DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74
5. SAN JOSS FACILITY USE SURCHARGE
The total San Jose Facility Use Surcharge for CITY will be based on CITY residents' proportional participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San Josh. Estimated San Jose Facility Use Surcharges are projected in Attachment A, attached hereto and incorporated herein. The San Josh Facility Use Surcharge will vary depending on facility usage but will not exceed $ 8. 09 per car for Fiscal Years 2025, 2026, and 2027.
6. VARIABLE COST PER CAR
The Variable Cost Per Car is the cost associated with actual labor, waste disposal, transportation and other services provided to the residents at the County Household Hazardous Waste Collection Facilities ( CoHHWCF) and at Temporary Events. The Variable Cost Per Car is estimated to be approximately $ 66. 02 per participating resident car for Fiscal Years 2025, 2026 and 2027. The estimated cost per car will be adjusted to reflect actual service costs. After Fixed Program Costs and San Jose Facility Use Surcharge are allocated on a per household basis, the Variable Cost Per Car will be used to calculate the costs to service 4% of households across all participating jurisdictions. Ifthe level of 4% of households is not reached in the CITY, the CoHHW Program may use the remaining balance of funds, in cooperation with the CITY, to increase public outreach and/ or provide additional services in that jurisdiction the following year.
7. AVAILABLE DISCRETIONARY FUNDING
The Available Discretionary Funding portion of the AB939 HHW Fee will be allocated based on the tons of waste generated within each jurisdiction, and after allocation of Fixed Program Costs, San Jose Facility Use Surcharge, and Variable Cost Per Car allocation.
Available Discretionary Funds must be used for HHW purposes. Options for how to spend these funds include, but are not limited to, increasing the number of residents served in that jurisdiction by the CoHHW Program, subsidizing curbside used motor oil collection, electronic waste ( e- waste) collection, universal waste collection, emergency HHW services, funding HHW public education, the support of capital infrastructure projects to accommodate HHW drop-off and collection events, or providing special programs such as retail collection of certain waste and/ or door-to- door collection of HHW for the elderly and/ or persons with disabilities and neighborhood clean- up events. COUNTY has discretion to determine appropriate uses of Available Discretionary Funding in accordance with the terms and conditions in this Agreement, and to apply the funding toward those uses.
8. ADMINISTRATION AND PAYMENT OF THE AB939 HHW FEE
The County of Santa Clara Recycling and Waste Reduction Division will administer the AB939 HHW Fee, as part of the existing online disposal reporting and payment system.
Administration and payment will be made in accordance with the Agreement for Countywide AB939 Implementation Agreement. Notwithstanding the foregoing, the COUNTY shall maintain records of the amount, use, and distribution of Fixed Program Cost expenditures for at least five ( 5) years after the termination date of this Agreement, unless otherwise required by law Agreement for Countywide Household
Hazardous Waste Collection Program Page 4 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 to retain such records for a longer period. CITY may request in writing a review by COUNTY of the Fixed Program Cost records. The review shall be performed within 30 days ofrequest and results shall be reported to participating cities in writing.
9. PROGRAM PUBLICITY
The CoHHW Program shall produce and make available to the public an HHW brochure for distribution. The brochure will be made available at various events, including but not limited to, environmental events and community fairs. The brochure may also be distributed, upon request, to cities within Santa Clara County and to Santa Clara County residents and businesses.
The CITY shall be responsible for developing and coordinating citywide awareness ofthe HHW Program. The CoHHW Program shall be responsible for Countywide public education for used oil recycling. CoHHW Program public awareness responsibilities shall include, but not be limited to, the following activities:
Serving as the formal contact to the local media such as local newspapers and television news stations;
Providing participating jurisdictions with educational materials developed for the CoHHW Program;
Promoting oil and oil filter recycling by developing, purchasing, and distributing educational materials, media relations materials, basic art work and camera ready advertising materials for distribution countywide and for use by jurisdictions; Representing the program through educational presentations at schools and businesses and attendance at community events such as local fairs and festivals; and Providing participating jurisdictions opportunities to review and comment on the development of countywide outreach materials.
CITY' s public awareness responsibilities, at the sole discretion ofthe CITY, shall include, but not be limited to, the following activities:
Providing a copy of HHW promotional materials to the CoHHW Program for review for accuracy and completeness, prior to publication; Developing and distributing HHW promotion communications to residents for local and CITY newsletters, newspapers and to the electronic media; Providing the CoHHW Program with a copy of HHW promotion materials produced by the CITY;
Conducting and supporting outreach and publicity to attain the goal of 4% of households in the CITY participating in the CoHHW Program; and Providing the CoHHW Program a report summarizing all outreach activities conducted by the CITY during the fiscal year. The report is due 30 days after the end of the reporting period.
10. TEMPORARY HHW EVENTS
COUNTY shall conduct Temporary HHW Events at various sites located in Santa Clara County. COUNTY shall obtain all necessary permits and licenses required for the Temporary Agreement for Countywide Household
Hazardous Waste Collection Program Page 5 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 HHW Events and shall provide or contract for the services of properly trained, qualified personnel and hazardous waste haulers, and shall provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose ofthe household hazardous wastes collected at the Temporary HHW Events.
When COUNTY conducts a Temporary HHW Event in CITY' s jurisdiction, CITY agrees to provide solid waste and recycling services at such event at no cost to the CoHHW Program to ensure the proper management of non -hazardous waste generated at the event. Any additional expenses for such event incurred beyond the agreed -upon budget shall be subject to negotiation and mutual agreement between the COUNTY and the CITY.
To increase the Community' s awareness of and participation in any Temporary HHW Event in CITY' s jurisdiction, the CITY agrees to promote, at the CITY' s sole expense, each such event to the residents at least thirty ( 30) days in advance before the scheduled date. The promotion may include, but is not limited to, bill inserts, door hangers, flyers, in -person outreach events, newsletters, press releases, public service announcements, social media, television public access stations, websites, etc.
11. HOUSEHOLD HAZARDOUS WASTE COLLECTION FACILITIES
COUNTY shall conduct collection operations at two County Household Hazardous Waste Collection Facilities ( CoHHWCF).
The CoHHWCF are located at:
San Martin, 13055 Murphy Avenue, San Martin, CA 95046
San Jose, 1608 Las Plumas, San Jose, CA 95133
The COUNTY shall obtain all necessary permits and licenses required for the CoHHWCF and shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected.
12. RECYCLING AND DISPOSAL PROGRAM FOR VERY SMALL QUANTITY
GENERATORS
COUNTY will provide services to accept hazardous waste from Very Small Quantity Generators ( VSQG) in accordance with Section 25218. 3 of California Health and Safety Code, as amended from time to time. VSQG is defined in Section 25218. 1( q) of California Health and Safety Code.
Eligible VSQGs include, but not limited to, small businesses, governmental entities, non-profit organizations, schools, special districts, etc. within the County so long as they meet the criteria as defined in Section 25218. 1( q) of California Health and Safety Code. Eligible VSQGs will be allowed to bring their hazardous waste to CoHHWCF. These services to VSQGs located within the CITY will be provided on a cost recovery basis, which will include program administration, Agreement for Countywide Household
Hazardous Waste Collection Program Page 6 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 on -site collection, transportation, and disposal costs. COUNTY will assume responsibility for fee collection from participating VSQG.
The CITY may choose to pay for services for VSQG' s within the CITY and will notify the COUNTY in writing with 30- day advance notice in order to exercise this option. Ifthe CITY exercises this option, the COUNTY will invoice the CITY for all costs associated with VSQG' s within the CITY. If CITY has available Discretionary Funding, COUNTY may use this funding to pay for VSQG costs.
13. ABANDONED HOUSEHOLD HAZARDOUS WASTE
The CoHHW Program will allow for the disposal of abandoned HHW by government agencies and qualified nonprofit charitable reusers. Abandoned HHW means HHW left at a property by an unknown party. Abandoned household hazardous waste does not include waste generated by a known organization or agency in the course of normal business operations such as, but not limited to, the assembly or manufacture of products from new or used materials or the provision of charitable services such as classroom education, meal preparation, and shelter, or the provision of services for a fee.
A) GOVERNMENT AGENCIES
Government agencies shall be charged for disposal of abandoned HHW according to the CoHHW Program' s rates for VSQGs.
B) NONPROFIT CHARITABLE REUSER
In order to qualify as a Nonprofit Charitable Reuser, the business must submit to the County Executive a request to be so designated. The County Executive shall review the request and supporting documentation and shall make a final decision on the designation. COUNTY will accept abandoned HHW from Nonprofit Charitable Reusers and will waive disposal fees on the cost of disposal of the abandoned HHW in an annual amount not to exceed funds available from the existing unexpended abandoned waste fund. Funding for disposal available to Nonprofit Charitable Reuser shall be on a first come first serve basis. Once the available fund to pay for the disposal ofthe abandoned HHW from Nonprofit Charitable Reusers is exhausted, disposal fees shall no longer be waived, and Nonprofit Charitable Reusers shall be charged for disposal of abandoned HHW according to the CoHHW Program' s rates for VSQGs. No additional costs shall be applied to the budget ofthe CITY or any other participating jurisdiction.
14. HOUSEHOLD HAZARDOUS WASTES ACCEPTED
HHW accepted by the CoHHW Program shall be limited to those materials that qualify as Household Hazardous Waste" pursuant to Section 25218. 1( d) of California Health and Safety Code, as amended from time to time. These materials include, but are not limited to, automotive fluids, automotive and other types of batteries, latex and oil paint, oil filters, garden chemicals, Agreement for Countywide Household
Hazardous Waste Collection Program Page 7 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 household cleaners, pool chemicals, mercury thermostats, fluorescent lamps containing mercury, household batteries, electronic waste ( e- waste), and other common hazardous consumer products.
15. WASTES NOT ACCEPTED
Certain hazardous wastes shall not be accepted for collection and disposal. These include, but are not limited to, compressed gas cylinders larger than 5 gallons, radioactive materials, biohazardous waste, and explosives. Other wastes not accepted by the CoHHW Program are wastes generated as part of operating a business, including a home operated business, except that waste from VSQGs as provided for in Section 12 ofthis Agreement shall be accepted.
16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level. Additional services shall be made available upon written agreement between the CITY' s authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments ( charged at the Variable Cost Per Car rate), door-to- door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.
CITY agrees to augment up to an additional $ 75, 407 to the Countywide HHW Program during Fiscal Year 2025 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY' S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.
CITY agrees to make an interim payment to COUNTY amounting to 50 percent ofthe augmentation amount stated above for each fiscal year. This interim payment shall be made no later than September 30th of each fiscal year. The remaining balance of any outstanding cost shall be reconciled and paid or refunded in accordance with the terms outlined in the annual cost statement.
At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt ofthe annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery ofthe annual cost statement.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 8 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74
17. INFORMATION AND APPOINTMENT LINE
COUNTY will operate a telephone information and appointment desk Monday through Friday, from the hours of 9: 00 a.m. to 5: 00 p.m, except for COUNTY -recognized holidays The information service will register residents for the Temporary HHW Events and the collections at CoHHWCF. The information service will provide information about hazardous household materials. CITY will be notified immediately ifresident participation approaches a level of service that may not be supported by available funding.
18. SCHEDULING AND SITE SELECTION
COUNTY shall work with CITY to determine the date( s) of Temporary Events and collections at the CoHHWCF. CITY shall coordinate with COUNTY in locating and securing sites for Temporary HHW Events. It is recognized that some participating jurisdictions in the CoHHW Program may not have appropriate sites available. A proposed HHW schedule for Fiscal Year 2025 of Temporary Events and collections at CoHHWCF is included as Attachment C. COUNTY will schedule an adequate number of collection days to serve the 4% level of service. The COUNTY determines the adequate number of collection days by tracking attendance at each event.
19. OUTSIDE FUNDING
During the term of this Agreement, COUNTY may seek outside funding sources for services that would supplement existing HHW services such as permanent collection sites, equipment, retail take -back collection and operational funding. If outside funding is obtained, the CoHHW Program will, at COUNTY' s discretion, proceed with development of additional programs using that outside funding without drawing on CITY' s funding provided under this Agreement.
20. REGIONAL GRANT AND OIL PAYMENT PROGRAM PARTICIPATION The CITY authorizes the CoHHW Program to apply for lead agency grants, including but not limited to Used Oil Payment Program grants, from the California Department of Resources Recycling and Recovery ( CalRecycle), on behalf of participating jurisdictions. The CoHHW Program will act on behalf of all participating jurisdictions, as the lead applicant and administrator. The CoHHW Program will oversee how the moneys are used and work in cooperation with CITY as to how the funds will be spent. Nothing in this section shall preclude the COUNTY or a participating jurisdiction from applying for grant funds in any case where the CoHHW Program does not apply for the grant opportunity.
21. EMERGENCY SERVICES
Participating jurisdictions, at their option, may desire to provide residents with convenient emergency opportunities to safely dispose of their HHW in the event of a disaster.
The purpose of this emergency planning for HHW is to minimize potential public health and safety impacts, as well as to minimize costs and confusion. Attachment D sets out CITY and Agreement for Countywide Household
Hazardous Waste Collection Program Page 9 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 COUNTY responsibilities for the collection of household hazardous wastes in response to an emergency. CITY shall make good faith efforts to provide the public with information related to the problems associated with HHW. Upon the decision to hold an emergency collection event, it is CITY' s responsibility to make a good faith effort to prepare and disseminate the necessary outreach to notify the public of an emergency collection event. An emergency collection event shall be initiated by a written request from CITY to COUNTY. Emergency collection events can be scheduled in as little as ten ( 10) working days of CITY' s written request or at an agreed upon date thereafter. The emergency collection plan is set out in Attachment D, Household Hazardous Waste Emergency Collection Plan.
COUNTY agrees to conduct the Emergency Collection Event at a mutually agreeable site and time. The COUNTY will obtain the necessary permit from California Department of Toxic Substances Control and will handle wastes in accordance with applicable state laws and regulations. COUNTY will bill CITY for all Emergency Collection Events on a cost recovery basis, and all payments shall be due COUNTY within 30 days following the receipt ofthe invoice.
22. PRIVATE SPONSORED EVENTS
COUNTY may also secure funding from corporations or agencies to conduct HHW Collection Events for corporate employees and residents of participating jurisdictions and to pay for special programs such as Universal Waste collection at retail locations. The transportation, treatment, and disposal liability for nonresident employee participation in these events shall be shared by all participating jurisdictions, including the CITY, and the COUNTY, as described in Section 26 of this Agreement. Summary information concerning these corporate sponsored events, if any, will be included in the CoHHW Program' s annual report to the participating jurisdictions.
23. INSURANCE REQUIREMENTS
Contractors who provide hazardous waste transportation, treatment, or disposal services shall have the required insurance as outlined in Attachment E, Exhibit E Insurance Requirements for Environmental Services Contract. Other contractors shall have insurance in amounts to be determined by COUNTY Insurance Manager, after consultation with CITY. COUNTY shall obtain insurance certificates from each of the contractors prior to the contractor providing service to the program naming the COUNTY as an additional insured.
24. WASTE TRACKING AND REPORTING
COUNTY will provide a mid -year report to CITY regarding participation rates from each participating jurisdiction by March 15 of each year. Mid -year and year end reports will outline the types and quantities of waste collected, the amount of waste diverted for reuse or recycling and the waste management method for each waste stream and associated costs for services.
COUNTY will prepare a report summarizing program activities which will be delivered to the participating jurisdictions no later than six months after the end of COUNTY' s fiscal year.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 10 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 It will be assumed for cost and reporting purposes that each participating jurisdiction is contributing to the waste stream in proportion to the number of its residents who directly participate.
COUNTY shall take steps to assure that the bi- annual statements to jurisdictions reflect the funds necessary to cover costs for CITY participation in services scheduled during the next quarter.
25. PARTICIPATION REPORTING
COUNTY shall employ means necessary to verify the place of residence of all participants in the CoHHW Program.
26. HOLD HARMLESS AND INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between CITY and COUNTY pursuant to Government Code Section 895. 6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead COUNTY and CITY agree that pursuant to Government Code Section 895. 4, each ofthe parties hereto shall fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury ( as defined by Government Code Section 810. 8) occurring by reason of the negligent acts or omissions or willful misconduct ofthe indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct ofthe other parties hereto, their officers, board members, employees or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other parties under this Agreement.
Additionally, CITY shall indemnify COUNTY for CITY' s apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of the household hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. Apportionment for disposal liability shall be determined by each participating jurisdiction' s pro rata proportion of household participation in the Program.
Apportionment for transportation and treatment liability shall be determined by each participating jurisdiction' s pro rata household participation at the event where the waste was generated. COUNTY will use reasonable efforts to obtain recovery from all available resources, including insurance, of any liable hauler or liable disposal facility operator. No liability shall be apportioned to CITY for transportation, treatment or disposal in any case where COUNTY has contracted for such services and has failed to require the contractor to maintain the insurance requirements set forth in Section 23 above.
CITY shall further indemnify COUNTY for CITY' s apportioned share of liability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of household hazardous waste at corporate sponsored events where non -county resident Agreement for Countywide Household
Hazardous Waste Collection Program Page 11 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 employees of the corporate sponsor are authorized to participate in the event. Liability for the nonresident portion of the disposal of waste shall be shared by the participating jurisdictions and the COUNTY as described above. The nonresident portion shall be determined by calculating the percentage of nonresidents participating in the event. This percentage will then be subtracted from the total liability for the household hazardous waste prior to assessing CITY' s apportioned share of any liability for the household hazardous waste.
COUNTY shall require VSQGs and Nonprofit Charitable Reusers to indemnify COUNTY, at minimum, for their apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of their hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. The VSQG and Nonprofit Charitable Reuser portion of the waste shall be determined by calculating the percentage, by weight, ofthe total household hazardous waste accepted by the CoHHW Program. This percentage will be used to calculate the portion of liability attributed to VSQGs and Nonprofit Charitable Reusers and will be subtracted from the total liability prior to assessing CITY' s apportioned share of any liability for household hazardous waste.
27. TERMINATION
This Agreement may be terminated by either the COUNTY or CITY upon thirty ( 30) days written notice given by the terminating party.
28. TERM OF AGREEMENT
The term ofthis Agreement shall be from July 1, 2024 to June 30, 2027, or until all revenue from the last quarter' s AB939 fee payments have expended and/or distributed, whichever is later.
29. INDEPENDENT CONTRACTOR
Each party shall perform responsibilities and activities described herein as an independent contractor and not as an officer, agent, servant or employee of any of the parties hereto. Each party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing herein shall be considered as creating a partnership or joint venture between the parties.
30. EXECUTION BY COUNTERPART
This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed an original and all ofwhich shall together constitute one and the same instrument.
31. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 12 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74
32. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the subject matter hereof. No modification of this Agreement shall be effective unless and until modification is evidenced by writing signed by all parties or their assigned designates.
33. NOTICES
All notices and communications herein required shall be in writing to the other parry as follows, unless expressly changed in writing:
CITY of Morgan Hill City Representative Tanya Carothers Representative' s Title Env Services Administrator
City Address 17575 Peak Avenue
Morgan Hill, California
95037
County of Santa Clara Director
Consumer and Environmental Protection Agency
1553 Berger Drive
San Jose, California 95112
34. CONTRACT EXECUTION
Unless otherwise prohibited by law or COUNTY 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 COUNTY.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 13 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 IN WITNESS WHEREOF, the parties have executed this AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM on the dates as stated below:
6/ 28/ 2024
Date: COUNTY OF SANTA CLARA
rDocuSigned
by:
a wit, S hwaw1S
JAMES R. WILLIAMS
County Executive
Date:
6/ 10/ 2024 "
CITY"
APPROVED AS TO FORM AND LEGALITY
WDocu.
Signed by:
WILLIE NGUYEN
Deputy County Counsel
A ttni-hmante
DoccuSiiig1n, ed by
v S1lV\.i ltffVl,
gOF City of Morgan Hill Title
City Manager A
municipal corporation Approved
as to form: DocuSigned
by: C
ya.k
iiw tor. yr
fh' f&s' ffA s on Assistant
City Attorney A
Projected Fiscal
B
Years 2025, 2026, and 2027 AB939 HHW Fee Funding Allocation byJurisdiction Estimated HHW Program Fixed Costs for Fiscal Years 2025, 2026, and 2027 C HHW Schedule of Collection Events for Fiscal Year 2025 D Household Hazardous Waste Emergency Collection Plan E
Exhibit- EInsurance Requirements for Environmental Services Contracts Agreement for Countywide Household Hazardous
Waste Collection Program Page 14 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 ATTACHMENT A: PROJECTED FISCAL YEARS 2025- 2027 ANNUAL HHW FEE
FUNDING ALLOCATION BY JURISDICTION
ci es
No of
Households
4% of
Household
Deposal
Tom
A6939 HHW
Fee per Tan
5200
Freed Cost
per Hf
55. 07
SJ Facity
Surclrrge
58. 09
VwwbWCmt
pa Ca
565. 02
Abendored
Waste Dsposel
Costper Hi
30. 05
Dcaretornry
Fund
Estimated
Au nbnon
Antdpated
PWficoation
ArticipeEd
Patdpaton
at SJ Facility
Campbel 18. 451 738 37. 182 S 96, 020 S 93, 494 S 5. 971 S 48. 725 S 923 S 52. 49 S 80093 1, 198 1, 058 C Sm 21, 787 971 29. 930 S 77. 819 S 110, 39B S 7, 050 S 57. 535 S 1. 089 S 9B. S 133081 1, 399 936 Gir 18. 784 751 60. 599 S 157, 558 S 95, 181 S 6, 079 S 49.805 S 939 S 5.754 S 27110 1. 102 154 Las AlbS 11. 871 475 18. 587 S 43153 S 60, 14 S 3. 842 S 31. 349 S 5B4 S 52.78 S 96037 1, 130 794 Los Albs Hit 3151 125 5.589 S 14. 531 S 15.957 S 1. 020 S 8. 321 S 158 S 10, S 221 297 174 L. Gam 14.005 550 23. 770 S 81. 802 S 70. 970 S 4. 532 S 38.997 S 700 S 51, 388 S 219 1, 209 1. 199 faylp 25.709 1, 031 59,694 S 155, 204 S 130. 575 S 8. 339 S 68. 051 S 1, 288 S 153. 04% S 79341 1. 429 969 More Saem 11353 54 735 S 14911 S 6,855 S 438 S 3.573 S 68 S , 02 S 17334 180 185 hk gan HA 18. 178 647 44. 235 S 115. 011 S 81. 970 S 5. 235 S 42723 S 809 S 15, S 75407 1. 561 392 Mountttl Vew 39. 194 1, 988 51. 011 S 13Z029 S 198. 802 S 12, 084 S 103, 504 S 1. 950 S 184. 1 S 169083 1, 340 772 Pab Ato 29.285 1. 171 45188 S 117. 489 S 1. 454 S 116. 025 San Jane 345, 798 13. 832 827. 019 S 2, 150, 25D S 1, 752210 S 111. 904 S 913. 193 S 17, 290 S 644, 33 S 1186168 22039 20, 539 Santa Clara 53.370 2. 135 113. 891 S 295. 597 S 270, 434 S 17, 271 S 140. 939 S 2. 059 S 135. 71 S 237003 3889 2010 S- zo. 11, 353 454 17.897 S 48. 533 S 57527 S 3, 674 S 29.981 S 558 S ( 45.2M S 76767 1 932 800 sunrywle 63111 2. 524 99.239 S 258. 021 S 319. 793 S 20, 423 S 166. 884 S 3. 156 S 252.01 S 25 351 Z681 1. 533 Unmoor ated 18, 558 742 45.093 S 118. 802 S 94.035 S 6. 006 S 49.008 S 928 S 31. 17M S 80009 1. 492 845 Total 69Z019 77981 1, 478, 050 S 384Z931 S 3, 358. 172 S 214. 487 S 1, 750. 148 S 34001 S 11. 514. 45 S 263 224 41. 0% 3Z348 Notes: No of HH and Disposal loge are based on FV2022- 2023 -.. b Ar b. m d Foodps ion and antopaed penicipabn a SJ fadlry we bmeo on 10% increme from FY2022- 2023 acLd pmtopatnn Agreement for Countywide Household
Hazardous Waste Collection Program Page 15 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 ATTACHMENT B: ESTIMATED ANNUAL HHW PROGRAM FIXED COSTS FOR FISCAL YEARS 2025, 2026, AND 2027
FIXED COST
Staff Salary and Benefits
1, 926, 605. 10
County Adnun Overhead 667. 328
Comty Counsel 17, 745
Phones and Communications 13, 787
Facilities Lease Costs San Jose 215, 880
Vehicle Costs 44, 363
Office St lies and postage 4, 430
Maintenance, Software 150, 150
HHW Hotline 150, 000
Garbage & Utilities 47, 434
Membership & Dies 20. 475
Training & Conference 6, 825
Safety Wear 28, 392
Printing 11, 632
Other Services & Supplies 53, 127
ESTIMATED ANNUAL TOTAL 3, 358, 171. 77
Agreement for Countywide Household
Hazardous Waste Collection Program page 16 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025- 2027*
2024/Month Day Date Location Type of Event County Holidays/ Notes July Wed 3 San Jose Permanent
Thursday 4 No Event No Event 4th OF JULY
Fri Sat 516 San Jose Permanent
Fri, Sat 5, 6 San Martin Permanent
Thurs, Fri 11, 12 San Jose Permanent
Thurs, Fri, Sat 18, 19, 20 San Jose Permanent
Thurs, Fri, Sat 25 26, 27 San Jose Permanent
August Thurs,Fri,Sat 1, 2, 3 San Martin Permanent
Thurs,Fri,Sat 1, 2, 3 San Jose Permanent
FriSat 415 San Martin Permanent Thurs,
Fri,Sat 8, 9, 10 San Jose Permanent Thurs,
Fri,Sat 15, 16, 17 San Jose Permanent Thurs,
Fri 22, 23 San Jose Permanent Thurs.
Fri 29. 30 San Jose Permanent Saturday
31 No Event No Event LABOR DAY WEEKEND September
Thurs, Fri,Sat 5, 6, 7 San Martin Permanent Thurs.
Fri. Sat 5. 6. 7 San Jose Permanent Thurs,
Fri, Sat 12, 13, 14 San Jose Permanent Thurs,
Fri 19, 20 San Jose Permanent Thurs,
Fri, Sat 26, 27. 28 San Jose Permanent October
Thurs, Fri,Sat 394, 5 San Martin Permanent Thurs,
Fri,Sat 394, 5 San Jose Permanent Thurs,
Fri,Sat 10, 11 San Jose Permanent Thurs,
Fri,Sat 17, 18919 San Jose Permanent Thurs,
Fri,Sat 24, 25,26 San Jose Permanent Thurs
31 San Jose Permanent November
FriSat 112 San Jose Permanent Thurs, Fri,
Sat 7,899 San Martin Permanent Thurs 7,
899 San Jose Permanent Thurs, Fri,
Sat 1415 16 San Jose Permanent Thurs, Fri,
Sat 21, 22, 23 San Jose Permanent Thurs, Fri,
Sat 282930 No Event No Event THANKSGIVING December Fri, Sat 5,6, 7 San Martin Permanent Thurs, Fri,
Sat 5,6, 7 San Jose Permanent Thurs, Fri,
Sat 12,13 14 San Jose Permanent Thurs, Fri,
Sat 19, 20. 21 San Jose Permanent Wed Thurs
125, 26 No Event No Event CHRISTMAS Fri. Sat
1 27. 28 San Jose Permanent Agreement for
Countywide Household Hazardous Waste
Collection Program page 17 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025- 2027* ( Continued) 2025/Month Day Date Location Type of Event County Holidays/ Notes January Wed 1 No Event No Event NEW YEAR' S
Thurs, Fri, Sat 2, 3, 4 San Martin Permanent
Thurs, Fri, Sat 2, 3, 4 San Jose Permanent
Thurs, Fri 9, 10 San Jose Permanent
11 TBD
nurs, Fri, Sat 16, 17, 1E San Jose Permanent
Thurs, Fri 23, 24 San Jose Permanent
25 Ton
Thurs, Fri 30, 31 San Jose Permanent
February Sat 1 San Jose Permanent
Thurs,Fri, Sat 6, 7, 8 San Martin Permanent
Thurs,Fri,Sat 6, 7, 8 San Jose Permanent
Thurs, Fri, Sat 13, 14, 15 San Jose Permanent
Thurs, Fri, Sat 20, 21, 22 San Jose Permanent
Thurs, Fri 27, 28 San Jose Permanent
March Sat 1 San Jose Permanent
Thurs, Fri, Sat 6, 7, 8 San Martin Permanent
Thurs, Fri, Sat 6, 7, 8 San Jose Permanent
Thurs, Fri, Sat 13, 14 15 San Jose Permanent
Thurs, Fri, Sat 20, 21, 22 San Jose Permanent
Thurs, Fri, Sat 27, 28, 29 San Jose Permanent
April Thurs, Fri, Sat 3, 4, 5 San Jose Permanent
Thurs, Fri, Sat 3, 4, 5 San Martin Permanent
Thurs, Fri 0, 11 San Jose Permanent
12 Lo Temt
nurs,, 7, 18 S_ Pert_
19 Sunnyvale Temporary
Thurs Fi 24, 2- San Jose
Tem orar
Ma Thurs Fri, Sat 1 2 3 San Jose Permanent
Thurs, Fri, Sat 1, 2, 3 San Martin Permanent
Thurs, Fri, Sat 8, 9, 10 San Jose Permanent
Thurs, Fri, Sat 15, 16, 17 San Jose Permanent
Thurs, Fri 22, 23 San Jose Permanent
Saturday 24 No Event No Event MEMORIAL DAY WEEKEND
Thurs, Fri, Sat 29, 30, 31 San Jose Permanent
June Thurs, Fri, Sat 5, 6, 7 San Martin Permanent
Thurs,Fri,Sat 5 6 7 San Jose Permanent
Thurs, Fri 12, 13 San Jose Permanent
14 s Temporary
Thurs Fri, Sat 19, 20 21 San Jose Permanent
Thurs, Fri, Sat 26, 27, 28 San Jose Permanent
SUBJECT TO CHANGE
Agreement for Countywide Household
Hazardous Waste Collection Program Page 18 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 ATTACHMENT D:
COUNTY HOUSEHOLD HAZARDOUS WASTE
EMERGENCY COLLECTION PLAN
1. PURPOSE
The purpose of the Household Hazardous Waste Emergency Collection Plan is to minimize potential public health and safety impacts, as well as to minimize costs and confusion during an emergency or disaster. This Attachment describes the services the County can provide and the responsibilities of each parry for the collection of household hazardous wastes ( HHW) in response to an emergency as defined by the local jurisdiction.
Jurisdictions should contact local emergency agencies, the Governor' s Office of Emergency Services ( OES), and California Department of Toxic Substances Control ( DTSC) for more specific information on hazardous materials emergency response.
2. Timing of HHW
While it is important to have special collection opportunities for disaster -related HHW as soon as possible to avoid illegal disposal or harm to people and/or the environment, having an event or service too soon after a disaster may result in low participation. Sufficient public notification, assessment and monitoring of the disaster and cleanup process by the designated City HHW Coordinator( s) is essential.
3. Public Information/ Notification:
Cities should be prepared to provide the public with information related to the problems associated with HHW along with information about special collection events and services. Upon the decision to hold an emergency collection event, it is the City' s responsibility to prepare and deliver the necessary public outreach to notify the public of an upcoming event. A City' s public outreach program should evaluate all forms of media including: newspaper ads, posters, flyers, press releases, banners, door- to- door notices, roadside signs, signs on dumpsters, radio public service announcements, social media outlets and television public access stations. Be aware of communities where multiple language outreach efforts will be necessary.
4. State HHW Collection Permits
DTSC is responsible for issuing the necessary state permits for HHW collection facilities. During an emergency, the County will obtain the necessary emergency permit for special collection of household hazardous waste from DTSC through their expedited approval process.
5. Collection Events
Temporary collection events can be set-up at various sites including parking lots, city maintenance yards, within neighborhoods needing service, and at landfills or a centralized Agreement for Countywide Household
Hazardous Waste Collection Program Page 19 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 location to service larger segments ofthe population. Waste collected will be transported with a transportation vehicle provided by the HHW Program. In addition, events can be scheduled at the two existing Countywide Household Hazardous Waste Collection Facilities ( CoHHWCF).
The following options are available to each participating City.
Neighborhood Drop-off Events: The County is able to provide localized service to specific areas in need of household hazardous waste collection services. The County will work with City Solid Waste Coordinators to conduct coordinated efforts to residents in the affected area. After a specific event, waste will be transported by County staff or a hazardous waste contractor to an appropriate facility.
Mobile HHW Event: The County conducts Household Hazardous Waste Collection Event Events) at various sites located in Santa Clara County throughout the year. Events will be expanded to give priority to disaster victims when requested by the City. The County shall obtain all necessary permits and licenses required for the events and shall provide and/or contract for the services ofproperly trained personnel and hazardous waste haulers. The County shall also provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at events.
CoHHWCF: The County operates two permitted HHW collection facilities for the collection and storage of HHW. The County shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected at the CoHHWCF.
The CoHHWCF are located at:
San Martin, 13055 Murphy Ave, San Martin, CA 95046
San Jose, 1608 Las Plumas, San Jose, CA 95133
6. Costs, Documentation, and Reimbursements
Cities will be billed on a cost recovery basis. Costs of emergency events will be tracked and billed separately. Emergency funding applications pending from the State or Federal government for reimbursements in no way relieves the City ofresponsibility to make timely payment to the County in accordance with the terms ofthe AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.
The County agrees to provide the City with a detailed accounting of services provided for an emergency collection. Documentation will track the time and materials of staff, outside contractor expenses, and quantities and types of waste collected to demonstrate that the wastes were generated above and beyond existing collection programs.
Services to businesses will be provided on a cost recovery basis and according to Section 12 ofthe
AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM, which includes program administration, on -site collection, transportation, and disposal costs. The County will assume responsibility for collecting fees from participating businesses.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 20 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74
7. State and Federal Assistance and Funds
It is the City' s responsibility to pursue reimbursement from State or Federal agencies.
California Governor' s Office of Emergency Services ( Cal OES) Cal OES is responsible for requesting assistan is declared a state disaster area, and the local jurisdiction deems that the needs of the disaster response are beyond ce on behalf of local jurisdictions for resources beyond the capability of the jurisdiction. State assistance may include assistance available from State, Federal, or private sources. If a local jurisdiction its capabilities, then the local jurisdiction can request assistance and reimbursement of costs from Cal OES.
Follow Standardized Emergency Management System( SEMS)
All requests and emergency responses must be in accordance with the SEMS. DTSC may have funding available for hazardous waste response and collection.
Federal Assistance
If a state disaster area is declared a federal disaster, then federal funding assistance may be available through the Cal OES. Funding and assistance may be available from Federal agencies such as FEMA and the USEPA.
Damage estimates: The city should provide to the Cal OES estimates of damages and a " scope of work requested." It is recommended that the local HHW coordinator meet ahead of time with local emergency agencies or Cal OES contacts regarding the proper procedures and wording of requests for assistance.
Funding Process: The funding process may vary depending on the unique circumstances ofthe disaster. The process can either be the traditional FEMA reimbursement process, or by direct assistance from USEPA.
REFERENCES
California Integrated Waste Management Board, Integrated Waste Management Disaster Plan:
Guidance for local government on disaster debris management, January 1997.
Emergency Planning Contacts and Personnel
Primary County Contact: County of Santa Clara
Consumer and Environmental Protection Agency
Household Hazardous Waste Program
ATTN: Hazardous Materials Program Manager
408)- 918- 1967
For Non -Emergency after-hours, contact County Communications at: ( 408) 977- 3220 Agreement for Countywide Household
Hazardous Waste Collection Program Page 21 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 Responsibility: Coordinate and establish proper collection and disposal methods for household hazardous waste. Assess the need for HHW and VSQG services in consultation with the City and other operations.
Cal OES Public Safety Communications Main Office
601 Sequoia Pacific Boulevard
Sacramento, CA 95811
916) 894- 5209
Cal OES
3650 Schriever Avenue
Mather, CA 95655- 4203
916) 845- 8510
CHEMTREC Emergency number, ( 800) 424- 9300
Non -emergency ( 800) 262- 8200
Chemtrec is a public service established by the Chemical Manufacturers Association. The Center was developed as a resource for obtaining immediate emergency response information to mitigate accidental chemical releases, and as a means for emergency responders to obtain technical assistance from chemical industry product safety specialists, emergency response coordinators, toxicologists, physicians, and other industry experts to safely mitigate incidents involving chemicals.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 22 of 27
DocuSign Envelope ID: ADF40C33- 0091- 4735- AAAF- E49285323A74
ATTACHMENT E
EXHIBIT E
INSURANCE REQUIREMENTS FOR
ENVIRONMENTAL SERVICES
CONTRACTS
Hazardous Waste Disposal, Remediation Services, Environmental Consulting, etc.) Indemnity
The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara hereinafter " County"), its officers, agents and employees from any third party claim, liability, loss, injury or damage to the extent arising out of, or in connection with, performance of this AGREEMENT by Contractor and/ or its agents or employees, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this AGREEMENT to provide the broadest possible coverage for the County. The Contractor shall reimburse the County for all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which the Contractor contests its obligation to indemnify, defend and/ or hold harmless the County under this AGREEMENT and does not prevail in that contest.
Insurance
Without limiting the Contractor' s indemnification 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 carrier shall accompany the certificate.
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.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 23 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74
ATTACHMENT E
Exhibit E ( Continued)
C. Notice of Cancellation
Should any of the requested policies be cancelled before the expiration date, notice will be provided in accordance with policy provisions.
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 - $ 2, 000, 000
c. Products/ Completed Operations aggregate - $ 2, 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, ( Commercial General Liability Additional Insured provided pursuant to Additional Insured Endorsement # 1), 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 provided pursuant to Additional Insured Endorsement Form # 1."
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 Agreement for Countywide Household
Hazardous Waste Collection Program Page 24 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 Exhibit E ( Continued)
under this policy. Public Entities may also be added to the Additional Insured Endorsement Form # 1 as applicable by way of insurance addendum, and the contractor shall be notified by the contracting department of these requirements.
4. Automobile Liability Insurance
For bodily injury ( including death) and property damage which provides total limits of not less than one million dollars ($ 1, 000, 000) combined single limit per occurrence applicable to all owned, non -owned and hired vehicles. Coverage shall include Environmental Impairment Liability Endorsement MCS90 for contracts requiring the transportation of hazardous materials/ wastes.
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.
6. Contractors Pollution Liability Insurance
Coverage shall provide a minimum of not less than five million dollars ($ 5, 000, 000) per occurrence and aggregate for bodily injury, personal injury, property damage and cleanup costs both on and offsite.
7. Professional Errors and Omissions Liability Insurance ( required for contractors providing professional services, such as through a professional engineer, registered geologist, etc.)
a. Coverage shall be in an amount of not less than one million dollars 1, 000, 000) per claim/ aggregate.
b. If coverage contains a deductible or self -retention, it shall be reviewed and approved by the County' s Insurance Manager prior to contract execution.
C. Coverage as required herein shall be maintained for a minimum of two years following termination or completion of this AGREEMENT.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 25 of 27
DocuSign Envelope ID: ADF40C33- 0091- 4735- AAAF- E49285323A74
ATTACHMENT E
Exhibit E ( Continued)
8. Claims Made Coverage
If coverage is written on a claims made basis, the Certificate of Insurance shall clearly state so. In addition to coverage requirements above, such policy shall provide that:
a. Policy retroactive date coincides with or precedes the Consultant's start of work (including subsequent policies purchased as renewals or replacements).
b. Policy allows for reporting of circumstances or incidents that might give rise to future claims. If coverage terminated Run -Off Tail) coverage will be purchased for three ( 3) years following termination.
E. Special Provisions
The following provisions shall apply to this AGREEMENT:
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 self- insurance 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.
4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 26 of 27
DocuSign Envelope ID: ADF40C33- 0091- 4735- AAAF- E49285323A74
ATTACHMENT E
Exhibit E ( Continued)
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 access to funds received 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.
Agreement for Countywide Household
Hazardous Waste Collection Program Page 27 of 27
DocuSign Envelope ID: ADF40C33- CO91- 4735- AAAF- E49285323A74 City of Morgan Hill
Contract Checklist
Date: 06/ 06/ 2024
Contract #
Is FPPC Required ( completed by CA)? No
F
DocuSigned by:
y. z H
Project Name: AB 939 Countywide Agreement
Contractor' s Name: County of Santa Clara
Project Manager: Tanya Carothers
Department: Public Services Dept. - Environmental Division STANDARD CITY/AGENCY FORM:
Is this a Standard City/ Agency Form without any changes:
F7 YES NO
If there are changes to the Standard City/Agency Form, describe in attached memo/ email]
Are there funds for this request?
YES F-1 NO
Fund: NA - the program will be covered by HHW discretionary fees, and Implementation Funds through our Recology Contract if needed.
Project:
I Account #:
CONTRACTOR' S INSURANCE
To be completed before agreement is routed to Shadia Hrichi.
Please fill in one of the section below:
Insurance reviewed and approved on date of:
Insurance is not required per email dated:
Amendment - Insurance not needed: X
NOTE: Amended contracts do not require additionaUnew insurance U:\ Legal Forms\ CONTRACT ROUTING FORMS Revised 6/ 13/ 2023
Docusign Envelope ID: 8813A53C- 5462-418B-AC55- 84E12DFBB0E3
Docusign Envelope ID: 8813A53C- 5462-418B-AC55- 84E12DFBB0E3
Docusign Envelope ID: 8813A53C- 5462-418B-AC55- 84E12DFBB0E3 6/13/2025
6/13/2025
Docusign Envelope ID: 8813A53C- 5462-418B-AC55- 84E12DFBB0E3
5 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Mario Pichardo, Environmental Services Administrator
APPROVED BY: City Manager
APPROVE AN AGREEMENT WITH UTILITY SERVICE PARTNERS
PRIVATE LABEL, INC., DBA SLWA INSURANCE SERVICES, TO
OFFER THE HOMESERVE SERVICE LINE WARRANTY PROGRAM
RECOMMENDATION(S)
Authorize the City Manager to execute and administer an agreement with Utility Service Partners Private Label, Inc., dba SLWA Insurance Services, to provide the HomeServe Service Line Warranty Program for an initial term of three years.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety and Quality of Life
Supporting our Youth, Seniors, and Entire Community
Promoting a Healthy Community
Strategic Priorities 2026-2027
Fiscal Sustainability
REPORT NARRATIVE:
The HomeServe Service Line Program, offered by Utility Service Partners Private Label, Inc. (USP), a HomeServe company, was conceived to educate property owners about their service line responsibilities and help residents avoid significant out-of-pocket expenses for unexpected service line repairs and replacements. Property owners are typically responsible for the maintenance and repair of water and sewer service lines that run from their homes to the public main. Repairs to these lines can be costly and unexpected. The voluntary Service Line Warranty Program offers residents affordable protection for these types of repairs.
Similar programs have been successfully implemented by municipalities and water utilities nationwide, with more than 1,300 partners across the country, including over 40 in California. Local examples include San Diego (a partner since 2012 and the first in California), as well as the cities of Fresno, Stockton, Antioch, Daly City, Vallejo, and San Jose Water.
This program is in alignment with numerous City priorities and will specifically benefit Morgan Hill residents in various ways, including:
5 • Provide homeowners affordable protection against significant and unexpected costs to repair leaking, broken, or clogged water and sewer lines, as well as inhome plumbing lines. • Ensure delivery of timely, high-quality repair services in adherence to all applicable codes.
• Stimulate the local economy by utilizing fully vetted local contractors to complete repairs.
Coverage
The HomeServe Service Line Program offers three separate voluntary coverage options. There are no service fees or deductibles, and no annual or lifetime coverage limits. Customers may cancel at any time. The coverage offered for the service lines is typically coverage that would not be available with a standard home insurance policy.
The coverage offered includes options for coverage for the exterior water line between a house and the meter, exterior sewer line between a house and connection to the City main line, as well as an option for in-home plumbing and drainage.
Participation in the program is entirely voluntary for residents. The City’s role is limited to authorizing the use of its logo for branding and approving marketing materials. All marketing materials clearly disclose that the program and the City are separate entities.
The City is bringing forward this program as an enhanced option for our residents.
Rates for residents available via the Homeserve program are included within the agreement (Attachment 1).
In addition to providing a benefit to the community, the HomeServe USA Corp. program includes a marketing payment to the City to help offset costs associated with programrelated communications. City staff is recommending approval of the marketing agreement, which will allow the City to receive $7,500 in additional annual revenue.
COMMUNITY ENGAGEMENT:
Inform
If approved, the City will share information regarding the voluntary program through its communication channels to ensure residents understand their service line responsibilities and available protection options.
ALTERNATIVE ACTIONS:
The Council may choose to authorize participation in the program but not elect to collect the Brand Fee revenue. This will result in the monthly rates for residents being reduced by $0.50 per coverage type per month. This is not recommended as the City could utilize the revenue to offset staff time associated with supporting communications on the program.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
None.
5 FISCAL AND RESOURCE IMPACT:
Supporting this program's communication and resident questions will be primarily supported by the Public Services Department in the Environmental Services Division.
The program is aligned with other work occurring in the Division and is not anticipated to increase workload significantly. The City will receive $7,500 annually in General Fund (010) revenue from the program.
CEQA (California Environmental Quality Act):
Not a Project
This action constitutes an organizational or administrative activity of government that will not result in direct or indirect physical changes in the environment.
1 MARKETING AGREEMENT
This MARKETING AGREEMENT (“Agreement”) is entered into and made effective as of __________, (“Effective Date”), by and between the City of Morgan Hill, California (“City”), and Utility Service Partners Private Label, Inc. d/b/a SLWA Insurance Services, a Delaware corporation (“SLWA,” and together with City, the “Parties,” and each, a “Party”).
WHEREAS, individual residential property owners (“Customer(s)”) residing in the City own and are responsible for sewer and water lines between the mainlines and the connection on their property; WHEREAS, City desires to announce to Customers the opportunity, but not the obligation, to purchase plans as set forth in Exhibit A or as otherwise mutually agreed by the Parties in writing (including by email) (“Plan(s)”) to repair such lines; and
WHEREAS, SLWA is a subsidiary of HomeServe USA Corp. (“HomeServe”).
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and with the intent to be legally bound hereby, the Parties agree as follows:
1. Purpose. City grants to SLWA the right to offer and market service Plans subject to the terms and conditions of this Agreement.
2. Obligations of the Parties.
A. Mutual Grant of License. City grants to SLWA a non-exclusive license (“License”) to use the designated names, symbols, trademarks, service marks, logotypes, trade names and insignias (“Marks”) owned by City or its Affiliates (defined below), which may include the use of City’s logo and name in advertising (including on SLWA’s websites or social media sites), in signature lines, and in marketing materials to be sent to Customers, all at SLWA’s sole cost and subject to City’s prior review and approval, which will not be unreasonably conditioned, delayed, denied, or withheld. SLWA grants to City a License to use SLWA’s Marks which shall be limited to the use of SLWA’s logo and name in advertising (including on City’s websites or social media sites), in all cases subject to SLWA’s prior review and approval, which will not be unreasonably conditioned, delayed, denied, or withheld. Each Party’s use of the other Party’s Marks in accordance with this Agreement will not infringe any other party's rights. In the event that City extends a similar license to a competitor of SLWA during the Term, City shall provide thirty (30) days’ written notice prior to such grant of license and SLWA may immediately terminate this Agreement.
B. Data.
i. If City elects to do so, City may provide SLWA with “zip code” data for Customers in an agreed-upon format. If City further elects to do so, City may also provide a list of the name, service address, postal address (if different), residential telephone number, and, if available, email address of Customers and any other appropriate or necessary data (“Customer Data”) to SLWA, or to a third party if and as directed by SLWA in writing, for use by SLWA in furtherance of the marketing and sale of the Plans. If provided by City, Customer Data will be provided to SLWA quarterly or more frequently during the Term and in a mutually agreed electronic format. If provided by City to SLWA, Customer Data shall remain City’s property and Confidential Information (defined below), and SLWA will only use Customer Data as permitted by this Agreement. If Customer Data is provided by City to SLWA, City warrants, represents, and covenants that Customer Data has been and will be collected in compliance with all Applicable Laws, and that it is permitted by Applicable Laws and by any applicable privacy policy to provide Customer Data to SLWA and to permit SLWA to use Customer Data for the purposes set forth in or contemplated by this Agreement. SLWA may obtain Customer Data from a third-party in furtherance of the marketing and sale of the Plans. In the event SLWA obtains Customer Data from a third-party, it shall become and remain SLWA’s property and Confidential Information. “Member” means those Customers that purchase and are successfully enrolled in a Plan by SLWA. Each Member’s name, address, phone number, email address and any other information that SLWA collects from a Member, is SLWA’s property and Confidential Information.
2 ii. Data Processing Addendum. In the event that City provides Customer Data to SLWA, the Parties shall abide by all of the requirements and obligations set forth in that certain Data Processing Addendum, which can be accessed and viewed at: https://www.homeserve.com/sc/legal/HomeServeDataPrivacyAddendum (the “DPA”), which is incorporated herein by reference, and which may be modified by SLWA to maintain compliance with all Data Protection Laws (as defined in the DPA). In the event of any inconsistency between the provisions in this Agreement and those contained in the DPA, the DPA shall control.
3. Term; Termination. The term of this Agreement shall be for the number of years in Exhibit A commencing with the Effective Date (“Initial Term”). The Agreement will automatically renew for additional one (1) year terms, unless one of the Parties gives the other written notice at least ninety (90) days prior to the end of the then current term (each a “Renewal Term” and collectively with the Initial Term, the “Term”) that the Party does not intend to renew this Agreement. In the event that a Party is in material breach of this Agreement, the non-breaching Party may terminate this Agreement thirty (30) days after giving written notice to the breaching Party of such breach, (i) if said breach is not cured during said thirty (30) day period, or, (ii) if such breach is incapable of being cured in such period, the breaching Party has failed to take during such period substantive steps to cure such breach. Beginning twelve (12) months after the Effective Date, either Party may terminate this Agreement without cause upon sixty (60) days’ prior written notice to the other Party. SLWA will, to the extent permissible under Applicable Laws, be permitted to complete any marketing initiative approved by City prior to termination of this Agreement.
4. Consideration. As consideration for the License granted in Section 2.A above, SLWA shall pay City a fee (''Brand Fee'') as set forth in Exhibit A. Payment of the Brand Fee for the first year of the Initial Term is subject to the approval and mailing of the first campaign for that year. Thereafter, payment of the Brand Fee is subject to City's timely approval of all other marketing materials for the prior year of the Term and the approval and mailing of the first campaign of the then current year of the Term. SLWA will pay the applicable Brand Fee to City within thirty (30) days after such campaign mailings have been made and applicable City approvals secured.
5. Applicable Laws. Each Party shall comply at all times with all applicable laws, statutes, treaties, rules, codes, ordinances, regulations, permits, official guidelines, judgements, orders and interpretations, as well as licensing or registration requirements (“Applicable Laws”) with respect to its obligations under this Agreement. For any Customer Data provided by City to SLWA, City warrants, represents and covenants that Customer Data has been and will be collected in compliance with all Applicable Laws. City is permitted by Applicable Laws and privacy policies to provide Customer Data to SLWA and to permit SLWA to use such data as contemplated by this Agreement.
6. Confidentiality. “Confidential Information” of a Party means any non-public, proprietary, or confidential information, whether or not it constitutes a trade secret under Applicable Laws, and any other information that a reasonable person would expect to be confidential. Each Party will treat Confidential Information received from the other Party as confidential, and such Party shall not disclose or use such information in a manner contrary to the purposes of this Agreement.
Notwithstanding the foregoing, a Party shall not be liable to the other Party for any disclosure of Confidential Information that is required under any Applicable Laws, applicable public records act or under court order. To the extent legally permissible, a Party shall provide written notice to the other Party prior to any such disclosure.
7. Ruling and/or Code Change; Coverage Changes. In the event that: (i) a change or proposed change in Applicable Laws, or municipal or similar codes; or (ii) an interpretation, policy, ruling, or order by any court, tribunal, arbitrator, regulatory agency, commission, including a public service commission or similar body of the state or commonwealth where City is located, or other instrumentality of the United States, or any state, county, city, or other political subdivision; negatively or potentially negatively impacts the terms of this Agreement or the obligations of the Parties set forth in this Agreement, the Parties shall negotiate in good faith to modify the terms of this Agreement accordingly. Should the Parties be unable to reach a mutual agreement to revise this Agreement, then either Party may terminate this Agreement on thirty (30) days’ written notice to the other Party. Notwithstanding the above, the coverages under the Plans are subject to change by SLWA due to changes required by Applicable Laws or the service agreements for the Plans.
8. Independent Contractor Status. The obligations performed by each Party in this Agreement shall be executed as an independent contractor. SLWA shall have responsibility for and control over the details and means for providing the Plans under this Agreement. Neither Party nor any of its directors, managers, members, officers, employees, contractors,
3 subcontractors, and agents, and in the case of City, also its elected officials (“Representatives”) shall be considered an employee, representative, agent or subcontractor of the other Party or its Representatives.
9. Indemnification. Each Party (the “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other Party and its Representatives (collectively or individually, “Indemnitee”) harmless from and against any and all third party claims, damages, losses, expenses, suits, actions, decrees, judgments, awards, reasonable attorneys' fees and court costs (“Claim(s)”), which an Indemnitee may suffer or which may be sought against or are recovered or obtainable from an Indemnitee, as a result of or arising out of any breach of this Agreement by the Indemnifying Party, or any negligent or fraudulent act, intentional misconduct, or omission of the Indemnifying Party or its Representatives in the performance of this Agreement; provided that the applicable Indemnitee notifies the Indemnifying Party of any such Claim within a time that does not prejudice the ability of the Indemnifying Party to defend against such Claim. Any Indemnitee under this Agreement may participate in its own defense, but will be responsible for all costs incurred, including reasonable attorneys' fees, in connection with such participation.
10. Anti-Bribery and Corruption.
A. Each Party warrants to the other that:
i. it has not offered, promised, given, accepted, or agreed to give or accept, and shall not during the Term offer, promise, give, accept, or agree to give to or accept from any person any bribe on behalf of the other Party or otherwise with the object of obtaining a business advantage for the other Party or otherwise; ii. it will not engage in any activity or practice which would constitute an offense under any applicable anti-bribery and corruption laws, including but not limited to the United States Foreign Corrupt Practices Act of 1977, the United Kingdom’s Bribery Act 2010 and Canada’s Corruption of Foreign Public Officials Act, and it will notify the other Party as soon as practicable of any offense of the foregoing acts in connection with this Agreement, or any breach of the undertakings contained in this section of which it becomes aware; iii. it has in place, and during the Term will maintain, its own policies, procedures, and internal controls, including accounting procedures to record expenditures in connection with this Agreement, necessary to ensure compliance with any applicable anti-bribery and corruption laws;
iv. it will ensure that any person who performs or has performed services for or on its behalf (“Associated Person”) complies with this section, it will not enter into an agreement with any Associated Person in connection with this Agreement unless such agreement contains terms substantially similar to those contained in this section, and it shall be responsible for any breach of such terms, or these terms, by any Associated Person that is a subcontractor of the Party hereunder;
v. from time to time during the Term, at the reasonable request of the other Party, it will confirm in writing that it has complied with the terms of this section and will provide any information reasonably requested by the other Party to demonstrate such compliance; and
vi. in the case of City, it will abide by the “Reporting Hotline” section of SLWA’s Business Partner Code of Conduct (described in “Business Partner Code of Conduct” section) to report to SLWA any request or demand for any improper payments or other improper advantage of any kind in connection with the performance of this Agreement.
11. Records; Audit. Each Party shall, at all times during the Term and for a period of seven (7) years after the termination or expiration of this Agreement, maintain complete and accurate records, together with supporting or underlying documents and materials, kept and maintained by such Party or its Representatives to substantiate such Party’s compliance with its obligations and responsibilities under this Agreement. Up to once per year of the Term, each Party shall have the right, upon at least ten (10) days’ prior written notice and during normal business hours, at its sole cost and expense, to audit and inspect, on its own or through a Representative, the other Party’s records for the purpose of confirming such other Party’s compliance with the terms of this Agreement.
12. Notice. Any notice required to be given under this Agreement shall be deemed to have been received when delivered (i) by personal service, (ii) by electronic mail with confirmation of delivery and receipt (provided a hard copy is sent promptly by regular mail), or (iii) by registered or certified mail, return receipt requested, with the United States Postal Service, addressed as follows.
4 To: City:
City of Morgan Hill
17575 Peak Ave.
Morgan Hill, CA 95037
Attention: Christina Turner
email: [email protected]
To: SLWA:
Utility Service Partners Private Label, Inc.
d/b/a SLWA Insurance Services
45 Glover Ave., 6th Fl.
Norwalk, CT 06850
Attention: Michael Backus, Chief Revenue Officer
email: [email protected]
With a copy to:
Legal Department
email: [email protected]
13. Entire Agreement; No Third-Party Beneficiaries; Severability. The Parties acknowledge that no representations, agreements, or promises were made by the other Party or by any of its Representatives other than those specifically contained in this Agreement. This Agreement, including the recitals as well as any attachments or exhibits, constitutes the entire agreement of the Parties with respect to the matters contemplated in this Agreement, and supersedes any prior agreement or understanding with respect to them. The Parties agree that this Agreement was entered into solely for the respective benefit of each of them and their respective successors and assigns, and nothing in this Agreement is intended to create any thirdparty beneficiaries. This Agreement may be amended or modified only by a written instrument executed by an authorized representative of each of the Parties. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Subject to Applicable Laws, the invalidity or unenforceability of a specific provision in the Agreement shall not render any other provision(s) invalid, inoperative, or unenforceable.
14. Assignment. Neither Party may assign or transfer any of its rights under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably delayed, withheld, conditioned, or denied, except to an affiliate of the assigning Party or an acquirer of all or substantially all of the assets of the assigning Party. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or transfer of this Agreement shall relieve the assigning Party of any of its obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties as well as their respective successors or permitted assigns. For purposes of this Agreement, “Affiliate(s)” means any person or entity directly or indirectly controlling, controlled by, or under common control with a Party. In the case of SLWA, this shall mean its parent, HomeServe, and its direct and indirect subsidiaries.
15. Counterparts; Electronic Delivery. This Agreement may be executed in counterparts delivered by email, DocuSign, or other electronic transmission; such counterparts will be deemed originals and binding upon the Parties upon receipt, regardless of whether originals are delivered thereafter. All such counterparts will constitute one and the same contract, and the signature of any Party to any counterpart will be deemed a signature to any other counterpart.
16. Governing Law; Venue; Waiver of Jury Trial. The Parties shall comply with all Applicable Laws with respect to their respective obligations under this Agreement. This Agreement is governed by and shall be construed in accordance with the laws of California, without regard to the choice of law principles of the forum state. Any action at law, suit in equity, or other proceeding against any Party with respect to this Agreement or in connection with any of the matters contemplated by this Agreement shall be brought and maintained exclusively in the state or federal courts located in California, as applicable. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE
5 ANY RIGHT THAT MAY EXIST TO HAVE A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON OR ARISING OUT OF, UNDER, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT.
17. Business Partner Code of Conduct. SLWA and City are committed to conducting their business activities with the highest standards of honesty and integrity. City acknowledges that it has received and reviewed SLWA’s Business Partner Code of Conduct (available at https://www.homeserve.com/sc/cobc) as updated from time to time, and City agrees to abide by SLWA’s Business Partner Code of Conduct as a material condition of this Agreement. Should City suspect or become aware of any actual or suspected violation of SLWA’s Business Partner Code of Conduct, City shall promptly notify SLWA or its anonymous ethics hotline (see SLWA’s Business Partner Code of Conduct) IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF MORGAN HILL UTILITY SERVICE PARTNERS
PRIVATE LABEL, INC.
D/B/A SLWA INSURANCE
SERVICES
By: ____________________________ By: ____________________________ Name: __________________________ Name: Michael Backus
Title: ___________________________ Title: Chief Revenue Officer
Exhibit A
Marketing Agreement
City of Morgan Hill
Term Sheet
I. Initial Term. Three (3) Years, with the option for Renewal Term(s).
II. Brand Fee. During the Initial Term, SLWA shall pay City $ 22,500 spread across the first Three (3) Years of the Initial Term, as follows:
A. Year 1 - $ 7,500
B. Year 2 - $ 7,500
C. Year 3 - $ 7,500
D. Renewal Term(s) - The Brand Fee shall be $ 7,500 for each Renewal Term.
III. License Conditions. Use of City’s Marks in accordance with Section 2.A of the Agreement.
IV. Plans; Plan Fees; Scope of Coverage. The summary of coverage is accurate as of the Effective Date. SLWA will offer the following rates to Customers:
A. Exterior water service line plan (initially, $ 6.99 per month) i. Covers Customers’ responsibility: From the meter and/or curb box to the main shut-off valve inside the home.
ii. Covers well service lines if applicable: From the external wall of Customers’ well casing to the external foundation wall of the home.
iii. Coverage Cap: Unlimited number of calls/$12,000 per call/unlimited annual maximum.
B. Exterior sewer/septic line plan (initially, $ 11.99 per month) i. Covers Customers’ responsibility: From the external wall of the home to the sewer main. ii. Covers septic lines if applicable: From the external foundation wall of the home to the point of connection to the septic tank.
iii. Coverage Cap: Unlimited number of calls/$12,000 per call/unlimited annual maximum.
C. Interior plumbing and drainage plan (initially, $ 16.99 per month) i. Covers repair or replacement of the following inside the home, for which the Customers have sole responsibility, that is damaged due to normal wear and tear:
a. The blocked or leaking interior water supply and drainage system pipes that carry fresh or drinkable water and wastewater.
ii. Coverage Cap: Unlimited number of calls/$3,000 per call/unlimited annual maximum.
Pricing above does not include taxes which will be collected by SLWA as well. SLWA may adjust the Plan fees; provided, that, any such adjustment shall not exceed one dollar ($1.00) per month per Plan in any twelve (12) month period. If such adjustment shall exceed one dollar ($1.00), both Parties must agree in writing.
V. Marketing Campaigns. SLWA shall have the right to conduct up to three (3) campaigns per year through such channels as may be mutually agreed by the Parties.
6 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Tiffany Brown, Senior Planner
APPROVED BY: City Manager
APPROVE PEEBLES - PEEBLES SQUARE, LLC CONCESSION FOR
THE APPROVED RESIDENTIAL PROJECT
RECOMMENDATION(S)
Adopt a resolution approving the applicant's request of a concession to the City's Objective Residential Development Design and Development Standards pursuant to California Density Bonus Law (Gov. Code §65915).
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Strategic Priorities 2026-2027
Fiscal Sustainability
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:
PROJECT
On October 28, 2025 the Peebles - Peebles Square project received approval of Planning entitlements for a 20-lot Vesting Subdivision Map, Design Permit, and associated environmental review for the development of 20 attached residential units on an approximate 0.9-acre lot located on the northeast corner of Monterey Road and Peebles Avenue (APN:726-41-065). The units are dispersed between four townhomestyle buildings (consisting of a 7-plex, 5-plex, and two 4-plex structures) with associated common open space and site improvements (project webpage with plans). The project met the required affordable commitment per the Inclusionary Housing Ordinance (IHO) and qualified for a density bonus under State law, making the project eligible for concessions and waivers. The approved project included the following waivers:
• Reduced Open Space
• Reduced Parking for two units
• Reduced utility easement
• Reduced front and side yard setbacks
• Reduced landscaping
6 • Modified daylight plane
CONCESSION REQUEST
There are overhead utility lines adjacent to the south property line of the project site along Monterey Road and Peebles Avenue. While overhead utilities can include PG&E lines, telephone lines, and cable television or fiber optic communication cables, the overhead utility lines are communication lines only - owned by Frontier and Spectrum.
Based on the affordability level provided in the project, a single concession may be granted. The applicant is requesting a concession to eliminate the requirement to underground existing overhead utility lines. Development Standards require all utility distribution and service connections be placed underground. This also includes existing overhead utilities adjacent to any site boundary, within the project site, or along any street frontage. The applicant proposes not to underground any existing overhead utilities as part of the project, estimating cost savings at a minimum of $600,000.
ANALYSIS
Under Government Code §65915(d)(1), the City must grant requested concessions unless it can make specific written findings, supported by substantial evidence, that the request would:
1. Not result in identifiable and actual cost reductions, consistent with Government Code §65915(k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Government Code §65915(c).
2. Have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderateincome households; or
3. Be contrary to state or federal law.
Staff has reviewed the request and finds that none of the statutory findings can be made.
COMMUNITY ENGAGEMENT:
The project was duly noticed within the Morgan Hill Times for the October 28, 2025, Planning Commission meeting and notices were mailed to property owners within 300 feet of the site. Prior to the approval of the project in October, staff created a dedicated project webpage on the City's website and the project sign was posted on the site.
ALTERNATIVE ACTIONS:
City Council may deny the applicant's concession request if the Council makes the findings defined in Government Code §65915(d)(1).
6 PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The project's Vesting Tentative Map and Design Permit were reviewed and approved at the Planning Commission Hearing on October 28, 2025.
FISCAL AND RESOURCE IMPACT:
All review costs for this project are funded through the development application fees.
CEQA (California Environmental Quality Act):
The project is exempt from the California Environmental Quality Act (CEQA) pursuant to Assembly Bill 130 (AB130), which provides a statutory exemption for eligible residential development projects.
206 Garden Hill Drive, Los Gatos, CA 95032 I 415.265.1086 I [email protected]
1 MELANIE GRISWOLD
ATTORNEY AT LAW
SBN 234917
VIA EMAIL
Tiffany Brown
City of Morgan Hill Planning Division
17575 Peak Ave
Morgan Hill, CA 95037
[email protected]
December 9, 2025
Re: Updated Density Bonus Letter and Comments on Affordable Housing Obligations for SB330 Design Review & Tentative Map Applications for 20-Unit Townhome Project at 25 Peebles Ave (APN 726-41-065)
SR2024-0009/SD2024-0006/EA2024-0006
Enclosed you will find an updated density bonus letter for the Peebles Square LLC Design Review and Tentative Map applications to develop a .90 gross acre site at 25 Peebles Avenue (APN: 726-41-065) into a 20-unit for-sale townhome project at a proposed density of 22.2 DUs/AC.
Density Bonus Waivers & Reductions of Development Standards Based on the City’s final comments dated August 22, 2025, the applicant is requesting the following waivers and reductions in development standards as permitted under State Density Bonus Law. Because the application of these development standards “will have the effect of physically precluding the construction of a development…at the densities permitted…”, the City must waive the above-noted standards unless doing so “would have a specific and adverse impact upon health or safety, and for which there is no feasible methods to satisfactorily mitigate or avoid the specific adverse impact.” (Gov.
Code § 69515(e)(1).)
2 Waiver #1: Common Open Space
Development Standard: 140 SF of Common Open Space per Unit.
Waiver Requested: Decrease the amount of Common Open Space to 100 SF per Unit.
Justification: If an additional 1,000 SF of Common Open Space were provided, it would require the applicant to lose two (2) units.
3 Waiver #2: Private Open Space
Development Standard: 60 SF of private open apace per Unit.
Waiver Requested: Eliminate the private open space for Plan C.
Justification: If Plan C were required to include the 60 SF balcony, it would eliminate a bedroom in that unit.
4 Waiver/Reduction of Development Standards #3: Covered Parking Spaces Development Standard: 2 covered parking spaces per unit are required.
Relief Requested: Decrease the number of covered parking spaces for 2 of the units to 1 space per unit.
Justification: Without decreasing the width of the townhomes along Peebles Ave, it was impossible to meet the 26’ fire access requirements and provide sufficient access for utilities. The applicant was accordingly required to reduce the width of two units, which then made it impossible to provide 2 covered parking spaces in those units.
Because non-compliance with the fire access requirements and/or not having sufficient room to access utilities would have precluded approval and construction of the units, this is a development standard that is subject to a waiver. See diagram below illustrating how the previously proposed row of townhomes along Peebles did not meet the 26’ minimum drive aisle width.
5 Waiver/Reduction of Development Standards #4: Reduction in Utility Easement to 7’ Development Standard: 10’ Public Utility Easement.
Relief Requested: Decrease the width of the easement to 7’.
Justification: Increasing the utility easement to 10’ would require the entire project to be pushed back by 3’. This would eliminate the units along the frontage of the requested easements. The civil engineer has confirmed that the 7’ easement as proposed should be sufficient to safely service the Project and to provide for future utilities.
6 Waiver/Reduction of Development Standards #5: Permit Encroachments in Front Setback Development Standard: 15’ front setback along Peebles is required for zoning compliance; 30’ front setback where adjacent to arterial streets is required for Monterey from the design guideline handbook.
Relief Requested: Allow front porches and buildings to encroach into front setbacks.
Justification: Not allowing the encroachment would eliminate 10 of the 12 units as designed on Monterey and Peebles.
7 Waiver/Reduction of Development Standards #6: Reduction in Interior Side Yard Setback (North PL) Development Standard: 15’ transitional setback is required on interior side yard.
Relief Requested: Decrease the setback to 5.5’ on north property line.
Justification: Enforcing the 15’ setback on the north property line would eliminate the three units as designed on that property line.
8 Waiver/Reduction of Development Standards #7: Eliminate Daylight Plane on Interior Side Yard Setback (North PL)
Development Standard: Daylight plane at 25’ from minimum required setback extending at 45 degrees from required setback.
Relief Requested: Eliminate the daylight plane on the interior side yard setback.
Justification: Enforcing a daylight plane at 45 degrees from the 15’ setback on the north property line would eliminate the three units as designed on that property line.
9 Waiver/Reduction of Development Standards #8: Reduce required landscaping under MHMC §
18.92.130
Development Standard: A landscaped planting area is required that extends a minimum of 10’ from the property line along all residential property lines.
Relief Requested: Reduce the 10’ minimum along the side property lines and eliminate it along the rear property line.
Justification: Enforcing larger landscaped areas would eliminate 3 of the units as designed on the side setback and it would also intrude into the required fire truck turnaround.
10 Density Bonus Incentives and Concessions
The applicant is requesting an incentive under State Density Bonus Law (“SDBL”) for relief from the undergrounding requirement of utilities as set forth below:
Incentive #1: Relief from Undergrounding of Utilities
Development Standard: Design and Development Standards Nos. 47 and 48 both require undergrounding of utilities.
Incentive Requested: Relief from any requirement that the Applicant underground existing utilities or new utilities along the project frontage.
Justification: Each pole that needs to be placed underground comes at an approximate cost of $100,000. There are currently 6 poles that would need to be undergrounded, which, if it can be avoided, would result in a savings of approximately $600,000 to the project. ********
We appreciate the City’s support so far and we look forward to receiving an expeditious approval consistent with the requirements under State housing laws. Aside from the City’s legal obligation to grant the requested waivers, it is important to note that the Project provides high-quality affordable housing units at no public cost and adds ownership housing options for moderate-income earners who are priced out of the single-family residential market.
We look forward to your comments. If you have any questions or need any further information, I can be reached at 415-265-1086 or [email protected].
Kind regards,
Melanie Griswold
RESOLUTION NO. 26-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MORGAN HILL APPROVING ONE CONCESSION FOR
THE PEEBLES – PEEBLES SQUARE PROJECT
CONTAINING 20 ATTACHED TOWNHOME-STYLE
PROJECT LOCATED ON THE NORTHEAST CORNER OF
MONTEREY ROAD AND PEEBLES AVENUE (APN:726-41-
065)
WHEREAS, on March 28, 2024, Peebles Square, LLC submitted an application for a Vesting Tentative Map and Design Permit to develop the Peebles – Peebles Square residential project consisting of 20 single-family attached townhome-style condominiums on an 0.9-acre site; and
WHEREAS, the project commits to meet the City’s Inclusionary Housing Ordinance by constructing two below-market-rate units and paying the in-lieu fee for the remainder unit; and WHEREAS, such request was reviewed and approved by the Planning Commission at their regular meeting on October 28, 2025; and
WHEREAS, Peebles Square, LLC requested one concession for the residential project; and
WHEREAS, pursuant to Government Code Section §65915, known as Density Bonus Law, the project is allowed one concession with unlimited waivers; and WHEREAS, the City shall grant the concession requested by the applicant unless the City makes a written finding, as required by Government Code Section 65915(d)(1), based upon substantial evidence, of any of the following:
1. The reduction of the development standard would not result in identifiable and actual cost reductions, consistent with Government Code §65915(k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be st as specified in Government Code §65915(c);
2. The reduced development standard would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households; or
City of Morgan Hill
Resolution No. 26-XX
3. The reduction would be contrary to state or federal law.
WHEREAS, the City shall grant the following concession as requested by the applicant:
Concession:
Undergrounding of Utilities – concession from undergrounding overhead utilities adjacent to any site boundary, within the project site, or along any street frontage.
WHEREAS, the proposed project located on the northeast corner of Monterey Road and Peebles Avenue as identified by Assessor’s Parcel Number 726-41-065 will construct the public benefit of 10% affordable units for qualifying persons and families incorporated within the Peebles – Peebles Square project and pay the remaining 5% in-lieu fee to achieve 15% affordability to comply with City IHO requirements.
NOW, THEREFORE, THE MORGAN HILL CITY COUNCIL DOES RESOLVE AS FOLLOWS:
SECTION 1. The City Council does hereby find that the foregoing recitals are true and correct.
SECTION 2. The project is consistent with the Zoning Ordinance and General Plan.
SECTION 3. The project is eligible for the proposed concession pursuant to Government Code Section §65915.
SECTION 4. The City Council of the City of Morgan Hill hereby approves one concession for the Peebles – Peebles Square project.
SECTION 5. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED by the City Council of Morgan Hill at a Regular Meeting held on the 6 th day of May 2026 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
City of Morgan Hill
Resolution No. 26-XX
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.26-XX adopted by the City Council at the meeting held on ____________, 2026.
WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL DATE: _____________________ ___________________________________ MICHELLE BIGELOW, City Clerk
7 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Manager
APPROVE UPDATED ADA SELF-EVALUATION AND TRANSITION
PLAN
RECOMMENDATION(S)
Approve the City of Morgan Hill 2026 ADA Self-Evaluation and Transition Plan.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Supporting our Youth, Seniors, and Entire Community
REPORT NARRATIVE:
The City of Morgan Hill has completed a comprehensive update to its Americans with Disabilities Act (ADA) Self-Evaluation and Transition Plan. This plan identifies physical barriers to accessibility in City facilities and the public right-of-way and establishes a prioritized schedule for their removal. Approval of this plan ensures the City remains in compliance with federal Title II requirements and continues to improve accessibility for all residents.
In early 2025, the City awarded a professional services contract to Bureau Veritas to perform a citywide evaluation of facilities, parks, and streets. The previous transition plan required updating to reflect current infrastructure conditions and evolving accessibility standards. The completed draft has undergone internal review and a public comment period held from March 30, 2026, through May 1, 2026. The draft plan can be accessed at the link below (which was previously provided to the Council for advance review):
https://www.morganhill.ca.gov/DocumentCenter/View/56879/City-of-Morgan-Hill---DraftADA-Self-Evaluation-and-Transition-Plan-Report-3-5-2026 The 2026 Plan provides a detailed inventory of necessary upgrades across various Cityowned assets, including the Centennial Recreation Center and local park systems. By adopting this Plan, the City establishes a formal framework for barrier removal, which is a legal prerequisite for maintaining eligibility for various state and federal infrastructure grants as well as protecting itself legally while barriers are removed.
7 A foundational element of this updated Transition Plan is the integration of a citywide sidewalk and curb ramp assessment. This assessment was conducted by IMS Infrastructure Management Services and utilized for the development of the Plan. This approach has supported the external development of this Plan, while simultaneously allowing for the development of internal planning data to be integrated into the City's maintenance asset management and work order system.
COMMUNITY ENGAGEMENT:
Inform/Consult
Community input was an included component in identifying barriers and establishing remediation priorities. City staff and the consulted team solicited public input via online survey from August 19 to September 19, 2025. Survey results are included in Appendix B of the Plan. The draft plan was made available for public review from March 30, 2026, through May 1, 2026 on the City website.
ALTERNATIVE ACTIONS:
The City Council could choose to decline to adopt the Plan. This would leave the City without a current, federally-mandated Transition Plan, potentially jeopardizing eligibility for state and federal transportation grants and increasing the City's exposure to ADArelated litigation. The Council could also choose to provide staff with input on the Plan and direct staff to return with modifications.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On February 5, 2025, the City Council approved a professional services agreement with Bureau Veritas to conduct a comprehensive Citywide ADA Self-Evaluation and Transition Plan update.
On November 15, 2023, the City Council approved a consultant agreement with IMS Infrastructure Management Services for a sidewalk assessment.
FISCAL AND RESOURCE IMPACT:
The removal of all identified physical accessibility barriers for buildings, parks, and pedestrian facilities in the public right-of-way in the City of Morgan Hill system is estimated to cost $15.9 million. While this number appears daunting, staff are working to incorporate improvements into various existing funding areas to implement them in conjunction with existing projects. Areas where project funds have been identified, include:
• Facility Maintenance Budgets: Utilizing existing project budgets for routine building repairs to include ADA corrective work.
• In-House Labor: Leveraging existing facility, park, and street maintenance staff to perform "low-cost/high-impact" removals.
7 • Annual Sidewalk Replacement: Directing funding from the annual sidewalk replacement project specifically toward sidewalk repairs and curb ramp upgrades.
• Pavement Project Coordination: Utilizing pavement project funding to install updated curb ramps simultaneously with scheduled resurfacing projects to maximize efficiency.
• Parks and Recreation Capital Projects: Using the Park Renovation and Expansion and Recreation Facility Renovation and Expansion CIP funding to support the ADA upgrades identified at the Recreation Facilities.
Staff intend to work through the upcoming fiscal year to incorporate improvements into the planning for all these areas and report progress annually. City Facility improvements totaling an estimated $3.7 million must be implemented over 10 years and public rightof-way improvements totaling an estimated $12.2 million must be completed over the next 20 years.
CEQA (California Environmental Quality Act):
Not a Project
The approval of the ADA Transition Plan is not a project under the California Environmental Quality Act (CEQA) as it is an administrative planning document.
Individual capital projects identified within the Plan will undergo specific environmental review at the time of implementation.
City Council
Meeting Minutes
Mark Turner - Mayor
Marilyn Librers - Mayor Pro Tem
Soraida Iwanaga - Council Member
Yvonne Martínez Beltrán - Council Member
Miriam Vega - Council Member
Wednesday, April 15, 2026
5:00 p.m. Closed Session
6:00 p.m. Regular Session
Council Chamber Building
17555 Peak Avenue, Morgan Hill, CA 95037
SPECIAL/REGULAR MEETING
A special meeting of the City Council was called at 5:00 p.m. for the purpose of conducting a closed session.
SPECIAL MEETING
5:00 p.m. Closed Session
CALL TO ORDER
Mayor Turner called the City Council meeting to order at 5:02 p.m.
ROLL CALL ATTENDANCE
Deputy City Clerk Rossi called the roll.
PRESENT Mark Turner, Marilyn Librers, Soraida Iwanaga, Yvonne Martinez Beltran, Miriam Vega
ABSENT None
Council Member Vega arrived at 5:45 p.m.
April 15, 2026
2 DECLARATION OF POSTING AGENDA
Deputy City Clerk Rossi declared the posting of the agenda.
CLOSED SESSION
City Attorney Larkin announced the closed session items.
Conference with Legal Counsel—Existing Litigation (§ 54956.9) Berns v. City of Morgan Hill, Santa Clara County Superior Court Case No. 25-CV472644 Conference with Legal Counsel—Anticipated Litigation
Initiation of Litigation pursuant to § 54956.9(c)
(Unknown Number of Cases)
Conference with Legal Counsel—Anticipated Litigation
Significant Exposure to Litigation pursuant to § 54956.9(b) (One Case)
OPPORTUNITY FOR PUBLIC COMMENT ON CLOSED SESSION
Public comment opened at 5:02 p.m. With no requests to speak, public comment closed.
ADJOURN TO CLOSED SESSION
The meeting adjourned to closed session at 5:02 p.m.
REGULAR MEETING
The regular meeting convened at 6:04 p.m.
SILENT INVOCATION
PLEDGE OF ALLEGIANCE
RECOGNITIONS
Library, Culture, and Arts Commissioner Mark Fiorenza
Parks and Recreation Commissioner Shweta Maniar
Visit Morgan Hill, Executive Director Krista Rupp
City Attorney Donald Larkin
PROCLAMATIONS
April 15, 2026
3 American Red Cross Month
Parkinson’s Awareness Month
American Muslim Appreciation & Awareness Month
PRESENTATIONS
YAC Presentation - Developmental Asset #9: Service to Others
CITY COUNCIL REPORTS
Mayor Pro Tem Librers shared that she attended a luncheon hosted by Assemblywoman Gail Pellerin where two Morgan Hill women were honored as Women of the Year, the Mayor’s State of the City and volunteered at Live Oak High School’s Rock the Mock event. She also attended the Youth Task Force meeting, chaired the Santa Clara County Habitat Agency meeting, participated in a Silicon Valley at Home meeting, and served on a State Committee focused on service for communities. She attended the Donate Life flag-raising ceremony, noting it was especially personal as she spoke about her experience with organ donation.
CITY MANAGER'S REPORT
City Manager Turner shared that the Dennis Kennedy Morgan Hill Aquatics Center hosted the Far Western Championships, bringing over 1,000 athletes and 3,000 spectators to Morgan Hill and generating increased activity for local hotels and restaurants. She also provided an update on the Upper Llagas Creek Flood Protection Project, noting the closure of Hale Avenue through December 2026 for construction improvements, and announced that the next regular City Council meeting will be held on May 6.
CITY ATTORNEY'S REPORT
City Attorney Larkin shared that the Council met in closed session earlier in the evening on three items and there were no reportable actions.
OTHER REPORTS
Council Member Vega recognized and welcomed her students who attended the meeting.
Council Member Iwanaga shared that she volunteered at an Easter Sunday event hosted by the Edward Boss Prado Foundation, serving first responders and senior citizens. She expressed that she was honored to have participated in the event.
Council Member Martinez Beltran shared that she participated in Rock the Mock at Live Oak High School and attended an ABAG Housing Committee meeting. She also attended a Silicon Valley Clean Energy Board meeting, a VTA PAC meeting, and a Cal Cities Peninsula Division meeting. She volunteered at the Wildflower Run, highlighting
April 15, 2026
4 strong community involvement, and noted the upcoming Cal Cities Leaders Summit in Sacramento.
Mayor Turner shared that he attended a Cities Association - Legislative Action Council meeting; a Finance, Audit, and Administration Committee meeting (which is a subcommittee of VTA); and also a VTA Board meeting.
PUBLIC COMMENT FOR ITEMS NOT ON THE AGENDA
Public comment opened at 6:55 p.m. The following people were called to speak:
Gabby Crescini
Brain Sullivan
With no further requests to speak, public comment closed.
ADOPTION OF AGENDA
MOTION:
Adopting the agenda as posted.
RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Council Member Vega
AYES: Mayor Turner, Mayor Pro Tem Librers, Council Member Iwanaga, Council Member Martinez Beltran, Council Member Vega
NAYS: None
ABSTAIN: None
CONSENT CALENDAR
Items appearing on the Consent Calendar are considered routine and may be approved by one motion. Pursuant to City Council Policies and Procedures (CP 97-01), any member of the Council or public may request to have an item removed from the Consent Calendar for comment and action.
MOTION:
Approving the consent calendar items 1 and 3.
RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Mayor Pro Tem Librers
AYES: Mayor Turner, Mayor Pro Tem Librers, Council Member Iwanaga, Council Member Martinez Beltran, Council Member Vega
NAYS: None
April 15, 2026
5 ABSTAIN: None
1. ACCEPTANCE OF 2025 MORGAN HILL WATER MAIN REPLACEMENT
PROJECT
Recommendation:
1. Accept as complete the 2025 Morgan Hill Water Main Replacement Project;
2. Authorize the City Engineer to execute the Notice of Completion; and
3. Direct the City Clerk to file said Notice of Completion with the County Recorder's Office.
3. APPROVE THE APRIL 1, 2026 CITY COUNCIL MEETING MINUTES Recommendation:
Approve the April 1, 2026 City Council Meeting Minutes.
ITEMS PULLED FOR DICUSSION
2. APPROVE MONTEREY - AMG & ASSOCIATES CONCESSIONS FOR A 100%
AFFORDABLE PROJECT
Recommendation:
Adopt a resolution approving the applicant's request of five concessions to the City's Objective Residential Development Design and Development Standards pursuant to California Density Bonus Law (Gov. Code §65915).
Senior Planner Brown provided a report.
Public comment opened at 7:30 p.m. Speaker Gene Broussard (Zoom) was called to speak.
With no further requests to speak, public comment closed.
MOTION:
Approving the recommended actions.
RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Mayor Turner
AYES: Mayor Turner, Mayor Pro Tem Librers, Council Member Iwanaga, Council Member Martinez Beltran, Council Member Vega
NAYS: None
April 15, 2026
6 ABSTAIN: None
The meeting recessed at 7:49 p.m. and reconvened at 7:54 p.m.
OTHER BUSINESS
4. APPROVE REIMBURSEMENT AGREEMENT WITH THE LUMBERYARD
DEVELOPER FOR COMPLETION OF TENANT IMPROVEMENTS AT THE
FUTURE CITY-OWNED NON-PROFIT CENTER BUILDING
Recommendation:
Authorize the City Manager to execute and administer a reimbursement agreement with the MH Lumberyard 49, LLC. for the design and construction of tenant improvements at the future City-owned office space at 17020 Depot Street.
Public Services Director Ghione provided a report.
Public comment opened at 8:09 p.m. Doug Muirhead was called to speak.
With no further requests to speak, public comment closed.
MOTION:
Approving the recommended actions.
RESULT: Passed
MOVER: Council Member Martinez Beltran
SECONDER: Mayor Pro Tem Librers
AYES: Mayor Turner, Mayor Pro Tem Librers, Council Member Iwanaga, Council Member Martinez Beltran, Council Member Vega
NAYS: None
ABSTAIN: None
FUTURE COUNCIL INITIATED AGENDA ITEMS
Council Member Martinez Beltran requested a discussion on revisiting objective standards, including operational open space storage, the impact of balconies on public health and safety, and the undergrounding of utilities.
Mayor Pro Tem Librers requested a discussion to obtain a complete list of development projects completed by AMG and Associates in order to review them and evaluate potential needs for storage and related considerations.
ADJOURNMENT
There being no further business, Mayor Turner adjourned the meeting at 8:13 p.m.
April 15, 2026
7 Minutes Prepared by:
Vicky Rossi, Deputy City Clerk
9 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Chris Ghione, Public Services Director
APPROVED BY: City Manager
AUTHORIZE AMENDMENT TO THE CENTENNIAL RECREATION
CENTER OPERATING AGREEMENT WITH THE YMCA OF SILICON
VALLEY FOR AN ADDITIONAL 5-YEAR TERM
RECOMMENDATION(S)
Authorize the City Manager to execute an Amended and Restated Centennial Recreation Center Operating Agreement with the YMCA of Silicon Valley to extend the partnership through June 30, 2031.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Supporting our Youth, Seniors, and Entire Community
Promoting a Healthy Community
Strategic Priorities 2026-2027
Fiscal Sustainability
Guiding Documents
Bikeways, Trails, and Recreation Master Plan
REPORT NARRATIVE:
The City of Morgan Hill has partnered with the YMCA of Silicon Valley for the operations of the Centennial Recreation Center (CRC) since the facility opened in 2006. This year marks 20 years of partnership at the CRC, with the original partnership agreement being executed on June 29, 2006, with the Centennial Recreation Center holding its official opening on October 28, 2006. This long-standing partnership leverages the YMCA’s expertise in membership-based health/fitness programming and grant funding for the senior nutrition program, with the City's expertise in managing aquatics and community service/recreation programming. It also ensures the City is able to operate and maintain its facilities as a coordinated system responsible to Morgan Hill residents and the City Council, while recovering costs across the system.
Proposed Amended and Restated Agreement
This agreement consolidates the original 2006 agreement and its seven subsequent amendments and side letters into a single restated document. Key provisions include:
9 • Term Extension: The agreement extends the partnership for an additional five years, terminating on June 30, 2031. This is the only material update to the agreement.
• Financial Structure: The agreement continues the model established in the Seventh Amendment, which eliminated the risk/reward profit-sharing function.
The City will reimburse the YMCA for direct expenses plus an 18% administrative overhead rate, up to the approved annual budget.
• Santa Clara Family Health Plan (SCFHP): This section addresses collaboration for SCFHP members, including a per-visit payment from the YMCA to the City and administrative support for these memberships.The SCFHP has supported increased community use and increased revenue for the City/facility. • Updated Operating Plan (Attachment 2): The 2026 Center Operating Plan (COP) updates staffing hierarchies, marketing strategies, and establishes a target of October 2026 to develop a new co-branded theme for the facility.
Partnership Evaluation
Per the City’s Partnership Agreement, an evaluation was conducted prior to this proposed extension. This evaluation is included as Attachment 3. Key findings include:
• Membership Recovery: The CRC has recovered to approximately 85% of its 2019 peak membership prior to the COVID-19 Pandemic, a rate that exceeds all other YMCA of Silicon Valley branches.
• Member Satisfaction: In a July 2025 survey, 91% of members rated the facility overall as "excellent" or "good.”
• Senior Services: The Senior Center sees an average daily attendance of over 135 visits, with the nutrition program serving an average of over 90 lunches per day.
• Fiscal Performance: The Parks and Recreation Division has consistently exceeded budget expectations post-pandemic, with recent cost recovery resulting in a net impact of less than $1 million and an even lower budgeted net impact for FY 2026-27.
COMMUNITY ENGAGEMENT:
Consult/Involve
Community engagement for the Centennial Recreation Center and partnership occurs on an ongoing basis. It includes annual membership surveys, with the most recent July 2025 results showing that 91% of members rate the facility as "excellent" or "good.” Additionally, customer comment cards (hard copy and online) are regularly received and utilized to gauge user wants/needs as well as support timely response to concerns. The management team at the CRC is also able to utilize the Listen 360 platform (a YMCA tool) to track satisfaction, maintaining a "Net Promoter Score" of 80 which exceeds the national fitness industry average.
ALTERNATIVE ACTIONS:
9 If the City Council chooses not to approve the Amended and Restated Agreement, the current partnership will terminate on June 30, 2026. In this scenario, the City would need to identify an alternative service model for health, fitness, and senior services or assume full responsibility for all Centennial Recreation Center operations and staffing.
This action is not recommended.
The City Council could also choose to approve the amendment, but provide staff additional direction on operations as part of this item or through the budget process.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
The City Council approved the original partnership operating agreement in June 2006.
The City Council subsequently approved seven previous amendments to this agreement from 2010 to 2021, the most recent seventh amendment occurring in August 2021.
FISCAL AND RESOURCE IMPACT:
The City shall pay the YMCA for direct costs and an 18% administrative overhead rate up to the amount approved in the annual budget process. Future payments will continue to be determined through the annual budget process, with the majority of expenses offset by CRC-generated revenue. Operation of the Teen Center and City-provided support in the Senior Center are partnership elements that are not offset. The agreement provides that expenses will be established within the City's budget, so ultimate approval of funding levels for the YMCA rests within the City's budget process.
CEQA (California Environmental Quality Act):
Not a Project
This action is an administrative program that will not result in a physical change to the environment and therefore does not constitute a project under CEQA.
1 CITY OF MORGAN HILL AND
YMCA
COMMUNITY RECREATION CENTER OPERATING
AMENDED AND RESTATED AGREEMENT
This Agreement ("Agreement") is made this ___ day of _______, 2026 ("Effective Date"), by and between the City of Morgan Hill, a California general law city ("City"), and the YMCA of -Silicon Valley, a California non-profit corporation ("YMCA") for operations of the Centennial Recreation Center ("CRC") located at 171 W Edmundson Avenue, Morgan Hill, California.
Recitals
WHEREAS, CITY and YMCA entered into the Original Community Recreation Center Operating Agreement (“Original Agreement”) made as of June 29, 2006 for operating the CRC.
WHEREAS, CITY and YMCA entered into the First Addendum to the Original Agreement on October 5, 2010 ("First Addendum"). WHEREAS, CITY and YMCA entered into the Second Addendum to the Original Agreement on December 23, 2015 ("Second Addendum").
WHEREAS, CITY and YMCA entered into the Third Amendment to the Original Agreement on April 4, 2016 ("Third Amendment").
WHEREAS, CITY and YMCA entered into the Fourth Amendment to the Original Agreement on September 21, 2016 ("Fourth Amendment").
WHEREAS, CITY and YMCA entered into the Fifth Amendment to the Original Agreement on December 22, 2016 ("Fifth Amendment") and a Side Letter on March 8, 2018.
WHEREAS, CITY and YMCA entered into the Sixth Amendment to the Original Agreement on June 27, 2020.
WHEREAS, CITY and YMCA entered into the Seventh Amendment to the Original Agreement on August 16, 2021 ("Seventh Amendment") and a Side Letter on August 4, 2022.
WHEREAS, CITY and YMCA desire to amend and restate the Original Agreement, First Addendum, Second Addendum, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment and side letters.
WHEREAS, CITY the City owns the newly constructed CRC, an approximately 57,000 square foot community recreation center which includes fitness rooms, gymnasium, an indoor swimming pool, a senior wing and a teen wing.
The YMCA is experienced in operating health and fitness facilities and is interested in expanding its programs in the Morgan Hill area.
WHEREAS, the City currently operates an Outdoor Aquatics Center, a Community Cultural Center and other certain recreational facilities and programs.
2 WHEREAS, the parties believe they can maximize the programs offered and better control the expenses of operating the CRC if the City, using City employees and contract service to operate the facility and provide certain programming while the YMCA, using YMCA employees, provides health and fitness and other certain programming at the CRC.
WHEREAS, the City and YMCA desire to take advantage of the YMCA's experience in offering membership-based health and fitness programming while ensuring that the City remains responsible to the City Council and the residents of Morgan Hill for the CRC's operations including its financial performance.
WHEREAS, the parties desire to set forth the terms and conditions of their relationship in this Agreement with further details of the actual CRC operations to be set forth in a Center Operating Plan. The Center Operating Plan ("COP") is attached to this Agreement as Exhibit A; however it is intended that specific services provided by each party and the operating relationships may change over the course of this Agreement in order to meet community needs.
WHEREAS, the City and YMCA commit themselves to work together in the spirit of partnership for the success of the CRC, subject to the terms and conditions of this Agreement, and to deal with each other with fairness, respect, cooperation, and good faith in the operation of the CRC and performance of this Agreement. The City and YMCA commit to promptly resolve disputes over this Agreement and/or CRC operations.
NOW THEREFORE, the parties agree as follows.
Agreement
1. Parties to the Agreement.
City is the City of Morgan Hill, 17555 Peak Avenue, Morgan Hill, California 95037, with its principal contact for purposes of this Agreement as follows:
City Manager
17555 Peak Avenue
Morgan Hill, CA 95037
Phone: 408-779-7271
Fax: 408-779-1592
YMCA is the YMCA of Silicon Valley, 550 S Winchester Blvd, Suite 250 San Jose, California 95128, with its principal contact for purposes of this Agreement as follows:
President and CEO,
YMCA of Silicon Valley
550 S Winchester Blvd, Suite 250
San Jose, CA 95128
Phone: 408-351-6413
3 Fax: 408-298-0413
2. Term.
2.1 The term of this Agreement shall commence on the Effective Date and shall terminate on June 30, 2031, unless earlier terminated by either party as provided in Section 2.2 or extended as provided in Section 2.3.
2.2 In addition to the provisions of Section 5.6 and 5.7 below, either party may request an early termination of this Agreement after June 30, 2009. Such a request must be made in writing, and must be made a minimum of six months in advance of proposed termination date, unless City and YMCA mutually agree to a lesser time.
Provided that such written request is timely made, termination shall occur upon the specified termination date.
2.3 This Agreement may be extended for two additional five-year terms upon the written mutual agreement of the parties which agreement must be reached no later than December 31, 2010, for the first extension, and February 6, 2016 for the second extension, for the second extension. The parties may mutually agree to additional extensions beyond this date. Prior to each extension, the parties shall prepare an evaluation of the success of CRC operations and present it to the City Council and YMCA. Criteria for this evaluation are provided in the COP.
4 3. Management and Staffing.
3.1 City and YMCA agree to cooperatively manage and operate the CRC as a first class recreation center for the benefit of the public. A "Recreation Manager," or other classification as determined by the City, shall be employed by the City and responsible for all CRC operations. The COP is attached to this Agreement as Exhibit A and is incorporated into this Agreement by this reference. The COP, among other things, details staff duties and operating relationships. The parties hereby authorize the Morgan Hill City Manager ("City Manager") and YMCA of Santa Clara Valley CEO ("CEO") to modify in writing the COP from time to time as may be necessary to facilitate efficient operations of the CRC consistent with the intent of this Agreement.
3.2 The Recreation Manager shall be employed by the City. The City shall provide the YMCA with opportunities for meaningful and substantial input on the selection and ongoing performance of the Recreation Manager. The Recreation Manager shall have operational authority for the management and operation of the CRC, the duties and responsibilities of the Recreation Manager shall include, but not be limited to:
a. Managing the CRC so that it is developed and maintained as a first class recreational center.
b. Preparing and administering the annual budget and work plan for development and operation of the CRC.
c. Preparing the annual progress report for the preceding fiscal year for approval by the City Council.
d. Organizing, scheduling, and directing YMCA and City employees assigned to the CRC.
e. Reporting on status of operations at the CRC as requested. f. Performing all duties that are usual and customary and normally associated with the position of a recreation manager of a public recreation center.
3.3 Notwithstanding the parties' agreement to cooperatively manage and operate the CRC, City employees working at the CRC are employed solely by the City, and the City retains all responsibilities associated with their employment YMCA employees working at the CRC are employed solely by the YMCA, and the YMCA retains all responsibilities associated with their employment. The parties agree to cooperate fully with each other in resolving any employment issues. The YMCA agrees to indemnify and hold the City, its agents, officers and employees harmless from any claim or damage resulting from an employment matter involving a CRC YMCA employee acting within the scope of employment The City agrees to indemnify and hold the YMCA, its agents, officers and employees harmless from any claim or damage resulting from an employment matter involving a CRC City employee acting within the scope of employment.
3.4 Performance issues on the part of the Recreation Manager may be raised by either party and addressed through the dispute resolution process provided for in Section
5 11.1 of this Agreement.
3.5 The CRC staff shall be comprised of employees of both the City and the YMCA. It is acknowledged and agreed between the parties that to achieve the optimum performance of the total CRC staff, City employees may be directed to work at the CRC on YMCA activities within the scope of this Agreement and YMCA employees may be directed to work at the CRC on City activities within the scope of this Agreement.
3.6 The City Assistant City Manager/Public Services Director and the YMCA Chief Operating Officer shall meet periodically to evaluate CRC operations. Reports shall be provide annually to the City Council and the Board of Directors of the YMCA of Silicon Valley on member satisfaction data and data on the financial performance of the CRC. The Director and Chief Operating Officer may involve other City and YMCA staff in development of the annual report as desired.
4. Grounds and Facilities.
4.1 The City shall retain title to the grounds, buildings, structures and all other improvements, and its equipment subject to approval of the Recreation Manager, certain equipment owned by the YMCA may be used at the CRC; provided, however, any such equipment must be identified in a writing attached to the COP and the equipment must be clearly marked as YMCA property on the equipment itself.
4.2 The City and YMCA agree that both parties shall continue joint use of the grounds, buildings, equipment and other improvements at the CRC in furtherance of this Agreement. The Recreation Manager shall determine the most effective use of the CRC grounds, buildings, equipment and other improvements subject to the approval of the Assistant City Manager/Public Services Director, or such other individual designated in writing by the City Manager, in consultation with the Chief Operating Officer for the YMCA, or such other individual designated in writing by the YMCA CEO.
5. Budget and Funding.
5.1 The parties agree that it is the intent of the arrangement governed by this Agreement that revenues generated by CRC programs and activities will be sufficient to cover operating expenses (including, but not limited to, maintenance and contributions to any capital improvement reserves established in the budget) no later than fiscal year 2008/09. (For purposes of this Agreement, "fiscal year" shall mean the twelve consecutive months beginning July 1 of the year first referenced and ending June 30 of the year last referenced. For example, "fiscal year 2008/09" means the period beginning July 1, 2008 and ending June 30, 2009.)
a. In February of each year, the Recreation Manager and the Executive
6 Director of the Mount Madonna YMCA ("Executive Director") shall develop budget assumptions related to the CRC operating budget for the following fiscal year.
b. Before March 15, or on another mutually-agreed upon date, the Recreation Manager and Executive Director shall develop the preliminary proposed annual CRC operating budget and workplan. The budget will include estimated costs and revenue from health and fitness activities and senior services as well as agreed-upon capital improvement reserves. The YMCA may agree to the preliminary proposed CRC operating budget and workplan or terminate this Agreement subject to the notification provisions of section
5.6. c. The proposed annual budget and work plan will be included in the City Manager's Recommended Budget, which must be submitted to the City Council no later than May 15 each year. Once the City Council has established the annual operating budget, the YMCA may agree to the CRC operating budget or terminate this Agreement subject to the notification provisions of section 5.6.
d. Once the annual budget and work plan is approved by the City Council, that annual budget and work plan shall be implemented by the Recreation Manager for the upcoming fiscal year.
5.2 As part of the initial annual budget, the City shall pay YMCA an agreed-upon amount including direct expenses and overhead for the provision of health and fitness programs at the CRC or other City facilities in support of the CRC membership. The foregoing payments shall be made quarterly, in equal installments, and shall be due by July 15, October 15, January 15 and April 15.
YMCA shall provide the City with reconciliation of actual quarterly expenses by October 31, January 31, April 30, and July 31 each year. Operating expenses to be paid to the YMCA for health and fitness programs shall be established with the adoption of the annual budget and work plan.
5.3 The City and YMCA may agree to a mid-year budget adjustment to the CRC budget in special circumstances including, but not limited to, a significant unexpected expense affecting the CRC operations which could not be reasonably anticipated or controlled.
5.4 The City shall provide YMCA with monthly reports on the operating position of the CRC. Both parties agree to maintain agreed-upon customer service standards and accessibility over the course of the year, while recognizing that operations may change over the year in order to meet financial objectives for CRC operations.
5.5 As part of the annual budget and work plan adoption process, the parties will agree on a method for separately accounting for fee-based activities (health and fitness,
7 aquatics, facility operations) and non-fee-based. There shall be no annual reconciliation process associated with profit sharing. The City shall pay the YMCA for direct costs and administrative overhead up to the amount approved in the annual budget. The Administrative overhead rate utilized in the annual budget for the YMCA shall be 18%.
5.6 In the event that the YMCA does not agree to the annual budget and work plan as approved by the City Council, this Agreement shall terminate. The YMCA will notify the City in writing that this Agreement shall be terminated six months from the date of notification, or on another date as agreed-upon by the parties. Distribution of net operating gain or loss shall be suspended during the six month notice period.
Likewise, the YMCA shall not be obligated to pay a proportional amount of revenue shortfalls, as described in section 5.5, during the six month notice period. The parties acknowledge and agree that such a termination will require a substantial amount of time to accommodate ongoing obligations at the CRC and to enable full separation of responsibilities and obligations of the parties. The parties agree to cooperate reasonably one with the other in such an event to facilitate such a separation as expeditiously as possible. Termination of this Agreement as provided in this Section (with each party bearing its own costs) shall be the sole remedy of the parties.
5.7 In the event that the YMCA objects to the candidate selected by the City for the position of Recreation Manager, either at the initial hire or in future hiring actions, the YMCA may terminate this Agreement by giving the City six months advance written notice. Distribution of net operating gain or loss shall be suspended during the six month notice period. Likewise, the YMCA shall not be obligated to pay a proportional amount of revenue shortfalls, as described in section 5.5, during the six month notice period. The parties acknowledge and agree that such a termination will require a substantial amount of time to accommodate ongoing obligations at the CRC and to enable full separation of responsibilities and obligations of the parties. The parties agree to cooperate reasonably one with the other in such an event to facilitate such a separation as expeditiously as possible.
Termination of this Agreement as provided in this Section (with each party bearing its own costs) shall be the sole remedy of the parties.
6. Programming and Pricing
6.1 The City and YMCA will agree upon programming and pricing as part of the annual budget and work plan process. The initial programming and pricing is as described in the COP. The parties will agree on which existing recreational and fitness programming currently offered by the City or the Mt. Madonna YMCA, if any, will be moved to the CRC.
6.2 The parties acknowledge that the scope of community services offered at the CRC, including youth, family, intergenerational, special event, and adaptive programming, may evolve over time.
8 6.3 Initial program pricing and the pricing philosophy for the CRC are provided in Section 2 of the COP.
6.4 It is intended that the annual City Council approval of the budget and work plan will authorize the City Manager to adjust prices and programming as needed in accordance with a City Council adopted policy or directive.
7. Integration with other Facilities.
The parties agree to discuss and consult on recreational and fitness programs to Morgan Hill residents including, but not limited to, teens and seniors at other City or YMCA owned or operated venues.
8. Senior Services.
8.1 The parties agree that the YMCA will provide senior program services as defined in the COP at the CRC. The YMCA currently has a contract with the County of Santa Clara to provide a Senior Nutrition Site in Morgan Hill. It is anticipated that the YMCA will relocate the Senior Nutrition Site to the CRC. In developing the annual budget, as long as the County pays for the direct costs of the Senior Nutrition Site, there will be no charge to the City for these services. At any time that the County ceases paying the YMCA for a Senior Nutrition Site at the CRC, inclusion of this service and the cost of providing it will be considered as part of the annual budget and work plan.
9. Revenues and Marketing.
9.1 The parties agree that Morgan Hill residents are intended to be the primary beneficiaries of the CRC, although the CRC will be available for the use of non-residents as well. To that end, the parties desire to develop a marketing plan and activity program pricing structure that will accomplish the foregoing goal and will provide adequate revenues to cover annual operating expenditures. The parties also intend to jointly and/or individually seek grants or other sources of funding which may be available to provide existing or expanded services and programs at the CRC. Both parties agree to cooperate fully, one with the other, in such endeavors. Implementation of this Section is addressed more fully in the COP.
9.2 The parties agree that there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, disability, national origin, sexual orientation, or ancestry, in any activity or membership offered pursuant to this Agreement
10. Audits, Record Retention and Inspection.
10.1 The parties understand and agree that the City is a public entity and as such is subject to various laws including, but not limited to, the California Public Records Act, and as such members of the public as well as representatives of governmental
9 agencies have access to and the right to examine, audit, excerpt, copy or transcribe any pertinent transaction, activity, or other records of each party relating to this Agreement Such material, including, but not limited to, all pertinent costs, accounting, and financial records shall be retained by each party for a period of at least five (5) years after their creation date.
10.2 Each party grants the other party, at the requesting party's expense, the right to conduct at any reasonable time an audit and re-audit of the books, records and business conducted related to this Agreement and observe the operation of the business so that the accuracy of the above records and any of the invoices for services provided can be confirmed.
10.3 In the event of any dispute between the parties as to financial matters, the parties agree, as their sole remedy, to mutually choose an independent auditor to conduct an investigation of the disputed matter. If the parties are unable to mutually choose an independent auditor, each party shall identify one auditor and those two auditors shall choose a third, independent auditor to conduct the investigation. The auditor so named shall be deemed to have been mutually chosen by the parties.
If, as a result of the investigation of the mutually chosen auditor, any adjustment in payment is required by either party, such payment shall be made within sixty (60) days of receipt of written demand for same. The decision of the mutually chosen auditor shall be final and binding upon the parties.
10.4 If either party triggers the process set forth in section 10.3 (the "Triggering Event"), that action shall give either party the opportunity to terminate this Agreement by providing the other party six months advance written notice of such desire to terminate. Such option to terminate must be exercised within ninety (90) days of the Triggering Event. The action to terminate this Agreement described in this section is not intended nor shall it adversely affect the process set forth in section
10.3. 11. Dispute Resolution.
11.1 Operational Issues. Except as otherwise specifically set forth in this Agreement, any dispute concerning day to day operational decisions in the implementation of this Agreement as further detailed in the COP shall be resolved by the Recreation and Assistant City Manager/Public Services Director and the Chief Operating Officer of the YMCA. For any disputes which cannot be resolved by these individuals, either party may request that the Morgan Hill City Manager resolve the dispute after first consulting with the YMCA CEO. The decision of the City Manager shall be final.
11.2 Other Issues. Should other disputes arise between the parties for which a dispute resolution mechanism or remedy is not otherwise specifically set forth in this Agreement (such as, for example, in section 10.3), and the parties are unable to resolve such matters between themselves by negotiation after the complaining party has provided the other party written notice of the complaint and a reasonable
10 opportunity to cure the problem, then such disputes shall be resolved in the courts of the County of Santa Clara in accordance with applicable law and procedure, including any claims procedures that may be required by law with respect to a general law city.
11.3 Termination Option. If either party seeks judicial redress of a dispute as set forth in section 11.2 (the "Triggering Event'), that action shall give either party the opportunity to terminate this Agreement by providing the other party six months advance written notice of such desire to terminate. Such option to terminate must be exercised within ninety (90) days of the Triggering Event. The action to terminate this Agreement described in this section is not intended nor shall it adversely affect the process set forth in section 11.2. 12 Indemnification.
12.1 The City agrees to indemnify, defend and hold harmless YMCA, its agents, officer and employees, from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property damage arising from or connected with City's operations or its services under this Agreement, including any Worker's Compensation suits, liability or expense, arising from or connected with services performed by or on behalf of the City by any person pursuant to this Agreement. Clty's duty to indemnify YMCA shall survive the expiration or other termination of this Agreement.
12.2 YMCA agrees to indemnify, defend and hold harmless City, its agents, officer and employees, from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property damage arising from or connected with YMCA's operations or its services under this Agreement, including any Worker's Compensation suits, liability or expense, arising from or connected with services performed by or on behalf of the YMCA by any person pursuant to this Agreement. YMCA's duty to indemnify City shall survive the expiration or other termination of this Agreement
13. Insurance.
13.1 General Requirements. Without limiting YMCA's indemnification of City or limiting City's indemnification of YMCA, YMCA and City shall each provide and maintain at its own expense throughout the term of this Agreement the hereinafter listed programs of insurance covering its operations hereunder. Such insurance provided by YMCA and by City shall be provided by insurers satisfactory to City's Risk Manager and satisfactory to the YMCA's Risk Manager, respectively, and a certificate or other evidence of coverage and certified copies of additional insured endorsements satisfactory to City and YMCA, respectively, shall be delivered to the City's Risk Manager and to the YMCA's Risk Manager, respectively, before the effective date of this agreement. It is recognized that City currently provides
11 general liability, workers' compensation, and auto liability insurance coverage through a combination of self insurance, pooled coverage, and purchased excess insurance coverage. Such evidence of coverage shall specifically identify this Agreement and shall contain the express condition that City or YMCA, as applicable, is to be given at least thirty (30) days advance written notice of any modification or termination of any program of insurance. All such insurance provided by YMCA shall be primary to and not contributing with any other insurance maintained by City. With the exception of workers' compensation insurance, all such insurance provided by YMCA and by City shall name "City of Morgan Hill, its elected officials, officers, employees, agents and representatives" and "YMCA of Santa Clara Valley, its officers, employees, agents, and representatives," respectively, as additional insureds.
At all times during the term of this Agreement, YMCA and City shall provide and maintain the following forms and amounts of insurance:
a. Liability. Comprehensive General Liability Insurance written on a commercial general liability form or on a comprehensive general liability form covering the hazards of premises-operations, products/completed operations, independent contractors, advertising, contractual, broad form of property damage, and personal injury with a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence and an aggregate limit of not less than Four Million Dollars ($4,000,000).. b. Workers' Compensation. Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability.
c. Comprehensive Automobile Liability. Endorsed for all owned, non-owned, and hired vehicles with a combined single limit of not less than Two Million Dollars ($2,000,000) per accident.
d. Failure to Comply. Failure on the part of YMCA or City to procure or maintain required insurance shall constitute a material breach of contract upon which City or YMCA, respectively, may immediately terminate this Agreement Notwithstanding this requirement, in the event that YMCA or City fails to procure or keep in effect at all times the insurance coverage required herein, City or YMCA, respectively, may in its discretion procure said insurance on behalf of YMCA or City, respectively, and charge YMCA or City, respectively, the full cost of the insurance and administrative costs.
13.2 The parties agree and will ensure that all CRC staff are trained in all safety related matters as required by law or appropriate for the services provided at the CRC.
This includes tuberculosis and criminal history checks as part of pre-employment screening, and blood borne pathogens and child abuse prevention training after hire.
14. Notices.
12 Any notice, consent, authorization or other communication to be given shall be in writing and deemed duly given and received when (a) delivered personally, (b) transmitted by facsimile, (c) one business day after being deposited for next-day delivery with a nationally recognized overnight delivery service, or (d) three business days after being mailed by first class mail, charges and postage prepaid, and in all cases properly addressed to the party to receive such notice at the last address furnished for such purpose by the party to whom notice is directed.
In the case of notices to be given to the City, notice shall be addressed as follows:
City Manager
City of Morgan Hill
17555 Peak Avenue
Morgan Hill, CA 95037
Phone: 408-779-7271
Fax: 408-779-1592
With a copy to:
City Clerk
City of Morgan Hill
17555 Peak Avenue
Morgan Hill, CA 95037
Phone: 408-779-7271
Fax: 408-779-3117
In the case of notices to be given to the YMCA, notice shall be addressed as follows:
President and CEO, YMCA of Silicon Clara Valley
550 S Winchester Blvd, Suite 250
San Jose, CA 95128Phone: 408-351-6413
Fax: 408-298-0413
Either party may change its address or other contact information by giving notice in writing to the other party as specified in this section.
15. Amendments.
This Agreement shall only be amended by a writing signed by both parties after approval by the City Council and YMCA Board of Directors.
16. Appropriations.
The payment of any obligations of the City described in this Agreement is subject to the
13 annual appropriation of funds for said payments by the City Council. This provision does not affect any obligation of the City for payment of funds attributable to a fiscal year for which an annual budget has been approved.
17. Miscellaneous Provisions.
17.1 Good Faith and Cooperation. The City and YMCA agree that it is in their mutual best interest and in the best interest of the public that the CRC be operated and managed as herein agreed and, to that end, the parties shall in all instances cooperate and act in good faith in compliance with all of the terms, covenants, and conditions of this Agreement and shall deal fairly with each other.
17.2 Severability. If any provision of this Agreement, or the application of such provision to any party or circumstance, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to such party or circumstance other than those to which it is held to be invalid or unenforceable, shall not be affected thereby.
17.3 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, without regard to that state's conflict of laws principles.
17.4 Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes all prior to contemporaneous written or oral negotiations, correspondence, understandings and agreements between the parties regarding the subject matter hereof.
17.5 Parties in Interest. Nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any party other than the YMCA and the City nor shall anything in this Agreement relieve or discharge the obligation or liability of any third party to any party to this Agreement nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement.
17.6 Waiver. Failure of either party to complain of any action, non-action or default of the other party shall not constitute a waiver of such party's rights hereunder with respect to such action, non-action or default Waiver by the YMCA or City of any right or any default hereunder shall not constitute a waiver of any subsequent default of the same obligation or for any other default, past, present or future.. No payment by a party, or acceptance by the other party, of a lesser amount than shall be due from one party to the other shall be treated otherwise than as a payment on account. The acceptance by a party of a check for a lesser amount, with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and a party may accept such check without prejudice to any rights or remedies which it may have against the other party.
14 17.7 Construction. This Agreement has been negotiated by the parties and their respective legal counsel and will be fairly interpreted in accordance with its terms and without strict construction in favor of or against any party.
17.8 No Assignment. This Agreement, nor any part of it nor any right or obligation arising from it shall be assigned without the express written consent of the parties.
17.9 Independent Contractor Status. The parties shall at all times be acting as independent contractors. This Agreement is not intended, and shall not be construed to create the relationship of agent, servant, employee, partner, joint venture or association as between the parties. The parties understand and agree that any of their personnel furnishing services to the CRC under this Agreement are employees solely of the party which hired such personnel for purposes of workers' compensation liability and for purposes of receiving all other types of employee benefits. The parties shall bear the sole responsibility and liability for furnishing workers' compensation benefits to any personnel hired by them for injuries arising from or connected with services performed under this Agreement, and shall bear the sole responsibility and liability for furnishing all other employee benefits to any personnel hired by them.
18. Membership Reciprocity.
18.1 Effective January 1, 2017, the CRC will no longer sell YMCA Silicon Valley ("YSV") memberships. Also, effective January 1, 2017, CRC memberships will include the benefit of allowing CRC members access to all YSV locations and all YMCAs that have entered into a reciprocity agreement with the YSV ("Reciprocal YMCAs"). In exchange for this benefit, the City shall allow YMCA members who purchase memberships at YSV and Reciprocal YMCA locations to access the CRC at no additional charge. Use of the City's Aquatics Center is not included as part of reciprocal use.
18.2 The Parties agree that the membership reciprocity arrangement as outlined in Section 18 assumes equal use of YMCA facilities by CRC members and vice versa. Additionally, any YMCA member who regularly uses the CRC more than ten times per month and more than his or her home YMCA will be asked to transfer membership to the CRC. Any CRC member regularly using a specific YMCA more than ten times per month and more than the CRC will be asked to transfer membership to the YMCA. All reciprocal use of the CRC and YSV locations and Reciprocal YMCAs will be tracked by the YMCA. The YMCA will share use numbers with the City by the tenth day of July and January each year.
18.3 CRC staff may set limits on attendance or restrict use of the CRC facility or programs for YMCA members in order to provide CRC members with priority use.
YMCA staff may set limits on attendance or restrict use of YSV or Reciprocal YMCA facilities or programs for CRC members in order to provide YMCA members with priority use.
15 18.4 Both parties will monitor use and meet to evaluate and/or modify the terms of this reciprocity arrangement by June 30, 2017. Any modifications to this Section 18 shall be in writing signed by both parties. Notwithstanding Section 11 of this Agreement, both parties have the ability to terminate the membership reciprocity provisions and all terms outlined in this Section 18 by providing written notice to the other party ninety (90) days ahead of the intended termination date.
19. YMCA Santa Clara Family Health Plan Usage.
19.1 The YMCA has entered into an agreement with the Santa Clara Family Health Plan (PLAN) to provide YSV Membership to members of the PLAN. Therefore the, the YMCA agrees to provide the following to the City to compensate the City for the anticipated additional use by YSV Members associated with the Plan:
a. Payment by the YMCA to the City of $7 per visit (as documented by card access swipe) by SCFHP Members. Payment to be made Quarterly. b. Payment by YMCA to City for lost revenue from current CRC members cancelling to join the Plan. Membership shall be paid on an ongoing basis for the term of the agreement at the cancelling individual’s current CRC membership rate.
1. The City shall be responsible for providing the YMCA cancelled memberships and individual rate’s for review against all new YSV memberships not to exceed $11,000.
2. YMCA shall conduct review and make payment quarterly within 30 days of the quarters ending in September, December, March, and June.
19.2 In addition to payment to the City the YMCA shall take on support administrative support responsibilities associated with the YSV membership for the CRC that include the following:
a. YMCA on-site management shall be responsible for membership account issues that are elevated related to the SCFHP memberships. b. YMCA shall have at least one staff person available for membership support between 9am-5pm Monday through Friday each week. Additional member services support (YMCA Solutions Center) will not be reimbursed as part of the Operating Agreement.
c. City staff (3 permanent management employees) granted access to YMCA membership software. Access should be at a level to enable teammates to provide basic customer service for members at the front desk of the CRC (query membership status and other agreed-upon actions).
16 d. YMCA to authorize YMCA memberships team to access the City's real-time CRC membership report to verify membership status.
IN WITNESS WHEREOF, the YMCA and the City have executed this Agreement as of the day and year first above written.
ATTEST: CITY OF MORGAN HILL
City Clerk/Deputy City Clerk City Manager
Michelle Bigelow Christina J. Turner
Print Name Print Name
Date: Date:
APPROVED AS TO FORM: YMCA of Silicon Valley
City Attorney By:
Elisa Tolentino
Print Name
Date: Date:
Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
By:
Date:
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
1 EXHIBIT A
CENTENNIAL RECREATION CENTER OPERATING PLAN
May 2026
The purpose of this document is to outline the operational structure of the YMCA and City partnership for the operation of the CRC. This document is intended to set operational processes and does not allocate liability between the parties. In the event of any inconsistency between this document and the Operating Agreement, the terms of the Operating Agreement shall prevail.
1. Community Recreation Center Management.
a. The City of Morgan Hill and the YMCA of Silicon Valley through the Mt.
Madonna Branch will work together in the spirit of partnership to provide health and fitness and senior services to members and participants of the Centennial Recreation Center. The YMCA will offer an agreed-upon range of programming and will involve the City in hiring, supervising and evaluating all staff that deliver these programs.
b. Personnel
It is recognized that all staff who work at the CRC are members of multiple work teams and are members of one CRC staff team. When staff are working they will be expected to work together as one, high performing team focusing on customer service, safety, communication, and cooperation.
All CRC staff will attend appropriate staff meetings as determined by the Recreation Manager and YMCA Executive Director. YMCA staff will be expected to attend selected YMCA trainings and staff meetings of the branch or Association. City staff will be expected to attend selected City trainings and meetings. When appropriate, CRC staff will have access to selected YMCA and City trainings.
To ensure a team environment, CRC staff will have many items in common:
• Identical staff uniforms and nametags with the partnership logo or co-branded theme.
• Joint staff meetings.
• Identical payroll periods.
• Identical safety and risk management policies within the CRC facility.
• Expectation to work as a team and support all other departments of the CRC.
• Responsibility to identify problems and provide solutions for the entire center.
The Recreation Manager will be hired by the City and will be responsible for providing leadership for all CRC team members in an effort to deliver a large
2 volume of high quality programs. The team will be comprised of three major departments:
• City staff hired by the Recreation Manager.
• City staff hired by the City’s Maintenance Manager.
• YMCA staff hired by the YMCA.
Success of the Recreation Manager will be measured by:
• Creating one high performing CRC staff team from
City CRC, YMCA CRC, and Maintenance Division CRC staff
• Membership income/ number of members enrolled
• Member satisfaction survey results
• Number of seniors served in the Senior Center
• Number of teens served in the Teen Center
• Reaching or exceeding budgeted net for entire center
• Overall facility cleanliness and functioning
• Safety & Risk Management
• Satisfaction of City residents with easy movement between CRC, YMCA, and City Programs
The YMCA Executive Director will be hired by the YMCA and will supervise the Health and Wellness Program Director, Program staff assigned to Health and Wellness, the Senior Nutrition Program, the Teen Center, and the Kid’s Club. The YMCA shall provide all land-based fitness programming.
The YMCA Executive Director shall be responsible for membership retention for these program areas. Water-based fitness classes will be supervised by the City.
The Recreation Manager and YMCA Executive Director are responsible for marketing the membership of the facility in coordination with the City’s Marketing and Communications Supervisor. The Recreation Manager will supervise the sales and service staff who work and oversee the Welcome Desk. They will assure that people can join the facility easily, and will be responsible for all enrollment for CRC programs, City programs, and YMCA programs (if desired by the YMCA in coordination with the YMCA Executive Director).
c. Reporting relationships.
3 CRC City Staff Recreation Manager CRC YMCA Staff
Position Aquatics
Supervisor,
Recreation and
Aquatics
Coordinators,
Maintenance
Specialist,
Senior Center
Coordinator
Recreation Manager Executive Director,
Health and Wellness
Director,
Program Coordinator,
Kids Club Coordinator,
Nutrition Site Manager
Job
Descriptions
City City with YMCA input YMCA with City input
Recruiting City City with YMCA input YMCA with City input Screening City City YMCA of Silicon Valley
Decide
finalists
City City with YMCA input YMCA with City input
Interviews Regular process,
possible YMCA
involvement
Regular process with
a visit to a YMCA
and a near final
interview with City
and YMCA staff
together
Regular process with
City involvement
Decision City City decision with
YMCA input
YMCA decision with
City input
Reports to Recreation
Manager
Assistant City
Manager/Public
Services Director
Mt Madonna YMCA
Branch Executive
Employee
Progressive
Discipline
City with possible
YMCA input
City with possible
YMCA input
YMCA with possible
City input
Performance
Evaluation
Recreation
Manager with
input from YMCA
Assistant City
Manager/Public
Services Director
with input from
YMCA
YMCA with input from
Recreation Manager
d. Staff liaison:
The Mt. MadonnaYMCA Executive Director
• Meet regularly with Recreation Manager to coordinate YMCA programming and services with the CRC (
• Work with Recreation Manager, City Marketing and
Communications Supervisor, and YMCA Marketing and
Communications department on marketing and enrollment
strategies
• Provide supervision to YMCA Staff to assure program quality and maximum enrollment
• Resolve any YMCA staff performance problems
4 e. Capital expenditures.
The City has an established fund for ongoing replacement of capital equipment and facility components. Contributions to this fund occur annually. The City and YMCA will continue to work together to identify funding opportunities for future facility expansion.
f. Facility maintenance.
The Recreation Manager will be responsible for managing facility maintenance in cooperation with the City’s Maintenance Manager. The YMCA will be responsible for fitness equipment upkeep and maintenance.
At all times, the CRC and its equipment will be maintained in a safe, clean, and operational manner. All CRC staff will be responsible to assist in keeping the facility clean as part of their daily duties. City staff and/or contractual crews will perform detailed, daily cleaning. A daily, monthly, quarterly, and annual cleaning plan will be developed to ensure the longterm integrity of the CRC. g. Cash Handling/Accounting/Payables/Receivables/Collections.
The Recreation Manager will be responsible to ensure all cash handling, accounting, payables, receivables, and collections policies are adhered to by CRC staff. The City and YMCA will cooperatively determine which party can most effectively and efficiently perform these duties as part of the partnership. Detailed policies and procedures will be maintained for all financial aspects of the CRC operations.
h. Membership policies.
The City and YMCA will cooperatively develop membership policies that are intended to ensure community access, maximize revenue and comply with legal mandates. Existing YMCA policies may be modified to meet the CRC’s operational needs. Both parties understand and agree that there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, disability, national origin, sexual orientation or ancestry. i. Membership software.
The City and YMCA will cooperatively determine which software package best meets the CRC’s membership sales, tracking, and management needs. All appropriate CRC team members will be thoroughly trained to ensure that accurate and timely processing of information is achieved. j. Operating hours: Estimated Days and Hours of Operation.
The CRC will be open seven days per week except on major holidays; Easter, July Fourth, Thanksgiving, and Christmas. Operating hours will be determined based on demand.
The City and YMCA may determine that it is in the best interest of the partnership and CRC members to adjust the operating schedule.
5 k. Customer surveys and complaint resolution.
Customer comment cards will be available at the Welcome Desk and online at all times. The City and YMCA will collaborate to implement online surveys of the membership on an agreed upon schedule. The Recreation Manager and Executive Director will be responsible to track comments, provide recommendations for service improvements, and to ensure all complaints are handled in a professional and timely manner.
2. Programming and pricing.
a. Pricing Policy
• Member fees will be set to provide access to the health and fitness facility and maximize revenue
• The resident rate will apply to those who live in Morgan Hill. • The standard rate will apply to those who do not live or work in Morgan Hill.
• Since membership is the income stream that will provide the best chance of cost recovery, pricing will be done to encourage membership
• Seniors and teens have specialized centers in the facility, and will not need to join in order to take advantage of the programs in these centers. If they wish to use the fitness facilities, they will need to join the CRC or purchase a day pass.
b. Pricing changes
The City Manager will be empowered by the City Council to adjust membership fees to meet cost recovery goals established by the City Council.
• As expenses increase, prices will be adjusted to meet cost recovery goals
• Fee increases would be determined by taking into account 3 major items:
(1) Salary increases
(2) CPI
(3) Significant increases in costs in other operational areas • If it is determined that the current pricing structure relating to the daily fee is undermining the cost recovery goal, the City Manager will make a decision to revise the fee or the goal.
6 c. Main Membership Categories
• Adult: Includes one adult and all children age 21 and under living at the same address. Access all hours, and all core programs. • Family: Two adults and all children 21 and under living at the same address. Access all hours, and all core programs
• Special Hours: One adult (22 and older), designed for seniors and those with flexible schedules. 10am to 4 pm weekdays, and any time on the weekends, and access all core programs during these hours
• Couple Special Hours: Same as “Special Hours”, but for two adults. • Adult Plus: Addition of extra adult living at the same address, access all hours, and all core programs
• Youth/Teen: One youth/young adult, ages 12-21. Access all hours all core programs.
• Day Pass: Access for one person to open gym, open swim, fitness room
Categories may be adjusted, deleted or new categories added by agreement of both parties. The City Manager is authorized to approve these changes for the City.
d. Aquatics Center Membership
One membership for CRC and Aquatics Center use will be offered.
Membership benefits of the Aquatics Center include Lap Swim, Recreation Swim, and Aquatics Fitness Classes.
e. Membership Reciprocity
For the purpose of increasing membership sales and retention, the City and YMCA shall strive to offer additional membership options for CRC members to utilize YMCA of Silicon Valley facilities and for YMCA members to utilize the CRC. The City and YMCA Recognize that evaluation of the success of membership reciprocity relies on accurate timely reporting of statistics.
Reporting shall be provided monthly (within 15 days following the end of each month), and shall include:
- Exact Statistics to be developed
-
f. Program Pricing Structure.
Type Member Non/member
Membership
processing
fee
$75 for Adult
$100 for Family
Membership Fee n/a
Core class Free Fee
Specialty
Class
Member fee Non-member
fee +$10
7 Type Member Non/member
Swim
lessons
Member fee Non-member
fee + $10
Day Pass Fee Fee
8 • Core Health and Wellness programs are free for members. Examples:
• Aerobics
• Water Fitness
• Group cycling class
• Wellness Orientation
• Day pass participants can use the gymnasium, the fitness center, and lap or recreational swim and take a group exercise class. • Some Specialty Classes will have an additional cost for everyone.
Examples:
• Strength Training
• Personal Training
• Swim lessons
• YMCA Diabetes Prevention Program
g. Strategic Planning
The Recreation Manager and YMCA Executive Director will work with CRC staff, YMCA staff and City staff to develop and update an ongoing strategy for membership recruitment and retention. The City’s Assistant City Manager/Public Services Director and YMCA Chief Operating Officer shall meet on an ongoing basis to support CRC staff on Strategic Planning.
3. Partnership Evaluation.
As described in Section 2.3 of the Operating Agreement, the parties will conduct an evaluation of the success of the partnership prior to extending the term of Agreement. This evaluation will be presented to the City of Morgan Hill City Council and the YMCA of Silicon Valley Board of Directors as appropriate.
The parties will work together on the development of this evaluation, agreeing to the criteria to be used in the evaluation. The criteria may include:
• Extent to which a high performing CRC staff team has been developed from City CRC, YMCA CRC, and Aquatics Division CRC staff
• Membership income/ number of members enrolled
• Member experience survey results
• Number of seniors served in the Senior Center
• Number of teens served in the Teen Center
• Reaching or exceeding budgeted net for entire center
• Overall facility cleanliness and functioning
• Safety and risk Management
• Satisfaction of City residents with easy movement between CRC, YMCA, and Aquatics Center Programs
9 5. Advertising and marketing of facility and programming. a. The partnership of the City and YMCA will be prominently displayed on the facility, staff uniforms, and written materials. Both the City and YMCA agree that any differentiation of the two parties for branding purposes is not intended to separate the staff during the operation of the facility, but to take advantage of the brand name of the YMCA and City for marketing purposes.
The parties will maintain a logo or co-branded theme to identify and celebrate the partnership.
b. The Recreation Manager is responsible for developing a marketing plan in coordination with the YMCA. The YMCA Executive Director, City Marketing Supervisor, and Recreation Manager will meet regularly and review the CRC promotion schedule.
c. The parties intend to advertise CRC programming in both City and YMCA publications/resources.
d. All staff members are expected to support marketing and communication efforts by keeping updated program information available for use online and on social media.
e. Printed materials will say “Centennial Recreational Center, operated in Partnership with the YMCA of Silicon Valley.”
f. City is willing to have YMCA staff provide information regarding other YMCA programming that would be available to CRC members as part of their membership.
g. The partnership will be identified with signage inside the building. Printed materials with the YMCA logo and other identifying information may be used at the facility.
h. The City and the YMCA will develop a plan to update exterior signage to reflect the partnership. The final signage design shall be approved by the City.
i. All printed materials posted in the facility will meet established facility standards for type and sizing to ensure neat and orderly aesthetics within the facility.
j. Guidelines for use of the CRC logo versus YMCA logo have been established for use inside the facility.
k. The City and YMCA shall meet regularly to review and update these guidelines. The City and YMCA shall make best efforts to develop an update a new updated co-branded theme for the facility prior to October 2026.
10 6. Senior Services Provided at the CRC.
The YMCA will provide a senior nutrition program and wellness activities for Seniors at the CRC, in conjunction with City offered Senior programs and programs coordinated with other senior service organizations:
a. The YMCA will operate a daily nutrition program. Specific attendance goals will be set by the YMCA in partnership with the City and the County. b. The YMCA will have opportunities to offer health and wellness classes for seniors.
7. Teen Services Provided
a. The YMCA will operate the Teen Center at the CRC. The City and YMCA will agree to hours of operation and staffing levels annually as part of the budget process.
b. The YMCA Teen Center staff will work with the City’s Recreation Coordinator to involve the City’s Youth Action Council in Teen Center operations. c. The YMCA and City will coordinate with other youth service agencies to enhance services offered and maximize use in the Teen Center.
8. Internal Communications and Reporting
a. The YMCA and City commit to provide timely reporting of required statistics per the Operating Agreement, and additionally, shall strive to provide information and statistics requested by either party in a timely manner, when available. b. YMCA and City staff shall utilize email as a primary communication tool for communication between key staff within the facility and within both organizations. Routine response and review of email will be an expectation of all key staff members.
9. Santa Clara Family Health Plan Usage
The YMCA and the City currently collaborate to offer membership benefits to members of the Santa Clara Family Health Plan that are registered with the YMCA of Silicon Valley. The YMCA may be required to update its agreement with the Santa Clara Family Health Plan during the life of the contract, which may necessitate an update to how the City and YMCA collaborate in this area. Should this occur the City and YMCA shall meet and discuss impacts and any need for contract amendment.
10. Emergency Operations
11 As a City facility the CRC is designated for use in City emergency response. This use may be as a shelter or other function. All City and YMCA staff are expected to support operations of the facility as part of emergency response. City and YMCA staff members may be asked to participate in training in areas of emergency response as part of their job function.
The YMCA and City shall strive for open communication during emergencies and/or issues involving safety and security that either entity is facing which may impact the CRC. The Recreation Manager, Executive Director, Assistant City Manager/Public Services Director, and YMCA Chief Operating Officer shall immediately implement open lines of communication during situations to ensure consistent response at the CRC.
11. It is understood between the parties that this COP may be amended from time to time by the mutual agreement of the parties to reflect operating experience. The City Manager shall have authority to authorize amendments to the COP on behalf of the City.
MEMORANDUM
Date: April 20, 2026
To: City Council
Christina Turner, City Manager
From: Jennie Tucker, Recreation Manager
Chris Ghione, Assistant City Manager/Public Services Director
Subject: YMCA Partnership Evaluation
Purpose
The purpose of this memorandum is to provide the City Council and City Manager with an evaluation of the partnership between the City and the YMCA at the Centennial Recreation Center (CRC). Per the City’s Partnership Agreement, an evaluation is required prior to any amendment to extend the partnership. This report summarizes the evaluation based on the criteria outlined in the current agreement.
Evaluation
High Performing Team
Criteria: Extent to which a high performing CRC staff team has been developed from City CRC, YMCA CRC, and Aquatics Division CRC staff
Evaluation: The CRC team consists of both YMCA and City personnel who work collaboratively to achieve shared objectives through regularly scheduled team meetings. The management team operates as a unified group, with no functional distinction between YMCA and City staff.
Recruitment for full-time positions is a collaborative effort, involving the partner agency to ensure a successful and inclusive process. As the lead for the partnership, the Recreation Manager regularly relies on YMCA team members to support overall facility and membership operations, just as they do with City staff. This integrated operational support is critical to the efficiency and success of the CRC.
Membership Experience
Criteria: Membership income/ number of members enrolled Evaluation: During the COVID-19 pandemic, membership and participation at the Centennial Recreation Center decreased significantly, including a drop in membership levels of nearly 50%.
This decline was consistent with trends in the private health and wellness industry and those reported by partners at the YMCA of Silicon Valley. Over the last five years, the CRC and Aquatics Center teams have worked diligently to improve processes, enhance member experiences, and rebuild the membership base toward pre-pandemic levels. Current membership is approximately 85% of its 2019 peak, a recovery rate that currently exceeds all other YMCA of Silicon Valley branches. Additionally, CRC Members utilizing the YMCA Silicon Valley Branches have shown a Net Promoter Score of 80 according to Listen 360, a customer experience and reputation management platform used by the YMCA. Net Promoter Scores (NPS) measure customer loyalty
and satisfaction. Average net promoter scores at gyms and fitness centers range from 44-77. The team remains committed to targeted membership growth.
Survey Results
Member experience survey results
Evaluation: Every two years, a comprehensive membership survey is distributed to all active members via email. The survey typically sees an approximate 12% response rate, with the most recent conducted in July 2025. Overall, respondents rated the CRC as “excellent” or “good” across most categories, including staff friendliness, cleanliness, and safety and security. In 2025, 91% of members rated the facility overall as "excellent" or "good". The survey also allows members to provide open-ended feedback. All comments are shared with the management team and utilized to develop an annual work plan for continuous improvement.
Additionally, YMCA Members utilizing the CRC have shown a Net Promoter Score of 80 according to Listen 360, a customer experience and reputation management platform used by the YMCA.
Net Promoter Scores (NPS) measure customer loyalty and satisfaction. Average net promoter scores at gyms and fitness centers range from 44-77.
Senior Services
Number of seniors served in the Senior Center
Evaluation: The facility sees an estimated average daily attendance of over 135 visits at the Senior Center. The Senior Nutrition program is the largest program and provides an average of over 90 lunches per day, Monday through Friday. Additionally, programming has expanded significantly in recent years, specifically in older adult exercise classes and cost-recovery senior trips. The Senior Center also coordinates with senior transportation providers and operates a volunteer driver program. Furthermore, the center hosts and coordinates with several social service organizations to support seniors who may not be regular attendees of the facility.
Teen Services
Number of teens served in the Teen Center
Evaluation: The facility has supported hundreds of teens in the CRC Teen Center through partnership with the YMCA and other organizations with estimated visitation of over 14 teens per day. Attendance is lower and the City and YMCA have been working together to identify new opportunities to partner with other organizations to increase the use of the facility. Programs such as the Adaptive Hangout and the recently commenced Saturday night gym programs should increase overall attendance with teens that would otherwise not be likely to use the facility.
Budget
Reaching or exceeding budgeted net for entire center
Evaluation: The City’s Parks and Recreation Division has consistently exceeded budget expectations over the last four fiscal years following the pandemic. Most recently, the overall cost recovery resulted in a net impact of less than $1 million. With recent facility improvements and continued membership growth, it is anticipated that cost recovery will continue to improve for the City.
Facility Cleanliness and Function
Overall facility cleanliness and functioning
Evaluation: In the most recent member survey, 32% of respondents rated cleanliness as "excellent" and 41% as "good," while 11% rated it as "fair," 1% as "poor," and 12% were unsure.
While these results are positive, the City and YMCA teams continue to identify cost-effective ways to enhance facility cleanliness. Over the past year, several facility components at both the CRC and Aquatics Center were replaced, resulting in temporary area closures. Given that these facilities are approximately 20 years old, such renovations are expected and have not significantly impacted membership. Following major recent renovations to HVAC and pool components, the frequency of future closures is expected to decrease
Safety
Safety and Risk Management
Evaluation: The City has had no significant claims filed by users in the last five years. Facility staff maintain rigorous documentation of all incidents and regularly consult with both YMCA and City risk management experts to ensure the implementation of best practices.
Overall Satisfaction (Summary)
Satisfaction of City residents with easy movement between CRC, YMCA, and Aquatics Center Programs
Evaluation: Based on recent survey results, regularly received customer comment cards, and steady membership growth, it is the staff's assessment that overall satisfaction with the facilities remains high. Despite this positive assessment the City and YMCA team members recognize the need for continued improvement, which is a foundation for the work at the Centennial Recreation Center.
10 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Kristian Wallace, Associate Engineer
APPROVED BY: City Manager
AWARD BUTTERFIELD BASIN ONLINE CONVERSION PROJECT TO
GRANITEROCK COMPANY
RECOMMENDATION(S)
1. Approve the Butterfield Basin Online Conversion Project Plans and Specifications;
2. Award the contract to Graniterock Company for the Butterfield Basin Online Conversion Project in the amount of $1,970,825;
3. Authorize expenditure of construction contingency funds not to exceed $788,330; and
4. Authorize the City Manager to execute and administer the construction contract with Graniterock Company.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety and Quality of Life
Protecting the Environment and Preserving Open Space and Agricultural Land Maintaining and Enhancing Infrastructure
Strategic Priorities 2026-2027
Fiscal Sustainability
Public Safety
Guiding Documents
Climate Action Plan
Storm Drain Master Plan
REPORT NARRATIVE:
The City of Morgan Hill was previously awarded $2.0 million in competitive grant funding from the State of California through the Urban Community Drought Relief Grant to upgrade the Butterfield Basin and support groundwater recharge. The project is currently in the approved FY 24-25 through FY 29-30 Capital Improvement Budget under the Fisher/Butterfield Storm System Expansion Project (SD4006). The intent of the project is to convert the Butterfield Basin, which currently operates as an offline
10 detention basin intended to support flood control activities associated with the Butterfield Channel, to a multi-use online detention basin that will support groundwater recharge, meet State-mandated stormwater trash capture requirements, and improve flood protection.
In September 2024, City Council approved a design consultant agreement with Schaaf & Wheeler Consulting Civil Engineers to prepare a feasibility study for the proposed conversion of Butterfield Basin to the proposed multi-use basin. In October 2025, City Council approved the Second Amendment to the design consultant agreement with Schaaf & Wheeler to prepare construction documents for the proposed Butterfield Basin Online Conversion Project. Plans and specifications were completed in March 2026.
The project was advertised on March 20, 2026, and a bid opening was held on April 9, 2026. The bid results are as follows:
Bidder Base Bid
Graniterock
Company
$1,970,825.00
GradeTech,
Inc.
$1,975,219.25
Specialty
Construction,
Inc.
$2,062,256.00
Daco
Construction
General
Engineering
Contractor
$2,431,231.00
Granite
Construction
Company
$2,939,425.00
Corcus
Construction,
Inc.
$2,994,365.00
McKim
Corporation
$3,099,997.93*
Galeb
Paving, Inc.
$3,131,444.00
S&H
Construction,
Inc.
$3,650,040.00
10 Azul Works,
Inc.
$5,926,260.00*
*The construction base bid total was corrected due to a calculation error.
The bid proposals received were structured such that the base bid was the lowest responsible bidder. The lowest responsible bidder was Graniterock Company with a base bid of $1,970,825 and their bid was approximately 35% lower than the Engineer's estimate of $3,028,200. Graniterock Company is an experienced contractor and has the necessary qualifications to do this project. Graniterock Company has previously worked within the City of Morgan Hill on the Upper Llagas Creek Protection Project Phase 1 and is currently working on the Upper Llagas Creek Protection Project Phase 2B. Staff recommends the award of the contract to Graniterock Company in the amount of $1,970,825 with a 40% contingency for this project. Due to lower bid amounts than expected, a larger contingency is included to support unknown conditions, potential alternate outlet weir designs/modifications, and potential additional excavation for groundwater recharge to meet the local fund matching requirements of the Urban Community Drought Relief Grant. The project is scheduled to begin in June 2026 and be completed in September 2026, assuming no significant delays.
The plans and specifications are available for review on the City's website and may be found here: https://www.morganhill.ca.gov/1436/Project-Plans-Specifications-and-BidRes COMMUNITY ENGAGEMENT:
During and ahead of construction, staff will inform the community regarding the progress of this project using media, social media, and the City's website.
ALTERNATIVE ACTIONS:
City Council may elect not to award this construction contract and direct staff to re-bid the project in hopes of obtaining a lower bid proposal. Staff does not recommend this alternative as competitive bids were received. Rebidding the project is not likely to result in significant savings, and it will delay the project by a minimum of three months, potentially risking grant funding awarded to this project.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
• On January 11, 2023, City Council adopted Resolution 23-003 authorizing the grant application, acceptance, and execution for the 2022 Urban Community Drought Relief Citywide Water Supply Capacity Project and authorized the City Manager to execute documents required to apply and accept the grant for the City, if awarded.
• On June 19, 2024, the City Council approved the FY 2024-25 through FY2029- 30 Capital Improvement Program Budget.
• On September 4, 2024, City Council approved a consultant agreement with Schaaf & Wheeler Consulting Civil Engineers for $74,472 for the preparation of a
10 feasibility study for the proposed conversion of Butterfield Basin to a multi-use basin.
• On October 15, 2025, City Council approved the Second Amendment to the design consultant agreement with Schaaf & Wheeler Consulting Civil Engineers for the preparation of construction documents for the Butterfield Basin Online Conversion Project.
FISCAL AND RESOURCE IMPACT:
If approved, the total authorization of this project shall be $2,759,155. The contract amount for the portion of this project with Graniterock Company is $1,970,825 with a construction contingency of $788,330. Funding for the Butterfield Basin Online Conversion Project is available within the approved FY 24-25 through FY 29-30 Capital Improvement Program with the Drainage Impact Fund (303) under the Fisher/Butterfield Storm System Expansion (Project No. SD4006). The City has been awarded $2 million in competitive grant funding from the State of California under the Urban Community Drought Relief Grant.
CEQA (California Environmental Quality Act):
Categorical Exemption
Categorical Exemption 15308 - Actions by Regulatory Agencies for Protection of the Environment:
Actions taken by regulatory agencies, as authorized by State or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.
This project proposes converting an existing off-stream basin to a multi-use basin, adding trash-capture systems, and providing additional groundwater recharge.
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11 CITY COUNCIL STAFF REPORT
MEETING DATE: May 6, 2026
PREPARED BY:
Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager
AWARD 2026 SIDEWALK REPAIRS AND REPLACEMENT PROJECT
TO QLM, INC.
RECOMMENDATION(S)
1. Award contract to QLM, Inc. in the amount of $281,000 and authorize the expenditure of 10% contingency funds not to exceed $28,100 for a total authorization of $309,100; and
2. Authorize the City Manager to execute and administer that certain construction contract with QLM, Inc.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety and Quality of Life
Maintaining and Enhancing Infrastructure
Strategic Priorities 2026-2027
Fiscal Sustainability
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:
The purpose of this item is to present the City Council with an opportunity to review and consider the contract prepared to complete the City's 2026 Sidewalk Repair and Replacement Project. The scope of work for the 2026 Sidewalk Repair and Replacement Project will include the removal and replacement of concrete sidewalks at various locations within the City limits from June to August 2026. Over 3,840 square feet of damaged sidewalks will be removed and replaced. In addition, 85 linear feet of curb and gutter and 45 Americans with Disabilities Act (ADA) curb ramps will be installed. Tree root removal will be completed dependent upon the conditions at each sidewalk location. The exact locations and City bid documents can be viewed on the City website via the following links: Bid and Addenda
In soliciting bids for this sidewalk repair project, the City advertised in the Morgan Hill
11 Times on February 20, 2026. Bids were posted on the City website, Public Purchase online plan service, and at four builders exchanges including the Builders Exchange of Santa Clara County, San Francisco Builders Exchange, Bay Area Builders Exchange and Central Coast Builders Association. Lastly, the bid was posted on the Dodge and Data Analytics and the Bid Net websites, whose subscribers include hundreds of contractors as well as national builders exchanges. General Engineering (A) and Concrete (C-8) contractors registered on the City's bidders' list were also informed of the bid opportunity via email.
A non-mandatory pre-bid meeting was held on March 19, 2026 via a virtual Zoom meeting. The bid opening was held on April 7, 2026 via a virtual Zoom meeting and 16 bids were received. Below they are listed from lowest to highest bid.
Bidder Amount
QLM, Inc. $281,000.00
Villalobos and
Associates
$291,750.00
Cervantes Landscape
Services, Inc.
$296,475.00
DR General Engineering* $298,380.00*
Estate Design and
Construction
$315,000.00
Duran Construction
Group
$332,890.00
Becon, Inc. $373,495.00
JMS Cement
Contractors, Inc.
$401,340.00
Zara Construction, Inc. $409,680.00
Lewis and Tibbitts, Inc. $412,733.50
Ram-Con Corporation $428,287.20
Allsite Corp. Goods
Services
$429,720.00
Spencon Construction $429,775.00
The Don Chapin Co., Inc. $468,975.00
Golden Bay
Construction, Inc.
$521,332.50
FBD Vanguard $565,345.00
11 Construction, Inc.
*This bid was deemed non-responsive.
The responsive bidder with the lowest responsive bid was QLM, Inc. at $281,000. QLM, Inc. has over 25 years of experience and has completed similar projects for several government agencies in the San Francisco Bay Area, including the City of San Jose, City of Fremont Parks and Recreation, and County of Santa Clara Parks and Recreation.
Staff recommends that the City Council award the contract to QLM, Inc. in the amount of $281,000 and authorize the City Manager to execute and administer the contract. A 10% contingency of $28,100 is recommended, which will yield a total construction authorization of $309,100 for the 2026 Sidewalk Repair and Replacement Project.
COMMUNITY ENGAGEMENT:
Inform
Contractor will post signs at the sidewalk repair sites to inform pedestrians and cars of the construction underway. Notification will also be posted on the City's website and Nextdoor Morgan Hill to inform residents that sidewalk repairs will be underway throughout the City beginning in early June 2026.
ALTERNATIVE ACTIONS:
An alternative action would be to not approve the contract and delay the repair of citywide sidewalks.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
While the City Council has not previously taken action on this specific item, conducting sidewalk repairs is an ongoing public safety activity and the Council has approved numerous contracts for sidewalk repairs in the past.
FISCAL AND RESOURCE IMPACT:
Funding for this agreement is allocated in the FY 2025/2026 budget in Fund 308:
Pavement ($171,455) and Fund 346: Public Facilities ($137,645): CIP Project SR5008.308.CONSTR and SR.5008.346.CONSTR.
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 alterations of existing City facilities involving negligible or no expansion of the use of those facilities.
2026 Sidewalk Repairs & Replacement Project CONTRACT
CSD2026-017 Page 1
Version: January 2025
CONTRACT
This public works contract (“Contract”) is entered into by and between the City of Morgan Hill (“City”) and QLM, Inc. a California Corporation for work on the 2026 Sidewalk Repairs & Replacement Project (“Project”).
The parties agree as follows:
1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct on the Project. On _____________, 20___, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below.
2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.
2.1 Notice Inviting Bids;
2.2 Instructions to Bidders;
2.3 Addenda, if any;
2.4 Bid Proposal and attachments thereto;
2.5 Contract;
2.6 Payment and Performance Bonds;
2.7 General Conditions;
2.8 Special Conditions;
2.9 Project Plans and Specifications;
2.10 Change Orders, if any;
2.11 Notice of Award;
2.12 Notice to Proceed; and
2.13 The following: “No other documents”
3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.
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CSD2026-017 Page 2
Version: January 2025
4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor Two-Hundred Eighty-One Thousand Dollars ($281,000) (the “Contract Price”), for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, federal, state and local taxes, insurance, bonds, and all overhead costs, in accordance with the payment provisions in the General Conditions.
5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 90 calendar days from the start date set forth in the Notice to Proceed (“Contract Time”). Curb ramps must be completed between June 1, 2026 and July 24, 2026. By signing below, Contractor expressly waives any claim for delayed early completion.
6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of Five Hundred Dollars ($500.00) per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.
Contract Price will be reduced accordingly.
7. Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.
7.3 DIR Registration. City will not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code Section 1725.5, subject to limited legal exceptions.
8. Workers’ Compensation Certification. Pursuant to Labor Code Section 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code Section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
2026 Sidewalk Repairs & Replacement Project CONTRACT
CSD2026-017 Page 3
Version: January 2025
9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code Section 1090 et seq., or the Political Reform Act, as set forth in Government Code Section 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed.
Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.
11. Notice. Any notice required by the Contract Documents must be made in writing, signed, dated, and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows:
City:
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
Phone: (408) 779-7259
Attn: City Clerk
Email: [email protected]
Copy to: [email protected]
Contractor:
Name: QLM, Inc.
Address: 94 Umbarger Road
City/State/Zip: San Jose, CA 95111
Phone: 408-640-0336
Attn: Darrell Qualls, President
Email: [email protected]
Copy to:
12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.
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12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Superior Court of Santa Clara County, and no other place.
Contractor waives any right it may have pursuant to Code of Civil Procedure Section 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.
12.6 Severability. If any provision of the Contract Documents, is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code Section 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313.
If Contractor is a partnership, signature by a general partner with authority to bind the partnership is required. If Contractor is a limited liability company (LLC), a signature by a member or manager with authority to bind the LLC is required.
12.9 Electronic Signatures. Unless otherwise prohibited by law or City policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the City.
12.10 Notice of Security and/or Privacy Incident. If Contractor, or its subcontractor, 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, Contractor shall
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CSD2026-017 Page 5
Version: January 2025
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. Contractor 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, Contractor 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. Contractor 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.
[Signatures are on the following page.]
2026 Sidewalk Repairs & Replacement Project GENERAL CONDITIONS CSD2026-017 Page 12
Version: January 2025
GENERAL CONDITIONS
Article 1 - Definitions
1.1 Definitions. The following definitions apply to all of the Contract Documents unless otherwise indicated, e.g., additional definitions that apply solely to the Specifications or other technical documents. Defined terms and titles of documents are capitalized in the Contract Documents, with the exception of the following (in any tense or form): “day,” “furnish,” “including,” “install,” “work day,” or “working day.”
Allowance means a specific amount that must be included in the Bid Proposal for Work that may or may not be included in the Project, depending on conditions that will not become known until after bids are opened. If the Contract Price includes an Allowance and the cost of performing the Work covered by that Allowance is greater or less than the Allowance, the Contract Price will be increased or decreased accordingly.
Article, as used in these General Conditions, means a numbered Article of the General Conditions, unless otherwise indicated by the context.
Change Order means a written document duly approved and executed by City, which changes the scope of Work, the Contract Price, or the Contract Time.
City means the City of Morgan Hill, acting through its City Council, officers, employees, City Engineer, and any other authorized representatives.
City Engineer or City Project Manager means the City Engineer or City Project Manager for City and his or her authorized delegee(s).
Claim means a separate demand by Contractor for a change in the Contract Time or Contract Price, that has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected by City, in whole or in part; a written demand by Contractor disputing a unilateral Change Order or a portion thereof; or a written demand by Contractor objecting to the amount of Final Payment.
Contract means the signed agreement between City and Contractor for performing the Work required for the Project, and all documents expressly incorporated therein.
Contract Documents means, collectively, all of the documents listed as such in Section 2 of the Contract, including the Notice Inviting Bids; the Instructions to Bidders; addenda, if any; the Bid Proposal and attachments thereto; the Contract; the Notice of Award and Notice to Proceed; the payment and performance bonds; the General Conditions; the Special Conditions; the Project Plans and
2026 Sidewalk Repairs & Replacement Project GENERAL CONDITIONS CSD2026-017 Page 13
Version: January 2025
Specifications; any Change Orders; and any other documents that are clearly and unambiguously made part of the Contract Documents. The Contract Documents do not include documents provided “For Reference Only,” or documents that are intended solely to provide information regarding existing conditions.
Contract Price means the total compensation to be paid to Contractor for performance of the Work, as set forth in the Contract and as may be amended by Change Order or adjusted for an Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies, or equipment following submission of the Bid Proposal. The Contract Price is deemed to include all applicable federal, state, and local taxes.
Contract Time means the number of days specified for complete performance of the Work, as set forth in the Contract and as may be amended by Change Order.
Contractor means the individual, partnership, corporation, or joint venture that has signed the Contract with City to perform the Work.
Day means a calendar day unless otherwise specified.
Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural, engineering, or other design professional services for the Project. If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Engineer.
DIR means the California Department of Industrial Relations.
Drawings has the same meaning as Plans.
Engineer means the City Engineer for the City of Morgan Hill and his or her authorized delegee(s).
Excusable Delay is defined in Section 5.3(B), Excusable Delay.
Extra Work means new or unforeseen work added to the Project, as determined by the Engineer in his or her sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s bid was submitted; Work that is substantially different from the Work as described in the Contract Documents at bid time; or Work that results from a substantially differing and unforeseeable condition.
Final Completion means Contractor has fully completed all of the Work required by the Contract Documents to the City’s satisfaction, including all punch list items, and any required commissioning or training, and has provided the City with all required submittals, including the instructions and manuals, product warranties, and as-built drawings.
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Version: January 2025
Final Payment means payment to Contractor of the unpaid Contract Price, including release of undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents.
Furnish means to purchase and deliver for the Project.
Government Code Claim means a claim submitted pursuant to California Government Code § 900 et seq.
Hazardous Materials means any substance or material identified now or in the future as hazardous under any Laws, or any other substance or material that may be considered hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.
Including, whether or not capitalized, means “including, but not limited to,” unless the context clearly requires otherwise.
Inspector means the individual(s) or firm(s) retained or employed by City to inspect the workmanship, materials, and manner of construction of the Project and its components to ensure compliance with the Contract Documents and all Laws.
Install means to fix in place for materials, and to fix in place and connect for equipment.
Laws means all applicable local, state, and federal laws, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any governmental entity with jurisdiction over any of the Work or any performance of the Work, including health and safety requirements.
Non-Excusable Delay is defined in Section 5.3(D), Non-Excusable Delay.
Plans means the City-provided plans, drawings, details, or graphical depictions of the Project requirements, but does not include Shop Drawings.
Project means the public works project referenced in the Contract.
Project Manager means the individual designated by City to oversee and manage the Project on City’s behalf and may include his or her authorized delegee(s) when the Project Manager is unavailable. If no Project Manager has been designated for this Project, any reference to Project Manager is deemed to refer to the Engineer.
Recoverable Costs is defined in Section 5.3(F), Recoverable Costs.
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Request for Information or RFI means Contractor’s written request for information about the Contract Documents, the Work or the Project, submitted to City in the manner and format specified by City.
Section, when capitalized in these General Conditions, means a numbered section or subsection of the General Conditions, unless the context clearly indicates otherwise.
Shop Drawings means drawings, plan details or other graphical depictions prepared by or on behalf of Contractor, and subject to City acceptance, which are intended to provide details for fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.
Specialty Work means Work that must be performed by a specialized Subcontractor with the specified license or other special certification, and that the Contractor is not qualified to self-perform.
Specifications means the technical, text specifications describing the Project requirements, which are prepared for and incorporated into the Contract by or on behalf of City, and does not include the Contract, General Conditions or Special Conditions.
Subcontractor means an individual, partnership, corporation, or joint venture retained by Contractor directly or indirectly through a subcontract to perform a specific portion of the Work. The term Subcontractor includes subcontractors, suppliers, fabricators, and equipment lessors of all tiers, unless otherwise indicated by the context. A third party such as a utility performing related work on the Project is not a Subcontractor, even if Contractor must coordinate its Work with the third party.
Technical Specifications has the same meaning as Specifications.
Work means all of the construction and services necessary for or incidental to completing the Project in conformance with the requirements of the Contract Documents.
Work Day or Working Day, whether or not capitalized, means a weekday when the City is open for business, and does not include holidays observed by City.
Worksite means the place or places where the Work is performed, which includes, but may extend beyond the Project site, including separate locations for staging, storage, or fabrication.
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Article 2 - Roles and Responsibilities
2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Engineer.
(B) Engineer. The Engineer, acting within the authority conferred by the City Council, is responsible for administration of the Project on behalf of City, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents. (C) Project Manager. The Project Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as City’s representative, for daily administration of the Project on behalf of City.
Unless otherwise specified, all of Contractor’s communications to City (in any form) will go to or through the Project Manager. City reserves the right to reassign the Project Manager role at any time or to delegate duties to additional City representatives, without prior notice to or consent of Contractor.
(D) Design Professional. The Design Professional is responsible for the overall design of the Project, and to the extent authorized by City, may act on City’s behalf to ensure performance of the Work in compliance with the Plans and Specifications, including any design changes authorized by Change Order. The Design Professional’s duties may include review of Contractor’s submittals, visits to any Worksite, inspecting the Work, evaluating test and inspection results, and participation in Project-related meetings, including any pre-construction conference, weekly meetings, and coordination meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.
2.2 Contractor.
(A) General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of City, and with minimal inconvenience to the public.
(B) Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate
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the efficient and timely completion of the Work. Contractor is solely responsible for, and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions.
Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents.
From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft, subject to the limitations of Laws, including Public Contract Code section 7105.
(C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents.
Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative.
(D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants, as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved superintendent is physically present to supervise the Work. Contractor must provide written notice to City, as soon as practicable, before replacing the superintendent. (E) Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents, Laws, and applicable manufacturer’s recommendations. Contractor has a material and ongoing obligation to provide true and complete information, to the best of its
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knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
(F) Meetings. Contractor, its project manager, superintendent, and any primary Subcontractors requested by City, must attend a pre-construction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners.
(G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project.
The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any. Contractor will take date and time-stamped photographs to document general progress of the Project, including site conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration.
Contractor will maintain copies of all subcontracts, Project-related correspondence with Subcontractors, and records of meetings with Subcontractors. Upon request by the City, Contractor will permit review of and/or provide copies of any of these construction records. (H) Responsible Party. Contractor is solely responsible to City for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials, or services for or on behalf of Contractor or the Subcontractors. Upon City’s written request, Contractor must promptly and permanently remove from the Project, at no cost to City, any employee, Subcontractor, or employee of a Subcontractor who the Engineer has determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents.
(I) Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by City to be deficient or defective in any way, including workmanship, materials, parts, or equipment. Workmanship, materials, parts, or equipment that do not conform to the requirements under the Contract Documents, as determined by City, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and grades shown on the Plans or established
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by City, and any Extra Work performed without City’s prior written approval.
If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five days following notice from City, or within the time specified in City’s notice to correct, City may elect to have the defective Work corrected by its own forces or by a third party, in which case the cost of correction will be deducted from the Contract Price. If City elects to correct defective Work due to Contractor’s failure or refusal to do so, City or its agents will have the right to take possession of and use any equipment, supplies, or materials available at the Project site or any Worksite on City property, in order to effectuate the correction, at no extra cost to City.
Contractor’s warranty obligations under Section 11.2, Warranty, will not be waived nor limited by City’s actions to correct defective Work under these circumstances. Alternatively, City may elect to retain defective Work, and deduct the difference in value, as determined by the Engineer, from payments otherwise due to Contractor. This paragraph applies to any defective Work performed by Contractor during the one-year warranty period under Section 11.2.
(J) Contractor’s Records. Contractor must maintain all of its records relating to the Project in any form, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include, complete Project cost records and records relating to preparation of Contractor’s bid, including estimates, take-offs, and price quotes or bids.
(1) Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.
(2) Contractor must continue to maintain its Project-related records in an organized manner for a period of five years after City’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, City is entitled to inspect or audit any of Contractor’s records relating to the Project or to investigate Contractor’s plant or equipment during Contractor’s normal business hours. Contractor’s records may also be subject to
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examination and audit by the California State Auditor, pursuant to Government Code § 8546.7. The record-keeping requirements set forth in this subsection 2.2(J) will survive expiration or termination of the Contract.
(K) Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Plans, Specifications, addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related written interpretations. These documents must be available to City for reference at all times during construction of the Project.
2.3 Subcontractors.
(A) General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the Subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequately trained workforce. Each Subcontractor must obtain a City business license before performing any Work.
(B) Contractual Obligations. Contractor must require each Subcontractor to comply with the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, including the generally applicable terms of the Contract Documents, and to likewise bind their subcontractors. Contractor will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor. Copies of subcontracts must be available to the Engineer upon request. Before a Subcontractor commences Work on the Project, Contractor must provide the Engineer a written statement with the name of the Subcontractor, a description of each portion of the Work performed by the Subcontractor, and the percentage of the overall Work to be performed by the Subcontractor.
(C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to City, subject to the prior rights of any surety, but only if and to the extent that City accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.
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(D) Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code Section 4107, Contractor is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If City determines that a Subcontractor is unacceptable to City based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code Section 4107(a), City may request removal of the Subcontractor from the Project. Upon receipt of a written request from City to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to City, will either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in compliance with Public Contract Code Section 4107, as applicable.
2.4 Coordination of Work.
(A) Concurrent Work. City reserves the right to perform, have performed, or permit performance of other work on or adjacent to the Project site while the Work is being performed for the Project. Contractor is responsible for coordinating its Work with other work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City. To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor. (B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work or activities performed by City’s own forces, is operating to hinder, delay, or interfere
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with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.
2.5 Submittals. Unless otherwise specified, Contractor must submit to the Engineer for review and acceptance, all schedules, Shop Drawings, samples, product data and similar submittals required by the Contract Documents, or upon request by the Engineer. Unless otherwise specified, all submittals, including Requests for Information are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed.
(A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current City-accepted schedule for the Work and within the applicable time specified in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project.
(C) Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).
(D) Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal.
(E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by City is not an assumption of risk or liability by City.
(F) Enforcement. Any Work performed or any material furnished, installed, fabricated, or used without City’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing
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and replacing such Work or material, repairs to other affected portions of the Work or material, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector.
(G) Excessive RFIs. An RFI will be considered excessive or unnecessary if the City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.
2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Engineer for review and acceptance at least 30 days before the Work will be performed. If City requires changes, the corrected Shop Drawings must be resubmitted to the Engineer for review within the time specified by the Engineer. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by City. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of Contractor’s responsibility.
2.7 Access to Work. Contractor must afford prompt and safe access to any Worksite by City and its employees, agents, or consultants authorized by City; and upon request by City, Contractor must promptly arrange for City representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.
2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project site must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions relating to their respective job functions, including safety and security requirements. Upon written notification from the Engineer, Contractor and its Subcontractors must immediately discharge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such discharged personnel may not be re-employed or permitted on the Project in any capacity without City’s prior written consent.
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Article 3 - Contract Documents
3.1 Interpretation of Contract Documents.
(A) Plans and Specifications. The Plans and Specifications included in the Contract Documents are complementary. If Work is shown on one but not on the other, Contractor must perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.
The Plans and Specifications are deemed to include and require everything necessary and reasonably incidental to completion of the Work, whether or not particularly mentioned or shown. Contractor must perform all Work and services and supply all things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the Plan(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation.
Contractor may request access to underlying or background information in City’s possession that is necessary for Contractor to form its own conclusions.
(B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Engineer and wait for a response from City before proceeding further with the related Work. The RFI must notify the City of the issue and request clarification, interpretation, or direction. The Engineer’s clarification, interpretation, or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining City’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results.
Timely submission of a clear and complete RFI is essential to avoiding delay. Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Engineer is Non-Excusable Delay. If Contractor believes that City’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but may submit a timely Change Order request in accordance with the Contract Documents. (See Articles 5 and 6.)
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(C) Figures and Dimensions. Figures control over scaled dimensions. (D) Technical or Trade Terms. Any terms that have well-known technical or trade meanings will be interpreted in accordance with those meanings, unless otherwise specifically defined in the Contract Documents. (E) Measurements. Contractor must verify all relevant measurements in the Contract Documents and at the Project site before ordering any material or performing any Work, and will be responsible for the correctness of those measurements or for costs that could have been avoided by independently verifying measurements.
(F) Compliance with Laws. The Contract Documents are intended to comply with Laws and will be interpreted to comply with Laws.
3.2 Order of Precedence. Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. Unless otherwise specified in the Special Conditions, in case of any conflict or inconsistency among the Contract Documents, the following order of precedence will apply, beginning from highest to lowest, with the most recent version taking precedent over an earlier version:
(A) Change Orders;
(B) Addenda;
(C) Contract;
(D) Notice to Proceed;
(E) Attachment B- Federal Contract Requirements (only if used); (F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
(I) Specifications;
(J) Plans;
(K) Notice of Award
(L) Notice Inviting Bids;
(M) Attachment A – Federal Bidding Requirements (only if used); (N) Instructions to Bidders;
(O) Contractor’s Bid Proposal and attachments;
(P) The City’s standard specifications, as applicable; and (Q) Any generic documents prepared by and on behalf of a third party, that were not prepared specifically for this Project, such as Caltrans Standard Specifications or Caltrans Special Provisions.
3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard Specifications of the State of California, Department of Transportation (“Caltrans”), including “Standard Specifications,” “Caltrans Specifications,” “State
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Specifications,” or “CSS,” means the most current edition of Caltrans’ Standard Specifications, unless otherwise specified (“Caltrans Standard Specifications”), including the most current amendments as of the date that Contractor’s bid was submitted for this Project. The following provisions apply to use of or reference to the Caltrans Standard Specifications or Special Provisions:
(A) Limitations. None of the “General Provisions” of the Caltrans Standard Specifications, i.e., sections 1 through 9, applies to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents.
(B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications or Special Provisions and a provision of these Contract Documents, as determined by City, the provision in the Contract Documents will govern. (C) Meanings. Terms used in the Caltrans Standard Specifications or Special Provisions are to be interpreted as follows:
(1) Any reference to the “Engineer” is deemed to mean the City Engineer.
(2) Any reference to the “Special Provisions” is deemed to mean the Special Conditions, unless the Caltrans Special Provisions are expressly included in the Contract Documents listed in Section 2 of the Contract.
(3) Any reference to the “Department” or “State” is deemed to mean City.
3.4 For Reference Only. Contractor is responsible for the careful review of any document, study, or report provided by the City or appended to the Contract Documents solely for informational purposes and identified as “For Reference Only.” Nothing in any document, study, or report so appended and identified is intended to supplement, alter, or void any provision of the Contract Documents.
Contractor is advised that City or its representatives may be guided by information or recommendations included in such reference documents, particularly when making determinations as to the acceptability of proposed materials, methods, or changes in the Work. Any record drawings or similar final or accepted drawings or maps that are not part of the Contract Documents are deemed to be For Reference Only. The provisions of the Contract Documents are not modified by any perceived or actual conflict with provisions in any document that is provided For Reference Only.
3.5 Current Versions. Unless otherwise specified by City, any reference to standard specifications, technical specifications, or any City or state codes or
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regulations means the latest specification, code or regulation in effect on the date the Contract is signed.
3.6 Conformed Copies. If City prepares a conformed set of the Contract Documents following award of the Contract, it will provide Contractor with two hard copy (paper) sets and one copy of the electronic file in PDF format. It is Contractor’s responsibility to ensure that all Subcontractors, including fabricators, are provided with the conformed set of the Contract Documents at Contractor’s sole expense.
3.7 Ownership. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.
Article 4 - Bonds, Indemnity, and Insurance
4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of Award, Contractor is required to provide a payment bond and a performance bond, each in the penal sum of not less than 100 percent of the Contract Price, and each executed by Contractor and its surety using the bond forms included with the Contract Documents.
(A) Surety. Each bond must be issued and executed by a surety admitted in California. If an issuing surety cancels the bond or becomes insolvent, within seven days following written notice from City, Contractor must substitute a surety acceptable to City. If Contractor fails to substitute an acceptable surety within the specified time, City may, at its sole discretion, withhold payment from Contractor until the surety is replaced to City’s satisfaction, or terminate the Contract for default. (B) Supplemental Bonds for Increase in Contract Price. If the Contract Price increases during construction by five percent or more over the original Contract Price, Contractor must provide supplemental or replacement bonds within ten days of written notice from City pursuant to this Section, covering 100% of the increased Contract Price and using the bond forms included with the Contract Documents.
4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend, and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and consultants, (individually, an “Indemnitee,” and collectively the “Indemnitees”) from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses
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(including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation of Contractor under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. This indemnity requirement applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s bid for the Contract. Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of this Contract. City will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code Section 9201.
Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract.
4.3 Insurance. No later than ten days following issuance of the Notice of Award, Contractor must procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements acceptable to City. The required insurance must cover the activities of Contractor and its Subcontractors relating to or arising from the performance of the Work, and must remain in full force and effect at all times during the period covered by the Contract through the date of City’s acceptance of the Project. The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or “umbrella” policies, provided each such policy complies with the requirements set forth herein. If Contractor fails to provide any of the required coverage in full compliance with the requirements of the Contract Documents, City may, at its sole discretion, purchase such coverage at Contractor’s expense and deduct the cost from payments due to Contractor, or terminate the Contract for default. Contractor further understands that City reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice provided to Contractor, at any time as deemed necessary to protect the interests of City. The procurement of the required insurance will not be construed to limit Contractor's liability under this Contract or to fulfill Contractor's indemnification obligations under this Contract. (A) Deductibles and Self-Insured Retentions. Any deductibles or selfinsured retentions must be declared to and approved by City. If the City’s Risk Manager determines that the deductibles and/or self-insured retentions are unacceptably high, at City’s option, Contractor must either reduce or eliminate the deductibles and/or self-insured retentions as they apply to City and all required Additional Insured; or must provide a financial guarantee, to City’s satisfaction, guaranteeing payment of losses and related investigation, claim administration, and legal expenses.
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(B) Policies and Limits. The following insurance policies and limits are required for this Contract unless otherwise specified in the Special Conditions:
(1) Commercial General Liability Insurance (“CGL”). Contractor shall maintain CGL and must include coverage for liability arising from Contractor’s or its Subcontractor’s acts or omissions in the performance of the Work against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) two million dollars ($2,000,000.00) combined single limit each occurrence and either a general aggregate limit of four million dollars ($4,000,000.00) or a general aggregate limit of two million dollars ($2,000,000.00) as applied on a “per project” or “per location” basis, or (ii) the maximum amount of such insurance available to Contractor under
Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
a. CGL policy may not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.
b. CGL policy must include contractor’s protected coverage, blanket contractual, and completed operations.
(2) Builder’s Risk Insurance: The Builder’s Risk Insurance policy must be issued on occurrence basis, for all-risk coverage (including Flood and Earthquake) on a one hundred percent (100%) completed value basis on the insurable portion of the Project for the benefit of City.
(3) Workers’ Compensation Insurance and Employer’s Liability:
Contractor shall maintain Workers Compensation coverage, as required by law. The policy must comply with the requirements of the California Workers’ Compensation Insurance and Safety Act and provide protection in the minimum amount of: (i) One Million Dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater. If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.
(4) Automobile Liability: Contractor shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if Contractor does not own automobiles, then Contractor shall
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maintain Hired/Non-owned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) One Million Dollars ($1,000,000.00) combined single limit, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
(5) Pollution (Environmental) Liability: If the performance of Contractor’s work or service under this Contract involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, Contractor shall procure and maintain Pollution Liability covering Contractor's liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Contract. Coverage shall be provided for both work performed on site, as well as during the transport of hazardous materials. Such coverage shall be in the minimum amount of: (i) One Million Dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
(6) Professional Liability:
a. If the performance of Contractor’s work or service under this Contract involves professional and/or technical services (examples include, but are not limited to, architects,
engineers, land surveyors, legal services, and appraisers), Contractor shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) One Million Dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined
insurance policies (including any excess or “umbrella”
policies), whichever is greater. Further, if Contractor maintains a claims-made policy, Contractor shall provide written evidence of such insurance to City for at least five (5) years after the completion of work performed under this Contract.
b. If the performance of Contractor’s work or service under this Contract relates to Information Technology or related services (examples include, but are not limited to computer
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programmers, hardware engineers, or other systems
consultants), Contractor shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) One Million Dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to Contractor under Contractor’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater. (C) Required Endorsements. Contractor must provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:
(1) For all Policies except Builder’s Risk and Professional Liability:
a. “Waiver of Subrogation” endorsements providing that the carrier agrees to waive any right of subrogation it may have against the City of Morgan Hill and the City’s elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers.
(2) General Liability, Automobile, and Pollution Liability:
a. “Additionally Insured” - The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additional insureds on a form at least as broad as ISO Form CG 20 10 for ongoing operations and at least as broad as ISO Form CG 20 37 for completed operations.
b. “Primary and Non-Contributing” - Insurance shall be endorsed to be primary and non-contributory and will not seek
contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 01.
(3) General Liability:
a. “Separation of Insureds” endorsements stating that the inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
(D) Subcontractors. Contractor must ensure that each Subcontractor is required to maintain the same insurance coverage required under this Section 4.3, with respect to its performance of Work on the Project,
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including those requirements related to the additional insureds and waiver of subrogation. Contractor must confirm that each Subcontractor has complied with requirements as outlined herein. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.
(E) Qualification of Insurers. All insurance required pursuant to this Contract must be issued by a company licensed and admitted, or otherwise legally authorized to carry out insurance business in the State of California, and each insurer must have a current A.M. Best's financial strength rating of “A” or better and a financial size rating of “VIII” or better. (F) Certificates. Contractor must furnish City with copies of all certificates as outlined herein, whether new or modified, promptly upon receipt. In the event of a claim or legal action, Contractor shall promptly furnish City of Morgan Hill with copies of all policies outlined herein. No policy subject to Contractor’s Contract with City shall be reduced, canceled, allowed to expire, or materially changed except after thirty (30) days' notice by the insurer to City, unless due to non-payment of premiums, in which case ten (10) days written notice must be made to City. Certificates, including renewal certificates, may be mailed electronically to [email protected] or delivered to the Certificate Holder address as follows:
City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037
(G) Contractor’s Responsibilities. This Section 4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage. Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments, deductibles, or selfinsured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage.
Article 5 - Contract Time
5.1 Time is of the Essence. Time is of the essence in Contractor’s performance and completion of the Work, and Contractor must diligently prosecute the Work and complete it within the Contract Time.
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(A) General. Contractor must commence the Work on the date indicated in the Notice to Proceed, and must fully complete the Work in strict compliance with all requirements of the Contract Documents and within the Contract Time. Contractor may not begin performing the Work before the date specified in the Notice to Proceed.
(B) Authorization. Contractor is not entitled to compensation or credit for any Work performed before the date specified in the Notice to Proceed, with the exception of any schedules, submittals, or other requirements, if any, that must be provided or performed before issuance of the Notice to Proceed
(C) Rate of Progress. Contractor and its Subcontractors must, at all times, provide workers, materials, and equipment sufficient to maintain the rate of progress necessary to ensure full completion of the Work within the Contract Time. If City determines that Contractor is failing to prosecute the Work at a sufficient rate of progress, City may, in its sole discretion, direct Contractor to provide additional workers, materials, or equipment, or to work additional hours or days without additional cost to City, in order to achieve a rate of progress satisfactory to City. If Contractor fails to comply with City’s directive in this regard, City may, at Contractor’s expense, separately contract for additional workers, materials, or equipment or use City’s own forces to achieve the necessary rate of progress. Alternatively, City may terminate the Contract based on Contractor’s default.
5.2 Schedule Requirements. Contractor must prepare all schedules using standard, commercial scheduling software acceptable to Engineer, and must provide the schedules in electronic and paper form as requested by the Engineer. In addition to the general scheduling requirements set forth below, Contractor must also comply with any scheduling requirements included in the Special Conditions or in the Technical Specifications. (A) Baseline (As-Planned) Schedule. Within ten calendar days following City’s issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed), Contractor must submit to City for review and acceptance a baseline (as-planned) schedule using critical path methodology showing in detail how Contractor plans to perform and fully complete the Work within the Contract Time including labor, equipment, materials, and fabricated items. The baseline schedule must show the order of the major items of Work and the dates of start and completion of each item, including when the materials and equipment will be procured. The schedule must also include the work of all trades reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule
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must be dated, provided in the format specified in the Contract Documents or as required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity.
(1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers. Contractor must also retain documentation of the purchase order date(s).
(B) City’s Review of Schedules. City will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven days, must correct the schedule to address the exceptions. City’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for Contractor’s unexcused failure to do so. (C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and three week look-ahead schedule, in the format specified by City, for review and acceptance with each application for a progress payment or when otherwise specified by City, until completion of the Work. The updated progress schedule must show: how the actual progress of the Work as constructed to date compares to the baseline schedule; reflect any proposed changes in the construction schedule or method of operations, including to achieve Project milestones within the Contract Time; and identify any actual or potential impacts to the critical path. Contractor must also submit periodic reports to City of any changes in the projected material or equipment delivery dates for the Project.
(1) Float. The progress schedule must show early and late completion dates for each task. The number of days between those dates will be designated as the “float.” Any float belongs to the Project and may be allocated by the Engineer to best serve timely completion of the Project.
(2) Failure to Submit Schedule. Reliable, up-to-date schedules are essential to efficient and cost-effective administration of the Project and timely completion. If Contractor fails to submit a schedule within the time periods specified in this Section, or submits a schedule to which City has noted exceptions that are not corrected, City may withhold up to five percent from payment(s) otherwise due to
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Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code Section 7102. (D) Recovery Schedule. If City determines that the Work is more than one week behind schedule, within seven days following written notice of such determination, Contractor must submit a recovery schedule, showing how Contractor intends to perform and complete the Work within the Contract Time, based on actual progress to date.
(E) Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current City-accepted schedule unless otherwise directed by City. City’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect City’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.
(F) Posting. Contractor must at all times prominently post a copy of the most current City-accepted progress or recovery schedule in its on-site office.
(G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work. (H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding City-observed holidays, during City’s normal business hours, except as expressly provided in the Special Conditions, or as authorized in writing by City. City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.
5.3 Delay and Extensions of Contract Time.
(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must promptly notify
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the Engineer in writing, regardless of the nature or cause of the delay, so that City has a reasonable opportunity to mitigate or avoid the delay. (B) Excusable Delay. The Contract Time may be extended if Contractor encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond Contractor’s control, and which Contractor could not have avoided or mitigated through reasonable care, planning, foresight, or diligence, provided that Contractor is otherwise fully performing its obligations under the Contract Documents. Grounds for Excusable Delay may include fire, natural disasters, including earthquake or unusually severe weather, acts of terror or vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions of third parties, encountering unforeseeable hazardous materials, unforeseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis. (C) Weather Delays. A “Weather Delay Day” is a Working Day during which Contractor and its forces, including Subcontractors, are unable to perform more than 40% of the critical path Work scheduled for that day due to adverse weather conditions which impair the ability to safely or effectively perform the scheduled critical path Work that day. Adverse weather conditions may include rain, saturated soil, and Project site clean-up required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, Cityapproved schedule. Contractor will be entitled to a non-compensable extension of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month as determined by reliable records, including monthly rainfall averages, for the preceding ten years (or as otherwise specified in the Special Conditions or Specifications). (1) Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time.
(2) Contractor will not be entitled to an extension of time for a Weather Delay Day to the extent Contractor is responsible for concurrent delay on that day.
(3) Contractor must take reasonable steps to mitigate the consequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Site, materials, and equipment.
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(D) Non-Excusable Delay. Delay which Contractor could have avoided or mitigated through reasonable care, planning, foresight, or diligence is “Non-Excusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for Non-Excusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay. NonExcusable Delay includes delay caused by:
(1) weather conditions which are normal for the location of the Project, as determined by reliable records, including monthly rainfall averages, for the preceding ten years;
(2) Contractor’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time;
(3) Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services
necessary for completion of the Work within the Contract Time;
(4) foreseeable conditions which Contractor could have
ascertained from reasonably diligent inspection of the
Project site or review of the Contract Documents or other information provided or available to the Contractor;
(5) Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers;
(6) performance or non-performance by Contractor’s
Subcontractors or suppliers;
(7) the time required to respond to excessive RFIs (see Section
2.5(G));
(8) delayed submission of required submittals, or the time required for correction and resubmission of defective
submittals;
(9) time required for repair of, re-testing, or re-inspection of defective Work;
(10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or
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(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.
(E) Compensable Delay. Pursuant to Public Contract Code Section 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”).
Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay.
Delay due to Weather Delay Days, in excess of normal for a given month, as set forth in Section5.3(C), is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.
(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above.
Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit.
(G) Request for Extension of Contract Time or Recoverable Costs.
A request for an extension of Contract Time or any associated Recoverable Costs must be submitted in writing to City within 14 calendar days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to the Recoverable Costs will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request procedures in Article 6, below.
Strict compliance with these requirements is necessary to ensure that any delay or consequences of delay may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Recoverable Costs that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived.
(1) Required Contents. The request must include a detailed description of the cause(s) of the delay, and must also describe the measures that Contractor has taken to mitigate
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the delay and/or its effects, including efforts to mitigate the cost impact of the delay, such as by workforce management, or by a change in sequencing. If the delay is still ongoing at the time the request is submitted, the request should also include Contractor’s plan for continued mitigation of the delay or its effects.
(2) Delay Days and Costs. The request must specify the number of days of Excusable Delay claimed, or provide a realistic estimate if the duration of the delay is not yet known. If the Contractor believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amount of and basis for the Recoverable Costs that are claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or cost must be updated in writing and submitted with all required supporting documentation as soon as the actual time and cost is known. The maximum
extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay
exceeds any concurrent Non-Excusable Delay. Contractor is entitled to an extension of Contract Time, or compensation for Recoverable Costs, only if, and only to the extent that, such delay will unavoidably delay Final Completion.
(3) Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual impacts, including scheduling and cost impacts, with a time impact analysis using critical path methodology, and demonstrating the unavoidable delay to Final Completion. The time impact analysis must be submitted in a form or format acceptable to City.
(4) Burden of Proof. Contractor has the burden of proving that the delay was an Excusable Delay or Compensable Delay, as
defined above; Contractor has fully complied with its
scheduling obligations in Section 5.2, Schedule
Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Final Completion; and any Recoverable Costs claimed by Contractor were actually incurred and were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the waiver, alteration, or limitation of the applicability of Public Contract Code Section 7102.
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(6) No Waiver. Any grant of an extension of Contract Time or compensation for Recoverable Costs due to Compensable
Delay will not operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay.
(7) Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or compensation for
Recoverable Costs, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work. Contractor’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract Time or
compensation for Recoverable Costs is to comply with the dispute resolution provisions set forth in Article 12, below.
5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code section 7203, if Contractor fails to achieve Final Completion within the Contract Time Non-Excusable Delay, City will charge Contractor in the amount specified in the Contract for each calendar day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized delegee.
(A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable Delay or Compensable Delay, as set forth above. (B) Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents.
(C) Setoff. City is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, City is entitled to recover the balance from Contractor or its performance bond surety.
(D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Final Completion does not constitute City’s acceptance of the Project and will not operate as a waiver of City’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Final Completion.