Agenda packet — City Council and Concurrent Authorities, June 20, 2023 (part 3 of 3)

EXHIBIT 2
328
Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
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.

Fur
thermore, 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 any insurance policy or proceeds available to the named Insured; whichever is greater.

The A
dditional Insured coverage under the CONTRACTOR’s policy shall be “primary and non-contributory” and will not seek contribution from the City of Stockton’s insurance or self- insurance and shall be at least as broad as ISO CG 20 01 04 13.

Th
e limits of in surance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City of Stockton (if agreed to in a written contract or agreement) before the City of Stockton’s own insurance or self-insurance shall be called upon to protect it as a named insured.

All s
elf-insured retentions ( SIR) must be disclosed to the CITY’s Risk Management for approval and shall not reduce the limits of liability. Payment Bond in the amount of the self- insured retention (SIR) may be required.

Pol
icies containing any self -insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the CITY.

The CI
TY reserves the right to obtain a full certified copy of any i nsurance policy and endorsements.

Fai
lure to exercise this right shall not constitute a waiver of right to exercise later.

CONT
RACTOR shall maintain insurance as required by this contract to the fullest amount allowed by law and shall maintain insurance for a minimum of five years following the completion of this project. In the event contractor fails to obtain or maintain completed operations coverage as required by this agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by contractor.

CONT
RACTOR agrees to include with all Subcontractors 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 Subcontractor’s work.

Subcontractors hired by CONTRACTOR agree to be bound to CONTRACTOR and the CITY in the same manner and to the same extent as CONTRACTOR is bound to the CITY under the Contract Documents. Subcontractor further agrees to include these same provisions with any Sub- subcontractor. A copy of the CITY Contract Document Indemnity and

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329
Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
Insurance provisions will be furnished to the Subcontractor upon request. The General CONTRACTOR shall require all sub- contractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and contractor will provide proof of compliance to the City.

4. I
NDEMNITY AND HOLD HARMLESS. Wit h the exception that this section shall in no event be construed to require indemnification by Contractor to a greater extent than permitted under the public policy of the State of California, Contractor shall indemnify, protect, defend with counsel approved by City and at Contractor’s sole cost and expense, and hold harmless City, its Mayor, Council, officials, representatives, agents , employees, and volunteers from and against any and all claims, causes of action, liabilities, judgments, awards, losses, liens, claims, stop notices, damages, expenses, and costs (including without limitation attorneys’ fees, expert and consultant fees, and other expenses of litigation) of every nature, including, but not limited to, death or injury to persons, or damage to property, which arise out of or are in any way connected with the work performed, materials furnished, or services provided under this Agreement, or from any violation of any federal, State, or municipal law or ordinance, or City Policy, by Contractor or Contractor’s officers, agents, employees, volunteers or subcontractors. Contractor shall not be obligated to indemnify or defend City for claims finally determined by a court of law or arbitrator to arise from the active negligence or willful misconduct of the City. It is the intent of the Parties that this indemnity obligation is at least as broad as is permitted under California law. To the extent California Civil Code sections 2782, et seq., limit the defense or indemnity obligations of Contractor to City, the intent hereunder is to provide the maximum defense and indemnity obligations allowed by Contractor under the law. The indemnity set forth in this section shall not be limited by insurance requirements or by any other provision of this Agreement.

Wi
th ex
ception that this section shall in no event be construed to require indemnification, including the duty to defend, by Contractor to a greater extent than permitted under the public policy of the State of California, the parties agree that Contractor’s duty to defend City is immediate and arises upon the filing of any claim against the City for damages which arise out of or are in any way connected with the work performed, materials furnished, or services provided under this Agreement by Contractor or Contractor’s officers, agents, employees, volunteers or subcontractors. Contractor’s duties and obligations to defend the City shall apply regardless of whether or not the issue of the City’s liability, breach of this Agreement, or other obligation or fault has been determined. Contractor shall be immediately obligated to pay for City’s defense costs of the claim, including, but not limited to, court costs, attorney’s fees and costs, expert consultant and witness fees and costs, other witness fees, document reproduction costs, arbitration fees, and, if after final judgment an appeal is pursued, all of such costs for the appeal. At the conclusion of the claim, if there is any determination or finding of sole active negligence or willful misconduct on the part of the City, City will then reimburse Contractor for amounts paid in excess of Contractor’s proportionate share of responsibility for the damages within 30 days after Contractor provides City with copies of all bills and expenses incurred in the defense of the claim(s). It is agreed between the parties that this reimbursement provision assures

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Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
Contractor is not obligated to defend or indemnify City in an amount greater than provided for under California law, including, without limitation, California Civil Code sections 2782, 2782.6, and 2782.8.

Wi
th the exception that this section shall in no event be construed to require indemnification by Contractor to a greater extent than permitted under the public policy of the State of California, and in addition to the other indemnity obligations in this Agreement, Contractor shall indemnify, defend, and hold harmless City, its Mayor, Council, officials, representatives, agents , employees, and volunteers from and against all claims, losses, expenses, and costs including, but not limited to, attorneys’ fees, arising out of any claim brought against the City by an employee, office, agent, or volunteer of Contractor, regardless of whether such claim may be covered by any applicable workers compensation insurance. Contractor’s indemnification obligation is not limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Contractor under workers’ compensation acts, disability acts, or other employee benefit acts.

The C
ity’s acceptance of the insurance certificates required under this Agreement does not relieve the CONTRACTOR from its obligation under this paragraph. The indemnification obligations of this section shall survive the termination of this agreement. Any exceptions to this language may result in a proposal being deemed non-responsive.

CONTRACTOR/Subcontractor'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. If any section, subsection, sentence, clause or phrase of this indemnification is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this indemnification.

5. S
TANDARD PLANS AND SPECIFICATIONS. The performance of said work and the furnishing of said materials shall be executed in accordance with Section 8- 1.04B of the City of Stockton Standard Specifications and Plans as adopted on September 27, 2016, by Council Resolution No. 2016- 09-27-1213, effective September 27, 2016, and the provisions of the issued project specifications.

CONTRACTOR will be allowed one (1) week in which to file a written protest setting forth in what respects said weekly statement is incorrect, otherwise the statement shall be deemed to have been accepted by CONTRACTOR as correct.

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331
Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)

6. WORKING DAYS. This work shall be diligently prosecuted to completion before the expiration of 20 WORKING DAYS beginning on the tenth calendar day after the date shown on the Notice to Proceed. It is agreed by the parties to the contract that in case all the work called for under the contract in all parts and requirements, is not finished or completed within the number of days as set forth, damage will be sustained by the CITY, and that it is and will be impracticable and extremely difficult to ascertain the actual damage which CITY will sustain in the event of and by reason of such delay; and it is therefore agreed that CONTRACTOR will pay to CITY the sum of TWO THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS ($2,700) per day for each and every calendar day's delay in finishing the work in excess of the number of days prescribed; and CONTRACTOR agrees to pay said liquidated damages as herein provided, and in case the same are not paid, agrees that CITY, may deduct the amount thereof from any monies due or that may become due CONTRACTOR under the contract.

It
is
further agreed that in case the work called for under the contract is not finished and completed in all parts and requirements within the number of days as specified, the CITY shall have the right to increase the number of days or not, as may seem best to serve the interest of CITY, and if the CITY decides to increase the said number of days, the CITY shall further have the right to charge to CONTRACTOR, CONTRACTOR's heirs, assigns or sureties, and to deduct from the final payment for the work, all or any part, as may be deemed proper, the liquidated damages as specified or the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to the contract, and which accrue during the period of such extension, whichever is greater, except the cost of f inal surveys and preparation of final estimate shall not be included in such charges.

A w
orking day shall not include, nor shall CONTRACTOR be assessed with liquidated damages nor the additional cost of engineering and inspection during any delay beyond the time named for the completion of the work caused by acts of God or of the public enemy, acts of CITY, fire, floods, epidemics, quarantine restrictions, strikes, and freight embargoes and subject to approval by the Director of Public Works, inability to get materials ordered by CONTRACTOR or subcontractor due to such causes provided that CONTRACTOR shall notify the Director of Public Works in writing of the causes of delay within five (5) working days from the beginning of any such delay, and the Director shall ascertain the facts and the extent of the delay, and Director's findings of the facts thereon shall be final and conclusive.

If
CONTRACTOR is delayed by reason of alterations made in these specifications, or by any act of the Director of Public Works or of the CITY, not contemplated by the contract, the time of completion shall be extended proportionately and CONTRACTOR shall be relieved during the period of such extension of any claim for liquidated damages, engineering or inspection charges or other penalties. CONTRACTOR shall have no claim for any other compensation for any such delay.

7. CO
NFORMANCE TO APPLICABLE LAWS. Cont ractor shall comply with all applicable Federal, State, and Municipal laws, rules, and ordinances. Contractor shall not

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Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
discriminate in the employment of persons or in the provision of services under this Contract on the basis of any legally protected classification, including race, color, national origin, ancestry, sex or religion of such person.
a. TITL
E VI
Ti
tle VI of the Civil Rights Act of 1964 requires that “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (42 USC Section 2000d) http://www.dol.gov/oasam/regs/statutes/titlevi.htm.

The C
ity of Stockton requires compliance with the requirements of Title VI in all of its programs and activities regardless of funding source. b. DISCRIMINATION AND HARASSMENT POLICY
The C
ity of Stockton has a Discrimination and Harassment Policy (Exhibit C).

The purpose of this policy is to reaffirm the CITY’s commitment to demonstrating respect for all individuals by strictly prohibiting discrimination and harassment, including sexual harassment in the workplace, to define the types of behavior and conduct prohibited by this policy, and to set forth a procedure for reporting, investigating, and resolving complaints of discrimination and harassment in the workplace.
c. LABOR STANDARDS PROVISIONS/CALIFORNIA LABOR CODE
The bi
dder shall understand that conditions set forth in Chapter 1, Part 7, Division 2 of the California Labor Code shall be considered part of the contract agreement.
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LA B&division=2.&title=&part=7.&chapter=1.&article=2.
d. PREVAI

LING WAGE
CO
NTRACTOR and any subcontractor shall pay each employee engaged in the trade or occupation not less than the prevailing hourly wage rate. In accordance with the provisions of Section 1770 of the Labor Code, the Director of Department of Industrial Relations of the State of California has determined the general prevailing wage and employer payments for health and welfare, pension, vacation, travel time, and subsistence pay as provided for in Section 1773.1, apprenticeship or other training programs authorized by Section 3093 and similar purposes applicable to the work to be done. CONTRACTOR performing the work under this contract shall obtain a copy of the wage rate determination and shall distribute copies to each subcontractor. As the wage

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Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
determination for each craft reflects an expiration date, it shall be the prime CONTRACTOR and each subcontractor's responsibility to e nsure that the prevailing wage rates of concern is current and paid to the employee. i. The CONTRACTOR performing the work shall be responsible for obtaining a copy of the State wage rate determination. State wage rates may be obtained at
http://www.dir.ca.gov/OPRL/pwd/Determinations/Northern/Northern.pdf.

The CONTRACTOR shall be responsible for posting said wage rates at a prominent location at the work site and shall maintain same in a good readable condition for the duration of the work.
ii. Shoul
d the CONTRACTOR choose to work on a Saturday, Sunday or on a holiday recognized by the Labor Unions, the CONTRACTOR shall reimburse the CITY the actual cost of engineering, inspection, superintendence, and or other overhead expenses which are directly chargeable to the contract. Should such work be undertaken at the request of the CITY, reimbursement will not be required. To conform strictly with the provisions of Division 2, Part 7, Chapter 1, Article 2, of the Labor Code of the State of California. To forfeit as a penalty to CITY the sum of TWENTY-FIVE AND NO/100 DOLLARS ($25.00) for each laborer, worker, or mechanic employed by CONTRACTOR, or by any
subcontractor under CONTRACTOR, in the execution of this contract, for each calendar day during which any laborer, worker, or mechanic is required or permitted to work more than eight (8) hours and who is not paid the general prevailing rate of per diem wages for holiday and overtime work in violation of the provisions of Sections 1770 to 1781 of the Labor Code of the State of California. That all sums forfeited under the provisions of the foregoing sections shall be deducted from the payments to be made under the terms of this contract.
iii. T
he CONTRACTOR to whom the contract is awarded shall e nsure that the prime and each subcontractor will in accordance with Section 1776 of the Labor Code, maintain certified payroll records. A copy of said records shall be provided with each invoice to the Public Works Department, Attention Contract Compliance Officer. It shall be the CONTRACTOR’S responsibility to obtain copies of the current prevailing wage rate determination for all subcontractors. Additionally, certified payroll records must be uploaded to the DIR website as required by labor code. iv. The C
ONTRACTOR shall comply with the provisions established in Section 1777.5 of the Labor Code concerning the 1) certified approval by local joint apprenticeship committees for the employment and training of apprentices, and 2) contribution of funds to administer and conduct apprenticeship programs, if applicable to the job.

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Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
e. LO

CAL EMPLOYMENT ORDINANCE
Pur
suant to Stockton Municipal Code Section 3.68.095 the CONTRACTOR and all subcontractors shall make a good faith effort to employ at least 50 percent of the workforce on this project from local residents, as measured by total labor work hours. Failure of any CONTRACTOR or subcontractor to comply with these requirements shall be deemed a material breach of the contract or subcontract. CONTRACTORS and subcontractors shall maintain records necessary for monitoring their compliance with section 3.68.095. f. SA

NCTIONS
Del
iverables must conform with all applicable federal, state, and local laws. Such conformity includes compliance with federal sanctions, and Contractor certifies that it has not and will not engage in prohibited transactions with sanctioned persons or entities.

CI
TY agrees:

8. CO
MPENSATION. To pay CO NTRACTOR for the work herein contemplated in the following manner: Progress payments will be made on or about the first day of each calendar month, in such sum as shall make the aggregate of payment up to such day equal to ninety-five percent (95%) of the proportional contract price, upon the basis of the progress certificate of the Director of Public Works as to the amount of work done and the proportional amount of the contract price represented therefor e; and all of the remaining part of the contract price not as aforesaid paid, shall be paid at the expiration of thirty -five (35) days from the completion of said work of construction and the certification by the Director of Public Works of such completion.

9. SEC
URI TIES. Pursuant to Section 22300 of the Public Contract Code, CONTRACTOR will be permitted, at its request and sole expense, to substitute securities for any monies withheld by the CITY to ensure performance under the contract. Said securities will be deposited either with the CITY or with a S tate or federally chartered bank as escrow agent. Securities eligible for this substitution are those listed in Section 16430 of the California Government Code or bank or savings and loan certificates of deposit.

CONTRACTOR shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.

10. CHANG
E ORDE RS. CITY reserves the right to make such alterations, deviations, additions to or omissions from the plans and specifications, including the right to increase or decrease the quantity of any item or portion of the work, as may be deemed by the Engineer to be necessary or advisable and to require such extra work as may be determined by the Engineer to be required for the proper completion or construction of the whole work contemplated.

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Local Construction Contract – CONSOLIDATED ENGINEERING, INC. –PROJECT NO. WD23003 (Updated 07/12/22)
Any
such changes will be set forth in a contract change order which will specify, in addition to the work done in connection with the change made, adjustment of contract time, if any, and the basis of compensation for such work. A contract change order will not become effective until approved by the City Manager and/or the City Council.

Pr
ocessing of change orders shall be in accordance with Section 4- 1.05A of the City of Stockton Standard Specifications and Plans as adopted by Council on September 27, 2016, by Resolution No. 2016- 09-27-1213, effective September 27, 2016 , or as otherwise amended by Council. When the compensation for an item of work is subject to adjustment under the provisi ons of Standard Specifications and Plans, Section 4- 1.05A, CONTRACTOR shall, upon request, promptly furnish the Engineer with adequate detailed cost data for such item of work.

11. AUDI
TS. CI TY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under the contract. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance.

CO
NT
RACTOR agrees that CITY or its delegate will have the right to rev iew, obtain and copy all records pertaining to performance of the contract. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under the contract. //
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12. WAIVER. It is expressly understood and agreed by and between the parties hereto that a waiver of any of the conditions of this contract shall not be considered a waiver of any of the other conditions thereof.

It is further understood and agreed by and between the parties hereto that time is of the essence of this contract in all respects.

IN WITNESS WHEREOF, the parties hereto have hereunto affixed their hands and seals the day and year first above written.

ATTEST:

ELIZA R. GARZA

CITY CLERK
By: ____________ _
APPROVED AS TO FORM & CONTENT:

LORI M. ASUNCION

OFFICE OF THE CITY ATTORNEY
By:-------------

DEPUTY CITY ATTORNEY
CITY:

By: ---,-,-c--=-,::-:-:--:'."""'.--,-.,...,.-,------

H ARR YB LACK

CITY MANAGER
Tax Identification No.

Local Construction Contract - CONSOLIDATED ENGINEERING, INC. -PROJECT NO. WD23003 (Updated 07/12/22)

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337
LOCAL STREET RESURFACING PROGRAM FY 2022-23 SB1 - PAVEMENT REPAIR PROJECT NO. WD23003A

BIDD ING SCH EDUL E
Each bidder shall bid each item, including all alternate bid(s). Failure to bid an item shall be just cause for considering the bid as non-responsive. Line item costs should include all Contractor's overhead and profit and indirect costs. Bids not presented on City forms shall be cause for considering the bid as non-responsive.

Item
1 2
3 6
7 Bid Forms
Description
Mobilization
Traffic Control
Water Pollution Control
Material Testing (Certified 3rd
Party Laboratory)
Pavement Repair - (3.0 - Inch)
Pavement Repair - (6.0 - Inch)
Hot Mix Asphalt (Type A)
Unit
LS
LS
LS
LS
SY
SY
TON
Quantity Unit price
1 ··-
I '-I, '5'(')0
1 I 3, :{CO
-
1 -t s C;:C.)
1 (,,,.cx::o-
-
6,700 ,, . .s-s-
400 ··-;..s-
1,300 ''J...l3.�-0
Total Price
I Lt. $-C.iO
l �.s-oo
,_
,s-oo -
�Oc:x:'.:>
, ·1, 3 &' S
\C, 0C0
�-
?.1 ·-rt. S"'S-b
TOTAL BID '-IO .S- 4 '3 .> -
BIDDER'S NAME Gcu-.. J ;c,.C::>L \ ()A� D
E't-....) �· � EE v2.. I �G:,. t I'-,....) c...

Last Revised 12/31 /20

EXHIBIT A

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REV 2022-05-17
Exhibit B:

Insu
rance Requirements
(Street Resurfacing & Pavement Repair WD23003)
Contractor shall procure and maintain for the duration of the contract, and for 5 years thereafter, 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 Contractor, his agents, representatives, employees, or subcontractors.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.

4. Surety Bonds as described below.

If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.

EXHIBIT B

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REV 2022-05-17
either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds $25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Contractor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named Insured.

The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

1. The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor.

General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.

2. For any claims related to this project, the Contractor’s insurance coverage shall be primary and non-contributory insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. The City of Stockton does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.

3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City of Stockton.

Claims Made Policies (Professional & Pollution only)

EXHIBIT B

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REV 2022-05-17
If any coverage required is written on a claims-made coverage form:

1. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work.

3. If coverage is cancelled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.

4. A copy of the claims reporting requirements must be submitted to the City of Stockton for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractors Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Umbrella or Excess Policies
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.

Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City of Stockton.

Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

Contractor agrees to obtain any endorsement that may be necessary to affect this

EXHIBIT B

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REV 2022-05-17
waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Stockton for all work performed by the Contractor, its employees, agents and subcontractors.

Verification of Coverage
Contractor shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all requirements stated herein, and Contractor shall ensure that City of Stockton is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

Duration of Coverage
CGL & Excess liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 5 years for Completed Operations liability coverage. Such Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

Surety Bonds
Contractor shall provide the following Surety Bonds:

1. Bid Bond

2. Performance Bond

3. Payment Bond

4. Maintenance Bond
The Payment Bond and the Performance Bond shall be in a sum equal to the contract price. If the Performance Bond provides for a one-year warranty a separate

EXHIBIT B

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REV 2022-05-17
Maintenance Bond is not necessary. If the warranty period specified in the contract is for longer than one year a Maintenance Bond equal to 10% of the contract price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Special Risks or Circumstances
City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.

Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:

City of Stockton
Its Officers, Officials, Employees and Volunteers
400 E Main Street, 3rd Floor – HR
Stockton, CA 95202

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 1 of 14
DISCRIMINATION AND Effective Date: Revised From:

HARASSMENT POLICY 7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 I. PURPOSE
The purpose of this policy is to reaffirm the City's commitment to demonstrating respect for all individuals by strictly prohibiting discrimination and harassment, including sexual harassment in the workplace. This policy defines prohibited behavior and conduct, and sets forth a procedure for reporting, investigating and resolving complaints of discrimination, harassment, in the workplace, including retaliation and hostile work environment.

II. POLICY
A. The City of Stockton prohibits any form of discrimination and/or harassment of any person based on race, religious creed, color, national origin, ancestry, military and veterans status, physical or mental disability, medical condition, genetic characteristics or information, denial of family and medical care leave, marital status, sexual orientation, sex (including gender, gender identity, gender expression, transgender, pregnancy, childbirth and breastfeeding), political affiliation, age (40 and older), concerted labor activity, or any other category or attribute consistent with state or federal law.

All such discrimination and harassment is unlawful and shall not be tolerated. In addition, under the federal Affordable Care Act (ACA), the City of Stockton prohibits discrimination and/or harassment, or retaliation against an employee who obtains coverage, receives a tax credit or subsidy through the Health Care "Market Place" or "Exchange."
B. It is an unlawful employment practice to discriminate against or to harass an unpaid intern or volunteer on the basis of any legally protected classification unless an exception applies, such as a bona fide occupational qualification.

C. The City will neither tolerate nor condone discrimination and/or harassment of employees by managers, supervisors, co-workers, or non-employees with whom City employees have a business service, or professional relationship.

D. All City employees and non-employees share a responsibility to assist in

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 2 of 14
DISCRIMINATION AND Effective Date: Revised From: HARASSMENT POLICY 7/27/09 5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 maintaining an employment environment free of discrimination and harassment. This policy applies to all aspects of City employment, including, but not limited to, hiring, reassignment, placement, promotion, employment action, disciplinary action, layoff, reemployment, transfer, leave of absence, compensation and benefits, training; or other terms of treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person, or the harassment of an unpaid intern or volunteer.

E. All allegations of discrimination and/or harassment shall be investigated immediately by the City, in accordance with this policy. If it is determined that any prohibited activity has occurred, remedial action shall be taken. Such action may include discipline up to and including discharge. In addition, under applicable law, individual supervisors and employees may be subject to personal liability and/or punitive damages in any litigation arising as a result of such conduct.

F. All new hires shall attend harassment awareness training, and supervisors and managers shall attend harassment awareness and prevention training for supervisors every two years.

G. The City of Stockton prohibits retaliation against any employee or non employee by another employee, non-employee, supervisor, or manager for reporting, filing, testifying, assisting or participating in any manner in any investigation, proceeding, or hearing conducted by the employer or a federal or state enforcement agency.

H. This policy applies to all officials, employees, volunteers, unpaid interns, agents, or contractors of the City.

I. This policy shall be administered by the Director of Human Resources.

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 3 of 14
DISCRIMINATION AND Effective Date: Revised From:

HARASSMENT POLICY 7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment m the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 Ill. DEFINITION AND EXAMPLES OF DISCRIMINATION AND HARASSMENT A. "Discrimination," as used in this policy, is any action, behavior, practice, or process that is intended to deny, or results in the denial of, employment rights, privileges, or benefits because of a person's race, religious creed, color, national origin, ancestry, military and veterans status, physical or mental disability, medical condition, genetic characteristics or information, denial of family and medical care leave, marital status, sexual orientation, sex (including gender, gender identity, gender expression, transgender, pregnancy, childbirth and breastfeeding), political affiliation, age (40 and older), concerted labor activity, or any other prohibition identified under state and federal law. The following are examples of conduct that may constitute discrimination:

1. Soliciting applications from a source where all or most of potential workers are of the same race or color.

2. Considering a person's gender as the basis for differences in pay, work assignments, performance evaluations, training, discipline, or any other area of employment; and

3. Questioning a job applicant about the existence, nature and severity of a disability.

B. "Harassment," as used in this policy, consists of any conduct affecting another person because of his or her race, religious creed, color, national origin, ancestry, military and veterans status, physical or mental disability, medical condition, genetic characteristics or information, denial of family and medical care leave, marital status, sexual orientation, sex (including gender, gender identity, gender expression, transgender, pregnancy, childbirth and breastfeeding), political affiliation, age (40 and older), concerted labor activity, or any other category or attribute identified under state and federal law when such conduct has the purpose or the effect of: (1) creating an intimidating, hostile or offensive work environment; (2) unreasonably interfering with the employee's or non-employee's work performance; or (3)

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 4 of 14

DISCRIMINATION AND

HARASSMENT POLICY
Effective Date: Revised From:
7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 otherwise adversely affecting an employee's or non-employee's employment opportunities.

Harassment may take many forms, including, but not limited to, the following examples:

1. Verbal Harassment: Epithets, derogatory and offensive comments or slurs based on race, religion, color, national origin, ancestry, physical or mental disability, marital status, pregnancy, medical condition, gender, sexual orientation, political affiliation, age, or any other category or attribute identified under state and federal law.

2. Physical Harassment: Assault, impeding or blocking movement that results in the physical interference with normal work or movement on the basis of race, religion, color, national origin, ancestry, physical or mental disability, marital status, pregnancy, medical condition, gender, sexual orientation, political affiliation, age, or any other category or attribute identified under state and federal law.

3. Visual Harassment: The displaying of posters, photography, notices, bulletins, e-mails, cartoons or drawings with derogatory and offensive content based on race, religion, color, national origin, ancestry, physical or mental disability, marital status, pregnancy, medical condition, gender, sexual orientation, political affiliation, age, or any other category or attribute identified under state and federal law.

C. "Sexual harassment," as used in this policy, is a subcategory of harassment, and is specifically defined by law as unwanted sexual advances, requests for sexual favors or visual, verbal or physical conduct of a sexual nature when:

1. Submission to such conduct is made a term or condition of employment; or

2. Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 5 of 14

DISCRIMINATION AND

3. Such conduct has the purpose or effect of unreasonably interfering with an employee's or non-employee's work performance or creating an intimidating, hostile or offensive working environment because of the persistent, severe or pervasive nature of the conduct.

Examples of Sexual Harassment include, but are not limited to the following:
a. Unwelcome sexual overtures or propositions.
b. Offering employment benefits or status in exchange for sexual favors.
c. Making or threatening retaliation after a negative response to sexual advances.
d. Visual conduct such as leering, making sexual gestures, displaying sexually suggestive objects or pictures, cartoons, calendars or posters.
e. Verbal conduct such as using epithets or slurs, telling sexually explicit jokes, or making derogatory or suggestive comments about a person's body or dress.
f. Written communications of a sexual nature distributed in hard copy, soft copy or via a computer network.
g. Verbal abuse of a sexual nature, graphic verbal commentary about an individual's body, sexually degrading words to describe an individual, suggestive or obscene letters, notes or invitations.
h. Physical conduct such as touching, assaulting, impeding or blocking movements.

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 6 of 14
DISCRIMINATION AND Effective Date:

HARASSMENT POLICY
Revised From:
7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95. 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 i. Retaliation for making harassment reports or threatening to report harassment.

D. Affordable Care Act (ACA) Anti-Retaliation
Pursuant to section §1558 of the Affordable Care Act, the City prohibits discrimination or retaliation towards any employee who:

1. Receives a health insurance tax credit or subsidy through the Health Care "Marketplace" or "Exchange", by which can trigger a penalty payable by the employer;

2. Reports potential violations of protections afforded under Title I of the Act, which provides guaranteed availability protections among other things;

3. Testifies in a proceeding concerning such violation;

4. Assists or participates in a proceeding concerning a violation; or

5. Objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee reasonably believes to be in violation of any provision of the Title I of the Act.

An employee who believes that he or she has been discharged or otherwise discriminated against in violation of section §1558 of the Affordable Care Act may seek relief in accordance with the procedures, notifications, burdens of proof, remedies, and statutes of limitation set forth in section 2087(b) of title 15, United States Code.

IV. REPORTING AND COMPLAINT PROCEDURES
A. Immediate Action Required
The City's reporting and complaint procedures provide for an immediate, thorough and objective investigation of discrimination or harassment claims, appropriate disciplinary action taken against any person found to have engaged in prohibited behavior, and appropriate alternative remedies to any

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 7 of 14
DISCRIMINATION AND Effective Date: Revised From:

HARASSMENT POLICY 7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 employee or non-employee subject to discrimination or harassment. To accomplish this, such incidents must be reported immediately to a supervisor or manager.

1. Employee's and Non-Employee's Responsibilities when Subjected to Discrimination and/or Harassment
a. Employees or non-employees who believe they have been subjected to discrimination or harassment, or are aware of discrimination or harassment against others, shall report the situation immediately to his/her supervisor or manager, except as specified in subsection (b), below. Employees and non employees shall report any such incidents occurring in the workplace, whether committed by coworkers, supervisors or managers, or third persons doing business with the City, such as customers or vendors, or other non-employees. If
comfortable doing so, an employee or non-employee who has a complaint of discrimination or harassment is encouraged to directly inform the person(s) engaging in the behavior that such conduct is offensive and insist the behavior to stop.
b. Employees and non-employees must immediately contact a supervisor or manager to register a complaint of discrimination or harassment, unless that supervisor or manager is the individual engaging in the unwanted behavior. In that case, the employee or non-employee may contact someone at the next supervisory level. If the employee or non-employee feels uncomfortable dealing directly with his or her immediate supervisor or manager, he or she may contact the department head, or the Director of Human Resources (or either of their designees) to register a complaint of discrimination or harassment.
c. Employees and non-employees may file a formal complaint of harassment or discrimination with their department head or

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 8 of 14

DISCRIMINATION AND

HARASSMENT POLICY
Effective Date: Revised From:
7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment In the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 with Human Resources. To assist the City in conducting a thorough investigation, complaints shall be submitted in writing and shall include specific details of the incident(s), the names of the individuals involved, the names of any witnesses, and any documentary evidence (notes, pictures, cartoons, etc.) that will corroborate the allegations.
d. Employees and non-employees shall immediately report any retaliation to a supervisor, manager, department head or Director of Human Resources (or designee). All retaliation complaints shall be immediately, objectively and thoroughly investigated in accordance with the investigation procedures.

If a report of retaliation is substantiated, appropriate disciplinary action, up to and including discharge shall be taken.

2. Supervisor's or Manager's Responsibilities to Eliminate Discrimination and/or Harassment
a. A supervisor or manager is responsible for enforcing the City's discrimination and harassment policy. Supervisors or
managers must ensure that all employees and non-employees are aware of the City's policy through open discussion of the policy at staff meetings and by posting the policy in a conspicuous location accessible to all staff members.
b. A supervisor or manager shall be cognizant of employees' and non-employees' behavior and shall not permit any employee or non-employee under their supervision to be subjected to or engage in any conduct prohibited by this policy.
c. A supervisor or manager who observes conduct prohibited by this policy shall immediately direct the employee or non employee to cease the conduct.

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Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 9 of 14
DISCRIMINATION AND Revised From:

HARASSMENT POLICY
Effective Date:
7/27/09
5/1/2015 4/6/09
3/1/2010
(see below)
PER-015 (Sexual Harassment in the Workplace) revised from 10/21/94, 5/1/95, 1/1/98 PER-037 (Sexual Harassment Investigative Procedures) revised from 2/15/93 d. A supervisor or manager who receives a complaint of
prohibited conduct is required to take the complaint seriously, and report the matter immediately to the department head; be supportive of the complainant; ensure there is no retaliation against the complainant; conduct an internal fact-finding review into the allegations; obtain as much detailed information as possible; thoroughly document the findings; communicate in written form to the parties the resolution of the complaint; and report to and consult with the Human Resources Department promptly, without delay.

B. Confidentiality. The City will make every effort to protect the privacy and confidentiality of all parties involved, as well as any information and/or documentation obtained, to the extent possible consistent with a thorough investigation.

C. Penalty for Non-Compliance. The City shall take disciplinary action, up to and including discharge, against any supervisor or manager who fails in his/her responsibility to take immediate action in response to an employee's or non-employee's complaint of discrimination or harassment. Further, such disciplinary action shall be taken against a supervisor or manager who fails to stop discriminatory or harassing conduct committed in his/her presence or to stop such conduct about which the supervisor or manager has knowledge.

V. INVESTIGATION PROCEDURES
A. Determination of Responsibility for Investigation
If a formal complaint is filed with the department head or the Director of Human Resources (or either of their designees), the department head and the Director of Human Resources shall consult with one another to determine whether the department or Human Resources shall conduct the fact-finding investigation into the allegations. Either the department head or the Director of Human Resources (or either of their designees), depending on who is

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BOND FOR FAITHFUL PERFORMANCE
KNOW
ALL MEN BY THESE PRESENTS:

That we, _____ __________________________, a STATE OF CALIFORNIA CORPORATION, as Principal and
, a corp oration, organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of California, as obligee, in the just and full sum of FOUR HUNDRED FIVE THOUSAND FOUR HUNDRED THIRTY -FIVE AND xx/100 DOLLARS ($ 405,435), in lawful money of the United States of America (being 100% of the contract price) for the payment whereof well and truly to be made to the said CITY, the said Principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.

The condition of the foregoing obligation is su
ch that the above bounded Principal
has simultaneously entered into a contract with the CITY, to do and perform the following work, to wit:

LOCAL
STREET RESURFACING PROGRAM FY 2022-23 SB1 – PAVEMENT
REPAIR
(PROJECT NO. WD23003A)
NOW
, THEREFORE, if the above bounded Principal, CONTRACTOR, Company or
Corporation or its subcontractor, shall well and truly perform the work contracted to be done under said contract, then this obligation to be null and void; otherwise to remain in full force and effect.

No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract, or in said plans or specifications agreed to between the said CONTRACTOR and the said CITY, and no forbearance on the part of

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the said CITY shall operate to relieve any Surety or Sureties from liability on this bond, and consent by said Surety is hereby given, and the said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.

SIGNED AND SEALED on
APPROVED AS TO SURETY: By:

PRINCI PAL

SURET Y
APPROVED AS TO FORM & CONTENT:

LORI M. ASUNCION

OFFICE OF THE CITY ATTORNEY
By:

ATT ORNEY-IN-FACT
By:

DEPUTY CITY ATTORNEY

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BOND FOR LABOR AND MATERIAL
KNOW
ALL MEN BY THESE PRESENTS:

That we, CONSOLIDATED ENGINEERING INC., a STATE OF CALIFORNIA CORPORATION, as Principal and , corporation,
organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of California, and unto any and all material suppliers, persons, companies, or corporations furnishing materials, provisions, provender or other supplies used in, upon, for or about the performance of the work contemplated to be executed or performed under the contract hereinafter mentioned, and all persons, companies, or corporations renting or hiring teams, or implements of machinery, for or contributing to said work and all persons who perform work or labor upon the same, and all persons who supply both work and materials, and whose claims have not been paid by the contrac tor, company or corporation in the just and full sum of FOUR HUNDRED FIVE THOUSAND FOUR HUNDRED THIRTY -FIVE AND xx/100 DOLLARS ($405,435), in lawful money of the United States of America (being 100% of the contract price) for the payment whereof well and truly to be made to said CITY and to said persons jointly and severally, the said principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.

The condition of the foregoing obligations is such that the above bounden Principal has s
imultaneously entered into a contract of even date herewith, with the CITY, to do and perform the following work, to-wit:

LOCAL
STREET RESURFACING PROGRAM FY 2022-23 SB1 – PAVEMENT
REPAIR
(PROJECT NO. WD23003A)
NOW
, THEREFORE, if the above bounden Principal, CONTRACTOR, C ompany or Corporation or its subcontractor, fail to pay for all materials, provisions, provender, or other supplies, or teams, used in, upon, for or about the performance of the work

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contracted to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond, provided that any and all claims hereunder shall be filed and proceedings had in connection therewith as required by the provisions of Division 3, Part 4, Title 15, Chapter 5, Article 1 of the Civil Code of California, provided that in case suit is brought upon this bond, a reasonable attorney's fee shall be awarded by the Court to the prevailing party in said suit; said attorney's fee to be fixed as costs in said suit, and to be included in the judgment therein rendered.

No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract or in said plans or specifications agreed to between the said CONTRACT OR and the said CITY and no forbearance on the part of the said CITY shall operate to relieve any surety or sureties from liability on this bond, and consent to make such alterations without further notice to or consent by any such surety is hereby given, and the said sureties hereby waive the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.

SIGNED AND SEALED on .

APPROVED AS TO SURETY: By:

PRINCI PAL

SURET Y
APPROVED AS TO FORM & CONTENT:

LORI M. ASUNCION

OFFICE OF THE CITY ATTORNEY
By:

ATT ORNEY-IN-FACT
By:

DEPUTY CITY ATTORNEY

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City of Stockton
Legislation Text
File #: 23-0366, Version: 1

ADOPT RESOLUTION TO AUTHORIZE THE CITYWIDE TREE MAINTENANCE PROJECT

RECOMMENDATION
It is recommended that the City Council adopt a resolution to:

1. Approve the Notice of Exemption No. NOE32-22 under the California Environmental Quality Act for the Citywide Tree Maintenance, Project No. WE22052.

2. Approve the specifications for the Citywide Tree Maintenance, Project No. WE22052.

3. Award a Construction Contract in the amount of $3,791,766.09 to P31 Enterprises, Inc. of Oroville, CA, for the Citywide Tree Maintenance, Project No. WE22052.

It is also recommended that the City Manager be authorized to take appropriate and necessary actions to carry out the purpose and intent of this resolution.

Summary
The Citywide Tree Maintenance project will provide services to City-owned trees, including pruning 23,947 trees, removing 165 dead or unhealthy trees and 567 tree stumps, and clearance trimming at 180 signalized intersections citywide (Attachments A and D).

On November 3, 2022, the City received seven bids for this project. Staff recommends award of the Construction Contract to the lowest responsive bidder, P31 Enterprises, Inc., in the amount of $3,791,766.09. Staff also recommends that Council adopt a resolution approving Notice of Exemption No. NOE32-22 under the California Environmental Quality Act (CEQA) and approving the specifications for the project. Construction is anticipated to begin in summer 2023 and be completed by fall 2025, weather permitting.

DISCUSSION
Background
The City maintains approximately 92,000 City-owned trees. All are in need of pruning and disease trimming. The Public Works Department has one Tree Crew comprised of five staff performing primarily emergency tree removals and public safety services, such as stop sign and traffic signal clearance trimming. This single crew is unable to keep pace with the demand for standard schedules for pruning or trimming maintenance citywide. While Public Works utilizes contracted on-call services, they are reserved for emergency situations as funding allows.

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On November 16, 2021, by Resolution No. 2021-11-16-1501, City Council allocated millions in one- time funding for various park, tree, transportation, and facility improvement projects citywide.

Included in this allocation was $0.5 million for intersection safety tree trimming. On May 3, 2022, by Resolution No. 2022-05-03-0903, City Council allocated an additional $5 million in funding for one- time tree maintenance.

For efficiency and to leverage economies of scale from both funding allocations, the Citywide Tree Maintenance project was packaged to include the following for City-owned trees:
· Pruning 23,947 trees (Attachment A)
· Removing 165 dead or unhealthy trees (Attachment B)
· Removing 567 tree stumps (Attachment C)
· Clearance trimming at 180 signalized intersections citywide (Attachment D) To determine priority locations, staff performed field inspections citywide based on a strategic analysis of Arterial and Collector streets. Locations were further determined by evaluation of outstanding work orders that the Public Works Tree Crew has not been able to complete. To assist in the successful delivery of this project, a licensed arborist for as-needed consultation has already been retained.

It's anticipated through a future separate effort, staff will implement a new citywide tree inventory report and condition assessment to identify next areas of pruning as project budget allows.

On July 26, 2016, Council adopted a Community Workforce and Training Agreement (CWTA). The CWTA became effective August 25, 2016, and applies to all Public Works projects over $1 million that are bid after that date. On July 16, 2019, by Motion No. 2019-07-16-1403, Council extended the CWTA term to August 25, 2024.

Present Situation
On October 6, 2022, the Citywide Tree Maintenance, Project No. WE22052, was advertised for bids.

On November 3, 2022, seven bids were received with the following results:

COMPANY NAME BID AMOUNT ADJUSTED BID AMOUNT
(local preference applied)
P31 Enterprises, Inc. $3,791,766.09 $3,791,766.09 (Oroville, CA)
Nate’s Tree Service $3,999,998.70 $3,999,998.70
(Sonora, CA)
West Coast Tree Service, Inc. $4,224,430.00 $4,224,430.00 (Anderson, CA)
The Professional Tree Care Co. $4,229,500.00 $4,229,500.00 (Berkeley, CA)
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West Coast Arborists, Inc. $4,787,000.00 $4,691,260.00
(Stockton, CA)
Community Tree Service, LLC $5,869,827.00 $5,869,827.00 (Watsonville, CA)
Mountain F Enterprise, Inc. $6,014,116.00 $6,014,116.00 (Folsom, CA)
Engineer’s Estimate $4,860,000.00
The CWTA applies to this contract because the Engineer’s Estimate is over the $1 million threshold amount. The requirements of Stockton Municipal Code (SMC) section 3.68.090, Local Business Preference, apply to this project. West Coast Arborists, Inc. is located within County limits and is entitled to a two percent bid preference. Application of the Local Business Preference has no effect on the bid order.

On November 9, 2022, the City received a bid advisory from the Foundation for Fair Contracting (FFC) regarding the lowest bidder, P31 Enterprises, Inc. The claim against P31 Enterprises, Inc. alleged failures to comply with prevailing wage, apprenticeship program, and Occupational Safety and Health Administration (OSHA) requirements. Public Works staff together with the City Attorney’s Office reviewed the bid advisory, a rebuttal letter provided by P31 Enterprises, and the official bid documents. The review found that there were no discrepancies that could result in a non-responsive bid from P31 Enterprises, Inc.

The bid from P31 Enterprises, Inc., the lowest responsive bidder, is regular in all respects. P31 Enterprises, Inc. has the proper license to perform the work, and their bid is approximately 22 percent lower than the Engineer’s Estimate. Staff recommends Council approve the specifications for the project and award a Construction Contract to P31 Enterprises, Inc. of Oroville, CA, in the amount of $3,791,766.09.

The project is in conformance with the City’s General Plan, pursuant to California Government Code, section 65402, and is categorically exempt from the requirements of California Environmental Quality Act (CEQA) as specified under Section 15301(c) of the CEQA guidelines. As a result, the project has been granted a Categorical Exemption. The activities related to this project constitute a discretionary project under the City’s jurisdiction and qualifies as a project that does not have a significant effect on the environment. The resolution will approve the filing of Notice of Exemption No. NOE32-22 under CEQA. Construction is anticipated to begin in summer 2023 and be completed by fall 2025, weather permitting.

FINANCIAL SUMMARY
There are sufficient funds available in the Citywide Tree Maintenance, Project No. WE22052, Account No. 4550-000-800007-300-301-30-45-000-000, and the Intersection Safety Tree Trimming, Project No. WD22018, Account No. 4570-000-800007-300-301-30-45-000-000, to award a Construction Contract to P31 Enterprises, Inc. in the amount of $3,791,766.09.

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File #: 23-0366, Version: 1
There is no additional impact to the City’s General Fund or any other unrestricted fund as a result of taking the recommended actions.

Attachment A - Maintenance Trimming Locations
Attachment B - Tree Removal Locations
Attachment C - Tree Stump Removal Locations
Attachment D - Clearance/Work Order Trimming Locations
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LEGEND:

Maintenance Trimming
IN/OUT
County Limits
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CITY OF STOCKTON PUBLIC WORKS
CITYWIDE TREE MAINTENANCE, PROJECT NO. WE22052

ATTACHMENT A
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BEN HOLT DR

EIGHT MILE RD

THORNTONRD

DAVIS RD WEST LN

MORADA LN

HAMMER LN

MARCH LN
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HARDING WY FREMONT ST

DR MLK JR BL

AIRPORT WY
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PERSHING AV

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Tree Removal Work Order
County Limits
0 0.75 1.5 2.25 30.375
Miles

CITY OF STOCKTON PUBLIC WORKS
CITYWIDE TREE MAINTENANCE PROJECT, PROJECT NO. WE22052

ATTACHMENT B
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EIGHT MILE RD

THORNTONRD

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MORADA LN

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MARCH LN
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HARDING WY FREMONT ST

DR MLK JR BL

AIRPORT WY
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PERSHING AV

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EL DORADO ST

WATERLOO RD

CHEROKEE RD
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WY

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ROBERTS RD

CHARTER WY
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Stump Removal Work Order
County Limits
0 0.75 1.5 2.25 30.375
Miles

CITY OF STOCKTON PUBLIC WORKS
CITYWIDE TREE MAINTENANCE PROJECT, PROJECT NO. WE22052

ATTACHMENT C
368

BEN HOLT DR

EIGHT MILE RD

THORNTONRD
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D
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EST
LN

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Clearance/Work Order Trimming
IN/OUT
County Limits
Park Locations
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Miles

CITY OF STOCKTON PUBLIC WORKS
CITYWIDE TREE MAINTENANCE, PROJECT NO. WE22052

ATTACHMENT D
369
Resolution No.

STOCKTON CITY COUNCIL

RESOLUTION APPROVING THE NOTICE OF EXEMPTION NO. NOE32-22,

APPROVING THE SPECIFICATIONS, AND AWARDING A CONSTRUCTION CONTRACT FOR THE CITYWIDE TREE MAINTENANCE, PROJECT NO. WE22052

On November 3, 2022, the City Clerk of the City of Stockton opened, examined, and publicly declared the sealed proposals or bids offered for the Citywide Tree Maintenance, Project No. WE22052; and

The Citywide Tree Maintenance project will prune 23,947 City -owned trees, remove 165 dead or unhealthy trees and 567 tree stumps, and clearance trimming at 180 signalized intersections citywide; and

P31 Enterprises , Inc. is the lowest responsive bidder in the amount of $3,791,766.09, and its bid is regular in all respects; and

The project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) as specified under section 15301(c) of the CEQA Guidelines, because this is a discretionary project under the City’s jurisdiction and qualifies as a project which has been determined to not have a significant effect on the environment; now, therefore,

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:

1. The City Council approves the filing of Notice of Exemption No. NOE32-22 under the CEQA for the Citywide Tree Maintenance, Project No. WE22052 , a copy of which is attached as Exhibit 1 and incorporated by this reference.

2. The City Council approves the specifications for the Citywide Tree Maintenance, Project No. WE22052.

3. The City Council awards a Construction Contract between the City of Stockton and P31 Enterprises , Inc., in the amount of $ 3,791,766.09, and the City Manager is authorized and directed to execute same, a copy of which is attached as Exhibit 2 and incorporated by this reference.

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370

4. The City Manager is hereby authorized to take whatever actions are necessary and appropriate to carry out the purpose and intent of this Resolution.

PASSED, APPROVED, and ADOPTED June 20, 2023 .

KEVIN J. LINCOLN II
Mayor of the City of Stockton
ATTEST:

ELIZA R. GARZA, CMC
City Clerk of the City of Stockton

371
EXHIBIT 1
372
Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22)

CONSTRUCTION CONT
RACT
This contract is made and entered into on _____________, by and between P31 ENTERPRISES, INC., a ( STATE OF CALIFORNIA CORPORATION) , with a business address at 2015 CHALLENDGER AVE. STE. A, OROVILLE, CA 95965 , hereinafter called "CONTRACTOR," and CITY OF STOCKTON, a municipal corporation, hereinafter called "CITY."
W I T N E S S E T H:

WHEREAS, plans and specifications for the construction of CITYWIDE TRE E
MAINTENANCE PROJECT (PROJECT NO. WE22052), hereinafter called “PROJECT,” were regularly adopted by Council Resolution No. __________________ , on _________________; and
WHEREAS, the contract for said work was regularly awarded to CONTRACTOR, by Council Resolution No. __________________, on ________________.

NOW, THEREFORE, in consideration of the promises and of the mutual covenants herein contained, the parties hereto expressly agree as follows:

CONTRACTOR agrees:

1. SCOPE OF SERVICES. To do the work and furnish all the labor, materials, tools, equipment, and insurance required for the construction of PROJECT in accordance with the plans and specificat ions adopted on _____________, by Council Resolution No. __________________ . The "contract documents, " which include the bid documents, project plans, specifications, all letters of clarification, and the City of Stockton Standard Specifications and Plans, are incorporated into and made a part of this contract by this reference to the same extent as if fully set forth.

2. COMPENSATION. To do and perform the work contemplated hereby in a good and workmanlike manner and to furnish all labor, materials, tools, and equipment necessary therefore at the prices specified in Exhibit A, attached hereto and by reference made a part hereof, under the direction of and to the complete satisfaction of the Director of Public Works of the Cit y of Stockton. Total compensation for services and reimbursement for costs shall not exceed $3,791,766.09, or as otherwise mutually agreed to in a Contract Change Order.

3. INSURANCE. CONTRACTOR shall not commence any work before obtaining, and shall maintain in force at all times during the duration and performance of this contract, the policies of insurance specif ied in Exhibit B, which is attached to this contract and incorporated by this reference, and as provided in the “contract documents” including Section 7-1.06 of the City of Stockt on Standard Specifications and Plans as adopted on September 27, 2016, by Council Resolution No . 2016-09-27, effective September 27, 2016.

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EXHIBIT 2
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Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) It shall be a requirement under this agreement that any av ailable 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 any i
nsurance policy or proceeds available to the named Insured; whichever is greater.

The Additional Insured coverage under the CONTRACTOR’s policy shall be “primary and non-contributory” and will not seek contribution from the City of Stockton’s insurance or self-insurance and shall be at least as broad as ISO CG 20 01 04 13.

The limits of insurance requir ed in this agreement may be sati sfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contai n a provision that such co verage shall also apply on a primary and non-contributory basis for the benefit of the City of Stockton (if agreed to in a written contract or agreem ent) before the City of Stockton’s own insurance or self- insurance shall be called upon to protect it as a named insured.

All self-insured retentions (SIR) must be disclosed to the CITY’s Risk Management for approval and shall not reduce t he limits of liability. Payment Bond in the amount of the self-insured retention (SIR) may be required.

Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the CITY.

The CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements.

Failure to exercise this right shall not constitute a waiver of right to exercise later.

CONTRACTOR shall maintain insurance as required by this contract to the fullest amount allowed by law and shall maintain insurance for a minimum of five years following the completion of this project. In the event cont ractor fails to obtain or maintain completed operations coverage as requir ed by this agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by contractor.

CONTRACTOR agrees to include with all Subcont ractors 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 Subcontractor’s work.

Subcontractors hired by CONTRACTOR ag ree to be bound to CONTRACTOR and the CITY in the same manner and to the same extent as CONTRACTOR is bound to the CITY under the Contract Documents. Subcontractor further agrees to include these same provisions with any Sub-subcontractor. A copy of the CITY Contract Document Indemnity

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EXHIBIT 2
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Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) and Insurance provisions will be furnished to the Subcontractor upon request. The General CONTRACTOR shall require all sub-contractors to provide a valid certificate of insurance and the required endorsements included in th
e agreement prior to
commencement of any work and contractor will provide proof of compliance to the City.

Contractor shall not be obligated to indemnify or defend City for claims finally determined by a court of law or arbitrat or to arise from the active negligence or willful misconduct of the City. It is the intent of the Parties that this indemnity obligation is at least as broad as is permitted under California law. To the extent Califo rnia Civil Code sections 2782, et seq., limit the defense or indemnity obligations of Cont ractor to City, the intent hereunder is to provide the maximum defens e and indemnity obligations allowed by Contractor under the law. The indemnity set forth in this section shall not be limited by insurance requirements or by any other provision of this Agreement.

Contractor shall be immediat ely obligated to pay for City’s defense costs of the claim, including, but not limited to, court costs, attorney’s fees and costs, expert consultant and witness fees and costs, othe r witness fees, document repr oduction costs, arbitration fees, and, if after final judgm ent an appeal is pursued, all of such costs for the appeal.

At the conclusion of the claim, if there is any determination or finding of sole active negligence or willful misconduct on the part of the City, Cit y will then reimburse Contractor for amounts paid in excess of Contractor’s pr oportionate share of responsibility for the damages within 30 days after Contractor prov ides City with copie s
of all bills and expenses incurred in the defense of the claim(s). It is agreed between the

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Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) parties that this reimbursemen t provision assures Contractor is not obligated to defend or indemnify City in an amount greater than provided for under Cali fornia law, including,
without limitation, California Civil Code sections 2782, 2782.6, and 2782.8.

With the exception that this section sh all in no event be construed to require indemnification by Contractor to a greater extent than pe rmitted under the public policy of the State of California, and in addition to the other i ndemnity obligations in this Agreement, Contractor shall indemnify, de fend, and hold harmle ss City, its Mayor, Council, officials, representatives, agents , employees, and volunt eers from and against all claims, losses, expenses, and costs includi ng, but not limited to, attorneys’ fees, arising out of any claim br ought against the City by an employee, office, agent, or volunteer of Contractor, r egardless of whether such claim may be covered by any applicable workers compensation insurance. Contractor’s indemnification obligation is not limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Contractor under workers’ compensation acts, disability acts, or other employee benefit acts.

The City’s acceptance of the insurance certificates required under this Agreement does not relieve the CONTRACTOR from its obligation under this paragraph. The indemnification obligations of this section shall survive the termination of this agreement.

Any exceptions to this language may result in a proposal being deemed non-responsive.

CONTRACTOR/Subcontractor's responsibil ity 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, th e insurance obligations contained in this agreement. If any section, subsection, sentence, clause or phrase of this indemnification is for any reason held to be invalid or unconsti tutional, such decision shall not affect the validity of the remaining portions of this indemnification.

5. STANDARD PLANS A ND SPECIFICATIONS. The performance of said work and the furnishing of said materials shall be executed in ac cordance with Section 8-1.04B of the City of Stockton Standard Specifications and Plans as adopted on September 27, 2016, by Council Resolution No. 2016-09-27-1213, effective September 27, 2016, and the provisions of the issued project specifications.

The Director of Public Works will furnish CONTRACTOR a weekly statement showing the number of days charged to the contract for the preceding week, the number of days specified for completion of the contract, and the number of days remaining to complete the contract. CONTRACTOR will be allowed one (1) week in which to file a written protest setting forth in what respects said weekly statement is incorrect, otherwise the statement shall be deemed to have been accepted by CONTRACTOR as correct.

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EXHIBIT 2
376
Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22)

6. WORKING DAYS. This work shall be diligently prosecuted to completion before the expiration of 500 WORKING DAYS beginning on the tenth calendar day after the date shown on the Notice to Proceed. It is agreed by the parties to the contract that in case all the work called for under the contract in all parts and requirements, is not finished or completed within the number of days as set forth, damage will be sustained by the CITY, and that it is and will be impracticable and extremely difficult to ascertain the actual damage which CITY will sustain in the event of and by reason of such delay; and it is therefore agreed that CONTRACTOR will pay to CITY the sum of SIX HUNDRED TWENTY AND NO/100 DOLLARS ($620.00) per day for each and every calendar day's delay in finishing the work in excess of the number of days prescribed; and CONTRACTOR agrees to pay said liquidated damages as herein provided, and in case the same are not paid, agrees that CITY, may deduct the amount thereof from any monies due or that may become due CONTRACTOR under the contract.

It is
further agreed that in case the work called for under the contract is not finished and completed in all parts and requirements within the number of days as specified, the CITY shall have the right to increase the number of days or not, as may seem best to serve the interest of CITY, and if the CITY decides to increase the said number of days, the CITY shall further have the right to charge to CONTRACTOR, CONTRA CTOR's heirs, assigns or sureties, and to deduct from the final payment for the work, all or any part, as may be deemed proper, the liquidated damages as specified or the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to the contract, and which accrue during the period of such extension, whichever is greater, except the cost of final surveys and preparation of final estimate shall not be included in such charges.

A work
ing day shall not include, nor shall CONTRACTOR be assessed with liquidated damages nor the additional cost of engineering and inspection during any delay beyond the time named for the completion of the work caused by acts of God or of the public enemy, acts of CITY, fire, floods, epidemics, quarantine restrictions, strikes, and freight embargoes and subject to approval by the Director of Public Works , inability to get materials ordered by CONTRACTOR or subcontractor due to such causes provided that CONTRACTOR shall notify the Director of Public Works in writing of the causes of delay within five (5) working days from the beginning of any such delay, and the Director shall ascertain the facts and the extent of the delay, and Director's findings of the facts thereon shall be final and conclusive.

If CO
NTRACTOR is delayed by reason of alterations made in these specifications, or by any act of the Director of Public Works or of the CITY, not contemplated by the contract, the time of completion shall be extended proportionately and CONTRACTOR shall be relieved during the period of such extension of any claim for liquidated damages, engineering or inspection charges or other penalties. CONTRACTOR shall have no claim for any other compensation for any such delay.

EXHIBIT 2

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377
Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22)

7. CONFORMANCE TO APPLICABLE LAWS. Contractor shall comply with all applicable Federal, State, and Municipal laws, rules and ordinances. Contractor shall not discriminate in the employme nt of persons or in the prov ision of services under this Contract on the basis of any legally protected classification, including race, color, national origin, ancestry, sex or religion of such person.
a. TITLE VI
Title VI of the Civil Rights Act of 1964 requires that “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits o f, or be subjected to discrimination under any pr ogram or activity receiving federal financial assistance.” (42 USC Section 2000d)
http://www.dol.gov/oas
am/regs/statutes/titlevi.htm.

The City of Stockton requires compliance with the requirements of Title VI in all of its programs and activities regardless of funding source. b. DISCRIMINATION AND HARA

SSMENT POLICY
The City of Stockton has a Discriminat ion and Harassment Policy (Exhibit C). The purpose of this policy is to reaffirm
the CITY’s commitment to
demonstrating respect for all individuals by strictly prohibiting discrimination and harassment, including sexual harassment in the workplace, to define the types of behavior and conduct prohibited by this policy, and to set forth a procedure for reporting, investigat ing, and resolving complaints of discrimination and harassment in the workplace.
c. LABOR STANDARDS PROVISIO NS/CALIFORNIA LABOR CODE
The bidder shall understand that conditions set forth in Chapter 1, Part 7, Division 2 of the Calif ornia Labor Code shall be considered part of the contract agreement.
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode= LAB&division=2.&title=&part=7.&chapter=1.&article=2.
d. PREVAILING WAGE
CONTRACTOR and any subcontractor shall pay each employee engaged in the trade or occupation not less than the prevailing hourly wage rate. In accordance with the provis ions of Section 1770 of the Labor Code, the Director of Department of Industrial Relations of the State of California ha s
determined the general prevailing rates of wages and employer payments for health and welfare, pension, vacation, travel time, and subsistence pay as provided for in Section 1773. 1, apprenticeship or other training

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EXHIBIT 2
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Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) programs authorized by Section 3093 and similar purposes applic able to
the work to be done. CONTRACTOR performing the work under this contract shall obtain a copy of t he wage rate determination and shall distribute copies to each subcontract or. As the wage determination for each craft reflects an expiration date, it shall be the prime CONTRACTOR and each subcontractor's responsibility to ensure that the prevailing wage rates of concern is current and paid to the employee.
i. The CONTRACTOR performing the work shall be responsible for obtaining a copy of the State wage rate determination. State wage rates may be obtained at
http://www.dir.ca.gov/OPRL/pwd/Determinations/Northern/Northern.p df. The CONTRACTOR shall be responsible for posting said wage rates at a prominent location at the work site and shall maintain same in a good readable condition for the duration of the work. ii. Should the CONTRACTOR choose to work on a Saturday, Sunday or on a holiday recognized by the Labor Unions, the CONTRACTOR shall reimburse the CITY the actual co st of engineering, inspection, superintendence, and or other overhead expenses which are directly chargeable to the contract. Should such work be undertaken at the request of the CITY, reimbursement will not be required. To conform strictly with the provisions of Division 2, Part 7, Chapter 1, Article 2, of the Labor Code of the State of Califo rnia. To forfeit as a penalty to CITY the sum of TWENTY-FIVE AND NO/100 DOLLARS ($25.00) for each laborer, worker, or mechanic employed by CONTRACTOR, or by any subcontractor under CONTRACTOR, in the execution of this contract, for each calendar day during which any laborer, worker, or mechanic is required or permitted to work more than eight (8) hours and who is not paid the general preva iling rate of per diem wages for holiday and overtime work in violat ion of the provisions of Sections 1770 to 1781 of the Labor Code of the State of California. That all sums forfeited under the provisions of the foregoing sections shall be deducted from the paym ents to be made under the terms of this contract.
iii. The CONTRACTOR to whom the cont ract is awarded shall ensure that the prime and each subcontractor will in accordance with Section 1776 of the Labor Code, maintain certified payroll records. A copy of said records shall be provided with each invoice to the Public Works Department, Attention Contract Comp liance Officer. It shall be the CONTRACTOR’S responsibility to obtain copies of the current prevailing wage rate determination for all subcontractors. Additionally, certified payroll records must be uploaded to the DIR website as required by labor code.

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EXHIBIT 2
379
Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) iv. The CONTRACTOR shall comply wit h the provisions established in Section 1777.5 of the Labor Code concerning the 1) certified approval by local joint apprenticeship commi
ttees for the employment and
training of apprentices, and 2) contri bution of funds to administer and conduct apprenticeship programs, if applicable to the job. e. LOCAL EMPLOYMENT ORDINANCE
Pursuant to Stockton Municipal Code Section 3.68.095 the CONTRACTOR and all subcontractors shall make a good fa ith effort to employ at least 50 percent of the workforce on this proj ect from local residents, as measured by total labor work hours. Failure of any CONTRACT
OR or subcontractor
to comply with these requirements shall be deemed a material breach of the contract or subcontract. CONT RACTORS and subcontractors shall maintain records necessary for moni toring their compliance with section

3.68.095.
f. COMMUNITY WORKFORCE TRAINING AGREEMENT
Pursuant to the implementation of the Community Workforce Training Agreement (CWTA) adopted by the Cit y Council on July 26, 2016, the successful bidder shall be required to comply with the provisions of CWTA. For any project subject to this Agreement, the Local Hire, Priority Apprentice and Workforce Development Program requirements shall apply in lieu of the requirements of Stockton Municipal Code Section 3.68.095 and no separate compliance with Secti on 3.68.095 will be r equired of the Contractors/Employers working on the project (EXHIBIT D). g. SANCTIONS
Deliverables must conform with all applicable federal, state, and local laws. Such conformity includes
compliance with federal sanctions, and
Contractor certifies that it has not and will not e ngage in prohibited transactions with sanctioned persons or entities.

CITY agrees:

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EXHIBIT 2
380
Local Construction Contract – P31 ENTERPRISES INC. –PROJECT NO. WE22052 (Updated 07/12/22) all of the remaining part of t he contract price not as aforesai d paid, shall be paid at the expiration of thirty-five (35) days from the completion of said work of construction and the certification by the Director of Public Works of such completion.

9. SECURIT
IES. Pursuant to Section 22300 of the Public Contract Code, CONTRACTOR will be permitted, at its request and sole expense, to substitute securities for any monies withheld by the CITY to ensure performance under the contract. Said securities will be deposited either with the CITY or with a State or federally chartered bank as escrow agent. Securities eligible for this substitution are those listed in Section 16430 of the California Government Code or bank or savings and loan certificates of deposit.

CONTRACTOR shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.

10. CHANGE ORDERS. CITY reserves the right to make such alterations, deviations, additions to or omissions from the plans and specifications, including the right to increase or decrease the quantity of any item or portion of the work, as may be deemed by the Engineer to be necessary or advisable and to require su ch extra work as may be determined by the Engineer to be required for the proper completion or construction of the whole work contemplated.

Any such changes will be set forth in a contract change order which will specify, in addition to the work done in connection with the change made, adjustment of contract time, if any, and the basis of compensation for such work . A contract change order will not become effective until approved by the City Manager and/or the City Council.

Processing of change orders shall be in accordance with Section 4-1. 05A of the City of Stockton Standard Specifications and Plans as adopted by Council on September 27, 2016, by Resolution No. 2016-09-27-1213, effective September 27, 2016, or as otherwise amended by Council. When the compensation for an item of work is subject to adjustment under the provisions of Standard Specif ications and Plans, Section 4-1.05A, CONTRACTOR shall, upon request, promptly furnish the Engineer with adequate detailed cost data for such item of work.

11. AUDITS. CITY reserves the right to peri odically audit all charges made by CONTRACTOR to CITY for services under the contract. Upon request, CONTRACTOR agrees to furnish CITY, or a designated repr esentative, with necessary information and assistance.

CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of the contract. CONTRACTOR agrees to provide CITY or its delegate with any rele vant information requested and shall permit CITY or its delegate access to its prem ises, upon reasonable notice, during normal business hours for the purpose of intervie wing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpos e of determining compliance with this requirement.

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EXHIBIT 2
381
382

CITYWIDE TREE MAINTENANCE PROJECT
PROJECT NO. WE22052

BIDDING SCHEDULE
Each bidder shall bid each item, including all alternate bid(s). Failure to bid an item shall be just cause for considering the bid as non-responsive. Line item costs should include all Contractor's overhead and profit and indirect costs. Bids not presented on City forms shall be cause for considering the bid as non-responsive.

Item Description MEAS., EST. UNIT Unit Price Total Price (in) QUANTITY
1 Mobilization 1 LS $7,704.11 $7,704.11
2 Traffic Control 1 LS $306,054.35 $306,054.35
3 Bird Survey 1 LS $363,103.68 $363,103.68
4 Arborist Service for Report Writing 50 HR
(as needed) $134.84 $6,742.00
5 Tree pruning includes removal of up to 6" dbh 2,334 EA dead, diseased, decayed, mistletoe, $59.59 $139,083.06 vine growth and all associated work. (">"=trunk diameter at breast
heiaht (DBH) that is oreater than)
6 Tree pruning includes removal of 7" to 12" 8,857 EA
dead, diseased, decayed, mistletoe, dbh $68.10 $603,161.70 vine growth and all associated work.
(">"=trunk diameter at breast
heiaht <DBH) that is oreater than)
7 Tree pruning includes removal of 13" to 24" 9,798 EA
dead, diseased, decayed, mistletoe, dbh $119.18 $1,167,725.64 vine growth and all associated work. (">"=trunk diameter at breast
heiaht (DBH) that is oreater than)
8 Tree pruning includes removal of 25" to 36" 2,364 EA
dead, diseased, decayed, mistletoe, dbh $148.97 $352,165.08 vine growth and all associated work. (">" = trunk diameter at breast
heiaht <DBH) that is oreater than)
9 Tree pruning includes removal of 37" to 48" 318 EA
dead, diseased, decayed, mistletoe, dbh $297.94 $94,744.92 vine growth and all associated work. (">"=trunk diameter at breast
heiaht (DBH) that is oreater than)
10 Tree pruning includes removal of >49" dbh 35 EA $404.67 $14,163.45 dead, diseased, decayed, mistletoe, vine orowth and all associated work.

Bid Forms Last Revised: 03/07/2017

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EXHIBIT A
383
(">" = trunk diameter at breast
height (DBH) that is greater than)
11 Palm tree pruning includes removal up to 6" dbh 6 EA of dead and dying fronds, fruit and $101.17 $607.02
flowers and all associated work.
(">"=trunk diameter at breast
heiaht (DBH) that is areater than)
12 Palm tree pruning includes removal 7" to 12" 41 EA
of dead and dying fronds, fruit and dbh $119.18 flowers and all associated work. $4,886.38 (">"=trunk diameter at breast
heiaht (DBH) that is areater than)
13 Palm tree pruning includes removal 13"to24" 103 EA
of dead and dying fronds, fruit and dbh
flowers and all associated work. $132.42 $13,639.26
(">" = trunk diameter at breast
heiaht (DBH) that is areater than)
14 Palm tree pruning includes removal 25" to 36" 83 EA
of dead and dying fronds, fruit and dbh
flowers and all associated work. $170.25 $14,130.75
(">" = trunk diameter at breast
heiaht (DBH) that is areater than)
15 Palm tree pruning includes removal 37" to 48" 8 EA
of dead and dying fronds, fruit and dbh $242.80 flowers and all associated work. $1,942.40 (">" = trunk diameter at breast
heiqht (DBH) that is qreater than)
16 Tree stump removal including void up to 6" dbh 9 EA
filling and all associatedwork. (">"
trunk diameter widest point where $560.06 $5,040.54 stump goes into ground that is areater than)
17 Tree stump removal including void 7" to 12" 91 EA
filling and all associated dbh $588.54 work. (">" trunk diameter widest $53,557.14 point where stump goes into ground
that is Qreater than)
18 Tree stump removal including void 13" to 24" 274 EA
filling and all associated dbh $588.54 work. (">" trunk diameter widest $161,259.96 point where stump goes into ground
that is Qreater than)
19 Tree stump removal including void 25" to 36" 170 EA
filling and all associated dbh
work. (">" trunk diameter widest $588.54 $100,051.80
point where stump goes into ground
that is Qreater than)
20 Tree stump removal including void 37" to 48" 19 EA
filling and all associated dbh $588.54 $11,182.26 work. (">" trunk diameter widest point where stump goes into ground
that is Qreater than)
Bid Forms Last Revised: 03/07/2017

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EXHIBIT A
384
21 22
23 24
25 26
27 28
Tree stump removal including void >49" dbh 4 EA
filling and all associated $588.54 work. (">" trunk diameter widest point where stump goes into ground
that is Qreater than)
Tree and stump removal including up to 6" dbh 2 EA
void filling and all
$685.65 associated work. (">" trunk
diameter widest point where stump
goes into ground that is greater
than)
Tree and stump removal including 7" to 12" 7 EA
void filling and all dbh
associated work. (">" trunk
diameter widest point where stump
$709.93
goes into ground that is greater
than)
Tree and stump removal including 13" to 24" 67 EA
void filling and all dbh
associated work. (">" trunk $1,329.08
diameter widest point where stump
goes into ground that is greater
than)
Tree and stump removal including 25" to 36" 75 EA
void filling and all dbh
associated work. (">" trunk
$2,662.06 diameter widest point where stump
goes into ground that is greater
than)
Tree and stump removal including 37" to 48" 12 EA
void filling and all dbh
associated work. (">" trunk $4,044.42 diameter widest point where stump goes into ground that is greater
than)
Tree and stump removal including >49" dbh 2 EA
void filling and all
associated work. (">" trunk
$5,772.36 diameter widest point where stump
goes into ground that is greater
than)
Turf Replacement-and all-associated- 500 SF
work (as needed) $26.69
TOTAL BID $3,791,766.09
BIDDER'S NAME P31 Enterprises, Inc.
$2,354.16
$1,371.30
$4,969.51
$89,048.36
$199,654.50
$48,533.04
$11,544.72
$13,345.00
Bid Forms Last Revised: 03/07/2017

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385
11/2/22, 3:09 PM https://cadir.secure.force.com/ContractorSearc h/PrintRegDetails Contractor Information
Legal Entity Name
P31 ENTERPRISES, INC.

Legal Entity Type
Corporation
Status
Active
Registration Number
1000054173
Registration effective date
7/1/ 2022
Registration expiration date
6/30/2023
Mailing Address
2015 Challendger Ave Ste A OROVILLE 95965 CA ...

Physical Address
2015 Challendger Ave Ste A OROVILLE 95965 CA ...

Email Address
Trade Name/OBA
License Number(s)
Other:A11524
CSLB:1033427
CSLB:1033427
Other:A11524
Legal Entity Information
Corporation Number:

Federal Employment Identification Number:

President Name:

Lori Curtis
Vice President Name:

Treasurer Name:

Secretary Name:

CEO Name:

Agent of Service Name:

Lori Curtis
Agent of Service Mailing Address:
2015 Challenger Ave., Suite A Oroville 95965 CA United States of America Workers Compensation
Do you lease employees No
through Professional
https://cadir.secure.force.com/ContractorSearch/PrintRegDetails Registration History
Effective Date Expiration Date
6/21/2018 6/30/2019
11/30/2017 6/30/2018
7/23/2019 6/30/2020
7/1/2020 6/30/2021
7/1/2021 6/30/2022
7/1/2022 6/30/2023
1/2

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386
11/2/22, 3:09 PM
Employer Organization
(PEO)?:

Please provide your
current workers
compensation insurance
information below:

PEO
PEO lnformationName
Insured by Carrier
PEO
Phone
https://cadir.secure.force.com/ContractorSearch/PrintRegDetails PEO
Email
Policy Holder Name:P31 Enterprises, lnclnsurance Carrier:Sedgwick Insurance Policy Number:6277Inception date:6/1/2022Expiration Date:5/31/2023 https://cadir.secure.force.com/ContractorSearch/ PrintRegDetails 2/2

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387
c::11:::a CONTRACTORS

ST ATE LICENSE BOARD

ACTIVE LICENSE
'--•- 1033427 -.CORP
.._._ P31 ENTERPRISES INC
c..._..,., C61/049 A HAZ
•-o.., ·J f /30/2023
•
www.cslb.ea.gov te
Any change of buslne$$ address/name lnU!$l be reported to the Regi$tnlr within 90 days.

This license Is not transterrable, and shall be returned to the Registrar upon dem�nfi when suspended, revoked, or Invalidated for any reason.

This pocket card Is valid through the expiration date only.

If found, drop In any mailbolt
Postage guaranteed by:

Contracton; State License Board
P o. Box 26000, Sacramento CA 95826
Licensee Signature

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388
REV 2022-05-17
Exhibit B:

Insurance Requirements
(WE22052)
Contractor 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 and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

4. Surety Bonds as described below.

If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status

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389
REV 2022-05-17

The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.

Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. The City of Stockton does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.

Umbrella or Excess Policy
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Stockton.

Waiver of Subrogation
Contractor hereby grants to City of Stockton a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Stockton by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this

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390
REV 2022-05-17
provision applies regardless of whether or not the City of Stockton has received a waiver of subrogation endorsement from the insurer.

Self-Insured Retentions
Self-insured re
tentions must be declared to and approved by the City of Stockton. The City of Stockton may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds $25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Contractor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named. The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.

Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Stockton.

Verification of Coverage
Contracto
r shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

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REV 2022-05-17
Surety Bonds
Contractor shall provide the following Surety Bonds:

1. Bid Bond

2. Performance Bond

3. Payment Bond

4. Maintenance Bond
The Payment Bond and the Performance Bond shall be in a sum equal to the contract price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the contract is for longer than one year a Maintenance Bond equal to 10% of the contract price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:

City of Stockton
Its Officers, Officials, Employees, and Volunteers
400 E Main St, 3rd Floor – HR
Stockton, CA 95202

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392
Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 1 of 14
DISCRIMINATION AND Effective Date: Revised From:

D. All City employees and non-employees share a responsibility to assist in

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393
Subject:

CITY OF STOCKTON, CALIFORNIA

F. All new hires shall attend harassment awareness training, and supervisors and managers shall attend harassment awareness and prevention training for supervisors every two years.

H. This policy applies to all officials, employees, volunteers, unpaid interns, agents, or contractors of the City.

I. This policy shall be administered by the Director of Human Resources.

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394
Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 3 of 14
DISCRIMINATION AND Effective Date: Revised From:

1. Soliciting applications from a source where all or most of potential workers are of the same race or color.

2. Considering a person's gender as the basis for differences in pay, work assignments, performance evaluations, training, discipline, or any other area of employment; and

3. Questioning a job applicant about the existence, nature and severity of a disability.

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395
Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 4 of 14

DISCRIMINATION AND

Harassment may take many forms, including, but not limited to, the following examples:

1. Submission to such conduct is made a term or condition of employment; or

2. Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or

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396
Subject:

CITY OF STOCKTON, CALIFORNIA

CITY MANAGER ADMINISTRATIVE DIRECTIVE
Directive No. HR-15 Page No. 5 of 14

DISCRIMINATION AND

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428
429
430
431
432
433
434
435
Citywide Tree Maintenance
Project No. WE22052
City Council Meeting June 20, 2023
Agenda Item 15.1
436
City Trees
• Approximately 92,000 trees in the City’s
inventory
• Tree crew of five performing public safety
services
• Contracted service for emergency work and
large trees
• Minimal trimming or preventative
maintenance work performed
139
tons
548
units
642
units
507
units
437
139
tons
548
units
642
units
507
units
Project
Methodology
• Goal: to enhance the health of our trees and
respond to citizen requests for service
• Prune City trees along Stockton’s busiest
streets (Arterials & Collectors)
• Eliminate the backlog tree removal list
• Eliminate the backlog stumps removal list
438
Funding
Source
Intersection Safety Tree Trimming, Project No.

WD22018
• Approved by Council on 11/16/21 allocating
$500,000 for safety tree trimming
Citywide Tree Maintenance, Project No.

WE22052
• Approved by Council on 5/3/22 allocating
$5,000,000 for tree maintenance
$5,000,000
2,710
2,280
38 $500,000
439
Public
Outreach
Prior to start of the project:
• Post card notification sent to affected
citizens
• Project posted on the City’s web site:
• Including location map
• Contact information for the Contractor
and Public Works Project Manager
Once the Notice to Proceed is issued:
• Door hangers posted
• Barricades placed with project information
$5,000,000
2,710
2,280
38 $500,000
440
Phase One
Removal of 165 dead
or unhealthy trees
Stump Removal
Removal of 567 tree
stumps
Pruning
Pruning of 23,947 trees,
clearance trimming at 180
signalized intersections,
and in six parks
Tree Removal
441
Phase Two
Inventory
Updated City Tree
inventory
Urban Forestry Plan
Citywide pruning, strategic
replanting plan and ongoing
sustainable maintenance plan
442
Recommendation
It is recommended that the City Council adopt a resolution to:
• Approve the Notice of Exemption No. NOE32-22 under
the California Environmental Quality Act for the
Citywide Tree Maintenance, Project No. WE22052
• Approve the specifications for the Citywide Tree
Maintenance, Project No. WE22052
• Award a Construction Contract in the amount of
$3,791,766.09 to P31 Enterprises, Inc. of Oroville, CA, for the Citywide Tree Maintenance, Project No. WE22052
443
Questions?
444
City of Stockton
Legislation Text
File #: 23-0491, Version: 1
ADOPT AN ORDINANCE AMENDING TITLE 5, CHAPTER 5.16, SECTION 5.16.010 AND ADDING CHAPTER 5.104 TO THE STOCKTON MUNICIPAL CODE RELATED TO TOBACCO RETAILERS

RECOMMENDATION
It is recommended that the City Council:

1. Adopt an ordinance amending Title 5, Chapter 5.16, Section 5.16.010, and adding Chapter

5.104 to the Stockton Municipal Code relating to tobacco retailers.

2. Authorize the City Manager, or designee, to take all appropriate and necessary actions to carry out the purpose and intent of the ordinance.

Summary
The proposed ordinance will require all retailers who sell tobacco and tobacco products in the City to obtain a tobacco retailer license, and provides a process for the application, approval, and denial of a license. New tobacco retailers will not be able to obtain a license if their location is within 600 feet of certain locations, including schools, public parks, and other licensed tobacco retailers; this limitation would not apply to businesses who sold tobacco products before the effective date of the proposed ordinance.

If adopted, licensed retailers must comply with operating rules and regulations specified in the ordinance, as well as comply with all other local, State, and Federal laws. Retailers that violate the ordinance will be subject to fines. Additionally, retailers that violate laws concerning the sale of flavored tobacco products and the sale of any tobacco products to minors may have their license suspended or, for repeated violations, revoked.

DISCUSSION
Background
On July 20, 2022, the Council Legislation and Environmental Committee (“Committee”) directed the City Attorney’s Office to draft a proposed ordinance requiring tobacco retailers to obtain a license prior to conducting business within the City. The Committee expressed concern that the City cannot currently track the number or location of tobacco retailers in the City, and was particularly concerned with minors’ access to tobacco products. The Committee also expressed a desire to enact certain restrictions and requirements for tobacco retailers to operate within the City.

After the item was agendized for the November 15, 2022, City Council meeting, the item was pulled with reference to a number of public comments that had been delivered to the City in advance of that City of Stockton Printed on 6/14/2023Page 1 of 5
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File #: 23-0491, Version: 1
meeting. The proposed ordinance was brought back to the Committee for further input at its February 15, 2023 and March 15, 2023 meetings.

Stockton Municipal Code (“SMC”) Title 5 regulates requirements for licenses and permits to conduct business within the City. Currently, Title 5 does not include a requirement for tobacco retailers to obtain a business-specific license to operate within the City. Instead, tobacco retailers are only required to obtain a standard business license. The proposed ordinance will require tobacco retailers to obtain a tobacco retailing license in addition to a standard business license. A red-lined version of the proposed ordinance is included at Attachment A.

Tobacco Retailer Defined
The proposed ordinance defines tobacco retailers broadly, to include any person who sells tobacco, tobacco products, or tobacco paraphernalia, without regard to the quantity sold.

According to the California Department of Tax and Fee Administration, when the City inquired last year, there were 272 State-licensed tobacco retailers within the City. This count would include business categories like gas stations, grocery stores, and smoke shops. Under the proposed ordinance, all 272 retailers would be required to obtain a license.

Applying for a License
The proposed ordinance provides for a license application process. The full list of information sought from an applicant can be found in the proposed SMC Section 5.104.040, which includes details on the retail location, information about all individuals who have ownership or managerial interest in an applicant business, and proof that the business is licensed by the State.

Distance Restrictions
The proposed ordinance provides for the denial of a license application if the tobacco retailer is within 600 feet of a school, public park, public playground, public recreational area, youth facility, or a tobacco retailer. These distancing restrictions do not apply to a tobacco retailer operating lawfully on the day before the effective date of the ordinance. This exemption would cease to apply if a tobacco retailer fails to timely renew its tobacco retailer license, or if the retailer’s tobacco retailer license is revoked.

Non-transferability of License
A tobacco retailer license is non-transferable and is location specific. If a licensee desires to change its business location, it must obtain a new license for the new location. If a licensed business is sold or experiences a change in ownership, the business must obtain a new license before continuing its tobacco retailing.

Operating Regulations and Conditions - Window Obstruction The Committee expressed concerns that when tobacco retailers block windows or doors to the extent that peace officers cannot see into the business, it creates a safety hazard for the employees of the store and obstructs peace officers from enforcing laws related to underage customers. Considering these concerns, the proposed ordinance provides that no more than 20% of the space on windows or clear doors at the premises where tobacco retailing occurs shall bear advertising or other signage of any sort. This language mirrors that of SMC Section 16.80.040.D.5.b.xv for off-sale alcoholic beverage establishments.

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Operating Regulations and Conditions - Blight/Loitering Prevention The Committee expressed concern that some tobacco retailers have become hotspots for criminal activity. Specifically, the Committee requested that the proposed ordinance address blight and loitering issues at tobacco retail establishments. The proposed ordinance addresses these issues in several sections. At the application stage, the City may deny an application where there is evidence of current or prior unlawful or nuisance-creating operations in this or another jurisdiction.

The proposed ordinance also allows the City to immediately suspend a tobacco retail license where, based on ascertainable facts, the operation of the tobacco retailer substantially aggravates the crime problems in the City, makes law enforcement unduly difficult, or is detrimental to the public health, safety, or welfare of the City. This language mirrors that of SMC Section 5.100.120 for the suspension and revocation of cannabis operator permits.

The proposed ordinance obligates the licensee to prevent nuisance conditions on their premises, including parking lots, and requires the removal of graffiti and other forms of vandalism.

The proposed ordinance obligates a licensee to prevent public consumption of alcohol, public use of cannabis, and other criminal behavior on and around the premises. The licensee must have “No Loitering” signs posted and must actively address loitering on their premises.

Violations of any of the above could result in administrative fines under the proposed ordinance.

Operating Regulations and Conditions - Compliance with Local, State, and Federal Law In various locations, the proposed ordinance requires licensees to comply with all local, State, and Federal laws. This would include, without limitation, State laws against the sale of flavored tobacco products, and prohibiting the sale of any tobacco products to minors.

Violations, Penalties, Suspensions, and Revocation
Violations of the proposed ordinance may be addressed by the City through several means, including civil action, administrative action, and citing violations as misdemeanors. If addressed through administrative citation, violators will be fined as such:
- $1,000 for a first violation in any five-year period. - $2,000 for a second violation in any five-year period. - $3,000 for each additional violation in any five-year period.

If a licensee is found to violate any law concerning the sale of tobacco products to minors, or the sale of flavored tobacco products generally, the licensee will be subject to the following:
- For a first violation in any five-year period, license suspension for up to 30 days. - For a second violation in any five-year period, license suspension for up to 60 days. - For each additional violation in a five-year period, license suspension for up to 90 days per additional violation, or revocation.

The proposed ordinance provides for other circumstances where a license may be suspended or revoked, such as a licensee’s failure to pay applicable fees or taxes, the licensee making fraudulent statements on its application, and the licensee committing any act which would have constituted grounds to deny a license application.

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Flavored Tobacco Products
Pursuant to California Senate Bill 793 (2019-2020) (“SB 793”), the sale of flavored tobacco products is prohibited statewide.

SB 793 created three (3) categories of exceptions:

1. Premium Cigars, which are defined as being handmade; have a wrapper made entirely from whole tobacco leaf; cannot have a filter, tip, or nontobacco mouthpiece; is capped by hand; and has a wholesale price of at least $12.00.

2. Loose leaf tobacco, which is intended for use in pipes; not “roll your own” cigarette tobacco.

3. Shisha tobacco products (aka hookah tobacco) which are intended to be smoked in a hookah, but only if the retailer does not permit persons under age 21 into its premises at any time.

SB 793 allows a local jurisdiction to impose flavored tobacco restrictions that are stricter than SB 793 itself, so the City may strike some, or all, of the SB 793 flavored tobacco exceptions. Included in Attachment B is draft language for four (4) options of additional language to include in the ordinance, summarized here:

1. No additional prohibitions. The three SB 793 exceptions remain. As drafted, the ordinance reflects this option.

2. Complete flavor ban. All three SB 793 exceptions are eliminated.

3. Removal of some, but not all, of the SB 793 exceptions.

4. Elimination of the three SB 793 exceptions at regular retailers but allows sales for on-site consumption of flavored shisha tobacco and cigars in hookah lounges and cigar lounges, provided those lounges are operating pursuant to state and local law.

At the March 15, 2023 Committee meeting, staff was asked to determine the number of hookah lounges and cigar lounges operating in the City where tobacco products are consumed on-site.

Because these businesses are not required to obtain any special licenses from the City, there is no definitive count available. Staff believe there is one such business currently operating in the City.

Effective Date of the Ordinance
The proposed ordinance has an effective date of 90 days after passage. Staff will use this period to prepare the license application process. However, tobacco retailers that predate the effective date of the ordinance will not be required to obtain a license until after their current City business license expires. This will cause the existing approximately 272 tobacco retailers to be licensed on a rolling basis over the course of a year, so that staff are not immediately inundated with applications.

FINANCIAL SUMMARY
There are no General Fund costs associated with the adoption of the ordinance as drafted. If the ordinance is approved by the City Council, staff will include new fees in the FY 2023-24 proposed City of Stockton Printed on 6/14/2023Page 4 of 5
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budget Fee Schedule to be reviewed by the City Council on June 20, 2023 as an addendum. The proposed fees include:

Annual Tobacco Retail License Application Fee: $102
Verification of distance requirements: $147
Annual Investigation Fee: $234
Appeal Fee: $102
The proposed ordinance may have an impact on response times as it does not create additional staff positions or allocate additional funding to expand enforcement efforts.

Attachment A - Proposed Ordinance Red-lined Version
Attachment B - Additional Flavored Tobacco Options
Attachment C - FY 2023-24 Proposed New Fees
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ATTACHMENT A

1 ORDINANCE NO.

AN ORDINANCE AMENDING TITLE 5, CHAPTER 5.16, SECTION 5.16.010 AND ADDING CHAPTER 5.104 TO THE STOCKTON MUNICIPAL CODE RELATED TO

TOBACCO RETAILERS

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:

SECTION I. FINDINGS AND INTENT.

The failure of tobacco retailers to comply with all tobacco control laws, particularly the sale of tobacco products to minors, presents a threat to the public health, safety, and welfare. A local licensing program for tobacco retailers is intended to ensure that tobacco retailers comply with tobacco control laws and business standards of the City of Stockton and to protect the health, safety, and welfare of those persons who reside in, work in, and visit the City of Stockton.

State law explicitly authorizes cities to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law. A requirement for a tobacco retail license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults but will allow the City of Stockton to regulate the operations of lawful businesses to discourage violations of Federal, State, and local tobacco-related laws. The City of Stockton has a substantial interest in promoting compliance with Federal, State, and local laws intended to regulate tobacco sales and use; discouraging the illegal purchase of tobacco products by minors; promoting compliance with laws prohibiting sales of tobacco products to minors; and protecting children from being lured into illegal activity through the misconduct of adults.

This Chapter is adopted to encourage responsible tobacco retailing and to discourage violation of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors. This Chapter does not expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or alter the penalties provided by such laws. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

SECTION II. AMENDMENT OF CODE
Title 5, Chapter 5.16, section 5.16.010 of the Stockton Municipal Code is amended to read as follows:

5.16.010 Licenses or permits required.

The license or permit required for any of the following is in addition to any business license required under this title:
450

ATTACHMENT A

2 Acid, storage Ch. 15.12
Apartment houses Ch. 8.32
Auctioneers Ch. 5.24
Auctions Ch. 5.24
Bicycles Ch. 10.12
Bonfires Ch. 15.12
Calcium carbide, storage Ch. 15.12
Camp cars and camp grounds Ch. 5.80
Card rooms Ch. 5.36
Commercial fat rendering Ch. 15.12
Discharge of industrial wastes Ch. 13.08
Dog kennels Ch. 6.04
Dogs Ch. 6.04
Explosives, storage and handling Ch. 15.12
Explosives, transportation Ch. 10.04
Firearms, use and discharge Ch. 9.56
Firearms, sale Ch. 9.60
Fireworks, public use of Ch. 8.92
Flammable liquids, storage and handling Ch. 15.12
Freedom of speech Ch. 9.16
Fumigating Ch. 15.12
Garbage, collection Ch. 8.04
Garden refuse, collection Ch. 8.04
Gasoline portable tanks Ch. 15.12
Goats, cows, sheep, etc. Ch. 6.04
Hotels Ch. 5.80
Junk dealers Ch. 5.28
Liquefied petroleum gases, storage and handling Ch. 15.12 Loading zone hoods Ch. 10.44
Lodging houses Ch. 5.80
Milk, handling and sale Ch. 8.64
Motor buses, operations Ch. 5.92
Oil burner systems, installation, etc. Ch. 15.12
Paint burning Ch. 15.12
Pawnbrokers Ch. 5.28
Potassium chlorate, storage Ch. 15.12
Private patrol systems and watchmen Ch. 5.40
Refrigerator systems, installation, etc Ch. 15.12
Second-hand dealers Ch. 5.28
Sewer connections for persons outside City limits Ch. 13.08 Spray painting Ch. 15.12
451

ATTACHMENT A

3 Tank truck loading plants, installation, etc Ch. 15.12 Taxicab business Ch. 5.84
Taxicab drivers Ch. 5.88
Tobacco retailers
Use permits
Ch. 5.104
Ch. 16.168
X-ray films, storage and handling Ch. 15.12
SECTION III. AMENDMENT OF CODE.

Title 5, Chapter 5.104 is added to the Stockton Municipal Code and shall read as follows:

5.104.010 Purpose and application.

The purpose of this Chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by Federal and State law are criminally proscribed or to alter the penalties provided by such laws.

5.104.020 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
“Applicant” means and includes any person or entity who submits an application for a tobacco retail license.
“Application” means the application submitted under SMC Section 5.104.040 for a tobacco retail license allowing the person or entity to engage in tobacco retailing at the designated premises.
“Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an “arm’s length transaction.”
“Change of ownership” means a change of fifty percent (50%) or more of the ownership of the business within a 12-month period.

“Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or 452

ATTACHMENT A

4 aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcohol beverage, herb, or spice.

“Flavored tobacco product” means any tobacco product that imparts a characterizing flavor.
“Licensee” means and includes the holder of a tobacco retail license and any person required to have a tobacco retail license under this Chapter, whether or not such person is actually so licensed.
“Loitering” means the act of remaining upon posted property without the permission of the owner or person in lawful possession.
“Person” means and includes any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.
“Playground” means an active recreational area with a variety of facilities, including equipment for younger children, as well as court and field games. Playground does not include play areas located on the site of residential homes or private facilities. “Premises” means any building or portion of any building where tobacco retailing occurs.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has, or can have, sole or shared control over the day-to-day operations of a business. “School” means any public or private academic school for students in kindergarten through 12th grade, nursery school, preschool, or daycare facility. “Tobacco Product” means (1) any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, aerosolized, vaporized, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, bidis, kreteks, snuff, e-liquids, or vape juice; (2) any device or component, part, or accessory that delivers nicotine alone or combined with other substances to the person using the device, including, but not limited, to electronic cigarette (or “e-cigarette”), electronic cigar (or “e-cigar”), electronic pipe (or “e-pipe”), vape pen, electronic hookah (or “e-hookah”), cigars, or pipes, whether or not the device or component is sold separately. “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for use as a tobacco cessation product where such product is marketed and sold solely for such an approved purpose.
453

ATTACHMENT A

5 “Tobacco Paraphernalia” means any item designed or marketed for the consumption, use, or preparation of a tobacco product.
“Tobacco Retailer” means any person who sells, offers for sale, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.
“Tobacco Retailing” means engaging in any of those activities of a tobacco retailer.

5.104.030 Tobacco retail license required.

A. It shall be unlawful for any person to act as a tobacco retailer, engage in tobacco retailing, or allow tobacco retailing in the City without first obtaining and maintaining a valid tobacco retail license pursuant to the provisions of this Chapter for each location at which tobacco retailing is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location.

B. Nothing in this Chapter shall be construed to grant any person or entity obtaining a tobacco retail license any status other than the right to act as a tobacco retailer at the location in the City identified on the face of the tobacco retail license, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this Chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition of limitation on indoor smoking made applicable to business establishments by Section 6404.5 of the Labor Code.

5.104.040 License application.

A. Every person who proposes to act as a tobacco retailer, engage in tobacco retailing, or allow tobacco retailing in the City shall submit an application for a license to the City in writing on forms provided by the City. An applicant proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location.

Each application shall be submitted under oath, in duplicate, and shall contain such information pertinent to the business as the City may require. Such information to be provided shall include, but not be limited to, the following:

1. The true name, address, and telephone number of each proprietor;

2. The business name, address, and telephone number of the fixed location for which a license is sought;

3. Whether or not any proprietor has previously been issued a license pursuant to this Chapter that is, or was at any time, suspended, revoked, or cited for violation of any part of this Chapter, and, if so, the dates of the suspension period, the date of revocation, or date of the violation; and 454

ATTACHMENT A

6 4. Such other information as any department director deems necessary for the administration or enforcement of this Chapter.

B. The applicant shall pay a nonrefundable application fee in an amount as may be fixed and established from time to time by resolution of the City Council. Thereafter, if a tobacco retail license is granted, the licensee shall pay an annual fee in an amount as may be fixed and established by City Council resolution.

C. The applicant must provide a statement to the City to the effect that the applicant understands and agrees that any business or activity conducted or operated under any license issued under such application shall be operated in full conformity with all applicable laws of the United States of America, the State of California, the County of San Joaquin, and the laws and regulations of the City applicable thereto, and that any violation of any such laws or regulations in such place of business, or in connection therewith, may render any tobacco retail license therefor subject to immediate suspension or revocation.

D. The applicant must provide a copy of any valid current permit or license from the California Board of Equalization or any other applicable tobacco retail licensing agency, where the applicant is required to obtain any such permit or license in order to lawfully engage in tobacco retailing in the State of California and/or in the County of San Joaquin.

E. The applicant hereunder is seeking the granting of a privilege. Therefore, the burden of proving qualifications to receive such a license is at all times on the applicant. An applicant must accept all risks of adverse public notice, publicity, embarrassment, criticism, financial loss, or all other actions and consequences which may result from activities with respect to reviewing, processing, and approving or disapproving any application. A waiver of any claims for damages against the City or its agents resulting therefrom shall be presumed upon the filing of an application for a tobacco retail license.

F. Each applicant shall be responsible for providing truthful, complete, and accurate information and for signing the license application.

G. The applicant shall submit written documentation stating that the property owner of the real property upon which the tobacco retailing is to be conducted is fully aware of the property’s intended use. Documentation is to include the name, address, and contact telephone number for the property owner.

H. The applicant must provide a statement to the City that the applicant will hold harmless, indemnify, and defend the City against all claims and litigation arising from the issuance of the tobacco retail license, including without limitation any claims and litigation arising from the establishment, operation, or ownership of the tobacco retailer. 455

ATTACHMENT A

7 I. An application shall not be deemed complete until all the information required in subsections A through H have been provided to the City and the required fees and any applicable business tax required by any provision of this Code have been paid.

J. The application for a license pursuant to this Chapter shall not authorize the maintenance, operation, or conduct of tobacco retailing until such license has been granted. The issuance of a business license pursuant to Title 5 of the Stockton Municipal Code shall not authorize the maintenance, operation, or conduct of a tobacco retailer until the license required by this Chapter has been lawfully granted.

5.104.050 Business license.

Nothing herein shall constitute a waiver of the requirements of Title 5 of the Stockton Municipal Code requiring issuance and possession of a valid business license.

5.104.060 Issuance and renewal of license; grounds for denial.

A. Upon the receipt of an application for a license and the applicable fee, the City shall issue a license unless any of the following exist:

1. The application is incomplete or inaccurate.

2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter; provided, however, this subsection shall not constitute a basis for denial of a license if either or both of the following apply:
a. The applicant provides the City with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction.
b. It has been more than five (5) years since the most recent license for that location was revoked.

3. The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, State, or Federal law.

4. Making any false statements in the application or as to any other information presented as part of the application process.

5. Evidence of current or prior unlawful or nuisance-creating operation in this or another jurisdiction.
456

ATTACHMENT A

8 6. The application seeks authorization for tobacco retailing at any location within 600 feet of a school, public park, public playground, public recreational area, or youth facility, as measured in a straight line from the parcel boundary of these locations to the boundary lines of the parcel of the tobacco retail license applicant’s proposed business location. However, the prohibition contained in this Subsection 6 shall not apply to the following:
a. Any tobacco retailer operating lawfully on the day before the effective date of this ordinance; or
b. Any lawfully operating tobacco retailer that would otherwise become ineligible to receive a new license due to the creation or relocation of a school, public park, public playground, public recreational area, or youth facility.

7. The application seeks authorization for tobacco retailing at any location within 600 feet of a location occupied by another tobacco retailer, as measured in a straight line from the parcel boundary of an existing tobacco retailer’s business location to the boundary lines of the parcel of the tobacco retailer license applicant’s proposed business location. However, the prohibition contained in this subsection 7 shall not apply to the following:
a. Any tobacco retailer operating lawfully on the day before the effective date of this ordinance.

8. Any exemption granted to a tobacco retailer pursuant to subsections A(6)(a)– (b) and A(7)(a) of this section shall cease to apply if a tobacco retailer fails to timely renew the tobacco retail license pursuant to this Chapter or shall cease to apply if the tobacco retail license is revoked pursuant to this Chapter.

9. The City is in possession of information that the applicant or his agents or employees has violated any local, State, or Federal tobacco control law within the preceding 30-day period.

10. The applicant does not have a valid current permit or license from the California Board of Equalization or any other applicable tobacco retail licensing agency, where the applicant is required to obtain any such permit or license in order to lawfully engage in tobacco retailing in the State of California and/or in the County of San Joaquin.

B. If the City does not approve a license or renewal of a license, the City shall notify the applicant of the specific grounds for the denial in writing. The notice shall be served personally, by regular mail, or by certified mail not later than five days after the denial. If notice is delivered by mail, it shall be addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the United States mail without extension of time for any reason. 457

ATTACHMENT A

9 In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated in the California Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action.

C. The denial of a tobacco retail license or renewal of a license may be appealed.

Notice of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the City included in the denial notice, shall be filed with the Chief of Police, or designee, within 10 days of the giving of the denial notice as specified in subsection B above. Upon failure to file the notice of appeal within the 10- day period, the action of the City in denying such tobacco retail license or renewal of such license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall refer the matter to the City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this Code.

D. Notwithstanding section 5.104.070, in the event a tobacco retailer files a timely appeal from the denial of the renewal of a license pursuant to subsection C above, the tobacco retailer may continue to operate under the existing license pending the appeal decision. The determination of the administrative hearing officer shall be final.

5.104.070 Annual renewal of tobacco retail license.

A tobacco retail license shall be valid for one year from the date of issuance, unless earlier suspended or revoked. Any person that holds a tobacco retail license may obtain a new license for the succeeding year by applying for said new license and paying the required fees, in accordance with Section 5.104.040 of this Chapter, no later than 30 days prior to the expiration date of the current tobacco retail license, but no earlier than 60 days prior to the expiration of the license. However, a license that has been revoked or is subject to revocation proceedings shall not be renewed.

5.104.080 License nontransferable.

A license is nontransferable. If a licensee changes business location, that licensee must obtain a new license prior to acting as a tobacco retailer at the new location. If a business licensed to conduct tobacco retailing experiences a change of ownership, the business must obtain a new license for that location before acting as a tobacco retailer.

5.104.090 Display of license.

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

5.104.100 Grounds for suspension or revocation of a tobacco retail license. 458

ATTACHMENT A

10 In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section.

A. A license may be suspended or revoked pursuant to this subsection A if the Chief of Police, or designee, finds that the licensee, or his or her agents or employees, has or have violated any state or local law relating to the sale of tobacco products to a minor, including without limitation California Penal Code section 308 and this Chapter, or any state or local law relating to the sale of flavored tobacco products, including without limitation California Health and Safety Code section 104559.5 and this Chapter; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location. The Chief of Police, or designee, may concurrently make multiple findings of prior violations within any five-year period; in which case, suspensions provided for in this subsection A shall run concurrently.

1. Upon a finding by the Chief of Police, or designee, of a first violation within any five-year period, the license may be suspended for up to 30 days.

2. Upon a finding by the Chief of Police, or designee, of a second violation within any five-year period, the license may be suspended for up to 60 days.

3. Upon a finding by the Chief of Police, or designee, of each additional violation within any five-year period, the license may be suspended for up to 90 days for each violation, or be revoked.

B. A license may be suspended by the Chief of Police, or designee, if the Chief of Police, or designee, find that, based on ascertainable facts, the operation of the tobacco retailer substantially aggravates the crime problems in the City, makes law enforcement unduly difficult, or is detrimental to the public health, safety, or welfare of the City.

C. A license may be revoked if the Chief of Police, or designee, finds that:

1. A tobacco retailer has failed to pay, when due and payable, any of the fees or taxes required within 10 days after written notice of such failure;

2. A tobacco retailer has made any fraudulent statements as to a material fact on an application form or as to any other information presented as part of the application process; or

3. A tobacco retailer commits any act which would have constituted grounds for denial of an application for a tobacco retail license.

D. If the Chief of Police, or designee, suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the 459

ATTACHMENT A

11 suspension or revocation in the manner prescribed in 5.104.060(B). The notice shall contain:

1. A brief statement of the specific grounds for such suspension or revocation;

2. A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section

5.104.110, within 10 days of the date of service of the notice; and

3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final.

E. A licensee for whom a license suspension is in effect, or whose license has been revoked, must cease all tobacco retailing and remove all tobacco products and tobacco paraphernalia from public view at the address that appears on the suspended or revoked license.

5.104.110 Appeal from suspension or revocation of tobacco retail license A. The action of the Chief of Police, or designee, in revoking or suspending a tobacco retail license may be appealed. Notice of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the Chief of Police, or designee, included in the notice, shall be filed with the Chief of Police, or designee, within 10 days after the revocation or suspension of the license. Upon failure to file the notice within the 10-day period, the action of the City in revoking or suspending such tobacco retail license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall refer the matter to the City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this Code.

B. In the event a tobacco retailer files a timely appeal pursuant to this section, the effective date of the decision shall be stayed pending the appeal decision. The determination of the administrative hearing officer shall be final.

5.104.120 Operating regulations and conditions.

A. The provisions of this section shall constitute terms and conditions applicable to each tobacco retail license issued under this Chapter.

B. The provisions of this section shall also constitute operating regulations that are applicable to each holder of a tobacco retail license issued pursuant to this Chapter. 460

ATTACHMENT A

12 C. It shall be unlawful for any tobacco retailer required to be licensed under this Chapter, whether or not such tobacco retailer is actually so licensed under this Chapter, to violate any of the provisions of this Chapter.

D. All tobacco retailers shall remain in compliance with the Stockton Municipal Code and all other local, State, and Federal laws at all times.

E. Tobacco retail licenses are for a specific, fixed location that shall serve as the licensed premises and shall not deviate from the premises that was described in the application. A tobacco retail license shall maintain legal possession of the premises (e.g., ownership, lease) that was approved by the City with the application for the tobacco retail license.

F. No more than twenty percent (20%) of windows or clear doors at the premises where tobacco retailing occurs shall bear advertising or other signage of any sort.

G. A tobacco retailer shall:

1. Pay all City-imposed fines, penalties, and fees by the deadlines provided for by City officials;

2. Allow for immediate access to a City, county, or State official that is authorized to regulate tobacco control ordinances under this Chapter or any State, county, or City law or regulation to the premises and on-premises records during regular business hours or hours of apparent operation;

3. Prevent loitering, public drinking, and public use of cannabis or other criminal behavior on and around the premises, including parking areas. “No Loitering” signs shall be prominently posted in a readily visible manner on no less than one exterior wall. The tobacco retailer’s operators or employees shall ask persons loitering for longer than 15 minutes to leave the area and contact law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so;

4. Prevent any condition constituting a nuisance on the premises, including parking areas;

5. Remove all graffiti or other signs of vandalism within 48 hours of knowledge of the graffiti or vandalism;

6. Maintain a clean and orderly premises to ensure public health and safety meet the highest standards.

H. The provisions of this Chapter are intended to provide a minimum level of public health, safety, and welfare protection at businesses engaging in tobacco retailing.

Nothing in this Chapter is intended nor shall prevent the City from imposing more 461

ATTACHMENT A

13 stringent, site-specific operating requirements and conditions through other applicable permitting and approval processes. In the event of a conflict between an operating regulation set forth in this Chapter and a requirement or condition contained in any other applicable permit or approval, the more stringent or restrictive requirement shall apply.

5.104.130 Lawful business operation.

In the course of tobacco retailing or in the operation of the business or maintenance of the premises for which a tobacco retail license is issued, it shall be a violation of this Chapter for any tobacco retailer to violate any Federal, State, or local law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

5.104.140 Violations and penalties.

A. It is unlawful for any tobacco retailer, employee, or other person to violate any provision of this Chapter.

B. A violation of any of the provisions of this Chapter shall be charged as a misdemeanor for each day such violation continues.

C. Any violation of this Chapter may also be remedied by a civil action brought by the City Attorney. The City may recover for reasonable attorneys’ fees and costs of suit in any civil litigation brought by the City Attorney to remedy any violation of this Chapter.

D. A violation of any of the provisions of this Chapter may also result in the issuance of civil penalties pursuant to Chapter 1.40 for each day the violation continues.

E. A violation of any of the provisions of this Chapter may also result in the issuance of administrative citations pursuant to Chapter 1.32. Notwithstanding the penalty amounts found at section 1.32.050 of this Code, administrative penalties for violations of this Chapter shall be as follows:

1. $1,000.00 for a first violation within any five-year period.

2. $2,000.00 for a second violation within any five-year period.

3. $3,000.00 for each additional violation within any five-year period.

F. A violation of any of the provisions of this Chapter may also result in the suspension or revocation of the tobacco retail license pursuant to section 5.104.100 of this Chapter.

G. Any use or condition caused or permitted to exist in violation of any of the provisions of this Chapter is hereby declared a public nuisance and may be summarily abated by the City.

SECTION IV. SEVERABILITY.
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ATTACHMENT A

14 If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions, or applications of the fact which can be given without the invalid provision or application, and to this end the provisions of this act are severable.

SECTION V. EFFECTIVE DATE.

This ordinance shall be in full force and take effect 90 days after its passage.

Notwithstanding the foregoing, for a tobacco retailer lawfully operating under a valid City business license on the day before the effective date of this ordinance, a tobacco retail license shall not be required until the day after the expiration or renewal of such City business license.

ADOPTED: ___________________

EFFECTIVE: ___________________

_____________________________
KEVIN J. LINCOLN II
Mayor of the City of Stockton

ATTEST:

ELIZA R. GARZA, CMC
City Clerk of the City of Stockton
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ATTACHMENT B

Optional language prohibiting flavored tobacco retailing.

Summary:

Option A: No additional language. Maintain the three state exceptions.

Option B: Complete flavor ban. Eliminate the three state exceptions.

Option C: Remove some, but not all, of the three state exceptions.

Option D: Eliminate the three state exceptions for regular sale, but allow sales for on-site consumption of flavored shisha and cigars at hookah lounges and cigar lounges.

Flavor Option A

No additional language; the three exemptions under state law are permitted . As presented, the proposed ordinance reflects this Option A.

Flavor Option B

A complete flavor ban with no exceptions. Sample section:

5.104.135 Prohibition on Sale of Flavored Tobacco Products.

It is unlawful and a violation of a license for a licensee or his or her agents or employees to sell, offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product. It is unlawful for any person to sell, offer for sale, or po ssess with the intent to sell or offer for sale, any flavored tobacco product. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product’s labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor.

Flavor Option C

Removing some but not all exemptions under state law. Sample section:

5.104.135 Prohibition on Sale of Flavored Tobacco Products.

A. It is unlawful and a violation of a license for a licensee or his or her agents or employees to sell, offer for sale, or possess with the intent to sell or offer for sale, the following flavored tobacco products, whether sold for onsite or offsite consumption:

//// Of the following three state exceptions, only list those exceptions the City is removing ////

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ATTACHMENT B

1. Any flavored “shisha tobacco product,” as that phrase is defined in section 104559.5 of the California Health and Safety Code, as that section now exists or may hereafter be amended or renumbered.

2. Any flavored “premium cigar,” as that phrase is defined in section 104559.5 of the California Health and Safety Code, as that section now exists or may hereafter be amended or renumbered.

3. Any flavored “loose leaf tobacco,” as that phrase is defined in section 104559.5 of the California Health and Safety Code, as that section now exists or may hereafter be amended or renumbered.

B. The prohibitions listed in subsection A of this section are in addition to all prohibitions on the sale of flavored tobacco products pursuant to state law.

C. It is unlawful for any person to sell, offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco products listed in subsection A of this section or those flavored tobacco products prohibited for sale pursuant to state law.

Flavor Option D

Removing the three state exceptions, except for on-site consumption at hookah lounges and cigar lounges.

5.104.135 Prohibition on Sale of Flavored Tobacco Products.

A. It is unlawful and a violation of a license for a licensee or his or her agents or employees to sell, offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product. It is unlawful for any person to sell, offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product’s labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor.

B. Notwithstanding subsection A of this section, flavored “shisha tobacco product,” as that phrase is defined in section 104559.5 of the California Health and Safety Code, and flavored “premium cigars,” as that phrase is defined in section 104559.5 of the California Health and Safety Code, may be sold by a tobacco retailer exclusively for consumption on-premises if consumption is allowed on the premises of the tobacco retailer in accordance with state and local law, and the tobacco retailer does not permit any person under 21 years of age to be present at, or enter, the premises at any time. 465

ATTACHMENT C

FY 2023-24 Proposed New Fees

Police Department
Investigative Permits
Description Reason Proposed Amount
Tobacco License
Annual Tobacco Retail License Application Fee New and renewals, one fee per application to cover processing costs of application.
$102.00
Verification of distance requirements One-time fee, as applicable, to verify business location is allowable under Ordinance 5.102.120.
$147.00
Annual Investigative Fee New and renewals, one fee per application. $234.00 Appeal Fee Ordinance Section 5.102.110 Appeal from denial, suspension or revocation of tobacco retail license.
$102.00
Division General Notes (Applicable to all fees)

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1 ORDINANCE NO.

AN ORDINANCE AMENDING TITLE 5, CHAPTER 5.16, SECTION 5.16.010 AND ADDING CHAPTER 5.104 TO THE STOCKTON MUNICIPAL CODE RELATED TO

TOBACCO RETAILERS

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:

SECTION I. FINDINGS AND INTENT.

The failure of tobacco retailers to comply with all tobacco control laws, particularly the sale of tobacco products to minors, presents a threat to the public health, s afety, and welfare. A local licensing program for tobacco retailers is intended to ensure that tobacco retailers comply with tobacco control laws and business standards of the City of Stockton and to protect the health, safety, and welfare of those persons who reside in, work in, and visit the City of Stockton.

State law explicitly authorizes cities to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law. A requirement for a tobacco retail license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults but will allow the City of Stockton to regulate the operations of lawful businesses to discourage violations of Federal, State, and local tobacco -related laws. The City of Stockton has a substantial interest in promoting compliance with Federal, State, and local laws intended to regulate tobacco sales and use; discouraging the illegal purchase of tobacco products by minors; promoting compliance with laws prohibiting sales of tobacco products to minors; and protecting children from being lured into illegal activity through the misconduct of adults.

This Chapter is adopted to encourage responsib le tobacco retailing and to discourage violation of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors. This Chapter does not expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or alter the penalties provided by such laws. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

SECTION II. AMENDMENT OF CODE
Title 5, Chapter 5.16, section 5.16.010 of the Stockton Municipal Code is amended to read as follows:

5.16.010 Licenses or permits required.

The license or permit required for any of the following is in addition to any business license required under this title:
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Title 5, Chapter 5.104 is added to the Stockton Municipal Code and shall read as follows:

5.104.010 Purpose and application.

The purpose of this Chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco -related laws, especially those that prohibit or discourage the sale or distribution of tobacco p roducts to minors, but not to expand or reduce the degree to which the acts regulated by Federal and State law are criminally proscribed or to alter the penalties provided by such laws.

5.104.020 Definitions.

“Characterizing flavor” means a taste or aroma, othe r than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or 469

4 aromas relating to menthol, mint, wintergreen, fruit, choco late, vanilla, honey, candy, cocoa, dessert, alcohol beverage, herb, or spice.

5.104.030 Tobacco retail license required.

5.104.040 License application.

1. The true name, address, and telephone number of each proprietor;

2. The business name, address, and telephone number of the fixed location for which a license is sought;

6 4. Such other information as any department director deems necessary for the administration or enforcement of this Chapter.

F. Each applicant shall be responsible for providing truthful, complete, and accurate information and for signing the license application.

5.104.050 Business license.

Nothing herein shall constitute a waiver of the requirements of Title 5 of the Stockton Municipal Code requiring issuance and possession of a valid business license.

5.104.060 Issuance and renewal of license; grounds for denial.

A. Upon the receipt of an application for a license and the applicable fee, the City shall issue a license unless any of the following exist:

1. The application is incomplete or inaccurate.

3. The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, State, or Federal law.

4. Making any false statements in the application or as to any other information presented as part of the application process.

5. Evidence of current or prior unlawful or nuisance-creating operation in this or another jurisdiction.
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9. The City is in possession of information that the applicant or his agents or employees has violated any local, State, or Federal tobacco control law within the preceding 30-day period.

C. The denial of a tobacco retail license or renewal of a license may be appealed.

5.104.070 Annual renewal of tobacco retail license.

5.104.080 License nontransferable.

5.104.090 Display of license.

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

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10 5.104.100 Grounds for suspension or revocation of a tobacco retail license.

In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section.

1. Upon a finding by the Chief of Police, or designee, of a first violation within any five-year period, the license may be suspended for up to 30 days.

2. Upon a finding by the Chief of Police, or designee, of a second violation within any five-year period, the license may be suspended for up to 60 days.

3. Upon a finding by the Chief of Police, or designee, of each additional violation within any five-year period, the license may be suspended for up to 90 days for each violation, or be revoked.

C. A license may be revoked if the Chief of Police, or designee, finds that:

1. A tobacco retailer has failed to pay, when due and payable, any of the fees or taxes required within 10 days after written notice of such failure;

2. A tobacco retailer has made any fraudulent statements as to a material fact on an application form or as to any other information presented as part of the application process; or

3. A tobacco retailer commits any act which would have constituted grounds for denial of an application for a tobacco retail license.
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11 D. If the Chief of Police, or designee, suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the suspension or revocation in the manner prescribed in 5.104.060(B). The notice shall contain:

1. A brief statement of the specific grounds for such suspension or revocation;

2. A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section

5.104.110, within 10 days of the date of service of the notice; and

5.104.120 Operating regulations and conditions.

A. The provisions of this section shall constitute terms and conditions applicable to each tobacco retail license issued under this Chapter.

B. The provisions of this section shall also constitute operating regulations that are applicable to each holder of a tobacco retail license issued pursuant to this Chapter. 477

D. All tobacco retailers shall remain in compliance with the Stockton Municipal Code and all other local, State, and Federal laws at all times.

F. No more than twenty percent (20%) of windows or clear doors at the premises where tobacco retailing occurs shall bear advertising or other signage of any sort.

G. A tobacco retailer shall:

1. Pay all City-imposed fines, penalties, and fees by the deadlines provided for by City officials;

4. Prevent any condition constituting a nuisance on the premises, including parking areas;

5. Remove all graffiti or other signs of vandalism within 48 hours of knowledge of the graffiti or vandalism;

6. Maintain a clean and orderly premises to ensure public health and safety meet the highest standards.

H. The provisions of this Chapter are intended to provide a minimum level of public health, safety, and welfare protection at businesses engaging in tobacco retailing.

Nothing in this Chapter is intended nor shall prevent the City from imposing more 478