2. Land conveyed to or from a governmental agency, public entity or public utility, or for land conveyed to a subsidiary of a public utility for conveyance to that public utility for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map. For purposes of this section, land conveyed to or from a governmental agency shall include a fee interest, a leasehold interest, an easement, or a license.
C. Tentative Parcel Map Waiver. The Community Development Director may waive the requirement for filing a tentative parcel map, as provided below and in conformance with Government Code Section 66428.
1. A subdivider wishing to request a waiver of the tentative parcel map requirement shall submit a waiver request in writing to the Community Development Director.
2. The Community Developer Director may waive the requirements for a tentative parcel map when all required public improvements are existing; public improvements are not necessary; or public improvements may be deferred by agreement, so long as said deferred improvements are not immediately required for public health and safety or for the orderly growth and development of the surrounding area. The tentative parcel map waiver does not apply to airspace subdivision for the purpose of residential condominium conversion.
3. The tentative parcel map requirement may be waived upon a finding that the proposed subdivision complies with the requirements of this title as to lot area, improvement and design, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection, other requirements of the Subdivision Map Act, and this title.
4. The Community Development Director shall act upon the application for a tentative parcel map waiver within sixty (60) days after the waiver application is deemed complete.
5. A tentative parcel map waiver may be conditioned to provide for the payment of park land dedication and any other fees generally applied to subdivision projects.
D. Parcel Map Waiver. The City Engineer may waive the requirement for filing a parcel map, as provided below and in conformance with Government Code Section 66428.
1. A subdivider wishing to request a waiver of the parcel map requirement shall submit a waiver request in writing to the City Engineer.
2. The City Engineer may waive the requirements of the parcel map for subdivisions of a portion of the operating right-of-way of a railroad corporation, as defined by Section 230 of the Public Utilities Code, that are created by short-term leases; or for land conveyed to or from a governmental agency, public entity, public utility, or for land conveyed to a subsidiary of a public utility for conveyance to that public utility for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy Packet Page 192
necessitates a parcel map. “Land conveyed to or from a governmental agency” includes a fee interest, a leasehold interest, an easement or a license.
3. The parcel map requirement may be waived upon a finding that the proposed subdivision complies with the requirements of this title as to lot area, improvement and design, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection, other requirements of the Subdivision Map Act, and this title.
4. The City Engineer shall act upon the application for a parcel map waiver within sixty (60) days after the waiver application is deemed complete.
5. A parcel map waiver may be conditioned to provide for the payment of park land dedication and any other fees generally applied to subdivision projects.
Chapter 16.08 Tentative Tract and Tentative Parcel Maps
16.08.010 General.
The form and contents, submittal and approval of tentative tract maps for the subdivision of five (5) or more parcels and tentative parcel maps for the subdivision of four (4) or fewer parcels shall be governed by the provisions of this chapter.
16.08.020 Persons Authorized to Prepare
All tentative maps shall be prepared by a registered civil engineer or licensed land surveyor.
16.08.030 Tentative Map Number
The tentative map number shall be assigned by and obtained from the County Recorder.
16.08.040 Filing
All tentative map applications shall be filed with the Community Development Director and submitted in accordance with Chapter 17.31 (Common Procedures).
16.08.050 Form and Contents
The form and contents of the tentative map and the number of copies required for the application shall be prescribed by the Community Development Director and in accordance with the application submittal requirements for tentative maps. The Community Development Director may authorize deletion or reduction of map requirements on the determination that the map contains sufficient information to be evaluated adequately.
16.08.060 Accompanying Data and Reports
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The tentative map shall be accompanied by the materials identified in the city application submittal requirements for tentative maps, including, but not limited to:
A. A preliminary grading plan prepared by a civil engineer registered by the state of California.
B. A preliminary soils report prepared by a civil engineer or geotechnical engineer registered by the state of California. For subdivisions within a seismic hazard zone, the report shall include supplemental data and analysis consistent with the requirements and specifications of the Alquist-Priolo Earthquake Fault Zoning Act and/or the Seismic Hazards Mapping Act. If the preliminary soils report indicates the presence of critically expansive soils, corrosive soils, or other soil problems that, if not corrected, could lead to structural defects, a soils investigation of each lot in the subdivision may be required. If the investigation and civil engineer’s report recommends corrective action, building permits can be conditioned to incorporate the recommendations.
C. Additional reports and data may be required by the City Engineer when deemed necessary due to scale of the proposed subdivision or presence of potential hazardous or environmentally sensitive conditions.
D. A “will serve” letter from the waste management service provider to provide waste collection to the proposed subdivision indicating and committing that the service can be provided to the proposed subdivision.
16.08.070 Noticed Public Hearing
The advisory agency shall conduct a noticed public hearing on tentative tract maps. The Community Development Director shall conduct a noticed public hearing on tentative parcel maps.
Notice and hearing procedures shall be as set forth in Chapter 17.31 (Common Procedures).
16.08.080 Public Notice
The city shall provide notice of the hearing on a tentative map in accordance with Chapter 17.31 (Common Procedures).
16.08.090 Action -Tentative Tract Maps
A. Advisory Agency, Timing. The Planning Commission is the advisory agency, and shall approve, conditionally approve, or disapprove tentative tract maps within fifty (50) days after certification of the environmental impact report, adoption of a negative declaration, or a final determination that the project is exempt from the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code.
B. Conditions. Conditions of approval may include, but are not limited to, dedication and improvement of streets, alleys, including access rights and abutters’ rights, drainage, public Packet Page 194
utility easements and other public easements; reservations; the design and improvement of subdivisions; requirements to implement CEQA mitigation measures; ensuring proper grading and erosion control, ensuring prevention of sedimentation or damage to off-site property; energy conservation; and ensuring compliance with adopted development standards. Conditions of approval related to indemnification shall be in conformance with Government Code Section 66474.9.
1. Dedications. Conditions of approval may require dedications or offers of dedication for any purpose specified in the Subdivision Map Act, including but not limited to Government Code Sections 66473.3, 66475 through 66478, and 66478.5.
2. Reservations. The subdivider, as a condition of approval of a tentative tract map, may be required to reserve areas of real property for fire stations, libraries, parks, or other public uses, in compliance with the requirements of Government Code Sections 66479 through 66482.
3. Water Supply. Any tentative tract map for a subdivision as defined in Government Code Section 66473.7 shall be conditioned to show that a sufficient water supply shall be available, as further provided in that section.
C. Findings for Approval. All of the following findings shall be made in order to approve a tentative tract map and shall be supported by substantial evidence in the public record:
1. The proposed subdivision map together with the provisions for its design and improvement is consistent with the general plan and any applicable specific plan. (Government Code Sections 66474(a), (b))
2. The subdivision site is physically suitable for the type and proposed density of development. (Government Code Sections 66474(c), (d))
3. The tentative tract map is consistent with the intent of applicable subdivision design or improvements of the tentative tract map are consistent with the city’s general plan and any applicable specific plan.
4. The subdivision design and proposed improvements will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. (Government Code Section 66474(e))
5. The design of the subdivision or type of improvements will not cause serious public health concerns. (Government Code Section 66474(f))
6. The design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of property within the proposed subdivision; or alternate easements are provided pursuant to Government Code Section 66474(g).
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7. The design or improvements of the tentative map are consistent with the city’s general plan and any applicable specific plan.
8. The subdivision is designed to provide for future passive or natural heating or cooling opportunities. (Government Code Section 66473.1)
9. The tentative tract map, including design and improvement, shall comply with all the applicable provisions and requirements of Title 17, the latest municipal stormwater permit issued to the city by the Regional Water Quality Control Board, this title, any other ordinance of the city, and the Subdivision Map Act.
D. Conformance to City Ordinance.
1. General. The approval, conditional approval or disapproval of the tentative tract map shall be based on the ordinances, policies, and standards in effect on the date the application was determined to be complete.
2. Requirements of Other Agencies. The applicant shall be responsible for complying with the tentative map requirements of other agencies, as appropriate.
E. Referral. At any point in the review process and at its sole discretion, the Planning Commission may transfer original hearing jurisdiction to the City Council because of policy implications, unique or unusual circumstances, or the magnitude of the project.
16.08.100 Action -Tentative Parcel Maps
A. Advisory Agency, Timing. The Community Development Director is the advisory agency and shall approve, conditionally approve, or disapprove tentative parcel maps within fifty (50) days after certification of the environmental impact report, adoption of a negative declaration, or a final determination that the project is exempt from the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code unless another time period is required by the Subdivision Map Act.
B. Conditions. Conditions of approval shall be limited to the dedication of rights-of-way, easements, and construction of reasonable off-site and on-site improvements for the parcels being created. Conditions of approval related to indemnification shall be in conformance with Government Code Section 66474.9.
1. Dedications. Conditions of approval may require dedications or offers of dedication for any purpose specified in the Subdivision Map Act, including but not limited to Government Code Sections 66473.3, 66475 through 66478, and 66478.5.
2. Reservations. The subdivider, as a condition of approval of a tentative parcel map, may be required to reserve areas of real property for fire stations, libraries, parks, or other public Packet Page 196
uses, in compliance with the requirements of Government Code Sections 66479 through 66482.
3. Timing. Fulfillment of any construction requirements shall not be required until the time a permit or other grant of approval for development of the parcel is issued, or as otherwise authorized under Government Code Section 66411.1(b).
C. Findings for Approval. All of the following findings shall be made in order to approve a tentative parcel map and shall be supported by substantial evidence in the public record:
1. The proposed subdivision map together with the provisions for its design and improvement is consistent with the general plan and any applicable specific plan. (Government Code Section 66474(a), (b))
2. The subdivision site is physically suitable for the type and proposed density of development. (Government Code Section 66474(c), (d))
3. The tentative parcel map is consistent with the intent of applicable subdivision design or improvements of the tentative parcel map are consistent with the city’s general plan and any applicable specific plan.
4. The subdivision design and proposed improvements will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. (Government Code Section 66474(e))
5. The design of the subdivision or type of improvements will not cause serious public health concerns. (Government Code Section 66474(f))
6. The design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision; or alternate easements are provided pursuant to Government Code Section 66474(g).
7. The design or improvements of the tentative map are consistent with the city’s general plan and any applicable specific plan.
8. The subdivision is designed to provide for future passive or natural heating or cooling opportunities. (Government Code Section 66473.1)
9. The tentative parcel map, including design and improvement, shall comply with all the applicable provisions and requirements of the zoning ordinance, the latest municipal stormwater permit issued to the city by the Regional Water Quality Control Board, this title, any other ordinance of the city, and the Subdivision Map Act.
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D. Conformance to City Ordinance.
1. General. The approval, conditional approval or disapproval of the tentative parcel map shall be based on the ordinances, policies, and standards in effect on the date the application was determined to be complete.
2. Requirements of Other Agencies. The applicant shall be responsible for complying with the tentative map requirements of other agencies, as appropriate.
E. Referral. At any point in the review process and at their sole discretion, the Community Development Director may transfer original hearing jurisdiction to the Planning Commission because of policy implications, unique or unusual circumstances, or the magnitude of the project.
16.08.110 Appeals
Appeals may be filed with, considered, and acted upon by the appeal body specified in Chapter 16.04 in accordance with Government Code Section 66452.5.
16.08.120 Extension of Time for Action or Report
Any of the time limits for action or report may be extended by mutual consent of the subdivider and the Community Development Director, Planning Commission or, if applicable, the City Council in accordance with the requirements of the Subdivision Map Act.
16.08.130 Effective Period of Approved Tentative Map
A. Effective Period. The approval or conditional approval of a tentative map shall be effective for twenty-four (24) months from the date of its approval by the Planning Commission, for tentative tract maps, or by the Community Development Director, for tentative parcel maps.
Expiration of a tentative map shall terminate all proceedings.
B. Statutory Extensions and Stays. The effective period of an approved or conditionally approved tentative map, or a tentative tract map with multiple final maps, or a tentative map that is subject to a development moratorium, or as otherwise provided in the Subdivision Map Act, shall be extended or stayed in accordance with applicable provisions of the Subdivision Map Act, including but not limited to Government Code Section 66452.6.
C. Litigation Stay. The period of time specified above shall not include any period of time during which a lawsuit has been filed and is pending in a court of competent jurisdiction involving the approval or conditional approval of a tentative map only if a stay of the time period is approved by the City Council.
Within ten (10) days of the service of the initial petition or complaint upon the city, the subdivider shall, in writing, to the Community Development Director, request a stay in the time period of the tentative map. Within forty (40) days after receiving the request, the City Council Packet Page 198
shall either stay the time period for up to five (5) years or deny the requested stay. The request for the stay shall be a hearing with notice to the subdivider and to the appellant/petitioner, and upon conclusion of the hearing, the City Council shall, within ten (10) days, declare its findings.
D. Discretionary Extensions. Upon application of the subdivider during the effective period, the original approving body of the tentative map, as identified in Section 16.04.100, may extend the expiration dates of approved or conditionally approved tentative subdivision maps for a period or periods of up to two (2) years, pursuant to the provisions of Government Code Section 66452.6(e). In the case of the tentative map originally approved by City Council, the Planning Commission may extend the expiration dates of approved or conditionally approved tentative subdivision maps.
E. Extensions Related to Development Agreement. A tentative map on property subject to a development agreement authorized by Government Code Section 65864 may be extended for a period of time provided in the development agreement, but not beyond the duration of the development agreement.
Chapter 16.12 Design
16.12.010 General Requirements
In addition to meeting the specific requirements of this title, the design of the subdivision shall, to the satisfaction of the advisory agency, conform to the land use, circulation and other policies of the city’s general plan and its component elements and any other officially adopted specific plan or land development policy, and shall conform to the zoning ordinance (Title 17), officially adopted standards for streets and roads, grading, erosion and siltation control, seismic safety, and design standards adopted by utilities, fire protection, sanitary and flood control districts in which the land division is located. The size and alignment of streets and walks and the location and configuration of sites for lots, schools, parks, and similar facilities shall be coordinated with the anticipated requirements of the future population, and the physical characteristics of the land
16.12.020 Street Alignment
The centerlines of all streets and highways which are to be extended shall be the continuation of the centerlines of existing streets and highways on adjacent and contiguous property. In cases in which the straight continuations are not desirable, the centerlines may be continued by curves tangent at the intersection with the boundaries of the proposed subdivision to the centerlines of existing streets or highways. Streets shall have the following minimum requirements:
Right-of-Way Distance from
Curb Face to Curb
Face
Six-lane divided arterial or thoroughfares 128 feet 108 feet Four-lane divided arterials or thoroughfares 104 feet 84 feet Four-lane undivided arterials 98 feet 78 feet
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Four-lane undivided collectors 88 feet 68 feet
Two-lane undivided collectors 64 feet 44 feet
Two-lane minor collectors 60 feet 40 feet
Minor streets 56 feet 36 feet
16.12.030 Street and Alley Grades and Widths
A. Grades of all streets and alleys shall be established so that the subdivision is properly drained and shall conform as nearly as possible to the natural topography of the property.
Minimum street grade is three tenths of one percent (0.3%), except where otherwise approved by the City Engineer. Maximum street grade is ten percent (10%), except where otherwise approved by the City Engineer.
B. Where a subdivision adjoins unsubdivided land, provision may be made for reasonable future access to the acreage.
C. The widths of streets shall be based on the width of streets of which they are a continuation, unless otherwise approved under a Planned Development (-PD) Overlay District (Chapter
17.12).
D. Street width in excess of the minimum width may be required where traffic conditions or land use warrant.
16.12.040 Blocks
A. Blocks shall not exceed one thousand three hundred fifty (1,350) feet in length unless the previous adjacent layout or topographical conditions or the special design of the particular subdivision justifies a variation from the requirement. However, blocks in excess of one thousand three hundred fifty (1,350) feet are allowed along arterial streets in order to reduce the number of intersections.
B. All intersections are subject to the Visibility Ordinance. The radius of the curve shall be not be less than twenty (20) feet.
16.12.050 Parcels
A. Parcels shall be designed to meet or exceed the minimum standard for area, lot width, lot depth, and lot frontage specified for in Title 17 for the zoning district in which the subdivision is located.
B. Parcels, and the grading thereof, shall be of a size and shape to accommodate the uses that reasonably could be expected to occur under applicable zoning with consideration given to the limitations of topography and soil conditions, and the need for providing access, privacy and preserving natural features of significance.
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C. Parcels shall be designed to provide, to the extent feasible, for future passive or natural heating or cooling opportunities within the subdivision.
16.12.060 Grading
Subdivision grading shall conform with the intent, general requirements and lot design requirements of this chapter, shall be consistent with recommendations contained in the soils and geologic investigation reports prepared for the proposed subdivision, and subject to review and approval by the City Engineer, and shall specifically conform with all design standards contained in the city’s grading regulations set forth in Chapter 15.50.
16.12.070 Erosion and Siltation Control
Erosion and sediment control facilities and measures shall control and contain erosion-caused sediment deposits and provide for the safe discharge of sediment-free stormwater into existing storm drain facilities and natural watercourses.
A. Slopes. The faces of cut and fill slopes shall be prepared and maintained to control against erosion.
B. Debris Basins. Debris basins shall be installed whenever and wherever necessary to protect the subdivision and the properties downstream of the subdivision from erosion and sedimentation.
C. Temporary Debris Basins. Temporary debris basins shall be installed prior to commencing grading operation and shall be maintained until the permanent erosion and sediment control measures have been installed and are fully effective.
D. Erosion and Sediment Control Measures. These measures shall be consistent with the recommendations contained in the preliminary soils investigation report and the report evaluating the geological conditions present, to the extent reviewed and approved by the City Engineer.
16.12.080 Flood Hazards
Where a subdivision is proposed which lies partially or totally within an area designated on a map prepared by a governmental agency as having a special flood hazard, the subdivider shall remove the subdivision from the special flood hazard area. To minimize damage to improvements, the subdivider shall elevate top of curb grades to a minimum of ten-foot NGVD elevation contours. The subdivider shall provide adequate drainage to reduce exposure to such hazards and shall design water supply and sanitary sewage systems to minimize infiltration of floodwaters into the systems and prevent discharges of sewage and other contaminants into flood waters.
16.12.090 Exceptions
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The advisory agency may, in the exercise of reasonable judgment, grant exceptions to the requirements of this chapter, for street alignment, grades, widths, lengths, block design, lot width and lot frontage, and to all subjects referred to in Sections 16.12.060, 16.12.070, and 16.12.08 as determined warranted by topographic limitations, soil or geological conditions, or other sitespecific conditions that warrant special consideration as determined by the City Engineer.
Chapter 16.16 Improvements
16.16.010 Duty of Subdivider to Improve Streets
The subdivider may be required to improve all streets, highways, public ways and easements which are a part of the subdivision, as well as improvements that may not be part of the subdivision but are affected by the subdivision.
16.16.020 Required Improvements
The required improvements shall include:
A. Streets and Roads. Grading, curbs and gutters, sidewalk, landscaping including street trees, irrigation, and surfacing of streets, highways and public ways, and the drainage thereof.
B. Grading Lots. The grading of the lots and the drainage thereof as may be required by the design of the approved tentative map.
C. Stormwater Control and Treatment. Stormwater control measures in compliance with the municipal code, the latest Regional Water Quality Control Board clean water construction general permit, and the latest municipal regional stormwater NPDES permit. The control and treatment measures shall reduce erosion and sedimentation from entering the storm drain system from the subdivision site (point source).
D. Water Supply and Sanitary Sewer. Subdivisions shall be served with water and sanitary sewer connections in the manner approved by the Alameda County Water District and Union Sanitary District unless an alternative design is proposed and approved by the City Engineer.
E. Utilities. Subdivisions shall be served by public utilities (gas, electricity, Internet/cable/phone) unless an alternative design is proposed and approved by the City Engineer.
F. Public Safety. Construction of such structures as may be necessary for public safety, including but not limited to local neighborhood drainage, traffic safety signs and devices, street name signs, and street lighting.
G. Fire Hydrants. Fire hydrants shall be furnished and installed as approved by the local water district, Fire Marshal, and City Engineer.
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H. Trails and Bikeways. Trails and bikeways as designated on the general plan or applicable specific plan, or the city’s adopted bicycle and pedestrian master plan.
I. Improvements adjacent to the subdivision. Construction of the improvement across any storm drain channel, Hetch-Hetchy right-of-way or other public facility adjacent to the subdivision.
16.16.030 Standards for Improvements
Except as provided in Section 16.16.020, all improvements shall be constructed in accordance with standard engineering practice and in accordance with standard plans and specifications approved by the city.
16.16.040 Improvement Plans
Before beginning any construction or installation of improvements, a complete set of plans, profiles, cross sections, and other drawings for all improvements, together with a complete set of detailed specifications for the work, shall be submitted to the City Engineer for review and approval. All work shall be according to city standards and specifications. The City Engineer shall be furnished, without cost, one (1) or more complete sets of the signed plans in a form required by the City Engineer. No work shall commence without approved, signed plans.
16.16.050 Inspection by City Engineer
The City Engineer shall have the right to enter upon the site of the work for the purpose of inspecting the same and shall be furnished with samples of materials as he or she may require for the making of tests to determine the acceptability of the materials.
16.16.060 Cost of Inspection
The subdivider shall pay to the city the cost for the inspection of the work and checking materials in accordance with the city’s fee schedule.
16.16.070 Completion of Improvements
Upon completion of improvements, the subdivider shall provide as-built drawings in the form required by the City Engineer prepared by a civil engineer registered by the state of California and electronic files compatible with the city’s GIS system showing the subdivision as it has been completed. The subdivider shall also provide recorded conditions, covenants and restrictions documents, and other documents pertinent to the development as reasonably determined by the City Engineer.
Chapter 16.20 Surveys and Monuments
16.20.010 Field Survey
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A. A final map or a parcel map, prepared by or under the direction of a licensed land surveyor (land surveyor) or a civil engineer licensed prior to 1982 (civil engineer), based upon a field survey shall be made in conformity with the Professional Land Surveyor’s Act (Business and Professions Code Sections 8700 through 8805) and the Subdivision Map Act.
B. An accurate and complete boundary shall be made of the land to be included on the final map or parcel map. The map shall show the location of each parcel and its relationship to any and all surveys prepared in the area.
16.20.020 Discrepancy
A. Whenever the field survey indicates a discrepancy from previously recorded data, the record bearing or dimension shall be shown in parentheses with the referenced recorded map information and in the same basis of bearings as the survey along with the field dimension.
B. When the discrepancy is major and causes a conflict to title, the land surveyor, civil engineer and subdivider shall take appropriate action to clear said title prior to the filing of the map.
16.20.030 Compiled Map
A parcel map may be compiled from a recorded or filed map if all of the following conditions exist:
A. The compiled map is based on a final map, parcel map, or record of survey filed in the Office of the County Recorder, or on another final map, parcel map, or record of survey subject to prior approval of the City Engineer.
B. The parcel map complies with Government Code Section 66448.
C. No material discrepancy exists within the recorded or filed map information shown on the compiled map.
D. All of the exterior boundary lines are indicated by field bearings and distance on the compiled map.
E. Sufficient survey information exists on the compiled map to locate and retrace the exterior boundary lines.
F. At least one (1) of these boundary lines can be established from an existing monumented line which is shown on the compiled map.
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16.20.040 Accuracy Required
An accurate and complete boundary closure shall be made of the land to be divided. A traverse of the exterior boundaries of the tract or parcel and of each block and lot or parcel when computed, must close within an acceptable limit of error (not less than one (1) part in twenty thousand (20,000)).
16.20.050 Remainder
A. If the remainder of the original parcel shown on the parcel map has a gross area of five (5) acres or more, the remainder may be a field survey or may be indicated by deed bearings and distance shown in brackets; the bearings shall be on the same basis of bearings as the survey and the distances shall be in feet and designated as being a “nonsurveyed remainder.” B. Designation of remainder parcels shall be as prescribed per Government Code Section 66424.6.
16.20.060 Ties to Centerlines
Whenever the City Engineer has established the centerline or monumented offset line of a street or alley, ties shall be made to that centerline or monument line and any monument or reference point thereon.
16.20.070 Boundary Monuments
A. At the time of making the survey for the final map or parcel map, the land surveyor or civil engineer shall set sufficient durable monuments to conform with the standards described in the California Business and Professions Code Section 8771 and California Government Code Section 66495, so that another land surveyor or civil engineer may readily retrace the survey. If the timing for setting these monuments is designated on the final map or parcel map, security as set forth in California Government Code Section 66496 will be made, by the subdivider, with the City Engineer prior to the recording of the final map or parcel map.
B. All monuments necessary to establish the exterior boundaries of the subdivision shall be set, or witness thereto, and shall be sufficient in number together with existing monuments of record for the perpetuation or facile reestablishment of any point or line of the exterior boundary.
C. Exterior boundary monuments set shall be durable in nature, such as an iron pipe or standard monument, and efficiently placed so as not to be readily disturbed, as required by the City Engineer.
16.20.080 Street Monuments
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A. The engineer or surveyor shall set permanent monuments in the public and private street areas, located so as to define the street lines bounding each block. Due consideration shall be given to visibility of monuments, one from another, for the purposes intended.
B. Permanent monuments on public and private streets shall conform to the approved standards plans of the city for concrete monument for use on subdivision projects.
16.20.090 Monuments - Interior Lots
A. Interior parcel or lot line monuments shall be set or witness thereto as required in the Business and Professions Code and Government Code Sections 8700 through 8805.
B. Interior monuments or witness monuments as designated upon the final map or parcel map shall be as prescribed on the map and set as stated in the surveyor’s statement on the final map or parcel map.
16.20.100 Monuments -Time for Setting
A. Exterior boundary, street monuments and interior lot monuments shall be set as prescribed in the surveyor’s statement on the final map or parcel map.
B. At least one (1) exterior boundary line of the land being subdivided shall be adequately monumented or referenced before the map is recorded.
C. Monuments may be designated to be set after approval of the final map or parcel map; provided, that they are set not later than the time of acceptance of improvements and adequate monument security is filed with the city prior to City Engineer approval and certification of the map.
D. When exterior boundary monuments, street monuments and interior monuments are not set at the time of recording of the final map or parcel map, the land surveyor or civil engineer shall certify on the map the date the monuments will be established, and the subdivider shall deposit with the city a security in an amount sufficient to cover the cost of setting such monuments, as determined by the City Engineer.
16.20.110 Monuments -Inspection and Approval
A. All monuments shall be subject to inspection and approval by the City Engineer.
B. Within five (5) days after the setting of all monuments as shown on the final map or parcel map has been completed by the land surveyor or civil engineer, written notice shall be given to the subdivider and the City Engineer that the final monuments have been set. Written notice to the City Engineer shall certify that all monuments have been set under the direction of the land surveyor or civil engineer as shown on the recorded final map or parcel map and within the Packet Page 206
tolerances specified in Section 16.20.040. Written notification regarding payment for the setting of the monuments shall be provided in accordance with Government Code Section 66497.
16.20.120 California Coordinate System
Whenever the City Engineer has an approved system of California coordinate monuments, the field survey shall be tied into the approved monuments.
Chapter 16.24 Final Maps and Parcel Maps
16.24.010 General
The form, contents, accompanying data and filing of the final map and parcel map shall conform to the provisions of this chapter. The final map or parcel map shall be prepared by a registered civil engineer or licensed land surveyor.
16.24.020 Phasing of Final Maps or Parcel Maps
A. Multiple final or parcel maps relating to an approved or conditionally approved tentative map may be filed prior to the expiration of the tentative map if the subdivider, at the time the tentative map is filed, informs the Community Development Director of the subdivider’s intention to file multiple final or parcel maps on the tentative map. In providing the notice, the subdivider shall not be required to define the number or configuration of the proposed multiple maps. The proposed phasing shall be reviewed by the advisory agency as part of the tentative map review and approval.
B. The filing of a final or parcel map on a portion of an approved or conditionally approved tentative map shall not invalidate any part of the tentative map. Each final or parcel map which constitutes a part, or unit, of the approved or conditionally approved tentative map shall have a separate subdivision number. For a phased final map, the subdivision improvement agreement executed by the subdivider shall provide for the construction of improvements as required by the City Engineer to constitute a logical and orderly development of the whole subdivision. For a phased parcel map, the advisory agency may impose reasonable conditions related to filing multiple parcel maps.
C. The filing of any phased final or parcel map shall not extend the expiration date of the approved or conditionally approved tentative map to which the final or parcel map relates, except as provided in the Subdivision Map Act, including Government Code Section 66452.6(a).
16.24.030 Form
The form of the final map or parcel map shall conform to the requirements of the Subdivision Map Act and as follows:
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A. The final map or parcel map shall be legibly drawn, printed or reproduced by a process guaranteeing a permanent record in black on polyester-base film. Statements, affidavits and acknowledgments may be legibly stamped or printed upon the map with opaque ink. If ink is used on polyester-based film, the ink surface shall be coated with a suitable substance to assure permanent legibility.
B. The size of each sheet shall be eighteen (18) by twenty-six (26) inches. The scale of the map shall be one (1) inch equals forty (40) feet or less, unless otherwise approved by the City Engineer.
C. All printing or lettering on the map shall be a minimum of one-eighth (1/8) inch in height, unless done in type, then lettering shall be a minimum of one-tenth (1/10) inch in height, and of such shape and weight as to be readily legible on print reproductions.
16.24.040 Contents
The contents of the final or parcel map shall conform to the requirements of the Subdivision Map Act and as follows:
A. Title Block. Each sheet of the map shall contain a title, consisting of the subdivision number, but no commercial name or title shall appear on the map as a designation. Below the number shall appear “City of Newark, Alameda County, California,” the name of the surveyor or firm, county and state, the scale and date. If the subdivision is a condominium project, the statement “A Condominium Project” or “For Condominium Purposes” shall appear beneath the subdivision number.
B. Title Sheet. The title sheet shall show the title block; owner’s certificate; acknowledgements; surveyors’ certificate; City Engineer’s certificate; County Recorder’s certificate; language stating: “A subdivision of,” being the name and legal designation of the subdivision in which the survey is located and any other statements or notes that are required.
C. Map Sheet. Every sheet comprising the map shall show the title block, north arrow, legend, basis of bearings, sheet number and number of sheets comprising the map.
D. Exterior Boundary. The exterior boundary of the land included within the subdivision shall be indicated by the following symbol: a long line (minimum one-half (1/2) inch in length) followed by three (3) short lines (maximum one-eighth (1/8) inch each in length).
E. Lot and Parcel Numbers. Lots or parcels shall be numbered in numerical order starting from numeral “1” and continue consecutively throughout the map, with no omissions or duplications.
Circles, squares or other geometrical figures shall not be drawn around the letter or numbers.
Each block shall be shown entirely on one (1) sheet; each lot or parcel shall be shown entirely on one (1) sheet, unless otherwise approved by the City Engineer.
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F. Lands for Public Use or for Private Use—Designations. The map shall particularly define, delineate and designate all lots or parcels intended for sale or reserved for private purposes; all parcels offered for dedication for any purpose, public or private; and any private streets, with all dimensions, boundaries and courses clearly shown and defined in every case. Dimensions of lots or parcels shall be given as the net dimensions only to the boundaries of adjoining streets that will be accepted for dedication or where the street is held in fee by the city. No ditto marks shall be used. Parcels offered for dedication but not accepted, as well as common parcels offered for private use, shall be designated by letter, and private streets offered but not accepted for dedication shall be labeled “Private Street.”
G. Lands for Public Use—Offer of Dedication. All parcels of land shown on any map and intended for any public use shall be offered for dedication for public use except those parcels, other than streets, which are intended for the exclusive use of the lot owners in the subdivision, their licensees, visitors, and tenants, and shall be covered by a recorded covenant that cannot be eliminated without the consent of the City.
H. Streets—Side Lines—Widths. The map shall show the monument lines and side lines of all streets, the total width of all streets, the width of the portion being dedicated and the width of existing street, and the widths each side of the monument line, also the width of railroad rightsof-way appearing on the map.
I. Easements—Descriptions. The map shall show the side lines of all easements to which the lots are subject. Easements shall be clearly labeled and identified, and if already of record, the record reference given. If any easement of record is not definitely located, a statement of the easement shall appear on the title sheet. The width, lengths and bearings of the lines showing the easements shall be sufficient to definitely locate the easement with respect to the subdivision. If the easement is being dedicated by the map, it shall be properly set out in the owner’s certificate of dedication.
J. Dedications. Dedications or offers of dedication shall be made either by certification on the map or by separate instrument. If dedications or offers of dedication are made by separate instrument, the dedication or offers of dedication shall be shown on the map and shall be recorded concurrently with, or prior to, the map being filed for record.
K. Street Names. The names of all streets, alleys or highways within or adjoining the subdivision shall be shown. In order to avoid duplication, names to be used on new streets shall be subject to the approval of the Community Development Director. If any designation by number, they shall be spelled out completely, using hyphens in such forms as “Twenty-Third Street.” The words “avenue,” “boulevard,” “place,” etc., shall be spelled out in full.
L. Certificates, Statements, and Acknowledgements. All certificates, statements and acknowledgements shall be made as required by Government Code Section 66433 et seq. for final maps and by Government Code Section 66444 for parcel maps.
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M. Scale, North Point, and Basics of Bearings. There shall appear on each map sheet the scale, the north point, and the basis of bearings based on Zone III of the California coordinates, and the equation of the bearing to true north. The basis of bearings shall be approved by the City Engineer.
N. Linear, Angular and Radial Data. Sufficient linear, angular and radial data shall be shown to determine the bearings and lengths of monument lines, street centerlines, the boundary lines of the subdivision, the boundary lines on every lot and parcel which is a part of the subdivision, and ties to existing monuments used to establish the boundary. Arc length, radius and total central angle and radial bearings of all curves shall be shown. Ditto marks shall not be used in the dimensions and data shown on the map.
O. Adjoining Properties. The adjoining corners of all adjoining subdivisions shall be identified by subdivision number, or name when not identified by official number, and reference to the book and page of the filed map showing such subdivision, and if no such subdivision is adjacent, then by the name of the owner, and reference to the recorded deed by book page number for the last recorded owner of such adjacent property.
P. City Boundaries. City boundaries which cross or join the subdivision shall be clearly designated.
Q. Monuments. The final map or parcel map shall show the location and description of all stakes, monuments or other markers found on the ground or placed in making the survey of the subdivision and in determining the boundaries thereof, with references sufficient for relocation.
Whenever the City Engineer has established the centerline of a street or alley adjacent to or in a proposed subdivision, the data shall be shown on the final or parcel map indicating all monuments found and making reference to a field book or map. If the points were reset by ties, the courses and detail of relocation data shall be shown.
16.24.050 Procedure
Upon approval of the tentative tract map or tentative parcel map, prints of the final map or parcel map shall be submitted to the City Engineer for their examination for conformance to the approved tentative map, local ordinance, and the Subdivision Map Act.
16.24.060 Data and Material to Accompany Final Map or Parcel Map Submittal The following data and material shall be provided with the final map or parcel map submittal to the City Engineer by the subdivider or their agent. This list can be modified at the City Engineer’s discretion.
A. A survey providing latitudes and departures and coordinates of the boundary, blocks, lots, or parcel and monument lines of the subdivision, unless a compiled parcel map is submitted in accordance with Section 16.20.030.
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B. A set of prints of the map in a form required by the City Engineer.
C. A copy of the record owner deed and/or those deeds used in the survey, i.e., senior, adjoiners and easements.
D. Current title report, showing the legal owners at the time of submittal of the final or parcel map and showing any deeds of trust.
E. Plans, cross-sections, profiles and specifications of the street improvements, grading, drainage facilities, water, sanitary sewer improvements, stormwater management and erosion and sediment control measures or structures and related drawings and specifications as the City Engineer may require. The plans and drawings shall be drawn to a scale not to exceed one (1) inch equals forty (40) feet horizontal and one (1) inch equals four (4) feet vertical, unless prior approval is granted by the City Engineer. Plans and drawings shall be in the form specified by the City Engineer and shall be signed by a registered civil engineer.
F. The tracing of the map shall contain original signatures and shall be submitted for certification when notified by the City Engineer.
G. The submittal of a parcel map or final map for a common interest development within the meaning of Civil Code Sections 1350 et seq. shall include the proposed declaration of covenants, conditions and restrictions containing the provisions described in Civil Code Section 1353, and all other governing documents for the subdivision as are appropriate pursuant to Civil Code Section 1363. The submittal of a parcel map or final map for all subdivisions other than a common interest development shall include any proposed declaration of covenants, conditions and restrictions. All documents shall be subject to review and approval by the Community Development Director, City Engineer, and City Attorney.
H. Soils report prepared by a licensed geotechnical engineer or a registered civil engineer experienced in soils engineering.
I. Any additional data or material as required by the City Engineer.
16.24.070 Improvement Agreements
A. Agreement Required. Unless all required improvements have been completed and have been accepted by the city, prior to the approval of the final map by the City Engineer, the subdivider shall execute and file an agreement with the city to install all the required improvements, specifying the period within which subdivider shall complete improvements to the satisfaction of the city and providing that, if subdivider fails to complete the work within the specified period, the city may complete same and recover the full cost and expense thereof from the subdivider. The agreement shall also provide for inspections of improvements by the City Engineer . The agreement shall also provide the city with the right to modify plans and specifications at the subdivider’s expense.
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B. Approval. The improvement agreement shall be reviewed and approved by the City Engineer provided all requirements and standards of this section are met. The City Engineer’s action may be appealed to the City Council as provided in Government Code Section 66462(d).
The City Council shall periodically review this delegation of authority to the City Engineer.
C. Security Required. The subdivider shall also file with the improvement agreement, to insure full and faithful performance thereof, a bond, instrument of credit or cash, or security in an amount and form deemed sufficient by the City Engineer to cover the cost of the improvements, engineering, inspections, and incidental expenses, consistent with the provisions of this section.
Such bond shall be executed by a surety company authorized to transact a surety business in the state and must be approved by the City Attorney as to form. Any improvement agreement, contract or act required or authorized by the Subdivision Map Act or this title, for which security is required, shall be secured in accordance with Government Code Sections 66499 et seq. and as provided below. No final map shall be signed by the City Engineer or recorded until all improvement securities required by this section have been received and approved.
D. Form of Security. The form of security shall be one (1) or the combination of the following at the option of and subject to the approval of the city:
1. Bond or bonds by one (1) or more duly authorized corporate sureties. The form of the bond or bonds shall be in accordance with the Subdivision Map Act, specifically, Government Code Sections 66499.1, 66499.2, 66499.3 and 66499.4.
2. A deposit, either with the city or a responsible escrow agent or trust company, at the option of the city, of money or negotiable bonds of the kind approved for securing deposits of public moneys.
3. An instrument of credit or letter of credit from one (1) or more financial institutions subject to regulation by the state or federal government and pledging that the funds necessary to carry out the act or agreement are on deposit and guaranteed for payment.
4. Any other form of security as provided in Government Code Section 66499.
E. Amount of Security. A performance bond or other security in the amount of one hundred percent (100%) of the total estimated construction cost to guarantee the construction or installation of all improvements shall be required of all subdivisions. An additional amount of one hundred percent (100%) of the estimated construction cost shall be required to guarantee payment to subdivider’s contractor, subcontractors and to persons furnishing labor, materials or equipment for the construction or installation of improvements. As a part of the obligation guaranteed by the security and in addition to the full amount of the security, there shall be included costs and reasonable expenses and fees, including attorneys’ fees, incurred by the city in enforcing the obligations secured. The estimate of improvements costs shall be as approved by the City Engineer and shall provide for:
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1. Construction costs contingencies in an amount equal to ten percent (10%) of the estimated construction costs.
2. Engineering and design costs in an amount equal to eight percent (8%) of the estimated construction costs.
3. All utility installation costs or a certification acceptable to the City Engineer from the utility company that adequate security has been deposited to ensure installation.
F. Warranty Security. Upon acceptance of the subdivision improvements by the City Engineer, the subdivider shall provide security in the amount of twenty percent (20%) of the total original estimated construction cost to guarantee the improvements against any defective work or labor done or defective materials used in the performance of the improvements throughout the warranty period which shall be the period of one (1) year following the completion and acceptance of the improvements.
G. The City Engineer may authorize in writing the release of the performance security, in whole or in part, in accordance with Government Code Section 66499.7. Release of improvement security shall be as follows:
1. The performance security shall be released only upon acceptance of the improvements by the City Engineer and when an approved warranty security has been filed with the City Engineer.
2. Security given to secure payment to the contractor, subcontractors and to persons furnishing labor, materials or equipment shall be reduced or released in accordance with Government Code Section 66499.7(h).
3. The warranty security shall be released upon satisfactory completion of the warranty period, provided: (a) all deficiencies appearing on the warranty deficiency list for the subdivision have been corrected; and (b) not less than twelve (12) months have elapsed since the acceptance of the improvements by the City Engineer. In the event the subdivider fails to complete all improvement work in accordance with this chapter, or, if the subdivider fails to reimburse the city for the cost of inspections, engineering, and incidental expenses, the city may call on the surety for reimbursement or shall appropriate from any cash deposit funds for reimbursement. In any such case, if the amount of surety bond, instrument of credit, or cash deposit exceeds all cost and expense incurred by the city, it shall release the remainder of such bond, instrument or credit, or cash deposit and, if the amount of the surety bond, instrument of credit or cash deposit is less than the cost and expense incurred by the city, the subdivider shall be liable to the city for such difference.
H. There shall be no extension of time, progress payments from cash deposit, or release of surety, instrument of credit or cash deposit except upon certification of the City Engineer that the work covered thereby has been satisfactorily completed.
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I. Upon completion of the improvements and city acceptance of the improvements required by agreement, the subdivider shall provide improvement security for a period of one (1) year to guarantee the work against any defective work or labor done, or defective materials furnished.
The City Engineer shall be the designated official for acceptance, release, and partial release of security pursuant to Government Code Sections 66499.7 and 66499.8. The City Council shall periodically review this delegation of authority to the City Engineer.
16.24.080 Action on Final Map
A. Upon receipt of the final map submittal, the City Engineer shall check the submittal for correctness of surveying data, the adequacy of certificates of dedication, compliance with conditions of approval of tentative map, and any other matters or features which require checking in order to ensure that the map complies with the provisions of this title and of the Subdivision Map Act.
B. The City Engineer shall notify the City Council at its next regular meeting after receipt of a final map submittal that the City Engineer is reviewing the map for final approval. The City Clerk shall provide notice of the City Engineer’s pending decision on a final map by attaching and posting the notice with the City Council’s regular agenda and mailing the notice to interested parties who request notice. The City Engineer shall approve or disapprove the final map within ten (10) days following the meeting of the City Council that was preceded by the Clerk’s notice.
C. If the final map conforms to all the requirements of this title and the provisions of the Subdivision Map Act, is in substantial compliance with the tentative subdivision map approved or conditionally approved for the subdivision, and all conditions of the approved tentative subdivision map are met, the City Engineer shall endorse their certificate on the map in the form prescribed by the Subdivision Map Act and approve the map. The City Engineer, by written finding, may waive the requirements of this subsection when the failure to conform is the result of a technical or inadvertent error which in the determination of the City Engineer does not materially affect the validity of the map pursuant to the provisions of Government Code Section 66473.
D. The City Engineer shall accept, accept subject to improvement, or reject any offers of dedication of land for public use that are made by a statement on the final map, and the City Clerk shall thereupon transmit the final map to the County Clerk for submittal to the County Recorder; provided, that the City Engineer shall not endorse their certificate on or approve the map until the required improvements set forth in the approval of the tentative map have been installed or the subdivider has entered into an agreement to install such improvements as provided in Section 16.24.070.
E. If the final map does not conform with the requirements of this title or the provisions of the Subdivision Map Act, or is not in substantial compliance with the tentative subdivision map approved or conditionally approved for the subdivision, or all conditions of the approved tentative subdivision map are not met, the City Engineer shall disapprove the final map; provided, that a final map shall be disapproved only for failure to meet or perform requirements Packet Page 214
or conditions which were applicable to the subdivision at the time of approval of the tentative subdivision map; and provided further, that such disapproval shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed.
F. The City Council shall periodically review the delegation of final map authority to the City Engineer.
16.24.090 Action on Parcel Map
A. The City Engineer shall take final action on parcel maps.
B. The City Engineer shall approve the parcel map if it conforms to all the requirements of this title and the provisions of the Subdivision Map Act, is in substantial compliance with the tentative parcel map approved or conditionally approved for the subdivision, and all conditions of the approved tentative parcel map are met.
C. The City Engineer shall accept, accept subject to improvement, or reject any offers of dedication of land for public use that are made by a statement on the parcel map, and the City Engineer shall thereupon transmit the parcel map to the County Clerk for submittal to the County Recorder.
D. If the parcel map does not conform with the requirements of this title or the provisions of the Subdivision Map Act, or is not in substantial compliance with the tentative parcel map approved or conditionally approved for the subdivision, or all conditions of the approved tentative parcel map are not met, the City Engineer shall disapprove the parcel map; provided, that a parcel map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative parcel map; and provided further, that such disapproval shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed.
E. Notwithstanding the foregoing, the City Engineer may approve a parcel map that is not in compliance with this title, the Subdivision Map Act or the approved or conditionally approved tentative parcel map, where the City Engineer finds that the failure of the parcel map is the result of a technical and inadvertent error that does not materially affect the validity of the map.
16.24.100 Appeal to City Council
The City Engineer’s decision to approve or disapprove the final map or parcel map may be appealed to the City Council in accordance with Government Code Section 66452.5.
16.24.110 Action on Final Map or Parcel Map Appeal by City Council A. The City Council on appeal shall approve the final or parcel map if it complies in all respects with the tentative map as approved, if the subdivider has fulfilled all the conditions imposed in connection with the approval of the tentative map, and if the final or parcel map Packet Page 215
complies with all the requirements of the Subdivision Map Act and this title applicable at the time of approval or conditional approval of the tentative map. The City Council, by resolution, may waive the requirements of this subsection when the failure to conform is the result of a technical or inadvertent error which in the determination of the City Council does not materially affect the validity of the map pursuant to the provisions of Government Code Section 66473.
B. If the final map or parcel map is approved on appeal, the City Council shall also accept, accept subject to improvement, or reject any offers of dedication of land for public use that are made by a statement on the final or parcel map.
C. The City Council may disapprove a final map or parcel map in accordance with Government Code Section 66473.
Chapter 16.28 Reserved
Chapter 16.32 Underground Utilities
16.32.010 Intent
The regulations of this chapter are intended to promote the safety and welfare for both the residents of subdivisions and the public in general, and to prolong the economic life of subdivisions, enhance views and scenic attributes, and enhance the general living environment.
16.32.020 Utility Distribution Facilities to be Placed Underground All existing and proposed utility distribution facilities, including transformers, within the subdivision and along project streets, except those exempted by the regulations of the Public Utilities Commission, supplying electric, communication or similar or associated services, installed in and for the purpose of supplying such service to any subdivision requiring the filing of a parcel map or final map, shall be placed underground. Distribution facilities do not include metal poles used for street lighting, traffic signals, pedestals for police and fire system communications and alarms, pedestal-mounted meter cabinets, substations, and facilities used to carry voltages higher than thirty-five thousand (35,000) volts.
16.32.030 Duty of Subdivider
The subdivider is responsible for complying with all requirements of this chapter, and shall make the necessary arrangements with the utility or communication companies involved for the installation of the facilities required by Section 16.32.020.
16.32.040 Request for Exception
A. The subdivider may request an exception from the requirements of this chapter by submitting to the advisory agency a statement describing fully the nature and extent of the Packet Page 216
exception at the time of the tentative tract map or tentative parcel map application, and the reasons for which it is requested.
B. The request for the exception shall be reviewed and considered by the City Engineer. The request shall present evidence that a balancing of the requirements of the public health, safety and general welfare with the feasibility of meeting such requirements does not warrant the strict application of the requirements of this chapter, by reason of economic feasibility, soil, topography, compatibility of surrounding area, and future potential number of building sites affected. If the City Engineer determines that an exception is warranted, a condition of approval shall be included for consideration by the advisory agency for the tentative tract map.
Chapter 16.40 Vesting Tentative Map
16.40.010 Authority and Purpose
The purpose of this chapter is to establish local procedures for the implementation of Government Code Sections 66452 and 66498.1 related to vesting tentative maps.
16.40.020 Consistency
No land shall be subdivided and developed pursuant to a vesting tentative map for any purpose which is inconsistent with the general plan and any applicable specific plan or that is not permitted by the zoning ordinance (Title 17) or other applicable provisions of this code.
16.40.030 Application
Whenever a provision of the Subdivision Map Act or this title requires that a tentative map be filed, a vesting tentative map may instead be filed.
16.40.040 Filing and Processing
A vesting tentative map shall be filed in the same form and have the same contents, accompanying data and reports and shall be processed in the same manner as set forth in this title for a tentative map, except as hereafter provided:
A. At the time a vesting tentative map is filed, it shall have printed conspicuously on its face the words “Vesting Tentative Map.” All other submittal requirements identified in the application submittal requirements for a tentative map shall be submitted.
B. To ensure that any vested development rights are granted in compliance with the ordinances, resolutions, policies and standards for the design and improvement of the subdivision, at the time a vesting tentative map is filed, the subdivider shall also supply a statement that site development review approval has been granted, or, a complete application for site development review approval and plans have been filed, in accordance with Chapter 17.12, which will be concurrently processed with the vesting tentative map within the limitations of Government Code Section 66498.8(d).
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16.40.050 Vesting of Development Rights
In accordance with Government Code Section 66498.1, approval or conditional approval of a vesting tentative map shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards in effect when the vesting tentative map application was deemed complete.
A. Expiration of Vested Rights. The rights conferred by this title and Government Code Section 66498.1 shall expire if a final map or parcel map is not approved prior to the expiration of the vesting tentative map as provided in Section 16.08.130. If the final map or parcel map is timely approved, these rights shall last for an initial period of two (2) years beyond the recording of the final or parcel map.
B. Time Extensions. The initial period for vested rights may be extended as follows:
1. At any time prior to the expiration of the initial time period, the subdivider may apply for a one (1) year extension. The application shall be reviewed by the Planning Commission, who may approve, approve with conditions or deny the request. If the extension is denied by the Planning Commission, the subdivider may appeal that denial to the City Council within fifteen (15) days. A subdivider may only apply for one-year extension twice, for a total of two one-year extensions.
2. The initial time period shall be automatically extended by processing time for a complete application for a grading permit or design or architectural review, in accordance with Government Code Section 66498.5(c).
3. If the subdivider submits a complete application for a building permit during the time extension periods above, the rights conferred by this section shall continue until the expiration of that permit, or any extension of that permit.
C. Subsequent Approvals. An approved or conditionally approved vesting tentative map shall not limit the city from imposing reasonable conditions on subsequent required approvals or permits necessary for the development and authorized by the ordinances, policies, or standards in effect when the vesting tentative map application was deemed complete.
16.40.060 Development Inconsistent with Zoning – Conditional Approval A. Whenever a subdivider files a vesting tentative map for a subdivision whose intended development is inconsistent with the zoning ordinance in existence at that time, that inconsistency shall be noted on the map. The city may deny such a vesting tentative map or approve it conditioned on the subdivider, or their designee, obtaining the necessary change in the zoning ordinance to eliminate the inconsistency. If the change in the zoning ordinance is obtained, the approved, or conditionally approved, vesting tentative map shall, notwithstanding Government Code Section 66498.1(b), confer the vested right to proceed with the development in substantial compliance with the change in the zoning ordinance and the map, as approved.
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B. The rights conferred by this section shall be for the time periods set forth in Section 16.40.050.
16.40.070 Applications Inconsistent with Applicable Ordinances, Policies and Standards Notwithstanding any provision of this title, a property owner or their designee may seek approvals or permits for development which depart from the ordinances, policies and standards described in Sections 16.40.050 and 16.40.060, and the city may grant these approvals or issue these permits to the extent that the departures are authorized under applicable law.
16.40.080 Amendment to Vesting Tentative Map
If the ordinances, policies or standards described in Section 16.40.060 are changed subsequent to the approval or conditional approval of a vesting tentative map, the subdivider, at any time prior to the expiration of the vesting tentative map pursuant to Section 16.08.130, may apply for an amendment to the vesting tentative map to secure a vested right to proceed with the changed ordinances, policies or standards. An application shall clearly specify the changed ordinances, policies or standard for which the amendment is sought. Any approval of the amended vesting tentative map under this section shall not extend the effective periods of the vesting tentative map approval established in Section 16.08.130.
16.40.090 Findings Required for Vesting Tentative Map Approval The findings required to approve a vesting tentative map application shall be the same as those to approve a tentative map application with the addition of the finding that the vesting tentative map complies with the associated site development review application required by Section 16.40.040(B).
Chapter 16.44 Map Amendments and Certificates of Correction
16.44.010 Map Amendments and Certificates of Correction A. Authority. A final or parcel map may be amended in conformance with the provisions of the Subdivision Map Act and this title by a certificate of correction or an amending map for any of the purposes set forth in Government Code Section 66469 and subject to approval and certification by the City Engineer.
B. Form. The amended map or certificate of correction shall be proposed consistent with Government Code Section 66470.
1. Amended maps shall be entitled “Amended [Final or Parcel] Map” and shall conform to the requirements of Government Code Section 66434 for a final map or Section 66445(a) through (d) and (f) through (i) for a parcel map.
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2. All corrections or omissions shall be boxed or clouded and the errors removed from the final or parcel map with a certified statement by the surveyor providing, in general, a description of the correction or omission being made, a list of affected sheets, the recording information of the original map, and the name(s) of the fee owner(s) of the real property affected by the correction or omission on the date of the filing or recording of the original recorded map.
C. Certification. The City Engineer shall examine the amended map or certificate of correction and if the only changes made are those set forth in Government Code Section 66469 and the map or certificate complies with Government Code Section 66470, he or she shall certify to this fact on the amended map or certificate of correction in accordance with Government Code Section 66471. Certification by the City Engineer constitutes approval of the amended map or certificate of correction.
D. Recordation. The amending map or certificate of correction certified by the City Engineer shall be filed or recorded in the office of the Alameda County Recorder.
E. Dedications. The City Engineer may accept or reject dedications and offers of dedication that are made by statement on the amended final map or amended parcel map.
Chapter 16.48 Reversion to Acreage and Resubdivision
16.48.010 Reversion to Acreage
A. Authority. Subdivided real property may be reverted to acreage by motion of the City Council or by petition of landowners, pursuant to Government Code Section 66499.11 et seq.
B. Form. Petitions for reversions to acreage shall be entitled “Reversion to Acreage of ______,” shall be in a form prescribed by the Community Development Director, and shall contain the information required in Government Code Section 66499.13.
C. Notice, Hearing, Approval. The City Council shall hold a public hearing on the proposed reversion to acreage, with notice per Government Code Sections 65090 and 65091. The City Council may approve the reversion to acreage upon making the findings in Government Code Section 66499.16 and with conditions pursuant to Section 66499.17.
D. Parcel Map for Reversion to Acreage. A parcel map may be filed and approved for a reversion to acreage pursuant to Government Code Section 66499.20.1. No tentative map shall be required. The City Engineer is the advisory agency for the purpose of this subsection.
16.48.020 Resubdivision
Subdivided lands may be merged and re-subdivided without reverting to acreage pursuant to Government Code Section 66499.20.2 by complying with all applicable provisions of the Subdivision Map Act and this title.
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Chapter 16.52 Lot Line Adjustments
16.52.010 Lot Line Adjustments
A. Lot line adjustments shall comply with Section 66412(d) of the Subdivision Map Act.
B. Application. An application for a lot line adjustment shall be filed with the Community Development Director for their examination for conformance to the general plan, applicable specific plans, adopted zoning and building ordinances and the Subdivision Map Act.
C. Required Documents. The following data and material shall be provided with a completed lot line adjustment application:
1. Current title report for each lot involved in the lot line adjustment, showing the legal owners at the time of submittal of the lot line adjustment application and showing any deeds of trust.
2. Exhibit identifying the location of buildings, structures, utility service lines, parking lots and driveways; the location of existing and proposed lot lines; the location of adjacent streets; setback distance from buildings and structures to proposed lot lines.
3. Plat, legal description, and lot closure calculations, signed and stamped by a professional land surveyor or qualified registered civil engineer, for each new lot and the areas to be transferred.
4. Any additional information required by the Community Development Director or City Engineer.
D. Approval. If the Community Development Director finds that the proposed lot line adjustment is in conformance with the general plan, applicable specific plans, the zoning ordinance and building ordinances, the Community Development Director may approve the lot line adjustment and issue a certificate of compliance which shall be recorded by the County. The approved lot line adjustment shall be reflected in a deed, which shall be recorded. A copy of the recorded deed shall be filed with the Community Development Director. Failure to record the lot line adjustment shall be cause for the denial of any project dependent on the lot line adjustment.
Chapter 16.56 Enforcement
16.56.010 Enforcement
A. Prohibition. The prohibitions in Government Code Section 66499.30 shall apply to the sale, lease, financing, construction or occupancy of any parcel or parcels of real property in the city until and unless all applicable requirements of this title and the Subdivision Map Act have been complied with.
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B. Penalty. Penalties for violation of this title or the Subdivision Map Act shall be as provided in Government Code Section 66499.31.
C. Remedies, Violations. Remedies and procedures for violations shall be as set forth in Government Code Sections 66499.32, 66499.33, 66499.34 and 66499.36.
D. Certificate of Compliance. Any person owning real property or a vendee of that person pursuant to a contract of sale of the real property may submit an application to determine whether the real property complies with the provisions of this title and the Subdivision Map Act.
The Community Development Director and the City Engineer shall review the application. The City Engineer shall review and respond to the application in accordance with the provisions of Government Code Section 66499.35.
E. Judicial Action. Challenges to actions taken pursuant to this title shall be governed by Government Code Sections 66499.37 and 66499.38.
16.56.020 Effect of Approval or Conditional Approval of Map Neither the approval nor conditional approval of any map shall constitute or waive compliance with any other applicable provision of the code, including the zoning ordinance, nor shall any such approval authorize or be deemed to authorize a violation or failure to comply with any other applicable provisions of the code.
5006042.4
Packet Page 222
Item D. 4.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Adopt resolutions establishing the City Council meeting calendar for 2024 and authorizing the City Manager to take administrative actions during the August Recess Newark Municipal Code Section 2.08.010 requires the City Council to set the day and time of regular City Council meetings via resolution. A resolution with the proposed meeting dates and times for calendar year 2024 has been drafted for City Council consideration. If approved, meetings will continue to be held on the second and fourth Thursday of each month beginning at 7 pm. The resolution authorizes the August Meeting Recess and cancels the second meeting in the months of November and December.
City staff also seeks authorization for the City Manager, or designee, to approve administrative matters that might occur during the August Meeting Recess that cannot be deferred until the September 12, 2024, City Council meeting. The general types of administrative matters that might require action are:
Acceptance of completion of work on City Projects
Approval of agreements as needed for budgeted projects and services Approval of plans and specifications
Award of contracts for budgeted projects
Denial of claims
The City Manager or designee will provide a staff report on all actions taken during the August Recess at the September 12, 2024, City Council meeting.
Staff recommends that the City Council adopt resolutions to establish the dates and times for regular City Council meetings for the calendar year 2024 and authorizing the City Manager, or designee, to act upon certain administrative matters on behalf of the City of Newark during the City Council Summer Meeting Recess August 2024.
Attachments
Resolution August Recess
Packet Page 223
Resolution August Recess
Resolution Meeting Dates
Packet Page 224
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO ACT UPON CERTAIN ADMINISTRATIVE
MATTERS ON BEHALF OF THE CITY OF NEWARK
DURING THE CITY COUNCIL SUMMER MEETING RECESS
AUGUST 2024
WHEREAS, the City Council of the City of Newark will be in recess during the month of August 2024; and
WHEREAS, during said City Council recess, certain administrative matters require action.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager, or his authorized designee, to act upon the following certain administrative matters during the City Council’s meeting recess August 2024, which should not be deferred until the next regularly scheduled meeting of the City Council on September 12, 2024:
Acceptance of completion of work on City projects
Approval of agreements as needed for budgeted projects and services Approval of plans and specifications
Award of contracts for budgeted projects
Denial of claims
BE IT FURTHER RESOLVED that all actions taken by the City Manager, or his authorized designee, pursuant to this resolution, shall be reported to the City Council after the recess.
Packet Page 225
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK ESTABLISHING THE DATES AND TIMES FOR
REGULAR CITY COUNCIL MEETINGS FOR THE CALENDAR
YEAR 2024
WHEREAS, the City Council of the City of Newark adopted Ordinance No. 523 amending the Newark Municipal Code to provide that the City Council shall establish dates and times for regular City Council Meetings by resolution; and
WHEREAS, the City Council desires to adopt a resolution establishing dates and times for regular City Council Meetings for Calendar Year 2024.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the regular City Council Meetings for Calendar Year 2024 shall be on the dates and times specified in this Resolution.
2024 Regular meeting dates, start time 7:00 p.m. from January to December:
January 11, 2024 June 13, 2024
January 25, 2024 June 27, 2024
February 8, 2024 July 11, 2024
February 22, 2024 July 25, 2024
March 14, 2024 September 12, 2024
March 28, 2024 September 26, 2024
April 11, 2024 October 10, 2024
April 25, 2024 October 24, 2024
May 9, 2024 November 14, 2024
May 23, 2024 December 12, 2024
2024 meetings canceled
August Recess August 8 and 22, 2024
Thanksgiving Holiday November 28, 2024
Winter Furlough December 26, 2024
Packet Page 226
Item D. 5.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Adopt a resolution reappointing William Fitts to the Planning Commission The terms of Planning Commissioners William Fitts and Patricia Pitpitan expire on December 31, 2023. Commissioner Fitts has served on the Planning Commission since 1986 and has requested a four-year reappointment. Commissioner Pitpitan is not seeking reappointment and will step down when her term expires on December 31, 2023. Staff will begin the recruitment process to fill Commissioner Pitpitan's seat.
It is recommended that the City Council, by resolution, approve the reappointment of William Fitts to the Planning Commission, for a term to expire on December 31, 2027.
Attachments
Resolution
Packet Page 227
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING THE REAPPOINTMENT OF
WILLIAM FITTS TO THE PLANNING COMMISSION
WHEREAS, William Fitts, hereto appointed member of the Planning Commission, has a term expiring December 31, 2023; and
WHEREAS, the Mayor of the City of Newark has reappointed William Fitts to said position on the Planning Commission for a term expiring December 31, 2027; NOW, THEREFORE, BE IT RESOLVED that said appointment is hereby approved by the City Council of the City of Newark.
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Item D. 6.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT Adopt a resolution approving a Contractual Equipment and Services Agreement with RJMS Corporation dba Toyota Material Handling of Northern California for the purchase of a sub-compact sweeper
SUMMARY AND RECOMMENDATION
The Maintenance Division of the Public Works Department has identified a need to purchase a sub-compact sweeper and transport trailer to maintain the Class IV separated bike lanes equipped with K71 posts on Cherry Street and Newark Boulevard. The Capital Improvement Plan contains sufficient funding for these necessary purchases.
Staff recommends that the City Council approve Contractual Equipment and Services Agreements with RJMS Corporation dba Toyota Material Handling of Northern California for the purchase of a sub-compact sweeper.
BACKGROUND
The 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 includes funding for the purchase of a sub-compact sweeper and transport trailer for the Maintenance Division of the Public Works Department as part of the Capital Improvement Plan, Project 1319. The City of Newark would utilize the sub-compact sweeper for maintenance of the new Class IV separated bike lanes equipped K71 posts located on Cherry Street and Newark Boulevard.
Purchase of a Madvac LS175 sub-compact sweeper would help streamline debris removal for the newly installed bike lanes to ensure long-term usability and safety. By investing in a sub-compact sweeper, the City further demonstrates its commitment to the well-being and safety of its citizens and promotes the use of bicycles as a viable mode of transportation that will help carbon emissions and encourage environmental stewardship. Clean bike lanes will also enhance the overall appearance of the City, creating a more inviting environment and biking experience for residents and visitors.
DISCUSSION/ANALYSIS
City staff utilized cooperative purchasing through Sourcewell to identify the vendor for Packet Page 229
City staff utilized cooperative purchasing through Sourcewell to identify the vendor for the sub-compact sweeper. The City's purchasing ordinance authorizes cooperating purchase as an alternative option to Newark's formal bidding process. This allows the City to save the cost and time associated with an additional formal bid process but also ensures competitive set prices established by another agency's formal bidding process. Sourcewell received bids for street sweepers and specialty sweepers with related equipment, accessories and supplies. RJMS Corporation dba Toyota Material Handling of Northern California was selected by Sourcewell through a competitive bidding process and was issued Contract No. 093021. RJMS Corporation dba Toyota Material Handling of Northern California was selected because it met the specifications issued by Sourcewell and submitted the lowest bid with the cost of the Madvac LS175 sub-compact sweeper set at $165,000. RJMS Corporation dba Toyota Material Handling of Northern California is the local distributor of Madvac LS175 sub-compact sweepers.
The sub-compact sweeper cost of $165,000 does not include a transport trailer and City logos which are estimated collectively not to exceed an additional $20,000. Those purchases are within the City Manager's authority and already budgeted. Thus, the total budget for the purchase of a new sub-compact sweeper, including the trailer and outfitting, is $185,000.
FISCAL IMPACT
The 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 includes sufficient funding in the Capital Improvement Plan for the purchase of a sub-compact sweeper from RJMS Corporation dba Toyota Material Handling of Northern California.
REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Sub Compact Sweeper Resolution
Agreement - Sub-Compact Sweeper
Packet Page 230
(TCR1)
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING A CONTRACTUAL EQUIPMENT
AND SERVICES AGREEMENT WITH RJMS CORPORATION
DBA TOYOTA MATERIAL HANDLING OF NORTHERN
CALIFORNIA FOR THE PURCHASE OF A SUB-COMPACT
SWEEPER
WHEREAS, the 2022-2024 Biennial Budget and Capital Improvement Plan includes funding in Fiscal Year 2024 for the purchase of a sub-compact sweeper and a trailer through the City’s Capital Improvement Plan for the Maintenance Division of the Public Works Department, Project 1319; and
WHEREAS, Sourcewell, a service cooperative that provides cooperative purchasing for governmental agencies, issued Contract No. 093021 for the MadVac LS175 sub-compact sweeper to RJMS Corporation dba Toyota Material Handling of Northern California; and WHERAS, RJMS Corporation dba Toyota Material Handling of Northern California is the local distributor for this sub-compact sweeper; and WHEREAS, the City of Newark is a participating agency with Sourcewell and can purchase a MadVac LS175 sub-compact sweeper at a cost of $165,000 from RJMS Corporation dba Toyota Material Handling of Northern California.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to enter into an agreement, in a form approved by the City Attorney, for the purchase of a MadVac LS175 sub-compact sweeper from RJMS Corporation dba Toyota Material Handling of California in the amount not to exceed $165,000.
BE IT FURTHER RESOLVED that the City Manager is authorized to take all actions necessary to effectuate the intent of this Resolution.
Packet Page 231
CONTRACTUAL EQUIPMENT AND SERVICES AGREEMENT
SUB-COMPACT SWEEPER
This Service Agreement (hereinafter “Agreement”) is made and entered into on , 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and RJMS CORPORATION DBA TOYOTA MATERIAL HANDLING OF NORTHERN CALIFORNIA, a California Corporation (“Consultant”), collectively the “Parties”.
W I T N E S S E T H:
WHEREAS, City requested proposals to perform the services generally including:
LS175 sub-compact sweeper 58.5 HP Tier4 HATZ Engine including heating and air-conditioning, rear-view camera with color monitor, gutter broom speed and down pressure in-cab control, audible engine warning system, and emergency stop button unit.
WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the Services more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.
WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.
NOW, THEREFORE, the Parties hereto agree as follows:
1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.
2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.
Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.
Packet Page 232
3. COMPENSATION.
A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.
Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of One Hundred Sixty-Three Thousand Three Hundred Twenty-One and No/100 Dollars ($163,321.00) unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount.
B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).
Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.
Invoices shall be sent to:
City of Newark
Attn: Finance Department
37101 Newark Blvd.
Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.
C. Payment. Upon receipt of an invoice, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.
D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).
4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by Packet Page 233
written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.
5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services rendered pursuant to this Agreement.
Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its Subconsultants, if any, identified in Exhibit “C”. Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or Subconsultants identified in Exhibit “C”, without the prior written consent of City. All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.
Consultant agrees to include with all Subconsultants in their subcontract the same requirements and provisions of this Agreement including the indemnity and Insurance requirements to the extent they apply to the scope of the Subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subconsultant further agrees to include these same provisions with any Sub-subconsultant. A copy of this Agreement’s Indemnity and Insurance provisions will be furnished to the Subconsultant upon request. The Consultant shall require all Sub-subconsultants to provide a valid certificate of insurance and the required endorsements included in this Agreement prior to commencement of any Services and will provide proof of compliance to the City.
In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or Subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.
7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.
Packet Page 234
8. INFORMATION AND DOCUMENTATION.
A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.
B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.
C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.
9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.
10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.
11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement.
Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.
Packet Page 235
12. RESERVED
13. RESERVED
14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.
A. Verification of Coverage.
Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.
Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:
CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.
B. Minimum Scope of Insurance.
Coverage shall be at least as broad as:
1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and
2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and
Packet Page 236
4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.
C. Minimum Limits of Insurance.
It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.
Consultant shall maintain limits no less than:
1. General Liability:
(including products and
completed operations,
property damage, bodily
injury, and personal and
advertising injury)
$2,000,000 per occurrence for
bodily injury, personal injury, and
property damage. If a general
aggregate limit applies, either the
general aggregate limit shall apply
separately to this project/location or
the general aggregate limit shall be
twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
4. Errors and Omissions
Liability:
$1,000,000 per occurrence or
claim; $2,000,000 aggregate.
D. Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.
E. Claims Made Policies.
For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous Packet Page 237
coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.
F. Wasting Policies.
No policy required by this paragraph 14 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).
G. Remedies.
In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
3. Terminate this Agreement.
H. Acceptability of Insurers.
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
I. Other Insurance Provisions.
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.
2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall Packet Page 238
not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.
3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.
4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.
5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.
6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.
7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.
8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.
9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.
15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.
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16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants.
Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.
In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established.
An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.
The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.
The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.
Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
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17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.
18. TERM/TERMINATION.
A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire June 30, 2024.
B. Notwithstanding the provisions of paragraph 18 Section A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3.
In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.
19. CONTRACT ADMINISTRATION. This Agreement shall be administered by TONYA CONNOLLY of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.
20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:
RJMS CORPORATION DBA TOYOTA
MATERIAL HANDLING OF N. CA CITY OF NEWARK
STEVE BURNETT TONYA CONNOLLY
Consultant Administrator
Address: TMH of N. California
Attn: Steve Burnett
6999 Southfront Road
Livermore, CA 94551
City of Newark
Attn: Tonya Connolly
37101 Newark Boulevard
Newark, CA 94560
21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.
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22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.
23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.
24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.
25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.
27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.
28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.
30. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.
31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.
RJMS CORPORATION DBA TOYOTA
CITY OF NEWARK, MATERIAL HANDLING OF N. CA
a municipal corporation a California corporation
By By
David J. Benoun, City of Newark Steve Burnett, Commercial Equipment Consultant Date Date
Attest:
Sheila Harrington, City Clerk
Date
Approved as to form:
Kristopher J. Kokotaylo, City Attorney
Date
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EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide the following within 16 weeks of the date of receipt of the Purchase Order for the designated equipment:
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EXHIBIT B
PAYMENT
Payment within 30 days of receipt of invoice after delivery of sub-compact sweeper model LS175.
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EXHIBIT C
QUALIFICATIONS
RJMS Corporation DBA Toyota Material Handling of Northern California is family owned and founded in 1997 with locations currently in Livermore, Fresno, West Sacramento and Salinas.
Toyota Material Handling is Northern and Central California’s leading provider of material handling products including forklifts, aerial equipment, sweepers, and order pickers.
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Item D. 7.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Michael Carmen, Assistant Engineer
SUBJECT Adopt a resolution accepting the work with American Asphalt Repair and Resurfacing Co., Inc. for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297
SUMMARY AND RECOMMENDATION
The City Council previously awarded a contract to American Asphalt Repair and Resurfacing Co., Inc. for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297. The scope of work included rehabilitating damaged park pathways, seal coating and patch paving other designated park pathways, rehabilitating outdoor basketball court surfaces and accessories, and upgrading designated curb ramps to comply with current ADA standards.
Staff recommends that the City Council, by resolution, accept the work with American Asphalt Repair and Resurfacing Co., Inc., authorize the filing of a Notice of Completion with the County Recorder of Alameda County, and authorize the release of bonds and retention for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297.
BACKGROUND
Pursuant to Resolution No. 11,473, adopted March 23, 2023, the City Council awarded a contract to American Asphalt Repair and Resurfacing Co., Inc. for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297. The overall project scope of work included rehabilitating damaged park pathways at Jerry Raber Ash Street Park, Birch Grove Park, and Lakeshore Park; rehabilitating outdoor basketball court surfaces and accessories at Jerry Raber Ash Street Park, Community Center Park, Birch Grove Park, and Byington Park; seal coating pathways at Civic Center Park and Lakeshore Park; patch paving pathways at Lakeshore Park; and upgrading curb ramps at Birch Grove Park to comply with current ADA standards.
DISCUSSION/ANALYSIS
Staff has reviewed and inspected the entire scope of work which has now been Packet Page 247
Staff has reviewed and inspected the entire scope of work which has now been satisfactorily completed in accordance with the approved project plans and specifications and all applicable standards. Pursuant to the State of California Public Contract Code, formal acceptance of the work by the City Council is now recommended. Project photos are attached to this report.
FISCAL IMPACT
On March 23, 2023, the City Council awarded a contract in the amount of $365,649.00 to American Asphalt Repair and Resurfacing Co., Inc. Staff also recommended including a construction contingency in the amount of $34,351.00 which brought the recommended allocation for the project to $400,000.00.
The project was completed within original budget using Community Development Block Grant (CDBG) funding provided by the U.S. Department of Housing and Urban Development (HUD).
REVIEW AND APPROVAL
Prepared by – Michael Carmen, Assistant Engineer
Reviewed by – Jayson Imai, City Engineer
Reviewed by – Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution
Project Photos
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK ACCEPTING THE WORK WITH AMERICAN
ASPHALT REPAIR AND RESURFACING CO., INC. FOR FY
2021-2022 CITYWIDE PARK PATHWAYS RESURFACING
FOR ADA ACCESS, PROJECT 1297
WHEREAS, the City of Newark entered into a contract with American Asphalt Repair and Resurfacing Co., Inc. pursuant to Resolution No. 11,473, adopted March 23, 2023, for FY 2021- 2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297 in the City of Newark; and
WHEREAS, American Asphalt Repair and Resurfacing Co., Inc. has successfully completed the improvements for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297 in accordance with plans and specifications for the contract; and WHEREAS, said work has been completed to the satisfaction of the City Engineer.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby accept the improvements for FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297.
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the release of bonds guaranteeing completion of the work.
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the filing of a Notice of Completion with the Office of the County Recorder of Alameda County, California.
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City to issue payment including the release of a final retention payment to American Asphalt Repair and Resurfacing Co. for the completion of FY 2021-2022 Citywide Park Pathways Resurfacing for ADA Access, Project 1297, pursuant to the contract.
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ATTACHMENT - PROJECT PHOTOTS (BEFORE AND AFTER)
Figure 1: Jerry Raber Ash Street Park Basketball Court (Before) Figure 2: Jerry Raber Ash Street Park Basketball Court After 2-Inch Grind and AC Overlay, Resurfacing, and Restriping
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Figure 3: Jerry Raber Ash Street Park Softball
Field (Before)
Figure 4: Jerry Raber Ash Street Park Softball
Field After Construction of New 5-foot Wide
Concrete Sidewalk That Now Connects Enterprise
Drive and Elm Street
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Figure 5: Existing Caltrans Case A Curb Ramp at Birch Grove Park (Before) Figure 6: New Caltrans Case A Curb Ramp Reconstructed to Current ADA Standards Packet Page 252
Figure 7: Basketball Court at Birch Grove Park (Before) Figure 8: Basketball Cout at Birch Grove Park After Conform Grind, AC Overlay, Restriping, and Installation of New Basketball Hoops
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Figure 9: Basketball Court at Byington Park (Before)
Figure 10: Basketball Cout at Byington Park After Resurfacing and Restriping Packet Page 254
Figure 11: Lakeshore Park Pathway (Before)
Figure 12: Lakeshore Park Pathway After Patch Paving and Seal Coat Application Packet Page 255
Figure 13: Lakeshore Park Parking Lot (Before)
Figure 14: Lakeshore Park Parking Lot After Seal Coat and Restriping Packet Page 256
Figure 15: Community Center Park Basketball Court and Handball Wall (Before) Figure 16: Community Center Park Basketball Court and Handball Wall After Conform Grinding and AC Overlay, Restriping, Installation of New Basketball Hoops, and Handball Wall Repainting Packet Page 257
Figure 17: Community Center Park Handball Wall (Before) Figure 18: Community Center Park Handball Wall After Conform Grinding, AC Overlay, Restriping, and Handball Wall Repainting.
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Item D. 8.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM James Scanlin, Environmental Services Manager
SUBJECT Adopt a resolution approving an agreement with Applied Landscape Materials, Inc. to apply composted mulch to landscaped areas in City parks and to amend the 2022-2024 Biennial Budget and Capital Improvement Plan to reappropriate the
remaining $44,813 of CalRecycle Local Assistance Grant funding to Fiscal Year 2024
SUMMARY AND RECOMMENDATION
Pursuant to SB 1383, the City is required to procure a significant quantity of compost or mulch annually. Under the proposed agreement with Applied Landscape Materials, Inc. (ALM), ALM will apply composted mulch to approximately six acres of landscaped areas in City parks. This project will enhance the landscaped areas in City parks and assist the City in meeting its requirements under SB 1383. This contract is funded through an existing grant with CalRecycle and Measure D funding.
Staff recommends that the City Council adopt a resolution approving an agreement with Applied Landscape Materials, Inc. to apply composted mulch to landscaped areas in City parks and to amend the 2022-2024 Biennial Budget and Capital Improvement Plan to reappropriate the remaining $44,813 of CalRecycle Local Assistance Grant funding to Fiscal Year 2024.
BACKGROUND
The purpose of SB 1383 is to reduce the release of greenhouse gases from landfills by diverting organic material and using that material to create compost and composted mulch. SB 1383 requires the City to both increase the diversion of organic material from landfills and purchase significant quantities of compost or composted mulch. The purpose of the requirement is to create a market for the increased quantity of compost and mulch. This agreement with ALM will assist the City in meeting its procurement targets for both 2023 and 2024.
The application of mulch can provide numerous benefits. In addition to improving the aesthetics of the City's parks, the application of mulch conserves water by slowing evaporation, improves soil structure as it decomposes, and protects tree roots from extreme temperatures.
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The City received a $69,886 Local Assistance Grant from CalRecycle in fiscal year 2023 for the purchase of a compost top spreader and SB 1383-compliant compost and composted much. $25,073 was used to purchase a compost top spreader. The remaining $44,813 would be allocated to help pay for this agreement. The remaining funds will come from the City's Measure D fund balance in the amount of $150,187.
DISCUSSION/ANALYSIS
Staff released an RFP for the aeration and topdressing with compost to turf and applying composted mulch to landscaped areas in City parks. There were no proposals for the aeration and topdressing with compost and only ALM submitted a proposal for the application of composted mulch. ALM is very well qualified to conduct this scope of work. ALM has an existing contract with the City to apply engineered wood fiber product to City playgrounds.
Approval of the contract will allow ALM to begin applying the composted mulch prior to the end of 2023. This will assist the City with meeting the SB 1383 procurement target for 2023. The remaining mulch will be applied in 2024, which will assist the City with meeting the 2024 procurement target.
FISCAL IMPACT
The remaining $44,813 of CalRecycle Local Assistance Grant funding (Fund 492), along with up to $150,187 of budgeted Measure D Funds (Fund 215) would be used for this contract.
Staff recommends amending the 2022-2024 Biennial Budget and Capital Improvement Plan to reappropriate the remaining $44,813 of CalRecycle Local Assistance Grant funding to Fiscal Year 2024.
REVIEW AND APPROVAL
Prepared by - James Scanlin, Environmental Services Manager Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
ALM Resolution
Contractual Services Agreement
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING A CONTRACTUAL SERVICES
AGREEMENT WITH APPLIED LANDSCAPE MATERIALS,
INC. TO APPLY COMPOSTED MULCH TO LANDSCAPED
AREAS IN CITY PARKS AND AMENDING THE 2022-2024
BIENNIAL BUDGET AND CAPITAL IMPROVEMENT PLAN
TO REAPPROPRIRATE THE REMAINING $44,813 OF
CALRECYCLE LOCAL ASSISTANCE GRANT FUNDING TO
FISCAL YEAR 2024
WHEREAS, SB 1383 requires the City of Newark to procure a significant quantity of compost or composted mulch annually; and
WHEREAS, applying mulch to landscaped areas in City parks will assist the City in meeting its procurement requirements under SB1383 for 2023 and 2024; and WHEREAS, applying mulch to landscaped areas in City parks will improve aesthetics, conserve water, suppress weeds, and protect trees from excessive heat; and WHEREAS, the City released a request for proposals to apply mulch to landscaped areas in City parks, and Applied Landscape Materials, Inc. was the only firm to submit a proposal; and
WHEREAS, Applied Landscape Materials, Inc. is well qualified to provide the service.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Manager is hereby authorized to execute the Contractual Services Agreement with Applied Landscape Materials, Inc., in a form approved by the City Attorney, in an amount not to exceed $195,000 to apply SB 1383-Compliant composted mulch to landscaped areas in City parks.
BE IT FURTHER RESOLVED that the City Council of the City of Newark hereby approves amending the 2022-2024 Biennial Budget and Capital Improvement Plan to reappropriate the remaining $44,813 of CalRecycle Local Assistance Grant funding to Fiscal Year 2024.
BE IT FURTHER RESOLVED that the City Manager is authorized to take all actions necessary to effectuate the intent of this Resolution.
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CONTRACTUAL SERVICES AGREEMENT
CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 20 by and between the CITY OF NEWARK, a municipal corporation (“City”), and Applied Landscape Materials, Inc. (“Consultant”), collectively the “Parties”.
W I T N E S S E T H:
WHEREAS, City requested proposals to perform the services generally including: THE APPLICATION OF SB 1383-COMPLIANT COMPOSTED MULCH TO CITY PARKS.
WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the Services more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.
WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.
NOW, THEREFORE, the Parties hereto agree as follows:
1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.
2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.
Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.
3. COMPENSATION.
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A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.
Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of One Hundred Ninety-Five Thousand and No/100 Dollars ($195,000,000.00) unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount.
B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).
Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.
Invoices shall be sent to:
City of Newark
Attn: Finance Department
37101 Newark Blvd.
Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.
C. Payment. Upon receipt of an invoice, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.
D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).
4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and Packet Page 263
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reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.
5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services rendered pursuant to this Agreement.
Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its Subconsultants, if any, identified in Exhibit “C”. Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or Subconsultants identified in Exhibit “C”, without the prior written consent of City. All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.
Consultant agrees to include with all Subconsultants in their subcontract the same requirements and provisions of this Agreement including the indemnity and Insurance requirements to the extent they apply to the scope of the Subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subconsultant further agrees to include these same provisions with any Sub-subconsultant. A copy of this Agreement’s Indemnity and Insurance provisions will be furnished to the Subconsultant upon request. The Consultant shall require all Sub-subconsultants to provide a valid certificate of insurance and the required endorsements included in this Agreement prior to commencement of any Services and will provide proof of compliance to the City.
In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or Subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.
7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.
8. INFORMATION AND DOCUMENTATION.
A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes Packet Page 264
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additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.
B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.
C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.
9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.
10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.
11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement.
Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.
12. PUBLIC WORKS REQUIREMENTS. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public Packet Page 265
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works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the California Labor Code applicable to public works, to the extent set forth in Exhibit D.
13. PUBLIC WORKS CONTRACTOR REGISTRATION. Consultant agrees, in accordance with Section 1771.1 of the California Labor Code, that Consultant or any subconsultant shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code section 1725.5.
It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.
A. Verification of Coverage.
Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.
Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:
CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.
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B. Minimum Scope of Insurance.
Coverage shall be at least as broad as:
1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and
2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and
4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.
C. Minimum Limits of Insurance.
It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.
Consultant shall maintain limits no less than:
1. General Liability:
(including products and
completed operations,
property damage, bodily
injury, and personal and
advertising injury)
$2,000,000 per occurrence for
bodily injury, personal injury, and
property damage. If a general
aggregate limit applies, either the
general aggregate limit shall apply
separately to this project/location or
the general aggregate limit shall be
twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
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4. Errors and Omissions
Liability:
$1,000,000 per occurrence or
claim; $2,000,000 aggregate.
D. Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.
E. Claims Made Policies.
For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.
F. Wasting Policies.
No policy required by this paragraph 14 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).
G. Remedies.
In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
3. Terminate this Agreement.
H. Acceptability of Insurers.
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Packet Page 268
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Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
I. Other Insurance Provisions.
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.
2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.
3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.
4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.
5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.
6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.
7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.
8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.
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9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.
15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.
16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants.
Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.
In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established.
An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the Packet Page 270
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sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.
The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.
The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.
Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.
18. TERM/TERMINATION.
A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire upon completion of performance of Services hereunder by Consultant.
B. Notwithstanding the provisions of paragraph 18 Section A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3.
In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.
19. CONTRACT ADMINISTRATION. This Agreement shall be administered by ENVIRONMENTAL SERVICES MANAGER of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.
20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:
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CITY OF NEWARK
APPLIED LANDSCAPE MATERIALS INC. ENVIRONMENTAL SERVICES Consultant Administrator
Address: 4500 Pacific Street
Suite D
Rocklin, CA
95677
City of Newark
Attn: _James Scanlin______
37101 Newark Boulevard
Newark, CA 94560
21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.
22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.
23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.
24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.
25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.
27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.
28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.
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30. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.
31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF NEWARK, APPLIED LANDSCAPE
a municipal corporation MATERIALS INC.
By By
City of Newark Consultant
Date Date
Printed Name
Attest:
City Clerk
Date
Approved as to form:
City Attorney
Date
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EXHIBIT A
SCOPE OF SERVICES
Scope of Work:
Applied Landscape Materials, Inc (ALM) will procure, deliver and install SB1383 compliant mulch, utilizing our state-of-the-art mulch blower trucks, to an average depth of 3 inches in the locations and quantities listed below as requested by the city of Newark.
Birch Grove: 524 cubic yards
Bridgepoint: 161 cubic yards
Byington: 121 cubic yards
Civic Center: 726 cubic yards
Mayhews Landing: 968 cubic yards
Mulch may be applied to other areas at the direction of Maintenance staff.
ALM will also clean-up mulch over spray from walkways, streets and paths.
Prior to installation, ALM will submit a sample of SB1383 compliant mulch, along with certification, for the city to approve.
ALM will work with the city to identify priority areas and determine a schedule that meets the city’s needs and expectations. ALM will provide a proposed schedule for application to the City at least 10 days prior to the start date and work with the Assistant Maintenance Superintendent to determine exact schedule of application.
Each blower truck crew installs 2-3 loads in a typical work day. This equates to 80-180 cubic yards of material based on the truck size required for access. To minimize impact to Newark residents, we propose running one crew and prioritize the locations based on city needs. This approach will provide time for at least 30% of the mulch installation to be completed prior to the end of 2023, pending material availability. If there is an instance that requires a more aggressive schedule, ALM has the resources to mobilize additional crews and will work with the city on any specific scheduling requirements.
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EXHIBIT B
PAYMENT
Payment Schedule:
The prices listed below are inclusive of delivery, set-up time, staging and travel time to and from the job site. Prices are also based on a minimum of one full truck load (40-65 cubic yards).
SB1383 Compliant mulch per cubic yard: $27.00
Prevailing Wage Labor to Install per cubic yard: $29.00 Charge for distances greater than 275 feet from truck: For distances beyond 275 feet from where the truck can be parked, a fee of $300 per day will be added.
Suggestions to minimize distance from the truck are noted in Exhibit C Section II. ALM will work with the City to determine the most cost-effective, acceptable solution. Pricing does not include traffic control.
Applied Landscape Materials will invoice the city of Newark on a per-location basis, once installation at that location is completed. Invoices will specify the cost of the compost and the certification of the compost as SB 1383 Compliant.
ALM will provide photos of the installed areas, certification of the material installed along with the name, location and contact of the production facility,
No pre-payment or deposit is required.
Payment Terms are Net30 upon receipt of each invoice.
Remit Address:
Applied Landscape Materials, Inc.
4500 Pacific St. Suite O
Rocklin, CA 95677
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EXHIBIT C
QUALIFICATIONS
B. I: Staffing / Team Experience / Equipment:
ALM employs a dedicated crew of Installation Specialists who range in years of experience from 1 to 17 years, we do not utilize subcontractors. Our Installation Specialists are trained in Quality and Customer Service as well as Time Management. Our team is cross-trained in all aspects of the bark installation process as well as working with multiple team members. This provides a level of service and culture that is unmatched in the industry.
ALM owns and operates a fleet of eleven state-of-the-art mulch blowing trucks of varying sizes which provides us the ability to access areas that aren’t suitable for a tractor trailer and are powerful enough to extend the installation area as far as 500 feet from the truck location.
While based in the Sacramento area, ALM has a satellite location in the Sunol / Pleasanton area and has been servicing the south and east bay as well as the peninsula since 2017. This location is equipped with both large and small blower trucks which allows for the capability to perform large and small projects as well as projects with difficult access. Our team members in the Sacramento area often assist and are readily available if a particular project or schedule requires additional resources.
C. II: Understanding of Requested Service:
ALM is the largest bark installation company in northern California. In the past 12 months, we have supplied and installed more than 100,000 cubic yards of landscape bark, mulch and playground surface material. Installation projects range from 30-yard residential landscapes to 3000-yard streetscape projects.
In 2022, prior to the procurement requirements for SB1383 which began earlier this year, we worked with CalRecycle, certified material generators and municipalities to understand the regulations, manufacturing and needs of all parties involved. In 2023 we have been actively procuring and installing SB1383 compliant material throughout the Sacramento region. We work with SB1383 compliant facilities throughout northern California to find the best solution for our customers based on the project location.
Our team has personally inspected each location in the RFP that is designated to receive SB1383 mulch. Below is our assessment of the access and installation plan:
• Birch Grove: Parking lot access good. Long pull area 1000ft can access 300ft from street rest would have to run small truck on walk path if customer approves. • Bridgepointe: Access good.
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• Byington: Access good.
• Civic Center: Access good will have to back big truck in by train tracks, 400ft pull. • Mayhews Landing: Access good 500ft pull. If approved by customer, possibly run small truck on trail for what can’t be reached.
Our approach to projects of this scale is to stage material at our yard. This is the most cost effective and minimally invasive process so as not to disturb the residents in Newark. There is no need to take up valuable street, parking or park space for piles of material or large material loaders for days at a time. This method will also require the absolute minimum of clean-up and disruption to those residents enjoying the park space during the installation process.
D. III: Experience Providing Similar Services:
Applied Landscape Materials, Inc. (ALM) has been in the business of providing natural and recycled wood mulch materials in the greater Sacramento area for 17 years. During that time, we have installed more than 1.3 million cubic yards of landscape bark, mulch and playground surface material using our state-of-the-art blower trucks and trailers. That is enough material to cover 1 square acre 80 stories tall. No other service provider in northern California comes close to our throughput and experience.
We work with a cross-section of customers: municipalities, school districts, landscape contractors, property managers and home owners. Project sizes vary from 30 to several thousand cubic yards. We have the resources to install as much as 1,200 cubic yards of material per day.
IV: References:
Elk Grove CSD:
• Installed over 15,000 cubic yards of Engineered Wood Fiber and Decorative Mulch in playgrounds, parks and streetscapes.
• Submitted detailed traffic plan and managed traffic control as needed. • Hal Smith: 916-869-3515 ; [email protected]
City of Rocklin:
• Installed over 12,000 cubic yards of Decorative Mulch in park landscapes and playgrounds as required.
• Shawn Darling: 916-625-5282 ; [email protected] City of San Jose:
• Installed over 10,000 cubic yards of Engineered Wood Fiber in park playgrounds as required.
• Joshua Saavedra: 408-829-8766 ; [email protected] Packet Page 277
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E. V: Resumes:
• Brendan Immers, Owner: Mr. Immers started ALM in the city of Rocklin in 2006 out of a pick-up truck with a tow behind, 5-yard blower unit. Since then, Mr. Immers and his team have grown ALM into a fleet of eleven state-of-the-art mulch blowing trucks operating all over northern California. In the last 12 months, ALM has supplied and installed enough mulch to cover a football field nine stories tall. Mr.
Immers oversees the entire organization and has put in place an expert management team responsible for each business unit.
• Aaron Pombo, Field Operations Manager: Mr. Pombo joined ALM in 2011 as an Installation Specialist. Mr. Pombo earned his Class A license in 2013 and has worked his way up to Project Lead in 2015. In early 2022 Mr. Pombo was promoted to manager of field operations. In this role, Mr. Pombo oversees the entire fleet of 11 blower trucks and crew, as many as 25 team members. Mr. Pombo works closely with our inside sales, finance and scheduling team members to make sure information is communicated across all business units. Mr. Pombo also works closely with our onstaff mechanic to assure all equipment and vehicles are operating at peak performance.
• Taylor Gragg, Bay Area Crew Lead: Mr. Gragg has been with ALM since mid2018. Mr. Gragg began as a mulch installation specialist. Mr. Gragg aspired to be a mulch operator and took the initiative to earn his Class A drivers license in the fall of 2021. At that time, Mr. Gragg was promoted to operator / driver and responsible for running his own team to perform mulch installation services utilizing our blower trucks. At the beginning of 2023, Mr. Gragg again showed initiative and requested to run our operations in the Bay Area. In the past 9 months, Mr. Gragg has demonstrated his ability to perform, manage and operate this division efficiently and with superior performance and customer service.
F. VI: Schedule:
Each blower truck crew typically runs two loads in a normal 8 hour work day. This equates to 80-120 cubic yards of material depending on the truck size required for access. To minimize impact to Newark residents, we would propose running one crew and prioritize the locations based on city needs. This approach will provide time for the mulch installation to be completed prior to the end of 2023, pending material availability. If there is an instance that requires a more aggressive schedule, ALM has the resources to work with the city on any specific scheduling request.
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EXHIBIT D
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to 8 hours during any one calendar day, and 40 hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of 8 hours during any one calendar day and 40 hours during any one calendar week is permitted upon compensation for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any one calendar week at not less than oneand-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply with California Labor Code Section 1775, which establishes a penalty for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage Packet Page 279
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obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of California Labor Code Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.
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The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be submitted directly to the Labor Commission, and available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non-manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
3331575.1
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Item D. 9.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT Adopt a resolution approving a lease agreement with Viola Blythe Community Service Center of Newark, Inc.
SUMMARY AND RECOMMENDATION
Viola Blythe Community Service Center of Newark, Inc. (Viola Blythe) is a nonprofit organization dedicated to promoting, supporting, and advocating for social and human services for individuals in need. Viola Blythe wishes to enter into a new three-year lease agreement for the continued use of Jerry Raber Ash Street Park Building No. 1 located at 37365 Ash Street. The City prepared a new lease agreement that is acceptable to Viola Blythe.
Staff recommends that the City Council approve the lease agreement with Viola Blythe.
BACKGROUND
Since 1989, the City of Newark has leased Building No. 1 of Jerry Raber Ash Street Park, located at 37365 Ash Street, to Viola Blythe. Viola Blythe is a nonprofit organization dedicated to promoting, supporting, and advocating for social and human services for individuals in need. The center provides a range of programs, including emergency food and clothing distribution, referrals to other agencies, and specialized programs that address specific community needs.
The prior lease agreement for the use of the Jerry Raber Ash Street Park Building No. 1 by Viola Blythe has expired. The City and Viola Blythe now seek to enter into a new three-year lease agreement.
DISCUSSION/ANALYSIS
The proposed lease agreement would begin on November 15, 2023, and expire on November 15, 2026. Under the terms of the agreement, Viola Blythe would lease Building No. 1 of the Jerry Raber Ash Street Park for a rental fee of $1 per year for the three-year lease period. This lease is appropriate as Viola Blythe provides a public purpose including emergency food and clothing distribution, referrals to other agencies, and specialized programs that address specific community needs. The lease agreement has been updated to include a number of appropriate provisions and includes modifications for an increase from a maximum of $110 per month to a Packet Page 282
maximum of $150 per month for Viola Blythe's share of electrical utility costs. Viola Blythe has agreed to the proposed lease agreement.
FISCAL IMPACT
There is no fiscal impact associated with this action. Utility and maintenance costs associated with operation of the Viola Blythe Community Service Center are included in the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024.
Funding for future utility and maintenance needs would be proposed with the next Biennial Budget and Capital Improvement Plan process. The current average annual cost to the City to maintain this facility is approximately $12,000.
REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Viola Blythe Resolution
Viola Blythe Lease
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(dbr1)
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING A LEASE AGREEMENT WITH VIOLA
BLYTHE COMMUNITY SERVICE CENTER OF NEWARK,
INC. FOR THE JERRY RABER ASH STREET PARK BUILDING
NO. 1 LOCATED AT 37365 ASH STREET TO PROVIDE A
VARIETY OF COMMUNITY PROGRAMS
WHEREAS, the current lease agreement for the Viola Blythe Community Service Center of Newark (“Viola Blythe”) for use of the Jerry Raber Ash Street Park Building located at 37365 Ash Street (the “Premises”) has expired; and
WHEREAS, the City has leased the Premises to Viola Blythe since 1989; and WHEREAS, Viola Blythe promotes, supports and advocates for social and human services to any person who is in immediate need. This mission is accomplished by a variety of programs, including emergency food and clothing distribution, referrals to other agencies, special programs that address current community needs and holiday programs; and WHEREAS, the City Council desires to approve a lease agreement with Viola Blythe for the Jerry Raber Ash Street Park Building No. 1 located at 37365 Ash Street, Newark, for a threeyear period from November 15, 2023 through November 15, 2026, for a rental fee of $1 per year.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark approves a lease agreement with Viola Blythe to provide a variety of community programs at the Jerry Raber Ash Street Park Building No. 1 located at 37365 Ash Street, Newark (the “Agreement”).
BE IT FURTHER RESOLVED that the City Manager is authorized to take any actions necessary to effectuate the intent of this Resolution and execute the Agreement, including any necessary modifications, in a form approved by the City Attorney.
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LEASE AGREEMENT
THIS LEASE AGREEMENT made an entered into this 1st day of __________________, by and between the CITY OF NEWARK, CALIFORNIA, a municipal corporation, hereinafter referred to as “City” or “Lessor”, and the VIOLA BLYTHE COMMUNITY SERVICE CENTER OF NEWARK, Inc., a California not for profit Corporation, hereinafter referred to as Lessee (this “Agreement”).
RECITALS
A. Lessor is the owner in fee title to real property known as Alameda County Assessor's Parcel Number: 092-0148-014-01, located at 37365 Ash Street, Newark, California (the “Property”), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
B. Lessee currently occupies a portion of the Property, located at 37365 Ash Street, Building No. 1, Newark, California (the “Premises”) as more particularly described in Exhibit B attached hereto and incorporated herein by this reference.
C. Lessee promotes, supports and advocates for social and human services to any person who is in immediate need. This mission is accomplished by a variety of programs, including emergency food and clothing distribution, referrals to other agencies, special programs that address current community needs and holiday programs at Thanksgiving and Christmas (the “Services”).
D. Lessee desires to lease the Premises from the City and the City desires to lease the Premises to the Lessee subject to the terms and conditions of this Agreement.
E. The City has determined that the execution of this Agreement is in the best interests of the health and welfare of the citizens of the Newark and it is a benefit to the residents of Newark to have the Lessee provide the Services at the Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lessor and Lessee hereby agree as of the Effective Date as follows.
1. INCORPORATION OF RECITALS
The Parties acknowledge the truth of the Recitals set forth above, and all such Recitals are hereby incorporated into this Agreement.
2. CREATION OF LEASE
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises for the Term, as defined in section 3, subject to the terms and conditions and for the purposes set forth in this Agreement. The Lessee will lease the Premises in its “AS IS” condition as such condition exists as of the Commencements Date.
3. TERMS
The term of this Agreement (the “Term”) shall commence on November 15, 2023 (the “Commencement Date”), and unless terminated earlier pursuant to the provisions hereof, shall expire on the 3rd anniversary of the Commencement Date (the “Expiration Date”). The expiration of the Term or the sooner termination of this Agreement shall be referred to as “Lease Packet Page 285
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Termination.” Lessor or Lessee may obtain Lease Termination prior to the Expiration Date upon 60 days written request.
4. RENT
The rent is One Dollar ($1.00) (“Rent”) per year payable on the Commencement Date and annually on the anniversary of the Commencement Date.
5. TAXES ASSESSMENTS AND OTHER CHARGES
Throughout the Term, the Lessess shall pay prior to delinquency, all real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the Premises or part thereof, including, but not limited to (i) any assessment, levy, imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Premises or any part thereof or any personal property, equipment or other facility used in the operation thereof, or (b) any use or occupancy of the Premises or part thereof. All of the foregoing are hereinafter referred to as “Impositions.”
Upon request by the Landlord, the Tenant shall furnish, in form satisfactory to the Landlord, evidence of payment prior to delinquency of all Impositions payable by the Tenant.
6. USE
The premises are hereby leased to the Lessee for the purpose of providing a Community Service Center to provide the Services. Agreement to this use in this Agreement shall not be deemed a waiver of compliance with any ordinance of the City of Newark now in force or hereafter enforced.
The Lessor reserves the right to locate and construct its own utilities and to grant nonexclusive easements across the Property for utility and other purposes including the installation, maintenance, repair and replacement of utilities; provided that the exercise of such rights do not unreasonably interfere with the Lessee’s use of the Premises for the purposes set forth herein.
7. MAINTENANCE; DAMAGE AND DESTRUCTION
Except as otherwise provided in this Agreement, Lessor shall maintain the Premises including all landscaping and improvements thereon in good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and federal laws, statutes and regulations relating to the use, occupancy or operation of the Premises. Lessee shall notify Lessor of any conditions on the Premises that require maintenance.
In the event of any damage to or destruction of the Premises during the Term, except for damage caused by ordinary wear and tear, the Lessee shall elect by written notice delivered to Lessor within thirty (30) days following the date of the occurrence of the damage to either remove the Improvements or restore and rebuild the Premises as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in any applicable law. If the Lessee elects to restore the Premises, the Lessee shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible and shall commence reconstruction of the Premises within the earlier of ninety (90) days following the Packet Page 286
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date of occurrence of the damage or the date upon which insurance proceeds are made available for such work.
8. NO REPRESENTATIONS AND LESSEE’S COVENANTS
The Lessee acknowledges that except as expressly set forth herein, the Lessor makes no representations or warranties expressed or implied regarding the condition of the Premises or the fitness or suitability thereof for the Lessee’s purposes, including but not limited to, the condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and no patent or latent defect or deficiency in the condition of the Premises shall affect the rights of the Lessee or the Lessor hereunder. The Lessee shall rely solely on its own independent investigation and judgment as to all matters relating to the Premises. The Lessee acknowledges and agrees that prior to the Effective Date it has made such investigations of the Premises, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as Lessee deemed necessary to determine the condition of the Premises, and has approved all such characteristics and conditions and shall lease the Premises in its condition as of the Effective Date “AS-IS” “WHERE-IS” AND WITH ALL FAULTS. The Lessee further acknowledges that the Lessor has made available all data and information on the Property available to the Lessor, but without warranty or representation by the Lessor as to the completeness, correctness or validity of such data and information, except as otherwise set forth in this Agreement.
The Lessee hereby covenants and agrees that throughout the Term:
(a) The Premises, and the use and operation thereof, shall be in compliance with all Hazardous Materials Laws, and the Lessee shall not cause or permit the Premises or any portion thereof to be in violation of any Hazardous Materials Laws (as defined on Exhibit A, attached hereto).
(b) The Lessee shall not permit the Premises or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials (as defined on Exhibit C, attached hereto) nor shall the Lessee permit the presence or release of Hazardous Materials in, on, under, about or from the Premises.
9. WASTE, QUIET CONDUCT
Lessee shall not commit, or suffer to be committed, any waste upon the said premises, or any nuisance, or other act or thing which may disturb the quiet enjoyment of any other tenant.
10. ALTERATIONS, MECHANICS’ LIENS
Lessee shall not make or suffer to be made, any alterations of the Premises (“Improvements”), or any part thereof without the written consent of Lessor, any additions to, or alterations of, the Premises, except movable furniture and trade fixtures, shall become at once a part of the Premises and belong to Lessor. Lessee shall keep the Premises and the Property free from any liens arising out of any work performed, material furnished, or obligations incurred by Lessee.
Lessee further grants Lessor to the right to inspect the Premises to assure compliance with the provisions of this Section and all other provisions of this Agreement.
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11. UTILITIES
a. Lessee shall obtain and pay for all telephone service and shall pay the City of Newark 25% of the City’s total Ash Street Park electrical bills not to exceed $150 per month. Payment shall be made by Lessee on the following dates after receipt of invoices from the City of Newark:
January 31, 2024, for electric services for the months of November 2023 through December 2023,
July 31, 2024, for electric services for the months of January 2024 through June 2024, and every six months thereafter through the lease period. b. Lessor shall provide water service at no additional charge to Lessee.
12. JANITORIAL
Lessee shall, at its own cost, provide janitorial services as needed to keep the interior of the premises in good and sanitary order.
13. ACCEPTANCE OF PREMISES AS IS, SURRENDER AT END OF TERM By entry hereunder, Lessee accepts the premises as being in good and sanitary order, condition and repair and agrees on the last day of said term, or sooner termination of this lease, to surrender unto Lessor all and singular said premises with said appurtenances in the same condition as when received, reasonable use and wear thereof and damage by fire, Act of God or by the elements accepted, and to remove all of Lessee’s signs from the premises.
14. COMPLIANCE WITH LAW
Lessee shall, at its sole cost and expenses, comply with all the requirements of all Municipal, State and Federal authorities now in force, or which may hereafter be in force, pertaining to the said premises, and shall faithfully observe in the use of the premises all applicable Municipal ordinances, local law, and State and Federal statues now in force or which may hereafter be in force. The judgement of any court of competent jurisdiction, or the admission of Lessee in any action or proceeding against Lessee, whether Lessor be a part thereto or not, that Lessee has violated any such ordinance or statute in the use of the premises shall be conclusive of the fact as between Lessor and Lessee.
No narcotics or drugs as defined by the Health and Safety Code as being illegal, an no alcoholic beverages of any kind, shall be permitted on the premises.
Lessee shall not use the premises in any manner which constitutes a public or private nuisance by the statute or common law.
Lessee further grants the Police Department the right to inspect the premises and surrounding areas at any time to assure compliance with law.
15. INDEMNIFICATION; NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS The Lessee shall indemnify, defend (with counsel reasonably acceptable to the Lessor) and hold the Lessor, its officers, officials, employees, agents and volunteers (“Indemnitees”) harmless from and against any and all Claims arising during the Term and arising from or in connection with any of the Packet Page 288
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following: (i) the operation or management of the Premises, (ii) any work or thing done on or in the Premises, (iii) any condition of any alteration or addition constructed by the Lessee on the Premises, (iv) any breach by the Lessee in the performance of any covenant or agreement to be performed by the Lessee pursuant to the terms of this Agreement, (v) any negligence of the Lessee, or any of its agents, contractors, subcontractors, employees, or licensees, (vi) any accident, injury or damage caused to any person occurring during the Term in or on the Premises, and (vii) the furnishing of labor or materials by the Lessee or its contractors, subcontractors, employees, or agents. In the event any such action or proceeding is brought against the Lessor by reason of any such Claim, the Lessee, upon notice from the Lessor, covenants to defend such action or proceeding by counsel reasonably satisfactory to the Lessor. If an insurer under insurance required to be maintained by the Lessee hereunder shall undertake to defend the Lessor under a reservation of rights with respect to ultimate coverage and the Lessor shall reasonably deem it necessary to retain independent counsel with respect to such matter, the Lessee shall pay the reasonable fees of such counsel. The obligations of the Lessee under this Section shall not apply to any Claim or other matter to the extent such arises as a result of the gross negligence or willful misconduct of the Indemnitees. This Section shall survive the expiration or earlier termination of this Agreement.
16. INSURANCE
Lessee shall acquire and maintain Workers' Compensation, employer’s liability, and commercial general liability insurance coverage relating to the activities of Lessee, its agents, representatives, or employees in, on, upon, or relating to the Premises.
The minimum amounts of coverage corresponding to the aforesaid categories of insurance per insurable event shall be as follows:
Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the occupancy of the premises.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence Form CG00 01).
Worker’s Compensation insurance as required by the State of California, including Employer’s Liability Coverage.
Minimum Limits of Insurance
Lessee shall maintain limits no less than:
1. General Liability (GCL):
(including operations,
products and completed
operations, as applicable.)
$2,000,000 per occurrence for bodily
injury, personal injury and property
damage. If Commercial General Liability
Insurance or other form with a general
aggregate limit is used, either the general
aggregate limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required occurrence
limit.
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2. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers’ or the Lessee shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Lessee shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to City requirements. All certificates and endorsements are to be received and approved by the City before work commences.
The City reserves the right to requirement complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Other Insurance Provisions
The commercial general liability and automotive liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insureds. The City, it officers, officials, employees, and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Lessee.
Primary Insurance. For any claims related to this project, the Lessee’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Lessee’s insurance and shall not be contribute with it.
Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that the coverage shall not be canceled by either party, except after ten (10) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
Civil Code §2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
Qualifications. All insurance companies providing coverage to Lessee shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
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Waiver of Subrogation. With respect to Workers’ Compensation, the insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees, and volunteers for losses arising from work performed on the premises by Lessee.
17. ASSIGNMENT OR SUBLETTING
The Lessee shall have no right to sell, transfer, sublet, assign, encumber, hypothecate or otherwise convey (“Transfer”) its leasehold interest hereunder or any portion of its interest in the Premises, any Improvements or this Agreement voluntarily, involuntarily, by operation of law, or otherwise, without the Lessor’s prior written consent. No voluntary or involuntary assignee, subtenant, or successor in interest of the Lessee shall acquire any rights or powers under this Agreement absent such consent.
Nothing contained in this Agreement shall be deemed in any way to limit, restrict or otherwise affect the right of the Lessor to sell, transfer, assign or convey all or any portion of the right, title and estate of the Lessor in the Property and in this Agreement. At such time as the Lessor shall sell, transfer, assign or convey the entire right, title and estate of the Lessor in the Property and in this Agreement, all obligations and liability on the part of the Lessor arising under this Agreement after the effective date of such sale, transfer, assignment or conveyance shall terminate as to the Lessor, and thereupon all such liabilities and obligations shall be binding upon the transferee.
18. NO THIRD-PARTY BENEFICIARIES; DISCLAIMER OF PARTNERSHIP Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties any rights or remedies hereunder. The relationship of the parties under this Agreement is solely that of landlord and tenant, and it is expressly understood and agreed that the Lessor does not as a result of this Agreement in any way nor for any purpose become a partner of the Lessee or a joint venturer with the Lessee in the conduct of the Lessee’s business or otherwise. This Agreement is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or association as between the Lessor and the Lessee.
19. NOTICES
Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent), postage prepaid and addressed to:
Lessor:
City Manager and City Attorney
City of Newark City of Newark
37101 Newark Boulevard 37101 Newark Boulevard
Newark, CA 94560 Newark, CA 94560
Lessee:
President of the Board
Viola Blythe Community Service Center of Newark, Inc.
37365 Ash Street, Building #1
Newark, CA 94560
20. HOLDING OVER
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Any holding over after the expiration of the term or notice of termination shall be at a monthly rental of $1.00 and shall otherwise be on the terms and conditions herein specified, so far as applicable.
21. GOVERNING LAW; ATTORNEY’S FEES
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California.
If either Party commences an action against the other to enforce any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined by the court having jurisdiction over the action.
22. NON-DISCRIMINATION AND COMPLIANCE WITH LAWS
The Lessee herein covenants by and for the himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this Agreement is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the Lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.
The Lessee, at its sole cost and expense, shall comply with all applicable state and federal laws and regulations, including without limitation, all applicable state and federal labor laws and standards, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et seq., and the Unruh Civil Rights Act, California Civil Code Section 51, et seq. pertaining to the use, operation, and management of the Premises and all City ordinances and regulations relating to the conduct of construction, including without limitation, all City ordinances and regulations relating to noise and maintenance of the Premises.
The Lessee shall not itself use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property or the Premises which would result in a nuisance or a violation of law. The Lessee shall use its best efforts to not permit any permittees, licensees, guests or invitees to use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property or the Premises which would result in a nuisance or a violation of law.
23. WAIVER; AMENDMENTS
No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance Packet Page 292
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of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party.
This Agreement shall be amended only by written agreement of the parties hereto.
24. ENTIRE AGREEMENT
This instrument constitutes the entire agreement between the Parties relative to the Premises and this Agreement and may be altered only by an instrument in writing signed by the Parties. The Parties agree hereby that all prior or contemporaneous oral agreements between and among themselves and their agents or representatives relative to the leasing of the Premises are merged in or revoked by this Agreement.
25. SEVERABILITY
If any term or provision of this Agreement shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of the lease shall be valid and be enforceable to the fullest extent permitted by law.
26. HEADINGS
The headings used in this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written.
VIOLA BLYTHE COMMUNITY CITY OF NEWARK
SERVICE CENTER OF NEWARK, INC
By_______________________________ By_______________________________ Debra Rodriguez, Executive Director David J. Benoun, City Manager Attest_____________________________
Sheila Harrington, City Clerk
Approved as to form:
__________________________________
Kristopher J. Kokotaylo, City Attorney
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Exhibit A
PROPERTY
That Real Property located at 37365 Ash Street, Newark, California. (Assessor’s Parcel No. 092-0148-014-01)
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Exhibit B
THE PREMISES
Building No. 1,
37365 Ash Street
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Exhibit C
DEFINITIONS
Hazardous Materials. As used herein, “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local, state or federal authority, Landlord or governmental body, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
Hazardous Materials Laws. As used herein “Hazardous Materials Laws” means all federal, state and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the definition of Hazardous Materials, as any of the foregoing may be amended from time to time.
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Item D. 10.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Esther Jung, Associate Civil Engineer
SUBJECT Adopt a resolution approving an amendment to the Contractual Services Agreement with Cal West Lighting & Signal Maintenance for additional traffic signal and street light maintenance services SUMMARY AND RECOMMENDATION
The City previously awarded an on-call contractual services agreements to Cal West Lighting & Signal Maintenance (Cal West) and another consultant, Bear Electrical Solutions, Inc. (Bear Electrical), for traffic signal and street light maintenance services.
The volume of required traffic signal and street light maintenance has remained high and steady over the past year. Staff amended the agreement with Cal West to extend the duration of the agreement while the agreement with Bear Electrical has expired.
To continue meeting the growing need for this vital service, an amendment to the agreement with Cal West is required to increase their annual not-to-exceed amount to provide for the additional service.
Staff recommends amending the Contractual Services Agreement with Cal West to increase the not-to-exceed amount for Fiscal Year 2024 from $100,000 to $250,000.
BACKGROUND
In June 2020, the City Council awarded on-call contractual services agreements to Bear Electrical and Cal West for a two-year term to provide traffic signal and street light maintenance services. Each agreement had an annual not-to-exceed amount of $100,000, based on the Public Works Maintenance Division’s Operating Budget for Equipment Repair and Maintenance.
In June 2022, pursuant to the terms of the Agreements, the City extended the Agreements with both Bear Electrical and Cal West for an additional one-year term through June 30, 2023, each with a not-to-exceed amount of $100,000. These not-to-exceed amounts were again based on Public Works Maintenance Division’s Operating Budget for Equipment Repair and Maintenance in the 2022-2024 Biennial Budget for Fiscal Year 2023.
In May 2023, the City Council approved Amendment No. 1 to the agreements with Bear Electrical to increase their not-to-exceed amount for Fiscal Year 2023 to $107,072 and Packet Page 297
with Cal West to increase the not-to-exceed amount for Fiscal Year 2023 to $220,350.
The new not-to-exceed amount for Fiscal Year 2023 for Cal West included $50,424 for the installation of 88 street name signs at the City’s signalized intersections as part of the second and final phase of Citywide Traffic Signal Street Name Signs, Project 1201.
In July 2023, the City elected to allow the City's agreement with Bear Electrical to expire and extended the agreement with Cal West. Cal West’s agreement will be in effect for an additional one-year term through June 30, 2024, with a current not-to-exceed amount of $100,000.
DISCUSSION/ANALYSIS
The demand for traffic signal and street light maintenance remains consistently high.
This situation necessitates continued and reliable maintenance services to ensure public safety and functionality.
With the conclusion of the agreement with Bear Electrical Solutions, Cal West is now responsible for providing all traffic signal and street light maintenance services while utilizing only half of the Public Works Department’s Operating Budget for Equipment Repair and Maintenance. This presents a challenge in maintaining the high standards of service required to meet the City's needs.
Furthermore, Cal West's work on the second phase of Citywide Traffic Signal Street Name Signs, Project 1201, approved for Fiscal Year 2023 under Amendment No. 1 to Cal West's agreement faced delays due to scheduling issues with contractors and was ultimately completed in Fiscal Year 2024.
To address these changes, staff recommends adding the annual not-to-exceed amount of $100,000 from Bear Electrical’s previous agreement to the not-to-exceed amount of Cal West’s agreement in addition to the approved Fiscal Year 2023 budget of $50,000 for the second phase of Citywide Traffic Signal Street Name Signs, Project 1201. This adjustment would provide the budget necessary to amend the agreement with Cal West to increase the not-to-exceed amount for Fiscal Year 2024 from $100,000 to $250,000.
FISCAL IMPACT
Public Works Maintenance Division’s Operating Budget for Equipment Repair and Maintenance (Fund 140) has sufficient funds to support an additional $100,000 of annual traffic signal and streetlight maintenance services for Cal West’s agreement, for a total amount of $200,000. The remaining $50,000 increase to Cal West’s agreement will be funded from a previously approved Capital Improvement Plan project, Citywide Traffic Signal Street Name Signs, Project 1201. No budget amendments are necessary for Amendment No. 2 to the Contractual Services Agreement with Cal West.
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REVIEW AND APPROVAL
Prepared by - Esther Jung, Associate Civil Engineer
Reviewed by - Jayson Imai, City Engineer
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Cal West Resolution
Amendment No. 2 Cal West
Resoluton No. 11504
Contractual Services Agreement - Cal West
Amendment No. 1 Cal West
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING AMENDMENT NO. 2 TO THE
CONTRACTUAL SERVICES AGREEMENT WITH CAL WEST
LIGHTING & SIGNAL MAINTENANCE FOR TRAFFIC
SIGNAL AND STREET LIGHT MAINTENANCE SERVICES
WHEREAS, the City of Newark awarded a Contractual Services Agreement to Cal West Lighting & Signal Maintenance for on-call traffic signal and street light maintenance services; and
WHEREAS, pursuant to Section 18 of the Agreements entitled, “Term/Termination” the City elected to extend the Agreement with Cal West Lighting & Signal Maintenance for an additional one (1) year term from July 1, 2023 through June 30, 2024, with a not-to-exceed amount of $100,000; and
WHEREAS, staff has identified a need to amend the Contractual Services Agreement to increase the not-to-exceed amount.
NOW THEREFORE, BE IT RESOLVED that the City Council hereby approves Amendment No. 2 to the Contractual Services Agreements with Cal West Lighting & Signal Maintenance to increase the not-to-exceed amount of the Contractual Services Agreement for Fiscal Year 2024 to Two Hundred Fifty Thousand Dollars ($250,000.00).
BE IT FURTHER RESOLVED that the City Council hereby authorizes the City Manager to execute the above Contractual Services Agreement amendment, in a form approved by the City Attorney.
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1 SECOND AMENDMENT TO THE CONTRACTUAL
SERVICES AGREEMENT BETWEEN THE CITY OF
NEWARK AND CAL-WEST LIGHTING & SIGNAL
MAINTENANCE, INC.
This Second Amendment to the Contractual Services Agreement between the City of Newark, a municipal corporation, ("City") and Cal-West Lighting & Signal Maintenance, Inc., a California corporation ("Consultant") (sometimes referred to as "Parties") dated June 25, 2020 (the “Agreement”), is entered into as of November 9, 2023 for the provision of on-call traffic signal and street light maintenance services.
RECITALS
WHEREAS, the Parties executed the Agreement for the purpose of having Consultant perform oncall traffic signal and street light maintenance services; and WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, on March 16, 2023, the Parities executed Amendment No. 1 to the Agreement to increase the “Not to Exceed” compensation amount per fiscal year to Two Hundred Twenty Thousand Three Hundred Fifty Dollars ($220,350.00) per fiscal year; and WHEREAS, the Agreement is for two fiscal year terms and the City has an option to extend the Agreement for two additional fiscal years; and
WHEREAS, on June 28, 2023 per the terms of the Agreement, the City elected to extend the Agreement for an additional one (1) year with a not-to-exceed amount of One Hundred Thousand Dollars ($100,000.00) per fiscal year; and
WHEREAS, the Parties desire to amend the Agreement, Section 3.A to increase the “Not to Exceed” Compensation amount during certain fiscal years; and WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Section 3.A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not-toexceed compensation for fiscal year 23-24 by $150,000 for a total not-to-exceed amount of $250,000.
2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.
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2 CITY OF NEWARK CAL-WEST LIGHTING & SIGNAL
MAINTENANCE, INC.
_________________________________ By:
David J. Benoun
City Manager
Printed Name
Dated: ___________________________ Dated:
Attest:
__________________________________
Sheila Harrington
City Clerk
Approved as to Form:
__________________________________
Kristopher J. Kokotaylo
City Attorney
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1 FIRST AMENDMENT TO THE CONTRACTUAL
SERVICES AGREEMENT BETWEEN THE CITY OF
NEWARK AND CAL-WEST LIGHTING & SIGNAL
MAINTENANCE, INC.
This First Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, ("City") and Cal-West Lighting & Signal Maintenance, Inc., a California corporation ("Consultant") (sometimes referred to as "Parties") dated June 25, 2020 (the “Agreement”), is entered into as of March 16, 2023 for the provision of on-call traffic signal and street light maintenance services.
RECITALS
WHEREAS, the Parties executed the Agreement for the purpose of having Consultant perform oncall traffic signal and street light maintenance services; and WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Agreement is for two fiscal year terms and the City has to option to extend the Agreement for two additional fiscal years; and
WHEREAS, the Agreement is for a not to exceed amount of One Hundred Thousand Dollars ($100,000.00) per fiscal year; and
WHEREAS, the Parties desire to amend the Agreement, Section 3.A to increase the “Not to Exceed” Compensation amount during certain fiscal years; and WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Section 3.A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not to exceed compensation for fiscal year 20-21 by $15,000, for a total not to exceed amount of $115,000 and to increase the not to exceed compensation for fiscal year 22-23 by $120,350 for a total not to exceed amount of $220,350.
2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.
DocuSign Envelope ID: A0E75CBC-55CB-4315-9613-A595D0A41F50 Packet Page 359
2 CITY OF NEWARK CAL-WEST LIGHTING & SIGNAL
MAINTENANCE, INC.
_________________________________ By:
David J. Benoun
City Manager
Printed Name
Dated: ___________________________ Dated:
Attest:
__________________________________
Sheila Harrington
City Clerk
Approved as to Form:
__________________________________
Kristopher J. Kokotaylo
City Attorney
DocuSign Envelope ID: A0E75CBC-55CB-4315-9613-A595D0A41F50 Craig Geis
6/3/2023 5/31/2023
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Item D. 11.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT Adopt a resolution approving a lease agreement with Second Chance, Inc.
SUMMARY AND RECOMMENDATION
Second Chance, Inc. serves as a multipurpose emergency shelter catering to families or individuals facing challenging circumstances and in need of assistance. The emergency shelter owned by the City at 6519 Central Avenue provides safe housing and referrals to other agencies. Second Chance, Inc. wishes to enter into a new three-year lease agreement. A new lease agreement that is agreeable to Second Chance, Inc has been prepared for City Council's consideration.
Staff recommends that the City Council adopt a resolution approving a lease agreement with Second Chance, Inc.
BACKGROUND
Since September 1971, the City of Newark has leased the building located at 6519 Central Avenue to Second Chance, Inc. Second Chance, Inc. serves as a multipurpose emergency shelter catering to families or individuals facing challenging circumstances and in need of assistance. The emergency shelter provides safe housing and referrals to other agencies.
The prior lease agreement for the use of 6519 Central Avenue by Second Chance, Inc. has expired and the City and Second Chance, Inc. now seek to enter into a new three-year lease agreement.
DISCUSSION/ANALYSIS
The City prepared a new lease agreement that is acceptable to Second Chance, Inc.
The updated lease includes standard terms and provisions. Additionally, certain provisions of the lease have been modified to reflect shared cost for any subfloor plumbing repairs and that the City will assume all maintenance, including eventual replacement of the roof. The lease agreement would begin on November 15, 2023, and expire on November 15, 2026. Under the terms of the agreement, Second Chance, Inc. would lease 6519 Central Avenue for a rental fee of $1 per year as Second Chance, Inc. provides the public purpose of providing a multipurpose Packet Page 361
emergency shelter catering to families or individuals facing challenging circumstances and in need of assistance.
FISCAL IMPACT
There is no fiscal impact associated with this action, as the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 includes sufficient funding for repairs under the proposed Lease Agreement. Recommendations for funding beyond Fiscal Year 2024 would be included in the next Biennial Budget and Capital Improvement Plan process for City Council consideration. An average cost per year for ongoing maintenance is approximately $10,000.
REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Second Chance Lease Resolution
Second Chance Lease Agreement
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DBR3
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING A LEASE AGREEMENT WITH
SECOND CHANCE, INC. TO OPERATE A MUTLI-PURPOSE
SHELTER AT 6519 CENTRAL AVENUE
WHEREAS, the current lease agreement for the Second Chance, Inc., multi-purpose shelter located at 6519 Central Avenue, Newark, has expired; and WHEREAS, the City has leased the building at 6519 Central Avenue to Second Chance, Inc. since 1971; and
WHEREAS, Second Chance, Inc. provides the public purpose of providing a multipurpose emergency shelter catering to families or individuals facing challenging circumstances and in need of assistance; and
WHEREAS, the City Council desires to approve a lease agreement with Second Chance, Inc. for the building located at 6519 Central Avenue, Newark, for a three-year period from November 15, 2023 through November 15, 2026, for a rental fee of $1 per year.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark approves a lease agreement with Second Chance, Inc. for the operation of multi-purpose shelter at 6519 Central Avenue, in substantive form attached hereto and incorporated herein by reference (the “Agreement”).
BE IT FURTHER RESOLVED that the City Manager is authorized to take any actions necessary to effectuate the intent of this Resolution and execute the Agreement, including any necessary modifications, in a form approved by the City Attorney.
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Second Chance Lease 2023 Page | 1
LEASE AGREEMENT
THIS LEASE AGREEMENT made an entered into this _____ day of _________________, by and between the CITY OF NEWARK, CALIFORNIA, a municipal corporation hereinafter referred to as “City” or “Lessor”, and the SECOND CHANCE, INC., hereinafter referred to as Lessee, (this “Agreement”).
RECITALS
A. Lessor is the owner in fee title to real property known as Alameda County Assessor's Parcel Number: 092-0075-001-27, located at 6519 Central Avenue, Newark, California (the “Property”), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
B. Lessee currently occupies the Property, located at 6519 Central Avenue, Newark, California (the “Premises”) as more particularly described in Exhibit B attached hereto and incorporated herein by this reference.
C. Lessee provides a short-term emergency housing shelter as more particularly described in Exhibit D attached hereto and incorporated herein by this reference (the “Services”).
D. Lessee desires to lease the Premises from the City and the City desires to lease the Premises to the Lessee subject to the terms and conditions of this Agreement.
E. The City has determined that the execution of this Agreement is in the best interests of the health and welfare of the citizens of the Newark and it is a benefit to the residents of Newark to have the Lessee provide the Services at the Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lessor and Lessee hereby agree as of the Effective Date as follows.
1. INCORPORATION OF RECITALS
The Parties acknowledge the truth of the Recitals set forth above, and all such Recitals are hereby incorporated into this Agreement.
2. CREATION OF LEASE
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises for the Term, as defined in section 3, subject to the terms and conditions and for the purposes set forth in this Agreement. The Lessee will lease the Premises in its “AS IS” condition as such condition exists as of the Commencements Date.
3. TERMS
The term of this Agreement (the “Term”) shall commence on November 15, 2023 (the “Commencement Date”), and unless terminated earlier pursuant to the provisions hereof, shall expire on the 3rd anniversary of the Commencement Date (the “Expiration Date”). The expiration of the Term or the sooner termination of this Agreement shall be referred to as “Lease Termination.” Lessor or Lessee may obtain Lease Termination prior to the Expiration Date upon 60 days written request.
4. RENT
The rent is One Dollar ($1.00) (“Rent”) per year payable on the Commencement Date and annually on the anniversary of the Commencement Date.
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5. TAXES ASSESSMENTS AND OTHER CHARGES
Throughout the Term, the Lessees shall pay prior to delinquency, all real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the Premises or part thereof, including, but not limited to (i) any assessment, levy, imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Premises or any part thereof or any personal property, equipment or other facility used in the operation thereof, or (b) any use or occupancy of the Premises or part thereof. All of the foregoing are hereinafter referred to as “Impositions.”
Upon request by the Landlord, the Tenant shall furnish, in form satisfactory to the Landlord, evidence of payment prior to delinquency of all Impositions payable by the Tenant.
6. USE
The premises are hereby leased to the Lessee for the purpose of providing the Services as set forth in Exhibit “D” attached hereto and incorporated herein by this reference and made a part hereof as though set forth at length. Agreement to use in this Agreement shall not be deemed a waiver of compliance with any ordinance of the City of Newark now in force or hereafter enforced.
The Lessor reserves the right to locate and construct its own utilities and to grant nonexclusive easements across the Property for utility and other purposes including the installation, maintenance, repair and replacement of utilities; provided that the exercise of such rights do not unreasonably interfere with the Lessee’s use of the Premises for the purposes set forth herein.
7. MAINTENANCE; DAMAGE AND DESTRUCTION
Except as otherwise provided in this Agreement, Lessor shall maintain the Premises including all landscaping and improvements thereon in good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and federal laws, statutes and regulations relating to the use, occupancy or operation of the Premises. Lessee shall notify Lessor of any conditions on the Premises that require maintenance.
In the event of any damage to or destruction of the Premises during the Term, except for damage caused by ordinary wear and tear, the Lessee shall elect by written notice delivered to Lessor within thirty (30) days following the date of the occurrence of the damage to either remove the Improvements or restore and rebuild the Premises as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in any applicable law. If the Lessee elects to restore the Premises, the Lessee shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible and shall commence reconstruction of the Premises within the earlier of ninety (90) days following the date of occurrence of the damage or the date upon which insurance proceeds are made available for such work.
8. NO REPRESENTATIONS AND LESSEE’S COVENANTS
The Lessee acknowledges that except as expressly set forth herein, the Lessor makes no representations or warranties expressed or implied regarding the condition of the Premises or the fitness or suitability thereof Packet Page 365
Second Chance Lease 2023 Page | 3
for the Lessee’s purposes, including but not limited to, the condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and no patent or latent defect or deficiency in the condition of the Premises shall affect the rights of the Lessee or the Lessor hereunder. The Lessee shall rely solely on its own independent investigation and judgment as to all matters relating to the Premises.
The Lessee acknowledges and agrees that prior to the Effective Date it has made such investigations of the Premises, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as Lessee deemed necessary to determine the condition of the Premises, and has approved all such characteristics and conditions and shall lease the Premises in its condition as of the Effective Date “AS-IS” “WHERE-IS” AND WITH ALL FAULTS. The Lessee further acknowledges that the Lessor has made available all data and information on the Property available to the Lessor, but without warranty or representation by the Lessor as to the completeness, correctness or validity of such data and information, except as otherwise set forth in this Agreement.
The Lessee hereby covenants and agrees that throughout the Term:
(a) The Premises, and the use and operation thereof, shall be in compliance with all Hazardous Materials Laws, and the Lessee shall not cause or permit the Premises or any portion thereof to be in violation of any Hazardous Materials Laws (as defined on Exhibit A, attached hereto). (b) The Lessee shall not permit the Premises or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials (as defined on Exhibit C, attached hereto) nor shall the Lessee permit the presence or release of Hazardous Materials in, on, under, about or from the Premises.
9. WASTE, QUIET CONDUCT
Lessee shall not commit, or suffer to be committed, any waste upon the said premises, or any nuisance, or other act or thing which may disturb the quiet enjoyment of any other tenant.
10. ALTERATIONS, MECHANICS’ LIENS
Lessee shall not make or suffer to be made, any alterations of the Premises (“Improvements”), or any part thereof without the written consent of Lessor, any additions to, or alterations of, the Premises, except movable furniture and trade fixtures, shall become at once a part of the Premises and belong to Lessor. Lessee shall keep the Premises and the Property free from any liens arising out of any work performed, material furnished, or obligations incurred by Lessee.
Lessee further grants Lessor to the right to inspect the Premises to assure compliance with the provisions of this Section and all other provisions of this Agreement.
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11. UTILITIES
a. Lessee shall obtain and pay for all water, gas, heat, light, power, sewer, telephone service and all other service supplied to the said premises.
12. REPAIRS AND MAINTENANCE
Except for those items indicated in Exhibit E, attached hereto and incorporated herein by reference, Lessee shall, at its sole cost, keep and maintain the Premises and appurtenances and every part thereof including sidewalks adjacent to the Premises, and the interior and exterior of the Premises, in good and sanitary order, condition and repair, hereby waiving all right to make repairs at the expense of Lessor as provided for in Section 1942 of the Civil Code of the State of California and all rights provided for by Section 1941 of said Civil Code. An Operation and Maintenance Program will determine the manner in which the shelter will be maintained, as set forth in Exhibit D.
13. ACCEPTANCE OF PREMISES AS IS, SURRENDER AT END OF TERM By entry hereunder, Lessee accepts the premises as being in good and sanitary order, condition and repair and agrees on the last day of said term, or sooner termination of this lease, to surrender unto Lessor all and singular said premises with said appurtenances in the same condition as when received, reasonable use and wear thereof and damage by fire, Act of God or by the elements accepted, and to remove all of Lessee’s signs from the Premises.
14. COMPLIANCE WITH LAW
Lessee shall, at its sole cost and expenses, comply with all the requirements of all Municipal, State and Federal authorities now in force, or which may hereafter be in force, pertaining to the said premises, and shall faithfully observe in the use of the premises all applicable Municipal ordinances, local law, and State and Federal statues now in force or which may hereafter be in force. The judgement of any court of competent jurisdiction, or the admission of Lessee in any action or proceeding against Lessee, whether Lessor be a part thereto or not, that Lessee has violated any such ordinance or statute in the use of the premises shall be conclusive of the fact as between Lessor and Lessee.
No narcotics or drugs as defined by the Health and Safety Code as being illegal, an no alcoholic beverages of any kind, shall be permitted on the premises.
Lessee shall not use the premises in any manner which constitutes a public or private nuisance by the statute or common law.
Lessee further grants the Police Department the right to inspect the premises and surrounding areas at any time to assure compliance with law.
15. INDEMNIFICATION; NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS The Lessee shall indemnify, defend (with counsel reasonably acceptable to the Lessor) and hold the Lessor, its officers, officials, employees, agents and volunteers (“Indemnitees”) harmless from and against any and all Claims arising during the Term and arising from or in connection with any of the following: (i) the operation or management of the Premises, (ii) any work or thing done on or in the Premises, (iii) any condition of any alteration or addition constructed by the Lessee on the Premises, (iv) any breach by the Lessee in the performance of any covenant or agreement to be performed by the Lessee pursuant to the terms of this Agreement, (v) any negligence of the Lessee, or any of its agents, contractors, subcontractors, Packet Page 367
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employees, or licensees, (vi) any accident, injury or damage caused to any person occurring during the Term in or on the Premises, and (vii) the furnishing of labor or materials by the Lessee or its contractors, subcontractors, employees, or agents. In the event any such action or proceeding is brought against the Lessor by reason of any such Claim, the Lessee, upon notice from the Lessor, covenants to defend such action or proceeding by counsel reasonably satisfactory to the Lessor. If an insurer under insurance required to be maintained by the Lessee hereunder shall undertake to defend the Lessor under a reservation of rights with respect to ultimate coverage and the Lessor shall reasonably deem it necessary to retain independent counsel with respect to such matter, the Lessee shall pay the reasonable fees of such counsel.
The obligations of the Lessee under this Section shall not apply to any Claim or other matter to the extent such arises as a result of the gross negligence or willful misconduct of the Indemnitees. This Section shall survive the expiration or earlier termination of this Agreement.
16. INSURANCE
Lessee shall acquire and maintain Workers' Compensation, employer’s liability, and commercial general liability insurance coverage relating to the activities of Lessee, its agents, representatives, or employees in, on, upon, or relating to the Premises.
The minimum amounts of coverage corresponding to the aforesaid categories of insurance per insurable event shall be as follows:
Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Lessees, his agents, representatives, or employees.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence Form CG00 01).
Worker’s Compensation insurance as required by the State of California, including Employer’s Liability Coverage.
Minimum Limits of Insurance
Lessee shall maintain limits no less than:
1. General Liability (GCL):
(including operations,
products and completed
operations, as applicable.)
$2,000,000 per occurrence for bodily
injury, personal injury and property
damage. If Commercial General Liability
Insurance or other form with a general
aggregate limit is used, either the general
aggregate limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required occurrence
limit.
2. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
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Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers’ or Lessee shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Lessee shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to City requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to requirement complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Other Insurance Provisions
The commercial general liability and automotive liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insureds. The City, its officers, officials, employees, and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Lessee; or automobiles owned, leased, hired, or borrowed by the Lessee.
Primary Insurance. For any claims related to this project, the Lessee’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance or selfinsurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Lessee’s insurance and shall not be contribute with it.
Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that the coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
Civil Code §2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
Qualifications. All insurance companies providing coverage to Lessee shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
Sublessee. Lessee shall include all sublessees as insured under its policies or shall furnish separate certificates and endorsements for each sublessee. All coverages for sublessee shall be subject to all the requirements stated herein.
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Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees, and volunteers for losses arising from work performed by Lessee for the City.
17. ASSIGNMENT OR SUBLETTING
The Lessee shall have no right to sell, transfer, sublet, assign, encumber, hypothecate or otherwise convey (“Transfer”) its leasehold interest hereunder or any portion of its interest in the Premises, any Improvements or this Agreement voluntarily, involuntarily, by operation of law, or otherwise, without the Lessor’s prior written consent. No voluntary or involuntary assignee, subtenant, or successor in interest of the Lessee shall acquire any rights or powers under this Agreement absent such consent.
Nothing contained in this Agreement shall be deemed in any way to limit, restrict or otherwise affect the right of the Lessor to sell, transfer, assign or convey all or any portion of the right, title and estate of the Lessor in the Property and in this Agreement. At such time as the Lessor shall sell, transfer, assign or convey the entire right, title and estate of the Lessor in the Property and in this Agreement, all obligations and liability on the part of the Lessor arising under this Agreement after the effective date of such sale, transfer, assignment or conveyance shall terminate as to the Lessor, and thereupon all such liabilities and obligations shall be binding upon the transferee.
18. NO THIRD-PARTY BENEFICIARIES; DISCLAIMER OF PARTNERSHIP Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties any rights or remedies hereunder. The relationship of the parties under this Agreement is solely that of landlord and tenant, and it is expressly understood and agreed that the Lessor does not as a result of this Agreement in any way nor for any purpose become a partner of the Lessee or a joint venturer with the Lessee in the conduct of the Lessee’s business or otherwise. This Agreement is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or association as between the Lessor and the Lessee.
19. NOTICES
Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent), postage prepaid and addressed to:
Lessor:
City Manager and City Attorney
City of Newark City of Newark
37101 Newark Boulevard 37101 Newark Boulevard
Newark, CA 94560 Newark, CA 94560
Lessee:
Executive Director
Second Chance Inc.
6519 Central Avenue
Newark, CA 94560
20. HOLDING OVER
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Any holding over after the expiration of the term or notice of termination shall be at a monthly rental of $1.00 and shall otherwise be on the terms and conditions herein specified, so far as applicable.
21. GOVERNING LAW; ATTORNEY’S FEES
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California.
If either Party commences an action against the other to enforce any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined by the court having jurisdiction over the action.
22. NON-DISCRIMINATION AND COMPLIANCE WITH LAWS
The Lessee herein covenants by and for the himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this Agreement is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the Lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.
The Lessee, at its sole cost and expense, shall comply with all applicable state and federal laws and regulations, including without limitation, all applicable state and federal labor laws and standards, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et seq., and the Unruh Civil Rights Act, California Civil Code Section 51, et seq. pertaining to the use, operation, and management of the Premises and all City ordinances and regulations relating to the conduct of construction, including without limitation, all City ordinances and regulations relating to noise and maintenance of the Premises.
The Lessee shall not itself use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property or the Premises which would result in a nuisance or a violation of law. The Lessee shall use its best efforts to not permit any permittees, licensees, guests or invitees to use the Premises for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property or the Premises which would result in a nuisance or a violation of law.
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23. WAIVER; AMENDMENTS
No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party.
This Agreement shall be amended only by written agreement of the parties hereto.
24. ENTIRE AGREEMENT
This instrument constitutes the entire agreement between the Parties relative to the Premises and this Agreement and may be altered only by an instrument in writing signed by the Parties. The Parties agree hereby that all prior or contemporaneous oral agreements between and among themselves and their agents or representatives relative to the leasing of the Premises are merged in or revoked by this Agreement.
25. SEVERABILITY
If any term or provision of this Agreement shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of the lease shall be valid and be enforceable to the fullest extent permitted by law.
26. HEADINGS
The headings used in this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written.
SECOND CHANCE, INC. CITY OF NEWARK, a municipal corportation By_______________________________ By_______________________________
John Balentine, Executive Director David J. Benoun, City Manager Attest_____________________________
Sheila Harrington, City Clerk
Approved as to form:
__________________________________
Kristopher J. Kokotaylo, City Attorney
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Exhibit A
PROPERTY
That Real Property located at 6519 Central Avenue, Newark, California.
Assessor’s Parcel No. 092-0075-001-27
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Exhibit B
THE PREMISES
6519 Central Avenue,
Newark
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Exhibit C
DEFINITIONS
Hazardous Materials. As used herein, “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local, state or federal authority, Landlord or governmental body, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
Hazardous Materials Laws. As used herein “Hazardous Materials Laws” means all federal, state and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the definition of Hazardous Materials, as any of the foregoing may be amended from time to time.
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Exhibit D
Second Chance Emergency Shelter Use
IT IS AGREED between the parties hereto as follows:
1. Description of Project: Second Chance hereby agrees to operate a short-term multi-purpose emergency housing shelter located at 6519 Central Avenue, Newark, California under the terms and conditions hereinafter set forth.
2. Operation: The facility will be used as a short-term emergency housing shelter for persons in crisis who do not have alternative lodging. Residents will be assessed for their suitability for referral to longer-term shelters, treatment programs, or permanent housing and every attempt will be made to give departing residents and appropriate referral. However, residents will be allowed to stay the minimum time necessary to either effect such a placement or determine that one cannot be made. The main services will be the provision of meals, a place to stay during the day, and a bed at night. During the stay, residents will be acquainted with and urged to avail themselves of support services through other agencies.
Shelter residents may be of either sex, and they may be either children or adults. The maximum shelter population at any given time should not exceed thirty-two (32) people. However, the total number of residents may vary due to the make up of the clientele. For instance, an uneven mixture of men and women might decrease the total number, or the presence of several small children not needing “full spaces” (i.e., separate beds) might cause the number to increase. But under no circumstances shall the number of persons exceed the building’s maximum occupancy load as determined by the Fire Marshall.
Three meals a day will be provided and prepared by the residents when possible with the aide of shelter staff. The target area to be served will be primarily the Tri-City area with Newark referrals being given priority. However, in the event of space being available, the shelter will cooperate with other cities and agencies in Alameda County.
The administrative and supportive work will be done by the staff of the parent program. Second Chance Inc.
There will be at least one staff person on duty at the shelter at all times.
Training and supervision of the shelter staff will be through Second Chance. The staff of Second Chance will be available by phone at all items for emergencies or other situations judged by shelter staff to require assistance. The shelter staff will be hired, however, with a view toward being “on their own” for most of their shifts. In the event of emergencies require police or medical assistance, shelter staff will contact those appropriate agencies in addition to a supervisor from Second Chance.
The shelter will coordinate with other service providers. Assistance through Alameda County Social Services will be arranged to provide help with food stamps, medical needs, and other county paperwork.
Normal channels will be used when dealing with the police departments in Newark, Fremont, and Union City.
Unemancipated minors without parental consent cannot be housed except as part of a family unit that includes a parent or guardian.
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Persons severely intoxicated or otherwise in need of medical attention will not be housed but rather referred to appropriate alternative facilities.
Violent or abusive persons will not be admitted or will be ejected from the shelter at the option of the staff.
“Repeat” clients will be closely re-screened before re-admission. Generally, “new emergencies” will allow re-admission but attempts to use the shelter for long-term housing will not.
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Exhibit E
Second Chance Emergency Shelter
Operation and Maintenance Program
Task City
Maintains Notes Frequency
Category A - Restraints
No Animals Except seeing eye dogs
No Drugs/Alcohol Post notice
No Smoking Post “No Smoking” signs
Parking Controls Designated parking only
Category B - Services
Electrical
Fire Alarm x
Garbage Service 2x/week
Gas
Grease Trap and Disposal 2x/year
Insurance, Fire Annual
Insurance, Liability Building and land Annual
Insurance, Worker’s Comp. Annual
Licenses As needed
Parking Lot Lease x City Public Works Department Annual Pest Control Notify City if Termites
Program Operation
Program Permits As needed
Special Services
Telephone
Water
Category C - Inspections
Building Maintenance and H&S Quarterly
Fire Extinguisher – dining room, kitchen x Monthly
Fire Sprinkler System x Quarterly
Health Department
Ansul (stove hood fire suppression) 2x/year
Roof
Smoke Detectors Notify City if problems
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Task City
Maintains Notes Frequency
Category D - Furnishings
Appliances, Maintenance/Replacement
Carpet, Shampoo Quarterly
Cleaning, Parking Lot
Fertilize, Spray, Prune, etc.
Fire Extinguishers, Test x Annual
Floor Covering, Clean Daily
Furnace, Filter Replacement Bi-monthly
General Cleaning, Exterior
General Cleaning, Interior Daily
Gutter and Drain, Clean 2x/year
Hot Water Heater, Maintenance
Kitchen Hood, Clean Daily
Kitchen Range, Clean Daily
Kitchen Range, Maintenance
Landscape, irrigation and maintenance –
front, rear, and parking lot
Light Bulb/Tube, Replacement
Locks and Padlock No unauthorized padlocks
Painting, Exterior
Painting, Interior
Painting, Touch Up City supplies paint
Rooftop Equipment, Maintenance x
Signage, Maintenance
Skylight Washing x
Window Washing, Exterior
Window Washing, Interior
Category E - Repairs
Bathroom Fixture Repairs
Door and Lock Repairs
Electrical Repairs Coordinate with Maintenance
Fence Repairs
Floor Covering Repairs
General Repairs, Major
General Repairs. Minor
Glass Repairs
Lock Re-key
Modifications
Parking Lot Repairs
Sub-floor Plumbing Repairs 50% Shared expense with City/Lessee Maintenance will coordinate repairs
50%
Roof, Maintenance and Repairs X
Room Partitions
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Task City
Maintains Notes Frequency
Category E - Repairs (continued)
Sewer, Drain Stoppage
Shelter Coordinator to post sign at
toilets
Emergency Repairs, Daytime Contact Maintenance
Emergency Repairs, Night Contact Dispatch
Emergency Repairs, Weekends/Holidays Contact Dispatch
City of Newark Contact Information
Maintenance Department Dispatch
37440 Filbert Street 37077 Newark Boulevard
Newark, CA 94560 Newark, CA 94560
(510) 578-4806 (510) 578-4237 non-emergency
911 EMERGENCY
City Manager’s Office
37101 Newark Blvd.
Newark, CA 94560
(510) 578-4278
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Item D. 12.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Esther Jung, Associate Civil Engineer
SUBJECT Adopt a resolution amending the Biennial Budget and Capital Improvement Plan to consolidate the three Traffic Signal Interconnect Projects, Project 1307, 1308, and 1309 into newly identified Project 1361, and approving a Contractual Services Agreement with Iteris, Inc. for Professional Engineering Services for the Traffic Signal Interconnect Project
SUMMARY AND RECOMMENDATION
Traffic Signal Interconnect along Cherry Street, Newark Boulevard, and Thornton Avenue, currently distinguished by three separate projects by each corridor, will develop strategic plans for the implementation of adaptive signal communications technology (ASCT) along the three identified arterials to enable real-time adjustment to signal timing parameters. By doing so, the project aims to enhance traffic flow along these primary transportation corridors, promoting smoother and more efficient flow of traffic for all.
The City of Newark utilizes outside consultants to provide professional engineering services to assist the City with a variety of projects. To meet current demands, a competitive Request for Proposals (RFP) for Professional Engineering Services was released. Based on the analysis of six (6) qualified RFP responses received and in-person interviews with three (3) firms, Iteris, Inc. was determined to be the firm who would provide the best overall service to the City.
Staff recommends that the City Council, by resolution, approve an amendment to the Biennial Budget and Capital Improvement Plan to consolidate the three Traffic Signal Interconnect Projects, Project 1307, 1308, and 1309 into newly identified Project 1361, and approve a Contractual Services Agreement with Iteris, Inc. for Professional Engineering Services for the Traffic Signal Interconnect Project in an amount not to exceed $237,538 for Professional Engineering Services with an additional design contingency of $32,462, bringing the total project allocation to $270,000.
BACKGROUND
Cherry Street, Newark Boulevard, and Thornton Avenue serve as crucial transportation Packet Page 382
Cherry Street, Newark Boulevard, and Thornton Avenue serve as crucial transportation corridors through the City of Newark, facilitating efficient travel within the City and offering essential connections to nearby Fremont, Union City, and regional destinations. Newark Boulevard and Cherry Street function as vital north-south arterials, while Thornton Avenue serves as a key east-west arterial, spanning the City from State Route 84 to Interstate 880.
The primary objective of Traffic Signal Interconnect along Cherry Street, Newark Boulevard, and Thornton Avenue (Traffic Signal Interconnect Project) is to implement a system that ensures traffic signal synchronization and optimization along three separate and distinct roadway corridors, comprised of nine (9) traffic signals on Cherry Street, seven (7) traffic signals on Newark Boulevard, and five (5) traffic signals on Thornton Avenue. An adaptive signal communications technology (ASCT) system responds to real-time traffic demands and patterns to provide more efficient and safer operation at signalized intersections. The proposed system would enhance traffic flow and optimize signal timing along these primary arterials, leading to increased travel efficiency and reduced congestion for the Newark community.
In the 2022-2024 Biennial Budget and Capital Improvement Plan, the Traffic Signal Interconnect Project was approved as three separate projects, one for each corridor, identified as Projects 1307, 1308, and 1309, with a total budget of $475,000.
DISCUSSION/ANALYSIS
In accordance with the City’s Purchasing Rules and Regulations, staff prepared and initiated an open and competitive Request for Proposals (RFP) for professional engineering services for the Traffic Signal Interconnect Project. The RFP specified that selection would be made based on quality and completeness of submissions as well as a firm’s experience with projects of similar scope and complexity, approach by which their team intends to perform the work, satisfaction of previous clients, and proposed rate schedules.
Staff received a total of six (6) proposals and assessed and ranked them based on their completeness and responsiveness to the RFP. Following the initial review of the proposals, staff invited three (3) firms to be interviewed by the City’s project team, consisting of the City Engineer and Associate Civil Engineer overseeing Transportation and Traffic Projects, and the City’s contracted consultant, Pakpour Consulting Group.
The three firms invited to the interviews were:
• Iteris, Inc.
• Kimley-Horn
• Advanced Mobility Group
After evaluating the interviews, staff selected Iteris, Inc. based on their experience with projects of similar scope, demonstrated ability to develop and deliver adaptive signal systems in line with the project budget, and satisfaction of previous public municipality clients. Iteris’ rates and schedule were also comparable to those presented in other proposals and their total fee for the project was the lowest of the three fee proposals evaluated.
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evaluated.
Staff recommends amending the 2022-2024 Biennial Budget and Capital Improvement Plan to consolidate the three projects into one, as a single consultant can efficiently design for all three corridors, given their similarity in scope. Furthermore, two (2) traffic signals on Thornton Avenue intersect with Cherry Street and Newark Boulevard, making it logical for a single consultant to develop a plan for the entire network.
Once an agreement is executed with Iteris, the consultant team will conduct a comprehensive assessment of the existing traffic signal systems and identify the necessary improvements to the City’s traffic signal infrastructure. Based on the preliminary system requirements, staff will again issue a competitive RFP for a system vendor. Staff anticipates presenting the preferred system vendor to the City Council for consideration and approval during the Summer of 2024.
Following the design of the system, the consultant will also assist in preparing the application for the Transportation Fund for Clean Air (TFCA) grant with the Alameda County Transportation Commission (ACTC). The successful acquisition of this grant will contribute to the funding of the project’s construction phase. Remaining funding for construction of the Traffic Signal Interconnect Project will be evaluated and identified during the upcoming 2024-2026 Biennial Budget and Capital Improvement Plan process.
The construction of the Traffic Signal Interconnect Project is anticipated to commence in Fall 2024.
FISCAL IMPACT
Staff recommends the approval of a Contractual Services Agreement with Iteris, Inc. for the design of the Traffic Signal Interconnect Project for a not-to-exceed amount of $237,538 with an additional design contingency of $32,462, totaling $270,000.
The 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2023 provides sufficient funding for this agreement. Staff recommends that the City Council approve an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan to reallocate funds from previously approved projects as follows:
Description Expenditure Amount To: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001361 $475,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001307 $150,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001308 $175,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001309 $150,000 Packet Page 384
REVIEW AND APPROVAL
Prepared by - Esther Jung, Associate Civil Engineer
Reviewed by - Jayson Imai, City Engineer
Reviewed by – Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution for Traffic Signal Interconnect
Contractual Services Agreement
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AMENDING THE BIENNIAL BUDGET AND
CAPITAL IMPROVEMENT PLAN TO CONSOLIDATE THE
THREE TRAFFIC SIGNAL INTERCONNECT PROJECTS,
PROJECT 1307, 1308, AND 1309 INTO NEWLY IDENTIFIED
PROJECT 1361, AND APPROVING A CONTRACTUAL
SERVICES AGREEMENT WITH ITERIS, INC. FOR
PROFESSIONAL ENGINEERING SERVICES FOR THE
TRAFFIC SIGNAL INTERCONNECT PROJECT
WHEREAS, Traffic Signal Interconnect along Cherry Street, Newark Boulevard, and Thronton Avenue, currently distinguished by three separate projects for each corridor, (hereinafter Traffic Signal Interconnect Project), aims to implement adaptive signal communication technology to enable real-time adjustment to signal timing paraments along segments of Cherry Street, Newark Boulevard, and Thornton Avenue; and WHEREAS, the Public Works Department issued a Request for Proposals for professional engineering services for the Traffic Signal Interconnect Project, in accordance with the City’s Purchasing Rules and Regulations; and
WHEREAS, a total of six proposals were received for the Traffic Signal Interconnect Project; and
WHEREAS, all proposals received were evaluated by City staff based on the quality and completeness of submissions, experience with engagements of similar scope and complexity, satisfaction of previous clients, and proposed rate schedules; and WHEREAS, based on staff’s evaluation, Iteris, Inc. was determined to be the most qualified firm to provide the requested services for the Traffic Signal Interconnect Project.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby approves and authorizes the City Manager to execute a Contractual Services Agreement, in a form approved by the City Attorney, with Iteris, Inc. in an amount not-to-exceed $237,538 for professional engineering services with an additional design contingency of $32,462, for a total allocation of $270,000 for the Traffic Signal Interconnect Project.
BE IT FURTHER RESOLVED that the City Council of the City of Newark hereby approves an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan to consolidate the three Traffic Signal Interconnect Projects, Project 1307, 1308, and 1309, into a single combined project denoted as Project 1361.
BE IT FURTHER RESOLVED that the City Council hereby approves an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan to reallocate previously approved Capital Improvement Funds to project account 1361 as follows:
Description Expenditure Amount
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To: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001361 $475,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001307 $150,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001308 $175,000 Fr: Gas Tax - HUTA Fund 201.90.091.910.6221.CIP001309 $150,000 Packet Page 387
CONTRACTUAL SERVICES AGREEMENT
CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and ITERIS, INC., a Texas Corporation (“Consultant”), collectively the “Parties”.
W I T N E S S E T H:
WHEREAS, City requested proposals to perform the services generally including professional engineering services for Traffic Signal Interconnect Project, Project 1361.
WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the Services more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.
WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.
NOW, THEREFORE, the Parties hereto agree as follows:
1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.
2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.
Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.
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3. COMPENSATION.
A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.
Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of Two-Hundred Thirty-Seven Thousand Five Hundred Thirty Eight and No/100 Dollars ($237,538.00) unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount.
B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).
Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.
Invoices shall be sent to:
City of Newark
Attn: Finance Department
37101 Newark Blvd.
Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.
C. Payment. Upon receipt of an invoice, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.
D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).
4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by Packet Page 389
written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.
5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services rendered pursuant to this Agreement.
Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its Subconsultants, if any, identified in Exhibit “C”. Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or Subconsultants identified in Exhibit “C”, without the prior written consent of City. All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.
Consultant agrees to include with all Subconsultants in their subcontract the same requirements and provisions of this Agreement including the indemnity and Insurance requirements to the extent they apply to the scope of the Subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subconsultant further agrees to include these same provisions with any Sub-subconsultant. A copy of this Agreement’s Indemnity and Insurance provisions will be furnished to the Subconsultant upon request. The Consultant shall require all Sub-subconsultants to provide a valid certificate of insurance and the required endorsements included in this Agreement prior to commencement of any Services and will provide proof of compliance to the City.
In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or Subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.
7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.
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8. INFORMATION AND DOCUMENTATION.
A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.
B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.
C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.
9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.
10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.
11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement.
Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.
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12. PUBLIC WORKS REQUIREMENTS. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the California Labor Code applicable to public works, to the extent set forth in Exhibit D.
13. PUBLIC WORKS CONTRACTOR REGISTRATION. Consultant agrees, in accordance with Section 1771.1 of the California Labor Code, that Consultant or any subconsultant shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code section 1725.5.
It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.
A. Verification of Coverage.
Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.
Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:
CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.
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B. Minimum Scope of Insurance.
Coverage shall be at least as broad as:
1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and
2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and
4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.
C. Minimum Limits of Insurance.
It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.
Consultant shall maintain limits no less than:
1. General Liability:
(including products and
completed operations,
property damage, bodily
injury, and personal and
advertising injury)
$2,000,000 per occurrence for
bodily injury, personal injury, and
property damage. If a general
aggregate limit applies, either the
general aggregate limit shall apply
separately to this project/location or
the general aggregate limit shall be
twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
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4. Errors and Omissions
Liability:
$1,000,000 per occurrence or
claim; $2,000,000 aggregate.
D. Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.
E. Claims Made Policies.
For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.
F. Wasting Policies.
No policy required by this paragraph 14 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).
G. Remedies.
In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
3. Terminate this Agreement.
H. Acceptability of Insurers.
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Packet Page 394
Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
I. Other Insurance Provisions.
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.
2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.
3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.
4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.
5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.
6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.
7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.
8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.
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9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.
15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.
16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants.
Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.
In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful Packet Page 396
misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.
The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.
The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.
Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.
18. TERM/TERMINATION.
A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire upon completion of performance of Services hereunder by Consultant.
B. Notwithstanding the provisions of paragraph 18 Section A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3.
In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.
19. CONTRACT ADMINISTRATION. This Agreement shall be administered by the Public Works Director of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.
20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:
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Iteris, Inc. CITY OF NEWARK
Consultant Administrator
Address:
City of Newark
Attn: _________________
37101 Newark Boulevard
Newark, CA 94560
21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.
22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.
23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.
24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.
25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.
27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.
28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.
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30. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.
31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF NEWARK, Iteris, Inc.
a municipal corporation a Texas Corporation
By By
City of Newark Consultant
Date Date
Printed Name
Attest:
City Clerk
Date
Approved as to form:
City Attorney
Date
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EXHIBIT A
SCOPE OF SERVICES
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City of Newark
Newark Boulevard, Cherry Street, and Thornton Avenue Traffic Signal Interconnect Project Project 1361
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Key Component 3. Appropriately Configured Detection
All adaptive systems require accurate and extensive vehicle detection to make the appropriate timing adjustments. When vehicle detection fails, the system may either make assumptions based on the remaining functioning detectors or rely on historical data to predict actual traffic pattern, but neither of these solutions are ideal. In addition, every system has its own requirements on detection needed to optimize the systems functionality. Given that detection is extremely critical to the success of any adaptive deployment, the evaluation of existing detection will be performed by experienced staff who have expertise not only in adaptive systems but also in detection technologies. Iteris is the only team that is highly skilled in ATCS deployment, neutral to all system vendors, and offers in‐house expertise on advanced detection technologies.
We will conduct a comprehensive detection assessment to have detection information upfront to determine the capability and deficiency of the existing system to then recommend and design appropriate upgrades or reconfiguration to meet the requirements for optimal operation of the adaptive system selected by this project. Most, if not all, adaptive systems on the market require independent lane‐by‐lane detection to be provided both at the stop‐bar and in advance of the stop‐bar for the mainline approaches. This typically translates to both the traffic signal controller and the traffic signal cabinet being able to support a large number of independent detection channels. For example, the intersection of Newark Blvd./Thornton Ave. would likely require at least 20 channels of detection.
Based on our understanding of the City’s existing signal infrastructure, there are a number of NEMA TS‐1 Type P‐cabinets along the project corridors. NEMA TS1 cabinets are typically limited to eight (8) channels of detection and cannot meet the detection requirements of most adaptive systems. There are a number of solutions to address this. One option would be to upgrade the cabinets to NEMA TS‐2 that can support up to 64 channels of detection. If replacing every NEMA TS‐1 cabinet becomes prohibitive, another option would be to keep the existing cabinet and install a video detection system to get the needed detection channels. The video detection system can be directly connected to the signal controller through an SDLC port. We’ve implemented this solution for an adaptive system that we helped deploy on Fremont Blvd. in the City of Fremont.
Similarly, for intersections with in‐pavement loops, we will assess if these need to be modified. We will check if loops on multi‐lane approaches are all tied back to a single DLC that runs back to the cabinet (i.e., all those loops are on one (1) channel), and thus will need to be separated out. Options include installing additional DLC’s (one for each loop) in order to provide the independent channels of detection or installing a video detection system.
Based on our understanding, the City is open to considering various detection technologies (i.e., in‐pavement loops, video detection, etc.) and cabinet upgrades. All of the above options will be discussed with the City during the preliminary design to understand the City’s priorities for system improvements, preferences, budget constraints, and also to be strategic in what improvements are made and where depending on other projects that could benefit from this project’s improvements.
2.4 DETAILED SCOPE OF WORK
TASK 1 – PROJECT MANAGEMENT
Iteris strongly believes that excellent project management is essential in the successful completion of any project.
Successful completion does not only mean finishing the project, but also completing the project to the client’s satisfaction, within budget, and on schedule. Iteris’ project manager, David Huynh, will be the principal contact with the City. He will be available to City staff for the duration of the project for coordination on all facets of the project. He will attend and facilitate regular meetings with City staff, manage quality control procedures, and prepare monthly invoices and status reports. Iteris will schedule the initial project kick‐off meeting upon NTP. The purpose of this meeting will be to review the scope and schedule and discuss the City’s goals and objectives for the project. Iteris will prepare agendas and minutes for this and all meetings for the project. Iteris will schedule and attend coordination and design review meetings with the City following each of the milestone submittals. We will prepare a detailed schedule for the project. This will guide the project stages through completion and act as a baseline throughout project development. The schedule will be provided at the kick‐off meeting and regularly updated as the project progresses.
Deliverables: Meeting Agendas and Minutes, Project Schedule, Monthly Progress Reports and Invoices TASK 2 – PRELIMINARY ENGINEERING
Subtask 2.1. Detailed Field Review and Existing Conditions Assessment Assessing the City’s existing traffic signal system and infrastructure is the first task of this project. A thorough and accurate assessment of the existing system is essential to understand existing operations, leverage the existing traffic signal system Packet Page 401
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and infrastructure to the extent possible, identify existing system deficiencies and establish a foundation for the recommendation of any potential future improvements. Iteris will work with the City to obtain as much on‐hand information as possible, including current City standards and special provisions, an inventory of traffic signals, any fiber optic and copper interconnect details, network equipment and the system architecture and any central office hardware and software systems.
Iteris takes great pride in our thorough fieldwork activities conducted on all our projects. Iteris will perform a detailed field review of all the existing infrastructure along each project corridor, with a specific focus at each traffic signal along each corridor. Iteris staff are trained to open pull boxes, note condition of conduit and sweeps, assess the details of traffic signal cabinets, including controller types, model number and firmware version, detectors, wiring, and any other elements such as wireless radios, emergency vehicle preemption (EVP) equipment, and assessment of any existing central office hardware and software. Design plans are only as good as the fieldwork conducted, and Iteris takes great pride in providing detailed design plans to reduce, and in many cases eliminate, the Contractor’s need for change orders.
Iteris will organize and summarize our findings from the field review to perform an assessment of the overall signal system infrastructure to identify project gaps and subsequent needs to be included in the design phase of the project. Photographs will be collected during the field review and provided to the City in digital format. We will document our findings in a report summarizing the system’s gaps and needs as well as proposed approach and methodology for closing those gaps to serve as a basis for design.
Subtask 2.2. Develop System Concept
Based upon the findings of the existing conditions assessment (Subtask 2.1), Iteris will prepare a report that details the needs, opportunities, and solutions in support of the adaptive system implementation. The objective of the System Concept is to develop and outline the approach to identify and recommend the needed improvements to the City’s traffic signal infrastructure, including traffic signal controllers, traffic signal cabinets, traffic signal communications, intersection detection, central office equipment, and any other ITS related items. A key element of this task will be to create a project based upon needs, project cost, and availability of existing infrastructure, project duration and schedule. The following items will be addressed as part of the System Concept:
Communications System
o Communication Media: Our initial recommendation is for the project to install fiber optic cable as the primary media. Where appropriate, select segments may utilize copper cable, or wireless may be used for last mile connections to signalized intersections that do not warrant new conduit and fiber. o Communication Protocol: We recommend the project to implement Ethernet‐based communications. o Network Topology: Identify location of communication hubs and routing of backbone network, segments requiring high‐bandwidth fiber, utilization of existing and need for new conduit/pull boxes, utilization of existing twisted pair cable where applicable, possible wireless connections, and other solutions. o IP Schema: We will recommend and develop an IP Schema for the proposed network. Recommendations will be provided on the current 32‐bit IPV4 addressing scheme as well as possibly moving it to the 128‐bit IPV6 addressing scheme. This will ensure the City never runs out of IP addresses to support the communications and ITS infrastructure and any future additions and expansion.
o NTCIP Compliance and Standards: We have worked with AASHTO, ITE, NEMA and vendors involved in the development and maintenance of the NTCIP standards and are well versed in the application of these standards for development of system requirements. Adherence to common standards will be essential to ensure City deploys an open system and minimize proprietary solutions.
o Communication Hardware: We have worked with and are in partnership with numerous IT vendors including Cisco, EtherWAN, Siemens, RuggedCom, Actelis, MOXA, and many others. Communication hardware requirements and selection will be important components of the communications network. Adaptive Traffic Signal System: We will document the City’s needs for this system and identify how the proposed system (including traffic controller upgrades) will achieve the City’s goals and objectives. Operational needs will be driven by the answers to the questions on the operational objectives and strategies, desired signal operational features, and type of operational concept the City plans to implement. User needs will be driven by the answers to the questions about user interface, reporting and monitoring and maintenance requirements, and any additional input from City staff and other project stakeholders.
Traffic Signal Cabinet: Traffic signal cabinets that will need to be replaced/upgraded to support the adaptive system will be identified.
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the data and video to the City’s office.
Central Office Equipment: Identify the need for new hardware and software at the City’s office such as new workstations, application and communications servers, communications equipment, equipment rack, etc. and the location for this equipment.
In addition, the development of the System Concept is a key step and provides a model of the activities the adaptive traffic signal system will ultimately support and what the new system will accomplish that the current condition is not able to accomplish. The System Concept will also serve as the implementation plan for the procurement of the adaptive traffic signal system and the needed field improvements to support the adaptive signal system.
Subtask 2.3. Prepare 30% Plans
Leveraging the field review completed in Task 2.1 and the approved System Concept, Iteris will establish and confirm the basis of design in this task. Iteris will prepare appropriate base mapping. Base mapping shall consist of digital plans including (but not limited to) existing roadway features, traffic signal equipment, right‐of‐way information, and existing utility facilities.
Utility Coordination: Utility mapping is an important element of an infrastructure project, especially one that will require the modification or installation of underground infrastructure like conduit and pull boxes. To that end, Iteris will directly contact the various agencies which may have facilities in the project area. Our inquiry will specifically define the project area and potential impact to underground facilities and will solicit records of utility infrastructure in the project area. This process generally happens ahead of beginning early stages of design such that a utility base can be prepared to attempt to minimize and identify potential utility conflicts by showing them on the design plans.
Right‐of‐Way: Iteris will gather and research right‐of‐way information and agreements along the project corridor to identify rights‐of‐way in the project area. It is anticipated this information will be collected from City plat and parcel maps, utility maps, and roadway record drawings. This information will be combined and drafted to create right‐of‐way delineations as part of the project base map.
A preliminary (30%) design submittal will be prepared that illustrates the design/layout for the project. All anticipated sheets to be included in the final plan set shall be listed, such as a listing of required details to be included in subsequent submittals.
Deliverables: Field Review and Existing Conditions Assessment, Draft and Final System Concept Document, 30% Design Plans.
TASK 3 – ADAPTIVE TRAFFIC SIGNAL SYSTEM PROCUREMENT
Subtask 3.1. Develop Preliminary System Requirements
Based on the outcome of the System Concept, functional requirements will be developed for the adaptive traffic signal system to be deployed. The system requirements will be developed for a new adaptive system based on the needs that have been identified. This will include a detailed list of traffic operational objectives and system goals for the adaptive system deployment that fulfills the vision that City staff have for this system. This list will define items such as:
The types of operations desired for various use cases; What performance measures (i.e. travel time, vehicle delays, queuing, percent arrivals on green, etc.) and monitoring capabilities are needed;
Prioritize system requirements so that if a system does not exist that meets all the requirements, objective evaluations of the existing systems can be made; and
How City staff would like to interact and view the system.
Iteris will then identify specific system constraints including expandability and requirements for using any existing equipment. The goal of this task is to identify the technical and non‐technical factors that may affect the decision‐making process. With the identification of the system constraints and operator needs, specific system requirements will be defined including the system’s ability to support functions such as emergency vehicle preemption, interface to any legacy systems, use of a particular detection technology, or the use of different coordination functionalities. It is important that vendors responding to the requirements capabilities of their system not only indicate being able to fulfill the requirements with a yes/no answer, but also explain how their system fulfills the requirements.
Subtask 3.2. Review of Available Systems
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the market. There are numerous adaptive systems on the market, however, their functionalities are constantly changing with the changing market. If needed, an RFI (Request for Information) can be utilized to obtain information from the adaptive system vendor community. Iteris will prepare an RFI for the City to send to potential system vendors. The RFI will be prepared in consultation with City staff and will include project background and a list of questions including a requested response by the vendor’s proposed adaptive signal system’s ability to meet the preliminary system requirements.
Subtask 3.3. Finalize System Requirements
Based on the activities undertaken in Task 3.2, and to ensure that there are viable adaptive traffic signal systems in the market that can meet system requirements, slight modifications to the preliminary requirements may be needed. Iteris will work with the City to determine what requirements are mandatory and others that are desirable and finalize the system requirements that will be incorporated into the procurement document.
Subtask 3.4. Develop Vendor RFP Document
Iteris will prepare the adaptive traffic signal system vendor Request for Proposal (RFP) for the procurement of the system.
Iteris will rely on the City to provide any front‐end boilerplate language that is typical of the City’s RFP process. Iteris will incorporate the City’s front‐end language and will develop the technical portions for a complete RFP. In addition to the typical front‐end components, the RFP will include a project background, a detailed scope of work for the system vendor to carry out, the final system requirements for which the proposer must respond, and a set of evaluation criteria and scoring methodology to help select the system. As part of the vendor work scope in the RFP, requirements for training, on‐going support, and warranty will be included that must be performed and provided by the selected system vendor.
Subtask 3.5. Procurement Support
Iteris will support the City during the procurement phase of this task. This will include attending a pre‐proposal meeting, providing clarification to vendor questions on the technical portions of the RFP, preparing addenda (if needed), reviewing and analyzing vendor submitted proposals, participating in vendor interviews, and assisting with the system selection recommendation.
Deliverables: Adaptive System Requirements Document, Vendor RFP Document, Vendor Proposals Evaluation and Documentation
TASK 4 – FINAL DESIGN
Subtask 4.1. Prepare 60%, 90%, and 100% Plans, Specifications, and Estimates (PS&E) Iteris will prepare design plans, specifications, and estimates of probable construction costs (PS&E) at the 60%, 90%, and 100% design stages. The plans and specifications will be prepared in accordance with the planned improvements that were identified in the System Concept and the 30% conceptual design. The plans will conform to the requirements of the City, the latest Caltrans Standard Plans and Specifications, and the CA MUTCD.
The plans and specifications will include the traffic signal equipment placement, communications infrastructure, and associated communications equipment. At each progress level, Iteris will submit the PS&E package to the City for review and comments. Upon receiving comments at each progress level, Iteris will coordinate a design review meeting with City staff to discuss the review comments. A comments response matrix will be developed and submitted to the City with each response submittal. The 100% PS&E will include all necessary improvements to be performed by a contractor for a complete and operational system. Plans will be prepared on AutoCAD in English units. It is anticipated that detailed PS&E packages will be prepared for the following items:
Traffic signal modification plans at 20‐scale. Signal equipment and conductor schedule. Signal interconnect plans, including conduit, pull boxes, communications cable installation, etc. at 40‐scale. Communications equipment at 40‐scale as part of the interconnect plans. Details sheet for any signal and communication infrastructure details (i.e., equipment mounting, conduit, pull box, and splice vaults).
Detailed communication block diagrams and fiber optic splice diagrams and assignments.
Subtask 4.2. TFCA Grant Application
Iteris will assist the City with preparing the application for the Transportation Fund for Clean Air (TFCA) grant with Alameda CTC. Typically each year, TFCA funding allocation is determined and allocated to Alameda County agencies on a formula basis by Alameda CTC as part of the Program Manager Fund. The City can apply to obtain its TFCA funding allocation for projects that qualify under the Program’s guidelines. Based on our understanding, the City is projected to have an estimate of over $600,000 available as potential funding for this project by the next funding cycle, due to the City not having utilized Packet Page 404
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prior year allocations. Based on the program guidelines, this project will likely qualify for funding under the Arterial Management project type. Projects in this category tie the amount of funding eligible to the effectiveness of the project to improve air quality. We have experience applying for this grant, having applied for funding for this project type for over 10 cycles.
As part of the grant application support, Iteris will collect average daily traffic (ADT) for 7‐days (we assume at 2 locations for each corridor) and collect existing average speed along each project corridor. To collect average speed along the corridor, we propose to use our ClearGuide platform which uses probe vehicle data which allows us to collect this data quickly and efficiently. Alternatively, we can also use INRIX data which is made available to all Bay Area public agencies through MTC.
We will complete an initial draft of the grant application, along with all supporting documentation such as Forms G and G1 required as part of Arterial Management projects, for the City’s review. Having incorporated the City’s comments on the draft, we will prepare a final application package that the City can submit to Alameda CTC.
Deliverables: 60%, 90%, and 100% PS&E and Comment Resolution Matrices; Draft and Final TFCA Grant Application and Associated Supporting Documentation
TASK 5 – BID AND CONSTRUCTION SUPPORT
Iteris will support the City during the bidding and contract award phase including: attend the pre‐bid meeting; respond to bidder’s questions and RFIs concerning the plans, specifications and estimates prior to bid opening; prepare design modifications; prepare bid addenda; and perform bid analysis to support City staff determination for award of the construction contract.
Iteris will assist the City in providing support during the construction phase of the project including: attend the pre‐ construction meeting; review contractor submittals for compliance to the project specifications; review fiber optic testing plan and OTDR test results for compliance to the project specifications; respond to contractor RFIs and, if necessary, revise and/or modify plans based on construction changes made in the field; assist the City in preparation of the “punch list;” and prepare “as‐built” record drawings from construction manager and contractor’s red‐lined plans.
Deliverables: Response to bidder’s questions and design modifications (if needed), Bid addenda (if needed), Bid analysis to support City staff recommendation for award of the construction contract, Response to contractor submittals, Response to RFIs, Record drawings
TASK 6 – SYSTEM INTEGRATION AND VERIFICATION
Based on past project experiences, systems integration is key to the overall success of a project. Services provided during this phase of a project are aimed at ensuring what is constructed and installed by the contractor actually function as intended to meet the project objectives. For example, this project will implement communications that will require device configuration, possibly preparing VLANS and IP addressing for all project equipment, and integration into the City’s network. Iteris has developed IP and VLAN schemes for all IP‐based equipment deployed as part of numerous ITS and communications projects. As part of this project, Iteris will ensure the proper configuration and setup of new devices that are deployed as part of this project will integrate into the City’s existing network infrastructure.
Integration Support: Iteris has extensive experience with the expansion and upgrade of existing systems and will ensure the integration of Project devices does not affect operation of existing devices currently operating on any existing City systems.
Iteris will be available during the integration phase to resolve problems encountered from the transition of the existing system to the new system. Prior to any integration activities, existing system conditions will be documented so that the current system operation is not impacted due to integration and testing.
Communications Network Configuration: Iteris will assist the City with configuration of the network to support the new equipment deployed as part of this project. The network configuration applies to the project field devices to ensure the elements are operational from the City’s central office. This includes the development of VLAN and IP addressing schemes for all proposed traffic devices. Iteris will coordinate with the City’s IT staff as needed as part of this effort.
Adaptive System Verification: Iteris will provide adaptive system deployment oversight support services, including attending pre‐deployment meetings, reviewing vendor submittals, ensuring system detectors are properly configured at each intersection, and reviewing vendor’s planned system installation and acceptance test procedures. Iteris will assist City staff in an oversight capacity to ensure that the hardware and software procured will be deployed in a manner that meets the system requirements. Iteris will assist City staff with any verification testing performed by the adaptive system vendor to ensure the system provided satisfies the City’s RFP requirements.
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uses as a starting point for adaptive operations. Depending on the system selected, some may provide the base timing plans as part of their implementation, or may rely on existing base timing plans to be in place. As an optional task, Iteris can prepare base traffic signal coordination plans for each peak period, if needed.
Deliverables: Support in integrating detection systems; Support in integrating the communications network; Support in configuring detection setup and verification of adaptive operation 3 Iteris brings to this project vast experience and resources in the planning, design, and deployment of all types of centralized and adaptive signal systems at both a national and local level. Iteris offers a depth of experience that cannot be matched by any other team. This includes expertise in utilizing the FHWA Model Systems Engineering Document for ASCT, FHWA‐HOP‐ 11‐027 in the development and presentation of the NHI training program for Systems Engineering, as well as developing systems engineering documents for adaptive systems and deployment projects for multiple agencies in the Bay Area. The following highlights our local Bay Area experience with communications interconnect and adaptive signal system projects.
NEXT GENERATION ARTERIAL OPERATIONS PROGRAM (NEXTGEN AOP), METROPOLITAN TRANSPORTATION COMMISSION (MTC) – SAN FRANCISCO BAY AREA, CA
Reference
Information
Linda Lee (recently retired), Principal Transportation Engineer, MTC, The Bay Area Metro Center, 375 Beale St., Ste. 800, San Francisco, CA, 94105, (415) 778‐5225, [email protected] Staff David Huynh (PM)
Project Start & Date of Completion 10/2014 – 12/2017 Dollar Amount of the Contract $406,353 MTC’s Next Generation Arterial Operations Program (NextGen AOP) was initiated to assist local agencies in implementing advanced technologies to better manage and operate their arterials. These technologies may include adaptive signal control systems, transit signal priority, real‐time traffic monitoring, and other innovative operational strategies. Iteris was selected as the System Engineer responsible for leading the system engineering (SE) process for the three adaptive projects under this program as described in the table below. As part of the SE process, Iteris developed the Systems Engineering Management Plan (SEMP), the Concept of Operations (ConOps), the System Requirements (SysReq), and the Verification Plan for each project. Following the development of the SE documents, Iteris assisted in the preparation of procurement documents (RFP’s) for each system, participated in the system selection process (evaluated vendor proposals, participated in vendor interviews, and provided technical support to the evaluation panel), and provided technical oversight and assistance to each agency during system deployment.
PROJECT/AGENCY PROJECT DESCRIPTION
City of Fremont
Adaptive signal control system evaluation and implementation for nine signalized intersections along a 2.2‐mile section of Fremont Boulevard between Decoto Road and Mowry Avenue. The project also includes deployment of Bluetooth readers to collect travel time and speeds for performance measurement.
City of Dublin/LAVTA
Adaptive signal control system evaluation and implementation for 16 signalized intersections along a 2.9‐miles section of Dublin Boulevard. The new adaptive signal control worked with the existing transit signal priority system to improve arterial travel and TSP performance.
AC Transit Line 97 (in the
cities of San Leandro,
Hayward, Union City and
Alameda County)
This multi‐jurisdictional project included adaptive signal control and transit signal priority (TSP) system evaluation and implementation along AC Transit’s Line 97 between the Bayfair BART station in San Leandro and the Union City BART station. The project stakeholders include the City of San Leandro, City of Hayward, Union City, Alameda County, and Caltrans. The project includes deployment of adaptive signal control at 34 signalized intersections along the Hesperian Blvd. portion of the corridor and deployment of TSP at all 61 signalized intersections along Hesperian Blvd., Union City Blvd., Alvarado Blvd., Alvarado‐Niles Rd., and Decoto Rd.
TRAFFIC MANAGEMENT SYSTEM– CITY OF DALY CITY, CA
Reference
Information
Shirley Chan, Traffic Engineer, City of Daly City – Engineering Division, 333 90th Street Daly City, CA 94015, (650) 991‐8231, [email protected] Packet Page 406
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5 TASK Nov 23 Dec 23 Jan24 Feb 24 Mar 24 Apr 24 May 24 Jun 24 Jul 24 Aug 24 Sep 24 Oct 24 Nov 24 Dec 24 Jan25 Feb 25Task 1: Project ManagementTask 2: Preliminary Engineering2.1 Detailed Field Review and Existing Conditions Assessment
2.2 Develop System Concept2.3 Prepare 30% PlansTask 3: Adaptive Traffic SignalSystem Procurement3.1 Develop Preliminary System Requirements
3.2 Review of Available Systems3.3 Finalize SystemRequirements3.4 Develop Vendor RFP Document
3.5 Procurement SupportTask 4: PS&E4.1 Prepare 60%. 90%, and 100% PS&E
4.2 TFCA Grant ApplicationTask 5 Bid and ConstructionSupportBid and Construction Support Services
Task 6 System Integration andVerificationSystem Integration and Verification
Notice to Proceed
Schedule assumes a 2‐week City review for deliverables.
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EXHIBIT B
PAYMENT
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EXHIBIT C
QUALIFICATIONS
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Canyon Road and Dougherty Road. The project included detailed field inspection of existing infrastructure to leverage use of existing conduit and communications equipment to deploy a new 288‐strand trunk line cable. The project is a key first step in executing the City’s ITS Master Plan. Our team prepared all Plans, Specifications, and Estimates (PS&E) in coordination with an adjacent and concurrent project, assisted the City with bid preparation, and provided support during construction.
4 FIRM PROFILE
Iteris is the market leader in smart mobility infrastructure management since 1987. Iteris’ has 16 offices with 460 staff members nationwide. Iteris team members are experts in the fields of transportation planning, traffic engineering, and ITS. Knowledge of these practice areas enables Iteris to provide comprehensive services ranging from initial traffic impact studies, transportation modeling, planning, systems engineering, and detailed design, through implementation and performance measurement/monitoring. Iteris combines the knowledge of transportation engineers, systems engineers, system integrators, software engineers, and transportation planners to offer an unmatched combination of talent and experience.
Our project team includes IDAX, as a subconsultant, for traffic data collection. IDAX was created in 2013 and is a data solutions company led by a team of accomplished industry experts. IDAX’s goal is to apply efficient and creative solutions to cost‐consciously collect data that can be utilized to help solve transportation challenges. They use the latest data acquisition technologies, and partner with technology leaders to acquire data and deliver it accurately, economically, and in customizable formats. Iteris and IDAX have a great working relationship having teamed together on multiple projects including MTC’s Program for Arterial Signal Synchronization (PASS) projects and City of Emeryville On‐Call.
ORGANIZATIONAL CHART
Key Staff (*)
Technical Lead
DAVID HUYNH, PE*
Project Manager
STEVEN BRADLEY, PE*
Principal‐in‐Charge
PS&E Preparation & Post Design Support Adaptive Signal System Procurement & Deployment Support
Matt Wages, PE* Shruti Shrivastava*
Kassra Rafiee
Evan Shipley
Delbert Smith‐Lavezzari
IDAX
Jason Xu, PE, PTOE, PMP
Jose Castellanos, IMSA
Tuan Nguyen, CCDP, CCNP, CCNA
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KEY PERSONNEL
Full resumes are provided in the appendix.
David Huynh, PE
Project Manager
Mr. Huynh brings over 26 years of transportation experience having worked in both the public and private sectors with a focus on traffic engineering, design, Intelligent Transportation System (ITS), operations, signal systems, communications design, Transit Signal Priority (TSP) design and implementation, connected vehicle development and implementation, and systems engineering. Relevant project experience includes:
Fremont Boulevard Adaptive System – Fremont, CA
Hesperian Boulevard Adaptive System (Line 97 TPI) – Alameda County, CA Traffic Management System Upgrade –Daly City, CA
Dublin Boulevard Adaptive System – Dublin, CA
MTC IDEA Category 2 Projects System Engineer – San Francisco Bay Area, CA Steven Bradley, PE
Principal‐in‐Charge
Mr. Bradley serves as a Vice President for Iteris’ Mobility Consulting Solutions and has been with the firm since 2015. He has a broad background in transportation systems development and integration with experience in designing and deploying projects involving a variety of Intelligent Transportation Systems (ITS) technologies, including communications, traveler information and traffic management systems for application in the traffic and transit environments. Relevant project experience includes:
Downtown Adaptive Traffic Signal Control System – Santa Ana, CA OCTA, I‐405 Design‐Build Improvement Project – Orange County, CA I‐80 Integrated Corridor Mobility (ICM) Project – Alameda County, CA Matt Wages, PE
Task Lead
Mr. Wages serves as a Lead Engineer for Iteris’ Mobility Consulting Solutions division and has been with the firm since August 2019. He has more than 15 years of hands‐on technical and project management experience in many areas of Intelligent Transportation Systems (ITS), traffic engineering and design, traffic signal timing and systems integration. Mr. Wages’ main focus is in the areas of advanced technologies for ITS, including: transportation management systems, communications networks, Closed‐Circuit Television (CCTV) systems, bus rapid transit (BRT) and transit signal priority (TSP), and railroad and emergency vehicle preemption systems.
Relevant project experience includes:
Smart Signals Field Improvements Design ‐ Los Gatos, CA San Ramon Fiber Design –San Ramon, CA
GAP and Tasman Drive Traffic Signal Interconnect ‐ Santa Clara, CA Shruti Shrivastava
Task Lead
Ms. Shrivastava serves as a Senior Engineer for Iteris’ Mobility Consulting Systems division and has been with the firm since September 2022. She has over 9 years of experience working in the fields of traffic engineering and transportation planning. She has experience with traffic signal timing and coordination projects, corridor and freeway capacity and operational analysis, along with performing statistical analysis of performance metrics such as traffic volumes, accident data, and identifying trends and travel behaviors. Relevant project experience includes:
MTC Program for Arterial Signal Synchronization (PASS) – San Francisco Bay Area, CA On‐Call Traffic Signal & Central Signal System Operations – Emeryville, CA On‐Call Signal Timing/ATMS.now & Traffic Operations – Concord, CA Packet Page 412
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to 8 hours during any one calendar day, and 40 hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of 8 hours during any one calendar day and 40 hours during any one calendar week is permitted upon compensation for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any one calendar week at not less than oneand-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply with California Labor Code Section 1775, which establishes a penalty for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage Packet Page 413
obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of California Labor Code Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.
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The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be submitted directly to the Labor Commission, and available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non-manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
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Item D. 13.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Cathreene Ingham-Watters, Human Resources Director SUBJECT Adopt a resolution approving a side letter with the Newark Police Management Association and approving an amendment to the salary schedule for the classification of Community Engagement Manager
SUMMARY AND RECOMMENDATION
A salary review was conducted for the vacant position of Community Engagement Manager prior to the release of a recruitment. Staff recommends City Council approve a resolution approving a side letter with the Newark Police Management Association and approving an amendment to the salary schedule for the classification of Community Engagement Manager.
BACKGROUND
It is customary to review duties, compensation, and organizational structure when positions become vacant, before a recruiting effort begins. The Community Engagement Manager position was vacated August 11, 2023. The City created this position in 2018 to conduct public education and outreach programs, and handle public relations and communications for the Police Department. The Community Engagement Manager job description does not include supervisory duties. Currently, supervision of volunteers and support staff, such as Community Service Officers, are the responsibility of sworn officers.
DISCUSSION/ANALYSIS
When the Community Engagement Manager (CEM) position was vacated in August 2023, staff evaluated the essential duties and responsibilities of the position, conducted a survey in our ten-City labor market to compare classification and compensation, and reviewed internal compensation relationships. The CEM works closely with Police Department volunteers and as a manager it is appropriate for the CEM to have supervisory duties. The City modified the job description to include further job duties including supervisory duties. To relieve a sworn position of supervisory duties related to volunteers and have the CEM supervise police department volunteers is a reasonable addition to the CEM class specification and expectations of the position. Additionally, Community Services Officers may be assigned to assist the CEM on a regular basis.
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would also support police operations by sharing supervision with a sworn officer.
With the addition of these supervisory duties, the CEM's compensation was reviewed.
The most recent labor market survey was updated, and internal compensation relationships within non-sworn police staff and other department managers and their direct reports were evaluated. These reviews supported a salary range change from 10 to 12 to bring the CEM total compensation up to the market average and assign an appropriate salary range based on job duties and scope of work in relation to other City positions.
FISCAL IMPACT
There is no fiscal impact in Fiscal Year 2024. Due to the current vacancy in the Community Engagement Manager position, the fiscal impact will be absorbed with salary budget savings. Future years’ salary costs will be requested as part of the biennial budget process.
REVIEW AND APPROVAL
Prepared by - Cathreene Ingham-Watters, Human Resources Director Reviewed by - Lenka Hovorka, Assistant City Manager
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
CEM Resolution
Side letter Community Engagement Manager
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING A SIDE LETTER TO THE
MEMORANDUM OF UNDERSTANDING WITH THE CITY OF
NEWARK AND THE NEWARK POLICE MANAGEMENT
ASSOCIATION; AND APPROVING AN AMENDMENT TO
THE CITY’S SALARY SCHEDULE IN CONFORMANCE WITH
CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION
570.5
WHEREAS, the City conducted labor market and internal compensation relationships surveysfor the classification of Community Engagement Manager in preparation for a recruitment; and
WHEREAS, the surveys justify an increase to the salary range of the Community Engagement Manager classification from range 10 to range 12; and WHEREAS, the current Memorandum of Understanding between the City and NPMA, effective July 1, 2022 through June 30, 2025, is currently in effect (the “MOU”); and WHEREAS, the City Manager or designee has met and conferred in good faith with the representatives of NPMA related to the above matter; and WHEREAS, the City has considered and determined that the proposed side letter is proper and in the best interests of the City.
NOW THEREFORE, BE IT RESOLVED that the City Council hereby approves and adopts a side letter to the MOU, attached hereto and incorporated herein by reference, effective November 9, 2023 and authorizes the City Manager to execute the side letter and to take such further actions as may be necessary to implement the side letter to the MOU including any necessary non-substantive modifications.
BE IT FURTHER RESOLVED that the City Council hereby approves an amendment to the City’s Salary Schedule, effective November 9, 2023 as follows:
Minimum Maximum
Classification Hourly Biweekly Annual Hourly Biweekly Annual Community
Engagement Manager
54.27 59.83
4,341.60
4,786.40
112,881.60
124,446.40
Range 10
12 65.12
71.80 5,209.60
5,744.00
135,449.60
149,344.00
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510.578.4200 [email protected] www.newark.org facebook.com/cityofnewarkca City of Newark
City Manager’s Office
37101 Newark Boulevard
Newark, CA 94560
To: Newark Police Management Association Executive Board From: David Benoun, City Manager
Lenka Hovorka, Assistant City Manager
Date: October 25, 2023
This will serve as a side letter to the City of Newark (City) and the Newark Police Management Association (NPMA) July 1, 2022 - June 30, 2025 Memorandum of Understanding (MOU). The purpose of this side letter is to address salary of the classification of Community Engagement Manager. This side letter will become effective upon approval by the City Council.
The proposed change to the above referenced MOU is the following:
1. Repeal and replace Range “10” in Section IV. COMPENSATION with Range “12” for the classification of Community Engagement Manager.
Dated: _______________________________
For the City of Newark: For the Newark Police Management Association Employees:
_____________________________________ ______________________________________ David J. Benoun, City Manager Jonathan Arguello, President Packet Page 419
Item D. 14.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Cathreene Ingham-Watters, Human Resources Director SUBJECT Adopt a resolution approving a compensation plan for certain positions in the exempt service employee group to amend the Temporary Classifications Schedule of Hourly Wage Rates, and revoking the previous resolution in conformance with California Code of Regulations, Title 2, Section 570.5
SUMMARY AND RECOMMENDATION
Staff annually reviews and recommends changes to the salary schedule for temporary employees. Staff recommends that the City Council, by resolution, adopt a compensation plan for certain positions in the exempt service employee group to amend the Temporary Classifications Schedule of Hourly Wage Rates in conformance with California Code of Regulations, Title 2, Section 570.5 effective January 1, 2024, and revoke Resolution 11,426.
BACKGROUND
The Temporary Classifications Schedule of Hourly Wage Rates provides a list of hourly wage rates for certain temporary classifications, including CalPERS Annuitants. City staff conducts an annual review of temporary classification wage rates in order to remain in compliance with minimum wage laws and maintain alignment across wage ranges. Following any adjustments required due to minimum wage laws, the remaining temporary classifications are reviewed to ensure that they maintain similar compensation relationships with other related temporary and regular full-time positions.
Compensation surveys are also conducted at times to ensure the City remains competitive in the job market when recruiting for positions critical to providing City services.
DISCUSSION/ANALYSIS
Due to scheduled increases in the California minimum wage, the temporary classification minimum hourly ranges must be increased to the new minimum of $16.00 per hour, effective January 1, 2024. This impacts six classifications that require an increase to the minimum hourly range rate of fifty cents. This change does not guarantee a salary increase for all temporary employees, as many employees already earn an hourly rate of $16.00 or more.
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To ensure that the City remains competitive in the job market, staff also recommends that the starting hourly rates for all recreation, office, and maintenance related positions be increased $2.00 - $6.50 per hour. Similar to the minimum wage increase, this will not impact all temporary employees, as some employees already earn an hourly rate above the proposed minimum rates. While staff recommends a minimum hourly rate increase for certain positions, staff recommends that the maximum pay rates for the following positions remain at their current levels: Activity Coordinator, Aquatics Instructor, Intern, Lifeguard, Office Assistant, Recreation Instructor, Recreation Leader, and Senior Lifeguard. Staff recommends the maximum hourly rate for the following classifications increase by $2.00: General Maintenance Worker, Customer Service Representative, Pool Service Technician, Preschool Instructor, and Senior Customer Service Representative.
In addition, staff recommends retitling the current classification of Aquatics Instructor to Aquatics Instructor I and adding a new classification of Aquatics Instructor II. The distinction between the two classifications would be the level of certification required:
the Aquatics Instructor II classification will require American Red Cross' Water Safety Instructor certification while the first level Aquatics Instructor will receive staff provided training.
FISCAL IMPACT
Outside of the Recreation and Community Services Department, the costs are de minimus. The Recreation and Community Services Department will use FY2024 temporary personnel budget savings to absorb the estimated $9,400 cost.
REVIEW AND APPROVAL
Prepared by - Cathreene Ingham-Watters, Human Resources Director Reviewed by - Lenka Hovorka, Assistant City Manager
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Resolution - Temporary Classifications Salary Schedule
Exhibit A - Temporary Classifications Salary Schedule
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK ADOPTING A COMPENSATION PLAN FOR
CERTAIN POSITIONS IN THE EXEMPT SERVICE
EMPLOYEE GROUP TO AMEND THE SCHEDULE OF
HOURLY WAGE RATES FOR TEMPORARY
CLASSIFICATIONS EFFECTIVE JANUARY 1, 2024 AND
REVOKING RESOLUTION NO. 11,426.
WHEREAS, the Schedule of Temporary Classifications provides a list of hourly wage rates for temporary positions; and
WHEREAS, due to a scheduled increase in the state of California minimum wage effective January 1, 2024, the Schedule was reviewed to identify recommendations for minimum wage compliance; and
WHEREAS, the Schedule was also reviewed to ensure classifications remain in use and compensation relationships are maintained; and
WHEREAS, the Schedule was reviewed and adjustments made to ensure the City maintains competitiveness in the job market.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Council hereby adopts the Temporary Classifications Schedule for Hourly Rate Ranges effective January 1, 2024, as attached in Exhibit A, for certain positions in the Exempt Service.
BE IF FURTHER RESOLVED that Resolution Number 11,426 is hereby revoked effective January 1, 2024, and if any provisions contained herein are found to be in conflict with provisions of any other resolutions, the provisions herein shall prevail.
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City of Newark, CA
TEMPORARY CLASSIFICATIONS
Schedule of Hourly Rate Ranges Effective January 1, 20243 Position Hourly Rate Range
Minimum Maximum
Activity Coordinator 17.0019.00 25.00
Aquatics Instructor I 17.0019.00 25.00
Aquatics Instructor II 20.00 28.00
Customer Service Representative 15.5018.00 20.0022.00
Engineering Aide 24.50 34.00
General Maintenance Worker 15.5022.00 25.0027.00
Intern 15.5018.00 25.00
Lifeguard 17.0019.00 25.00
Office Assistant 15.5019.00 26.00
Planning Commissioner 75.00 per meeting
Police Services Aide * 15.50 26.00
Police Officer Trainee 50.00
Pool Service Technician 18.0021.00 25.0027.00
Preschool Instructor 17.5020.00 25.00
Professional Services Specialist 50.00 125.00
Recreation Instructor 16.5020.00 35.00
Recreation Leader 15.5018.00 23.00
Senior Customer Service Representative 18.0022.00 25.0027.00 Senior Lifeguard 19.0022.00 30.00
Special Assistant 30.00 75.00
Temporary staff may be hired into any existing job classification within the City’s classification plan, commensurate with the work being performed by the temporary position. The temporary hourly pay rate will remain the same as the hourly rate of the applicable job classification posted in the City’s salary schedule, employee agreements or compensation plans.
*The Police Services Aide position is eligible to receive a uniform allowance, paid biweekly up to $100 per fiscal year.
Resolution No. 11,426
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Item D. 15.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Michelle Villanueva, Senior Accountant
SUBJECT Adopt a resolution approving Amendment No. 1 to the Contractual Services Agreement with Lance, Soll & Lunghard, LLP (LSL), Certified Public Accountants, for professional auditing services SUMMARY AND RECOMMENDATION
Lance, Soll & Lunghard, LLP (LSL) has served as the City of Newark’s independent auditor for the past three fiscal years. The City’s contract with the firm will expire in FY 2025. The agreement is for a term of four fiscal years with the option to renew on a year-by-year basis for two additional years, subject to satisfactory performance.
LSL is highly qualified to continue to provide both independent audit services to the City and to implement new GASB pronouncements due to their experience, qualifications, and demonstrated ability. The firm meets the independence standards of the U.S.
General Accounting Office Government Auditing Standards.
If the past performance of LSL was unsatisfactory, staff would have undertaken a full-scale competitive process for a new selection of independent auditors. Given the firm’s ability to deliver excellent auditing services for the past three fiscal years, staff is now seeking the contracting authority to exercise the two optional years. The additional two years were contemplated in the original agreement previously approved by the City Council in May 2019.
Staff further recommends that the City Council increase the not-to-exceed amount from $347,927 to $523,858.
BACKGROUND
The Government Finance Officers Association (GFOA) best practices recommend that local governmental entities obtain independent audits of their financial statements performed in accordance with Governmental Accounting Standards Board (GASB) standards. GFOA best practices also recommend Governmental entities undertake a competitive process for the selection of independent auditors to enter into multiyear agreements of at least five years in duration. Multiyear agreements allow for greater continuity and help to minimize the potential for disruption in connection with the independent audit. Properly performed audits play a vital role in helping to preserve the Packet Page 424
integrity of the public finance functions.
While previous best practices suggested rotation of independent auditors at the end of each multiyear agreement, the frequent lack of competition among audit firms fully qualified to perform public-sector audits realistically makes the policy of mandatory audit firm rotation counterproductive.
In such cases, if the past performance of the current auditors has proven satisfactory, recent best practice now recommends that governmental entities may consider requesting that senior engagement staff, such as engagement partners and senior managers, be rotated to provide a fresh perspective instead of replacement of the audit firm.
DISCUSSION/ANALYSIS
In April 2019, the City issued a Request for Proposals (RFP) for professional auditing services. Six qualified firms responded to this RFP and were interviewed by a team of three staff members. Lance, Soll, & Lunghard, LLP (LSL) provided the most comprehensive proposal and interview presentation that satisfied the stated selection criteria. The City awarded a multi-year contractual services agreement with Lance, Soll & Lunghard, LLP (LSL) for professional auditing services with a not-to-exceed amount of $347,927.
LSL’s value-based pricing strategy, experience, staff qualifications, audit plan approach to operating as an extension of our organization and demonstrated commitment to internal control established LSL as the most qualified proposer. If the past performance of LSL was unsatisfactory, staff would have undertaken a full-scale competitive process for a new selection of independent auditors. Given the firm’s ability to deliver excellent auditing services for the past three fiscal years, staff is now seeking the contracting authority to exercise the two optional years. The additional two years were contemplated in the original agreement previously approved by the City Council in May of 2019.
FISCAL IMPACT
The not-to-exceed amount of $347,927 was based on the first four years of service with LSL. The agreement included two optional years, to continue service for FY 2024.
Staff is now seeking Council authorization to increase the not-to-exceed amount by $175,931 to exercise the two options years to cover service for FY 2024. There is sufficient budget allocated in the 2022-2024 Biennial Budget and Capital Improvement Plan.
REVIEW AND APPROVAL
Prepared by - Michelle Villanueva, Senior Accountant
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
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Attachments
Contract Amendment #1
868_Resolution_LSL Amend-1
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1 FIRST AMENDMENT TO THE CONTRACTUAL
SERVICES AGREEMENT BETWEEN THE CITY OF
NEWARK AND LANCE, SOLL & LUNGHARD, LLP
(LSL)
This First Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, ("City") and Lance, Soll & Lunghard, LLP ("Consultant") (sometimes referred to as "Parties") dated May 23, 2019 (the “Agreement”), is entered into for professional auditing services.
RECITALS
WHEREAS, the Parties executed the Agreement for the purpose of professional auditing services; and
WHEREAS, Section 25, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to amend the Agreement, Section 3.A to increase the “Not to Exceed” Compensation amount; and
WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Section 3.A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not to exceed compensation by $175,931, for a total not to exceed amount of $523,858 (from a previous not to exceed amount of $347,927.).
2. With the exception of the foregoing, all other terms and conditions in the Agreement, remain in force and effect.
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2 City of Newark Consultant
_________________________________ _________________________________ David J. Benoun Brandon Young, Partner
City Manager Lance, Soll & Lunghard, LLP
Dated: ___________________________ Dated: ___________________________ Attest:
__________________________________
Sheila Harrington
City Clerk
Approved as to Form:
__________________________________
Kristopher J. Kokotaylo
City Attorney
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWARK APPROVING AMENDMENT NO. 1 TO
THE CONTRACTUAL SERVICES AGREEMENT WITH
LANCE, SOLL & LUNGHARD, LLP (LSL), CERTIFIED
PUBLIC ACCOUNTANTS
WHEREAS, the City of Newark awarded a Multi-Year Contractual Service Agreement (Agreement) to Lance, Soll & Lunghard, LLP (LSL) for professional auditing services; and
WHEREAS, the Agreement through June 30, 2022 had an original not-to-exceed amount of $347,927; and
WHEREAS, based on satisfactory performance, staff elected to continue service with LSL for the two optional years through June 30, 2024; and WHEREAS, staff recommends increasing the not-to-exceed by $175,931.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby approves Amendment No. 1 with LSL to increase the existing not-toexceed amount by $175,931 to a new total not-to-exceed amount of $523,858.
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Item D. 16.
DATE 11/09/2023
TO Honorable Mayor and City Council Members
FROM Jayson Imai, Assistant City Engineer
SUBJECT Adopt a resolution approving a Project Specific Funding Agreement with Alameda County Transportation Commission for the design and construction phases of Central Avenue Overpass, Project 1014 SUMMARY AND RECOMMENDATION
On December 12, 2013, the City Council approved a Project Specific Funding Agreement with Alameda County Transportation Commission (ACTC) for the preliminary engineering, environmental studies, and design phases of Central Avenue Overpass, Project 1014. Subsequently, on December 10, 2015, and April 27, 2017, the City Council approved Amendment No. 1 and Amendment No. 2 to the Project Specific Funding Agreement, respectively, each time extending the term of the Agreement to align with the updated project schedule.
ACTC is now requesting that the City enter into a new Project Specific Funding Agreement for the Central Avenue Overpass Project to reflect the updated project schedule and reallocated specific phased funding amounts.
Staff recommends that the City Council adopt a resolution approving the Project Specific Funding Agreement with ACTC for the preliminary engineering, environmental, final design, right-of-way, and construction phases of Central Avenue Overpass, Project 1014.
BACKGROUND
Central Avenue Overpass, Project 1014, will remove the existing at-grade Union Pacific Railroad (UPRR) crossing on Central Avenue between Sycamore Street and Morton Avenue and construct a new multi-span structure over the existing railroad which will include a four-lane roadway with bicycle and pedestrian sidewalk facilities.
The City is under contract with Consor North America, Inc. (Consor), formerly Quincy Engineering, Inc., to provide professional engineering services for the design and right-of-way phases for the Central Avenue Overpass Project. Consor and its sub-consultants have completed a significant amount of work to date. This includes, but is not limited to, extensive geotechnical investigations; surveying; detailed utility locating; traffic studies; coordination with UPRR; coordination with all affected utility agencies, businesses, and property owners; overpass structure design; and Packet Page 430
right-of-way services.
Central Avenue provides critical local east-west access through Newark and serves as a regional bypass route for State Route 84 and Interstate 880 traffic congestion in the Dumbarton Corridor. At-grade railroad tracks (two mainline tracks under the ownership of UPRR plus two spur tracks) currently cross Central Avenue causing frequent delays.
The train tracks accommodate both freight and commuter train traffic and serve a nearby switching yard for UPRR. There are currently up to 39 train conflicts per day at this location based on historical counts. The Central Avenue Overpass Project will construct a grade separation structure at the railroad crossing resulting in relief of traffic congestion within the Dumbarton Corridor. This will provide enhanced vehicular, bicycle and pedestrian safety, improved emergency response times, and elimination of conflicts between rail traffic and the general public.
Professional services for the preliminary engineering/environmental, final design and right-of-way phases of the Project are funded through a Project Specific Funding Agreement with ACTC. The original Project Specific Funding Agreement was approved by City Council on December 12, 2013. This Agreement was required as a part of the Master Agreement for the City to receive Measure B funding for project development and design. Subsequently, on December 10, 2015, and April 27, 2017, the City Council approved Amendment No. 1 and Amendment 2 to the Project Specific Funding Agreement, respectively, each time extending the term of the Agreement to align with the updated project schedule.
DISCUSSION/ANALYSIS
Staff has been continuously working with ACTC to update the completion dates for the preliminary engineering and design phases of the Central Avenue Overpass Project.
There have been many unexpected delays to the project schedule, including design complexities resulting from extremely poor soil conditions in the project area and most recently, difficulties coordinating utility relocation with multiple utility agencies. An updated Project Schedule is provided below.
Project Phase Begin End
Overpass & Roadway Design
--
Summer
2024
Utility Relocation Design Fall 2022 Winter 2023
Right-of-Way Negotiations Summer
2023 Spring 2024
UPRR Crossing Agreements Fall 2023 Spring 2024
Fiber Utility Relocation Fall 2023 Spring 2024
Joint Trench & Utility
Undergrounding Spring 2024 Winter 2024
Central Ave Overpass
Construction Spring 2025 Spring 2027
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In December 2021, City Council approved Task Order No. 2 with Quincy Engineering (now Consor) for additional design services for the Central Avenue Project necessitated by the unforeseen design complexities. Subsequently, in April 2022, ACTC approved, with its 2022 Comprehensive Investment Plan Update, a redistribution of the funds allocated towards the Central Avenue Overpass Project.
The restructuring of funds was required to reallocate specific phased funding amounts required to support Consor’s additional design services but did not increase or decrease the total amount allocated to the project.
ACTC is now requesting that the City enter into a new Project Funding Agreement for the Central Avenue Overpass Project to reflect the updated project schedule and reallocated specific phased funding amounts.
Staff recommends that the City Council adopt a resolution to approve the Project Specific Funding Agreement with ACTC for the preliminary engineering, environmental, final design, right-of-way, and construction phases of Central Avenue Overpass, Project 1014.
FISCAL IMPACT
There is no fiscal impact at this time. The new Project Funding Agreement amount remains the same as the original Project Specific Agreement approved on December 13, 2013.
REVIEW AND APPROVAL
Prepared by - Jayson Imai, City Engineer
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
Central Avenue Overpass Resolution
Project Specific Funding Agreement
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING THE PROJECT SPECIFIC FUNDING
AGREEMENT WITH THE ALAMEDA COUNTY
TRANSPORTATION COMMISSION FOR THE
PRELIMINARY ENGINEERING/ENVIRONMENTAL, FINAL
DESIGN, RIGHT OF WAY AND CONSTRUCTION PHASES
OF CENTRAL AVENUE OVERPASS, PROJECT 1014
WHEREAS, pursuant to Resolution No. 10,147 the City Council approved a Project Specific Funding Agreement with the Alameda County Transportation Commission (ACTC) for Central Avenue Overpass, Project 1014 (the Project); and WHEREAS, pursuant to Resolution No. 10,432 the City Council approved Amendment No. 1 to the Project Specific Funding Agreement with ACTC for the Project; and WHEREAS, pursuant to Resolution No. 10,619 the City Council approved Amendment No. 2 to the Project Specific Funding Agreement with ACTC for the Project; and WHEREAS, ACTC has requested the City to enter into a new Project Specific Funding Agreement for the Project to reflect the updated project schedule and reallocated specific phased funding amounts.
NOW, THEREFORE, BE IT RESOLVED that the City Council hereby approves the Project Specific Funding Agreement with ACTC for the preliminary engineering/environmental, final design, right-of-way and construction phases of the Project (the Agreement) and authorizes the City Manager to execute the Agreement in a form approved by the City Attorney.
BE IT FURTHER RESOLVED that the City Manager is authorized to take all actions necessary to effectuate the intent of this Resolution.
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Alameda CTC Agreement No. A22-0067
Project No. 1211.001