2. If the jurisdiction has a local tenant preference policy, provide a link to the jurisdiction's webpage on their internet website containing authorizing local ordinance and supporting materials. Please include an active URL to the website containing the ordinance.
25 of 21
3. Notes: Add any applicable notes (optional).
Local Early Action Planning (LEAP) Grant Reporting
Pursuant to Health and Safety Code section 50515.04, recipients of Local Early Action Planning (LEAP) grants shall annually report by April 1 of the year following receipt of those funds on the status of proposed uses in the application. The report shall address the housing impact within the jurisdiction, including a summary of building permits, certificates of occupancy or other completed entitlements.
Data sources may include the LEAP application (e.g., Attachment 1: Project Timeline and Budget), re- imbursement requests, other portions of the APRs, and other summary records of program activities.
1. Total Award Amount: Utilizing the LEAP application and award letter, fill in the total award amount for all proposed LEAP activities.
2. Task: Utilizing Attachment 1: Project Timeline and Budget from the LEAP application, fill in all project level tasks. Do not fill in sub-tasks. For example, an application might include a project level task to prepare and adopt a downtown specific plan. In this case, simply fill in the downtown specific plan and do not fill in sub-tasks such as outreach, traffic studies, drafting and adoption.
3. $ Amount Awarded: Utilizing Attachment 1: Project Timeline and Budget from the LEAP application, fill in the total amount awarded for each project level task.
4. $ Cumulative Reimbursement Requested: Utilizing reimbursement requests sent to HCD, add up all requested amounts for each project level task. Note, this is reimbursement “requested” and not reimbursement “received”. At the time of reporting, some reimbursement requests may be in process. The table does not need to address reimbursements in process.
5. Task Status: Select either completed, in progress or other for project level tasks. Include additional description in the notes column as appropriate for information such as upcoming milestones, anticipated completion dates, any schedule slippage o progress as a percentage of completion (e.g., 50 percent complete).
6. Other Funding: Note any other funding sources by amount being utilized to complete each project level task. If no other funding sources are being utilized, enter N/A. Examples of other funding include the SB 2 planning grants program, the SB 1 sustainability planning grants program and local general funds.
7. Notes: Enter any other relevant information related to progress and impacts such as reasons for delays, anticipated numerical outcomes, etc.
8. Summary of Entitlements, Building Permits and Certificates of Occupancy: These tables will auto- populate from Table A2.
March 19, 2024
Agenda Item 1.I
RECOMMENDATION
Staff r
ecommends that the City Council:
Adopt Resolut
ions finding, for each of the below, that strict compliance with the contracting procedure for “general services” under Tracy Municipal Code Section
2.20.180(b)(4) is not in the best interest of the City and i) A) Rescinding Resolut
ion #2023-230 approving a General Services
Agreement with Jim Brisco Enterprises, Inc. for Wastewater Treatment Biosolids Loading, Hauling and Disposal for a term of one (1) year beginning on September 1, 2023, and a not-to-exceed amount of $176,700 annually and
B) Approving Jim B
risco Enterprises, Inc. for Wastewater Treatment
Plant Biosolids Loading, Hauling and Disposal for a term of one (1) year beginning on December 5, 2023 and a not-to-exceed amount of $176,700 annually;
ii) Approving a General S
ervices Agreement with Alpha Analytical
Laboratories, Inc. for Laboratory Testing Services for a term of fifteen (15) months, with an administrative option to extend for up to five years, in any combination of length and not-to-exceed annual amount of $60,180 per fiscal year; and
iii) Approving a General S
ervices Agreement with Eurofins Eaton
Analytical, LLC for Laboratory Testing Services for a term of fifteen (15) months, with an administrative option to extend for up to five years, in any combination of length, and a not-to-exceed annual amount of $23,451 per fiscal year.
EXECUTIVE SUMMARY
City Counc
il is being asked to rescind a previously approved General Services Agreement (GSA) and approve three new GSAs for services related to the City’s Wastewater Treatment Plant. The funding for these GSAs is captured in the annual Fund 511 (Water) and Fund 521 (Wastewater) operations and maintenance budgets.
BACKGROUND AND LEGISLATIVE HISTORY
The City of Tr
acy Wastewater Treatment Plant is required by the State Water Resources Control Board under its National Pollutant Discharge Elimination System (NPDES) and Waste Discharge Requirement (WDR) permits to conduct water quality testing and analysis of its wastewater (influent and effluent) to ensure it does not exceed certain standard limits set forth under those permits. It is also required under those same permits to properly dispose of the bio-solids that are removed during the treatment process. The Agenda Item 1.I
Marc
h 19, 2024
City contracts with outside vendors to provide these services and ensure compliance with Federal, State, and Local mandates.
The City’s Water Treatment Pl ant is required by the State Water Resources Control Board Division of Drinking Water to conduct water quality testing and analysis of its water treatment facilities as well as distribution system to ensure the health and safety of its Domestic Water Supply. The testing and analysis provided ensures that the City does not exceed certain standard limits set forth under these regulations.
The required tests and analysis must be performed by a California Environmental Laboratory Accreditation Program (CA ELAP) certified laboratory and the results are shared w
ith the State at set intervals. Both Alpha Analytical Laboratories, Inc. and Eurofins Eaton Analytical, LLC meet this CA ELAP criterion. The City’s laboratory is CA E
LAP certified, however, due to the cost to purchase and maintain specialized equipment to perform these tests, the staff to analyze and run the samples, and the required timing to conduct the testing and analysis, the City must contract out for some of its testing and analy
sis to be in compliance with its regulatory permitting.
The services delivered to the City by these agreements provide the necessary federal, state, and local compliance requirements.
ANALYSIS
During recent auditing of past purchasing practices within the Utilities Division, it was discovered that several contracts being utilized did not strictly adhere to established City Purchasing Policies. Based on the internally initiated, quality control audit, staff identified one contract that need to have the contract start date corrected to reflect City Council approval and identified two contracts for reoccurring services that needed to be run through the City’s procurement process. The c orrected actions for the latter two were to conduct the formal bid process and to bring all thr ee agreements to City Council for approva
l and authorization by resolution.
The Jim Brisco Enterprises, Inc. agreement was brought to City Council on December 5, 2023, and was authorized by Resolution #2023-230, however, during the contract’s final routing for signature, it was noticed that the contract start date on the agreement was written as September 1, 2023, which was before Council authorization on December 5, 2023. For this reason, it is being requested that the previous Resolution #2023-230 be rescinded, and City Council authorize the new amended agreement and Resolution which reflects the correct term start date of December 5, 2023, if approved.
Both Al
pha Analytical Laboratories, Inc. and the Eurofins Eaton Analytical, LLC have been historically utilized by the Utilities Laborator y to meet regulatory compliance, however, it was determined that the City did not conduct formal bid processes for either of these services. These two firms were historically selected based on an informal procurement process that weighed their ability to perform the required testing, analyses, and prior satisfactory work, and relative costs based on quotes and estimates. Rather than formal written City agreement, these service providers were also contracted less formally by quote and purchase order.
Agenda Item 1.I
Marc
h 19, 2024
Procurement Procedures
In order to correct these identified procurement policy deficiencies, on May 30, 2023, staff follow
ed established procedures, in accordance with professional services agreements under Trac
y Municipal Code, Section 2.20.140, and conducted a one-time Notice Inviting Bids (NIB) to solicit qualified and experienced vendors with CA ELAP certification to provide competitive rates to conduct the necessary testing and analysis. As of June 29, 2023, staff received four (4) qualified proposals. After careful review and analysis, Alpha Analytical Laboratories, Inc. and Eurofins Eaton Analytical, LLC were selected based on their competitive rates and ability to deliver the required services and deliverables. Alpha Analytics Laboratories, Inc. will provide services for Wastewater regulatory compliance and Eurofins Eaton Analytical, LLC will provide services for Water regulatory compliance.
On May 30, 2023, staff followed established procedures, in accordance with professional services agr
eements under Tracy Municipal Code, Section 2.20.140, and conducted a one-time Notice Inviting Bids (NIB) to solicit qualified and experienced vendors to provide competitive rates to conduct the necess
ary removal, loading, hauling, and disposal of
biosolids from the drying beds stockpiled at the Wastewater Treatment Plant located at 3900 Holly Drive. These biosolids
are a by-product of the wastewater tr eatment process.
As of June 21, 2023, staff received six (6) qualified proposals. After careful review and analysis, Jim Brisco Enterprises, Inc. was selected based on their competitive rates and ability to
deliver the required services and deliverables. Consultant is a qualified proposer with the lowest cost of s
ervices, has good references, and has completed similar work with other
agencies in a satisfactory manner, including the City of Tracy and therefore was selected based on that criterion.
Staff recommends that City
Council adopt findings that strict compliance with the
contracting procedure for
“general services” agreements under Tracy Municipal Code Section 2.20.180(b)(4) is not in the best interes
t of the City.
Tracy Municipal Code, Section 2.20.140 provides a qualifications-based bidding selection process
for “professional services agreements” including evaluation of which proposer best meets the City's
needs by demonstrating the competence and professional
qualifications necessary for the satisfactory performance of the required services, and evaluation of which proposals be
st fit the criteria set forth in the City’s request for proposals.
The Services presently
required by the City do not fall squarely into the definition of “professional s
ervices” provided in Tracy Municipal Code Section 2.20.030(c) and thus may fal
l into the definition of “general services” provided Tracy Municipal Code Section
2.20.030(f).
Barring an exception, Tracy
Municipal Code Section 2.20.180(a)(5) requires the City award a contract for “general services” to the “lowest responsible bidder,” irrespective of qualifications necessary
for the satisfactory performance of the required services. Tracy Municipal C
ode Section 2.20.180(b)(4) authorizes the City Council to approve an exception to the contracting procedure for general services agreements where the Council finds compliance is not in the best interest of the City for the subject services.
Accordingly, Staff recommends that City
Council adopt findings that strict compliance with
the contracting procedure for “
general services” agreements under Tracy Municipal Code Agenda Item 1.I
March 19, 2024
Section 2.20.180(b)(4) is not in the best interest of the City for the three subject general services agreements with Jim Brisc o Enterprises, Inc., Alpha Analytical Laboratories, Inc., and Eurofins Eaton Analytical, LLC because these contractors possesses the unique qualificat
ions and project-specific past experience with the City required to perform their respective services for the City competently and efficiently, and because City staff nonetheless proceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140.
Staff Recommendations for Approval of Three Agreements
Utilities staff is requesting City Council approval of this item which wi ll result in authorizing staff to execute the attached three (3) GSAs summarized as follows:
1) Alpha Analytical Laboratories, Inc.,
a. An initial 15-month term, commencing March 19, 2024, and expiring on June 30, 2025;
b. Annual not-to-exceed amount of $60,180 per fiscal year; c. Approval of this item would further authorize the City Manager to extend the term of the GSA an additional five (5) years at the same annual not-to-exceed amount of $60,180 per fiscal year;
d. The process of selecting Alpha Analytical Laboratories, Inc. complies with the local and state laws governing public bidding contracts; e. Alpha Analytical Labor
atories, Inc. was selected to provide the required
testing and
analysis for the Wastewater Treatment Plant and is being recommended for approval by City Council based on their cost, and taking into consideration response time, specialty, and past performance with the City
;
f. The consulting work of Alpha Analytical Laboratories, Inc. will be supervised by C
ity staff.
2) Eurofins Eaton Analytical, LLC,
a. An initial 15-mo nth term, commencing March 19, 2024, and expiring on June 30, 2025;
b. An annual not-to-ex ceed amount of $23,451 per fiscal year; c. Approval of this item would further authorize the City Manager to extend the term of the GSA an additional five (5) years at the same annual not-to-exceed amount of $23,451 per fiscal year;
d. The process of selecting Eurofins Eaton Analytical, LLC complies with the local and state laws governing public bidding contracts; e. Eurofins E
aton Analytical, LLC was selected to provide the required testing and analysis for the Water Treatment Plant and is being recommended for approval by City Council based on their cost, and taking into consideration response time, specialty, and past performance with the City; f.
The consulting work of Eurofins Eaton Analytical, LLC. will be supervised by City staff.
3) Jim Brisco Enterprises, Inc.
a. An initial one
-year term, commencing on December 5, 2023, and expiring on December 4, 2024;
b. An annual not-to-ex ceed amount of $176,700 annually; Agenda Item 1.I
March 19, 2024
c. No administrative option to extend by City Manager;
d. The process of selecting Jim Brisco Enterprises, Inc. complies with the local and state laws governing public bidding contracts;
e. Jim Brisco Enterprises, Inc. was selected to provide the required bio-solids loading, hauling, and disposal from the Treatment Plant and is being recommended for approval by City Council based on their cost, and taking into consideration response time, specialty, and past performance with the City; f. The consulting work of Jim Brisco Enterprises, Inc. will be supervised by City staff.
Utilities staff followed established procedures, in accordance with Tracy Municipal Code, Section 2.20.140, and conducted a one-time Notice Inviting Bids (NIB) to solicit qualified and experienced vendors to provide the professional services requested for each of the three contracts.
FISCAL IMPACT
The cost of the agreement with Alpha Analytical Laboratories, Inc. and Jim Brisco Enterprises, Inc. is fully funded through the Wastewater (Fund 521) annual operations and maintenance budget. The cost of the agreement with Eurofins Eaton Analytical, LLC is
fully funded through the Water (Fund 511) annual operations and maintenance budget.
This table identifies the amount previously expended to each of the vendors over a five (5) year period (2019 to 2024) for their professional services to comply with NPDES/WDR permitting and Public
Water Systems regulations.
Alpha Analytical
Laboratories, Inc.
Eurofins Eaton
Analytical, LLC
Jim Brisco
Enterprises, Inc.
FY18/19 $ 28,650.00 $ 57,090.00 $ 73,684.04
FY19/20 $ 58,439.00 $ 73,185.00 -
FY20/21 $ 23,566.00 $ 56,944.00 -
FY21/22 $ 90,929.75 $ 59,068.00 -
FY22/23 $ 71,773.00 $ 30,974.00 $ 147,294.49
FY23/24 $ 29,092.50 $ 28,535.00 $ 86,676.06
$ 302,450.25 $ 305,796.00 $ 307,654.59
PUBLIC OUTREACH/ INTEREST
No public outreac
h or education was conducted for this item.
COORDINATION
There was no coordinati
on with other agencies or interdepartmentally with the City on this item.
Agenda Item 1.I
March 19, 2024
CEQA DETERMINATION
This item i
s subject to the categorical exemption under CEQA Guidelines § 15301 for an action that “consists of the operation, repair, maintenance, permitting, leasing, licensing or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” Here, there is no or negligible expansion of an existing use previously reviewed and approved under CEQA.
STRATEGIC PLAN
This agenda item
is consistent with the City’s Quality of Life Strategy and meets the goals to ensure physical infrastructure and systems necessary for the health and safety of the Tracy community through improved water quality.
ACTION REQUESTED OF THE CITY COUNCIL
Staff recomm
ends that City Council:
Adopt Resoluti
ons finding, for each of the below, that strict compliance with the contracting procedure for “general services” under Tracy Municipal Code Section 2.20.180(b)(4) is not in the best interest of the City and
i) A) Resc
inding Resolution #2023-230 approving a General Services Agreement with Jim Brisco Enterprises, Inc. for Wastewater Treatment Biosolids Loading, Hauling and Disposal for a term of one (1) year beginning on September 1, 2023, and a not-to-exceed amount of $176,700 annually and
B) Approving J
im Brisco Enterprises, Inc. for Wastewater Treatment Plant Biosolids Loading, Hauling and Disposal for a term of one (1) year beginning on December 5, 2023 and a not-to-exceed amount of $176,700 annually;
ii) Approving a
General Services Agreement with Alpha Analytical
Laboratories, Inc. for Laboratory Testing Services for a term of fifteen (15) months, with an administrative option to extend for up to five years, in any combination of length and not-to-exceed annual amount of $60,180 per fiscal year; and
iii) Approving a
General Services Agreement with Eurofins Eaton Analytical, LLC for Laboratory Testing Services for a term of fifteen (15) months, with an administrative option to extend for up to five years, in any combination of length, and a not-to-exceed annual amount of $23,451 per fiscal year.
Agenda Item 1.I
March 19, 2024
Prepared by: Stephanie Reyna-Hiestand, Assistant Director of Utilities Reviewed by: Brian MacDonald, Interim Director of Public Works Sara Cow
ell, Director of Finance
Karin Schnaider, Assistant City Manager
Bijal M. Patel, City Attorney
Approved by: Mi
dori Lichtwardt, City Manager
Attachments:
A - GSA – Alpha Analytical Laboratories, Inc.
B - GSA – Eurofins Eaton Analytical, Inc.
C - GSA – Jim Brisco Enterprises, Inc.
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
CITY OF TRACY
GENERAL SERVICES AGREEMENT WITH
ALPHA ANALYTICAL LABORATORIES, INC. FOR WASTEWATER
LABORATORY TESTING SERVICES
This General Services Agreement (Agreement) is entered into between the City of Tracy, a municipal corporation (City), and Alpha Analytical Laboratories, Inc., a California corporation (Contractor). City and Contractor are referred to individually as "Party" and collectively as "Parties." Recitals
A. City desires to retain Contractor to provide laboratory testing services ("Services"); and B. On May 30, 2023, the City issued a Notice Inviting Bids (NIB) for Laboratory Analysis and Testing Services (Project). On June 28, 2023, Consultant submitted its proposal for the Project to the City. Bid proposal was received by City staff and reviewed by the Laboratory Superintendent and Assistant Director of Utilities. City received a total of five bid proposals. City has determined that Consultant possesses the skills, experience and certification required to provide the specified services.
C. After negotiations between the City and Consultant, the Parties have reached an agreement for the performance of services in accordance with the terms set forth in this Agreement.
D. This Agreement is being executed pursuant to Resolution 2024-___ approved by Tracy City Council on January 16, 2024.
Now therefore, the Parties mutually agree as follows:
1. Scope of Work. Upon request from the City, Consultant shall timely perform the Services, including those described in Exhibit "A" attached and incorporated by reference. The Services shall be performed by, or under the direct supervision of, Consultant's Authorized Representative: David Pingatore. Consultant shall not replace its Authorized Representative, nor shall Consultant replace any of the personnel listed in Exhibit "A," nor shall Consultant use or replace any subConsultants or subconsultants, without City's prior written consent. The City may terminate this Agreement if Consultant makes any such change or replacement or uses any such subconsultant.
2. Time of Performance. Time is of the essence in the performance of services under this Agreement and the timing requirements set forth shall be strictly adhered to unless otherwise modified in writing in accordance with this Agreement. Consultant shall begin performance, and shall complete all required services no later than the dates set forth in Exhibit "A." Any Services for which times for performance are not specified in this Agreement shall be started and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the Consultant. Consultant shall submit all requests for time extensions to the City in writing no later than ten days after the start of the condition which purportedly caused the delay, and not later than the date on which performance is due. City may grant or deny such requests in its sole and absolute discretion.
2.1 Term. The term of this Agreement shall begin on January 16, 2024 and end on June 30, 2025, unless terminated in accordance with Section 6. Notwithstanding the foregoing provision, the payment of any funds under this Agreement shall be subject to the City of Tracy appropriation of funds for the Services. This Agreement shall terminate in the event that such funds are not appropriated. The
Attachment A
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc. fees proposed by Consultant, as set forth in Exhibit B hereto, shall remain unchanged for the entire term of this Agreement and any extensions of this Agreement.
2.1.A Option to Extend: This Agreement may be extended for up to an additional five years, in any combination of length, by the City manager following a written determination that Contractor has satisfactorily met all the requirements of this Agreement.
3. Compensation. City shall pay Consultant on a time and expense basis, at the billing rates set forth in Exhibit "B," attached and incorporated by reference for services performed under this Agreement.
3.1 Not to Exceed Amount. Consultant's total compensation under this Agreement shall not exceed $60,180.00 annually per fiscal year. Consultant's billing rates shall cover all costs and expenses for Consultant's performance of this Agreement. It is understood and agreed that Consultant may not receive compensation up to this amount, and Consultant's total compensation under this Agreement will depend on the scope of the Services approved by the City. No work shall be performed by Consultant in excess of the total compensation amount provided in this section without the City's prior written approval. Notwithstanding the foregoing provision, the payment of any funds under this Agreement shall be subject to the City of Tracy's appropriation of funds for the Services. This Agreement shall terminate in the event that such funds are not appropriated.
3.2 Invoices. Consultant shall submit monthly invoices to the City that describe the services performed, including times, dates, and names of persons performing the services.
3.2.1. Consultant's failure to submit invoices in accordance with these requirements may result in the City rejecting said invoices and thereby delaying payment to Consultant.
3.3 Payment. Within 30 days after the City's receipt of invoice, City shall make payment to the Consultant based upon the services described on the invoice and approved by the City.
3.4 The acceptance by Consultant of the final payment made under this Agreement shall constitute a release of City from all claims and liabilities for compensation to Consultant for anything completed, finished or relating to Consultant's services. Consultant agrees that payment by City shall not constitute nor be deemed a release of the responsibility and liability of Consultant or its employees, subcontractors, agents and subconsultants for the accuracy and competency of the information provided and/or services performed hereunder, nor shall such payment be deemed to be an assumption of responsibility or liability by City for any defect or error in the Services performed by Consultant, its employees, subcontractors, agents and subconsultants.
3.5 Consultant agrees to maintain books, accounts, payroll records and other information
relating to the performance of Consultant's obligations under the Agreement, which shall adequately and correctly reflect the expenses incurred by the Consultant in the performance of Consultant's work under the Agreement. Such books and records shall be open to inspection and audit by the City during regular business hours for three years after expiration or termination of this Agreement.
4. Indemnification. Consultant shall, to the fullest extent permitted by law, indemnify, defend (with independent counsel approved by the City), and hold harmless the City from and against any claims arising out of Consultant's performance or failure to comply with obligations under this Agreement, except to the extent caused by the sole, active negligence or willful misconduct of the City.
In the event there is a finding and/or determination that Consultant is not an independent contractor and/or is an employee of City, including but not limited to any such finding and/or determination made by the California Public Employees' Retirement System (Cal PERS), the Department of Industrial Relations (DIR), or the Internal Revenue Service (IRS), Consultant shall, to the fullest extent permitted
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc. by law, indemnify, defend, and hold harmless the City from and against any all claims relating to or in connection with such a finding and/or determination.
In this section, "City" means the City, its officials, officers, agents, employees and volunteers; "Consultant" means the Consultant, its employees, agents and subConsultants; "Claims" includes claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all related costs and expenses) and any allegations of these; and "Arising out of' includes "pertaining to" and "relating to".
Consultant and City mutually waive consequential damages for claims, disputes, or other matters in question, arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination of this Agreement.
The provisions of this section survive completion of the services or the termination of this Agreement and are not limited by the provisions of Section 5 relating to insurance.
5. Insurance. Consultant shall, throughout the duration of this Agreement, maintain insurance to cover Consultant, its agents, representatives, and employees in connection with the performance of services under this Agreement at the minimum levels set forth herein.
5.1 Commercial General Liability (with coverage at least as broad as ISO form CG 00 01 01 96) "per occurrence" coverage shall be maintained in an amount not less than $4,000,000 general aggregate and $2,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage.
5.2 Automobile Liability (with coverage at least as broad as ISO form CA 00 01 07 97, for "any auto") "claims made" coverage shall be maintained in an amount not less than $1,000,000 per accident for bodily injury and property damage.
5.3 Workers' Compensation coverage shall be maintained as required by the State of California.
5.4 Professional Liability "claims made" coverage shall be maintained to cover damages that may be the result of errors, omissions, or negligent acts of Consultant in an amount not less than $1,000,000 per claim.
5.5 Endorsements. Consultant shall obtain endorsements to the automobile and commercial general liability insurance policies with the following provisions:
5.5.1 The City (including its elected officials, officers, employees, agents, and volunteers) shall be named as an additional "insured."
5.5.2 For any claims related to this Agreement, Consultant's coverage shall be primary insurance with respect to the City. Any insurance maintained by the City shall be excess of the Consultant's insurance and shall not contribute with it.
5.6 Notice of Cancellation. Consultant shall notify the City if the policy is canceled before the expiration date. For the purpose of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. Consultant shall immediately obtain a replacement policy.
5.7 Authorized Insurers. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
5.8 Insurance Certificate. Consultant shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance and endorsements, in a form satisfactory to the City, before the City signs this Agreement.
5.9 Substitute Certificates. Consultant shall provide a substitute certificate of insurance no later than 30 days prior to the policy expiration date of any insurance policy required by this Agreement.
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-818BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
5.10 Consultant's Obligation. Maintenance of insurance by the Consultant as specified in this Agreement shall in no way be interpreted as relieving the Consultant of any responsibility whatsoever (including indemnity obligations under this Agreement), and the Consultant may carry, at its own expense, such additional insurance as it deems necessary. Failure to provide or maintain any insurance policies or endorsements required herein may result in the City terminating this Agreement.
6. Termination. The City may terminate this Agreement in its sole and absolute discretion by giving ten (10) days' written notice to Consultant. Within five (5) days of such a termination, Consultant shall give the City all original documents relating to the Services in Consultant's possession or control, including, without limitation, preliminary drafts and supporting documents, and any other documents prepared by the Consultant pursuant to this Agreement. The City shall pay Consultant for all services satisfactorily performed in accordance with this Agreement, up to the date notice is given.
7. Dispute Resolution. If any dispute arises between the City and Consultant that cannot be settled after engaging in good faith negotiations, City and Consultant agree to resolve the dispute in accordance with the following:
7 .1 Each Party shall designate a senior management or executive level representative to negotiate the dispute;
7 .2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority.
7.3 If the issue remains unresolved after fifteen (15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by negotiations between legal counsel. If the aforementioned process fails, the Parties shall resolve any remaining disputes through mediation to expedite the resolution of the dispute.
7.4 The mediation process shall provide for the selection within fifteen (15) days by both Parties of a disinterested third person to serve as the mediator, shall be commenced within thirty (30) days of selection of a mediator, and shall be concluded within fifteen (15) days from the commencement of the mediation.
7 .5 The Parties shall equally bear the costs of any third-party mediator in any alternative dispute resolution process.
7 .6 The dispute resolution process is a material condition to this Agreement and must be exhausted prior to either Party initiating legal action. This dispute resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code §§ 900 et seq.
8 Labor Code Compliance. Consultant is aware of the requirements of Chapter 1 of Part 7 of Division 2 of the California Labor Code and applicable regulations which require the payment of prevailing wage rates (§1771, §1774, and §1775); employment of apprentices (§1777.5), certified payroll records (§1776), hours of labor (§1813 and §1815), debarment of Consultants and subConsultants (§1777.1) and the performance of other requirements on "public works" and "maintenance" projects. The services being performed under this Agreement are part of a "public works" or "maintenance" project, as defined in the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws.
8.1 Rates. These prevailing wage rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. Each Consultant and Subconsultants must pay no less than the specified rates to all workers employed to perform the services described herein. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half. Consultant assumes all responsibility for such payments and shall defend, indemnify and hold the City harmless from any and all claims made by the State of California, the Department of Industrial Relations, any subconsultant, any worker, or any other third party.
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
8.2 Registration with DIR. Consultant warrants that it is registered with the Department of Industrial Relations and qualified to perform the services consistent with Labor Code section 1725.5.
8.3 Monitoring. This Agreement will be subject to compliance monitoring and enforcement by the DIR, under Labor Code section 1771.4.
9. Ownership of Work. All original documents prepared by Consultant for this Agreement, whether complete or in progress, are the property of the City, and shall be given to the City at the completion of Consultant's Services, upon termination of this Agreement, or upon demand from the City. No such documents shall be revealed or made available by Consultant to any third party without the City's prior written consent.
10. Independent Contractor Status. Consultant is an independent Contractor and is solely responsible for the acts of its employees or agents, including any negligent acts or omissions.
Consultant is not City's employee and Consultant shall have no authority, express or implied, to act on behalf of the City as an agent, or to bind the City to any obligation, unless the City provides prior written authorization. Consultant is free to work for other entities while under contract with the City.
Consultant, and its agents or employees, are not entitled to City benefits. Consultant shall be solely responsible for, and shall save the City harmless from, all matters relating to the payment of Consultant's employees, agents, subcontractors and subconsultants, including compliance with social security requirements, federal and State income tax withholding and all other regulations governing employer-employee relations.
10.1 Non-Exclusive General Services Agreement. The City reserves the right to contract with other firms and/or consultants during the term of this Agreement to provide the City the same or similar services that Consultant is providing to the City under this Agreement. Nothing contained in this Agreement guarantees Consultant a certain amount of work, and the City may, in its sole and absolute discretion, allocate and/or delegate work to Consultant so as to satisfy the City's needs.
11. Conflicts of Interest. Consultant (including its employees, agents, and subConsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement.
If Consultant maintains or acquires such a conflicting interest, the City may terminate any contract (including this Agreement) involving Consultant's conflicting interest.
12. Rebates, Kickbacks, or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates, kickbacks, or other unlawful consideration either promised or paid to any City official or employee. For any breach of this warranty, City shall have the right, in its sole discretion, to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price the value of the rebate, kickback, or other unlawful consideration; or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration.
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
13. Notices. All notices, demands, or other communications which this Agreement contemplates or authorizes shall be in writing and shall be personally delivered or mailed to the other party to the addresses listed below. Communications shall be deemed to have been given and received on the first to occur of: (1) actual receipt at the address designated below, or (2) three working days after the deposit in the United States Mail of registered or certified mail, sent to the address designated below.
To City:
City of Tracy
Office of Director of Operations & Utilities
520 Tracy Blvd
Tracy, CA 95376
With a copy to:
City Attorney
333 Civic Center Plaza
Tracy, CA 95376
14. Miscellaneous.
To Consultant:
Alpha Analytical Laboratories, Inc.
David Pingatore, Vice President
208 Mason Street
Ukiah, CA 95482
14.1 Standard of Care. Unless otherwise specified in this Agreement, the standard of care applicable to Consultant's services will be the degree of skill and diligence ordinarily used by reputable professionals performing in the same or similar time and locality, and under the same or similar circumstances.
14.2 Amendments. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.
14.3 Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. No waiver shall be effective unless it is in writing and signed by the waiving party.
14.4 Assignment and Delegation. Consultant may not assign, transfer or delegate this Agreement or any portion of it without the City's prior written consent. Any attempt to do so will be void.
City's consent to one assignment, transfer or delegation shall not be deemed to be a consent to any subsequent assignment, transfer or delegation.
14.5 Jurisdiction and Venue. The interpretation, validity, and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Joaquin.
14.6 Compliance with the Law. Consultant shall comply with all applicable local, state, and federal laws, whether or not those laws are expressly stated in this Agreement.
14.6.1 Hazardous Materials. Consultant is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of performing their services.
14.6.2 Non-discrimination. Consultant represents and warrants that it is an equal opportunity employer, and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age.
Consultant shall also comply with all applicable anti-discrimination federal and state laws, including but not limited to, the California Fair Employment and Housing Act (Gov. Code 12990 (a-f) et seq.).
14.7 Business Entity Status. Consultant is responsible for filing all required documents and/or forms with the California Secretary of State and meeting all requirements of the Franchise Tax Board, to the extent such requirements apply to Consultant. By entering into this Agreement, Consultant represents that it is not a suspended entity and that it is in good standing. If Consultant is a
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Setvices Agreement with Alpha Analytical Laboratories, Inc. suspended corporation at the time it enters this Agreement, City may take steps to have this Agreement declared voidable.
14.8 Business License. Before the City signs this Agreement, Consultant shall obtain a City of Tracy Business License. Consultant shall maintain an active City of Tracy Business License during the term of this Agreement.
14.9 ·(successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.
14.10 Construction of Agreement. Each Party hereto has had an equivalent opportunity to participate in the drafting of this Agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting Party shall not apply hereto.
14.11. Severability. If a term of this Agreement is held invalid by a court of competent jurisdiction, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in effect.
14.12 Controlling Provisions. In the case of any conflict between the terms of this Agreement and the Exhibits hereto, and Consultant's proposal (if any), the Agreement shall control. In the case of any conflict between the Exhibits hereto and the Consultant's proposal (if any), the Exhibits shall control.
14.13 Entire Agreement. This Agreement and the attached Exhibits comprise the entire integrated understanding between the Parties concerning the services to be performed. This Agreement supersedes all prior negotiations, representations or agreements. All exhibits attached hereto are incorporated by reference herein.
14.14 Counterparts. City and Consultant agree that this Agreement may be executed in two or more counterparts, each of which shall be deemed an original.
14.15 Expenses for Enforcement. Consultant and City agree that the prevailing party's reasonable costs, attorneys' fees and expenses, including investigation fees and expert witness fees, shall be paid by the non-prevailing party in any dispute involving the terms and conditions of this Agreement.
15. Signatures. The individuals executing this Agreement on behalf of Consultant represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of Consultant.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
The Parties agree to the full performance of the terms set forth here.
City of Tracy
By: Nancy D. Young
Title: Mayor
Date: _________ _
Attest:
Adrianne Richardson, City Clerk
Approved as to form:
Bijal M. Patel, City Attorney
Exhibits:
Consultant
Alpha Analytical Laboratories, Inc., a California
Qi�al;iful,!Jd by:
�wwit-PiMUips
By: 1 :--Phillips
�i��: PefrrA11ab I s: 54 AM PDT
Federal Employer Tax ID No. ____ _
DocuSlgned by:
trhi)-..J.cr-e.
y. v""Fi""d""�""fn.,...1.g-. a-t-or_e _____ _
Title: Vice President
Date: 9/13/2023 I 9:00 AM PDT
A Scope of Work, including personnel and time of performance (See Agreement sections 1 and 2.)
B Compensation (See Agreement section 3.)
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-B18BCE27425A City of Tracy - General Services Agreement with Alpha Analytical Laboratories, Inc.
EXHIBIT A - Scope of Work
Consultant to provide wastewater testing services as requested with a not to exceed amount of $61, 180 annually. Laboratory Superintendent or his delegates will notify Consultant via email or phone when testing services are desired.
DocuSign Envelope ID: 28917C5F-CF6B-422C-AF88-818BCE27425A City of Tracy- General Services Agreement with Alpha Analytical Laboratories, Inc.
EXHIBIT B - Compensation
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
CITY OF
TRACY
GENERAL SERVICES AGREEMENT WITH
EUROFINS EATON ANALYTICAL, LLC FOR DRINKING WATER ANALYSIS AND TESTING This Gener
al Services Agreement (Agreement) is entered into between the City of Tracy, a municipal corporation (City), and Eurofins Eaton Analytical, LLC a Delaware limited liability corporation (Contractor). City and Contractor are referred to individually as “Party” and collectively as “Parties.” Recitals
A. City desi
res to retain Contractor to provide laboratory testing services (as further described in Exhibit A and herein, the “Services”); and
B. On May 30, 2023, the C
ity issued a Notice Inviting Bids (NIB) for Laboratory Analysis and Testing Services (Project). On June 28, 2023, Consultant submitted its proposal for the Services to the City. Bid proposal was received by City staff and reviewed by the Laboratory Superintendent and Assistant Director of Utilities. City received a total of five bid proposals. City has determined that Consultant possesses the skills, experience and certification required to provide the specified services.
C. After negotiations
between the City and Consultant, the Parties have reached an agreement for the performance of the Services in accordance with the terms set forth in this Agreement.
D. This Agree
ment is being executed pursuant to Tracy Municipal Code section 2.20.140 and pursuant to Resolution No. ______________, which was adopted by the City Council for the City of Tracy on_____________________.
Now theref
ore, the Parties mutually agree as follows:
1. Scope of Wo
rk. Upon request from the City, Consultant shall timely perform the Services, including those described in Exhibit “A,” which is attached here to and incorporated herein by this reference. The Services shall be performed by, or under the direct supervision of, Consultant’s Authorized Representative: Kevin Calcagno. Consultant shall not replace its Authorized Representative, nor shall Consultant replace any of the personnel listed in Exhibit “A,” nor shall Consultant use or replace any subConsultants or subconsultants, without City’s prior written consent.
The City may terminate this Agreement if Consultant makes any such change or replacement or uses any such subconsultant.
2. Time of Per
formance. Time is of the essence in the performance of Services under this Agreement and the timing requirements set forth herein or communicated from the City to Contractor shall be strictly adhered to unless otherwise modified in writing in accordance with this Agreement.
Any Services for which times for performance are not specified in this Agreement shall be started and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the Consultant. Consultant shall submit all requests for time extensions to the City in writing no later than ten days after the start of the condition which purportedly caused the delay, and not later than the date on which performance is due. The City may grant or deny such requests in its sole and absolute discretion.
2.1 Term. The term of this Agreement shall begin on the date this Agreement is last executed and end on June 30, 2025, unless terminated in accordance with Section 6.
Attachment B
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
2.1.A Option t o Extend: This Agreement may be extended for up to an additional five years, in any combination of length, by the City manager following a written determination that Contractor has satisfactorily met all the requirements of this Agreement.
3. Compensation
. City shall pay Consultant on a time and expense basis, at the billing rates set forth in Exhibit “B,” which is attached hereto and incorporated herein by this reference for the Services performed under this Agreement.
3.1 Not to Exceed Amount. Consultant’s total compensation under this Agreement shall not exceed $23,451.00 annually. Consultant’s billing rates shall cover all costs and expenses for Consultant’s performance of this Agreement. It is understood and agreed that Consultant may not receive compensation up to this amount, and Consultant’s total compensation under this Agreement will depend on the scope of the Services approved by the City. No work shall be performed by Consultant in excess of the total compensation amount provided in this section without the City’s prior written approval. Notwithstanding the foregoing provision, the payment of any funds under this Agreement shall be subject to the City of Tracy’s appropriation of funds for the Services. This Agreement shall terminate in the event that such funds are not appropriated.
3.2 Invoices. Consultant shall submit invoices, upon completion of each sample delivery group to the City that describe in detail satisfactory to the City the services performed, including times, dates, and names of persons performing the services.
3.2.1. Consultant’s failure to submit invoices in accordance with these requirements may result in the City rejecting said invoices and thereby delaying payment to Consultant.
3.3 Payment. Within 30 days after the City’s receipt of invoice, City shall make payment to the Consultant based upon the services described on the invoice and approved by the City.
3.4 The acceptance by Consultant of the final payment made under this Agreement shall constitute a release of City from all claims and liabilities for compensation to Consultant for anything completed, finished or relating to Consultant’s services. Consultant agrees that payment by City shall not constitute nor be deemed a release of the responsibility and liability of Consultant or its employees, subcontractors, agents and subconsultants for the accuracy and competency of the information provided and/or services performed hereunder, nor shall such payment be deemed to be an assumption of responsibility or liability by City for any defect or error in the Services performed by Consultant, its employees, subcontractors, agents and subconsultants.
3.5 Consultant agrees to maintain books, accounts, payroll records and other information relating to the performance of Consultant’s obligations under the Agreement, which shall adequately and correctly reflect the expenses incurred by the Consultant in the performance of Consultant’s work under the Agreement. Such books and records shall be open to inspection and audit by the City during regular business hours for three years after expiration or termination of this Agreement.
4. Indemnification
. Consultant shall, to the fullest extent permitted by law, indemnify, defend (with independent counsel approved by the City), and hold harmless the City from and against any and all liabilities, obligations, losses, damages, injunctions, suits, actions, fines, penalties, claims, demands, administrative and judicial proceedings and order, judgments, remedial action requirements, costs and expenses of every kind or nature, and all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees and court costs (“Claims”) arising directly or indirectly from or out of (including any and all related costs and expenses), relating or pertaining to or resulting from, in whole or in part, this Agreement; any act, omission, or event relating in any way to Contractor’s obligations under this Agreement; and/or Contractor’s breach of this Agreement, except to the extent such Claim is caused solely by the active negligence or willful misconduct of the City. In this Section 4, “City” means the City, its officials, officers, agents, employees and volunteers; “Contractor” means the Contractor, its employees, agents and subcontractors Notwithstanding any other provisions City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
herein to the contrary, Consultant shall not be obligated to indemnify City for any liabilities to the extent caused by City’s negligent acts or omission.
In the event there i
s a finding and/or determination that Consultant is not an independent contractor and/or is an employee of City, including but not limited to any such finding and/or determination made by the California Public Employees’ Retirement System (CalPERS), the Department of Industrial Relations (DIR), or the Internal Revenue Service (IRS), Consultant shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless the City from and against any all claims relating to or in connection with such a finding and/or determination.
The provis
ions of this section survive completion of the services or the termination of this Agreement and are not limited by the provisions of Section 5 relating to insurance.
5. Insurance. C
onsultant shall, throughout the duration of this Agreement, maintain insurance to cover Consultant, its agents, representatives, and employees in connection with the performance of services under this Agreement at the minimum levels set forth herein.
5.1 Commercial General Liability (with coverage at least as broad as ISO form CG 00 01 01 96) “per occurrence” coverage shall be maintained in an amount not less than $4,000,000 general aggregate and $2,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage.
5.2 Automobile Liability (with coverage at least as broad as ISO form CA 00 01 07 97, for “any auto”) “claims made” coverage shall be maintained in an amount not less than $1,000,000 per accident for bodily injury and property damage.
5.3 Workers’ Compensation coverage shall be maintained as required by the State of California.
5.4 Professional Liability “claims made” coverage shall be maintained to cover damages that may be the result of errors, omissions, or negligent acts of Consultant in an amount not less than $1,000,000 per claim.
5.5 Endorsements. Consultant shall obtain endorsements to the automobile and commercial general liability insurance policies with the following provisions:
5.5.1 The City (including its elected officials, officers, employees, agents, and volunteers) shall be named as an additional “insured.”
5.5.2 For any claims related to this Agreement, Consultant’s coverage shall be primary insurance with respect to the City. Any insurance maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it.
5.6 Notice of Cancellation. Consultant shall notify the City if the policy is canceled before the expiration date. For the purpose of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. Consultant shall immediately obtain a replacement policy.
5.7 Authorized Insurers. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.
5.8 Insurance Certificate. Consultant shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance and endorsements, in a form satisfactory to the City, before the City signs this Agreement and in any event, within five days of such request.
5.9 Substitute Certificates. Consultant shall provide a substitute certificate of insurance no later than 30 days prior to the policy expiration date of any insurance policy required by this Agreement.
5.10 Consultant’s Obligation. Maintenance of insurance by the Consultant as specified in this Agreement shall in no way be interpreted as relieving the Consultant of any responsibility whatsoever (including indemnity obligations under this Agreement), and the Consultant may carry, at its City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
own expense, such additional insurance as it deems necessary. Failure to provide or maintain any insurance policies or endorsements required herein may result in the City terminating this Agreement.
6. Terminat
ion. The City may terminate this Agreement in its sole and absolute discretion by giving ten (10) days’ written notice to Consultant. Within five (5) days of such a termination, Consultant shall give the City all original documents relating to the Services in Consultant’s possession or control, including, without limitation, preliminary drafts and supporting documents, and any other documents prepared by the Consultant pursuant to this Agreement. The City shall pay Consultant for all services satisfactorily performed in accordance with this Agreement, through the date of termination. Contractor may terminate this Agreement by giving the City thirty (30) days’ written notice.
7. Dispute Re
solution. If any dispute arises between the City and Consultant that cannot be settled after engaging in good faith negotiations, City and Consultant agree to resolve the dispute in accordance with the following:
7.1 Each Party shall designate a senior management or executive level representative to negotiate the dispute;
7.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority.
7.3 If the issue remains unresolved after fifteen (15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by negotiations between legal counsel. If the aforementioned process fails, the Parties shall resolve any remaining disputes through mediation to expedite the resolution of the dispute.
7.4 The mediation process shall provide for the selection within fifteen (15) days by both Parties of a disinterested third person to serve as the mediator, shall be commenced within thirty (30) days of selection of a mediator, and shall be concluded within fifteen (15) days from the commencement of the mediation.
7.5 The Parties shall equally bear the costs of any third-party mediator in any alternative dispute resolution process.
7.6 The dispute resolution process is a material condition to this Agreement and must be exhausted prior to either Party initiating legal action. This dispute resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code §§ 900 et seq.
8 Labor Code Com
pliance. Consultant is aware of the requirements of Chapter 1 of Part 7 of Division 2 of the California Labor Code and applicable regulations which require the payment of prevailing wage rates (§1771, §1774, and §1775); employment of apprentices (§1777.5), certified payroll records (§1776), hours of labor (§1813 and §1815), debarment of Consultants and subConsultants (§1777.1) and the performance of other requirements on “public works” and “maintenance” projects. The services being performed under this Agreement are part of a “public works” or “maintenance” project, as defined in the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws.
8.1 Rates. These prevailing wage rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. Each Consultant and Subconsultants must pay no less than the specified rates to all workers employed to perform the services described herein. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half. Consultant assumes all responsibility for such payments and shall defend, indemnify and hold the City harmless from any and all claims made by the State of California, the Department of Industrial Relations, any subconsultant, any worker, or any other third party.
8.2 Registration with DIR. Consultant warrants that it is registered with the Department of Industrial Relations and qualified to perform the services consistent with Labor Code section 1725.5.
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
8.3 Monitoring. This Agreement will be subject to compliance monitoring and enforcement by the DIR, under Labor Code section 1771.4.
9. Ownership
of Work. All original documents prepared by Consultant for this Agreement, including, but not limited to, lab results, whether complete or in progress, are the property of the City, and shall be given to the City at the completion of Consultant’s Services, upon termination of this Agreement, or upon demand from the City. No such documents shall be revealed or made available by Consultant to any third party without the City’s prior written consent. Ownership of any analytical method, QA/QC protocols, know how, software programs or equipment developed by Contractor for performance of the Services will be retained by Contractor.
10. Independent C
onsultant Status. Consultant is an independent Consultant and is solely responsible for the acts of its employees or agents, including any negligent acts or omissions.
Consultant is not City’s employee and Consultant shall have no authority, express or implied, to act on behalf of the City as an agent, or to bind the City to any obligation, unless the City provides prior written authorization. Consultant is free to work for other entities while under contract with the City.
Consultant, and its agents or employees, are not entitled to City benefits. . Consultant shall be solely responsible for, and shall save the City harmless from, all matters relating to the payment of Consultant’s employees, agents, subcontractors and subconsultants, including compliance with social security requirements, federal and State income tax withholding and all other regulations governing employer-employee relations.
10.1 Non-Exclusive General Services Agreement. The City reserves the right to contract with other firms and/or consultants during the term of this Agreement to provide the City the same or similar services that Consultant is providing to the City under this Agreement. Nothing contained in this Agreement guarantees Consultant a certain amount of work, and the City may, in its sole and absolute discretion, allocate and/or delegate work to Consultant so as to satisfy the City’s needs.
11. Conflict
s of Interest. Consultant (including its employees, agents, and subConsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement.
If Consultant maintains or acquires such a conflicting interest, the City may terminate any contract (including this Agreement) involving Consultant’s conflicting interest.
12. Rebates, K
ickbacks, or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates, kickbacks, or other unlawful consideration either promised or paid to any City official or employee. For any breach of this warranty, City shall have the right, in its sole discretion, to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price the value of the rebate, kickback, or other unlawful consideration; or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration.
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
13. Notices. All notices, demands, or other communications which this Agreement contemplates or authorizes shall be in writing and shall be personally delivered or mailed to the other party to the addresses listed below. Communications shall be deemed to have been given and received on the first to occur of: (1) actual receipt at the address designated below, or (2) three working days after the deposit in the United States Mail of registered or certified mail, sent to the address designated below.
To City: To C
onsultant:
City of Tr
acy Eurofins Eaton Analytical, LLC
Office of Director of Operations & Utilities Kevin Calcagno 520 Tracy Blvd 941 Corporate Center Drive
Tracy, CA 95376 Pomona, CA 91768
With a copy
to:
City Attorney
333 Civic Center Plaza
Tracy, CA 95376
14. Miscellaneous.
14.1 Standard of
Care. Unless otherwise specified in this Agreement, the standard of care applicable to Consultant’s services will be the degree of skill and diligence ordinarily used by reputable professionals performing in the same or similar time and locality, and under the same or similar circumstances.
14.2 Amendments. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.
14.3 Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. No waiver shall be effective unless it is in writing and signed by the waiving party.
14.4 Assignment and Delegation. Consultant may not assign, transfer or delegate this Agreement or any portion of it without the City’s prior written consent. Any attempt to do so will be void.
City’s consent to one assignment, transfer or delegation shall not be deemed to be a consent to any subsequent assignment, transfer or delegation.
14.5 Jurisdiction and Venue. The interpretation, validity, and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Joaquin.
14.6 Compliance with the Law. Consultant shall comply with all applicable local, state, and federal laws, whether or not those laws are expressly stated in this Agreement.
14.6.1 Hazardous Materials. Consultant is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of performing their services.
14.6.2 Non-discrimination. Consultant represents and warrants that it is an equal opportunity employer, and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age.
Consultant shall also comply with all applicable anti-discrimination federal and state laws, including but not limited to, the California Fair Employment and Housing Act (Gov. Code 12990 (a-f) et seq.).
14.7 Business Entity Status. Consultant is responsible for filing all required documents and/or forms with the California Secretary of State and meeting all requirements of the Franchise Tax Board, to the extent such requirements apply to Consultant. By entering into this Agreement, Consultant represents that it is not a suspended entity and that it is in good standing. If Consultant is a City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
suspended corporation at the time it enters this Agreement, City may take steps to have this Agreement declared voidable.
14.8 Business License. Before the City signs this Agreement, Consultant shall obtain a City of Tracy Business License. Consultant shall maintain an active City of Tracy Business License during the term of this Agreement.
14.9 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.
14.10 Construction of Agreement. Each Party hereto has had an equivalent opportunity to participate in the drafting of this Agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting Party shall not apply hereto.
14.11. Severability. If a term of this Agreement is held invalid by a court of competent jurisdiction, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in effect.
14.12 Controlling Provisions. In the case of any conflict between the terms of this Agreement and the Exhibits hereto, and Consultant’s proposal (if any), the Agreement shall control. In the case of any conflict between the Exhibits hereto and the Consultant’s proposal (if any), the Exhibits shall control.
14.13 Entire Agreement. This Agreement and the attached Exhibits comprise the entire integrated understanding between the Parties concerning the services to be performed. This Agreement supersedes all prior negotiations, representations or agreements. All exhibits attached hereto are incorporated by reference herein.
14.14 Counterparts. City and Consultant agree that this Agreement may be executed in two or more counterparts, each of which shall be deemed an original.
14.15 Expenses for Enforcement. Consultant and City agree that the prevailing party’s reasonable costs, attorneys’ fees and expenses, including investigation fees and expert witness fees, shall be paid by the non-prevailing party in any dispute involving the terms and conditions of this Agreement.
15. Limitation of
Liability. Notwithstanding anything to the contrary stated elsewhere in this Agreement, Contractor’s maximum liability under this Agreement or any other attachments hereto whether based in contract, tort, warranty, negligence or otherwise shall not exceed amounts recoverable under the scope and limits of the insurance required under this Agreement, up to a maximum of $1,000,000; provided, however, such limitation of liability shall not apply to liability occasioned by Contractor’s gross negligence, willful or intentional misconduct, or fraud; provided, further, that such limitation of liability is exclusive of and does not apply to attorneys’ fees the City may be entitled to recover under Section 14.15 above. Where there is negligence of the City, Contractor’s duty of indemnification and defense cost shall be in proportion to its allocable share of such joint negligence or misconduct. Consultant and City mutually waive the right to seek any special, indirect or consequential damages for claims, disputes, or other matters in question, arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement or use of reports prepared by Contractor.
16. Signatures
. The individuals executing this Agreement on behalf of Consultant represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of Consultant.
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
[SIGNATURES ON FOLLOWING PAGE]
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
The Parties agr
ee to the full performance of the terms set forth here.
City of Tracy
_____________________________
By:
Nancy D. Young
Title: Mayor
Date: _______________________
Attest:
________________________________
Adri
anne Richardson, City Clerk
Approved as to for
m:
________________________________
Bij
al M. Patel, City Attorney
Consultant
Eurofins Eaton Analytical, LLC a Delaware limited
liability corporation
________________________________
By: ________________________
Ti
tle: _______________________
Date: _______________________
Federal Empl
oyer Tax ID No. ___________
Exhibits
:
A Scope of Work, including personnel and time of performance (See Agreement sections 1 and 2.)
B Compensation (See Agreement section 3.)
President
2/21/2024
Camila Gadotti
46-0565341
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
EXHIBIT A - Scope of Work
Consultant t
o provide drinking water testing services as requested by the City, with a not to exceed amount of $23,451 annually. Laboratory Superintendent or his delegates will notify Consultant via email or phone when testing services are desired.
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
EXHIBIT B - Compensation
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
City of Tracy – General Services Agreement with Eurofins Eaton Analytical, LLC
Attachment C
APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTORN
EY’S OFFICE
TRACY CITY COUNCI
L
RESOLUTION NO. 2024 - ____
(1) FINDING, PURSUANT TO TRACY MUNICIPAL CODE SECTION
2.20.180(b)(4) THAT STRICT COMPLIANCE WITH CITY CONTRACT
PROCEDURES IS NOT IN THE BEST INTEREST OF THE CITY FOR A
GENERAL SERVICES AGREEMENT WITH ALPHA ANALYTICAL
LABORATORIES, INC.;
(2) APPROVING A GENERAL SERVICES AGREEMENT WITH ALPHA
ANALYTICAL LABORATORIES, INC. FOR AN INITIAL FIFTEEN (15)
MONTH TERM, WITH AN ADMINISTRATIVE OPTION TO EXTEND UP TO AN ADDITIONAL FIVE (5) YEARS, IN ANY COMBINATION OF LENGTH, FOR AN ANNUAL NOT-TO-EX CEED AMOUNT OF $60,180 PER FISCAL
YEAR TO CONDUCT LABORATORY ANALYSIS AND TESTING SERVICES FOR THE UTILITIES DIVISION LABORATORY.
WHEREAS, the City of
Tracy Wastewater Treatment Plant must conduct testing and analysis of its wastewater (influent and effluent) to comply with Federal and State Standards and permitting for water quality; and
WHEREAS, the City
must provide the analytical testing results of this wastewater (influent and effluent) at certain set intervals and under certain conditions to the State Water Resources Control Board for water quality standards (Services); and WHEREAS, the City
is not sufficiently equipped with staff and resources required to conduct the requiring testing without assistance from independent contractors; and WHEREAS, Tracy
Municipal Code, Section 2.20.140 provides a qualifications-based bidding selection process for “professional services agreements” including evaluation of which proposer best meets the City's needs by demonstrating the competence and professional qualifications necessary for the satisfactory performance of the required services, and evaluation of which proposals best fit the criteria set forth in the City’s request for proposals; and WHEREAS, the Serv
ices required by the City do not fall squarely into the definition of “professional services” provided in Tracy Municipal Code Section 2.20.030(c) and thus may fall into the definition of “general services” provided Tracy Municipal Code Section 2.20.030(f); and WHEREAS, barring an
exception, Tracy Municipal Code Section 2.20.180(a)(5) requires the City award a contract for “general services” to the “lowest responsible bidder,” irrespective of qualifications necessary for the satisfactory performance of the required services; and Resolution 2024-
WHEREAS, Tracy Municipal Code Section 2.20.180(b)(4) authorizes the City Council to approve an exception to the contracting procedure for general services agreements where the Council finds compliance is not in the best interest of the City for the subject services; and WHEREAS, on M
ay 30, 2023, staff followed established procedures, in accordance with those required for professional services agreements under Tracy Municipal Code Section
2.20.140, and conducted a one-time Notice Inviting Bids (NIB) to solicit experienced and qualified vendors to provide competitive rates to conduct the neces sary testing and analysis; and
WHEREAS, bidding contractors were required to be California Environmental Laboratory Accreditation Program (CA ELAP) certified, and
WHEREAS, on June 29, 2023, staff completed an extensive review of the four (4) proposals received based on the bidding contractor’s qualifi cations, competence, price for the services, overall responsibility and content of the proposal; and WHEREAS, the instant Services required by the City merit an exception to the contracting procedure under Tracy Municipal Code Section 2.20.180(b) (4) because only certain professional consultants possess the unique qualifications and project-specific past experience with the City required to perform the Services competently and efficiently, and because City staff nonetheless pr
oceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140; and WHEREAS, after careful review and analysis, Alpha Analytical Laboratories, Inc. was selected bec
ause it best meets the City's needs by demonstrating the competence and professional qualifications necessary for the satisfactory performance of the required Services, and best fit the criteria set forth in the City’s request for proposals, pursuant to Tracy Municipal Code, Section 2.20.140; and
WHEREAS, the City seeks to enter into a General Services Agreement with Alpha Analytical Laboratories Inc., to perform the necessary testing and analysis and provide the deliverables for submittal to the State Water Resources Control Board for compliance; and WHEREAS, this action item falls
within a categorical exemption under CEQA Guidelines
§ 15301 for existing structures; and
NOW, THERE
FORE, be it resolved as follows:
RESOLVED:
That the above recitals are true and correct; and be it further RESOLVED:
That the City Council of the City of Tracy hereby finds that strict compliance with the contracting procedure for “general services” under Tracy Municipal Code Section 2.20.180(b)(4) is not in the best interest of the City because only Alpha Analytical Laboratories, Inc. possesses the unique qualifications and project-specific past experience with the City required to perform the Services competently and efficiently, and because City staff nonetheless proceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140; and be it further RESOLVED:
That the City Council of the City of Tracy her eby approves the General Services Agreement with Alpha Analytical Laboratories, Inc. for an initial 15-month term, Resolution 2024-
commencing March 19, 2024, and expiring on June 30, 2025, with an administrative option to extend up to an additional five (5) years, in any combination of length, for an annual not-to-exceed amount of $60,180 per fiscal year to conduct Laboratory Analysis and Testing Services for the Utilities Division Laboratory; and be it further
RESOLVED: After review and approval by the City Attorney, the M ayor may execute the Amended GSA, and be it further
RESOLVED: That the City Council of the City of Tracy hereby authorizes the City Manager to execute one or more extensions of the term of the General Services Agreement with Alpha Analytical Laboratories, Inc., for up to a maximum five (5) years after expiration of the initial fifteen (15) month term expiring June 30, 2025, in any combination of duration, upon the City Manager’s written determination that Alpha Analytical Laboratories, Inc. has satisfactorily met all the requirements of its agreement with the City, and be it further RESOLVED: That the City Council authorizes the execution of the General Services Agreement with Alpha Analytical Laboratories, Inc. upon review and approval by the City Attorney’s Office, and authorizes any and all actions that may be necessary or advisable to effectuate the purposes of this Resolution, and be it further RESOLVED: The City C ouncil f inds thi s a ction is e xempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15301 for existing facilities. * * * * * * * * * * * * * *
The foregoing Resolution 2024-_____ was adopted by the Tracy City Council on March 19, 2024
by the following vote:
AYES: COUNCIL M
EMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTENTION: COUNCIL MEMBERS:
___________________________________________
NANCY D. Y
OUNG
Mayor of the City of Tracy, California
ATTEST:
ADRIANNE RICHARDSON
City Clerk and Clerk of the Council of the
City of Tracy, California
ATTACHMENTS:
(1) General Serv
ices Agreement - ALPHA ANALYTICAL LABORATORIES, INC.
APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTO
RNEY’S OFFICE
TRACY CITY
COUNCIL
RESOLUTION NO. 2024 - ____
(1) FINDING, PURSUANT TO TRACY MUNICIPAL CODE SECTION
2.20.180(b)(4) THAT STRICT COMPLIANCE WITH CITY CONTRACT
PROCEDURES IS NOT IN THE BEST INTEREST OF THE CITY FOR A
GENERAL SERVICES AGREEMENT WITH EUROFINS EATON
ANALYTICAL, LLC.;
(2) APPROVING A GENERAL SERVICES AGREEMENT WITH EUROFINS EATON ANALYTICAL, LLC FOR AN INITIAL FIFTEEN (15) MONTH
TERM, WITH AN ADMINISTRATIVE OPTION TO EXTEND UP TO AN
ADDITIONAL FIVE (5) YEARS, IN ANY COMBINATION OF LENGTH, FOR AN ANNUAL NOT-TO-EXCEED AMOUNT OF $23,451 PER FISCAL YEAR
TO CONDUCT LABORATORY ANALYSIS AND TESTING SERVICES FOR THE UTILITIES DIVISION LABORATORY.
WHEREAS, the C
ity of Tracy Water Treatment Plant must conduct testing and analysis of its public water system to comply with Federal and State Standards and permitting for water quality; and
WHEREAS, the C
ity must provide the analytical testing results of this water at certain set intervals and under certain conditions to the State Water Resources Control Board Division of Drinking Water for water quality standards (Services); and WHEREAS, the C
ity is not sufficiently equipped with staff and resources required to conduct the requiring testing without assistance from independent contractors; and WHEREAS, Tr
acy Municipal Code, Section 2.20.140 provides a qualifications-based bidding selection process for “professional services agreements” including evaluation of which proposer best meets the City's needs by demonstrating the competence and professional qualifications necessary for the satisfactory performance of the required services, and evaluation of which proposals best fit the criteria set forth in the City’s request for proposals; and WHEREAS, the S
ervices required by the City do not fall squarely into the definition of “professional services” provided in Tracy Municipal Code Section 2.20.030(c) and thus may fall into the definition of “general services” provided Tracy Municipal Code Section 2.20.030(f); and WHEREAS, bar
ring an exception, Tracy Municipal Code Section 2.20.180(a)(5) requires the City award a contract for “general services” to the “lowest responsible bidder,” irrespective of qualifications necessary for the satisfactory performance of the required services; and Resolution 2024-
WHEREAS, Tracy Municipal Code Section 2.20.180(b)(4) authorizes the City Council to approve an exception to the contracting procedure for general services agreements where the Council finds compliance is not in the best interest of the City for the subject services; and WHEREAS, on M
ay 30, 2023, staff followed established procedures, in accordance with Tr
acy Municipal Code, Section 2.20.140, and conducted a one-time Notice Inviting Bids (NIB) to solicit experienced and qualified vendors to provide competitive rates to conduct the necessary testing and analysis; and
WHEREAS, bidding contractors were required to be California Environmental Laboratory Accreditation Program (CA ELAP) certified, and
WHEREAS, on June 29, 2023, staff completed an extensive review of the four (4) proposals received based on the bidding contractor’s qualifications, competence, price for the services, overall responsibility and content of the proposal; and WHEREAS, the instant Services required by the City merit an exc eption to the contracting procedure under Tracy Municipal Code Section 2.20.180(b)(4) because only certain professional consultants possess the unique qualifications and project-specific past experience with the City required to perform the Services competently and efficiently, and because City staff nonetheless proceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140; and WHEREAS, after careful review and analysis, Eurofins Eaton Analytical, LLC was selected because it best meets the City's needs by demonstrating the competence and professional qualifications
necessary for the satisfactory performance of the required Services, and best fit the criteria set forth in the City’s request for proposals, pursuant to Tracy Municipal
Code, Section 2.20.140; and
WHEREAS, the City seeks to enter into a General Services Agreement with Eurofins Eaton Laboratories, LLC to perform the necessary testing and analysis and provide the deliverables for submittal to the State Water Resources Control Board for compliance; and
NOW, THERE
FORE, be it resolved as follows:
RESOLVED:
That the above recitals are true and correct; and be it RESOLVED: That the City Council of the City of Tracy hereby finds that strict compliance with the contracting procedure for “general services” under Tracy Municipal Code Section 2.20.180(b)(4) is not in the best interest of the City because only Alpha Analytical Laboratories, Inc. possesses the unique qualifications and project-specific past experience with the City required to perform the Services competently and efficiently, and because City staff nonetheless proceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140; and be it further FURTHER RESOLVED: That the City Council of the City of Tracy hereb y approves the General Services
Agreement with Eurofins
Eaton Analytical, LLC for an initial 15-month term,
commencing March 19, 2024, and expiring on June 30, 2025, with an administrative option to extend up to an additional five (5) years, in any combination of length, for an annual not-to-exceed amount of $ 23,451 per fiscal year to conduct Laboratory Analysis and Testing Services for the Utilities Division Laboratory; be it further
Resolution 2024-
RESOLVED: That the City Council of the City of Tracy hereby authorizes the City Manager to execute one or more extensions of the term of the General Services Agreement with Eurofins Eaton Analytical, LLC., for up to a maximum five (5) years after expiration of the initial fifteen (15)
month term expiring June 30, 2025, in any combination of duration, upon the City Manager’s written determination that Eurofins Eaton Analytical, LLC has satisfactorily met all the requirements of its agreement with the City, and be it further RESOLVED:
That the City Council authorizes the execution of the General Services Agreement with Eurofins Eaton Analytical, LLC upon review and approval by the City Attorney’s Office, and authorizes any and all actions that may be necessary or advisable to effectuate the purposes of this Resolution, and be it further R
ESOLVED: The City C ouncil f inds thi s a ction is e xempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15301 for existing facilities. * * * * * * * * * * * * * *
The foregoing Resolution 2024-_____ was adopted by the Tracy City Council on March 19, 2024, by
the following vote:
AYES: COUNCIL MEM
BERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTENTION: COUNCIL MEMBERS:
___________________________________________
NANCY D. YO
UNG
Mayor of the City of Tracy, California
ATTEST:
ADRIANNE RICHARDSON
City Clerk and Clerk of the Council of the
City of Tracy, California
ATTACHMENTS:
(1) General Services Agreement - Eurofins Eaton Analytical, LLC
APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTOR
NEY’S OFFICE
TRACY CITY COUNCI
L
RESOLUTION NO. _______________
(1) RESCINDING RESOLUTION #2023-230 APPROVING A GENERAL SERVICES AGREEMENT WITH JIM BRISCO ENTERPRISES, INC.;
(2) FINDING, PURSUANT TO TRACY MUNICIPAL CODE SECTION
2.20.180(b)(4) THAT STRICT COMPLIANCE WITH CITY CONTRACT
PROCEDURES IS NOT IN THE BEST INTEREST OF THE CITY FOR A
GENERAL SERVICES AGREEMENT WITH JIM BRISCO
ENTERPRISES INC.; AND
(3) APPROVING A GENERAL SERVICES AGREEMENT WITH JIM BRISCO ENTERPRISES, INC., FOR THE LOADING, HAULING, AND DISPOSAL OF
WASTEWATER TREATMENT BIOSOLIDS FOR A ONE-YEAR TERM
BEGINNING ON DECEMBER 5, 2023, WITH A TOTAL NOT TO EXCEED AMOUNT OF $176,700;
WHEREAS, The C
ity needs to re-authorize a previously approved contract for general services in order to achieve satisfactory compliance with procurement rules and procedures; and WHEREAS, The C
ity needs to engage services of qualified haulers to load, haul and dispose of wastewater treatment biosolids out of San Joaquin County (Services); and WHEREAS, Trac
y Municipal Code, Section 2.20.140 provides a qualifications-based bidding selection process for “professional services agreements” including evaluation of which proposer best meets the City's needs by demonstrating the competence and professional qualifications necessary for the satisfactory performance of the required services, and evaluation of which proposals best fit the criteria set forth in the City’s request for proposals; and WHEREAS, the Ser
vices required by the City do not fall squarely into the definition of “professional services” provided in Tracy Municipal Code Section 2.20.030(c) and thus may fall into the definition of “general services” provided Tracy Municipal Code Section 2.20.030(f); and WHEREAS, barr
ing an exception, Tracy Municipal Code Section 2.20.180(a)(5) requires the City award a contract for “general services” to the “lowest responsible bidder,” irrespective of qualifications necessary for the satisfactory performance of the required services; and WHEREAS, Trac
y Municipal Code Section 2.20.180(b)(4) authorizes the City Council to approve an exception to the contracting procedure for general services agreements where the Council finds compliance is not in the best interest of the City for the subject services; and WHEREAS, On M
ay 30, 2023, staff followed established procedures, in accordance with Tracy Municipal Code, Section 2.20.140, and issued a Notice Inviting Bids (NIB) for Professional Services Related to Wastewater Treatment; and
Resolution 2024-
WHEREAS, the City received six (6) proposals, one of which was from Jim Brisco Enterprises, Inc
. (Consultant); and
WHEREAS, Consultant has the e xpertise and experience requir ed to provide the necessary and desired services; and
WHEREAS, staff recommended that the City Council authorize the execution of a General Services Agreement with Consultant (Original GSA) to provide the services; and WHEREAS, the City Council authorized Resolution #2023-2 30 on December 5, 2023, approving the Original GSA with the Consultant, however, the date on the approved agreement was incorrectly recorded as September 1, 2023; and
WHEREAS, after the Original GSA was approved by Resolution #2023-230 on December 5, 2023, the incorrect date was discovered; and
WHEREAS, staff has revised the Or iginal GSA to reflect the correct commencement date of December 5, 2023, and the Consultant agreed to this amendment (Amended GSA); and WHEREAS, the Amended GSA will have a term of one (1) year and automatically expire thereafter on December 4, 2024; and
WHEREAS, the Amended GSA has a total not-to-exceed amount of $176,700.00; and WHEREAS, The funding for services to provide these professional and technical services will be funded by the ongoing operations and maintenance budgets for Wastewater; and WHEREAS, the instant Services required by the City merit an exception to the contracting procedure under Tracy Municipal Code Sec tion 2.20.180(b)(4) because only certain professional consultants possess the unique qualifications and project-specific past experience with the C
ity required to perform the Services competently and efficiently, and because City staff nonetheless proceeded with parallel contracting procedures required for professional services agreements as
provided in Trac y Municipal Code 2.20.140; and
WHEREAS, after careful review and analysis, Jim Brisco Enterprises, Inc. was selected because it best meets the City's needs by demonstrating the competenc e and professional qualifications necessary for the satisfactory performance of the required Services, and best fit the criteria set forth in the City’s request for proposals, pursuant to Tracy Municipal Code, Section 2.20.140; and
WHEREAS, this action item fal ls within a categorical exemption under CEQA Guidelines § 15301 for existing structures; and
NOW, THE
REFORE, be it resolved as follows:
RESOLVED
: That the above recitals are true and correct; and be it further
RESOLVED
: That the City Council of the City of Tracy hereby finds that strict compliance with the contracting procedure for “general services” under Tracy Municipal Code Section 2.20.180(b)(4) is not in the best interest of the City because only Jim Brisco Enterprises, Inc. possesses the unique qualifications and project-specific past experience with the City required to perform the Services competently and efficiently, and because City staff nonetheless Resolution 2024-
proceeded with parallel contracting procedures required for professional services agreements as provided in Tracy Municipal Code 2.20.140; and be it further RESOLVED: That the City Council hereby rescinds Resolution #2023-230 executed on December
5, 2023 approving the Original GSA with the Consultant; and be it further RESOL
VED: That the City Council of the City of Tracy, hereby approves the Amended GSA with Jim Brisco Enterprises, Inc. attached hereto as Attachment 1, providing total not-to- exceed amount of $176,700.00 over a one-year term, commencing December 5, 2023 and expiring December 4, 2024; and be it further
RESOLVED: After review and approval by the City Attorney, the Mayor may execute the Amended GSA, and be it further
RESOLVED: The City C ouncil f inds thi s a ction is e xem pt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15301 for existing facilities.
The foregoing Resolution 2024-_____ was adopted by the Tracy City Council on March 19, 2024, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTENTION: COUNCIL MEMBERS:
___________________________________________
NANCY D. YOUNG
Mayor of the City of Tracy, California
ATTEST:
ADRIANNE RICHARDSON
City Clerk and Clerk of the Council of the
City of Tracy, California
ATTACHMENTS:
(1) Amended GSA - Jim Brisco Enterprises, Inc. (December 5, 2023 commencement date) * * * * * * * * * * * * * * *
March 19, 2024
Agenda Item 3.A
RECOMMENDATION
Deliberate Proposed Amendments to the Council Policy Establishing a Selection Process for Appointments to City Advisory Bodies (Appointment Policy) and, upon Conclusion of such Deliberations, adopt one of the following Resolutions:
1) Resolution amending the Appointment Policy to allow the full City Council to interview candidates and make final recommendations of specific candidates for the Mayor to consider as proposed appointees, subject to final approval of the City Council; OR
2) Resolution amending the Appointment Policy to allow the full City Council to interview candidates and create an appointment list from which the Mayor m ay select proposed appointees, subject to final approval of the City Council
EXECUTIVE SUMMARY
On March 5, 2024, the City Council discussed options to align the Council Policy Establishing a Selection Process for Appointments to City Advisory Bodies (Appointment Policy) with Government Code Section 40605. The most recent version of the Appointment Policy was adopted on December 21, 2021, through Resolution 2021- 200 (see Attachment A ). Under Government Code Section 40605, the elected mayor of a general law city solely has the authority to appoint, subject to council approval, to council committees, sub-committees. and commissions, as well as any regional bodies to which the council sends a delegate. The selection process contained in the Council’s Appointment Policy does not fully comply with Government Code Section 40605 as it states that the City Council appoints to a sub- committee to interview candidates and appoints, based on the recommendations of the sub -committee. No explicit authority of the Mayor to propose appointments is noted.
After discussion, the City Council directed staff to return with a proposed amendment to the Appointment Policy that would allow the full City Council to interview candidates, in open session at a regular or special meeting. The City Council had not reached consensus on what the next steps would be after the Council interviews had been completed and asked staff to return with the following two options for the City Council’s further deliberation and final selection:
Upon completing the interviews, the City Council would either:
(a) make final recommendations of specific candidates for the Mayor to consider as proposed appointees; OR
(b) create an appointment list from which the Mayor may select proposed appointees.
Agenda Item 3.A
March 19, 2024
BACKGROUND AND LEGISLATIVE HISTORY
The City Council’s current selection process for appointment to Council boards, commissions, or committees is set forth in the Appointment Policy approved through Resolution 2021-200. The selection process is initiated through the preparation of the appointment list by the City Clerk on or before December 31 of each year. The list contains the list of appointees and terms for each board, commission and committee whose members serve at the pleasure of the City Council.
When a vacancy occurs, a special notice is posted within twenty (20) days of the vacancy.
Specific terms apply to vacancies with less than six months remaining and when filled by an emergency appointment. The Appointment Policy also restricts appointment of an individual already serving on a City of Tracy board, committee, or commission from serving on an additional City of Tracy board, committee, or commission concurrently with the exception of the Board of Appeals which states in TMC 9.44.030 a board member may be a member of another City board or commission and need not be a resident. In addition, individuals selected to a City of Tracy board, committee, or commission must meet residency requirements contained in the policy.
In Section D of the Appointment Policy, the City Council, by majority vote, appoints two councilmembers to serve on a sub -committee to review applications, interview applicants, and make recommendations to appoint a candidate. The sub-committee recommendations are made to the full City Council for consideration and approval, by majority vote. No explicit author ity of the Mayor to propose appointments is noted.
The current Appointment Policy replaced a similar version of a previously adopted appointment process.
ANALYSIS
As noted above, the Appointment Policy has been a longstanding policy of the City Council. At the request of the Mayor, the City Attorney recently analyzed the Appointment Policy in relation to whether it fully complied with Government Code 40605. The analysis indicated that Section D of the Appointment Policy did not fully comply with the State law. The California Attorney General has promulgated two opinions directly analyzing the scope of the appointment powers of a mayor of a general law city under this State Law. In Opinion 97-1103, the Attorney General opined that, but for certain exceptions, the appointment power of an elected mayor of a general law city extends to appointments to city and regional boards, commissions, and committees as well as subcommittees of a city council. However, the Attorney General clarified that “Section 40605 does not grant a mayor unfettered discretion in making commission appointments; instead, it requires the mayor to submit each of his or her designated appointees to the city council for its approval”.
Notwithstanding the support for the Appointment Policy by prior City Councils, the Appointment Policy is not fully compliant with State Law and needs to be revised to become legally compliant. In accordance with Government Code Section 40605, “[a directly-elected] mayor, with the approval of the city council, shall make all appointments to boards, commissions, and committees unless otherwise specifically provided by statute.” Under the current Appointment Policy, the Mayor has a role equivalent to that of all other City Council members. However, Government Code Section 40605 provides the Mayor with the authority to appoint. This appointment is subject to a majority vote approval of the City Council.
Agenda Item 3.A
March 19, 2024
In preparation for the March 5th discussion regarding the Appointment Policy, staff sent an informal survey on Listserve, requesting information about the appointment procedures of other cities. Thirty seven (37) cities responded to this informal request. Staff shared a high-level summary of this information with City Council. Based on feedback received from City Council on March 5th, staff conducted more in-depth research to gather and analyze the actual policies and procedures of cities. Staffs target was to collect information from approximately 50 general law cities with appointment policies available online, and actually gathered and analyzed information from 59 general law cities. To make the analysis directly relevant to the subject matter, staff further narrowed the analysis to general law cities with elected mayors, as Government Code 40605 applies to only such cities. This analysis is summarized in Attachment B.
The res
ults demonstrate that similar cities are implementing Government Code 40605 in a variety of ways. Review of the policies revealed two cities have the full City Council conduct interviews with all candidates and make a recommendation to the Mayor. In four cities, the full City Council interviews and appoints all candidates and all council members have equal voting powers. Seven cities use a subcommittee to conduct the interviews. In seven cities, the Mayor solely interviews and makes the appointment, subject to City Council approval. The remaining agencies use alternative processes to fill advisory body vacancies.
Furt
her, after discussion at its March 5, 2024 meeting, the City Council directed staff to return with proposed amendments to the Appointment Policy allowing the full City Council to interview candidates, in open session at a regular or special meeting . The City Council did not reach consensus on what should be the next steps after the interviews had been completed and asked staff to allow the following two options for the City Council’s further deliberation and final selection:
Upon c
ompleting the interviews, the City Council would either:
(a) m
ake final recommendations of specific candidates for the Mayor to consider as proposed appointees; OR
(b) create an initial appointment list of candidates from which the Mayor may propose appointees.
The draft amendments to the Appointment Policy allowing the entire City Council to interview candidates, in an open session at a regular or special meeting, and make recommendations of specific candidates for the Mayor to appoint (subject to final approval of the City Council) is attached as Attachment C. The draft amendments to the Appointment Policy allowing the full City Council to interview candidates, in an open session at a regular or special meeting, and create an appointment list from which the Mayor may appoin t (subject to final approval of the City Cou ncil) is attached as Attachment D. It should be noted that the amended policy further states, “While the mayor shall endeavor to propose appointees that are recommended by the Council, the mayor may also propose alternate appointees pursuant to mayoral authority under Government Code 40605”.
To further validate the legality of the proposed amendments, the City At torney requested a public legal memorandum from the law firm of Best, Best & Krieger, LLP (BBK). BBK represents cities, count ies and special districts acr oss the State and serves as outside City Attorney and Assistant City Attorney to many cities. BBK concluded that the above noted options being considered by the City Council are compliant with Government Code Section 40605, as has been further interpreted by the Attorney General. BBK’s legal memorandum is attached as Attachment E .
Agenda Item 3.A
March 19, 2024
FISCAL IMPACT
There is no fiscal impact as a result of this agenda item.
STRATEGIC PL
AN
This agenda item supports the City’s Governance Strategy, and specifically implements the following goal:
Governance
Goal
1: Model Good Governance, Teamwork, and Transparency
ACTION REQUESTED OF T
HE CITY COUNCIL
Deliberate Proposed Amendments to the Council Policy Establishing a Selection Process for Appointments to
City Advisory Bodies (Appointment Policy) and, upon Conclusion of such Deliberations, adopt one of the following Resolutions:
1) Resolution amending the Appointment Policy to allow the full City Council to interview candidates and make final recommendations of specific candidates for the Mayor to consider as proposed appointees, subject to final approval of the City Council; OR 2) Resolution amending the Appointment Policy to allow the full City Council to interview candidates and create an appointment list from which the Mayor may select proposed appointees, subject to final approval of the City Council Prepared by: Kimberly Murdaugh, Interim Assistant City Manager Reviewed by: Sara Cowell, Director of Finance
Bijal Patel, City Attorney
Approved by: Midori Lichtwardt, City Manager
Attachments:
A – Existing Appointment Policy
B - General Law Survey Matrix
C – Policy A – Council Recommends
D – Policy B – Council Creates Appointment List
E – Public Legal Opinion
Tx. Y A> t[] f i6Z I7
ADOPTING A COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR APPOINTMENTS TO CITY ADVISORY BODIES AND REPEALING RESOLUTION NO. 2021- 131
WHEREAS, On September 7, 2021, the Tracy City Council adopted Resolution 2021- 131 establishing a policy for the selection process for appointments to City advisory Bodies and repealing Resolution 2020-009;
WHEREAS, The current policy states that Council shall appoint two Council Members to serve on a subcommittee to review applications, interview applicants and recommend a candidate for appointment to the board, commission or committee, and WHEREAS, Council wishes to amend the language of Section 2 ( D)( 1) to state that Council shall appoint two members and an alternate to serve on a subcommittee to review applications, interview applicants and recommend a candidate for appointment to the board, commission or committee.
NOW, THEREFORE BE IT RESOLVED, the City Council of the City of Tracy hereby adopts the Council Policy Establishing a Selection Process for Appointments to City Advisory Bodies, attached as Exhibit A, and thereby repeals and supersedes Resolution No. 2021- 131.
The foregoing Resolution 2021- 200 was passed and adopted by the Tracy City Council on the 21 st day of December, 2021, by the following vote:
AYES: COUNCIL MEMBERS: ARRIOLA, BEDOLLA, DAVIS, VARGAS, YOUNG NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE
YO, L ( 0.
MAYOR
ATTEST:
l
CITY CLERK
ATTACHMENT A
COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR APPOINTMENTS TO
CITY ADVISORY BODIES
Exhibit " A" to Resolution No. 2021- 200)
SECTION 1: PURPOSE
To establish a selection process for appointments to City advisory bodies including defining residency requirements, in accordance with Government Code sections 54970 et seq.
SECTION 2: SELECTION PROCESS FOR APPOINTEE BODIES
A. On or before December 31st of each year, the City Clerk shall prepare an appointment list of all regularandongoingboards, commissionsandcommitteesthat areappointedby the City Council of the City of Tracy. The list shall contain the following information:
1. A list of all appointee terms which will expire during the next calendar year, with the name of the incumbent appointee, the date of the appointment, the date the term expires and the necessary qualifications for the position.
2. A list of all boards, commissions and committees whose members serve at the pleasure of the Council and the necessary qualifications of each position.
3. The list of appointments shall be made available to the public for a reasonable fee that shall not exceed actual cost of production. The Tracy Public Library shall receive a copy of the list.
B. Whenevera vacancyoccursin any board, commissionor committee, whetherdueto expiration of an appointee' s term, resignation, death, termination or other causes, a special notice shall be posted in the office of the City Clerk, The Tracy Public Library, the City website, and in other places as directed within twenty ( 20) days after the vacancy occurs.
Final appointment to the board, commission or committee shall not be made by the City Council for at least ten (10) working days after the posting of the notice in the Clerk's office.
If Council finds an emergency exists, the Council may fill the unscheduled vacancy immediately.
C. Appointments shall be made for the remainder of the term created by the vacancy except as follows:
1. If appointee will fill an un -expired term with six months or less remaining, the appointment shall be deemed to be for the new term.
2. If the vacancy is filled by an emergency appointment the appointee shall serve only on an acting basis until the final appointment is made pursuant to section 2.
D. The Council shall use the following selection process to provide an equal opportunity for appointment to a board, commission or committee:
1. Council shall appoint two Council members and an alternate to serve on a subcommittee to review applications, interview applicants and recommend a candidate for appointment to the board, commission or committee.
2. If the Council subcommittee determines there are multiple qualified candidates, the subcommittee may recommend the Council establish an eligibility list that will be used to fill vacancies that occur in the following twelve (12) months.
3. At the Council subcommittee' s discretion, the chair ( or designee) of the board, committee or commission for which a member will be appointed, can participate in the interviews.
E. An individualalreadyservingon a Cityof Tracyboard, committeeor commissionmaynotbe appointed to serve on an additional City of Tracy board, committee, or commission concurrently.
SECTION 3: DEFINITION OF RESIDENCY REQUIREMENTS
A. Thefollowingdefinitionsshallbe usedto determinewhetherresidencyrequirementsare met for boards and commissions to which the Tracy City Council appoints members:
1. TracyPlanningArea meansthegeographicalareadefinedinthe Cityof TracyGeneral Plan and any amendments thereto.
2. City of Tracy means within the city limits of the City of Tracy.
3. Citizen means a resident of the City of Tracy.
4. TracySchoolDistrictmeansthe geographicalareaservedbythe TracyUnifiedSchool District.
5. Sphereof Influenceshallbethe geographicalareaapprovedbythe LocalAgency Formation Commission (LAFCo) of San Joaquin County and any amendments thereto.
B. Residency, as defined above and as set forth in the applicable bylaws for each board or commission, shall be verified annually by the City Clerk. The residency must be verifiable by any of the following means:
1. Voter registration,
2. Current California Driver' s License or Identification,
3. Utility bill information ( phone, water, cable, etc.),
4. Federal or State tax returns.
2 C. Members of boards or commissions shall notify the City Clerk in writing within thirty (30) days of any change in residency. If the change in residency results in the board member or commissioner no longer meeting the residency requirements, the member shall tender their resignation!to the City Clerk who shall forward it to the City Council. 3 # General Law City Formal
Policy
Informal
Process
Full Council
Interviews All
Candidates and
Recommends to
Mayor
Full Council
Interviews
and Appoints
All
Candidates
Council
Creates
Appointment
List
Subcommittee
Interviews
Only Mayor
Appoints
with
Council
Approval
Other
Process Additional Notes
1 American Canyon XX
2 Arroyo Grande X X
Each Councilmember is entitled to
appoint one Commissioner to each
commission, with the exception of TBID
Board which is appointed by the full
council.
3 Atascadero X X
For Planning Commission - Two at large
seats and five direct appointments by
Councilmembers.
4 Barstow XX Planning Commission
5 Benicia X X
A two-member subcommittee appointed
by the Mayor, rotates
among council members with one new
appointee each year, to
interview applicants for all boards,
commissions and committees
6 Brentwood XX
7 Carmel by the Sea X X
A subcommittee, comprised of the Mayor
and Mayor Pro Tempore reviews all
applications and interviews each
prospective member. Pursuant to the
Municipal Code, appointments shall be
ratified by at least three of the five
members of the City Council.
8 Ceres X X
9 Hughson XX X
10 Kerman X X
11 Lancaster X X
12 Lathrop X X
13 Lemon Grove X X
14 Livermore X X
15 Los Banos X X
16 Manteca XX X Ad Hoc subcommittee with two (2)
Councilmembers.interviews candidates
17 Martinez X X Interviews not required or consistently conducted.
Advisory Body Appointment Process
Sample of General Law Cities in California
ATTACHMENT B
# General Law City Formal
Policy
Informal
Process
Full Council
Interviews All
Candidates and
Recommends to
Mayor
Full Council
Interviews
and Appoints
All
Candidates
Council
Creates
Appointment
List
Subcommittee
Interviews
Only Mayor
Appoints
with
Council
Approval
Other
Process Additional Notes
18 Marysville X X
Each Councilmember is entitled to
appoint one Commissioner. Additionally,
Mayor appoints two (2) members with
special expertise.
19 Pismo Beach XX
20 Upland X X Some by direct appointment. Some by
City Council. Some by Mayor.
21 West Sacramento X X
Interviews not required or consistently
conducted. Council has 30 days to
approve/disapprove an appointment by
the Mayor, otherwise the recommended
members are deemed appointed.
Total 19 2 2 4 0 5 8 4
1 COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR APPOINTMENTS
TO CITY ADVISORY BODIES
(Exhibit "A" to Resolution No. 2021-200 2024- )
Deletions shown with strikethrough and additions shown with underlining.
SECTION 1: PURPOSE
To establish a selection process for appointments to City advisory bodies including defining residency requirements, in accordance with Government Code sections 54970 et seq. This process acknowledges and is consistent with Government Code Section 40605, which requires that the elected mayor of a general law city solely has the authority to appoint, subject to council approval, to council committees, sub-committees. and commissions, as well as any regional bodies to which the council sends a delegate.
SECTION 2: SELECTION PROCESS FOR APPOINTEE BODIES
A. On or before December 31st of each year, the City Clerk shall prepare an appointment list of all regular and ongoing boards, commissions and committees that are appointed by the City Council of the City of Tracy. The list shall co ntain the following information:
1. A list of all appointee terms which will expire during the next calendar year, with the name of the incumbent appointee, the date of the appointment, the date the term expires and the necessary qualifications for the position.
2. A list of all boards, commissions and committees whose members serve at the pleasure of the Council and the necessary qualifications of each position.
3. The list of appointments shall be made available to the public for a reasonable fee that shall not exceed actual cost of production. The Tracy Public Library shall receive a copy of the list.
B. Whenever a vacancy occurs in any board, commission or committee, whether due to expiration of an appointee's term, resignation, death, termination or other causes, a special notice shall be posted in the office of the City Clerk, The Tracy Public Library, the City website, and in other places as directed within twenty (20) days after the vacancy occurs. Final appointment to the board, commission or committee shall not be made by the City Council for at least ten (10) working days after the posting of the notice in the Clerk's office. If Council finds an emergency exists, the Council may fill the unscheduled vacancy immediately.
C. Appointments shall be made for the remainder of the term created by the vacancy except as follows:
1. If appointee will fill an un-expired term with six months or less remaining, the appointment shall be deemed to be for the new term.
ATTACHMENT C
2 2. If the vacancy is filled by an emergency appointment the appointee shall serve only on an acting basis until the final appointment is made pursuant to section 2.
D. The Council and Mayor shall use the following selection process to provide an equal opportunity for appointment to a board, commission or committee:
1. The full Council shall, in open session at a regular or special meeting, appoint two Council members and an alternate to serve on a subcommittee to review applications, interview applicants and make final recommendations of specific candidates for the Mayor to consider as proposed appointees recommend a candidate for appointment to the board, commission or committee.
2. If the Council subcommittee determines there are multiple qualified candidates, the subcommittee may recommend the Council establish an eligibility list that will be used to fill vacancies that occur in the following twelve (12) months.
2. Upon receiving the recommendations of the Council, the Mayor will propose an appointee to the board, commission or committee, which proposed appointee shall be approved or disapproved, by majority vote, of the Council. The Mayor shall endeavor to propose appointees that are recommended by the Council, but the Mayor may propose alternate appointees pursuant to mayoral authority under Government Code 40605. The alternates shall be chosen from the eligibility list, if it has been created pursuant to section 4 below.
3. If the Council disapproves an appointee proposed by the Mayor, the Mayor shall propose an alternate appointee, which shall be either approved or disapproved by the Council, by majority vote. This process shall continue until all vacancies on the board, commission or committee are filled.At the Council subcommittee's discretion, the chair (or designee) of the board, committee or commission for which a member will be appointed, can participate in the interviews.
4. If there are more qualified candidates than the number of current vacancies, the Council may establish an eligibility list that will be used to fill future vacancies that occur in the following twelve (12) months.
E. An individual already serving on a City of Tracy board, committee or commission may not be appointed to serve on an additional City of Tracy board, committee, or commission concurrently.
SECTION 3: DEFINITION OF RESIDENCY REQUIREMENTS
A The
following definitions shall be used to determine whether residency requirements are met for boards and commissions to which the Tracy City Council appoints members:
3 1. Tracy Planning Area means the geographical area defined in the City of Tracy General Plan and any amendments thereto.
2. City of Tracy means within the city limits of the City of Tracy.
3. Citizen means a resident of the City of Tracy.
4. Tracy School District means the geographical area served by the Tracy Unified Sch ool District.
5. Sphere of Influence shall be the geographical area approved by the Local Agency Formation Commission (LAFCo) of San Joaquin County and any amendments thereto.
B. Residency, as defined above and as set forth in the applicable bylaws for each b oard or commission, shall be verified annually by the City Clerk. The residency must be verifiable by any of the following means:
1. Voter registration,
2. Current California Driver's License or Identification,
3. Utility bill information (phone, water, cable, etc.),
4. Federal or State tax returns.
C. Member
s of boards or commissions shall notify the City Clerk in writing within thirty (30) days of any change in residency. If the change in residency results in the board member or commissioner no longer meeting the residency requirements, the member shall tender their resignation to the City Clerk who shall forward it to the City Council. 1 COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR APPOINTMENTS
TO CITY ADVISORY BODIES
(Exhibit "A" to Resolution No. 2021-200 2024- )
Deletions shown with strikethrough and additions shown with underlining.
SECTION 1: PURPOSE
To establish a selection process for appointments to City advisory bodies including defining residency requirements, in accordance with Government Code sections 54970 et seq. This process acknowledges and is consistent with Government Code Section 40605, which requires that the elected mayor of a general law city solely has the authority to appoint, subject to council approval, to council committees, sub-committees. and commissions, as well as any regional bodies to which the council sends a delegate.
SECTION 2: SELECTION PROCESS FOR APPOINTEE BODIES
A. On or before December 31st of each year, the City Clerk shall prepare an appointment list of all regular and ongoing boards, commissions and committees that are appointed by the City Council of the City of Tracy. The list shall co ntain the following information:
1. A list of all appointee terms which will expire during the next calendar year, with the name of the incumbent appointee, the date of the appointment, the date the term expires and the necessary qualifications for the position.
2. A list of all boards, commissions and committees whose members serve at the pleasure of the Council and the necessary qualifications of each position.
3. The list of appointments shall be made available to the public for a reasonable fee that shall not exceed actual cost of production. The Tracy Public Library shall receive a copy of the list.
B. Whenever a vacancy occurs in any board, commission or committee, whether due to expiration of an appointee's term, resignation, death, termination or other causes, a special notice shall be posted in the office of the City Clerk, The Tracy Public Library, the City website, and in other places as directed within twenty (20) days after the vacancy occurs. Final appointment to the board, commission or committee shall not be made by the City Council for at least ten (10) working days after the posting of the notice in the Clerk's office. If Council finds an emergency exists, the Council may fill the unscheduled vacancy immediately.
C. Appointments shall be made for the remainder of the term created by the vacancy except as follows:
1. If appointee will fill an un-expired term with six months or less remaining, the appointment shall be deemed to be for the new term.
ATTACHMENT D
2 2. If the vacancy is filled by an emergency appointment the appointee shall serve only on an acting basis until the final appointment is made pursuant to section 2.
D. The Council and Mayor shall use the following selection process to provide an equal opportunity for appointment to a board, commission or committee:
1. The full Council shall, in open session at a regular or special meeting, appoint two Council members and an alternate to serve on a subcommittee to review applications, interview applicants and create an appointment list from which the Mayor may select proposed appointees recommend a candidate for appointment to the board, commission or committee.
2. If the Council subcommittee determines there are multiple qualified candidates, the subcommittee may recommend the Council establish an eligibility list that will be used to fill vacancies that occur in the following twelve (12) months.
2. Upon receiving the appointment list from the Council, the Mayor will propose an appointee to the board, commission or committee, which proposed appointee shall be approved or disapproved, by majority vote, of the Council. The Mayor shall endeavor to propose appointees that are on the appointment list approved by the Council, but the Mayor may propose alternate appointees pursuant to mayoral authority under Government Code 40605.
3. If the Council disapproves an appointee proposed by the Mayor, the Mayor shall propose an alternate appointee, which shall be either approved or disapproved by the Council, by majority vote. This process shall continue until all vacancies on the board, commission or committee are filled.At the Council subcommittee's discretion, the chair (or designee) of the board, committee or commission for which a member will be appointed, can participate in the interviews.
4. If there are more qualified candidates on the appointment list than the number of current vacancies, the Council may establish an eligibility list that will be used to fill future vacancies that occur in the following twelve (12) months.
E. An individual already serving on a City of Tracy board, committee or commission may not be appointed to serve on an additional City of Tracy board, committee, or commission concurrently.
SECTION 3: DEFINITION OF RESIDENCY REQUIREMENTS
A The
following definitions shall be used to determine whether residency requirements are met for boards and commissions to which the Tracy City Council appoints members:
1. Tracy Planning Area means the geographical area defined in the City of Tracy General 3 Plan and any amendments thereto.
2. City of Tracy means within the city limits of the City of Tracy.
3. Citizen means a resident of the City of Tracy.
4. Tracy School District means the geographical area served by the Tracy Unified Sch ool District.
5. Sphere of Influence shall be the geographical area approved by the Local Agency Formation Commission (LAFCo) of San Joaquin County and any amendments thereto.
B. Residency, as defined above and as set forth in the applicable bylaws for each b oard or commission, shall be verified annually by the City Clerk. The residency must be verifiable by any of the following means:
1. Voter registration,
2. Current California Driver's License or Identification,
3. Utility bill information (phone, water, cable, etc.),
4. Federal or State tax returns.
C. Member
s of boards or commissions shall notify the City Clerk in writing within thirty (30) days of any change in residency. If the change in residency results in the board member or commissioner no longer meeting the residency requirements, the member shall tender their resignation to the City Clerk who shall forward it to the City Council. 55862.00002\42107457.1
18101 Von Karman Avenue, Suite 1000, Irvine, CA 92612
Phone: (949) 263-2600 | Fax: (949) 260-0972
www.bbklaw.com
Public Legal Memorandum
VIA E-MAIL
To: Bijal Patel, City Attorney for City of Tracy
From: Best Best & Krieger, LLP
Date: March 13, 2024
Re: Mayoral Appointment Power under Government Code Section 40605
QUESTIONS PRESENTED
May the City Council adopt a policy where applicants to all boards, commissions, and committees of a city are interviewed by the City Council at a public meeting and the City Council either: (i) makes a recommendation of the specific candidates for appointment to the Mayor ( i.e., if there are two open spots, after the interview process, the City Council would recommend two candidates); or (ii) creates a larger “eligibility list” of suitable candidates for appointment?
SHORT ANSWER
Yes, a policy that calls for this preliminary review and input by the City Council is permitted under Government Code section 40605 provided that any recommendations from the City Council are advisory only and that the Mayor retains the ultimate authority to appoint individuals subject to approval by the City Council.
ANALYSIS
Government Code section 40605 states, “[a directly-elected] mayor, with the approval of the city council, shall make all appointments to boards, commissions, and committees unless otherwise specifically provided by statute.” While there is no published case on point, the California Attorney General has specifically opined on the extent of this appointment power as well as the ability (or lack thereof) of a city council to infringe on that power.1 In pertinent, the Attorney General has compared this mayoral appointment power with “approval of the city council” to the "advice and consent" provision of the United States 1 See 81 Ops.Cal.Atty.Gen. 75 (1998)
ATTACHMENT E
55862.00002\42107457.1
- 2 -
Best Best & Krieger LLP
Constitution and the President’s ability to appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court with the Advice and Consent of the Senate. 2 As is demonstrated by that process, as well as the plain language of section 40605, this is a process that relies on a system of checks and balances where the executive (Mayor/President) offers up the appointment that requires approval by the legislative body (City Council/Senate). Further, while the Attorney General was explicit that section 40605 prohibits the City Council from directing the Mayor to appoint any particular person, it is our opinion that section 40605 is not so rigid in that there cannot be a preliminary, advisory process that is not mandatory for the Mayor.3 In the same way that the U.S. Senate has a Judiciary Committee that provides some level of initial input and analysis regarding possible judicial appointments – without of course the power to mandate or force the President to appoint any one person – a process where the City Council as a whole interviews possible candidates and provides optional recommendations to the Mayor is permissible. The Mayor, in the Mayor’s sole discretion, would then have the ability to weigh the recommendations and either give them credence, ignore them entirely,4 or something in between.
Legally, there is likely no distinction between either of the aforementioned options (City Council recommends individual(s) based on the number of spots open or compiles a list of eligible candidates) provided it is crystal clear that these are advisory in nature only and that the Mayor is not bound at all by the City Council recommendation(s). A process like this can co-exist with the authority in section 40605 as there is nothing limiting or in conflict with the Mayor’s absolute discretion to appoint and would likely benefit the process overall. That is, with a predetermined policy applicants, staff and City decision-makers will have clarity and know what to expect such that proper planning can occur to ensure vacancies are filled and the process becomes routine City business. The City Council and the Mayor may also benefit as the more the process is collaborative, the more likely there will be successful nominations and timely and effective filling of vacancies.
Practically, an eligible candidate list may have more efficacy as the other option where the City Council simply makes exact recommendations ( i.e., 2 individuals for 2 open commission spots) creates a very binary choice. Either the Mayor wants to only appoint these 2 individuals or the Mayor does not. This may render this initial advisory process somewhat futile as either the Mayor agrees with the majority of the City Council or the Mayor does not with nothing in between.
A larger eligibility list may assist the Mayor in weighing the various strengths and weaknesses of the possible appointees, provide a larger pool of candidates that are more likely to be approved by the City Council after the Mayor makes the decision on who to appoint, and overall be a more helpful tool to the Mayor to increase the chances that Mayoral appointments are approved by the City Council and positions are filled. However, consistent with the advisory theme of the process, a policy that only those on the eligibility list can be offered up for appointment or approved would be unlawful as that would infringe on the Mayoral power in section 40605.
2 Id.
3 Along this same line of thinking, there is nothing that would prohibit the Mayor from consulting with a trusted member of staff or other community member on possible options for appointments. We do not believe section 40605 stands for the proposition that the Mayor must undertake this appointment making process completely in a silo. 4 As noted above, this is a system based on checks and balances. So while the Mayor is under no obligation to take any recommendation, the City Council must approve any appointee. Thus, the law does posit a certain level of cooperation between the Mayor and City Council.
55862.00002\42107457.1
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Best Best & Krieger LLP
CONCLUSION
Ultimately, an advisory process that involves the entire City Council as explained above is permissible as it is not inconsistent with Government Code section 40605. The Mayor retains the ultimate decision on the appointment power (subject to approval by the City Council) and as such, is not in conflict with the statutory mandates that the Mayor shall make all appointments.
PATRICK DONEGAN
APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTORNEY’S OFFICE
TRACY CITY COUNCIL
RESOLUTION 2024-_____
AM
ENDING THE COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR
APPOINTMENTS TO CITY ADVISORY BODIES TO ALLOW THE FULL CITY COUNCIL TO
INTERVIEW CANDIDATES AND MAKE RECOMMENDATIONS OF SPECIFIC CANDIDATES
FOR THE MAYOR TO CONSIDER AS PROPOSED APPOINTEES , SUBJECT TO FINAL
APPROVAL OF THE CITY COUNCIL
WHE
REAS, the Council Policy Establishing a Selection Process for Appointments to City Advisory Bodies (Appointment Policy) sets forth the process by which vacancies on City committees, subcommittees, and commissions are filled; and WH
EREAS, the most recent version of the Appointment Policy was adopted on December 21, 2021, by the City Council through Resolution 2021-200; and WH
EREAS, under Government Code Section 40605, the elected mayor of a general law city solely has the authority to appoint, subject to council approval, to council committees, sub- committees. and commissions, as well as any regional bodies to which the council sends a delegate; and
WH
EREAS, the selection process contained in the Council’s Appointment Policy does not fully comply with Government Code Section 40605 as it states that the City Council appoints to a sub-committee to interview candidates and appoints, based on the recommendations of the sub-committee, and no explicit authority of the Mayor to propose appointments is noted; and WHE
REAS, on March 5, 2024, the City Council discussed options to align the Appointment Policy with Government Code Section 40605; and WHE
REAS, after discussion, the City Council directed staff to return with a proposed amendment to the Appointment Policy that would allow the full City Council to interview candidates, in open session at a regular or special meeting; and WH
EREAS, the City Council had not reached consensus on what the next steps would be after the Council interviews had been completed and asked staff to return with two options for the City Council’s further deliberation and final selection; and WH
EREAS, the City Council deliberated further at its meeting on March 19, 2024 and finalized the option set forth herein; now, therefore, be it RESO
LVED: That the City Council of the City of Tracy hereby amends the Appointment Policy as set forth in Exhibit A, such that the full City Council shall interview candidates, in open session at a regular or special meeting, and upon completing the interviews, shall make final Resolution 2024-____
reco
mmendations of specific candidates for the Mayor to consider as proposed appointees; and be it
FURTHER RESOLVED: That the amended Appointment Policy shall become effective immediately upon adoption of this Resolution; and be it FURT
HER RESOLVED: That the City Council authorizes the City Cl erk t o proceed with the process to fill vacancies as set forth in the newly amended Appointment Policy. * * * * *
* * * * * * * * * * * * * * * *
The foregoing Resolution 2024-_____ was adopted by the Tracy City Council on the 19th
day of March 2024 by the following vote:
AYES:
NO
ES:
ABSENT:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
ABSTENTION: COUNCIL MEMBERS:
______________________________
NANCY D. YOUNG
Mayor
of the City of Tracy, California
ATTEST: ____________
_____________
ADRIANNE RICHARDSON
City Clerk and Clerk of the Council of the
City of Tracy, California
APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTORNEY’S OFFICE
TRACY CITY COUNCIL
RESOLUTION 2024-_____
AMENDING THE COUNCIL POLICY ESTABLISHING A SELECTION PROCESS FOR
APPOINTMENTS TO CITY ADVISORY BODIES TO ALLOW THE FULL CITY COUNCIL TO
INTERVIEW CANDIDATES AND CREATE AN APPOINTMENT LIST FROM WHICH THE
MAYOR MAY SELECT PROPOSED APPOINTEES, SUBJECT TO FINAL APPROVAL OF THE
CITY COUNCIL
WHEREAS, the Council Policy Establishing a Selection Process for Appointments to City Advisory Bodies (Appointment Policy) sets forth the process by which vacancies on City committees, subcommittees, and commissions are filled; and
WHEREAS, the most recent version of the Appointment Policy was adopted on December 21, 2021, by the City Council through Resolution 2021-200; and
WHEREAS, under Government Code Section 40605, the elected mayor of a general law city solely has the authority to appoint, subject to council approval, to council committees, sub- committees. and commissions, as well as any regional bodies to which the council sends a delegate; and
WHEREAS, the selection process contained in the Council’s Appointment Policy does not fully comply with Government Code Section 40605 as it states that the City Council appoints to a sub-committee to interview candidates and appoints, based on the recommendations of the sub-committee, and no explicit authority of the Mayor to propose appointments is noted; and
WHEREAS, on March 5, 2024, the City Council discussed options to align the Appointment Policy with Government Code Section 40605; and
WHEREAS, after discussion, the City Council directed staff to return with a proposed amendment to the Appointment Policy that would allow the full City Council to interview candidates, in open session at a regular or special meeting; and
WHEREAS, the City Council had not reached consensus on what the next steps would be after the Council interviews had been completed and asked staff to return with two options for the City Council’s further deliberation and final selection; and
WHEREAS, the City Council deliberated further at its meeting on March 19, 2024 and finalized the option set forth herein; now, therefore, be it
RESOLVED: That the City Council of the City of Tracy hereby amends the Appointment Policy as set forth in Exhibit A, such that the full City Council shall interview candidates, in open session at a regular or special meeting, and upon completing the interviews, shall create an appointment list from which the Mayor may select proposed appointees; and be it Resolution 2023-____
FURTHER RESOLVED: That the amended Appointment Policy shall become effective immediately upon adoption of this Resolution; and be it
FURTHER RESOLVED: That the City Council authorizes the City Clerk to proceed with the process to fill vacancies as set forth in the newly amended Appointment Policy.
* * * * * * * * * * * * * * * * * * * * *
The foregoing Resolution 2024-_____ was adopted by the Tracy City Council on the 19th day of March 2024 by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTENTION: COUNCIL MEMBERS:
______________________________
NANCY D. YOUNG
Mayor of the City of Tracy, California
ATTEST: _________________________
ADRIANNE RICHARDSON
City Clerk and Clerk of the Council of the
City of Tracy, California