the Test Hole report, the water quality met all primary and secondary standards for drinking water. The test hole detected haloacetic acids, perchlorate and 2,3,7,8-TCDD (TCDD), however all were below the detection threshold of Minimum Contamination Levels (MCLs). This is consistent with other City wells in the vicinity of the Eagle View Well site.

The following are the key project elements under Phase I:

1. Develop PSE to drill, develop, and test the well. The downhole was designed by L&S.

HydroScience will prepare specifications based on this design.

2. Provide ESDC including bidding assistance for Phase I

3. Prepare a PDR to summarize the chemical treatment, pump selection, design criteria, and development of the Phase II project.

As part of this phase, HydroScience will evaluate the need for temporary sound attenuating features as recommended in the Test Hole Report. HydroScience will include the appropriate requirements for sound attenuation in the project specifications.

Phase II – Well Equipping:

It is anticipated that a deep-well vertical turbine pump will be used for this application. During the preliminary design phase, HydroScience will estimate the size and select the pump and motor that best fits the City’s pumping needs. The final pump design points will be determined based on the pump tests on the production well, Phase I results and PDR, and distribution systems hydraulics (data provided by City) and will be incorporated into the project drawings submittal.

A permanent standby generator is assumed to not be required by the City due to the smaller size of the facility. Our design will include a connection for a portable generator and a Manual Transfer Switch (MTS). The well pump and electrical equipment (VFD, panels etc.) will be housed in a CMU building as acceptable to the City.

A new 8-inch discharge pipeline from the new well will connect in to the existing 12-inch distribution main with new valve cluster on Eagle View drive. The alignment of the piping will consider future maintenance access to the well and will include a sampling port, metering and valving on the above grade discharge pipeline in the well building. The new site will be fenced and have an access gate. The facility will be configured to provide adequate maintenance access to the extent feasible on this narrow site. The layout will be coordinated with the City’s engineering and operations & maintenance (O&M) staff. The site will be graded around the proposed well for drainage and will be designed to meet the City’s small MS4 permit requirements.

It is assumed that the pumped ground water will require on-site chemical treatment (chlorination) using liquid sodium hypochlorite. Per our initial review, the chemical usage will be limited, and a August 2, 2024 Page 205 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

smaller footprint chemical storage room will be required. The design of chemical storage, handling and dosing facilities are included in this scope of work.

The following are the key project elements under Phase II:

1. A new vertical turbine pump and motor for an estimated capacity of 800 gallons per minute (gpm) capacity, driven by a new, programmable, variable frequency drive (VFD) designed to meet the City’s pumping needs.

2. The new CMU building includes a wellhead, new VFD, Motor Control Center (MCC), and electric service meter. The building will include lighting, removable skylight over the pump, chemical room, HVAC suitable for maintaining equipment environmental requirements, and floor drains.

3. The new 8-inch discharge pipe will connect with the existing 12-inch water main on Eagle View Drive. Sewer and storm drain connections from the site will connect with the utilities in the adjacent roadway. A well startup discharge connection will be included at the storm drain connection with a required air gap.

4. A new electrical power connection, transformer, and coordination with PG&E is included.

Provision for connecting to a portable diesel generator and a Manual Transfer Switch (MTS) is included. MTS will have an interlock to shut off the portable generator when main power is re-established after a disruption.

5. Provide radio-based telemetry between the new well and the City’s Control Center (SCADA). A radio study is assumed to not be necessary.

6. Site development design including grading, drainage, paving, access gate and fencing, neighborhood friendly landscaping features, and lighting for maintenance.

Staff
Jigar Shah is a Senior Project Manager at HydroScience and has over 23 years of mechanical pumping and pipeline design and related project management experience. He will be the Project Manager for your project.

Bill Slenter will serve as the Principal-in-Charge of this project. He will be the City’s contractual point of contact and a backup to Jigar. Bill will ensure that contractual and quality control requirements are met and that adequate resources are assigned at all times.

The team organizational chart is provided below, and brief bios follow. Additional details including complete resumes are available upon request.

August 2, 2024 Page 206 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

Team Bios
Bill Slenter, PE. Principal-in-Charge.

Bill brings 32 years of experience in the
planning, design, and rehabilitation of a
wide range of water and wastewater
facilities, including involvement in three
other projects for the City. As a principal
of HydroScience, he will oversee the
project, allocate resources as necessary,
and serve as an alternate point-ofcontact for the City.

Jigar Shah, PE. Project Manager. Jigar
has 23 years of experience in the
planning, design, rehabilitation and
construction management of water,
wastewater and recycled water projects.

He will be responsible for overall project
delivery, scope, and project
management. He will be the City’s main
point of contact and will be involved in
day-to-day project activities, providing
the vision the project requires and
working with key personnel to ensure the
project’s overall success.

Sim Blake, PE. QA/QC / Well Expert.

Sim is a licensed Grade T4 Water
Operator with 34 years of experience in
planning, design, and construction
management of conventional and advanced surface water treatment plants, water tanks, wells, pump stations, and numerous pipeline projects. A Principal with HydroScience, Sim has special expertise in well design and has provided quality control on all HydroScience’s significant well projects.

Austin Poulson, Civil/Process Design. Austin has 9 years of engineering design experience, including the design of water and wastewater treatment systems, pump stations, pipelines, wells, water storage tanks, site drainage, grading and paving, and fire protection systems. Austin’s capabilities include site civil design in AutoCAD Civil3D and encompass grading, paving, drainage, and design of retention basins.

Thinh Le, PE. Electrical Engineering. Thinh is an electrical, instrumentation and controls engineer with 21 years of experience on a variety of water and wastewater projects. Thinh has an extensive working knowledge of electrical project development including analysis, SCADA systems, network and communication security, industrial automation controls, emergency and standby power, and electrical power systems.

August 2, 2024 Page 207 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

VE Solutions, Structural. VE Solutions is a full-service structural engineering firm located in Sacramento. The firm designs cost-effective engineering solutions for steel, concrete, prestressed concrete, masonry and wood buildings and structures, as well as rehabilitation of existing damaged structures. VE Solutions has completed more than 300 projects for a wide variety of local and statewide clients, including dozens of projects with HydroScience.

Sigerson Architects, Architectural. Sigerson Architects, founded in 1999, is a one-person architectural firm based in Northern California that emphasizes an intensely collaborative process between client, architect and builder. HydroScience has a long, successful working relationship with Sigerson Architects.

O’Dell Engineering, Survey, Landscaping. Founded in 1994, O’Dell currently employs over 70 professionals in five Northern California offices. They will provide both Surveying and Landscape Design services for the project. O’Dell has worked with HydroScience on a wide range of water and wastewater infrastructure projects.

Haley & Aldrich Inc., Geotechnical. Haley & Aldrich Inc., (HAI) provides geotechnical services and related civil engineering (geo-civil) consulting and environmental services to public agency clients throughout California. HAI has offices in Walnut Creek, San José, Hayward and Oakland and accredited geotechnical testing laboratory in Hayward, California.

Scope of Work
The scope of work includes preparation of contract drawings and specifications to permit the City to bid and construct the improvements for Eagle View Well Improvement project. All deliverables will be provided in PDF format, along with native file formats (dwg, docx, xlsx) at the final deliverable stage. Hard copies are not included.

The following are the tasks and subtask details for each phase of the project.

Task 1 – Project Management and Coordination
This task covers both Phase I and II and includes the following elements:

Task 1.1 – Project Management and Communication
• Managerial oversight includes internal and subconsultants coordination of all project tasks, project administration, budget and schedule monitoring. • Submit monthly project updates and invoices to the City outlining the status and schedule of the project.

Task 1.2 – Project Meetings
• Schedule and attend a project Kickoff meeting after issuance of Notice to Proceed. This meeting can be virtual or in-person.
• Additional two progress meetings/workshops will be held to correspond major milestones such as Preliminary Design Report of Phase I, and 75% submittal of Phase II. These meetings will be virtual.
• Informal project calls between the City staff and HydroScience will occur as required.

August 2, 2024 Page 208 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

Task 1.3 – Quality Assurance/Quality Control
• Facilitate and complete HydroScience’s standard Quality Assurance/Quality Control (QA/QC) review process on all deliverables prior to submittal to the City.

Deliverables:
• Meeting agenda and notes for Kickoff and two progress meetings • Monthly project updates and invoices
• QA/QC review incorporated in the design submittal.

Task 2 – Phase I Well Drilling
This phase includes the preparation of plans, specifications, and engineer’s estimate for the Phase I Well Drilling task. The development of the Preliminary Design Report (PDR) will occur in parallel and will include the development of a preliminary layout drawing in order to locate the production well on the site. Once well drilling and testing is complete, the test data collected by the well driller will be used to develop the well design and pump selection for the production well.

The PDR will include design criteria, preliminary chemical system design, and well development recommendations. The following are the subtasks for this task:

Task 2.1 – Field Investigation
HydroScience will coordinate with the City’s point of contact to conduct a site reconnaissance and collect available data. The site reconnaissance will include site investigation, utility research, neighborhood layout, and maintenance access constraints. We assume this reconnaissance will happen on the day of the kickoff meeting.

Task 2.2 – Support Services
This subtask will include surveying and geotechnical services from our subconsultants.

Surveying:
• Provide a detailed survey of the project site
including a portion of Eagle View Dr. where
piping connections will be made. See Figure
1 for survey boundaries.
• Prepare a 1-foot contour topography map for
the project site
• Locate surface-visible features and
improvements including trees 6” in diameter
or larger.
• Measure gravity pipe invert elevations in
accessible structures.

Geotechnical:
• City to provide geotechnical design report for
adjacent residential subdivision.
• Prepare a Geotechnical Design Report for
the project site providing required design recommendations.

Figure 1: Survey Boundaries
August 2, 2024 Page 209 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

Task 2.3 – Preliminary Design Report
The Preliminary Design Report (PDR) will consist of a Workshop, Technical Memorandum (TM) and Association for the Advancement of Cost Engineering (AACE) Class 4 Engineer’s Cost Estimate. It includes the following:
• Drilling location, pump selection, well pump type/hydraulics and site layout • Facility design criteria
• Pump/motor sizing, budgetary cost, and lead time
• Preliminary control description
• Outline of technical specifications
• 30% drawings (see list below)
• AACE Class 4 Engineer’s Cost Estimate
HydroScience will conduct a design review workshop with the City to go over the findings of the TM and preliminary design. A meeting agenda, minutes, and decision log will be prepared by HydroScience and distributed to the City for review and approval. The intent of this workshop is to obtain consensus on major design issues such as the configuration of the new pump building, location of the VFD equipment, and the preliminary mechanical arrangement prior to progressing the Phase II submittal. City comments or issues will be identified and resolved at or following this meeting.

Task 2.4 – 30% Design Drawings – Full Project
The preliminary design drawings will incorporate comments and discussion from the PDR Workshop, preliminary design analysis, and subconsultant work for Phase I. The following are the drawing sheets anticipated to be included, all at a 30% level of completion:
• Civil site layout
• One-line diagram
• Electrical site plan
• P&ID
Task 2.5 – Well Drilling Bid Documents
The final design drawings for Phase I will incorporate comments and discussion from the PDR Workshop and 30% drawings for Phase I. The final bid set will consist of the following covering the well drilling component only:
• Well profile drawing and well details
• Final Technical Specifications
• Engineer’s Cost Estimate
Deliverables:
• Geotechnical Engineering Report
• PDR TM – Draft and final
• Design Review Workshop meeting agenda and notes
• 30% Drawings (full project) and 100% Plans and Specifications, signed and stamped (well drilling only)
Task 3 – Phase II Well Equipping
Contract documents for Phase II Well Equipping will consist of a set of signed and stamped plans and technical specifications for the City to advertise. The contract documents will refer to City standard details and specifications, with special provisions added to the contract documents as August 2, 2024 Page 210 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

needed to meet the specific needs of the project. City front-end boilerplate specifications will be used and customized for the project. The design task will also include landscaping, structural, electrical and architectural sub-consultant plan sheets and technical specifications.

Contract documents will be delivered to the City at the 75% and 95% submittal, and final Bid Set completion levels for City review and comment. The following are the subtasks:

Task 3.1 – Support Services
This task includes specialty subconsultant services as follows:

Architectural Design:
• Limited architectural design of the approximately 30-ft x 30-ft SMU building • Wood or cold-formed metal roof
• Skylight over the pumps
• Chemical room, climate control
• Provide architectural drawings and calculations to be incorporated with the Structural drawings
• Prepare technical specifications and cost estimates.

Structural Design:
• Concrete slab-on-grade design
• Prepare structural engineering plans and calculations for the building • Prepare technical specifications and cost estimates.

Landscape Design:
• Conceptual plan for the site to meet project surroundings and City requirements • Prepare irrigation design drawings
• Prepare planting design drawings
• Prepare technical specifications and cost estimates
The above scope of work will be incorporated in the 75%, 95% and bid document submittals of the project. The environmental services for the project will be provided by others. HydroScience will coordinate with the subconsultants to incorporate the design elements into the bid documents.

Task 3.2 – 75% Submittal
The 75% submittal will include layout drawings, P&IDs, electrical plans and single lines, standard details, list of proposed technical specifications, and a preliminary bid table with estimated construction costs. HydroScience’s Project Manager and Project Engineer will meet with City staff to review the submittal during a design review meeting. Meeting agendas and minutes for the design review meetings will be prepared by HydroScience and distributed to the City for review and approval. These meetings are included in the budget for Task 1.

This submittal will be reviewed for QA/QC by a senior member of HydroScience staff who is not directly involved with the project design prior to delivering those submittals to the City.

Task 3.3 – 95% Submittal
The 95% submittal will include technical specifications and City-provided front-end documents that have been modified to meet the project needs. All drawing sheets will be included, and the design will be fully detailed to essentially a bid-ready level, subject to final review by the City.

August 2, 2024 Page 211 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

This submittal will be reviewed for QA/QC by a senior member of HydroScience staff who is not directly involved with the project design prior to delivering those submittals to the City.

Task 3.4 – Bid Documents Submittal
The final submittal (bid documents) will consist of one PDF of specifications and drawings for printing and distribution by the City.

Deliverables:
• 75% design submittal with half-size drawings, contract documents, and engineer’s cost estimate
• 95% design submittal with half-size drawings, contract documents, and engineer’s cost estimate
• Bid-ready set in PDF including full size drawings, contract documents, stamped and signed, along with native files in Word and DWG formats.

Task 4 – Bid and Construction Support
HydroScience will provide assistance to the City during the bid and construction phase of Phase I and II of the project. Below is the breakdown of the services under this task for each phase of the project:

Task 4.1 – Bidding Services (Phase I)
The City will advertise the project and serve as the lead point-of-contact to bidding contractors.

HydroScience will assist the City in evaluating bids received and will make recommendations on the award of the contract. HydroScience will address technical questions during the bidding period, and issue addenda as required. Services include:
• Response to bidder’s technical questions
• Prepare a maximum of three (3) addenda
• Review and evaluation of submitted bids to assist the City in making a recommendation to the City Council
Task 4.2 – Engineering Services During Drilling
HydroScience will make up to one site visit during the drilling and well development process and attend up to two virtual meetings. Laboratory results submitted by the contractor will be reviewed.

Based on the data collected during drilling, HydroScience will determine the final screen placement and screen size, and gravel pack size based on the formation sieve analysis.

HydroScience will receive and respond to Contractor requests for information (RFI) during the drilling process. Services include:
• Review and response to maximum three (3) contractor’s request for information (RFI) • Review and approve maximum of ten (10) submittals.
• Attend in-person meetings and/or field visits of up to sixteen (16) total staff hours and up to three (3) separate trips to assist the City inspector in observing the well drilling activity and provide technical support where required
Task 4.3 – Bidding Services (Phase II)
The City will advertise the project and serve as the lead point-of-contact to bidding contractors.

HydroScience will assist the City in evaluating bids received and making a recommendation to the City Council for award of the contract. HydroScience will address technical questions during the bidding period, and issue addenda as required. Services include:

August 2, 2024 Page 212 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

• Attend pre-bid meeting, prepare agenda and notes
• Response to bidder’s technical questions
• Prepare a maximum of three (3) addenda
• Review and evaluation of submitted bids to assist the City in making a recommendation to the City Council.

Task 4.4 – Engineering Services During Construction
HydroScience will provide office engineering services during construction of Phase II of the project to the City. Services include:
• Attend one (1) pre-construction meeting, prepare agenda and notes • Attend in-person meetings and/or field visits of up to sixteen (20) total staff hours and up to four (4) separate trips to assist the City inspector in observing the pump testing activity and provide technical support where required including electrical and site inspections • Join up to five (5) virtual meetings, 1 hour each
• Review 25 contractor submittals and resubmittals (total) • Respond to up to 20 RFIs
• Assist with evaluation of up to three (3) change orders • One site visit for observation of completed facilities and preparing a punch list • Prepare record drawings per City’s and contractor’s markup drawings.

A preliminary budget is provided in the attached fee. HydroScience will meet with the City to adjust the labor budget based on the anticipated split of effort between HydroScience and the City.

Assumptions

1. It is assumed that the design improvements for Phase I will be based on the Test Hole report and HydroScience will coordinate with the City to determine the desired improvements.

2. Boundary/right-of-way mapping; setting of new property corners or preparing Records of Survey; Title Reports, and construction staking are not anticipated in this scope of work and are therefore not included. HydroScience will prepare a topographic survey in AutoCAD format.

3. City to obtain California Department of Drinking Water (DDW) permit amendment, and HydroScience will assist the City by providing the needed project technical information.

4. A building permit is assumed to not be required.

5. District comments on each deliverable will be received as a single consolidated set of comments.

6. Only one round of revisions to the conceptual landscape plans to produce final landscape sheets is included.

7. Title 24 energy efficiency requirements are excluded.

Budget and Schedule
The total fee proposed for the Eagle View Well Site Improvement project including bid and construction phase support is $379,590. We additionally recommend that the City establish a contingency budget of $50,000 that would only be utilized if required to cover unanticipated changes. The total contract amount with contingency would be $429,590.

August 2, 2024 Page 213 of 468
City of Morgan Hill
Proposal to provide engineering services for Eagle View Well Site Improvements Project

A breakdown of the level of effort by task is shown in the attached table, and budgets for bidding and construction support are also separately included. Costs will be invoiced on a time-andmaterials basis, up to the not-to-exceed budget to complete this scope of work. Invoices submitted for this project will document work performed during the invoiced time period in a bulleted list format as well as estimate the percent complete on each task.

The estimated time of completion for the services described in the Scope of Work shall be approximately 270 calendar days from the date notice to proceed is issued by the City.

Preliminary Schedule
Task Start Date Finish Date
Notice-to-proceed September 5, 2024 September 5, 2024

1.0 Project Management &
Coordination September 5, 2024 July 21, 2025

2.0 Phase I Well Drilling (Design) September 5, 2024 January 21, 2025

3.0 Phase II Well Equipping
(Design) January 22, 2025 May 21, 2025

4.0 Bid and Construction Services May 22, 2025 March 23, 2026 We look forward to working with the City staff on this important project. If you have any questions regarding this proposal, please contact Bill Slenter at either [email protected] or (916) 605-6633.

Sincerely,
HydroScience Engineers, Inc.

Bill Slenter, P.E
Principal
Cc: Jigar Shah, P.E., Senior Project Manager
Attachment: Fee Proposal
August 2, 2024 Page 214 of 468
HydroScience Engineers
Proposed Fee: City of Morgan Hill - Eagle View Well Site Improvements Task Description
Bill Slenter, PICSim Blake, QA/QCJigar Shah, Project ManagerAustin Poulson, Project EngineerThinh Le, Electrical LeadElectrical SupportCAD Manager Hours Fee
ODCsO'Dell Engineering - SurveyO'Dell Engineering - Landscape ArchitectureVE Solutions - Structural & ArchitectureHaley & Aldrich Inc., - Geotechnical Expense
Subtotal
with Markup Total Fee
Phase
Totals
Labor Classification Princ Princ E-VI E-IV E-IX E-III CADM Hourly Rate $305 $305 $253 $233 $292 $215 $160

1.0 Project Management and Coordination $22,792

1.1 Project Management & Communications 24 24 $6,072 $0 $6,072

1.2 Project Meetings 8 12 16 8 44 $11,540 $300 $300 $11,840

1.3 QA/QC 16 16 $4,880 $0 $4,880

2.0 Phase I Well Drilling $96,876

2.1 Field Investigation 6 8 8 22 $5,718 $100 $100 $5,818

2.2 Support Services 4 8 12 $2,876 $12,800 $14,421 $28,582 $31,458

2.3 Preliminary Design Report 8 16 48 8 8 88 $21,728 $0 $21,728

2.4 30% Design Drawings (Full Project) 16 24 4 8 40 92 $18,928 $0 $18,928

2.5 Well Drilling Bid Documents 8 8 24 4 24 16 84 $18,944 $0 $18,944

3.0 Phase II Well Equipping $157,867

3.1 Support Services 4 8 12 $2,876 $9,145 $40,000 $51,602 $54,478

3.2 75% Submittal 28 55 16 56 60 215 $46,211 $0 $46,211

3.3 95% Submittal 8 22 42 14 52 40 178 $39,460 $0 $39,460

3.4 Bid Documents 4 12 22 8 16 16 78 $17,718 $0 $17,718 TOTAL BASE FEE 24 28 152 255 70 164 172 865 $196,951 $400 $12,800 $9,145 $40,000 $14,421 $80,584 $277,535

4.0 Bidding and Construction Support $102,055

4.1 Bidding Support (PhI) 4 8 4 4 20 $4,904 $0 $4,904

4.2 Engineering Services During Drilling (PhI) 12 12 32 8 16 8 88 $21,208 $1,400 $1,400 $22,608

4.4 Bidding Support (PhII) 8 12 4 6 4 34 $7,918 $100 $100 $8,018

4.5 Engineering Services During Construction (PhII) 4 12 40 90 12 52 26 236 $54,814 $1,400 $4,320 $5,500 $11,711 $66,525 TOTAL ESDC FEE 4 24 64 142 28 78 38 378 $88,844 $2,900 $0 $4,320 $5,500 $0 $13,211 $102,055 TOTAL PROPOSED FEE 28 52 216 397 98 242 210 1243 $285,795 $3,300 $12,800 $13,465 $45,500 $14,421 $93,795 $379,590 $379,590 Recommended Contingency Budget:

Total Contract Amount with Contingency:

August 2, 2024
$50,000
$429,590

Labor Classification 2024 Hourly Rate
Principal $305
Engineer IX $292
Engineer VIII $280
Engineer VII $265
Engineer VI $253
Engineer V $242
Engineer IV $231
Engineer III $215
Engineer II $204
Engineer I $187
Engineering Aide $110
Construction Professional VI $200
Construction Professional V $190
Construction Professional IV $180
Construction Professional III $170
Construction Professional II $150
Construction Professional I $140
Cross Connection Control Specialist $135
CAD Manager $160
CAD Designer $140
Marketing Professional $120
Administrative II $110
Administrative $95
HYDROSCIENCE ENGINEERS, INC.

Standard Schedule of Estimated Billing Rates
Effective January 1, 2024 through December 31, 2024
Hourly billing rates include postage and telephone charges that are normal to the work authorized. Other direct costs for travel, reproduction, mail service, outside services, etc. will be invoiced at 110 percent of the actual cost. Rates for expert witness services shall be billed at the quoted rates plus $50/hour.

EXHIBIT B

SCHEDULE OF COMPENSATION RATES

14 Updated February 2024

EXHIBIT C

SCHEDULE OF PERFORMANCE

1 Updated June 2020

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.

DESCRIPTION
HydroScience Luhdorff

FIRM QUALIFICATIONS
Reviewer 1 6 6
Reviewer 2 8 9
Reviewer 3 9 9

UNDERSTANDING
Reviewer 1 9 8
Reviewer 2 9 9
Reviewer 3 9 8

OTHER FACTORS
Reviewer 1 9 8
Reviewer 2 9 7
Reviewer 3 9 7
Totals 77 71

9 CITY COUNCIL STAFF REPORT
MEETING DATE: August 28, 2024
PREPARED BY:

Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager

APPROVE SECOND AMENDMENT TO THE WEST COAST
ARBORISTS, INC. MAINTENANCE SERVICE AGREEMENT TO
INCREASE THE NOT TO EXCEED AMOUNT BY $540,728 FOR A
TOTAL AGREEMENT AMOUNT OF $1,392,728

RECOMMENDATION(S)

1. Approve the Second Amendment to the Maintenance Service Agreement with West Coast Arborists, Inc. for $540,728, for a total agreement amount of $1,392,728, which includes increasing the annual amount of extra services to $300,000;

2. Authorize the City Manager to execute and administer the Second Amendment to the Maintenance Service Agreement with West Coast Arborists, Inc; and

3. Authorize the City Manager to extend the term of the Agreement with West Coast Arborists, Inc. for up to two additional one-year terms.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Protecting the Environment and Preserving Open Space and Agricultural Land 2024-2025 Strategic Priorities
Fiscal Sustainability
REPORT NARRATIVE:

The purpose of this report is to provide the City Council with an opportunity to consider a Second Amendment to the City's Maintenance Service Agreement with West Coast Arborists, Inc. for tree maintenance services. If approved, the Second Amendment will extend the term of the Agreement by one year, and authorize the City Manager to extend the term for two additional one-year terms. The Second Amendment will increase the total amount of the Agreement by $540,728 from $852,000 to $1,392,728.

The City has long contracted with tree maintenance specialty contractors for a variety of services including park tree maintenance, street tree grid pruning, tree removals, and

9 on-call emergency tree response services. The City's current agreement with West Coast Arborists, Inc. expires on September 30, 2024. The original amount of the agreement was $652,000 for two years. On April 24, 2024, the first amendment increased the contract's amount by $200,000 to $852,000 due to emergency tree work including tree removals during a busier than normal storm season, a large amount of tree work adjacent to Woodland Estates for safety purposes, and a large amount of tree work needed around utility sites for state inspection. This Second Amendment includes increasing the annual not-to-exceed amount for extra services from $100,000 to $300,000 per year for the additional year of service to allow for additional emergency tree work and tree removal during upcoming storm seasons.

Staff continues to be satisfied with the services provided by West Coast Arborists, Inc., and recommends that the City Council authorize the City Manager to execute the attached Second Amendment to Agreement. If the City Manager extends the term of this Agreement, the City Manager shall have the authority to increase the maximum compensation during that extended term period, subject to budget appropriation and provided maximum compensation allowed for the extended term does not exceed 105% of the maximum compensation for the immediately preceding prior year of service.

COMMUNITY ENGAGEMENT:

Inform
As tree maintenance services are a regular and expected City service, no efforts were made to inform the community about this proposed agreement. The actual tree maintenance work resulting from this agreement is shared via City communication tools, including "The Scoop," a weekly maintenance update on the City website, and various social media channels. Signs will be posted when tree maintenance services are performed that will impair access to the street or public sidewalks.

ALTERNATIVE ACTIONS:

The City Council could decline to approve the second amendment, and instead direct staff to terminate the agreement and proceed with a request for proposals (RFP) for tree maintenance services. This alternative is not recommended as it would jeopardize ongoing tree maintenance and safety.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

The Council has previously approved agreements for tree maintenance services for over a decade. The Council previously awarded the original agreement with West Coast Arborists, Inc. on September 28, 2022, and approved the first amendment on April 24, 2024.

FISCAL AND RESOURCE IMPACT:

If approved, the total funding authorization for this agreement will increase to $1,392,728. Funding for tree maintenance services is included in many areas of the City's operating budget (Fund 010) including Street Maintenance, Park Maintenance, Downtown Maintenance, as well as Landscape Assessment Districts and various Capital Improvement Projects. Sufficient budgetary appropriations exist within these

9 divisions to pay for the additional years' services, therefore no budget amendments are needed at this time.

CEQA (California Environmental Quality Act):

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

1 SECOND AMENDMENT TO AGREEMENT
WEST COAST ARBORISTS, INC.

This SECOND AMENDMENT TO AGREEMENT is entered into and becomes effective on ______________________ (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and WEST COAST ARBORISTS, INC., a California Corporation ("SERVICE PROVIDER"), hereinafter referred to collectively as the “Parties".

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

1. This Second Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on August 28, 2024.

2. The CITY and SERVICE PROVIDER entered into that “Maintenance Service Agreement” made as of October 2, 2022, for services for a maximum compensation of Six Hundred Fifty-Two Thousand Dollars ($652,000.000) (“MAINTENANCE SERVICE AGREEMENT”).

3. The CITY and SERVICE PROVIDER entered into a “First Amendment to Agreement” made as of May 5, 2024, under which only the maximum compensation under the MAINTENANCE SERVICE AGREEMENT, as amended, was increased to Eight Hundred Fifty-Two Thousand Dollars ($852,000.00).

The MAINTENANCE SERVICE AGREEMENT and the First Amendment thereto are attached as Exhibit “1” to this Agreement.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

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

A. Paragraph 2 shall be amended and replaced in its entirety by the following:
"2. Term of Agreement. This Agreement shall be effective and cover services rendered from October 2, 2022, until September 30, 2025. The City Manager is authorized to extend the term of this Agreement for a maximum of two one-year extensions. Any such extension shall be in writing and signed by both parties to this Agreement."
B. Paragraph 4.1 shall be amended and replaced in its entirety by the following:
"4.1. Amount. Compensation under this Agreement shall not exceed ONE MILLION THREE

HUNDRED NINETY-TWO THOUSAND SEVEN HUNDRED TWENTY-EIGHT DOLLARS ($1,392,728.00) and shall be billed based on the rate and basis set forth in Exhibit B-2 as of the Effective Date of this Amendment. If the City Manager extends the term of this Agreement pursuant to the provisions of Section 2 above, the City Manager shall have the authority to increase the maximum compensation allowed to be paid to SERVICE PROVIDER during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDER for the immediately preceding prior year of service.”

2 C. Paragraph 4.2 shall be amended to have all references to “Exhibit B” be updated to reference the revised rates and basis set forth in Exhibit B-2, that is herein incorporated by this reference.
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[Signatures on Next Page]

Item
Original Contract
Amt.

FY 23-24
First Amendment
Extra Services
FY 24-25
Second Amendment
Increase by 2.8%
Street Tree Maintenance and Safety Pruning 89,000 91,492.00 Street Tree Grid Pruning 100,000 102,800.00
Park Tree Safety Pruning 25,000 25,700.00
Park Tree Grid Pruning 12,000 12,336.00
Other Extra Services 100,000 200,000 308,400.00
Original Contract: Total Annual Amt 326,000
Original Contract: Total Two-Year Amt
(10/22-9/24) 652,000
First Amendment Total Amount 200,000
First Amendment:

Revised Contract Amount
(5/23-9/24) 852,000
Second Amendment Total Amount 540,728
Second Amendment:

Revised Contract Amount
(10/24-9/25) 1,392,728
West Coast Arborist
Exhibit B-2
October 1, 2024-September 30, 2025
Contract Amount Summary

Item Description Unit Original Unit Price
Revised Unit Price
w/ 2.8% Increase
1 Residential Grid and Park Pruning
(small medium, and large trees) Per Tree 94.00 96.63
2 Full Trim Based on Service or Special
Requests
A 0"-6" dbh (diameter at breast height) Per Tree 94.00 96.63 B 7"-12 dbh Per Tree 174.00 178.87
C 13"-18" dbh Per Tree 274.00 281.67
D 19"-24" dbh Per Tree 274.00 281.67
E 25" and over dbh Per Tree 274.00 281.67
3-A
Complete Tree/Removal-Under 36"
including stump/roots Per DBH 45.00 46.26
3-B
Complete Tree/Removal-Over 36"
including stump/roots Per DBH 45.00 46.26
4 Stump Removal (including roots)
Per diameter
inch 18.00 18.50
5-A
Tree Planting - 15 gallon tree with
linear root barrier Per Tree 325.00 334.10
5-B
Tree Planting - 15 gallon tree without
root barrier Per Tree 250.00 257.00
5-C
Tree Planting - 24 inch box tree with
linear root barrier Per Tree 495.00 508.86
6 Evaluations by certified arborist with
verbal recommendations Per Hour 119.00 122.33
7 Tree Watering (per half day) Per 1/2 day 500.00 514.00 8 Crew Rental
8-A
3-crew members with truck and
equipment (regular time) Hourly 300.00 308.40
8-B
3-crew members with truck and
equipment (emergency response) Hourly 360.00 370.08
9 Cost to Spread Arbor Mulch per
square ft. Per Square Ft 4.00 4.11
West Coast Arborist
Exhibit B-2
October 1, 2024-September 30, 2025
Unit Pricing

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1

FIRST AMENDMENT TO AGREEMENT
WEST COAST ARBORISTS, INC.

TA
is FIRST AMENDMENT TO AGREEMENT is entered into and becomes effective on 5/5 2024 (Effective Date), by THE CITY OF MORGAN HILL, a municipal corporation, ("CITY") and WEST COAST ARBORISTS, INC. California Corporation ("SERVICE PROVIDER"), hereinafter referred to collectively as the "Parties".

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

1. This First Amendment to Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on April 24, 2024.

2. The CITY and SERVICE PROVIDER entered into that "Maintenance Service Agreement" made as of October 2, 2022, for services for a maximum compensation of Six Hundred Fifty-Two Thousand Dollars ("MAINTENANCE SERVICE AGREEMENT"). The MAINTENANCE SERVICE AGREEMENT is attached as Exhibit "1" to this Agreement.

AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:

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

A. Paragraph 4.1 shall be amended and replaced in its entirety by the following:
"4.1. Amount. Compensation under this Agreement shall not exceed EIGHT HUNDRED FIFTY-TWO THOUSAND DOLLARS ($852,000.00) and shall be billed based on the rate and basis set forth in Exhibit Band Exhibit B-1."

2. Electronic Signatures. Unless otherwise prohibited by law or CITY policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the CITY.

Ill
Ill
Ill
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Ill
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[Signatures on the Next Page]
1 EXHIBIT 1

DocuSign Envelope ID: BFEB5O8O-E89F-469B-851 0-B87C2C8820A 1

3. Conflicts. In the event of a conflict between the terms and provisions of this First Amendment to Agreement and the terms and provisions of the MAINTENANCE SERVICE AGREEMENT, the terms of this First Amendment to Agreement shall govern and control.

TWO SIGNATURES ARE REQUIRED FOR CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
�editigelow, City Clerk
Date: 5/6/2024
APPROVED AS TO FORM:
�-� f>LYll lAfkiiA,
?t..Ear<km, Citv A
1 ttc osney
Date: 4/ 3'0/2D24
2 CITY OF MORGAN HILL
DocuSigned by:

Ckisfi1AA- tW'lM-t
hristimag�urner, City Manager
Date: 5/5/2024
By: Patr
Title: President
Print Name and Title of Signer.

If Corporate: Chairman, President or
Vice President
Date: 03/26/24
B : ichard Mahoney
Secretary
Print Name a
If Corporate. ecretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: 03/26/24

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 EXHIBIT B-1

SCHEDULE OF COMPENSATION
Only the Revised Contract Item Totals are referenced in this Exhibit The breakdown of costs for the two-year tree maintenance services agreement is listed below.

Also attached is the Schedule of Compensation for the individual line items per West Coast Arborists, Inc's cost proposal dated July 15, 2022.

ORIGINAL MAINTENANCE SERVICE AGMT
Item Amount
Street Tree Maintenance and Safety Pruning 89,000
Street Tree Grid Pruning 100,000
Park Tree Safety Pruning 25,000
Park Tree Grid Pruning 12,000
Other Extra Services 100,000
TOTAL ANNUAL AMOUNT 326,000
TOTAL TWO-YEAR AMOUNT. 652,000

FIRST AMENDMENT
Other Extra Services 200,000
REVISED TWO-YEAR CONTRACT AMT. 852,000

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 EXHIBIT 1

MAINTENANCE SERVICE AGREEMENT
West Coast Arborists, Inc.

Tree Maintenance Services
THIS AGREEMENT is entered into and becomes effective on 10/ 2 1
2022 (Effective
Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and West Coast Arborists, Inc. a California corporation ("SERVICE PROVIDER") hereinafter referred to collectively as "Parties." In consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows:
1 . City Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on September , --1!_, 20�.

2. Jerm of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until September 30, 2024 at which time SERVICE PROVIDER'S services shall be completed. The City Manager is authorized to extend the term of this Agreement for a ma'ximum 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 tree maintenance services as further described _in
_Exhibit A . , .

4. ,Compensation. SERVICE PROVIDER �all be compensated as follows:

4.1. Amount. $652,000.00. Total compensation to SERVICE PROVIDER under this Agreement during its initial term set forth in Section 2 above shall not exceed Six Hundred Fifty-Two 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 liave the_ alJthority to increase the maximum compensation alloVrted·tp.be paid to�SER\(IQE PROYJD�R qunng that extended term period, so long as C_i!Y. Council ha1 ap·prppr_i�ted suffici�nt funds - ·:". • therefor, the Parties mutually. a·gree fo·s.t..ich amQunt in .�:wrjfilJg signed by both Parties .•. to this Agreement and provided further ttTat .iri ·no • ever-it-' shall suctr maximum compensation allowed for each subsequei:-it extended one-year term exceed 105% of the maximum compensation allowed to be paid to SERVICE PROVIDE�·for one year of service during the imme�i
_
ately 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 8) 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 8) 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 1 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4857-AE42-3EC1188FFBE5 excess of the total compensation set forth in paragraph 4.1 above shall be at no cost to CITY.

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 quqrantine, 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 unavoiqable circumstances; and the level. of service at each CIT'( facility. Upol} suspension, SERVICE PROVIDER shall submit to CITY an itemized stateme'n' 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 susp�nsion. 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 \'irtue of experie.nce, 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. SERVI.CE 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 2 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 Performance," attached hereto and incorporated herein by this reference. The City Manager is authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement.

6.2. Stora_ge 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 (CGLj. 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 3 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.

8.1.3. Workers' Comr2ensation Insurance and Emr2loyer'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 4 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC 1188FFBE5 combined insurance policies (including any excess or "umbrella" policies), whichever is greater.

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

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 Q0Uutjon liabilit� a,goliesl

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 non5 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 compliance with any insurance requirements in this section 8. Certificates, including renewal certificates, may be mailed electronically to ,[email protected] or delivered to the Certificate Holder address provided herein.

Certificate Holder address:

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

9. Non-Liabili.!¥, 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 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.

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 6 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 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.

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

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

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

12. Confidentiality. All data, documents, or other information received by SERVICE PROVIDER from CITY or prepared in connection with SERVICE PROVIDER'S services under this Agreement are 7 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 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 Arborists, Inc.
2200 E. Via Burton
Anaheim, CA 92806
Address of CITY is as follows:

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

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

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.
8 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 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 Wor�. 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. E:xceptions. 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 9 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 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,i Modification: Conflicting Provisions. This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agreements, oral or written. This Agreement may be modified or provisions waived only by a subsequent mutual written agreement executed by CITY and SERVICE PROVIDER. If the provisions contained in the main body of this Agreement conflict with any provision contained in an exhibit to this Agreement, the provisions of the main body of this Agreement shall govern and control over any provision contained in an exhibit to this Agreement.

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

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

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

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.

Ill
I II
Signatures are on the following page.
10 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5

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

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

AS SET FORTH IN CA. CORP. CODE § 313, TWO SIGNATURES ARE REQUIRED FOR CALIFORNIA CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER. � Bler�ty City Clerk
Michelle Bigelow
Print Name
Date: 10/7/2022
APPROVED AS TO FORM:
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Donald A. Larkin
Print Name
Date: 10/2/2022
366764
Contractor's License Number(s) (if applicable)
Expiration Date(s) _121_3_11_20_2_2 ______ _
U:\Legal Forms\Consultant Agreements\Cify Maintenance SeNlce Agreement.Docx

CITY OF MORGAN HILL
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Christina J. Turner
Print Name
Date: 10/7/2022
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Patrick Mahoney, President
Print Name and Title of Signer.

If Corporate: Chairman, President or
Vice President
Date: 08/01 /22
Print Name a itle of Signer.

If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date: 08/01 /22
1000000956
Contractor's DIR Registration Number( s) (if applicable) Expiration Date(s) _6.:....:/3.:....:0�/2�0_24 _______ _ 11 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5

EXHIBIT A

SCOPE OF SERVICES
The Service Provider shall furnish all labor, tools, equipment, materials and supervision necessary to perform safety and grid pruning, removal and planting of trees, inventory system management, watering and other arboriculture related services as described in this section, including, but not limited to the items noted below. The contract includes the maintenance of street trees within public rights-of-way, as well as within parks, open spaces, City facilities and other City properties. This contract will include approximately 9,500 trees.

All trees are required to be included in a web-based computerized tree inventory system and database that will be updated on a monthly basis after work is performed. This inventory system and database will document services performed.

Section 1: Definitions and Terms
Wherever the following terms are used, they shall be understood to mean and refer to the following:
1-1 Agency & Owner: City of Morgan Hill
1-2 Council: City Council, City of Morgan Hill
1-3 Service Provider: West Coast Arborists, Inc.
1-4 Director of Public Services: The Director of Public Services of the City of Morgan Hill or his/her designee.
1-5 Engineer: The Director of Public Services, acting either directly or through the properly authorized agents, such agents acting within the scope of the particular duties entrusted to them or his/her designee.
1-6 General: Working titles having a masculine gender, such as workman and journeyman and the pronoun he, are utilized in the specifications for the sake of brevity and are intended to refer to persons of either sex.
1-7 Grid Trimming: Grid trimming shall be the pruning (complete trim) of all trees, large and small, within the City right-of-way in a designated area or on a particular street. 1-8 Park Trimming: Park trimming shall be the pruning (complete trim) of all trees, large and small, within designated City Parks.
1-9 Right-of-Way: Parkways (between sidewalk and curb) and Medians. 1-10 Certified Arborist: International Society of Arboriculture (ISA) Certified Arborist 1-11 ISA Certified Tree Worker: International Society of Arboriculture (ISA) Certified Tree Worker
12 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC 1188FFBE5 1-12 Maintenance Manager: The Maintenance Manager of the City of Morgan Hill or his/her designee.

Section 2: Scope of Work
2-1 Scope of Work. This work shall consist of pruning street trees and park trees for traffic and pedestrian clearance, tree health, removing trees as designated, stump removal, tree planting, staking and inventory of trees as well as leaving the work site in a neat, clean, and orderly condition upon completion of the work or at the end of the day, in the area as specified in these specifications and the special provisions. The Service Provider will cease all pruning activities when the designated number of trees has been pruned. Regardless of size of the tree the price to prune will be the same for all grid and park trees. This work also includes scheduled crew pruning on a daily basis as well as emergency call outs, over and above the grid pruning. All green waste to be disposed of by the Service Provider and the cost to be included within the various bid items.
2-2 General Conditions. These general conditions which shall apply to this executed Maintenance Services Agreement. Service Provider shall also comply with the International Society of Arboriculture (ISA) Pruning Standards, latest revised edition of the Western Chapter, Standards for Nursery Stock by the American Association of Nurserymen, and the American National Standards for tree care operations.

A certified arborist must be on the Service Provider's staff. Although a certified arborist does not have to be onsite at all times, a certified arborist must be on-call and available to answer questions as they arise.
2-3 Estimated Annual Volume of Work. The estimated base annual volume of work is $226,000 plus extra services estimated at $100,000 for a total annual contract amount of $326,000.

Section 3: Pruning Services
The average number of trees in a grid is 1,880. There are five grids in the City limits. See Exhibit 2 - City Grid Pruning Zones Map.
3-1 Types of Pruning Services.
3-1.1 Scheduled Service. The Service Provider will furnish scheduled tree pruning service (complete trim) for trees designated by the City at the execution of the agreement. After executing of the agreement, City may add or delete other trees within the specified grids or within designated parks, at the same bid price.
3-1.2 Unscheduled Service. The Service Provider will also provide, if required by the City, unscheduled tree pruning. The City will provide at least 24-hour notice for unscheduled pruning. Crew and equipment shall consist of 2 workers, 1 of which is an ISA Certified Tree Worker, truck, and chipper plus all necessary pruning tools. The City may increase or decrease the quantity of these services at the same bid price. 3-1.3 Emergency Service. The Service Provider will also respond to emergency calls for service at any and all times day or night during the term of this agreement within (3) hours of 13 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 being notified. Crew and equipment shall consist of 2 workers, 1 of which is an ISA Certified Tree Worker, truck, and chipper, plus all necessary pruning tools. 3-2 Work Schedule. The Service Provider shall perform the activities as outlined by the Director of Public Services Tree Trimming/Maintenance Contract work schedule. Said schedule must show the dates of the expected start and completion of the various items of the contract work. During a scheduling conference between the Service Provider and the Director of Public Services or designee, the work schedule will be discussed and modified, if necessary, by mutual agreement. The Service Provider will cease all grid and park tree pruning once the designated number of trees has been pruned. 3-3 Temporary Stoppage of Tree Trimming/Maintenance Activities. The Director of Public Services shall have the authority to suspend the contract work, wholly or in part, for such a period of time as the Director may deem necessary, due to unsuitable weather, or to such other conditions as the Director considers unfavorable for the proper execution of the work, or for such time as the Director may deem necessary due to failure on the part of the Service Provider or Service Provider's workers to carry out orders or to perform any of the requirements of the contract. The Service Provider shall immediately comply with such an order from the Director of Public Services and shall not resume operations until so ordered in writing.
3-4 Extra Work. Extra work, when requested in writing by the Director of Public Services and accepted by the Service Provider, shall be paid for under written work order in accordance with the terms therein provided. Payment for extra work will be made at the unit price or lump sum previously agreed upon between the Service Provider and the Director of Public Services.

All extra work shall be adjusted daily upon report sheets prepared for the Director of Public Services or designee, furnished by the Service Provider and signed by both parties, and said daily report shall be considered thereafter the true records of extra work done. 3-5 Authority of the Director of Public Services. The Director of Public Services shall decide any and all questions that may arise as to the quality and acceptability of materials furnished and work performed as to the manner of performance and rate of progress of the work, and any and all questions which may arise as to the interpretation of the plans and specifications. The Director of Public Services shall likewise decide any and all questions as to the acceptable fulfillment of the contract on the part of the Service Provider, and all questions as to claims and compensations. The decision of the Director of Public Services shall be final, and he shall have relative authority to enforce and make effective such decisions and actions as the Service Provider fails to carry out promptly.

For the purposes of routine and normal supervision and coordination of work the Director of Public Services is the City's authorized representative for all work within the scope of this agreement.
3-6 Interpretation of Specifications. Should it appear that the work to be done or any matter relative thereto, is not sufficiently detailed or explained in the specifications, the Service Provider shall request the Director of Public Services for such further explanation as may be necessary, and shall conform to such explanation or interpretation as part of the contract, so far as may be consistent with the intent of the original specifications. 3-7 Removal of Defective or Unauthorized Work. It is the intent of the specifications that only first-class work, materials and workmanship will be acceptable. All work which is 14 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D7 41 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 defective in its construction or deficient in any of the requirements of the specifications shall be remedied or removed and replaced by the Service Provider in an acceptable manner, and no compensation will be allowed for such correction. Any work done beyond the lines shown on the plans or established by the Director of Public Services, or any extra work done without written authority will be considered as unauthorized and will not be paid for. Upon failure on the part of the Service Provider to comply forthwith with any order of the Director of Public Services made under the provisions of this paragraph, the Director of Public Services shall have authority to cause defective work to be remedied or removed and replaced and unauthorized work to be removed and to deduct the costs thereof from any moneys due or to become due the Service Provider. Damage done to trees as a result of pruning practices not in compliance with the specifications shall result in replacement of the tree by the Service Provider with no additional compensation. A similar size tree will be provided and planted (up to 48" box).
3-8 Sound and Vibration Control Requirements. The Service Provider shall comply with all local sound control and noise level rules, regulations and ordinances. No internal combustion engine shall operate on the project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage, the Service Provider shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including, but not limited to truck, transit mixers or transit equipment that may or may not be owned by the Service Provider. 3-9 Air and Water Pollution Control. Service Provider shall comply with all air pollution control rules, regulations, ordinances and statues. All containers of paint, thinner, during compound, solvent or liquid asphalt shall be labeled to indicate the contents, fully complying with the applicable material requirements. The Service Provider shall comply with the provisions of the Clean Air Act, as amended (42 W.S.C. 1957 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et. Seq.) and the regulations there under (40 C.F.R. part 15).

The Service Provider shall follow the appropriate best management practices contained in the California Storm Water Best Management Practice Handbook, which is available from the Santa Clara Valley Water District Non-Point Source Program. 3-10 Cleaning up. Upon completion of the scheduled work or at the end of the day, whatever occurs first, the Service Provider shall clean all the streets and grounds occupied by Service Provider in connection with the project, of all rubbish, debris, excess material, temporary structures and equipment, leaving the entire site of the work in a neat and presentable condition.
3-11 Public Convenience and Public Safety.

A. Attention is directed to Sections 7-1.03 and 7-1.04 of the Standard Specifications and the Manual of Warning Signs, Lights and Devices for Use in Performing Work upon Highways, published by the California Department of Transportation.

Full compensation for conforming to the requirements of Sections 7-1.03 and 7-1.04 of the Standard Specifications, the above referenced Caltrans Manual and these Special Provisions not otherwise provided for, shall be considered as included in the prices paid for the various contract items of work and no additional compensation will be allowed thereof. 15 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 B. Warning and Protection Devices: The Service Provider will be responsible for providing, placing and maintaining approved signs, barricades, pedestals, flashers, delineators, fences, barriers, arrow boards and flagmen where needed, and other necessary facilities in the vicinity of the maintenance area and where any dangerous conditions may be encountered as a result thereof, for the protection of the motoring public. The Service Provider will not be allowed to proceed with the work until such time that a sufficient number of these protection devices have been delivered to the project site. Where parked vehicles are likely to interfere with the proposed work, the Service Provider will supply and post at no less than 200' intervals on each side of the street "Temporary No Parking" signs 48 hours before the start of construction and to report the time of posting to the City's Police Department for the purpose of establishing "Tow Away" provisions. The Service Provider shall be responsible for the removal of the temporary signs upon the completion of the Work. All signs shall be kept graffiti free at all times.

Should the Service Provider appear neglectful in furnishing warning and protection devices as outlines above, the Director of Public Services may direct attention to the existence of a hazard and the necessity of additional or different measures which shall be furnished and installed by the Service Provider at Service Provider's own expense, free of any cost to the City. Should the Service Provider refuse or fail to act in a timely manner to correct a hazardous condition, the Director of Public Services may direct City forces to provide the necessary protective and warning devices as deemed appropriate by the Director of Public Services.

The cost accrued by the City in connection therewith will be deducted from the Service Provider's contract payment. Any action or inaction on the part of the City in directing attention to the inadequacy of warning and protective measures or in providing additional protective warning devices shall not relieve the Service Provider from responsibility for public safety or abrogate Service Provider's obligation to furnish and pay for these devices.

The Service Provider shall submit any and all work schedules and/or traffic control plans to the Director of Public Services for approval as needed. 3-12 Construction Yard. It shall be the Service Provider's responsibility to locate any storage sites for materials and equipment needed and such sites either located on public or private property must be approved in advance by the Director of Public Services.

When storage sites are to be located upon private property, the Service Provider shall be required to submit to the Director of Public Services, written approval from the record owner authorizing the use of the property by the Service Provider. 3-13 Equipment Requirements. Prior to beginning of Service Provider operations, the Service Provider shall furnish a current list indicating the equipment to be used for the project.

All equipment shall be in safe and working condition. Prior to the beginning of aerial operations, the Service Provider shall furnish, at no cost to the City, current certification for all aerial devices to be used in the completion of contract operations.

If special equipment is required such as a crane or loader, it will be charged per hour or per job as long as it is consistent and detailed in the job proposal and the related invoice. 16 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 3-14 Preservation of Property. Existing improvements in areas adjoining the property whereon tree pruning work is being performed shall be protected from injury or damage resulting from operations of the Service Provider.
3-15 Emergency Work.

A. Emergency Response -The Service Provider shall have the capability to receive and to respond immediately to calls of an emergency nature during normal working hours and during hours outside of normal working hours. Calls of an emergency nature received by the City shall be referred to the Service Provider for immediate disposition.

B. Emergency Work - In the event that emergency work is required, the Service Provider shall notify the Director of Public Services or representative by telephone in advance before any emergency work is commenced. Non-emergency maintenance work requires written approval before the work is performed.

C. Emergency Personnel - In situations involving an emergency after normal work hours, the Service Provider shall dispatch qualified personnel and equipment to reach the site within three (3) hours. Service Provider's vehicle shall carry sufficient equipment to effect safe control of traffic. When the Service Provider arrives at the site, the Service Provider shall set up traffic warning and control devices, if deemed necessary, and proceed to accomplish the necessary work.

The Service Provider shall supply the City with name(s) and telephone number(s) of responsible person(s) representing the Service Provider for twenty-four (24) hour emergency response. The above-mentioned information shall remain current at all times. Any changes shall be forwarded to the City in writing within twelve (12) hours of any such change. Failure to maintain emergency information current shall result in a $200.00 penalty for each occurrence.

D. Service Provider's Response -The Service Provider must maintain telephone service so that all calls from the City to the Service Provider have no toll charge. Failure to respond by telephone or in person within one (1) hour of the City's attempt to contact the Service Provider's representative may result in a $200.00 penalty per incident. Failure to respond at any level will subject the Service Provider to any primary or secondary costs arising from said emergencies.

E. Complaint Requests -The Service Provider must correct all complaint requests within twenty-four (24) hours. Failure to respond/correct as requested may result in termination of the contract.
3-16 Pruning Standards. All trimming/maintenance work shall be in accordance with pruning standards as established by the latest edition of the International Society of Arboriculture Western Chapter. In all cases, the Director of Public Services shall have complete and sole discretion in determining conformance and acceptability of trees trimmed by the Service Provider. Trimmed trees rejected by the Director of Public Services shall be excluded from payment and may need to be replaced per Section 3-7.

A. All trees, large and small, shall be given a complete trim by grid and park area (see specifications for "Complete Trim"). The lists for grid pruning are typically scheduled in the same geographic area, and therefore the size or need of the tree is not taken into account when generating the list. If there are small trees, or other conditions that could be an 17 Updated; July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D7 41 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 exception, the City could remove the tree from the list if it is brought forward to the Maintenance Manager and (s)he approves the request to remove it from the scheduled list for that year.

B. Service Provider shall comply with Standards of CAL OSHA and the American National Standard Institute Safety Requirements.

C. The Service Provider shall exercise precautions as necessary when working adjacent to aerial and subterranean utilities. In the event that aerial utility wires present a hazard to the Service Provider's personnel or others near the work site, work is to immediately cease, and the appropriate utility company notified. Work shall then commence in accordance with instructions from the utility company. In the event that work causes excavation, Service Provider is responsible for appropriate notification of Underground Service Alert (USA).

D. No hooks, gaffs, spurs or climbers will be used by anyone employed for such trimming.

Any vine plant growing on trees shall be removed at ground level.

E. Final pruning cuts shall be made without leaving stubs. Cuts shall be made in a manner to promote fast callous growth.

F. Unless otherwise approved, trees are to be trimmed block by block, subject to the instructions of the Director of Public Services or authorized representative.

G. Service Provider shall maintain at least one (1) English speaking ISA Certified Tree Worker, on-site, at all times. The Certified Tree Worker can be either specialty, aerial or climber.

H. When trimming fungus, disease or fire blight infected limbs or fronds, all pruning tools shall be cleaned after each cut with alcohol or bleach.

I. Topping shall not be done without prior approval of the City.

J. For trees that require more than a "full trim," for example pruning for crown reduction or crown restoration, the work will be charged through a crew rental charge (agreed upon hourly pricing prior to any work starting). It can be time and material or negotiated price for this type of service.
3-17 Specifications for Complete Trim.

A. Low branches overhanging streets shall be removed, where practical, to a minimum height above the street grade to fifteen feet (15'). Low branches overhanging sidewalks and parkway shall be removed to a minimum height of seven feet (7') and without detracting from the natural shape of the tree.

B. Shorten the length of limbs which extend beyond the natural perimeter of an otherwise symmetrical form.

C. Prune end branches to lighten end weight where such overburden appears likely to cause breakage of limbs. Remove cross limbs, water sprouts and suckers. Perform crown reduction to ISA Specifications to approximately a 25 percent reduction in total crown size. 18 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 D. All trees on which vines are growing shall have said vines removed. Vine tendrils shall be removed in a manner which will not injure trees or cause scaring of low branches and tree trunks.
3-18 Specifications for Removals
3-18.1 Specifications for Complete Tree Removal
A. Removal of entire tree, stump remaining shall be no higher than four (4) inches above soil grade and shall be removed within 24 hours after tree removal per the unit bid price contained within "Complete Tree Removal."
B. Work shall begin within 10 days after each request and be diligently pursued until completion.

C. Service Provider shall make all arrangements necessary to have power or utility lines temporarily disconnected if necessary, for the safe removal of the tree.

D. When the removal requires special or additional means, there shall be no additional units or overall cost to the City without the authorization of the Director of Public Services. 3-18.2 Tree Stump Removal
A. Type of Work: Provide complete tree stump and surface root removal.

B. Specifications for stump and surface root removal:

1. Removal of entire stump or grinding to a depth of 12 inches below average soil grade or deeper if specified by the Director of Public Services.

2. Removal of all lateral surface roots to a depth of 8 inches (8") below grade. sidewalk.
a) When sidewalk is present, remove all surface roots between the curb and b) When no sidewalk is present, remove surface roots.
c) Backfill material shall be compacted to provide for minimal settling. It shall consist of an equal mixture of soil and stumped material which shall be three (3) inches above grade to provide for any soil settlement.
3-19 Climbing Techniques. Climbing and pruning practices should not injure the tree except for the pruning cuts.

Climbing spurs shall not be used when pruning a tree unless the branches are more than the throw-line distance apart. In such cases, the spurs should be removed once the climber is tied in.

Spurs may be used to reach an injured climber and when removing tree.

Rope injury to thin barked trees from loading out heavy limbs should be avoided by installing a block in the tree to carry the load.
19 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4857-AE42-3EC 1188FFBE5 3-20 Competing Plant Materials. Competing plant material or plant material clinging to trunk, such as Ivy, volunteer trees, or woody shrubs shall be removed to provide a clear area of at least 18", but not more than 24" around the trunk of the tree, and the root crown. 3-21 Tree Specifications. If applicable, each replacement tree shall be selected in accordance with the standards set forth in the American Standard for Nursery Stock. 3-22 Tree Stakes and Ties. If applicable, tree stakes shall be 3" diameter pressure treated wood poles. Tree ties shall be "VIT" twist brace ties in 18" or 24" lengths. 3-23 Disposal of Material. Excavation material determined as unsuitable fill material by the Director of Public Services shall become the property of the Service Provider and shall be legally disposed of outside the site of the work by and at the expense of the Service Provider.

The Service Provider is required to recycle all green waste material generated from its operations, unless the Director of Public Services desires the material to be stock piled.

Green waste receipts are required and are to be submitted for material. 3-24 Public Convenience. Service Provider shall perform all tree trimming/maintenance operations in such a manner as to cause as little inconvenience as possible to abutting property owners. Convenient access to driveways, houses and buildings along the line of the work shall be maintained at least each morning and evening and temporary approaches to crossings or intersecting streets shall be provided and kept in good condition. 3-25 Tree Inventory. The City has a current tree inventory, and the selected Service Provider shall ensure that the tree inventory remains up to date. Service Provider to provide, operate, and maintain a web-based computerized tree inventory system that includes an interactive map display of the tree inventory and the ability to search inventory for trees by address. City users of the system will have the ability to export data from the system into GIS shape file format and comma-separated values (.csv) or Microsoft Excel (.xlsx) file formats.

Tree data will include both tree inventory and tree work history. Data fields include tree latitude/longitude, service dates and service request information, current health of tree, tree size, crown height, diameter at breast height (DBH), botanical and common names, current value of tree and other relevant information as supplied by the City. Service Provider will not be required to perform a new tree inventory at the beginning of the contract but will instead be responsible for importing data from the current tree inventory. The City will provide the legacy tree inventory data to the vendor in comma-separated values files (.csv), GIS shape file(.shp) and Excel file (.xlsx) format to be maintained in the Service Provider's web-based computerized tree inventory system.

The Service Provider shall update tree inventory within one month after any work is performed to reflect:
• changes in baseline data (e.g. condition, height, DBH); • current photo;
• recommended corrections; to reflect work performed
• tree removal;
• tree planting;
• pruning;
• emergency response work; and
• other related data
20 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 The system shall be capable of maintaining and displaying all past work histories and list potential future work for all tree sites in the inventory. A preferred feature of the tree inventory system is the ability to request a work order for specific trees via the web-based program. 3-26 Quality Control Program. Service Provider shall provide the City with a copy of their quality control program. This program shall address how the Service Provider will address citizen concerns; communicate with the City and Service Provider's employees. This program shall also include the Service Provider's methods for ensuring that work is completed in a satisfactory manner and that adequate follow-up work is accomplished. The City or its designated representative, shall at all times, have access to the work and shall be furnished with every reasonable facility for ascertaining full knowledge respecting the progress, workmanship, and character of materials and equipment used and employed in the work. 3-27 Pictures. Service Provider is to supply representative of "Before and After" trimming pictures that are suitable for reproduction when requested by the City. 3-28 Tree Planting. Service Provider to follow the guidelines as outlined in the City's Standard Tree Planting and Staking (L-17) standards and Tree Root Barrier (L-18) standards.

There is no tree establishment period, however, there is a 90-day warranty for the workmanship and health of the nursery stock for newly planted trees. If a tree failure is a result of vandalism, trauma or irrigation failures, however, the warranty shall not apply. 3-29 Property Damage. Service Provider shall be responsible for any and all damage to public and private property including driveway, fences, plants, shrubs, irrigation, etc. Service Provider shall replace with new material or correct any damaged property to the satisfaction of the City Maintenance Manager or his/her designee. The Service Provider shall be responsible for all costs related to replacement and correction of all incidental damages that occur during the course of work and no additional compensation will be allowed. 21 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5

EXHIBIT B

SCHEDULE OF COMPENSATION RATES
The breakdown of costs for the two-year tree maintenance services agreement is listed below.

Also attached is the Schedule of Compensation for the individual line items per West Coast Arborists, Inc's cost proposal dated July 15, 2022.

ITEM AMOUNT
Street Tree Maintenance and Safety Pruning $ 89,000.00
Street Tree Grid Pruning $100,000.00
Park Tree Safety Pruning $ 25,000.00
Park Tree Grid Pruning $ 12,000.00
Other Extra Services $100,000.00
TOTAL ANNUAL AMOUNT $326,000.00
TOTAL TWO-YEAR AMOUNT $652,000.00
22 Updated: July 2022

DocuSign Envelope ID: BFEB5D8D-E89F-469B-8510-B87C2C8820A1 DocuSign Envelope ID: 5D7 41 AE3-F3A4-4B57-AE42-3EC 1188FFBE5 ITEM

1. 2.

A
B
C
D
E
3-A
3-B
4 5-A
EXHIBIT B - Continued

SCHEDULE OF COMPENSATION RATES
WEST COAST ARBORISTS, INC.

COST PROPOSAL SCHEDULE dated July 15, 2022

DESCRIPTION REFERENCE UNIT
Residential Grid and Park Pruning 3-16, 3-17 Per tree
(small, medium, and large trees)
Full Trim Based on Service or
Special Requests
0" - 6'' dbh (diameter at 3-17 Per tree
breast height)
T' -12'' dbh 3-17 Per tree
13" -18" dbh 3-17 Per tree
19" -24" dbh 3-17 Per tree
25" and over clbh 3-17 Per tree
Complete Tree/ Removal -Under 3-18.1 Per DBH
36" ( diameter at
(including shunp/roots) breast
height)
Cemplete Tree/ Removal -Over 3-18.1 Per DBH
36" (diameter at
(including stump/roots) breast
height)
Stump Removal (incluaing roots) 3-18.2 Per
diameter
inch
Tree Planting - 15-ga11on tree ,.•vith 3-28 Per tree
linear root barrier
UNIT
PRICE
$ 94.00
$ 94.00
$174.00
$ 274.00
$274.00
$ 274.00
$ 45.00
$45.00
$18.00
$ 325.00

DocuSign Envelope ID: BFEB5D8D-E89F-469B-8510-B87C2C8820A1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5 5-B Tl'ee Planting - 15-gallon tree
\Vithout root barrier
5-C Tree Planting - 24-inch box tree
with linear root barrier

6. Evaluations by certified arborist
with verbal recommendations

7. Tree Watering (per half day)
8 Crew Rental
8-A 3 crew members with truck &
equipment
(regular time)
8-B 3 crew members ,,vith truck &
equipment
( emergency response)
9 Cost to Spread Arbor Mulch per
square foot
3-28 Per tree $ 250.00
3-28 Per tree $ 495.00
Hourly $119.00
Per½ day $ 500.00
3-13 Hourly $ 300.00
3-13, 3-15 Hourly $ 360.00
Addendum Per $4.00
#2 Square
Foot

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D7 41 AE3-F3A4-4B57-AE42-3EC 11 BBFFBES West Coast Arborists, Inc.
www.WCAINC.com
2200 E. Via Burton • Anaheim, California 92806 • 71 4. 991.1 900 • 800.5 21.3714 • Fax 714.956.37 45

DocuSign Envelope ID: BFEB5D8D-E89F-469B-851 0-B87C2C8820A 1 DocuSign Envelope ID: 5D741AE3-F3A4-4B57-AE42-3EC1188FFBE5

EXHIBIT C

SCHEDULE OF PERFORMANCE
All work shall be planned in advance on a schedule to be agreed upon by the CITY and SERVICE PROVIDER.
23 Updated: July 2022

10 CITY COUNCIL STAFF REPORT
MEETING DATE: August 28, 2024
PREPARED BY:

Hilary Holeman, Administrative Analyst
APPROVED BY: City Manager

RATIFY CITY POSITION ON PENDING LEGISLATION, ASSEMBLY
BILL 2557 (ORTEGA): LOCAL AGENCIES: CONTRACTS FOR SPECIAL SERVICES AND TEMPORARY HELP: PERFORMANCE REPORTS

RECOMMENDATION(S)
Ratify the City’s opposing position on pending legislation, Assembly Bill 2557 (Ortega):

Local Agencies: Contracts for Special Services and Temporary Help: Performance Reports.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Fostering a Positive Organizational Culture
Preserving and Cultivating Public Trust
2024-2025 Strategic Priorities
Fiscal Sustainability
REPORT NARRATIVE:

Per Resolution No. 20-010 (attachment 1), the City Council recognizes occasional situations arise where communication indicating support or opposition on pending State, County, or other regional boards' legislation or action that could be important and may occur prior to the next scheduled City Council meeting. Under these circumstances, the Mayor or City Manager is delegated the authority to prepare, execute and transmit written or verbal communications indicating a City's position when any of the following criteria are met: a) the League of California Cities, or a similar organization, has requested the City to comment or take a position, b) the timing to express a position occurs prior to the next scheduled Council meeting, or c) the pending State, County, or other regional boards' legislation or action clearly supports or clearly hinders the implementation or fulfillment of an adopted City Council Priority, Goal, or Strategy in a substantial manner such that it is in the best interest of the City to indicate its comment or position. When this occurs, a written report to the City Council for acceptance is required at the next possible meeting.

Assembly Bill 2557 authored by Assembly Member Ortega (attachment 2), mandates that any individual or entity entering into a special services contract exceeding $100,000 with a city to perform functions currently, or within the last five years, performed by city

10 employees represented by an employee organization, must comply with extensive reporting requirements. This bill could discourage contractors from engaging in business with cities, potentially leading to increased costs and delays.

On August 7, 2024, the League of California Cities sent an Action Alert requesting cities to send letters of opposition prior to the Senate Appropriations Committee hearing on August 15, 2024. On August 12, 2024, the Mayor communicated the City's opposition to AB 2557 (attachment 3). On August 15, 2024, the bill was held on Suspense in Senate Appropriations and will not be moving forward.

COMMUNITY ENGAGEMENT:

Inform - this report serves to inform the Community of the City’s position on pending legislation that may directly impact the City of Morgan Hill.

ALTERNATIVE ACTIONS:

The City Council could rescind the position taken.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

City Council periodically ratifies City positions on various pending State, County, or other regional board legislations or actions that have a direct impact on the City of Morgan Hill.

FISCAL AND RESOURCE IMPACT:

Tracking legislation is an activity included in the annual workplan of the City Manager’s Office.

CEQA (California Environmental Quality Act):

Not a Project - administrative action/activity without an impact.

City of Morgan Hill
Resolution No. 20-010

Section 2. Approval and Authorization. The City Council prefers, whenever possible, that determinations on whether to take a position on pending State, County, or other regional boards' legislation or action be brought before the City Council as a whole for consideration and action. However, the City Council recognizes that occasional, limited situations arise where communications indicating support or opposition on pending State, County, or other regional boards' legislation or action that could be important to City are requested from cities within timeframes that have deadlines occurring prior to the next scheduled meeting of the City Council as a whole at which the City Council could consider and determine City's position on such pending legislation. For these reasons, the City Council does further resolve, order and/or direct as follows:
a. That the Mayor and/or the City Manager is delegated authority to and is authorized to prepare, execute and transmit written or verbal communications indicating a City position on proposed pending State, County or other regional boards' legislation or action that may have impacts upon City when any of the following criteria are met:

1. The League of California Cities, or a successor or similar organization, has requested City comment or position on a piece of pending legislation or action, or the City has otherwise become aware of such pending legislation or action;

11. A public hearing and an opportunity for City to comment or take a position upon such pending legislation or action is occurring in a timeframe and with a deadline to comment or express a position that occurs prior to the next scheduled meeting of the City Council at which the City Council could consider and determine City's comment or position on such pending legislation or action; or
iii. The pending legislation or action clearly supports or clearly hinders the implementation or fulfillment of an adopted City Council Priority, Goal or Strategy in a substantial manner such that it is in the best interests of City to indicate its comment or position on such pending legislation or action. b. That the Mayor and/or City Manager is hereby directed to provide a written report to the City Council for the Council's comment and acceptance at the City Council's next possible meeting whenever the Mayor or City Manager prepares, executes and transmits a communication indicating a comment or position on pending legislation or action pursuant to the authority delegated under this Resolution, which report shall include a copy of such pending legislation or action, and the comment or position transmitted.

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

AMENDED IN SENATE JULY 3, 2024
AMENDED IN SENATE JUNE 17, 2024
AMENDED IN SENATE JUNE 5, 2024
AMENDED IN ASSEMBLY MAY 16, 2024
AMENDED IN ASSEMBLY APRIL 25, 2024
AMENDED IN ASSEMBLY APRIL 8, 2024
AMENDED IN ASSEMBLY MARCH 21, 2024
california legislature—2023–24 regular session
ASSEMBLY BILL No. 2557
Introduced by Assembly Member Ortega
February 14, 2024
An act to add Sections 31000.01, 31000.4.5, 37103.1, and 53060.01 to the Government Code, relating to local agencies.
legislative counsel’s digest
AB 2557, as amended, Ortega. Local agencies: contracts for special services and temporary help: performance reports.
(1)  Existing law relating to the government of counties authorizes a county board of supervisors to contract for certain types of special services on behalf of the county, any county officer or department, or any district or court in the county. Existing law requires those special services contracts to be with persons who are specially trained, experienced, expert, and competent to perform those services.

This bill would require, as of July 1, 2025, each board of supervisors that solicits for and enters into a specified contract for special services

92

services, except as specified, to post that contract and any related documents, as specified, on its internet website. The bill would require, as of July 1, 2026, each contract, as described above, to include, among other things, the objectives, desirables, and goals of the contract. The bill would require, before beginning a procurement process to contract for functions, duties, responsibilities, or services, as specified, the board of supervisors, or its representative, to give reasonable written notice to the exclusive employee representative of the workforce affected by the contract of its determination to begin that process. The bill would also require, at least 30 days before the modification or renewal of the above-described contract, the board of supervisors, or its representative, to notify, as specified, the exclusive employee representative of the workforce affected by the contract of the intent to modify or renew the contract.
(2)  Existing law authorizes a county board of supervisors to contract with temporary help firms for temporary help to assist county agencies, departments, or offices during any peak load, temporary absence, or emergency other than a labor dispute, if the board determines that it is in the economic interest of the county to do so. Existing law limits the use of temporary help to no more than 90 days for any single peak load, temporary absence, or emergency situation.

This bill would impose requirements similar to those described in paragraph (1) for specified board contracts for temporary help. (3)  Existing law relating to the government of cities authorizes the legislative body of a city to contract with any specially trained and experienced person, firm, or corporation for special services and advice in financial, economic, accounting, engineering, legal, or administrative matters.

This bill would impose requirements similar to those described in paragraph (1) for specified city council contracts for special services. (4)  Existing law authorizes the legislative body of a public or municipal corporation or district to contract with persons performing special services in regard to financial, economic, accounting, engineering, legal, and administrative matters if those persons are specially trained and experienced and competent to perform the special services required.

This bill would impose requirements similar to those described in paragraph (1) for specified legislative body contracts for special services. (5)  The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair 92 AB 2557 — 2 —

and, therefore, apply to all counties and cities, including charter counties and charter cities.
(6)  By imposing new duties on local government agencies, the bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.

Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: yes.

The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the line 2 following:
line 3 (a)  Local governments are increasingly relying on private line 4 contractors to provide public services customarily performed by line 5 the civil service workforce.
line 6 (b)  The delivery of quality public services and goods requires line 7 a capable and efficient workforce who receives fair compensation. line 8 (c)  Transparent contracting processes allow for thorough public line 9 scrutiny to ensure that quality services and goods are delivered to line 10 California communities.
line 11 (d)  There is a statewide interest in ensuring that public funds line 12 are used effectively and ethically and that the replacement of line 13 bargaining unit work with private contractors does not undermine line 14 public employee relations.
line 15 SEC. 2. Section 31000.01 is added to the Government Code, line 16 immediately following Section 31000, to read:
line 17 31000.01. (a)  As of July 1, 2025, each board of supervisors line 18 that solicits for and enters into a contract under Section 31000 for line 19 functions that are currently, or were in the prior five years, line 20 performed by employees of the county represented by an employee line 21 organization, as defined in subdivision (a) of Section 3501, shall line 22 post that contract and any related documents, including line 23 performance reports that may be required by the contract, that are line 24 subject to the California Public Records Act (Division 10 92 — 3 — AB 2557

line 1 (commencing with Section 7920.000) of Title 1) on its internet line 2 website.
line 3 (b)  As of July 1, 2026, each contract with the board of line 4 supervisors pursuant to Section 31000 for functions that are line 5 currently, or were in the prior five years, performed by employees line 6 of the county represented by an employee organization, as defined line 7 in subdivision (a) of Section 3501, shall include all of the line 8 following:
line 9 (1)  The objectives, deliverables, and goals of the contract. line 10 (2)  A list of all financial expenditures associated with the line 11 delivery of contracted services, including, but not limited to, line 12 personnel costs, direct expenses, and indirect expenses, and their line 13 corresponding deliverables.
line 14 (3)  The number of each contractor’s and subcontractor’s line 15 employees associated with the delivery of the contracted services, line 16 organized by job category, and the number of each contractor’s line 17 and subcontractor’s independent contractors associated with line 18 delivery of the contracted services organized by job category. line 19 (4)  (A)  The names of any subcontractors providing services line 20 under the contract.
line 21 (B)  The hourly rates, total compensation, and pay scales of line 22 employees and independent contractors providing services under line 23 the contract, organized by job classification.
line 24 (c)  (1)  Before beginning a procurement process to contract for line 25 functions, duties, responsibilities, or services that are currently line 26 performed or were in the previous five years performed by line 27 employees of the county represented by an employee organization, line 28 as defined in subdivision (a) of Section 3501, the board of line 29 supervisors, or its representative, shall give reasonable written line 30 notice to the exclusive employee representative of the workforce line 31 affected by the contract of its determination to begin that process. line 32 (2)  A notification shall explain the proposed contract, the line 33 justification for the contract, the expected length of the contract, line 34 and the effect on represented classifications.
line 35 (3)  This subdivision shall not apply in the event of an line 36 emergency.
line 37 (d)  At least 30 days before the modification or renewal of a line 38 contract specified in subdivision (c), the board of supervisors, or line 39 its representative, shall notify, in writing, the exclusive employee 92 AB 2557 — 4 —

line 1 representative of the workforce affected by the contract of the line 2 intent to modify or renew the contract.
line 3 (e)  The contract shall provide that all records provided to the line 4 county by the contractor shall be subject to the California Public line 5 Records Act (Division 10 (commencing with Section 7920.000) line 6 of Title 1). In furtherance of this subdivision, contractors and any line 7 subcontractors shall maintain records related to performance of line 8 the contract that ordinarily would be maintained by the county in line 9 performing the same functions.
line 10 (f)  This section shall not apply to any contracts that meet both line 11 of the following criteria:
line 12 (1)  A contract for an amount less than one hundred thousand line 13 dollars ($100,000).
line 14 (2)  A contract to provide services for work not usually performed line 15 by public employees.
line 16 (f)
line 17 (g)  For purposes of this section, the following definitions apply:
line 18 (1)  “Deliverables” means the agreed upon services set forth in line 19 the contract, the expected rate of delivery, and the success of those line 20 services.
line 21 (2)  “Emergency” means a situation where immediate acquisition line 22 is necessary for the protection of the public health, welfare, or line 23 safety.
line 24 (3)  “Total compensation” means the complete payment provided line 25 to a contracted employee throughout the duration of the contract, line 26 including, but not limited to, applicable hourly pay, overtime pay, line 27 benefits, and retirement.
line 28 (4)  “Work not usually performed by public employees” means line 29 a function or activity for which the employer has not had a line 30 classification within the last five years prior to the initiation of the line 31 contract whose duties include the function or activity. line 32 (g)
line 33 (h)  The provisions of this section are severable. If any provision line 34 of this section or its application is held invalid, the invalidity shall line 35 not affect other provisions or applications that can be given effect line 36 without the invalid provision or application.
line 37 (h)
line 38 (i)  The Legislature finds and declares that ensuring that the line 39 replacement of bargaining unit work with contracted employees line 40 does not undermine public employee relations is a matter of 92 — 5 — AB 2557

line 1 statewide concern for purposes of Section 4 of Article XI of the line 2 California Constitution. Therefore, this section applies to all line 3 counties, including charter counties.
line 4 (i)
line 5 (j)  This section shall apply on and after January 1, 2025. These line 6 amendments shall apply prospectively only and shall not be line 7 construed, applied, or otherwise interpreted to have any effect on line 8 or application to any contract entered into before January 1, 2025. line 9 SEC. 3. Section 31000.4.5 is added to the Government Code, line 10 immediately following Section 31000.4, to read:
line 11 31000.4.5. (a)  As of July 1, 2025, each board of supervisors line 12 that solicits for and enters into a contract under Section 31000.4 line 13 for functions that are currently, or were in the prior five years, line 14 performed by employees of the county represented by an employee line 15 organization, as defined in subdivision (a) of Section 3501, shall line 16 post that contract and any related documents, including line 17 performance reports that may be required by the contract, that are line 18 subject to the California Public Records Act (Division 10 line 19 (commencing with Section 7920.000) of Title 1) on its internet line 20 website.
line 21 (b)  As of July 1, 2026, each contract exceeding 60 days with line 22 the board of supervisors pursuant to Section 31000.4 for functions line 23 that are currently, or were in the prior five years, performed by line 24 employees represented by an employee organization, as defined line 25 in subdivision (a) of Section 3501, shall include all of the line 26 following:
line 27 (1)  The objectives, deliverables, and goals of the contract. line 28 (2)  A list of all financial expenditures associated with the line 29 delivery of contracted services, including, but not limited to, line 30 personnel costs, direct expenses, and indirect expenses, and their line 31 corresponding deliverables.
line 32 (3)  The number of each contractor’s and subcontractor’s line 33 employees associated with the delivery of the contracted services, line 34 organized by job category, and the number of each contractor’s line 35 and subcontractor’s independent contractors associated with the line 36 delivery of the contracted services, organized by job category. line 37 (4)  (A)  The names of any subcontractors providing services line 38 under the contract.
92 AB 2557 — 6 —

line 1 (B)  The hourly rates, total compensation, and pay scales of line 2 employees and independent contractors providing services under line 3 the contract, organized by job classification.
line 4 (c)  (1)  Before beginning a procurement process to contract for line 5 functions, duties, responsibilities, or services that are currently line 6 performed or were in the previous five years performed by line 7 employees of the county represented by an employee organization, line 8 as defined in subdivision (a) of Section 3501, the board of line 9 supervisors, or its representative, shall give reasonable written line 10 notice to the exclusive employee representative of the workforce line 11 affected by the contract of its determination to begin that process. line 12 (2)  A notification shall explain the proposed contract, the line 13 justification for the contract, the expected length of the contract, line 14 and the effect on represented classifications.
line 15 (3)  This subdivision shall not apply in the event of an line 16 emergency.
line 17 (d)  At least 30 days before the modification or renewal of a line 18 contract specified in subdivision (c), the board of supervisors, or line 19 its representative, shall notify, in writing, the exclusive employee line 20 representative of the workforce affected by the contract of the line 21 intent to modify or renew the contract.
line 22 (e)  The contract shall provide that all records provided to the line 23 county by the contractor shall be subject to the California Public line 24 Records Act (Division 10 (commencing with Section 7920.000) line 25 of Title 1). In furtherance of this subdivision, contractors and any line 26 subcontractors shall maintain records related to performance of line 27 the contract that ordinarily would be maintained by the county in line 28 performing the same functions.
line 29 (f)  This section shall not apply to any contracts that meet both line 30 of the following criteria:
line 31 (1)  A contract for an amount less than one hundred thousand line 32 dollars ($100,000).
line 33 (2)  A contract to provide services for work not usually performed line 34 by public employees.
line 35 (f)
line 36 (g)  For purposes of this section, the following definitions apply:
line 37 (1)  “Deliverables” means the agreed upon services set forth in line 38 the contract, the expected rate of delivery, and the success of those line 39 services.
92 — 7 — AB 2557

line 1 (2)  “Emergency” means a situation where immediate acquisition line 2 is necessary for the protection of the public health, welfare, or line 3 safety.
line 4 (3)  “Total compensation” means the complete payment provided line 5 to a contracted employee throughout the duration of the contract, line 6 including, but not limited to, applicable hourly pay, overtime pay, line 7 benefits, and retirement.
line 8 (4)  “Work not usually performed by public employees” means line 9 a function or activity for which the employer has not had a line 10 classification within the last five years prior to the initiation of the line 11 contract whose duties include the function or activity. line 12 (g)
line 13 (h)  The provisions of this section are severable. If any provision line 14 of this section or its application is held invalid, the invalidity shall line 15 not affect other provisions or applications that can be given effect line 16 without the invalid provision or application.
line 17 (h)
line 18 (i)  The Legislature finds and declares that ensuring that the line 19 replacement of bargaining unit work with contracted employees line 20 does not undermine public employee relations is a matter of line 21 statewide concern for purposes of Section 4 of Article XI of the line 22 California Constitution. Therefore, this section applies to all line 23 counties, including charter counties.
line 24 (i)
line 25 (j)  This section shall apply on and after January 1, 2025. These line 26 amendments shall apply prospectively only and shall not be line 27 construed, applied, or otherwise interpreted to have any effect on line 28 or application to any contract entered into before January 1, 2025. line 29 SEC. 4. Section 37103.1 is added to the Government Code, line 30 immediately following Section 37103, to read:
line 31 37103.1. (a)  As of July 1, 2025, each legislative body that line 32 solicits for and enters into a contract under Section 37103 for line 33 functions that are currently, or were in the prior five years, line 34 performed by employees of the city represented by an employee line 35 organization, as defined in subdivision (a) of Section 3501, shall line 36 post that contract and any related documents, including line 37 performance reports that may be required by the contract, that are line 38 subject to the California Public Records Act (Division 10 line 39 (commencing with Section 7920.000) of Title 1) on its internet line 40 website.
92 AB 2557 — 8 —

line 1 (b)  As of July 1, 2026, each contract with the legislative body line 2 pursuant to Section 37103 for functions that are currently, or were line 3 in the prior five years, performed by employees of the city line 4 represented by an employee organization, as defined in subdivision line 5 (a) of Section 3501, shall include all of the following:
line 6 (1)  The objectives, deliverables, and goals of the contract. line 7 (2)  A list of all financial expenditures associated with the line 8 delivery of contracted services, including, but not limited to, line 9 personnel costs, direct expenses, and indirect expenses, and their line 10 corresponding deliverables.
line 11 (3)  The number of each contractor’s and subcontractor’s line 12 employees associated with the delivery of the contracted services, line 13 organized by job category, and the number of each contractor’s line 14 and subcontractor’s independent contractors associated with the line 15 delivery of the contracted services, organized by job category. line 16 (4)  (A)  The names of any subcontractors providing services line 17 under the contract.
line 18 (B)  The hourly rates, total compensation, and pay scales of line 19 employees and independent contractors providing services under line 20 the contract, organized by job classification.
line 21 (c)  (1)  Before beginning a procurement process to contract for line 22 functions, duties, responsibilities, or services that are currently line 23 performed or were in the previous five years performed by line 24 employees of the city represented by an employee organization, line 25 as defined in subdivision (a) of Section 3501, the legislative body, line 26 or its representative, shall give reasonable written notice to the line 27 exclusive employee representative of the workforce affected by line 28 the contract of its determination to begin that process. line 29 (2)  A notification shall explain the proposed contract, the line 30 justification for the contract, the expected length of the contract, line 31 and the effect on represented classifications.
line 32 (3)  This subdivision shall not apply in the event of an line 33 emergency.
line 34 (d)  At least 30 days before the modification or renewal of a line 35 contract specified in subdivision (c), the legislative body, or its line 36 representative, shall notify, in writing, the exclusive employee line 37 representative of the workforce affected by the contract of the line 38 intent to modify or renew the contract.
line 39 (e)  The contract shall provide that all records provided to the line 40 city by the contractor shall be subject to the California Public 92 — 9 — AB 2557

line 1 Records Act (Division 10 (commencing with Section 7920.000) line 2 of Title 1). In furtherance of this subdivision, contractors and any line 3 subcontractors shall maintain records related to performance of line 4 the contract that ordinarily would be maintained by the county in line 5 performing the same functions.
line 6 (f)  This section shall not apply to any contracts that meet both line 7 of the following criteria:
line 8 (1)  A contract for an amount less than one hundred thousand line 9 dollars ($100,000).
line 10 (2)  A contract to provide services for work not usually performed line 11 by public employees.
line 12 (f)
line 13 (g)  For purposes of this section, the following definitions apply:
line 14 (1)  “Deliverables” means the agreed upon services set forth in line 15 the contract, the expected rate of delivery, and the success of those line 16 services.
line 17 (2)  “Emergency” means a situation where immediate acquisition line 18 is necessary for the protection of the public health, welfare, or line 19 safety.
line 20 (3)  “Total compensation” means the complete payment provided line 21 to a contracted employee throughout the duration of the contract, line 22 including, but not limited to, applicable hourly pay, overtime pay, line 23 benefits, and retirement.
line 24 (4)  “Work not usually performed by public employees” means line 25 a function or activity for which the employer has not had a line 26 classification within the last five years prior to the initiation of the line 27 contract whose duties include the function or activity. line 28 (g)
line 29 (h)  The provisions of this section are severable. If any provision line 30 of this section or its application is held invalid, the invalidity shall line 31 not affect other provisions or applications that can be given effect line 32 without the invalid provision or application.
line 33 (h)
line 34 (i)  The Legislature finds and declares that ensuring that the line 35 replacement of bargaining unit work with contracted employees line 36 does not undermine public employee relations is a matter of line 37 statewide concern rather than a municipal affair as that term is line 38 used in Section 5 of Article XI of the California Constitution. line 39 Therefore, this section applies to all cities, including charter cities. line 40 (i)
92 AB 2557 — 10 —

line 1 (j)  This section shall apply on and after January 1, 2025. These line 2 amendments shall apply prospectively only and shall not be line 3 construed, applied, or otherwise interpreted to have any effect on line 4 or application to any contract entered into before January 1, 2025. line 5 SEC. 5. Section 53060.01 is added to the Government Code, line 6 immediately following Section 53060, to read:
line 7 53060.01. (a)  As of July 1, 2025, each legislative body that line 8 solicits for and enters into a contract under Section 53060 for line 9 functions that are currently, or were in the prior five years, line 10 performed by employees of the corporation or district represented line 11 by an employee organization, as defined in subdivision (a) of line 12 Section 3501, shall post that contract and any related documents, line 13 including performance reports that may be required by the contract, line 14 that are subject to the California Public Records Act (Division 10 line 15 (commencing with Section 7920.000) of Title 1) on its internet line 16 website.
line 17 (b)  As of July 1, 2026, each contract with a legislative body line 18 pursuant to Section 53060 for functions that are currently, or were line 19 in the prior five years, performed by employees of the corporation line 20 or district represented by an employee organization, as defined in line 21 subdivision (a) of Section 3501, shall include all of the following:
line 22 (1)  The objectives, deliverables, and goals of the contract. line 23 (2)  A list of all financial expenditures associated with the line 24 delivery of contracted services, including, but not limited to, line 25 personnel costs, direct expenses, and indirect expenses, and their line 26 corresponding deliverables.
line 27 (3)  The number of each contractor’s and subcontractor’s line 28 employees associated with delivery of the contracted services, line 29 organized by job category, and the number of each contractor’s line 30 and subcontractor’s independent contractors associated with line 31 delivery of the contracted services, organized by job category. line 32 (4)  (A)  The names of any subcontractors providing services line 33 under the contract.
line 34 (B)  The hourly rates, total compensation, and pay scales of line 35 employees and independent contractors providing services under line 36 the contract, organized by job classification.
line 37 (c)  (1)  Before beginning a procurement process to contract for line 38 functions, duties, responsibilities, or services that are currently line 39 performed or were in the previous five years performed by line 40 employees of the corporation or district represented by an employee 92 — 11 — AB 2557

line 1 organization, as defined in subdivision (a) of Section 3501, the line 2 legislative body, or its representative, shall give reasonable written line 3 notice to the exclusive employee representative of the workforce line 4 affected by the contract of its determination to begin that process. line 5 (2)  A notification shall explain the proposed contract, the line 6 justification for the contract, the expected length of the contract, line 7 and the effect on represented classifications.
line 8 (3)  This subdivision shall not apply in the event of an line 9 emergency.
line 10 (d)  At least 30 days before the modification or renewal of a line 11 contract specified in subdivision (c), the legislative body, or its line 12 representative, shall notify, in writing, the exclusive employee line 13 representative of the workforce affected by the contract of the line 14 intent to modify or renew the contract.
line 15 (e)  The contract shall provide that all records provided to the line 16 legislative body by the contractor shall be subject to the California line 17 Public Records Act (Division 10 (commencing with Section line 18 7920.000) of Title 1). In furtherance of this subdivision, contractors line 19 and any subcontractors shall maintain records related to line 20 performance of the contract that ordinarily would be maintained line 21 by the county in performing the same functions. line 22 (f)  This section shall not apply to any contracts that meet both line 23 of the following criteria:
line 24 (1)  A contract for an amount less than one hundred thousand line 25 dollars ($100,000).
line 26 (2)  A contract to provide services for work not usually performed line 27 by public employees.
line 28 (f)
line 29 (g)  For purposes of this section, the following definitions apply:
line 30 (1)  “Deliverables” means the agreed upon services set forth in line 31 the contract, the expected rate of delivery, and the success of those line 32 services.
line 33 (2)  “Emergency” means a situation where immediate acquisition line 34 is necessary for the protection of the public health, welfare, or line 35 safety.
line 36 (3)  “Total compensation” means the complete payment provided line 37 to a contracted employee throughout the duration of the contract, line 38 including, but not limited to, applicable hourly pay, overtime pay, line 39 benefits, and retirement.
92 AB 2557 — 12 —

line 1 (4)  “Work not usually performed by public employees” means line 2 a function or activity for which the employer has not had a line 3 classification within the last five years prior to the initiation of the line 4 contract whose duties include the function or activity. line 5 (g)
line 6 (h)  The provisions of this section are severable. If any provision line 7 of this section or its application is held invalid, the invalidity shall line 8 not affect other provisions or applications that can be given effect line 9 without the invalid provision or application.
line 10 (h)
line 11 (i)  The Legislature finds and declares that ensuring that the line 12 replacement of bargaining unit work with contracted employees line 13 does not undermine public employee relations is a matter of line 14 statewide concern rather than a municipal affair as that term is line 15 used in Section 5 of Article XI of the California Constitution and line 16 for purposes of Section 4 of Article XI of the California line 17 Constitution. Therefore, this section applies to all cities and all line 18 counties, including charter cities and charter counties. line 19 (i)
line 20 (j)  This section shall apply on and after January 1, 2025. These line 21 amendments shall apply prospectively only and shall not be line 22 construed, applied, or otherwise interpreted to have any effect on line 23 or application to any contract entered into before January 1, 2025. line 24 SEC. 6. If the Commission on State Mandates determines that line 25 this act contains costs mandated by the state, reimbursement to line 26 local agencies and school districts for those costs shall be made line 27 pursuant to Part 7 (commencing with Section 17500) of Division line 28 4 of Title 2 of the Government Code.

O
92 — 13 — AB 2557

17575 Peak Avenue
Morgan Hill, CA 95037-4128
TEL: (408) 310-4647
www.morganhill.ca.gov
August 12, 2024
The Honorable Liz Ortega
1021 O Street, Room 5120
Sacramento, CA 95814
Re:AB 2557 (Ortega): Local Agencies: Contracts for Special Services and Temporary Help:

Performance Reports (As amended 7/3/24)
OPPOSE
Dear Assembly Member Ortega,
The City of Morgan Hill must respectfully oppose AB 2557, a bill related to contracting by local agencies.

AB 2557 is overly burdensome and inflexible, which will likely result in worse outcomes for vulnerable communities and diminished local services for our residents.

Broad application has costly implications. The City of Morgan Hill relies in part on contractors to provide a variety of programs and services. Given our current workforce shortages, it would be difficult to provide these services without their capable assistance. The requirements will also exacerbate already demanding caseloads and workloads for our existing staff and increase city costs.

Making private employee data subject to the California Public Records Act deters effective partnerships with the private sector. This bill would require anyone who enters a special services contract over $100,000 in value with a city to perform functions that are currently, or were in the prior five years, performed by city employees represented by an employee organization to post the contract and any related documents, including any required performance reports on their website. This is an expensive endeavor that would require considerable investment in IT infrastructure and staff for our city.

Additionally, AB 2557 requires contractors to provide information about employees and retain records. This private employee data would be accessible to any member of the public. Public employee data subject to the CPRA has resulted in data mining for profit, as well as subjecting employees to harassment and threats.

Local agencies are already subject to statutory limitations on contracting. Cities are already subject to the statutory provisions of the Meyers-Milias-Brown Act and related state law provisions. Local agencies cannot contract out work currently performed by bargaining unit employees simply to save money and most contracting-out decisions are already subject to meet-and-confer requirements. All the issues the bill seeks to address are better addressed at the bargaining table where local conditions can be appropriately considered.

Unclear terminology creates confusion and invites disputes. We remain concerned that the notification timeframes provided are impractical. While the bill includes the requirement for a “reasonable” notification to the employee representative, we are unclear as to what exactly this requirement means. Further, the emergency exemption provided in the bill appears to only apply to portions of the notice provisions. Local agencies are first responders and need flexible and accessible means for contracting with clear understanding of what is required prior to doing so.

AB 2557 represents a sweeping change to the fundamental work of local governments, but we are unaware of a specific problem that this measure would resolve or prevent. The bill will not improve services, reduce costs, or protect employees.

For these reasons, the City of Morgan Hill respectfully opposes AB 2557.

Sincerely,
Mark Turner, Mayor
Cc: The Honorable Senator John Laird
Samantha Caygill, Regional Public Affairs Manager, League of California Cities, [email protected] Meg Desmond, League of California Cities, [email protected]

11 CITY COUNCIL STAFF REPORT
MEETING DATE: August 28, 2024
PREPARED BY:

Dat Nguyen, Finance Director
APPROVED BY: City Manager

RATIFY THE CITY MANAGER'S EXECUTION OF THE FIRST

AMENDMENT TO AGREEMENT WITH THE COUNTY OF SANTA

CLARA TO PROVIDE THE CITY WITH FUNDING FOR EMERGENCY

MEDICAL SERVICES

RECOMMENDATION(S)
Ratify the City Manager's execution of the first amendment to the agreement with the County of Santa Clara to provide funding for the City of Morgan Hill to purchase Emergency Medical Services supplies and equipment.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Supporting our Youth, Seniors, and Entire Community
2024-2025 Strategic Priorities
Fiscal Sustainability
Healthy Community
REPORT NARRATIVE:

In 2023, the City entered into an agreement with the County of Santa Clara for the County to provide funding for the City for the purchase of Emergency Medical Services (EMS) supplies and equipment in the amount of $43,013. The agreement requires the City to complete the purchase by December 31, 2024.

In July 2024, the County sought to amend the agreement to extend the term through March 31, 2025 and increase the maximum funding to the City to $63,992. The first amendment to the agreement was finalized in August 2024, during the Council summer recess. Staff is recommending the City Council ratify the City Manager's execution of the first amendment to the agreement with the County of Santa Clara to provide funding for the City to purchase EMS supplies and equipment.

COMMUNITY ENGAGEMENT:

Inform

11 This staff report serves to inform the community of the first amendment to the agreement with the County of Santa Clara to provide funding to the City for the purchase of EMS supplies and equipment.

ALTERNATIVE ACTIONS:

Not Applicable
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

None
FISCAL AND RESOURCE IMPACT:

There is no fiscal impact to the City as the County would reimburse the City for the purchase of EMS supplies and equipment.

CEQA (California Environmental Quality Act):

Not a Project
Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

FIRST AMENDMENT TO AGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA AND CITY OF MORGAN HILL
The Agreement (“Agreement”) entered into effective October 31, 2023, by and between the County of Santa Clara, a political subdivision of the State of California dba County of Santa Clara Health System (“County” and/or “Health System”), and City of Morgan Hill (“Contractor” and/or “Provider”), to provide funding for Emergency Medical Services (“EMS”) data system support and active shooter supplies, is hereby amended as set forth below, effective August 1, 2024 (“First Amendment”).

Background
The purpose of this First Amendment is to extend the term, add additional funds, update County provisions, and update the scope of service.

The Agreement is amended as follows:

1. Section 2. Term, is revised to read as follows:

This Agreement is effective from October 31, 2023 through March 31, 2025, unless terminated in accordance with Section 6.

2. Section 3. Compensation and Payment, subsection 3.5, is revised to read as follows:

3.5 The maximum financial obligation for all services provided under this Agreement shall not exceed $63,991.77 for the term of the Agreement. The County does not guarantee any minimum compensation payable under this Agreement.

3. Section 20. Conflict of Interest, is revised to read as follows:

20. Conflicts of Interest; Political Reform Act
Contractor shall comply, and require its employees, agents, and subcontractors to comply, with all (1) applicable requirements governing avoidance of impermissible client conflicts; and (2) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et seq., the California Political Reform Act (California Government Code section 87100 et seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by the County.

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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

In accepting this Agreement, Contractor covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. Contractor further covenants that, in the performance of this Agreement, it will not use any contractor or employ any person having such an interest. Contractor, including but not limited to contractor’s employees, agents, and subcontractors, may be subject to the disclosure and disqualification provisions of the California Political Reform Act of 1974 (the “Act”), that (1) requires such persons to disclose economic interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeably financially affect such interests.

If the disclosure provisions of the Act are applicable to any individual providing service under the Agreement, Contractor shall, upon execution of this Agreement, provide the County with the names, description of individual duties to be performed, and email addresses of all individuals, including but not limited to Contractor’s employees, agents and subcontractors, who could be substantively involved in “mak[ing] a governmental decision” or “serv[ing] in a staff capacity” and in that capacity participating in making governmental decisions or performing duties that would be performed by an individual in a designated position, (2 CCR 18700.3), as part of Contractor’s service to the County under this Agreement. Contractor shall immediately notify the County of the names and email addresses of any additional individuals later assigned to provide such service to the County under this Agreement in such a capacity. Contractor shall immediately notify the County of the names of individuals working in such a capacity who, during the course of the Agreement, end their service to the County. Contractor shall ensure that all such individuals identified pursuant to this paragraph understand that they are subject to the Act and shall conform to all requirements of the Act and other applicable conflict of interest and disclosure laws and regulations, and shall file Statements of Economic Interests within 30 days of commencing service pursuant to this Agreement, annually by April 1, and within 30 days of their termination of service pursuant to this Agreement.

4. Section 34. Levine Act Compliance, is added to read as follows:

34. Levine Act Compliance
Contractor will comply, and will ensure that its agents (as that term is defined under 2 Cal. Code Regs. § 18438.3(a)) and its subcontractors identified in Contractor’s proposal responding to a County solicitation and/or identified in this Agreement (“Subcontractors”) comply, with California Government Code section 84308 (“Levine Act”) and the applicable regulations of the Fair Political Practices Commission concerning campaign disclosure (2 California Code of Regulations sections 18438.1 – DocuSign Envelope ID: 6AE4A73A-57F1-43EF-85AC-F4E685C37EB9 Docusign Envelope ID: 6C1657A1-6027-42DE-818A-673D0F7656A5 Docusign Envelope ID: 3B25C5E6-B23D-4655-9826-213F6B33FB11

First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

18438.8), which (1) require a party to a proceeding involving a contract to disclose on the record of the proceeding any contribution, as defined by Government Code section 84308(a)(6), of more than $250 that the party or their agent has made within the prior 12 months, and (2) prohibit a party to a proceeding involving a contract from making a contribution, as defined by Government Code section 84308(a)(6), of more than $250 to any County officer during the proceeding and for 12 months following the final decision in the proceeding. Contractor agrees to submit disclosures required to be made under the Levine Act at the Office of the Clerk of the Board of Supervisors website at http://www.sccgov.org/levineact, and Contractor shall require Subcontractors to do the same. If this Agreement is to be considered or voted upon by the County’s Board of Supervisors, Contractor shall complete the Levine Act Contractor Form: Identification of Subcontractors and Agents, and if applicable, shall ensure that any Subcontractor completes the Levine Act Subcontractor Form: Identification of Agents, and Contractor must submit all such forms to the County as a prerequisite to execution of the Agreement.

5. Add Exhibit A-1: Scope of Service, which is attached hereto and incorporated herein by this reference.

6. Replace Exhibit B: Insurance Requirements with Exhibit B-1: Insurance Requirements, which is attached hereto and incorporated herein by this reference.

Except as set forth herein, all other terms and conditions of the Agreement as amended by this First Amendment shall remain in full force and effect; provided, however in the event of any conflict between the terms of the Agreement and this First Amendment, the terms of this First Amendment shall control. Capitalized terms not otherwise defined herein shall have the same meanings assigned to them in the Agreement.

The Agreement, as amended by this First Amendment constitutes the entire agreement of the parties concerning its subject matter and supersedes all prior oral and written agreements, representations and understandings between the parties concerning such subject matter. \\\
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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

This First Amendment may be executed by the parties in any number of separate counter parts, each of which shall be deemed an original and all of which, taken together shall be deemed to constitute one and the same instrument.

INTENDING TO BE BOUND HEREBY, the parties have caused their authorized representatives to execute this First Amendment in duplicate originals as set forth below:

COUNTY OF SANTA CLARA CONTRACTOR
Date Christina Turner Date
Director of Procurement or designee City Manager
County of Santa Clara Procurement Dept City of Morgan Hill Approved by: Approved as to Form and Legality:

Jackie Lowther Date Donald Larkin Date
Director, Emergency Medical Services Agency City Attorney County of Santa Clara Health System City of Morgan Hill Approved by:

Jonh Mills Date
Deputy County Executive
County of Santa Clara Health System
Approved by:

Vinod K. Sharma Date
Chief Financial Officer
County of Santa Clara Health System
Approved as to Form and Legality:

Wesley Dodd Date
Deputy County Counsel
DocuSign Envelope ID: 6AE4A73A-57F1-43EF-85AC-F4E685C37EB9 7/8/2024
7/9/2024
Docusign Envelope ID: 6C1657A1-6027-42DE-818A-673D0F7656A5 7/10/2024
7/10/2024
On behalf of
7/10/2024
7/10/2024
Docusign Envelope ID: 3B25C5E6-B23D-4655-9826-213F6B33FB11 For Matthew
Hada
8/6/2024

First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

EXHIBIT A-1
Scope of Service
A. Project Areas

1. Advanced Life Support (ALS) Simulation Training Equipment:

Funds may be used to reimburse the Provider for costs associated with the purchase of approved (Isimulate) ALS Training Equipment. To receive reimbursement, Provider shall:

1.1 Procure approved ALS Simulation Manikin, that will be capable of presenting various types of medical emergencies routinely cared for by EMS Providers.

1.2 Purchases may consist of approved manikin, related software, storage case, training, technical support, battery chargers and external power supply. Such purchases must be preapproved by the County.

1.3 Be responsible for recurring costs related to equipment maintenance and replacements.

1.4 Place into service any equipment purchased pursuant to this Agreement no later than March 31, 2025.

B. Performance Standards

1. EMS Agency will verify that by March 31, 2025, equipment has been purchased by the requirements of this Scope of Service.

2. On or before February 28, 2025, Provider shall provide documentation, sufficient to show compliance with the requirements outlined in this Scope of Service.

3. Santa Clara County EMS Agency may conduct an onsite audit to ensure that the equipment was purchased according to the specifications of this Agreement.

C. Budget
Project Area Project Area Name Amount
1 ALS Simulation Training Equipment $20,979.20
Total: $20,979.20
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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

Exhibit B-1

INSURANCE REQUIREMENTS FOR STANDARD SERVICE CONTRACTS
BETWEEN $50,001 AND $100,000
Indemnity
Notwithstanding any other provision of this Agreement, Contractorshall indemnify, release, hold harmless, and defend, with counsel approved by County of Santa Clara (hereinafter “County”), County and its officers, agents, and employees from any claim, demand, suit, judgment, liability, loss, injury, damage, or expense of any kind (including attorneys’ fees and costs) arising out of, or in connection with, performance of this Agreement by Contractor and/or its officers, agents, employees, orsub-contractors, excepting only loss, injury, or damage caused by the sole negligence or willful misconduct of personnel employed by County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for County as allowed by law. Contractor shallreimburse County for all costs, attorneys’ fees, expenses, and liabilitiesincurred with respect to any litigation or processin which Contractor contestsits obligation to indemnify, defend, and/or hold harmless County under this Agreement and does not prevail in that contest.

Insurance
Without limiting the Contractor'sindemnification of the County, the Contractor shall provide and maintain at its own expense, during the term of this Agreement, or as may be further required herein, the following insurance coverages and provisions:

A. Evidence of Coverage
Prior to commencement of this Agreement, the Contractor shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained. Individual endorsements executed by the insurance carriershall accompany the certificate. In addition, a certified copy of the policy or policiesshall be provided by the Contractor upon request.

This verification of coverage shall be sent to the requesting County department, unless otherwise directed. The Contractor shall not receive a Notice to Proceed with the work under the Agreement until it has obtained all insurance required and such insurance has been approved by the County. This approval of insurance shall neither relieve nor decrease the liability of the Contractor.

B. Qualifying Insurers
All coverages, except surety, shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by the County's Insurance Manager.

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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

C. Notice of Cancellation
All coverage as required herein shall not be canceled or changed so as to no longer meet the specified County insurance requirements without 30 days' prior written notice of such cancellation or change being delivered to the County of Santa Clara or their designated agent.

D. Insurance Required

1. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence - $1,000,000
b. General aggregate - $1,000,000
c. Products/Completed Operations aggregate - $1,000,000 d. Personal Injury - $1,000,000

2. General liability coverage shall include:
a. Premises and Operations
b. Products/Completed
c. Personal Injury liability
d. Severability of interest

3. General liability coverage shall include the following endorsement, a copy of which shall be provided to the County:

Additional Insured Endorsement, which shall read:
“County of Santa Clara, and members of the Board of Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara, individually and collectively, as additional insureds.”
Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. Public Entities may also be added to the additional insured endorsement as applicable and the contractor shall be notified by the contracting department of these requirements.

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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

4. Automobile Liability Insurance
For bodily injury (including death) and property damage which providestotal limits of not less than one hundred thousand dollars ($100,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles.
4a. Aircraft/Watercraft Liability Insurance (Required if Contractor or any of its agents or subcontractors will operate aircraft or watercraft in the scope of the Agreement) For bodily injury (including death) and property damage which providestotal limits of not less than one hundred thousand dollars ($100,000) combined single limit per occurrence applicable to all owned, non-owned and hired aircraft/watercraft.

5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all-states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

E. Special Provisions
The following provisions shall apply to this Agreement:

1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to the provisions concerning indemnification.

2. The County acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of the Contractor. However, this shall not in any way limit liabilities assumed by the Contractor under this Agreement. Any self-insurance shall be approved in writing by the County upon satisfactory evidence of financial capacity. Contractors obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance programs or selfinsurance retentions.

3. Should any of the work under this Agreement be sublet, the Contractor shall require each of its subcontractors of any tier to carry the aforementioned coverages, or Contractor may insure subcontractors under its own policies.

4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above.

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First Amendment to Agreement between the County of Santa Clara and City of Morgan Hill Emergency Medical Services (“EMS”) Data System Support and Active Shooter Supplies

F. Fidelity Bonds (Required only if contractor will be receiving advanced funds or payments) Before receiving compensation under this Agreement, Contractor will furnish County with evidence that all officials, employees, and agents handling or having accessto fundsreceived or disbursed under this Agreement, or authorized to sign or countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of AT LEAST fifteen percent (15%) of the maximum financial obligation of the County cited herein. If such bond is canceled or reduced, Contractor will notify County immediately, and County may withhold further payment to Contractor until proper coverage has been obtained. Failure to give such notice may be cause for termination of this Agreement, at the option of County.

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12 CITY COUNCIL STAFF REPORT
MEETING DATE: August 28, 2024
PREPARED BY:

Jennifer Carman, Development Services Director
APPROVED BY: City Manager
APPEAL (AAE2024-0004) OF DEVELOPMENT SERVICES DIRECTOR
DECISION ON SR2024-0007 (MONTEREY-GLENROCK): EXPIRATION OF PRELIMINARY APPLICATION UNDER SB330 DUE TO EXPIRATION OF THE 180-DAY PRELIMINARY APPLICATION PERIOD

RECOMMENDATION(S)

1. Grant a hearing de novo;

2. Open/close public hearing; and

3. Adopt resolution denying the appeal and reaffirming the decision of the Development Services Director.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Preserving and Cultivating Public Trust
2024-2025 Strategic Priorities
Affordable Housing and Homelessness
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

POLICY CONSIDERATION:

Should the City Council enforce the Preliminary Application period for the Builder’s Remedy Design Permit and Tentative Map application or waive project submittal deadline?

BACKGROUND
On September 15, 2023, developer Rocke Garcia, filed for a Preliminary Review application for a 263 unit residential project with a commercial component under Builder's Remedy Law. This project is located at the southern end of the City near 14900 Monterey Road. While the City had a significantly compliant Housing Element,

12 staff processed the application per guidance from the State Department of Housing and Community Development (HCD). The Builder's Remedy law allows for a 180-day Preliminary Application period which vests rules, regulations and fees. The project is required to submit a final application and pay associated fees within the 180-day window. This project failed to submit a Design Permit and Tentative Map and pay associated fees within the 180-day Preliminary Application period. The project has lost vesting under the Preliminary Application process, and the applicant is appealing the Development Services Director's decision to the City Council under Chapter 1.20 of the Morgan Hill Municipal Code.

The applicant's appeal letter also references a challenge to the application fees under California's Mitigation Fee Act. However, application fees are "simply fees to defray administrative and enforcement costs of a local regulatory program." As the California Supreme Court outlined in Barrat American Inc. v. City of Rancho Cucamonga, these fees are not subject to the Mitigation Fee Act.

THE APPEAL:

The appellant, Rocke Garcia, has filed an appeal to the decision of the Development Services Director that the 180-day Preliminary Application period under SB330 expired prior to meeting the requirement of submitting an application for a Design Permit and Tentative Map. As a Builder’s Remedy application, expiration of the 180-day Preliminary Application period renders the Design Permit and Tentative Map unable to be processed without a General Plan Amendment and Planned Development as the City of Morgan Hill’s Housing Element has been certified by HCD. Mr. Garcia has the ability to submit an application under standard application procedures – including SB330. The City has a Certified Housing Element and is no longer subject to Builder’s Remedy.

The appeal was filed on May 10, 2024, within 10 calendar days following the date the May 1, 2024 decision that the Preliminary Application had expired was rendered by the Development Services Director, consistent with Chapter 18.112. This decision was followed by a 30-day comment letter reiterating the decision on May 3, 2024. A statement on the Uniform Application provided the main points of the appeal. The Uniform Application is included in this packet (Attachment 1). A follow-up letter from the applicant’s legal counsel was submitted at a later date (Attachment 2). In these statements, the applicant also disputes the cost of the Design Permit and Tentative Map applications as well as the required cost for the appeal.

SB330 Process
SB330 allows an applicant for a housing development project to submit a Preliminary Application that provides specified site information about the project. The zoning, design, subdivision, and fee requirements that will apply to the housing development project throughout the review and entitlement process will be based on the date that the applicant submits a complete preliminary application, including the payment of a permit processing fee. The Preliminary Application period lasts 180 days. If a full application

12 requesting approval is not received within the 180 days, the Preliminary Application will expire and another Preliminary Application will need to be filed in order to vest rules, regulations and fees. A graphic showing the process and timeline is attached. (Attachment 3)
In this case, relevant timeline dates are noted below:
• Preliminary Application received: September 15, 2023
• Payment for Preliminary Application received: September 25, 2023 • 180-day Date Preliminary Application expiration date: March 23, 2024 • Date written material for application SR2024-0007 provided to the City: March 12, 2024
• Date fees were paid to complete application SR2024-0007: April 5, 2024 • Date emailed letter from applicant’s attorney: April 25, 2024 (Attachment 4) • Date of response sent to applicant’s attorney: May 1, 2024 (Attachment 5) • Date the 30-day comment/expiration letter was sent to the applicant: May 3, 2024 (Attachment 6)
A development project application must be filed within the following timelines to take advantage of the Preliminary Application:

1. 30 days – Agency confirms application is complete by determining if it includes all material on agency’s submittal checklist. If not complete, agency must list information missing from the checklist Government Code §65941(d)(2)

2. 90 days – Applicant provides additional information requested by agency. If applicant fails to timely respond, Preliminary Application expires. Government Code §65941.1(d)(2)
If the project described in the Preliminary Application is revised such that the number of residential units or square footage of construction changes 20% or more (excluding density bonus waivers/concessions), the Preliminary Application expires for the original project. Government Code §65941.1(c)
In addition to the lack of timely filing of the Design Permit and Tentative Map applications, there has been no re-submittal of requested information within the 90-day period and staff believe at least 20% of the project has also changed, as the applicant has indicated he was dropping the request for entitlements for the commercial portion of the project. All three of these issues render the Preliminary Application expired.

City Application Process:

Planning applications are typically filed with the City via email. Staff receives or downloads the application materials and enters the application into the City permit system to generate an invoice that is sent to the applicant. The City’s application checklist clearly states:

12 Application Submittals can be sent to [email protected]. Once received, Staff will respond with the associated fees and payment options. The application submittal date is identified as the day fees are paid. Incomplete submittals that are missing materials from this checklist will not be accepted. Based on the project type and proposal, Planning Division staff has the right to waive filing requirement items listed below if not needed.

While application materials were forwarded to the City prior to the 180-day expiration date, payment for the application was not submitted until nearly a month later.

On April 25, 2024, the applicant’s attorney sent a letter contending the date paperwork is received is the date of the application. Mr. Baral’s communication also contended the City’s application submittal checklist did not include a requirement for payment. On May 1, 2024, the Developer Services Director responded point by point to Mr. Baral’s letter, noting that the requirement for payment is on the first page of the application submittal packet. Further, under Morgan Hill Municipal Code section 3.32.200, it is unlawful for any employee of the city to act upon a development application until all applicable fees have been paid in full. On May 3, 2024, the City provided a 30-day comment letter to Mr. Garcia on the submitted application informing him that the application was now a standard SB330 application that would require a General Plan Amendment and Planned Development to develop the project as proposed. The letter went on to state that the review of the Design Permit (SR2024-0007) and Tentative Map (SD2024-0005) application will pause until a General Plan Amendment and Planned Development application is submitted.

As stated previously, there has been no resubmittal of requested information within the 90-day period. As the applicant has indicated there are also changes to the project that are likely to trigger the 20% change rule due to dropping the request for entitlements for the commercial portion of the project. Combined with the timeline issue, there are three different reasons this Builder’s Remedy application is no longer in effect.

CONCLUSION:

The proposed Builder Remedy project has failed to meet processing requirements. It is recommended that the City Council adopt the attached resolution denying the appeal.

COMMUNITY ENGAGEMENT:

Involve
A notice of the appeal hearing was published in the Morgan Hill Times and sent to addresses within 300 feet.

12 ALTERNATIVE ACTIONS:

The City Council could decide to grant the appeal to AAE2024-0004. Granting the appeal would act as an extension of the Preliminary Application and allow the Design Permit and Tentative Map applications filed under Builder’s Remedy to continue to move forward.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

None
FISCAL AND RESOURCE IMPACT:

The City Development Review functions are cost-recovery, with fees collected from applicants to cover cost of services. These fees have been collected from the applicant.

CEQA (California Environmental Quality Act):

This appeal is exempt from environmental review pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA). An appeal of eligibility for a project to be processed under certain laws is not a project with potential for causing a significant effect on the environment, requiring analysis under the California Environmental Quality Act.

RESOLUTION NO. 24-xxx

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORGAN HILL DENYING THE APPEAL SUBMITTED BY
ROCKE GARCIA FOR SR2024-0007: MONTEREYGLENROCK AND REAFFIRMING THE DETERMINATION

THAT THE PRELIMINARY APPLICATION PERIOD FOR
THIS BUILDER’S REMEDY DESIGN PERMIT AND

TENTATIVE MAP APPLICATION EXPIRED ON PROPERTY
IDENTIFIED BY ASSESSOR PARCEL NUMBERS 825-06-014
AND -015 LOCATED ON SOUTHERN MONTEREY ROAD

NEAR MIDDLE AVENUE
WHEREAS, an application for a Design Permit and Tentative Map was filed under Builder’s Remedy on April 5, 2024; and
WHEREAS, after review, it was determined that not only was the application incomplete, it was no longer able to use Builder’s Remedy due to the expiration of the 180-day Preliminary Application time period; and
WHEREAS, the applicant, Rocke Garcia et al., filed an appeal of the Developer Director’s determination to the City Council pursuant to the applicable provisions of the Morgan Hill Municipal Code; and
WHEREAS, at the time and place noticed for a hearing on the appeal, the City Council of the City of Morgan Hill conducted a de novo appeal hearing on the Application, provided all interested persons an opportunity to be heard, and received, reviewed and considered all testimony and other evidence provided regarding the subject of this appeal.

NOW, THEREFORE, BASED UPON ALL OF THE INFORMATION SUBMITTED

TO THE CITY COUNCIL FOR THE APPEAL AT THE PUBLIC HEARING CONDUCTED

FOR THE APPEAL, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1. Following are the relevant facts in connection with Application:

A. A Preliminary Application filed under Builder’s Remedy was completed on September 25, 2023. This Preliminary Application was valid for 180 days and would expire on March 23, 2024.

B. A Design Permit and Tentative Map application filing was completed on April 5, 2024 and a 30-day review period began.

C. On May 1, 2024, the Development Services Director responded to an April 25, 2024 emailed letter from the applicant’s attorney informing him that the Preliminary Application period had expired.

D. An incomplete letter was sent to the applicant on May 3, 2024 reaffirming the expiration of the Preliminary Application and the elimination of Builder’s Remedy as an application option.

City of Morgan Hill
Resolution No. 24-xxx

SECTION 2. Based upon the above facts and findings the City Council determines as follows:

A. The Preliminary Application period expired prior to the completed filing of a Design Permit and Tentative Map under Builder’s Remedy.

B. A new Design Permit and Tentative Map application for the project may be filed, however, Builder’s Remedy would no longer apply as the City has a certified Housing Element.

C. To pursue the current proposed project, a General Plan Amendment and Planned Development application would need to be submitted in addition to the Design Permit and Tentative Map.

SECTION 3. For the reasons set forth above, the appeal is DENIED.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Morgan Hill at its regular meeting held on this 28th day of August, 2024 by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:
___________________________________ _______________________________ MARK TURNER, Mayor MICHELLE BIGELOW, City Clerk
 CERTIFICATION 
I, Michelle Bigelow, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No. 24-xxx adopted by the City Council at the meeting held on the 28th day of August 2024.

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

DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk

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Hanson Bridgett LLP
425 Market Street, 26th Floor, San Francisco, CA 94105
ROBIN R. BARAL

SENIOR COUNSEL
DIRECT DIAL (415) 995-6331
E-MAIL [email protected]
July 18, 2024
Jennifer Carman
Department of Development Services
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
Re: Renaissance Builder's Remedy Project (PRE2023–0008) Appeal of Development Services Director’s Determination Dear Ms. Carman:

As you know, Hanson Bridgett LLP represents Glenrock Builders, Inc. (“Glenrock”) in connection with the “Renaissance” residential subdivision proposed at 14900 Monterey Road (the “Project”). This letter supplements the appeal that Glenrock filed on May 10, 2024, in response to the City’s unlawful application of the Permit Streamlining Act (“PSA”)1 and the City’s unlawful determination under state housing law that the SB 330 Preliminary Application and Builder’s Remedy protections lapsed. This letter and our prior correspondence to the City, dated March 8 and April 25, are therefore part of the record of proceedings in this appeal.

The record in this case establishes that the subdivision and design review application are deemed complete as a matter of law under the PSA. First, the City did not respond to the application within 30 days of its receipt on March 12, 2024. Second, more than 60 days have passed since the appeal was filed on May 10, and the City has yet to hold a hearing or provide any direction to Glenrock regarding its appeal. The application is therefore deemed complete on either basis, under the PSA. Third, the City is in violation of the Housing Accountability Act (“HAA”) by refusing to process the Project under its vested protections under SB 330, the Builder’s Remedy and the PSA.

The City's stated position is that Glenrock was aware of the City’s customary process for counting its 30-day review to commence upon payment, as Glenrock has filed numerous applications with the City. The City’s other stated position is that the City serves the public as a “cost recovery” agency and requires fees to be paid upfront. As explained herein, however, the City's “business as usual” approach does not provide a legal defense to clear violations of state housing law; as such, the City is subject to the statutory remedies for noncompliance with the HAA. Moreover, the City suffered no prejudice during the application process. A city may impose reasonable application fees at the time that a Preliminary Application is filed, up to the entire permit processing fee, and the City in fact imposed a fee of $15,754.80. Glenrock paid this 1 Cal. Gov. Code § 65920

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July 18, 2024

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fee, and the Project thus committed sufficient funds to initiate review of the application, especially given the City had no legal obligation to review the preapplication for completeness.

For the reasons stated in Glenrock’s appeal, this letter, and the record of proceedings, Glenrock requests that Development Services (1) resume processing the Project pursuant to its vested protections under the SB 330 Preliminary Application filed in September 2023; (2) instruct staff to deem the subdivision and design review application complete by operation of law, and (3) commence CEQA review of the Project. If the City maintains its refusal to move forward with the Project, we request that the City proceed with issuing its final determination on this matter, which should occur through an adjudicatory hearing in accordance with Glenrock’s due process rights and as required by Morgan Hill City Code.

Glenrock’s May 1 appeal also included a Notice of Protest under the Mitigation Fee Act, objecting to the City’s unlawful imposition of $364,777.04 in application fees for the Project.

The City’s application fee violates constitutional standards established by the United States Supreme Court. Moreover, as the subdivision and design review applications are deemed complete by operation of law, the City must either refund the unexpended application fees or immediately apply those fees towards CEQA processing for the Project.

Part I of this letter details the legal bases under the HAA and PSA for Glenrock’s appeal.

Part II details Glenrock’s protest under the Mitigation Fee Act.

BACKGROUND
On September 15, 2023, Glenrock submitted a Preliminary Application for the Project pursuant to the Housing Crisis Act of 2019 (“SB 330”). Glenrock submitted the City’s application fee of $15,754.80 for the Preliminary Application on September 25, 2023.

The Preliminary Application noted that 20% of all residential units would be affordable to lowincome households. The Preliminary Application was filed prior to HCD certifying the City’s Housing Element, which occurred on November 29, 2023. The Preliminary Application vested the Project into the policies in place at the time of its submission in September 2023, including the City’s non-compliant Housing Element. The Project therefore vested into the legal protections and zoning flexibility of the Builder's Remedy provisions in the HAA.2 Glenrock used this flexibility to propose a subdivision with diverse housing, including 149 for-sale detached homes, 58 build-to-rent detached homes, and 55 multifamily units, totaling 262 units.

The Preliminary Application also proposed a commercial component for the project, as allowed under the HAA for up to 33% of the square footage of construction for the Project. 3 In finalizing
the subdivision application, Glenrock ultimately removed the commercial component from the Project. This was done as a courtesy to the City, in discussion with various stakeholders. 2 Cal. Gov Code 65589.5(d)(5)
3 Cal. Gov. Code § 65589.5(h)(2).

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City of Morgan Hill, Development Services Department
July 18, 2024

On March 11, 2024, Glenrock submitted applications for a tentative subdivision map and design permit, which Glenrock supplemented and finalized on March 12, 2024. The application included a letter from our office and a copy of a December 7, 2023 Letter of Technical Assistance from HCD (“HCD Letter”), which noted that “[t]he PSA requires local jurisdictions determine in writing whether an application is complete within 30 calendar days after the application is received. (Attachment 1.) The HCD Letter thus supports Glenrock’s position that the 30-day review period commenced on the date the application was filed, and should not be contingent on the payment of fees.

By April 11, 2024, the City had not yet provided a completeness determination in response to Glenrock’s March 12 application. On April 25, 2024, Hanson Bridgett LLP submitted a letter on behalf of Glenrock to the City noting that the application was deemed complete by operation of law under the Permit Streamlining Act because the City had not provided a completeness determination within 30 calendar days after receiving the application. (Attachment 2.) On May 1, 2024, the Director responded to our April 25 correspondence, alleging that “The 180- day preliminary application period expired on March 23, 2024, so the April 5 th submittal is being
treated as a new application.” The Director also asserted that “[a]pproval of the project will be contingent on City Council approval of General Plan and Zoning Ordinance amendments.” (Attachment 3.) On May 3, 2024, the City provided additional correspondence alleging that it did not receive the application submittal until April 5, 2024. (Attachment 4.) This statement, however, is contradicted by the record of proceedings for this Project, which shows that the City confirmed receipt of the application by email on March 12, 2024.

Glenrock responded by filing its appeal on May 10, 2024, to dispute the May 1, 2024 determination by Development Services to convert the Project into a non-Builder’s Remedy application. The City’s determination – that the SB 330 Preliminary Application lapsed – is therefore in violation of both the PSA and the HAA, as the City’s unlawful denial of the Project under the HAA is based on an unlawful application of the 30-day review period under the PSA.

The City has, in essence, ignored the HCD Letter that Glenrock submitted with the Project, which establishes that the City’s 30-day review period commenced on the date the application was received by the City. HCD’s interpretation of the PSA refutes the City’s claim that the 30- day deadline commenced on the date that additional application fees are paid. The City’s May 1 letter also asserted that the City could defer its 30-day application response deadline merely because it is a “cost recovery agency,” but did not cite any legal basis to support that position. As HCD has noted, and explained herein, the City should collect its fees at the time applications are submitted through the City’s online portal, or at the time applications are submitted in person; this would ensure the timely payment of those fees.

As of the date of this letter, the City has not responded with any proposed hearing date or other due process considerations regarding Glenrock’s appeal that was filed on May 10, 2024. The City has therefore triggered the appeal provisions in the PSA, which require that a hearing on this appeal be resolved within 60 days, otherwise the application shall be deemed complete.

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This letter is submitted to supplement the appeal notice filed on May 10, 2024. The primary basis for this appeal is that the May 1, 2024 determination by Development Services constitutes an unlawful denial of the Project application, in violation of the HAA and PSA. Glenrock reserves the right to submit additional evidence prior to or at the eventual hearing for this appeal.

LEGAL BASES FOR APPEAL AND PROTEST
Glenrock has multiple bases for appealing the City’s unlawful denial of the Project application.

The City’s refusal to process the Project application constitutes a de facto denial of an affordable housing development project, in violation of the HAA. The City’s unlawful denial may warrant penalties ranging from $10,000 to $50,000 per unit if the violation becomes ongoing. The City’s liability under the HAA stems directly from its unlawful interpretation of the PSA. There is no legal support for the City’s claim that the Project application was filed beyond the 180-day deadline under SB 330; the City’s reasoning is unsupported by the statutory text of the PSA and SB 330. As a matter of law, the City’s 30-day deadline to respond concluded on April 11, 2024 (i.e., 30 days after the City received the Project application on March 12, 2024).

In addition, the City has disregarded the appeal provisions in the PSA, which require that a hearing on this appeal be resolved within 60 days, otherwise the application shall be deemed complete. The Project application is therefore deemed complete on two grounds: the City’s failure to respond to the Project application within 30 days of March 12, 2024, and the City’s failure to hold a hearing on Glenrock’s appeal within 60 days of May 10, 2024.

Glenrock is also protesting the City’s application fee for this Project, in the amount of $364,770.

The U.S. Supreme Court recently ruled that legislatively imposed fees and exactions must meet the same Constitutional standards as ad hoc or project-specific fees. 4 The City cannot justify its
application fees for this Project under Constitutional standards. First, they are grossly out of proportion to the fees imposed by other agencies to process subdivision and design permit applications. Second, the City’s purported 2021 nexus study relies on false or unsupported assumptions and therefore does constitute reliable justification for the City’s subdivision and design permit fees. Third, the 2021 nexus report did not contemplate the limited scope of zoning and general plan review for Builder’s Remedy projects such as this one. The City’s 2021 report therefore does not provide sufficient support for the application fees imposed for this Project.

Lastly, in this case the application has been deemed complete by operation of law, therefore the remaining deposit balance should be refunded or applied to the CEQA processing of the Project. 4 Sheetz v. County of El Dorado, California (2024) 144 S. Ct. 893.

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I. The City’s Refusal to Process the Project Application is Unlawful under the Housing Accountability Act and the Permit Streamlining Act
A. The City will be in Violation of the Housing Accountability Act if the Planning Commission Denies this Appeal
The HAA was enacted to address the fact that the “lack of housing . . . is a critical problem that threatens the economic, environmental, and social quality of life in California.”5 The legislature has mandated that the HAA be interpreted and implemented in a manner to afford the “fullest possible weight” towards the approval and provision of housing.6 More recently, the legislature amended the HAA via SB 330 to provide greater protections for housing development projects, particularly those that set aside at least 20% of the units to be affordable to lower-income households.7
The vesting provisions of SB 330 gave rise to the Builder’s Remedy entitlement pathway. 8 SB 330 allows projects to become legally vested at the time that the Preliminary Application is filed, to protect housing projects from subsequent changes in City ordinances, policies and zoning standards. The Builder’s Remedy applies to projects such as this one that obtained early vesting under SB 330 at the time that the City's Housing Element remained out of compliance.9 The Preliminary Application for this Project was filed in September 2023, when HCD had not yet certified the City's Housing Element. As a result, the City has very limited discretion to refuse processing or to otherwise deny the Project.

There are several Builder’s Remedy lawsuits currently in process in courts throughout the State.

Notably, the Los Angeles County Superior Court recently ruled that the Planning Director of the City of La Cañada Flintridge violated the HAA by refusing to process a Builder’s Remedy application.10 More specifically, the court ruled that the City violated the HAA when the City’s 5 Gov. Code, § 65589.5(a)(1)(A) & (a)(1)(B)
6 Gov. Code, § 65589.5(a)(2)(L); see also California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 854. 7 See Gov. Code, § 65589.5(d)(1)-(5) 8 The HAA’s early vesting provisions fall under subdivision (o) of Government Code 65589.5. Barring a few exceptions, “a housing development project shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application… was submitted.” 9 Gov. Code § 65589.5(d)(5) provides, in pertinent part:

A local agency shall not disapprove a housing development project . . . for very low, low-, or moderate-income households . . . unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following:
. . .
(5) The housing development project . . . is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article.

The logical inverse here is that the City cannot deny the Project even if it is technically not found to be in compliance with both the City's zoning ordinance and general plan land use designation. 10 See March 4, 2024 Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief, California Housing Defense Fund v. City of La Canada Flintridge, Los Angeles County Sup. Court, Case No. 23STCP02614

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development director deemed that a Builder’s Remedy application had lapsed. In other words, the City violated the HAA when it unlawfully attempted to convert the application into a project that was no longer afforded protections under the Builder’s Remedy.

The grounds of this appeal are analogous here; if the City denies this appeal it will be violating the HAA largely on the same procedurally unlawful grounds as the City of La Cañada Flintridge.

Cities that violate the HAA face significant legal exposure, as the HAA includes a robust set of remedies to ensure compliance by cities and counties. At a minimum, a court may compel the City to process or approve the Project application, as in the La Cañada Flintridge case. Once an HAA violation is established, cities are liable for attorney’s fees except in rare circumstances if a court finds that awarding fees would not further the purposes of the HAA.11 Moreover, if a court finds that the City’s HAA violations are ongoing for more than 60 days after the ruling, the City may be liable for penalties of up to $10,000 per housing unit for ongoing HAA violations and, where there is bad faith, as much as $50,000 per unit. The City of Berkeley, for example, was recently required to pay $4 million in fines and attorneys fees for HAA violations when it denied a developer’s application to build 260 housing units.12 The City of San Mateo was also recently found in violation of the HAA, but settled for $450,000 after the initial ruling was issued.13 Here, the City’s liability for violating the HAA could range between $2.6 and $13 million.

We therefore request that the City grant this appeal and instruct City staff that the application is deemed complete as a matter of law. The Department of Development Services is required to process the Project application pursuant to the vesting provisions of the SB 330 Preliminary Application filed in September 2023. As detailed below, this means that CEQA review for this Project must be completed by April 11, 2025, i.e., within one year that the Project application was deemed complete as a matter of law.

B. The City Failed to Respond within 30 Calendar Days of Receiving the Project Application; the Application is Thus Deemed Complete as a Matter of Law The Permit Streamlining Act14 was enacted to address “a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.”15 Accordingly, the PSA expressly requires cities to respond no later than 30 calendar days after an application for a development project is “received.” It provides in pertinent part that:

Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the 11 Gov. Code, § 65589.5(k)(1)(A)(ii) 12 https://www.berkeleyside.org/2024/02/16/court-ruling-1900-fourthstreet#:~:text=Berkeley%20must%20pay%20%244M%20after%20illegally%20blocking%20housing%20project,St. %2C%20a%20judge%20ruled. 13 https://climaterwc.com/2021/10/15/san-mateo-to-pay-450k-settlement-related-to-denial-of-housing-project/ 14 Gov. Code, § 65920 et seq. 15 Gov. Code, § 65921; see also, Palmer v. City of Ojai (1986) 178 Cal.App.3d 280.

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determination to the applicant for the development project. . . . If the written determination is not made within 30 days after receipt of the application, and the application includes a statement that it is an application for a development permit, the application shall be deemed complete for purposes of this chapter.16 Courts have strictly interpreted this 30-day deadline in furtherance of the underlying policies of the PSA.
17 As noted above, HCD recently interpreted the PSA to clarify that cities are required to commence the 30-day review period upon the initial intake of an application; the 30-day review period therefore should not be made contingent on the payment of fees. HCD is the state agency responsible for interpreting state housing laws and courts afford considerable weight to HCD in interpreting the Housing Accountability Act, Permit Streamlining Act, and all other laws within the purview of the Housing Enforcement unit.18
The HCD Letter outlined the City of Berkeley’s application intake process, which is similar to the City of Morgan Hill: applications are submitted to the City through an initial intake on an online portal, but projects are not invoiced until after the City confirms receipt of the application.

HCD noted that the City of Berkeley “considers the 30-day PSA completeness clock to begin at the time when an applicant is issued an invoice and payment is made – and not at the time the application is originally submitted. Therefore, the time it takes for a project to achieve ‘ready to review’ status is indefinite and may exceed 30 calendar days.

The HCD Letter refuted the City of Berkeley’s position and clarified that the City’s 30-day review period under the PSA begins on the date that an application is initially submitted:

Completeness review begins at application submittal. When an application is submitted to the City for review, the City has 30 calendar days from the submittal date to determine completeness in writing per the PSA. Therefore, the City’s intake review process is a completeness review and is subject to the PSA and must be completed within 30 calendar days. The City should make it possible for an applicant to pay the application review fee at the time the application is submitted (e.g., via a written check, online payment portal, etc.)
HCD’s interpretation of the PSA therefore is that the 30-day review period commences on the City’s initial intake date, regardless if fees have been paid; moreover, cities can require payment of all fees as part of their initial intake to ensure the timely payment of those fees.

Here, the City of Morgan Hill’s Application Checklist states the following, and is similar to the City of Berkeley’s application form that was addressed in the HCD Letter:

Application Submittals can be sent to [email protected]. Once received Staff will respond with the associated fees and payment options. The application submittal date 16 Gov. Code, § 65943(a) (emphasis added)
17 Orsi v. City Council (1990) 219 Cal.App.3d 1576 (ruling that a development application was deemed complete by operation of law even though the city’s notice of incompleteness was issued 11 days after 30-day PSA deadline). 18 Yamaha Corp. of Am. v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12

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is identified as the day fees are paid. Incomplete submittals that are missing materials from this checklist will not be accepted.

Glenrock submitted its initial subdivision application on March 11, 2024 and revised it with an additional submittal on March 12. The City then confirmed receipt of the application that same day. On March 14, 2024, the City invoiced the application fee of approximately $364,770 to Glenrock. Glenrock paid those fees in full on April 5, 2024.

In summary, the PSA supersedes the City’s statement in its application form that the “application submittal date is identified as the day fees are paid.” SB 330’s vesting provisions provide additional support that the City cannot defer its 30-day application review deadline on the payment of fees. In short, the City had its chance to collect fees at the preapplication stage, and this right was the City's means of ensuring it had sufficient fees to process the Project's application. The City in fact assessed such fees, which Glenrock then paid. The City's insistence that the payment of additional fees is somehow necessary to further process the application is neither compelling nor supported by law.

SB 330 provides that an applicant “shall be deemed to have submitted a preliminary application upon providing all of the following information about the proposed project to the city… from which approval for the project is being sought and upon payment of the permit processing fee.”19 Under this provision, the City could have required full payment of all reasonable application processing fees at the time that the SB 330 Preliminary Application was submitted.

Instead, the City imposed a Preliminary Application processing fee of $15,754.80, in addition to the subdivision application fee of $364,770.04.

SB 330 expressly refers to the payment of “permit processing fees” as a condition for a city to accept a Preliminary Application. To maintain early vesting, however, SB 330 has never required the applicant to pay the full application fee within the 180-day vesting period.20 SB 330 is thus consistent with the PSA in that the City’s receipt of the full application is not contingent on the payment of fees.

The City has acknowledged that Glenrock paid the full SB 330 Preliminary Application fee of $15,754.80 on September 25, 2023. (Attachment 3, p. 1) The City therefore had sufficient funds in the Project account to commence review of the subdivision application submitted on March 12, 2024, given that the City has no legal obligation to review the SB 330 Preliminary Application or make a completeness determination.21
In summary, Glenrock submitted the Renaissance application to the City on March 12, 2024, and the City confirmed receipt of the application on that same date. At that time, Glenrock also provided the City with a copy of the HCD Letter. The City, however, disregarded the HCD Letter and ultimately did not provide a completeness determination within 30 calendar days of 19 Gov. Code § 65941.1. 20 Gov. Code 65941.1(d)(1). 21 Gov. Code, § 65941.1(d)(3).)

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receiving the application, as required by the PSA. Instead, the City claimed, without citing any legal authority, that the submittal was “not considered receipt of an application.” (Attachment 3, p. 1.) Moreover, the City’s assertion that it is a cost-recovery agency is irrelevant; while the PSA authorizes the City to impose reasonable fees for processing project applications, HCD has interpreted the PSA to require cities to process applications immediately upon receipt. The City should therefore reform its payment process to be concurrent with the filing of applications through its online portal to ensure timely payment of those fees. Alternatively, the City is authorized to impose a reasonable “permit processing fee” at the time of filing the SB 330 Preliminary Application that could ostensibly entail the full subdivision and design review fee (and therefore eliminate the separate SB 330 fee as it has a very questionable legal basis).

The 30-day deadline under the PSA to respond to this Project application therefore began, as a matter of law, on March 12, 2024 (i.e., the date that the City confirmed receipt of the application through its intake process). The City’s May 1, 2024 letter, alleging that the Project application submitted on March 12, 2024 lapsed or that the application was received on April 5, 2024 ,is therefore in violation of the PSA. The City’s position is even more egregious here given that its fees for subdivision and design permit applications far exceed any reasonable or legally defensible amount, as detailed below.

C. The City has forfeited Glenrock’s appeal by failing to hold a hearing within 60 days.

The PSA requires that disputes regarding application completeness be resolved within 60 days after the developer files an appeal:
(c) If the application together with the submitted materials are determined not to be complete pursuant to subdivision (b), the public agency shall provide a process for the applicant to appeal that decision in writing to the governing body of the agency or, if there is no governing body, to the director of the agency, as provided by that agency. …
There shall be a final written determination by the agency on the appeal not later than 60 calendar days after receipt of the applicant's written appeal…. [I]f the final written determination on the appeal is not made within that 60-day period, the application with the submitted materials shall be deemed complete for the purposes of this chapter.22 On April 24, 2024, our office sent a letter to Development Services noting that the application was deemed complete by operation of law under the PSA. The Department responded on May 1, 2024, alleging that the City’s response deadline was May 5, 2024, and that the application had lapsed due to the payment of application fees falling outside of the 180-day vesting period for preliminary applications. Glenrock appealed that determination on May 10, 2024. The record of proceedings in this matter shows that the City’s position under the HAA is inextricably linked to the PSA provisions related to the City’s obligation to review the 22 Gov. Code § 65943(c).

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July 18, 2024

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subdivision and design review application within 30 days of when that application was received in the City’s intake portal. To date, however, Glenrock has received no update on the process for advancing this appeal, or when the appeal will be heard. As more than 60 days have passed since the filing of the appeal, the application and submitted materials are deemed complete by operation of law under the PSA.

II. The City’s Subdivision and Design Permit Fees Far Exceed any Reasonable Amount Needed to Process the Project Application and are Therefore Unlawful Glenrock submits this Notice of Protest pursuant to the Mitigation Fee Act23 on grounds that the $364,770 subdivision and design permit application fee, in addition to the $15,755 Preliminary Application fee is extreme and disproportionate to the burdens imposed on the City in its review of this Project.24
There is a long line of U.S. Supreme Court precedents that limit a local agency’s ability to impose exactions or require payment of fees that far exceed the burdens imposed on the local agency. Two key decisions establish that the City may not impose exactions on Glenrock unless the City can demonstrate that there is an “essential nexus” between the burden of the development imposed on the City or the public, and that there is “rough proportionality” between the magnitude of the exaction and the nature of the project’s impact, which the exaction purports to address.25
Recently, in Sheetz v. County of El Dorado, California (2024) 144 S. Ct. 893, the U.S. Supreme Court clarified that the unconstitutional conditions doctrine and other protections against unlawful takings apply to legislatively enacted fees in California. In Sheetz, the Court expressly overruled judicial opinions in California that limited the unconstitutional conditions doctrine to project-specific, or ad hoc fees. The City’s subdivision and design permit application fees are legislatively imposed and, as a result of Sheetz, are subject to review under Nolan/Dollan.

Accordingly, in order for the $364,770.04 subdivision and design review fee for this Project to be valid, the burden of proof lies with the City to demonstrate that the fee satisfies the heightened scrutiny of Nolan/Dollan, that there is both an essential nexus between the fee and its impacts and rough proportionality based on an individualized determination regarding the relationship of the exaction to its impacts.

While a nexus exists between the City charging a fee for its review of development applications, the City has not sufficiently demonstrated that its combined fee of $364,770.04 for review of the Project’s tentative subdivision map and design permit application is roughly proportional to the costs reasonably incurred by the City in its application review. Moreover, the City has not established how this additional fee should be reconciled with the SB 330 Preliminary Application fee, which is supposed to entail the “permit processing fee” for the Project. In most 23 Gov. Code, § 66000 et seq. 24 In addition to the notice of protest included in Glenrock’s May 10 appeal, a draft of this letter discussing these claims was forwarded to the City Attorney for discussion with the City Council, on or about May 31, 2024. 25 See Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (“Nollan”) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Dolan”).

City of Morgan Hill, Development Services Department
July 18, 2024

20836777.3
other jurisdictions, the City’s Preliminary Application fee would have covered a substantial portion of the full application fee. The City’s application fees therefore grossly exceed any reasonably amount and far exceed the City’s burden in processing this Project, particularly on the facts here given that the application is now deemed complete as a matter of law. As such the application fee for this Project constitutes an unlawful exaction under federal and state law, and should be refunded to Glenrock.

The City cited a 2021 nexus study as its purported basis for imposing the subdivision and design permit application fee of $364,770.04 for this Project. The 2021 study, however, is factually incorrect and flawed and fails to meet the City’s burden in justifying fees of this magnitude.

The City’s 2021 fee study included a Comparative Fee Survey, which concluded that the City’s subdivision fees were lower than the other agencies surveyed, and that the design permit fees were “in line” with other agencies surveyed. (Attachment 5, p. 10; see also Appendix B.) The 2021 study referenced Gilroy, Palo Alto, San Jose, Santa Clara and Sunnyvale in its survey of other cities. Glenrock’s Project engineer summarized the actual processing costs that would be incurred if the same application were submitted in each of those jurisdictions. (Attachment 6.) As illustrated therein, Morgan Hill’s processing costs for the same size project would exceed Palo Alto’s fee schedule by more than 250%, Gilroy and Sunnyvale by more than 400%; Santa Clara by almost 600% and San Jose’s fee schedule by more than 780%. For further comparison, Glenrock Builders recently submitted a subdivision application consisting of 226 units in Santa Clara County; the County’s application fees for that project were less than $21,000.

In addition, the City’s 2021 study does not adequately explain why processing costs increase uniformly for every tranche of 25 residential units included in a project application, or why such fees are additive to the base cost without any deductions for reviewing the project as a whole. All other jurisdictions surveyed in the City’s 2021 study included significantly smaller fees for each additional tranche of units reviewed in connection with a subdivision application. The City has failed to meet its burden to show that each additional tranche of 25 units requires the same amount of review time, and therefore expense, incurred by the City.

Lastly, the City’s 2021 study did not account for applications submitted pursuant to the Builder’s Remedy entitlement pathway. The City only became subject to the Builder’s Remedy after 2021, during its efforts to adopt its 6th Cycle Housing Element. Subdivision applications submitted under the Builder’s Remedy are significantly different than other subdivision and design review applications because the same zoning and general plan land use controls no longer apply, and the City has extremely limited discretion to deny Builder’s Remedy projects. It is therefore reasonable to expect application fees to be less for this Project.

The City therefore has failed to meet its burden of proof to show that its imposition of application fees on this Project is roughly proportional to the City’s cost of processing the Project application pursuant to the Builder’s Remedy entitlement pathway under the HAA. As such, the only legally defensible fee structure in this case is to impose a reasonable advance funding deposit for example in the amount of $50,000, that the City can charge its actual costs in reviewing the application on a time and materials basis, while providing a detailed accounting of

City of Morgan Hill, Development Services Department
July 18, 2024

20836777.3
all time incurred by City staff and obtaining Glenrock’s prior approval if any outside consultants are needed.

Glenrock therefore requests that the City refund the application fee of $364,770.04 for this Project, or alternatively apply those funds directly towards the CEQA processing of this Project.

CONCLUSION
Glenrock respectfully requests that the City grant this appeal for the reasons set forth herein; we request that Development Services (1) resume processing the Project application and rescind the Director’s determination that the Builder’s Remedy application had lapsed; (2) instruct City staff that the Project application is deemed complete by operation of law pursuant to the PSA and that the Project remains vested under its SB 330 Preliminary Application; and (3) commence the CEQA process, which must be completed by April 11, 2025. If the City refuses to make these findings, we request that the City hold an adjudicatory hearing in accordance with Glenrock’s due process rights in connection with this Project, and as required under Morgan Hill Municipal Code.26
In addition, Glenrock requests that the $364,770.04 subdivision and design permit application fee be refunded, or applied to immediately commence CEQA review, given that the City has not met its required showing under Nollan/Dolan and Sheetz that its application fees are roughly proportional to the burdens imposed on the City in processing this Project application. In addition, the balance of fees should be refunded or rolled into CEQA review given that the application is now deemed complete by operation of law.

Lastly, pursuant to the California Public Records Act,27 we request that the City provide copies of all correspondence, documents, materials, billing records and all other written materials maintained by the City in connection with this Project; these materials constitute the record of proceedings in this appeal.

Thank you for considering this appeal. Glenrock requests that the City render its final determination on this matter on a timely basis to avoid additional damages due to the City’s refusal to move this application forward. Please do not hesitate to contact me if you have any questions or comments regarding this letter or Glenrock’s appeal.

Sincerely,

HANSON BRIDGETT LLP
Robin R. Baral
26 Morgan Hill Zoning Code, Chapter 18.112.
27 Cal. Gov. Code § 7920.000 et seq.

City of Morgan Hill, Development Services Department
July 18, 2024

20836777.3
cc: Morgan Hill City Council
Morgan Hill Planning Commission
Don Larkin, City Attorney
Client
20836777.1

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ATTACHMENT 1
HCD Technical Assistance Letter

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
December 7, 2023
Jordan Klein, Director of Planning and Development
City of Berkeley
1947 Center Street, 3rd Floor
Berkeley, CA 94704
Dear Jordan Klein:

RE: City’s Application Intake and Processing – Letter of Technical Assistance The California Department of Housing and Community Development (HCD) received multiple requests for technical assistance requesting HCD to review the City of Berkeley’s (City) housing application intake procedures and application processing for compliance with the Permit Streamlining Act (PSA) (Gov. Code, § 65943.5). The purpose of this letter is to provide technical assistance on this matter.

Housing Element Program Commitments
As the City is aware, the City Council adopted Berkeley’s 6th Cycle Housing Element (2023 – 2031) on January 18, 2023, and HCD found the housing element in substantial compliance with State Housing Element Law on February 28, 2023. The City is obligated to implement the programs in the housing element to facilitate the City’s housing needs. The following two programs are responsive to this topic.:
• Program 33 (Zoning Code Amendment: Residential). This program requires amendments to the zoning code to reduce entitlement and permit processing time. It is intended to reduce administrative costs for the City and streamline housing projects.
• Program 34 (Permit Processing). This program addresses permit processing and acknowledges delays in processing development applications. Program 34 is intended to improve the streamlining of permit processing through updates to permitting software which would allow applications to be submitted online and provide on-demand reporting of project statuses.

Permit Streamlining Act – Completeness Review
The Legislature found and declared with the passing of the PSA that “there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite

Jordan Klein, Director of Community Development

decisions on such projects” (Gov. Code § 65921). The intent of the PSA is to ensure that applicants are provided clear instructions and that local jurisdictions are processing projects in accordance with the specific timelines outlined in the statute to streamline development. Notably, the PSA requires that local jurisdictions determine in writing whether an application is complete within 30 days of application submittal. Considering the current housing crisis in California, delays in permitting processes and approval times add constraints to the cost of residential construction. Therefore, compliance with the PSA is even more pertinent today to meet the urgent housing needs across California.

It is HCD’s understanding that prior to a project’s full application submittal, the City conducts a unique local application intake review process. This process (which should not be confused with a typical pre-application process where a prospective applicant submits a conceptual plan for informal review and discussion) concludes in an application being found by staff to be “ready for review.” To achieve “ready to review” status, the applicant must submit all forms and materials required per the City’s development application checklist for review by the Planning Department. Once staff is satisfied that all forms and materials have been submitted as required, the applicant is invoiced and is authorized to officially submit the application. The City considers the 30-day PSA completeness clock to begin at the time when an applicant is issued an invoice and payment is made – and not at the time the application is originally submitted. Therefore, the time it takes for a project to achieve “ready to review” status is indefinite and may exceed 30 calendar days.

The PSA requires local jurisdictions determine in writing whether an application is complete within 30 calendar days after the application is received (Gov. Code § 65943, subd. (a), emphasis added). If the application is incomplete, the local jurisdiction must provide the applicant with a list of items that were not included in the application. That list must be limited to only those items contained within the local jurisdiction’s development application submittal checklist. The City’s application intake review process appears to be a completeness review consistent and subject to the PSA because the City requires all the application checklist items be provided in this process.

However, the City is not complying with the provisions of the PSA in that the City is not providing clear and transparent guidelines for what satisfies the application intake process and may take over 30 calendar days to complete the intake review.

Additionally, when the City ultimately accepts an application for review, HCD understands the City adheres to its own timing provisions contained in the City’s municipal code which states, “…when business days are referenced, they include only days when City Hall is open. The end of a time period is computed by excluding the first day and including the last day. If the last day is a holiday observed by the City or a City Hall non-business day, that day is excluded” (BMC § 23.104.030(F)). Based on this municipal code provision, it appears that the City excludes the day the application was submitted and excludes weekends, holidays, and days that City Hall is closed to the public. The practice of reviewing housing applications based on business days adds to

Jordan Klein, Director of Community Development

constraints contributing to the housing crisis and is inconsistent with the provisions and intent of the PSA. The PSA explicitly states that local jurisdictions are required to determine whether an application is complete within 30 calendar days, and not business days.

Recommendations
As supported by the content of this letter, HCD makes the following recommendations to the City to best implement state law and housing element program commitments to streamline permit processing:

1. Completeness review begins at application submittal. When an application is submitted to the City for review, the City has 30 calendar days from the submittal date to determine completeness in writing per the PSA. Therefore, the City’s intake review process is a completeness review and is subject to the PSA and must be completed within 30 calendar days. The City should make it possible for an applicant to pay the application review fee at the time the application is submitted (e.g., via a written check, online payment portal, etc.)

2. Calendar days. The PSA requires the City to provide written comments to the applicant for a completeness review within 30 calendar days. This includes weekends, holidays, and any City Hall closures. The City’s Zoning Code provision and HCD’s procedures are not compliant with the PSA. Amendments to the City’s Zoning Code and internal procedures should be implemented consistent with the PSA.

Conclusion
HCD is aware that the City applied for the Prohousing Designation Program on August 17, 2023, to qualify for funding benefits. To qualify for the Prohousing Designation, the City must meet threshold requirements, including but not limited to, a compliant housing element and compliance with applicable state housing laws such as the PSA at the time of application. HCD recommends the City make the necessary streamlining improvements referenced above to fully comply with the PSA and to qualify for the Prohousing Designation Program.

HCD requests the City provide a written response by January 7, 2023. The Housing Accountability Unit will review the City’s response in coordination with the Prohousing Designation Division to ensure the City meets all requirements to obtain the Prohousing Designation. The written response should include details such as, but not limited to, a timeline of actions that the City will undertake to address the recommendations listed above.

Jordan Klein, Director of Community Development

HCD acknowledges the challenges with reduced staffing coupled with a high volume of development applications and applauds the City in its efforts to implement the City’s 6th Cycle Housing Element programs. HCD advises that the contents of this letter not be used to delay or otherwise unnecessarily complicate the intake and processing of entitlements. HCD reminds that the State of California is in a housing crisis, and the provision of housing is a priority of the highest order. If you have any questions regarding the content of this letter or would like additional technical assistance, please contact Jessica Evans at [email protected].

Sincerely,
Shannan West
Housing Accountability Unit Chief

20836777.3
ATTACHMENT 2
April 25, 2024 Letter to Development Services

20766925.1
Hanson Bridgett LLP
425 Market Street, 26th Floor, San Francisco, CA 94105
ROBIN R. BARAL

SENIOR COUNSEL
DIRECT DIAL (916) 491-3052
E-MAIL [email protected]
April 25, 2024

VIA E-MAIL
Development Services, Planning Division
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
Attn: Jennifer Carman, Development Services
Re: Monterey Renaissance Builder’s Remedy Project (PRE2023-0008) Dear Ms. Carman:

This letter is in follow up to the above-referenced application submitted on behalf of Glenrock Builders, Inc. (“Applicant”) on March 11, 2024. The application is deemed complete by operation of law under the Permit Streamlining Act (Gov. Code § 65943), as the City has not provided a completeness determination within 30 days after receiving the application.

The Permit Streamlining Act (PSA) expressly requires cities to respond no later than 30 calendar days after an application for a development project is received. (Gov. Code § 65943(a).) Courts have strictly interpreted this 30-day deadline in furtherance to the underlying policies of the PSA. (Orsi v. City Council (1990) 219 Cal.App.3d 1576 [application deemed complete by operation of law; notice of incompleteness was issued 11 days after 30-day PSA deadline].) In addition, amendments to the PSA made by SB 330 in 2019 established closer controls over items that a city may review in determining application completeness: "If the application is determined to be incomplete, [the city] shall provide the applicant with an exhaustive list of items that were not complete. That list shall be limited to those items actually required on the lead agency's submittal requirement checklist. In any subsequent review of the application determined to be incomplete, the local agency shall not request the applicant to provide any new information that was not stated in the initial list of items that were not complete." (Id.) More recently, the Department of Housing and Community Development ("HCD") has advised cities to comply with the 30-day response deadline so that applications for housing development projects can be processed in a more timely manner. A copy of HCD's December 7, 2023 Technical Assistance letter was attached to our previous correspondence and is attached again for reference. (Attachment 1) As HCD notes, there is no support under the PSA to delay the commencement of the City's 30-day period to respond on the payment of application fees.

Jennifer Carman, Development Services Director
April 25, 2024

20766925.1
Here, the application consists of a tentative subdivision map application and clearly falls within the purview of the PSA. The City's Application Submittal Checklist, however, does not include payment of application fees as a checklist item. (Attachment 2) To the contrary, the Checklist states "Once received Staff will respond with the associated fees and payment options." As the City's Checklist does not expressly condition receipt of an application based on the payment of fees, the 30-day PSA deadline to respond for this project began, as a matter of law, on the date that all of the items on the application checklist were submitted and received by the City. Note, however, that even for cities that expressly condition the payment of fees as an application checklist item, HCD has opined that the PSA does not authorize cities to indefinitely delay a 30- day completeness determination on the payment of those fees.

For this project, the Applicant also requested, at the time that the application was submitted, that the City transfer previously deposited funds for an Urban Service Area (USA) amendment, for the purpose of initiating the City's processing of this application. The Applicant therefore initiated payment of the City's application fees at the time that the application was submitted and received by the City. The Applicant's payment of fees on April 5, 2024, however, indicates that no funds were transferred. If a balance remains in any other accounts on file on behalf of Glenrock Builders, we ask that those funds be reimbursed directly to Glenrock, along with an accounting of all expenses incurred in connection with that deposit account.

Lastly, we note that the City's method for calculating the application fee for this project remains under dispute given that the application fees for this project in the amount of $364,770.04 are disproportionate to the City's actual, reasonable costs in processing a subdivision application.

The Applicant made its payment under protest at the time that the application fees were paid to the City. Since then, the U.S. Supreme Court issued its ruling in Sheetz v. County of El Dorado, California (2024) 144 S. Ct. 893, holding that there is no legislative exemption for fees and exactions imposed pursuant to the Mitigation Fee Act ("MFA"). That ruling directly applies here, as application fees are governed by the MFA. (Gov. Code § 66000(b).) Other provisions of the MFA remain in place, such as the accrual of 8% interest pending the outcome of any challenge. (Gov. Code § 66020.)
As the application is deemed complete by operation of law, the Applicant requests that the City initiate review of this project under CEQA, given that the PSA and other deadlines for completing such review are now in effect.

Sincerely,
Robin R. Baral
Attachments
cc: Don Larkin, City Attorney
Client

20836777.3
ATTACHMENT 3
May 1, 2024 Letter from Development Services

17575 Peak Avenue
Morgan Hill, CA 95037-4128
TEL: (408) 778-6480
FAX: (408) 779-7236
www.morganhill.ca.gov
May 1, 2024
Robin Baral, Senior Counsel
Hanson Bridgett LLP VIA EMAIL
425 Market Street, 26th Floor,
San Francisco, CA 94105
Re: Glenrock - Monterey Road Renaissance (PRE2023-0008) Dear Mr. Baral:

The City of Morgan Hill is in receipt of your letter dated April 25, 2024 and has prepared responses to different points expressed within the letter. We have copied those points with a response below each one.

The application is deemed complete by operation of law under the Permit Streamlining Act (Gov. Code § 65943), as the City has not provided a completeness determination within 30 days after receiving the application.

The Permit Streamlining Act (PSA) expressly requires cities to respond no later than 30 calendar days after an application for a development project is received.

More recently, the Department of Housing and Community Development ("HCD") has advised cities to comply with the 30-day response deadline so that applications for housing development projects can be processed in a more timely manner.

The City received a link on March 11, 2024 which was updated on March 12, 2024 to a completed application form and supporting documents. This is not considered receipt of an application. The City does not accept applications without payment. The City of Morgan Hill is a cost recovery agency and as such, work does not commence any work on new applications until payment is received – even completeness review. Your client has filed dozens of applications with the City and is well aware of our procedures. The Preliminary Application was filed on September 15, 2023. Payment for the preliminary application was received on September 25, 2023, which started the 180-day Preliminary Application time period.

The City's Application Submittal Checklist, however, does not include payment of application fees as a checklist item. To the contrary, the Checklist states "Once received Staff will respond with the associated fees and payment options." As the City's Checklist does not expressly condition receipt of an application based on the payment of fees, the 30-day PSA deadline to respond for this project began, as a matter of law, on the date that all of the items on the application checklist were submitted and received by the City. Note, however, that even for cities that expressly condition the payment of fees as an application checklist item, HCD has

May 1, 2024
Response Letter
Glenrock - Monterey Road Renaissance (PRE2023-0008)
Page | 2
opined that the PSA does not authorize cities to indefinitely delay a 30- day completeness determination on the payment of those fees.

The payment requirement is clearly stated on the first page of the document:
“Application Submittals can be sent to [email protected]. Once received Staff will respond with the associated fees and payment options. The application submittal date is identified as the day fees are paid. Incomplete submittals that are missing materials from this checklist will not be accepted. Based on the project type and proposal, Planning Division staff has the right to waive filing requirement items listed below if not needed.” The Applicant also requested, at the time that the application was submitted, that the City transfer previously deposited funds for an Urban Service Area (USA) amendment, for the purpose of initiating the City’s processing of this application.

A USA Amendment (Application #USA2024-0001) was filed and paid for on January 17, 2024 for the Monterey-Glenrock project. Work is underway for this application. No paperwork has been submitted to withdraw this application and request a refund. The SB330 Design Review application is an entirely separate application and it will be processed accordingly.

The Applicant therefore initiated payment of the City's application fees at the time that the application was submitted and received by the City. The Applicant's payment of fees on April 5, 2024, however, indicates that no funds were transferred. If a balance remains in any other accounts on file on behalf of Glenrock Builders, we ask that those funds be reimbursed directly to Glenrock, along with an accounting of all expenses incurred in connection with that deposit account.

Payment for the SB330 application was received on April 5, 2024. There was no deposit on file and no funds eligible to transfer. On January 18, 2024, your client was informed that the City cannot shift funds between projects and was issued a refund for the withdrawal of a General Plan Amendment for a separate project.

Lastly, we note that the City's method for calculating the application fee for this project remains under dispute given that the application fees for this project in the amount of $364,770.04 are disproportionate to the City's actual, reasonable costs in processing a subdivision application.

The Applicant made its payment under protest at the time that the application fees were paid to the City.

Permit fees are based on a nexus study that analyzed the cost of processing each individual permit and using our hourly rate and overhead costs to calculate the appropriate fee. In this case, your client’s fees were calculated appropriately. No documents were submitted with payment that would suggest the payment was made under protest.

As the application is deemed complete by operation of law, the Applicant requests that the City initiate review of this project under CEQA, given that the PSA and other deadlines for

May 1, 2024
Response Letter
Glenrock - Monterey Road Renaissance (PRE2023-0008)
Page | 3
completing such review are now in effect.

The payment for the application was received by the City on April 5, 2024. The City is required to issue the completeness determination by May 5, 2024. However, it should be noted that the 180-day preliminary application period expired on March 23, 2024, so the April 5th submittal is being treated as a new application. Approval of the project will be contingent on City Council approval of General Plan and Zoning Ordinance amendments. The need for these amendments will be reflected in the letter issued this week.

If you have any questions, you may email me at [email protected].

Sincerely,
Jennifer Carman
Development Services Director

20836777.3
ATTACHMENT 4
May 3, 2024 Letter from Development Services

17575 Peak Avenue
Morgan Hill, CA 95037-4128
TEL: (408) 778-6480
FAX: (408) 779-7236
www.morganhill.ca.gov
May 3, 2024
Rocke Garcia
Glenrock Builders, Inc VIA EMAIL
14500 Sycamore Avenue
Morgan Hill, CA 95037
Re: Tentative Map/Design Review SD2024-0005/SR2024-0007/EA2024-0005: Monterey - Glenrock
Dear Mr. Garcia:

The City of Morgan Hill received a submittal on April 5, 2024 for the above mixed-use project proposing 263-units on approximately 30-acres and 4-acres of commercial on the 34.8-acre site.

The properties identified by Assessor Parcel Numbers 825-06-014, 015, and 016 are located on the east side of Monterey Road between John Wilson Way and Starswept Lane. These applications are related to the SB330 Prelim (PRE2023-0008) filed on September 25, 2023. The SB330 Preliminary application expired on March 23, 2024. As such, this is now a standard SB330 application that will require a General Plan Amendment and Planned Development to develop the project as proposed. Review of this Design Permit (SR2024-0007) and Tentative Map (SD2024-0005) application and SR2024-0007 will pause until a General Plan Amendment and Planned Development application is submitted. Should the applicant decide to withdraw this application, please submit a letter and the City will reimburse funds minus staff time spent to date.

Below is a summary of general information required for the proposed project at this location. In addition to the general information, this application has been reviewed for completeness in accordance with the Permit Streamlining Act (California Government Code Section 65920 et seq.) and has been deemed incomplete and listed under submittal requirements for completeness below:

Submittal Requirements for Completeness:

1. The General Plan designates 26.7-acres of the site as Residential Detached Medium (RDM up to 7-units to the acre and 7.34-acres as Residential Detached Low (RDL up to 4-units per acre). The project includes a commercial component that is not consistent with the land use designation and would require a General Plan Amendment prior to processing the Tentative Subdivision Map and Design Permit applications.

2. The Zoning Designation for the 26.7-acres of the site is Residential Detached Medium (RDM 7,000) and 7.34-acres as Residential Detached Low (RDL12,000). The project as proposed includes a commercial component that is inconsistent with the allowed uses in this zoning designation. In addition, the proposed unit types and lot sizes do not meet the zoning

May 3, 2024
Comment Letter
SD2024-0005/SR2024-0007/EA2024-0005
Page | 2
designation standards. To keep the project proposal as it is today, a Zoning Amendment/Planned Development will be required to develop the project as proposed.

Those applications would need to be submitted and/or processed prior to processing the Design Permit and Tentative Map.

3. The application submittal checklist did not include the applicants understanding by checking the box on page 2 that “the project will need to comply with the Objective Criteria and Residential Development Design and Development Standards.” This box will need to be checked so we know the applicant understands.

4. Also on page 2 of the application submittal checklist, the applicant did not check the box or provide initials for the “I understand that resubmittals require a written response letter addressing each comment and where the new information can be found along with updated plans reflecting changes with cloud, delta, and date revisions. This box will need to be checked and initialed.

5. Streetscape Plans: A plan illustrating how the new project will appear in the context of existing surrounding buildings, structures, streetscapes and other relevant parts of the setting are required. These can be 3D renderings or elevations of the proposed buildings built into street scape photos of the existing adjacent properties.

6. Flood Study: Pursuant to Objective Standard #65 (Floodplain Development), the project shall submit a flood study and supporting flood modeling to the City and separately to Valley Water for review and concurrence with their standards and requirements. The project is required to submit a flood study and modeling due to the following conditions: 1) the project may be placing fill on the site and 2) the site is located near a creek or waterway (e.g. West Little Llagas Creek) where a flood study may also be required by the Santa Clara Valley Water District (“Valley Water”). The project’s design review application will not be deemed complete until Valley Water has provided a written verification that the project has been reviewed for compliance with Valley Water’s standards and requirements and the project has paid Valley Water’s review fees.

7. Development Design and Development Standards (DDDS) Checklist is incorrectly filled out in that some items are labeled as N/A. Because this application is not eligible as a Builders Remedy application, the proposed project will need to meet the General Plan and City objective standards (including Zoning) and submit additional information required by the DDDS Checklist.

Below is a list of information to note once project review continues. This information does not relate to a completeness determination but required documentation will need to be submitted with the resubmittal of this application to determine consistency:

1. We understand there is an application in process for an amendment to the Urban Service Area to include these properties. That application will need to be completed prior to Design Permit and Tentative Map approval.