Agenda packet, regular meeting — Union City City Council, September 24, 2024 (part 1 of 3)

AGENDA

CITY OF UNION CITY/

SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY MEETING
CAROL DUTRA-VERNACI, Mayor
JEFF WANG, Vice Mayor (District 3)
GARY SINGH, Councilmember (District 1)
JAIME PATIÑO, Councilmember (District 2)
SCOTT SAKAKIHARA, Councilmember (District 4)
Tuesday, September 24, 2024
7:00 PM
City Hall - Council Chamber
34009 Alvarado-Niles Road Union City, CA 94587

1. CALL TO ORDER

1.1. Pledge of Allegiance

1.2. Roll Call

2. UNFINISHED BUSINESS - None

3. PROCLAMATIONS AND PRESENTATIONS

3.1. Proclamation Commemorating Centro De Servicios 50th Anniversary

3.2. Proclamation Honoring Union City Transit's 50th Anniversary

3.3. Proclamation Recognizing September As National Suicide Prevention Month

3.4. Presentation of Decoto Road Project, Phase 1 Construction

3.5. Proclamation Proclaiming September 2024 Childhood Cancer Awareness Month

4. ORAL COMMUNICATIONS
An individual speaker shall have three minutes to address the Council on nonCity Council/RSA Agenda 1 Tuesday, September 24, 2024 agenda items under the Oral Communications section of the agenda. The Chair may, in their discretion, lower the time limit to less than three minutes based on the number of speakers and/or business to be conducted by the City Council.

Members of the public who wish to speak to the Council under the first Oral Communications section are requested to complete a speaker card, giving their name and city of residence. If a speaker wants further notification from the City, the speaker may include a mailing address. Neither a speaker card or identification of name, city of residence or mailing address are required to provide public comment but are requested for record keeping purposes.

4.1. Desk Items

5. CONSENT CALENDAR
All matters listed on the Consent Calendar are considered routine in nature and will be enacted by one motion. If discussion is required on a specific item, it will be removed from the Consent Calendar and considered separately.

5.2. Approve The Minutes Of The September 10, 2024 City Council Special Meeting

5.3. Approve The Minutes Of The September 10, 2024 City Council Regular Meeting

5.4. Adopt A Resolution Authorizing An Amendment To The Personnel Rules To Revise The Rules Regarding Probationary Periods By Appointment

5.5. Adopt A Resolution Approving A Two-Year Service Agreement With Kroll Associates, Inc., For A Not-To-Exceed Aggregate Sum Of $158,000 And Authorizing The City Manager To Execute The Agreement

5.6. Adopt A Resolution Authorizing The City Manager To Execute An Agreement With Bay Area Tree Specialists, In The Amount Of $272,200, For The Tree Pruning & Removal Project, City Project No. 25-10, And Approving A Total Project Amount Up To $365,000, Which Includes A Contingency Of $92,800, For Fiscal Year 2024-2025; And Authorizing The City Manager, In Her Sole Discretion, To Exercise The Option To Extend The Agreement For A Second Year, For An Additional Amount Up To $365,000, For Fiscal Year 2025-2026

5.7. Adopt A Resolution Authorizing The City Manager To Execute The Student Transit Pass Program Project Funding Agreement With The Alameda County Transportation Commission, In A Form Approved By The City Attorney

5.8. Adopt A Resolution Receiving And Accepting The Audited Financial Statements Of The Measure B Fund The Measure BB Fund, The Measure F Fund, And The TDA Fund For The Fiscal Year Ended June 30, 2023

6. PUBLIC HEARINGS

6.1. Hold A Public Hearing and Adopt A Resolution Approving The 2023- 2024 Community Development Block Grant (CDBG) Consolidated City Council/RSA Agenda 2 Tuesday, September 24, 2024
Annual Performance And Evaluation Report (CAPER) And
Authorizing The City Manager To Submit The 2023-2024 CDBG CAPER To The U.S. Department Of Housing And Urban Development

7. CITY MANAGER REPORTS

7.1. Receive Annual Report From Townsend Public Affairs On Legislative Activities On Behalf Of The City of Union City

7.2. Adoption Of An Ordinance Of The City Council Of The City Of Union City Amending Section 2.04.400 “Mayoral And Councilmember Salaries” Of The Union City Municipal Code To Increase The Compensation Of The Mayor And Councilmembers

8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY - None

9. AUTHORITIES AND AGENCIES - None

10. CITY COMMISSION / COMMITTEE REPORTS - None

11. ITEMS REFERRED BY COUNCIL

12. GOOD OF THE ORDER

13. CLOSED SESSION - None

14. ADJOURNMENT

MEETING INFORMATION
Unless otherwise provided, the City Council's regular meetings are held in person on the second and fourth Tuesday of each month at 7:00 p.m. inside the Council Chamber at City Hall, 34009 Alvarado-Niles Road, Union City CA 94587. The City continues to offer an opportunity to observe Council meetings via Zoom at: https://unioncityorg.zoom.us/j/81719037355 Passcode: u8SH9cH^ Meetings are broadcast live through UCTV Channel 15 and via live stream at: https://unioncity.org/199/City-MeetingsVideo Members of the public will not have the ability to provide comment via Zoom except under limited circumstances specified below. The ability to observe remotely as identified above is predicated on the technology being available and functioning without technical difficulties. Should the remote platform(s) not be available, or become non-functioning, or should the City Council otherwise encounter technical difficulties that makes the platform(s) unavailable, the City Council will proceed with the items of business in person unless otherwise prohibited by law.

Any writings or documents provided to a majority of City Council members relating to each item of business referred to on this agenda are available for review on the City's website at www.unioncity.org or during regular business hours in the Office of the City Clerk located at 34009 Alvarado-Niles Road, Union City CA 94587.

City Council/RSA Agenda 3 Tuesday, September 24, 2024
In Compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, you should contact the Office of the City Clerk at (510) 675-5448. Notification 36 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to this meeting. The City also provides closed captioning of all its Regular City Council Meetings for the hearing impair.

ADDRESSING THE CITY COUNCIL
In Person Public Comment: Members of the public may address the Council on a matter on the agenda or during the Public Input portion of the meeting. Members who wish to speak are requested to complete a speaker card, giving their name and city of residence. If a speaker wants further notification from the City, the speaker may include a mailing address. Neither a speaker card nor identification of name, city of residence or mailing address are required to provide public comment but are requested for record keeping purposes.

Written Comment: To provide written comment on an item on the agenda or to address the Council about an issue during Public Comment, you may send an email to [email protected]. Please include the phrase "public comment" in the subject line and note the agenda item number that you want to address. Written comments will be e-mailed to the City Council and made publicly available.

Public Comment via Zoom: As indicated above, the public cannot address the Council via Zoom unless the City is required to provide such opportunity pursuant to AB 2449. In the event that members of the public are allow to participate via Zoom pursuant to AB 2449, the Mayor will make an announcement at the beginning of the meeting. Raise your virtual hand to notify the host that you would like to speak during the item that you wish to speak on.

CITY COUNCIL NORMS AND GUIDELINES (Resolution No. 6129-23; Adopted May 23, 2023) The City Council of the City of Union City comply with the following norms:

1. We conduct ourselves in a professional manner, treat everyone with respect, and act with high integrity, always putting the interests of the City of Union City ahead of self-interests in accordance with our code of ethics.

2. We respect the Council-Manager form of government, and do not interfere with the City Manager's role or any professional duties of City staff.

3. We recognize that matters of confidential nature are to be kept private and undisclosed.

4. We respect each other's opinions and are supportive of each other's work advocating for the City, and we ensure that all voices are heard. We do not criticize others for having a different point of view, and we agree to disagree respectfully.

5. We understand that the City Council acts as a body, all members are equal, and policy direction is only given by a majority vote of the City Council. Once a decision is made, all members of the City Council must respect the City Council's direction.

City Council/RSA Agenda 4 Tuesday, September 24, 2024

6. We will be prepared for City Council meetings and ask our questions of the City Manager in advance so we can avoid surprising City staff at meetings.

7. We do not criticize City staff publicly or to others and will refrain from directing them. Instead, we will take our concerns and questions privately to the City Manager.

8. We will govern on an at-large basis, although elected by districts. We will maintain a citywide perspective and consider the needs and interests of the entire community.

9. We will continue to allocate resources based on long-term strategic priorities and efforts, with consideration of citywide service levels and financial capacity.

10. We understand customer service is the priority and each member of the City Council will help constituents regardless of the district in which they reside or from which a Councilmember themselves is elected.

11. We recognize the significant importance of attendance and participation at City Council meetings in proceeding with City business. All members of the City Council should endeavor to miss no more than two regular meetings per calendar year absent extraordinary circumstances. Members of the City Council should, absent unforeseen circumstances, provide a minimum of sixty days' notice to the City Council of planned absences during the Good of the Order or Items Referred by Council portion of the City Council agenda, as appropriate.

May these Council Norms be administered and enforced in the following manner:

1. Councilmembers have the primary responsibility to assure that ethical standards are understood and met by the Council, and that the public can continue to have full confidence in the integrity of government.

2. The Mayor and the Council have the responsibility to intervene when action of its members are in violation of Council Norms.

3. The City Council can review and revise the Council Norms as needed.

4. During City Council discussions, deliberations, and proceedings, the Mayor is designated with the primary responsibility to ensure that Councilmembers adhere to the Council Norms.

CERTIFICATION OF MEETING NOTICE AND AGENDA POSTING
This notice/agenda was posted at least 72 hours in advance of the meeting date, in accordance with the Ralph M. Brown Act, on the City's Website and on the bulletin board of City Hall.

City Council/RSA Agenda 5 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: CORINAHAHN, COMMUNITY & RECREATION SERVICES DIRECTOR SUBJECT: PROCLAMATION COMMEMORATING CENTRO DE SERVICIOS 50THANNIVERSARY 1974-2024

STRATEGIC PLAN ALIGNMENT

BACKGROUND

DISCUSSION

FISCAL IMPACT

RECOMMENDATION
Prepared by:

Corina Hahn, Community & Recreation Services Director
Submitted by:

City Council/RSA Agenda 6 Tuesday, September 24, 2024
Corina Hahn, Community & Recreation Services Director
ATTACHMENTS:

Description Type
Proclamation - Centro de Servicios Attachment
City Council/RSA Agenda 7 Tuesday, September 24, 2024

CITY OF UNION CITY

PROCLAMATION

Commemorating Centro De Servicios 50th Anniversary 1974-2024 WHEREAS, Centro de Servicios was founded in 1974 to provide essential social services and legal aid to low-income families in Union City, with its original founders including Frank Roesch, Bert Perez, current Executive Director Jaime Jaramillo, and former Alameda County Supervisor Richard Valle; and WHEREAS, with a steadfast vision to meet the evolving needs of the community, Centro de Servicios has expanded its critical services over the years, offering immigration assistance, language education, skills training, and vital referrals for housing, employment, healthcare, and veterans' assistance; and WHEREAS, in the 1990s, Centro de Servicios launched the popular Centro Thrift Store, which quickly became a trusted resource in the community, with all proceeds reinvested to support the organization’s programs further; and
WHEREAS, Centro de Servicios continues to tackle pressing social issues such as homelessness, immigration challenges, and food insecurity by organizing food distribution programs that serve hundreds of families each week and by consistently keeping its doors open to those in need of shelter, support, or sustenance; and
WHEREAS, the staff, volunteers, and community partners of Centro de Servicios have dedicated over 50 years to providing compassionate, dignified, and respectful service to the people of Union City, offering invaluable assistance to those most in need.

NOW, THEREFORE, the City Council of the City of Union City does hereby commemorate the 50th Anniversary of Centro de Servicios and expresses profound gratitude for its half-century of unwavering commitment to the Union City community and its invaluable contributions to the well-being of its residents.

DATED: September 24, 2024
__________________________________
CAROL DUTRA-VERNACI, Mayor
__________________________________
JEFF WANG, Vice Mayor
__________________________________
JAIME PATIÑO, Councilmember
__________________________________
SCOTT SAKAKIHARA, Councilmember
__________________________________
GARY SINGH, Councilmember
City Council/RSA Agenda 8 Tuesday, September 24, 2024
Agenda Item
DATE: 9/10/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: MARILOU AYUPAN, PUBLIC WORKS DIRECTOR
SUBJECT: PROCLAMATION RECOGNIZING UNION CITY TRANSIT'S 50THANNIVERSARY

STRATEGIC PLAN ALIGNMENT

BACKGROUND

DISCUSSION

FISCAL IMPACT

RECOMMENDATION
Prepared by:

Steve Adams, Transit Manager
Submitted by:

Marilou Ayupan, Public Works Director
City Council/RSA Agenda 9 Tuesday, September 24, 2024
ATTACHMENTS:

Description Type
Proclamation - Union City Transit Attachment
City Council/RSA Agenda 10 Tuesday, September 24, 2024

CITY OF UNION CITY

PROCLAMATION

Honoring Union City Transit’s 50th Anniversary

WHEREAS, the Bay Area Rapid Transit District (BART) opened a regional rail station in the City of Union City in 1972 to connect commuters with the job centers in the cities of Oakland and later San Francisco in 1974; and
WHEREAS, the City of Union City opted not to join the Alameda-Contra Costa Transit District (AC Transit) to provide a public transit connection to the BART station; and WHEREAS, in July 1974, the City of Union City began Union City Transit as a contracted bus service using Mercedes-Benz vans painted green and white that became known as the Union City Flea; and
WHEREAS, Union City Transit has expanded its service options over the past fifty years to include fixed-route, paratransit, and microtransit to serve the City of Union City’s growth; and WHEREAS, Union City Transit has forthcoming customer service enhancements to modernize and provide clean local transit to residents and businesses of the City of Union City.

NOW, THEREFORE, I, Carol Dutra-Vernaci, Mayor of the City of Union City, along with the entire City Council do hereby proclaim the 2024-2025 fiscal year in honor of Union City Transit’s 50th Anniversary and encourage all citizens to take advantage of their local public transportation options.

DATED: September 24, 2024
__________________________________
CAROL DUTRA-VERNACI, Mayor
__________________________________
JEFF WANG, Vice Mayor
__________________________________
JAIME PATIÑO, Councilmember
__________________________________
SCOTT SAKAKIHARA, Councilmember
__________________________________
GARY SINGH, Councilmember
City Council/RSA Agenda 11 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: CORINAHAHN, COMMUNITY & RECREATION SERVICES DIRECTOR SUBJECT: RECOGNIZING SEPTEMBER AS NATIONAL SUICIDE PREVENTION MONTH

STRATEGIC PLAN ALIGNMENT

BACKGROUND

DISCUSSION

FISCAL IMPACT

RECOMMENDATION
Prepared by:

Corina Hahn, Community & Recreation Services Director
Submitted by:

City Council/RSA Agenda 12 Tuesday, September 24, 2024
Corina Hahn, Community & Recreation Services Director
ATTACHMENTS:

Description Type
YFS Sept National Suicide Prevention Proclamation Attachment City Council/RSA Agenda 13 Tuesday, September 24, 2024

CITY OF UNION CITY

PROCLAMATION
Recognizing September As National Suicide Prevention Month

WHEREAS, in 2008, September was designated as National Suicide Prevention Month to bring attention to those affected by suicide, raise awareness, and connect individuals experiencing suicidal ideation with critical treatment services; and
WHEREAS, suicide is a growing public health crisis both nationally and locally, affecting individuals of all age groups and across all socioeconomic, racial, and ethnic backgrounds, often as a result of untreated mental health conditions; and
WHEREAS, in the United States, suicide is the 12th leading cause of death, claiming over 45,000 lives each year and leaving thousands of friends and family members forever impacted. Additionally, suicide is the 2nd leading cause of death among individuals aged 10 to 14, and the 3rd leading cause of death among those aged 15 to 34; and WHEREAS, suicide is preventable, and changing the narrative around suicide starts with each of us. By recognizing the signs and symptoms, reaching out to those in need—whether they are family members, friends, colleagues, or strangers—and offering care, hope, and encouragement, we can provide vital resources that guide individuals toward professional help and a path to recovery; and WHEREAS, there are numerous local and national services available to those in need, including the 988 Suicide & Crisis Lifeline, which can be reached by calling or texting 988 or by chatting online at 988lifeline.org; and WHEREAS, Union City continues to prioritize mental health and well-being as essential components of a healthy and supportive community and remains committed to promoting the availability of mental health resources and support services to struggling people.

NOW, THEREFORE, the City Council of the City of Union City does hereby proclaim September 2024 as National Suicide Prevention Month in Union City. We encourage all residents to raise awareness, acknowledge those affected by suicide, and support individuals in crisis because every life in Union City—and across our nation— matters.

DATED: September 24, 2024
__________________________________
CAROL DUTRA-VERNACI, Mayor
__________________________________
JEFF WANG, Vice Mayor
__________________________________
JAIME PATIÑO, Councilmember
__________________________________
SCOTT SAKAKIHARA, Councilmember
__________________________________
GARY SINGH, Councilmember
City Council/RSA Agenda 14 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: MARILOU AYUPAN, PUBLIC WORKS DIRECTOR
SUBJECT: PRESENTATION OF DECOTO ROAD PROJECT, PHASE 1 CONSTRUCTION

STRATEGIC PLAN ALIGNMENT

BACKGROUND

DISCUSSION

FISCAL IMPACT

RECOMMENDATION
Prepared by:

TRIEU TRAN, ENGINEER III (CIVIL)
Submitted by:

MARILOU AYUPAN, PUBLIC WORKS DIRECTOR
City Council/RSA Agenda 15 Tuesday, September 24, 2024
ATTACHMENTS:

Description Type
PowerPoint Presentation Attachment
City Council/RSA Agenda 16 Tuesday, September 24, 2024
DRAFT Presentation of
Decoto Road Phase 1,
City Project No. 23-24
Construction
City Council Meeting
September 24, 2024
Presented by Trieu Tran, P.E., Civil Engineer III
Item 3x
City Council/RSA Agenda 17 Tuesday, September 24, 2024
2 Decoto Road Phase 1 Construction
(Limits - Creek Bridge to 12th Street)
•Decoto Road is one of our principal arterials
and is regionally significant for southern
Alameda County
•Currently, the roadway is 2 lanes in each
direction that carries an Average Daily Traffic (ADT) of 24,000 to 30,000 vehicles per day •A traditional Class II Bike lane exist in both
directions
•Pavement Rehab delayed since 2019
because of PG&E EP Permit Projects
City Council/RSA Agenda 18 Tuesday, September 24, 2024
3 Decoto Road Phase 1 Construction
Existing Conditions
• Access to Dumbarton Bridge• High Injury Network (HIN)• Major Transit Route for BART• Serves Logan & NHUSD• Alvarado-Niles Intersection o Shopping Centerso Gas Stationso Access to I-880
City Council/RSA Agenda 19 Tuesday, September 24, 2024
4 Decoto Road Phase 1 Construction
Project improvements include: • Pavement Rehabilitation Upgrade • ADA compliance with ADA ramps and enhanced crosswalks
• Increased visibility of bicyclists with wide
buffered bike lanes
• Defined bike riding zones• Protection from typical conflict zones (turning)
• Defined Bus/Bike conflict zones
City Council/RSA Agenda 20 Tuesday, September 24, 2024
5 Decoto Road Phase 1 Construction
Safety Goals: • Reduce speed with 11-foot
lanes travel lanes
• Reduce injuries/accidents with
defined buffer bike lanes
• Reduce injuries with Complete
Streets Intersections
City Council/RSA Agenda 21 Tuesday, September 24, 2024
6 Decoto Road Phase 1 Construction
Safety Goals: • Reduce speed with 11-foot
lanes travel lanes
• Reduce injuries/accidents with
defined buffer bike lanes
• Reduce injuries with Complete
Streets Intersections
City Council/RSA Agenda 22 Tuesday, September 24, 2024
7 Decoto Road Phase 1 Construction
City Council/RSA Agenda 23 Tuesday, September 24, 2024
8 Decoto Road Phase 1 Construction
City Council/RSA Agenda 24 Tuesday, September 24, 2024
9 Decoto Road Phase 1 Construction
QUESTIONS?
Trieu Tran, P.E.

Civil Engineer III
City Council/RSA Agenda 25 Tuesday, September 24, 2024
Agenda Item
ATTACHMENTS:

Description Type
Proclamation Attachment
City Council/RSA Agenda 26 Tuesday, September 24, 2024

CITY OF UNION CITY

PROCLAMATION

Proclaiming September 2024 as Childhood Cancer Awareness Month WHEREAS, childhood cancer is the leading cause of death by disease among children in the United States, affecting thousands of young lives each year; and WHEREAS, each year in Union City and across the nation, families face the unimaginable challenges of pediatric cancer, enduring lengthy hospital stays, complex treatments, and the emotional toll of supporting their children through this difficult journey; and
WHEREAS, advances in pediatric cancer research have led to significant progress in treatments, but continued support and awareness are essential to improving outcomes for all children affected by cancer; and WHEREAS, Union City stands in solidarity with the courageous children battling cancer, their families, and the healthcare professionals who tirelessly work to provide hope and healing; and WHEREAS, our community is committed to raising awareness, fostering early detection, and supporting research efforts that will one day lead to a cure for all forms of childhood cancer; and WHEREAS, the City of Union City honors the resilience and strength of all pediatric cancer patients and survivors and pays tribute to those children who have lost their lives to this devastating disease.

NOW, THEREFORE, the City Council of the City of Union City does hereby proclaim September 2024 as Childhood Cancer Awareness Month and encourages all residents to raise awareness of pediatric cancer, support those affected, and contribute to efforts that advance research and improve treatment outcomes.

DATED: September 24, 2024
__________________________________
CAROL DUTRA-VERNACI, Mayor
__________________________________
JEFF WANG, Vice Mayor
__________________________________
JAIME PATIÑO, Councilmember
__________________________________
SCOTT SAKAKIHARA, Councilmember
__________________________________
GARY SINGH, Councilmember
City Council/RSA Agenda 27 Tuesday, September 24, 2024
Agenda Item
ATTACHMENTS:

Description Type
Desk Item- Sullivan, Paul Attachment
City Council/RSA Agenda 28 Tuesday, September 24, 2024
From: Paul Sullivan
To: Mayor and Council Members
Subject: Measure QQ Business Tax Union City Nov 5 2024 Election Date: Saturday, September 21, 2024 2:15:02 PM
WARNING: External email. Please verify sender before opening attachments or clicking on links.

Subject: Measure QQ November 5, 2024 Election
Dear Elected Officials:

The rating and rating report below reflects the specific rating for fairness and accuracy assigned to your city's proposed ballot language for the upcoming General Election. The rating is based on a 1-5 rating similar to a Yelp score .The Alameda County Civil Grand Jury Association is a non-partisan 501 C-3 organization consisting of former Civil Grand Jury members.

The ballot titles are not evaluated for the merit of the measure, but for their fairness, accuracy and completeness of the 75- word ballot title.

Measure QQ
City of Union City, Essential Services Protection
“Union City Essential Services Protection Measure. To protect essential city services such as 9-1-1 emergency response; street/ pothole repair; crime/ gun violence prevention; fire protection/ paramedics; neighborhood police patrols, and reducing blight/ keeping neighborhoods clean, shall the measure be adopted amending Union City’s business license ordinance, lowering many small businesses’ taxes, with rates up to 0.25% of gross receipts (as described in the ordinance) until ended by voters, raising $3,500,000 annually, with public spending disclosure/ independent audits?”
Vote Required: 50%+1
SCORE: 2.9
Comments: The score was lowered from the maximum of five because there was a lack of honesty as to what the money would be spent on. As a general tax the proceeds could be spent on any legal purpose. Not one dollar needs to be spent on the listed items. Providing “annual audits” means fairly little in the case of a general tax. There is little to meaningfully audit since the money can be spent on any legal purpose. The claim that the tax would remain until “ended by voters” is deceptive because it implies there is a mechanism within the measure to terminate the tax. There is no probable way to end this tax other than by the difficult citizen initiative process.

Effectively this tax increase would be permanent. The statement regarding “lowering many small business taxes” seems deceptive and contrary to the amount of new tax revenues being raised.

For more information please see below or refer to the "Alameda County November 2024 Ballot Title Evaluations " tab on our website https://acgrandjuryassn.org/ or www.ballotwatchdog.com.

Please schedule this matter under Correspondence for your next available public hearing. Please let us know when this matter will be scheduled.

City Council/RSA Agenda 29 Tuesday, September 24, 2024
If you have any questions feel free to contact me at or via email.

Sincerely,
Paul Sullivan
Alameda County Civil Grand Jury Association
Alameda County Civil Grand Jury Association Local Ballot Measure Ratings
The 34 Alameda County local ballot measures scheduled for the November 5, 2024 general election, were evaluated in August 2024 by the Alameda County Civil Grand Jury Association, (ACCGJA). The measure’s Titles were evaluated for accuracy and fairness pursuant to the California Elections Code and the criteria established by the association for each type of ballot measure, e.g. Bond Measure, Tax Measure and Other (non-tax measure).

The collective scores represent the average score arrived at by the evaluators who are Civil Grand Jury Association members (up to 15 allowed). The scoring system is comparable to the popular “Yelp” type scoring system (a score of one is worst; five is best). Like a Yelp evaluation, the ratings reflect the average of the evaluators’ educated opinions, based on the established criteria as to what should be, and should not be, included in each type of ballot measure.

We emphasize that the ACCGJA IS NOT evaluating the merits of the measures. The evaluation is not partisan, neither liberal or nor conservative. We are only concerned with the accuracy and impartiality of the 75-word ballot title being put to the voters. The 75 words are the only thing that we know every voter sees. State law requires ballot language to be “a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure”. Unfortunately, many jurisdictions violate the law by exaggerating the benefits and glossing over the costs, as well as adding extraneous verbiage designed to favor passage of the measure. No one other than the agency promoting the measure is required to approve the agency’s language. To counteract this, there is a need for active and consistent monitoring and evaluation of local government’s ballot language, aka “Ballot Titles”. This current ACCGJA effort implements the findings of the 2021 Alameda County Civil Grand Jury report, The Need for Accuracy and Impartiality of Ballot Measure Questions.

Additional information can be found on the ACCGJA website: acgrandjuryassn.org Results: The ACCGJA review produced individual ballot measure scores ranged from 0.9 to

4.6. The average was 2.91. The most common matter that caused a reduction in the score was a lack of clarity as to why the measure was needed and what it would cost. Almost as common was the inclusion of extraneous verbiage designed to influence a favorable vote on the measure. Numerous proposed tax increases failed to mention what the existing tax rate is or whether the new tax or bond was being added to an existing similar tax or bond. Thus voters could not learn the amount of increase or even the percentage of increase if the proposed measure were to pass. Also common among general tax increases was a listing of popular or feel-good spending categories that would be improved if the measure was to pass. But as a City Council/RSA Agenda 30 Tuesday, September 24, 2024
general tax, the proceeds could be spent on any public purpose, and nothing might be spent on the listed areas like pothole repair, homeless services or public safety. But as stated above, all the measures exhibited some degree of proponent bias, emphasizing the benefits and glossing over the costs, meaning the authors want the measure to pass.

City Council/RSA Agenda 31 Tuesday, September 24, 2024
Agenda Item
ATTACHMENTS:

Description Type
Draft Minutes Attachment
City Council/RSA Agenda 32 Tuesday, September 24, 2024
September 10, 2024 | 6:15 PM Page 1 of 2
City Council
Special Meeting Minutes

MINUTES

CITY OF UNION CITY

CITY COUNCIL SPECIAL MEETING
CAROL DUTRA-VERNACI, Mayor
JEFF WANG, Vice Mayor (District 3)
GARY SINGH, Councilmember (District 1)
JAMIE PATIÑO, Councilmember (District 2)
SCOTT SAKAKIHARA, Councilmember (District 4)
Tuesday, September 10, 2024 | 6:15 PM
City Hall - City Council Conference Room
34009 Alvarado-Niles Road
Union City, CA 94587

1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 6:15 PM.

2. ROLL CALL
Attendee Name Present
Councilmember Patiño
Councilmember Sakakihara
Councilmember Singh
Vice Mayor Wang
Mayor Dutra-Vernaci
Yes
Yes
Yes
Yes
Yes

3. ORAL COMMUNICATIONS
Mayor Dutra-Vernaci opened Public Comment. There being no speakers, Mayor Dutra-Vernaci closed Public Comment.

City Council/RSA Agenda 33 Tuesday, September 24, 2024
September 10, 2024 | 6:15 PM Page 2 of 2
City Council
Special Meeting Minutes

4. CLOSED SESSION

4.a. CONFERENCE WITH LABOR NEGOTIATORS Pursuant to Government Code § 54957.6
Agency Designated Representatives:

Jason Castleberry, Human Resources Director
Employee Organizations:

Management Employee Group
Police Management Association
Police Officers' Association
Professional Employees' Group
Service Employees International Union, Local 1021 (SEIU) No reportable action. The item was reported at the September 10, 2024 Regular Meeting.

5. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 6:52 PM.

I HEREBY CERTIFY that the foregoing minutes were duly and regularly adopted at a regular meeting of the City Council of the City of Union City. /s/Thai Nam Pham, MMC, CPMC
City Clerk
City Council/RSA Agenda 34 Tuesday, September 24, 2024
Agenda Item
ATTACHMENTS:

Description Type
Action Minutes Attachment
City Council/RSA Agenda 35 Tuesday, September 24, 2024
September 10, 2024 | 7:00 PM Page 1 of 6
City Council / Successor Agency
Regular Meeting Minutes

MINUTES

CITY OF UNION CITY / SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY

REGULAR MEETING
CAROL DUTRA-VERNACI, Mayor
JEFF WANG, Vice Mayor (District 3)
GARY SINGH, Councilmember (District 1)
JAMIE PATIÑO, Councilmember (District 2)
SCOTT SAKAKIHARA, Councilmember (District 4)
Tuesday, September 10, 2024 | 7:00 PM
City Hall - Council Chamber
34009 Alvarado-Niles Road
Union City, CA 94587

1. CALL TO ORDER
Mayor Dutra-Vernaci called the meeting to order at 7:03 PM.

1.a. Pledge of Allegiance
Mayor Dutra-Vernaci led the Pledge of Allegiance.

1.b. Roll Call
Attendee Name Present
Councilmember Patiño
Councilmember Sakakihara
Councilmember Singh
Vice Mayor Wang
Mayor Dutra-Vernaci
Yes
Yes
Yes
Yes
Yes
Mayor Dutra-Vernaci reported no reportable action from the Closed Session held before the regular meeting.

2. UNFINISHED BUSINESS
There was none.

3. PROCLAMATIONS AND PRESENTATIONS

3.a. Proclamation Proclaiming September 15 - October 15, 2024 As National Hispanic Heritage Month
City Council/RSA Agenda 36 Tuesday, September 24, 2024
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Mayor Dutra-Vernaci read aloud the proclamation and presented it to Union City Human Relations Commissioner Victor Lopez.

3.b. Proclamation Proclaiming September 21 - 27, 2024 As United Against Hate Week
Mayor Dutra-Vernaci read aloud the proclamation and presented it to Union City Human Relations Commission Vice Chair Kashmir Singh Shahi.

4. ORAL COMMUNICATIONS
Mayor Dutra-Vernaci opened Oral Communications. The following individuals spoke on items that were not on the agenda:

Lama Stella
KC Ng
Wendy Huang
Unnati Seshadri
There being no further speakers, Mayor Dutra-Vernaci closed Oral Communications.

5. CONSENT CALENDAR
Motion: Approve the Consent Calendar.

RESULT: Pass
MOVER: Councilmember Singh
SECONDER:Vice Mayor Wang
AYES: Councilmembers Patiño, Sakakihara, Singh, Vice Mayor Wang, and Mayor Dutra-Vernaci
NOES: None
ABSENT: None

5.a. Approve The Minutes Of The August 13, 2024 City Council Special Meeting
A motion was made to approve the minutes.

5.b. Approve The Minutes Of The August 13, 2024 City Council Regular Meeting
A motion was made to approve the minutes.

5.c. Adopt A Resolution Authorizing The City Manager To Execute Lease Agreements With The California Automotive Retailing Group (CARG) For The Lease Of Eight Unmarked Vehicles And Amending The FY 2024-2025 Garage Equipment Replacement Fund Budget
A motion was made to adopt the resolution.

Enactment No.: Resolution No. 6357-24

5.d. Adopt A Resolution Authorizing The City Manager To Execute The First Amendment To The Consulting Services Agreement With Badawi And Associates For Audit Services For Fiscal Year 2023-2024, In The Amount Of $97,635, For A Total Contract Amount Of $509,055
City Council/RSA Agenda 37 Tuesday, September 24, 2024
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A motion was made to adopt the resolution.

Enactment No.: Resolution No. 6358-24

5.e. Adopt A Resolution Approving An Amendment To Update The Class Specification For The Classification Of Community And Recreation Services Director
A motion was made to adopt the resolution.

Enactment Nos.: Resolution No. 6359-24

5.f. Waive Further Reading And Adoption Of An Ordinance Repealing Chapter 2.22 “Youth Commission” Of The Union City Municipal Code A motion was made to adopt the ordinance.

Enactment No.: Ordinance No. 925-24

6. PUBLIC HEARINGS
There were none.

7. CITY MANAGER REPORTS

7.a. Adopt A Resolution Authorizing The City Manager To Submit An Allocation Request To The Metropolitan Transportation Commission (MTC) From The Regional Measure 3 Dumbarton Corridor Improvements Program, In The Amount Of $3,000,000, And Accepting Alameda County Transportation Commission's Designation Of The City Of Union City As The Implementing Agency For The Union City BART East Entrance And At-Grade Pedestrian Crossing Project, City Project No. 14-14 Public Works Director Ayupan provided staff presentation and responded to questions from council members.

Mayor Dutra-Vernaci opened Public Comment. There being no speakers, Mayor Dutra-Vernaci closed Public Comment.

Motion: Adopt a resolution authorizing the City Manager to submit an allocation request to the Metropolitan Transportation Commission (MTC) for $3,000,000 from the Regional Measure 3 Dumbarton Corridor Improvements Program and accepting the Alameda County Transportation Commission's designation of Union City as the implementing agency for the Union City BART East Entrance and At-Grade Pedestrian Crossing Project, City Project No. 14-14.

RESULT: Pass
MOVER: Councilmember Patiño
SECONDER: Councilmember Singh
AYES: Councilmembers Patiño, Sakakihara,
Singh, Vice Mayor Wang, and Mayor
Dutra-Vernaci
NOES: None
ABSENT: None
City Council/RSA Agenda 38 Tuesday, September 24, 2024
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Enactment No.: Resolution No. 6360-24

7.b. Adopt a Resolution Authorizing The City Manager To Execute A Supplemental Agreement With Union Pacific Railroad Company To The Public At-Grade Pedestrian Crossing Agreement, BART Pedestrian Crossing, DOT 859611R, Mile Post 27.08 - Oakland Subdivision, City Of Union City, Alameda County, California (City Project No. 14-14), In A Form Approved By The City Attorney
City Engineer Azim provided staff presentation. He and Public Works Director Ayupan responded to questions from council members.

Mayor Dutra-Vernaci opened Public Comment. There being no speakers, Mayor Dutra-Vernaci closed Public Comment.

Motion: Adopt a resolution authorizing the City Manager to execute a supplemental agreement with Union Pacific Railroad Company to the Public At-Grade Pedestrian Crossing Agreement, BART Pedestrian Crossing, DOT 859611R, Mile Post 27.08 - Oakland Subdivision, City of Union City, Alameda County, California (City Project No. 14-14), in a form approved by the City Attorney.

RESULT: Pass
MOVER: Councilmember Singh
SECONDER: Councilmember Sakakihara
AYES: Councilmembers Patiño, Sakakihara,
Singh, Vice Mayor Wang, and Mayor
Dutra-Vernaci
NOES: None
ABSENT: None

Enactment No.: Resolution No. 6361-24

7.c. Waive Full Reading And Introduce By Title Only An Ordinance Of The City Council Of The City Of Union City Amending Section 2.04.400 “Mayoral And Councilmember Salaries” Of The Union City Municipal Code To Increase The Compensation Of The Mayor And Councilmembers City Attorney Kris Kokotaylo provided staff presentation and responded to questions from council members.

Mayor Dutra-Vernaci opened Public Comment. There being no speakers, Mayor Dutra-Vernaci closed Public Comment.

City Council/RSA Agenda 39 Tuesday, September 24, 2024
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Motion: Motion to waive full reading and introduce by title only an ordinance of the City Council of the City of Union City amending Section 2.04.400 "Mayoral and Councilmember Salaries" of the Union City Municipal Code to increase the compensation of the Mayor and Councilmembers by $500.00 per month, effective January 1, 2025.

RESULT: Pass
MOVER: Councilmember Patiño
SECONDER: Councilmember Singh
AYES: Councilmembers Patiño, Singh, and
Vice Mayor Wang
NOES: Councilmember Sakakihara and Mayor
Dutra-Vernaci
ABSENT: None

7.d. League of California Cities Annual Conference Resolutions Packet City Manager Malloy provided staff presentation and responded to questions from council members.

Mayor Dutra-Vernaci opened Public Comment. There being no speakers, Mayor Dutra-Vernaci closed Public Comment.

Motion: Instruct Delegate Vice Mayor Wang and Alternate Delegate Councilmember Sakakihara to vote in favor of the resolution at the League of California Cities Annual Conference, contingent upon the incorporation of the desired language changes.

RESULT: Pass
MOVER: Councilmember Patiño
SECONDER: Councilmember Singh
AYES: Councilmembers Patiño, Singh, and Vice
Mayor Wang
NOES: Councilmember Sakakihara and Mayor
Dutra-Vernaci
ABSENT: None

8. SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY
There were none.

9. AUTHORITIES AND AGENCIES
There were none.

10. CITY COMMISSION / COMMITTEE REPORTS
There were none.

City Council/RSA Agenda 40 Tuesday, September 24, 2024
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11. ITEMS REFERRED BY COUNCIL
Vice Mayor Wang reported on the Economic Development Advisory Team (EDAT) and UCPD Employee Recognition Dinner.

Councilmember Singh reported on the Economic Development Advisory Team (EDAT).

Councilmember Sakakihara reported on the Parks and Recreation Commission and noted the cancellation of the Housing Authority of Alameda County meeting.

Councilmember Patiño reported on the League of California Cities Governance, Transparency, and Labor Relations meeting.

Mayor Dutra-Vernaci reported on the Bay Area Housing Finance Authority Board Meeting and the Alameda County Transportation Commission.

12. GOOD OF THE ORDER
Councilmember Patiño reported attending a meeting with the Pacific Terrace HOA, city staff, and public safety officials. He also mentioned his upcoming trip to Houston on September 18 for the National Association of Latin Elected Officials (NALEO), contributing artwork for the Hispanic Heritage Month art exhibit at Studio 11, and expressing condolences to his former coach.

Councilmember Sakakihara and Singh reported attending the UCPD Employee Recognition Dinner with all the other council members.

Vice Mayor Wang reported his participation in the UCPD Employee Recognition Dinner and the Pan-American Wushu Championship.

Mayor Dutra-Vernaci reminded the council members of the City Council’s attendance policy to notify the council members sixty days in advance of a known absence and noted that the November 12th City Council meeting would be canceled due to a lack of quorum, and shared a story about firefighters responded to a cat stuck in a tree at Cesar Chavez Park on her way to a City Council meeting, and the Washington Hospital community health event at the Nakamura Clinic on Alvarado-Niles Road.

13. CLOSED SESSION
There were none.

14. ADJOURNMENT
Mayor Dutra-Vernaci adjourned the meeting at 9:03 PM in memory of former State Senator Ellen Corbett.

I HEREBY CERTIFY that the foregoing minutes were duly and regularly adopted at a regular meeting of the City Council/Successor Agency to the Redevelopment Agency of the City of Union City.
/s/Thai Nam Pham, MMC, CPMC
City Clerk/Secretary for the Successor Agency to the Redevelopment Agency City Council/RSA Agenda 41 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JASON CASTLEBERRY, HUMAN RESOURCES DIRECTOR
SUBJECT: ADOPT A RESOLUTION AUTHORIZING AN AMENDMENT TO THE PERSONNEL RULES

TO REVISE THE RULES REGARDING PROBATIONARY PERIODS BYAPPOINTMENT Staff recommends that the City Council adopt a resolution authorizing an amendment to Union City’s Personnel Rules to revise Rule VI: Probationary Periods, Section 6.01, Appointment, to remove defunct Fire Department classifications and add new classifications to reflect the current staffing structures within the Police Department.

STRATEGIC PLAN ALIGNMENT
This program supports Goal B. Governance and Organization Effectiveness of the strategic plan in aligning critical city services with current staffing levels.

BACKGROUND
The Union City Personnel Rules (the “personnel rules”) currently includes several classifications and rules around Fire Department classifications that are no longer used. The personnel rules also include two outdated Police Department classifications: 1) Property Clerk and 2) Dispatch Clerk. Additionally, the following positions need to be added as new or missing from Section 6.01:

Community Resource Coordinator, Community Service Aid, Confidential Operations Assistant, Executive Assistant to the Police Chief, Personnel and Training Supervisor, Property and Evidence Supervisor, Property and Evidence Specialist and Records Supervisor.

DISCUSSION
Staff recommends a revision to the personnel rules to update probationary periods, upon appointment to reflect the current Police Department staffing structure and classifications and to remove the defunct Fire Department classifications. This revision allows the City to remain consistent in its probationary period, per classification.

City Council/RSA Agenda 42 Tuesday, September 24, 2024

FISCAL IMPACT
There are no additional fiscal impacts to this change to Section 6.01 Appointments.

RECOMMENDATION
Staff recommends that the City Council approve a resolution authorizing an amendment to the personnel rules to revise the rules regarding Rule VI: Probationary Periods, Section 6.01 Appointment.

Prepared by:

JASON CASTLEBERRY, HUMAN RESOURCES DIRECTOR
Submitted by:

JASON CASTLEBERRY, HUMAN RESOURCES DIRECTOR
ATTACHMENTS:

Description Type
Draft Resolution Resolution
Exhibit A1 - Personnel Rules and Regulations Amendment (Redlined) Exhibit Exhibit A2 - Personnel Rules and Regulations Amendment (Clean) Exhibit City Council/RSA Agenda 43 Tuesday, September 24, 2024

Page 1 of 2 ends

RESOLUTION NO. XXXX-24

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

UNION CITY AUTHORIZING AN AMENDMENT TO THE

PERSONNEL RULES TO REVISE THE RULES

REGARDING PROBATIONARY PERIODS BY

APPOINTMENT
WHEREAS, the City of Union City Personnel Rules (the “Personnel Rules”) requires necessary updates; and
WHEREAS, City staff have undertaken an analysis of necessary updates to the Personnel Rules; and
WHEREAS, the updates to the Personnel Rules include revisions related to probationary periods for both Police and Fire Departments; and
WHEREAS, the City Manager or her designee has met and conferred in good faith with the representatives of all bargaining units related to the above matters; and WHEREAS, the City Council has considered the proposed revisions to the Personnel Rules and finds that the terms and conditions of the proposed revisions are proper and in the best interests of the City.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Union City hereby approves the revisions to the Personnel Rules as provided and attached as Exhibits A1 and A2 to this resolution.

BE IT FURTHER RESOLVED that the City Council hereby authorizes the City Manager to take such further actions as may be necessary to implement the proposed revisions to the Personnel Rules.

City Council/RSA Agenda 44 Tuesday, September 24, 2024
Resolution No. XXXX-24
Amendment to Personnel Rules to Revise Rules Regarding Probationary Periods by Appointment

Page 2 of 2 ends

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on the 24th day of September 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:

THAI NAM N. PHAM
City Clerk
KRISTOPHER J. KOKOTAYLO
City Attorney
Attachments:

1. Exhibit A1 – Personnel Rules and Regulation Amendment (Redlined)

2. Exhibit A2 – Personnel Rules and Regulation Amendment (Clean) City Council/RSA Agenda 45 Tuesday, September 24, 2024
RULE VI.

PROBATIONARY PERIOD
Section 6.01 Appointment
All appointments to positions in the competitive service shall be subject to a probationary period. The probationary period shall be 1,040 hours on-the-job work for all positions except for the following: Police Officer, 3,120 hours (Police Officers with prior experience, hired through the lateral transfer program, may be eligible for completion of the probationary period at the end of 2,080 hours, based upon assessment of meritorious performance and recommendation by the Police Chief to the Human Resources Director and Appointing Authority). Other probationary periods include:

Classification Probation Period
Community Resource Coordinator 2,080 hours
Community Service Aid 2,080 hours
Confidential Operations Assistant 2,080 hours
Crime Analyst 2,080 hours
Executive Assistant to the Police Chief 2,080 hours
Dispatcher Clerk 2,080 hours
Fire Captain 121 shifts
Fire Engineer 121 shifts
Firefighter 121 shifts (one year)
Personnel and Training Supervisor 2,080 hours
Police Captain 2,080 hours
Police Lieutenant 2,080 hours
Police Office Assistant 2,080 hours
Police Office Coordinator 2,080 hours
Police Sergeant 2,080 hours
Property Clerk 2,080 hours
City Council/RSA Agenda 46 Tuesday, September 24, 2024
Property and Evidence Supervisor 2,080 hours
Property and Evidence Specialist 2,080 hours
Public Service Officer 3,120 hours
Records Supervisor 2,080 hours
In individual cases, by mutual consent between the Appointing Authority and employee, the probationary period may be extended to a maximum of 1,040 hours beyond the period set forth above. The probationary period shall be considered as part of the examination and selection process from the time of appointment. Absence from work with or without pay totaling more than 176 work hours, or eleven (11) shifts for fire employees, for any reason, shall not be counted toward completion of the probationary period.

City Council/RSA Agenda 47 Tuesday, September 24, 2024
RULE VI.

Classification Probation Period
Community Resource Coordinator 2,080 hours
Community Service Aid 2,080 hours
Confidential Operations Assistant 2,080 hours
Crime Analyst 2,080 hours
Executive Assistant to the Police Chief 2,080 hours
Personnel and Training Supervisor 2,080 hours
Police Captain 2,080 hours
Police Lieutenant 2,080 hours
Police Office Assistant 2,080 hours
Police Office Coordinator 2,080 hours
Police Sergeant 2,080 hours
Property and Evidence Supervisor 2,080 hours
Property and Evidence Specialist 2,080 hours
Public Service Officer 3,120 hours
Records Supervisor 2,080 hours
City Council/RSA Agenda 48 Tuesday, September 24, 2024
In individual cases, by mutual consent between the Appointing Authority and employee, the probationary period may be extended to a maximum of 1,040 hours beyond the period set forth above. The probationary period shall be considered as part of the examination and selection process from the time of appointment. Absence from work with or without pay totaling more than 176 work hours , for any reason, shall not be counted toward completion of the probationary period.

City Council/RSA Agenda 49 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: MARIO VALLEJO, INFORMATION TECHNOLOGY DIRECTOR
SUBJECT: ADOPT A RESOLUTION APPROVING A TWO-YEAR SERVICE AGREEMENT WITH KROLL ASSOCIATES, INC., FOR A NOT-TO-EXCEED AGGREGATE SUM OF $158,000.00,

AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT Staff recommends that the City Council approve a two-year service agreement with the security company Kroll Associates, Inc., for a not-to-exceed aggregate sum of $158,000.00. The two-year agreement will continue the current around-the-clock (24 hours/day) Endpoint Response and Remediation support by Kroll/Red Canary and software licenses with Kroll Hosted SentinelOne for 360 computer nodes, and adds Identity Protection for 324 users.

STRATEGIC PLAN ALIGNMENT
This agreement supports Goal D.: Create a healthy, sustainable community and maintain and improve the City infrastructure.

Strategy 2 (New 2021): Enable a robust cyber security and information technology disaster recovery service.

BACKGROUND
In September 2019, the City’s Information Technology computer network was hit by a virus that impacted the software and data on the City’s servers and multiple computer systems. The City entered into a short-term service agreement with Kroll Associates, Inc. to perform security forensics and to assist in securing Union City computers from the spread of the virus. In November 2019, the City entered into a one-year, $65,000 service agreement with Kroll Associates, Inc. to provide 24 hours/day Endpoint Response and Remediation support by Kroll/Red Canary and license the software Carbon Black Response/Defense. The one-year service agreement was renewed in November 2020 and November 2021. In November 2022, the service agreement was renewed for two years.

DISCUSSION
The KrollAssociates, Inc. agreement puts in place a 24 hour/day security operations center (SOC) with dedicated security engineers to review suspicious activities for all Union City computers. In the last three months, there were over 8 billion telemetry records analyzed by the Red Canary analytics engine and 4,077 suspicious activities investigated. In multiple confirmed threats, the endpoint security software was able to detect malicious software and automatically stop virus infection. During weekends and off hours, the SOC City Council/RSA Agenda 50 Tuesday, September 24, 2024
continues to monitor the City computers and notifies City staff if a confirmed threat needs immediate attention.

City staff members meet with the Kroll and Red Canary Security Engineers monthly to review alerts of different severities and ensure any virus detections are investigated and blocked. Staff and our dedicated support team at Kroll/Red Canary work to deploy the latest SentinelOne software, evaluate new cyber threats, and update the automated security actions.

In this new agreement using SentinelOne, the number of supported computer nodes has been increased from 340 to 360 to account for new employees and new virtual machines., but the annual per unit cost has decreased by 16.4% compared to the last agreement, from $205.00 per unit to $171.23 per unit.

Additionally, in this new agreement, the City is adding Identity Protection for 324 users to protect City staff and their credentials necessary to access City online resources. The annual per unit cost for this service is $53.57. In total, the annual service agreement, with the new Identity Protection, has increased from $69,700 per year to $79,000 per year, an overall net increase of 13.3%.

FISCAL IMPACT
The $79,000.00 yearly cost of this service agreement was added and approved in the FY 2024-2025 budget. As there are sufficient funds budgeted to cover the cost of this service agreement, there will be no fiscal impact to the FY 2024-2025 Adopted Budget. The cost of the FY 2025-2026 service agreement will be appropriated as part of the biennial budget process.

RECOMMENDATION
Staff recommends that the City Council approve this new two-year service agreement with Kroll Associates, Inc., for a not-to-exceed aggregate sum of $158,000.00, and authorize the City Manager to execute the agreement.

Prepared by:

Dwayne Thaele, Cybersecurity Manager
Submitted by:

Mario J. Vallejo, Information Technology Director
ATTACHMENTS:

Description Type
Draft Resolution Resolution
Exhibit A - City of Union City and Kroll ServiceAgreement Exhibit City Council/RSA Agenda 51 Tuesday, September 24, 2024

Page 1 of 2 ends

RESOLUTION NO. XXXX-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF UNION CITY APPROVING A TWO-YEAR SERVICE
AGREEMENT WITH KROLL ASSOCIATES, INC., FOR A
NOT-TO-EXCEED AGGREGATE SUM OF $158,000.00, AND

AUTHORIZING THE CITY MANAGER TO EXECUTE THE

AGREEMENT
WHEREAS, the City has leveraged the services of Kroll Associates, Inc. since the virus attack in 2019 to perform security monitoring and forensics and help restore Information Technology services; and
WHEREAS, this new agreement will continue the existing around-the-clock (24 hours/day) Endpoint Response and Remediation support by Kroll/Red Canary and license the software but will replace the older Carbon Black Defense using Kroll Hosted SentinelOne Service for 360 computer nodes. Additionally, the City will be adding Identity Protection for 324 users, which Kroll Associates will also manage by Kroll Associates; and WHEREAS, the FY 2024-2025 budget contains sufficient appropriations to cover the yearly cost of $79,000.00; and
WHEREAS, the new contracted services will begin on November 25, 2024, and continue through November 24, 2026.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Union City hereby approves the two-year service agreement and the new SentinelOne Singularity and Identities services with Kroll Associates, Inc., for a not-to-exceed aggregate sum of $158,000.00 and authorizes the City Manager to execute the agreement (Exhibit A) in a form approved by the City Attorney.

City Council/RSA Agenda 52 Tuesday, September 24, 2024
Resolution No. XXXX-24
Two-Year Service Agreement with Kroll Associates, Inc.

Page 2 of 2 ends

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on the 24th day of September 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:

THAI NAM N. PHAM
City Clerk
KRISTOPHER J. KOKOTAYLO
City Attorney
Attachment:

1. Exhibit A – Kroll Associates Agreement
City Council/RSA Agenda 53 Tuesday, September 24, 2024

CONFIDENTIAL
Rev. 02-24

STATEMENT OF WORK
FOR
Kroll Responder powered by Red Canary
This Statement of Work (“SOW”), dated November 25, 2024, is entered into pursuant to and incorporates herein by reference the letter of engagement, entered into as of September 22, 2019 (together with this SOW, the “Agreement”), by and between City of Union City (“Client”) and Kroll Associates, Inc. on behalf of itself and its affiliates (“Kroll”) for the Kroll Services described herein. Capitalized terms herein shall have the meaning ascribed in the letter of engagement.

Kroll Services and Red Canary Services are described below and subject to the respective terms and conditions referenced herein.

Additionally, Client further accepts and agrees to the terms in the attached Exhibit A (Third Party Software Terms) for the Endpoint Collection Software, which is hereby incorporated into this SOW by reference. The Kroll Services include the provision of endpoint monitoring using SentinelOne Complete™ software (“Endpoint Collection Software”), which is provided to Client in connection with the Kroll Services. This includes:
 30-day Deep Visibility Data Retention
 STAR Pro
 Ranger Insights
 Binary Vault
 RemoteOps
A. Kroll Endpoint Response and Remediation Support Services (“Kroll Services”) As part of Kroll Responder powered by Red Canary service, Kroll will provide the following Kroll Services to Client:

Description of Kroll Services
24x7 Endpoint Response and Remediation Support
Kroll will provide managed remote endpoint response and remediation support for medium and high severity Threat Alerts issued by Red Canary, 24x7x365. Kroll’s incident analysts will review issued Threat Alerts, and using the Client Portal and Endpoint Collection Software, will remotely triage, investigate, and respond to these alerts in an effort to effectively contain and/or remediate the identified threat on actively monitored and online Endpoints. Kroll will provide Client with follow-up update(s) and guidance regarding remediation steps taken, along with required Client follow-up actions and Kroll recommendations.

Kroll’s responsive actions may be limited or modified through written rules of engagement and response playbooks (including the configuration of Red Canary Automate orchestration features) as mutually agreed between Client and Kroll during the Term.

In addition, Kroll will provide the following throughout the Term:
 Periodic threat landscape, detection review, and service update teleconferences City Council/RSA Agenda 54 Tuesday, September 24, 2024

CONFIDENTIAL
2 Rev. 02-24
Description of Kroll Services
 Threat analysis and intelligence advice for new or emerging threats of interest  Threat Alert correlation and root cause analysis
 Malware analysis and remediation guidance
 E-mail based customer support for non-emergency requests, 09:00 to 17:00 EST/EDT, Monday through Friday– excluding U.S. Federal holidays.

Client understands and accepts that, while not anticipated, any response and remediation actions taken could cause unforeseen system errors, outages, or data loss.

On-Demand Cyber Security Services
As an active Kroll Responder Client, Kroll may be engaged to provide additional advisory, incident response and investigative services at a 15% discount from Kroll’s standard rates, including:
 On-site and remote incident response services
 On-site and in-lab forensic imaging and analysis
 Custom digital forensic investigations
 Proactive advisory and assessment services
On-Demand Cyber Security Services are available upon request and subject to the execution of a separate Statement of Work between Kroll and Client.

B. Fee Structure and Invoicing
The initial term of this Statement of Work shall be for two (2) years (“Initial Term”) from the date above (“Effective Date”) and shall automatically renew for successive one-year periods (each a “Renewal Term”), unless either Party provides written notice of termination to the other Party, and in any case no later than forty-five (45) days before the end of the then-current Initial Term or Renewal Term. Upon receipt of written notice, the effective date of the Termination shall be the end of the then-current Initial Term or Renewal Term. From the Effective Date, the Initial Term and any Renewal Term(s) together until termination hereunder shall be the “Term”.

Invoicing for Managed Threat Detection Services. On behalf of its strategic partner, Red Canary, Kroll shall invoice Client for the Kroll Services and the Red Canary Services on a fixed fee basis for a minimum of 360 Endpoints per year (“End User’s Endpoints”). The cost per Endpoint per year is US$171.23 per Endpoint. “Endpoint” means any kind of computing device that the Endpoint Collection software supports.

Inclusive of the additional Red Canary Services listed in Section C, Client will be invoiced annually as follows, excluding applicable taxes:

Kroll Responder powered by Red Canary for 360 Endpoints $61,642.80 Red Canary MDR Identities for 324 Accounts $17,357.00
Kroll shall invoice the Client in full for the annual cost of this service in advance of the Effective Date of the Initial Term, and no more than forty-five (45) days prior to the start of any Renewal Term. The Term is not cancellable, and all payments are non-refundable. Payment is due upon receipt of the invoice and all payments are required in US Dollars (USD).

City Council/RSA Agenda 55 Tuesday, September 24, 2024

CONFIDENTIAL
3 Rev. 02-24
Endpoint Overages. During any calendar month of the Term, in the event that the number of monitored Endpoints exceeds the number of End User’s Endpoints listed above (“Overage”), Client will be invoiced for the Overage during the calendar quarter immediately following the onset of the Overage at a price that is pro-rated based on the cost listed above and the date of increase, and each quarter thereafter in which the monthly quantity of Endpoints monitored exceeds this amount.

Invoicing for On-Demand Cyber Security Services.

In accordance with the description of Kroll Services above, during the Term, Kroll may provide On-Demand Cyber Security Services to Client, subject to execution of an additional Statement of Work. The Professional Fees for this service will be charged at Kroll’s then-current hourly rates, less a discount of 15%.

Kroll’s current hourly rates are as follows:

Consulting Services ................................................................................................................... US$550/hour Travel Time ..................................................................................................... 50% of Consultant hourly rate Media Preservation/Replication .............................................................................................. US$400/media Media / Data Storage ..................................................................................................... US$25/media/month For On-Demand Cyber Security Services, Kroll shall invoice Client for the services performed on a monthly basis with the fee due and payable within thirty (30) days of the date of the invoice. In addition to the Professional Fees identified above, additional charges may include travel time, travel costs, and reasonable out-of-pocket expenses incurred in connection with these services.

To the extent Kroll is requested to provide any written testimony or reports, such additional services will be provided at Kroll’s standard applicable hourly rates. However, oral testimony at deposition, a hearing or trial will be provided at 1.5 times such rates.

Accepted and agreed:

CITY OF UNION CITY
___________________________________
Name:

Title:

Date:

KROLL ASSOCIATES, INC.
___________________________________
Name:

Title:

Date:
[CONTINUE TO NEXT PAGE]
City Council/RSA Agenda 56 Tuesday, September 24, 2024

CONFIDENTIAL
4 Rev. 02-24
C. Red Canary Managed Threat Detection Services (“Red Canary Services”) As Kroll’s strategic partner in providing the Kroll Responder powered by Red Canary service, Red Canary will be responsible for providing the following Red Canary Services to Client, subject to Client’s acceptance of, and provided pursuant to, the Red Canary End User Security Platform Agreement and Statement of Work (“EUSPA”), which terms and conditions are accessible via the applicable link below.

In connection with the Kroll Responder powered by Red Canary services, Client acknowledges and agrees that Client’s acceptance of and agreement to the EUSPA as evidenced by Client’s signature below, is required for the provision of the Red Canary Services by Red Canary.

Description of Red Canary Services
Third Party Services: Red Canary Managed Threat Detection Services, provided by Red Canary for use by Client and Kroll pursuant to the terms and conditions of the Red Canary End User Security Platform Agreement and Statement of Work at https://redcanary.com/wp-content/uploads/2020/11/RedCanary-Terms-and-Conditions-v2020-1-K.pdf.  Includes 24x7x365 Red Canary Threat Alert escalation and Portal access.  Includes Automate features
 Includes MDR Identities
Threat Alerts: Red Canary will provide, as appropriate, Threat Alerts. “Threat Alerts” means analystvetted alerts on malicious activity detected by Red Canary on Client Endpoints.

Threat Alerts will be sent to Kroll and Client’s technical contacts as configured in the Red Canary Portal. Where applicable, each Threat Alert includes information describing the background of the threat related to the particular Alert.

Threat Alerts will contain information that is known to Red Canary about the threat at the time, which typically includes but is not limited to:
 Summary of the detected threat
 Name of affected endpoint and user
 Artifacts such as file names, Internet Protocol (IP) addresses, domain names and registry keys that help support both Client remediation efforts and identification of similar threats.

Client Portal: Client and Kroll will be provided with access to the Red Canary portal (“Portal”) through which Client and Kroll can view data and Threat Alerts.

City Council/RSA Agenda 57 Tuesday, September 24, 2024

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5 Rev. 02-24
D. Client Responsibilities
In connection with the Kroll Services and Red Canary Services, Client agrees to be responsible for performing the following tasks:

1. Installing and maintaining active Endpoint Collection Software on all Client systems to be monitored.

2. Provide Kroll and Red Canary with continuous access to Client’s instance of the Endpoint Collection Software to facilitate ongoing monitoring and response activities for the monitored Endpoints.

3. Obtaining all required authorizations to perform the Managed Threat Detection Services and any data or information required thereby. Client shall obtain consents and authorizes for Kroll and Red Canary and their employees and agents to gain access to and retrieve Technical Data and analyze Threat Alerts and to perform the Red Canary Services and the Kroll Services.

4. In the course of accessing, obtaining and otherwise using the Managed Threat Detection Services and Threat Alerts, Client shall have sole responsibility for the accuracy, quality, integrity, and authorization for use, and intellectual property ownership or right to use necessary for the transferability to Red Canary and Kroll of Technical Data.

5. Client will permit Kroll to include anonymized data that Kroll obtains from the monitoring of Client’s endpoints in Kroll’s proprietary threat intelligence database or feeds, as well as sharing any such data with its intelligence partners. This data includes binary hashes, binary metadata, and EDR event data such as process hashes, IP addresses, domain names, user context (System vs. Local, Root, Network Service, etc.) and operating system version identifiers.

Client’s signature below hereby accepts and agrees to the description of Services and Client Responsibilities above and to the terms and conditions accessible in the links below for the Red Canary Services:

1. the EUSPA: https://redcanary.com/wp-content/uploads/2020/11/Red-Canary-Terms-andConditions-v2020-1-K.pdf

CITY OF UNION CITY
___________________________________
Name:

Title:

Date:

City Council/RSA Agenda 58 Tuesday, September 24, 2024

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6 Rev. 02-24
Exhibit A – Third Party Software Terms
Client acknowledges that the Endpoint collection software is a third-party product, that Kroll does not have access to the source code of the Endpoint collection software and that Kroll has no control over the performance or features of the Endpoint collection software. As such, and except as otherwise provided in this Exhibit A, Kroll disclaims all liability for the Endpoint collection software. Client further acknowledges that it may obtain the Endpoint collection software directly from the applicable licensors or their resellers if it chooses to do so. In the event of any conflict between these Third-Party Software Terms and any other terms of the Agreement, with respect to the Third Party Software, these Third Party Software Terms will control.

Product Name License Terms
SentinelOne –
Singularity
Complete
“SentinelOne” means the licensor of the Solutions.
“Documentation” means SentinelOne’s then-current published documentation such as technical user guides, installation instructions, articles or similar documentation specifying the functionalities of the Solutions and made available to Client.
“Enhancements” means any updates, patches, bug fixes and versions to the Solutions made by SentinelOne.
“Solutions” means SentinelOne’s platform including its malware protection, detection and remediation solutions, endpoint detection and response solutions, device discovery and control solutions, and other solutions offered by SentinelOne over time, directly or through SentinelOne’s partners, together with the software underlying such products and services and any Enhancements., that are made available to Client by Kroll
“Terms” means these Third-Party Software Terms.

Capitalized terms not defined in these Terms will have the meaning given to them in the Agreement between Client and Kroll.

1. Limited use. Client shall only access, use, execute, install (as provided for by Kroll), store, and display the Solutions (including Enhancements) solely in support of Client’s (and Client’s Affiliate(s)) internal business, security and operations, in accordance with the Documentation describing the permissible use of the Solutions and as managed by Kroll. Client agrees to accept all Enhancements necessary for the proper function of the Solutions, and further agrees that Kroll is not responsible for the proper performance of the Solutions or security issues encountered with the Solutions related to Client’s failure to accept Enhancements in a timely manner. All use of the Solutions shall be in accordance with the then-current Documentation. Client agrees that upon termination of Kroll’s Services: (a) all rights and licenses granted to Client under these Terms will immediately terminate and Client will immediately remove all components of the Solutions from Client’s systems and return or destroy all copies of the Solutions; (b) Client will no longer have any right to benefit from the Solutions, unless Client purchases a license for continued use of the Solutions.

2. Restrictions. Client may not do any of the following: (i) modify, disclose, alter, translate or create derivative works of the Solutions (or any components thereof) or any accompanying Documentation; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Solutions (or any components thereof) or any Documentation; (iii) use the Solutions other than as permitted under these Terms, as directly related to Client’s internal business operations and in conformity with the Documentation, and not otherwise use the Solutions for any other commercial or business use, including without limitation, City Council/RSA Agenda 59 Tuesday, September 24, 2024

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Product Name License Terms
offering any portion of the Solutions as benefits or services to third parties; (iv) use the Solutions in violation of any laws or regulations, including, without limitation, to store or transmit infringing, libelous or otherwise unlawful or tortious material, or material in violation of third-party privacy rights; (v) use the Solutions to store, transmit or test for any viruses, software routines or other code designed to permit unauthorized access, disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (vi) probe, scan or test the efficacy or vulnerability of the Solutions, or take any action in an effort to circumvent or undermine the Solutions, except for the legitimate testing of the Solutions in coordination with Kroll, in connection with considering a subscription to the Solutions as licensed herein; (vii) attempt or actually disassemble, decompile or reverse engineer, copy, frame or mirror any part or content of the Solutions, or otherwise derive any of the Solutions’ source code; (viii) access, test, and/or use the Solutions in any way to build a competitive product or service, or copy any features or functions of the Solutions; (ix) interfere with or disrupt the integrity or performance of the Solutions; (x) attempt to gain unauthorized access to the Solutions or their related systems or networks; (xi) disclose to any third party or publish in any media any performance information or analysis relating to the Solutions; (xii) fail to maintain all copyright, trademark and proprietary notices on the Solutions and any permitted copy thereof; or (xiii) cause or permit any Solutions user or third party to do any of the foregoing.

3. Ownership and Reservation of Rights. Client acknowledges that SentinelOne reserves all right, title and interest in and to the Solutions (and any and all modifications to, or derivative works of, the Solutions) and any and all Intellectual Property Rights embodied in the SentinelOne Solutions. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

4. Consent. Client consents and agrees that SentinelOne will (i) store, process and access Client Data only as appropriate to provide Client the Solutions and to improve the Solutions and Other SentinelOne Services and Products; and (ii) implement and maintain commercially reasonable technical, physical and organizational measures to protect the security, confidentiality and integrity of Client Data hosted by SentinelOne or SentinelOne’s authorized third party service providers from unauthorized access, use, alteration or disclosure. “Client Data” means all data and information associated with Client, which is uploaded to, processed by, generated by, and/or stored within the Solutions by Client or through Client’s use of the Solutions or provided in support tickets, but excluding System Data. Notwithstanding anything to the contrary in these Terms or the Agreement, SentinelOne may monitor, collect, use and store System Data solely for SentinelOne’s internal business purposes (including, but not limited to, improving the Solutions and creating new features). “System Data” means anonymous data, aggregate statistics and/or data regarding use of the Solutions, bug reports, or any threat or potential threat collected by the Solutions, detections and/or system behavioral information (including without limitation correlative and/or contextual data) triggered by the aforementioned. Unless otherwise specifically agreed among the Parties, Client Data may be hosted by SentinelOne or its authorized third-party service providers in the United States, Canada, Japan, or the EEA or other locations around the world offered by SentinelOne and as selected by Kroll. Upon the expiration or termination of these Terms, Kroll will require that SentinelOne, in accordance with SentinelOne’s internal destruction policy and process and in any event within no more than sixty (60) days, the Client Data then in its possession, provided that the Solutions on the City Council/RSA Agenda 60 Tuesday, September 24, 2024

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Product Name License Terms
Endpoints are no longer transmitting such Client Data, except for such retention as may be required by applicable law, regulation, or legal process and/or in connection with routine data back-ups on SentinelOne’s computer systems, provided that SentinelOne shall continue to maintain any such retained Client Data in confidence in accordance with these Terms.

5. Confidentiality.

5.1. Definition. “Confidential Information” means all non-public, confidential and/or proprietary information or material disclosed (whether in oral, written, or other tangible or intangible form) by Kroll or SentinelOne (the “Disclosing Party”) to Client, its Affiliates, or its contractors, auditors, legal counsel or agents (the “Receiving Party”) concerning or related to these Terms or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms and conditions of these Terms, as well as the Solutions and the Documentation.

5.2. Obligations. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information only to perform its obligations and exercise rights granted to it hereunder; (ii) use commercially reasonable efforts to protect and safeguard all Confidential Information; and (iii) disclose the Confidential Information only to those Affiliates, employees and contractors of the Receiving Party who have a need to have access to such information for the purposes of these Terms, provided that any such affiliate, employee or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information substantially similar to those contained in these Terms, and the Receiving Party shall remain liable for any material non-compliance of such affiliate, employee or contractor with the terms of these Terms.

5.3. Exceptions. Confidential Information will not include information that:
(a) is in or enters the public domain without breach of these Terms through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to disclose by law or by a subpoena or order issued by a court of competent jurisdiction or other governmental body acting under authority (each, an “Legal Order”), provided that, to the extent not prohibited to do so under applicable Laws, the Receiving Party shall promptly notify the Disclosing Party of such order and shall cooperate with the Disclosing Party to contest or minimize the scope of the disclosure (including application for a protective order) at the Disclosing Party’s expense).

In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section, Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).

5.4. Return or Destruction of Confidential Information. For any reason upon the Disclosing Party’s written request at any time during the Term of these Terms, the Receiving Party shall promptly, and in any case no later than thirty (30) days, return to the Disclosing Party or destroy, the Confidential Information of the Disclosing Party embodied in tangible form, or permanently delete City Council/RSA Agenda 61 Tuesday, September 24, 2024

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Product Name License Terms
Disclosing Party’s Confidential Information then in its possession and, upon Disclosing Party’s written request, certify in writing its compliance with this Section

5.4 and Disclosing Party’s instructions, except for such retention as may be required by applicable law, regulation, or legal process and/or in connection with routine data back-ups on Receiving Party’s computer systems, provided that Receiving Party shall continue to maintain any such retained Confidential Information in confidence in accordance with these Terms. After the expiration or termination of these Terms, the obligations set forth in Section 5 shall continue to apply to all Confidential Information until such Confidential Information ceases to be Confidential Information or is returned to the Disclosing Party, destroyed or permanently deleted in accordance with this Section 5.4.

6. Warranties.

6.1. Conformity with Documentation. During the term that Kroll is providing Services to Client that rely upon the Solutions, Kroll warrants that the then-Current Release will substantially conform in all material respects with the Documentation.

Kroll’s sole obligation for material non-conformity with this warranty shall be, in its sole discretion, to use commercially reasonable efforts (i) to provide Client with an error-correction or workaround to the reported non-conformity; (ii) to replace the non-conforming portions of the Solutions with conforming items; or (iii) if SentinelOne reasonably determines it cannot provide such remedies within a reasonable period of time, to terminate these Terms. The above warranty will not apply: (a) if the Solutions are not used in compliance with the Documentation; (b) if any unauthorized modifications are made to the Solutions by Client or any third party; (c) to use of releases of the Solutions that are not the Current Release or the Solutions released immediately preceding the Current Release; (d) to defects due to accident, abuse or improper use by Client; or (e) to evaluation or use of the Solutions. “Current Release” means the most recent release of the Solutions.

6.2. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND

WARRANTIES SET FORTH IN THIS SECTION, EACH PARTY DISCLAIMS ANY

AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED,

ORAL OR WRITTEN) WITH RESPECT TO THE TERMS AND THE SOLUTIONS,

WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, STATUTE,

CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR

OTHERWISE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY,

FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER

OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN

ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE),
ACCURACY, NON-INFRINGEMENT, CONDITION OF TITLE. THIS

DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. KROLL DOES

NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, DETECT OR

IDENTIFY ALL THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS

SOFTWARE, RESTORE CONTROL OF SYSTEMS WHERE UNAUTHORIZED

ACCESS OR CONTROL HAS OCCURRED AND CLIENT AND ITS AFFILIATES

WILL NOT HOLD KROLL RESPONSIBLE FOR SUCH OR ANY
CONSEQUENCES THEREOF.

7. All Claims between Kroll and Client. Client agrees that it will bring all claims under these Terms against Kroll and will not make claim directly against SentinelOne.

8. Limitation of Liability.

8.1. IN NO EVENT WILL KROLL’S TOTAL LIABILITY ARISING OUT OF OR

RELATED TO THESE TERMS EXCEED (I) THE FEES PAID OR PAYABLE BY City Council/RSA Agenda 62 Tuesday, September 24, 2024

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Product Name License Terms
CLIENT TO KROLL FOR 6 MONTHS OF THE SOLUTIONS SUBSCRIPTION

FEES AT THE TIME OF THE EVENT OR EVENTS LEADING TO THE ALLEGED DAMAGES OR (II) $1,000, WHICHEVER IS GREATER. IN THE EVENT OF A

BREACH OF OR ANY UNAUTHORIZED DISCLOSURE OF CLIENT DATA, KROLL’S TOTAL LIABILITY SHALL NOT EXCEED (Y) THE FEES PAID OR PAYABLE BY CLIENT TO KROLL (OR ITS RESELLER) FOR 12 MONTHS SUBSCRIPTION FEES OR (Z) $10,000, WHICHEVER IS GREATER. THE

FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO CLAIMS ARISING OUT OF KROLL’S JUDICIALLY DETERMINED GROSS

NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OR TO ANY CLAIM FOR WHICH LIABILITY CANNOT BE DISCLAIMED AS A MATTER OF LAW.

8.2. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER

PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE,

LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF

BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,

PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF,

OR IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT,

TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS

BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS

SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED

IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9. Export Compliance. The Solutions are subject to U.S. export control and economic sanctions laws. Client shall not access or use the Solutions if Client is located in any jurisdiction in which the provision of the Solutions is prohibited under U.S. or other applicable laws or regulations as updated from time to time (a “Prohibited Jurisdiction”) and Client agrees not to grant access to the Solutions to any government, entity or individual located in any Prohibited Jurisdiction. Client represents, warrants and covenants that: (i) Client is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Client is not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) Client will not permit users to access or use the Solutions in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, (iv) neither Client nor any of Client’s subsidiaries is an entity that is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control, US Department of the Treasury (“OFAC”) or other similar list maintained by any governmental entity, or that is directly or indirectly owned or controlled by any person or entity that is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity; and (v) Client will comply with all applicable laws regarding the access to and use of the Solutions and/or to the transmission of the Solutions and any other technical data exported from the U.S. and the country in which Client and Client’s users are located.

10. Third Party Products. Client understands that the Solutions may be designed to access, integrate with, or be interoperable with certain Third-Party Products that are not provided by Kroll (“Other Products”), however, any such access and use of Other Products is governed solely by the terms and conditions of the third party provider. Kroll does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Other Products, including, City Council/RSA Agenda 63 Tuesday, September 24, 2024

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Product Name License Terms
without limitation, the technology itself, the availability of, or any content or material made available by the third-party provider. Additionally, Client understands that Other Products may be updated or changed overtime, and therefore, Kroll makes no representations regarding the manner in which the Solutions accesses, integrates or interfaces with or fails to access, integrate or interface with such Other Products. Kroll disclaims all liability with respect to such Other Products or the access, availability, integration, or interoperability of the Other Products with Solutions. Kroll shall not be liable for any damage or loss caused or alleged to be caused by or in connection with Client’s failure to enable access or use of any such Other Products. Additionally, Client understands and agrees that in connection with any access or use of the Other Products, it is relying on the privacy practices, the data security processes and/or other policies of such third-party providers. Client may be required to register for or log into such Other Products on their respective websites and by enabling any Other Products. Client is expressly permitting Kroll and SentinelOne to disclose relevant login information as well as certain information Client Data required by such login, as necessary to facilitate the use or enablement of such Other Products enabled by Client or Kroll.

11. Audit. In order to verify compliance with these Terms or to verify reporting provided by Kroll to SentinelOne, upon written request to Client, which request shall not be made more than once annually during the Term of the Agreement (unless otherwise agreed by the Parties), during normal business hours and upon at least fifteen (15) business days’ prior notice, Client shall provide Kroll and SentinelOne access to Clients records relevant to this Section 11 and product usage logs generated by the SentinelOne Solution.

12. Support. Kroll will use commercially reasonable efforts to provide support to Client with respect to Client’s use or access to the Solution. Kroll shall be the point of contact for all Client support issues. Kroll will act as the initial and primary interface to provide level 1 support to Client. Client agrees that any information provided by Client to Kroll in connection with requesting and/or receiving support for the Solutions may be provided by Kroll to SentinelOne. Kroll shall provide support for (a) its most current version of the Solutions and (b) the immediately preceding version of the Solutions. If Kroll determines it cannot resolve an issue in the Solutions reported by Client, Kroll will submit a support request to SentinelOne. In some cases, SentinelOne may provide support services directly to Client when Kroll is unable to resolve a support issue. Before contacting Kroll with a support request, Client undertakes to: (a) analyze the malfunction to determine if it is the result of Client misuse, the performance of a third party or some other or cause beyond Kroll’s and SentinelOne’s reasonable control, (b) ascertain that the malfunction can be replicated, and (c) collect and provide to Kroll all relevant information relating to the malfunction. Kroll will use commercially reasonable efforts to provide Client with: (A) a workaround within a reasonable time and (B) a resolution within a reasonable time, thereafter, also considering SentinelOne’s release schedule and severity of malfunctions. In providing support services, Kroll and/or SentinelOne support personnel may interact with the Client’s Solutions instance, review application data within such instance and otherwise exchange relevant information with Client as needed to provide support services. The remedies set forth herein are Client’s sole and exclusive remedy with respect to any malfunction.

City Council/RSA Agenda 64 Tuesday, September 24, 2024

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12 Rev. 02-24
Billing Information Form
Please complete the following information and return for Kroll’s engagement. Insurance information only needed for events being submitted under a claim.

Client Contact
Primary Contact: Name/Title
Telephone
Email Address
Additional Contact:

Name/Title
Telephone
Email Address
Billing Information
Address bill to
Billing Physical Address
Billing Email Address
Purchase Order #
Insurance Information (if applicable)
Carrier (Insurer)
Claim #
Claims Handler Name/Title
Telephone
Email Address
Insurance Broker Name/Title
Telephone
Email Address
City Council/RSA Agenda 65 Tuesday, September 24, 2024

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:

Solutions to Protect, Detect, and Respond
Against Cyberattacks
Enriched by frontline threat intel from 3000+ incidents cases every year, Kroll’s protection, detection, and response solutions immediately mature your cyber posture.

Kroll is the Global Leader in Incident Response
City Council/RSA Agenda 66 Tuesday, September 24, 2024
Agenda Item
DATE: 9/24/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: MARILOU AYUPAN, PUBLIC WORKS DIRECTOR
SUBJECT: ADOPT A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH BAY AREA TREE SPECIALISTS, IN THE AMOUNT OF $272,200, FOR THE TREE PRUNING & REMOVAL PROJECT, CITY PROJECT NO. 25-10, AND APPROVING A TOTAL PROJECT AMOUNT UP TO $365,000, WHICH INCLUDES A CONTINGENCY OF $92,800, FOR FISCALYEAR 2024-2025;AND AUTHORIZING THE CITY

MANAGER, IN HER SOLE DISCRETION, TO EXERCISE THE OPTION TO EXTEND THE AGREEMENT FOR A SECOND YEAR, FOR AN ADDITIONAL AMOUNT UP TO $365,000, FOR FISCALYEAR 2025-2026
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute an agreement with Bay Area Tree Specialists, in the amount of $272,200, for the Tree Pruning & Removal Project, City Project No. 25-10, and approving a total contract amount up to $365,000, which includes a contingency of $92,800, for Fiscal Year 2024-2025; and authorizing the City Manager, in her sole discretion, to exercise the option to extend the agreement for a second year, for an additional amount up to $365,000, for FiscalYear 2025-2026.

STRATEGIC PLAN ALIGNMENT
This agenda item is in alignment with the following:

Goal D, Strategy 2 Environmental Sustainability and Infrastructure – Implement the City’s capital improvement plan.

BACKGROUND
The number of City-maintained trees that beautify the various parks, public streets and City facilities number more than fifty thousand. The proper care and maintenance of these important resources involves inspection, trimming, pruning and, on rare occasions, removal based on criteria that balances the protection of the tree as an urban forest investment with safety and aesthetics. Each year, the Grounds Division of Public Works reviews the tree pruning needs of the City and makes recommendations as to which trees, in which neighborhoods, should be pruned. A project is then prepared and advertised for bids.

City Council/RSA Agenda 67 Tuesday, September 24, 2024
In addition to tree pruning, the project also includes up to 60 hours of emergency response time for the contractor to mobilize manpower and equipment during storm events to clear incidents of fallen branches or trees in the public right-of-way. This takes the pressure off City crews to respond to these incidents as they are often preoccupied with other storm-related tasks and have limited capacity.

Stump grinding is not included in the project because the City can do that work with its own crews.

DISCUSSION
The Request for Proposals for the 2024-2025 Tree Pruning & Removal Project, City Project No. 25-10, was advertised on the City’s website, the active builder exchanges listed in the California Uniform Construction Cost Accounting Commission’s Cost Accounting Policies and Procedures Manual 2019 Edition, and in the Tri City Voice newspaper for three consecutive weeks, beginning with the July 30, 2024, edition. Seven bids were received and were opened on August 27, 2024, at 2:00 p.m. PST in City Hall.

The seven bids were received and opened, with bids ranging from the lowest bid at $272,200 to the highest bid at $348,740. The lowest bidder was Bay Area Tree Specialists of San Jose, California.

Bay Area Tree Specialists was previously awarded the City contract on September 22, 2020, and was subsequently awarded a first, second, and third amendment to the contract for continued service until July 2023. When the contract went to bid in 2023, The Professional Tree Care Company was awarded the contract for FiscalYear 2023-2024.

Staff has been satisfied with Bay Area Tree Specialist’s past performance, and, as the lowest bidder, staff recommends awarding them the FiscalYear 2024-2025 contract.

FISCAL IMPACT
Staff recommends a total budget of $365,000 per fiscal year, which willaward the proposed project in the base bid amount of $272,200 with a $92,800 contingency (approximately 34%). The contingency willallow the City to respond to emergency situations such as fallen trees during major storms and strong wind events and other unplanned tree maintenance at bid unit prices.

Maintenance contract amount per FY $272,200
Contingency (~34% of maintenance contract) per FY $92,800 Overall estimated maintenance cost per FY $365,000
The approved 5-year Capital Improvement Plan (CIP) has identified the following project funding sources for FY 2024-2025 and FY 2025-2026:

FY2024-2025
Gas Tax Fund 2510-3199-92510-54111 $200,000
Lighting & Landscaping Fund 2591-3199-92510-54111 $165,000 Overall annual funding from all sources $365,000
FY2025-2026
TBD (Staf will identify funding in the next Biennial Budget in Spring 2025)
$200,000
Lighting & Landscaping Fund 2591-3199-92610-54111 $150,000 Overall annual funding from all sources $365,000
City Council/RSA Agenda 68 Tuesday, September 24, 2024
The project was bid with an option to extend services an additional year when additional funds become available, which will be part of the upcoming Biennial Budget that will be completed in Spring 2025. Should the performance of Bay Area Tree Specialists be satisfactory, the City Manager may, in her sole discretion, exercise the option to extend the agreement for one additional year.

RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute an agreement with Bay Area Tree Specialists, in the amount of $272,200, for the Tree Pruning & Removal Project, City Project No. 25-10, and approving a total contract amount up to $365,000, which includes a contingency of $92,800, for Fiscal Year 2024-2025; and authorizing the City Manager, in her sole discretion, to exercise the option to extend the agreement for a second year, for an additional amount up to $365,000, for FiscalYear 2025-2026.

Prepared by:

Jesus Banuelos, Grounds Supervisor
Submitted by:

Marilou Ayupan, Public Works Director
ATTACHMENTS:

Description Type
Attachment 1 - Notice of Inviting Bids Attachment
Attachment 2 -Agreement Attachment
Draft Resolution Resolution
Exhibit A - Bid Summary Exhibit
Exhibit B- Bid Tabulation Exhibit
City Council/RSA Agenda 69 Tuesday, September 24, 2024

CITY OF UNION CITY

DEPARTMENT OF PUBLIC WORKS
CITY PROJECT NO. 25-10

NOTICE TO CONTRACTORS
Sealed proposals for the work shown on the plans entitled: FY2024-2025 TREE PRUNING PROJECT (“Project”), City Project No. 25-10, will be received at the office of the City Clerk of the City of Union City, City Government Building, 34009 Alvarado-Niles Road, Union City, California, until Tuesday, August 27, 2024, 2:00PM PST, at which time they will be publicly opened and read in the Council Chambers of said building.

The Contractor shall possess a valid Class C-61/D-49 (Tree Service) California contractor’s license at the time this contract is awarded.

Bids are required for the entire work described herein. This contract is subject to the State contract nondiscrimination and compliance requirements pursuant to Government Code Section 12990.

Bid Package & Bid Package Location. All of the project work is to be done in accordance with the bid package on file with the Public Works Department - City of Union City, 34009 Alvarado-Niles Road, Union City, California 94587. Eligibility to bid on this project requires bid package to be electronically obtained from the City. Bid package may be obtained at no charge via email request to the City at [email protected]. Non-biddable plans and specifications shall be available to view at various Builders’ Exchanges throughout the Bay Area and on the City of Union City website at www.unioncity.org.

General Work Description: The work to be done, in general, consists of tree pruning services with a small allowance for tree removal and emergency call out work. As the City’s annual tree maintenance contract, the project duration is one-year, with the possibility of being extended an additional year. The Engineer’s Estimate for the project base is Three Hundred Thousand Dollars ($300,000).

All questions should be emailed or fax to Jesus Banuelos of City of Union City, email:
[email protected] or fax to (510) 489-9468. The successful bidder shall furnish a Payment Bond, a Performance Bond, and a Maintenance Bond.

Minimum wage rates for this project as predetermined by the Secretary of Labor are set forth in the special provisions. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and prevailing wage rates determined by the Department of Industrial Relations for similar classifications of labor, the contractor and his subcontractors shall pay not less than the higher wage rates.

Pursuant to Section 1773 of the Labor Code, the general prevailing rate of wages in the county in which the work is to be done has been determined by the Director of the wage rates appear in the Department of Transportation publication entitled General Prevailing Wage Rates, (current semi-annual which have been predetermined and are on file with the Department of Industrial Relations are referenced but not printed in said publication.

City Council/RSA Agenda 70 Tuesday, September 24, 2024
Agreement between City of Union 1
City and Bay Area Tree Specialists,
City Project No. 25-10

CITY OF UNION CITY
34009 Alvarado-Niles Road
Union City, California 94587

AGREEMENT

TREE PRUNING & REMOVAL PROJECT
CITY PROJECT NO. 25-10
The City of Union City (“City”) enters into this contract (“Agreement”), dated for reference purposes only, with Bay Area Tree Specialists, 541 W. Capitol Expressway #287, San Jose, CA 95136 (“Contractor”).

RECITALS

1. NOTICE INVITING BIDS. The City gave Notice Inviting Bids for the submission of bids on or before 2:00 PM PST on August 27, 2024, for the Annual Tree Pruning & Removal Project, City Project No. 25-10 (“Project”), by published notice and/or posting in accordance with California Public Contract Code Section 20164 and other applicable laws and regulations.

2. BID OPENING. At 2:00 PM PST on August 27, 2024, City representatives opened the bids for the Project and read the bids aloud. See Exhibit A for bid package.

3. PROJECT AWARD. On the date of September 24, 2024, the City Council awarded the Project to the Contractor and directed City staff to send the Contractor written Notice of Award of the project. The City Council conditioned the award of the project on the Contractor’s providing complete, accurate, and executed copies of all documents specified in the Contract Check List included in the bid package within ten (10) working days of receiving written Notice of Award of the project.

4. REQUIRED DOCUMENTS. The Contractor has provided the City with complete, accurate, and executed copies of all documents specified in the Contract Check List included in the bid package within ten (10) working days of receiving written Notice of Award.

AGREEMENT TERMS
The City and the Contractor agree as follows:

1. THE WORK. The Contractor shall furnish all equipment, tools, apparatus, facilities, services, labor, materials, and skill necessary to perform and complete in a good and workmanlike manner the construction of the Project (“Work”) as shown in the bid package and in accordance with the Contract Documents and City Council/RSA Agenda 71 Tuesday, September 24, 2024
Agreement between City of Union 2
City and Bay Area Tree Specialists,
City Project No. 25-10
applicable laws and regulations. See Exhibit B for General and Special Conditions.

2. LOCATION OF WORK. The Work will be performed at the location(s) listed in the Project Plans and Technical Specifications.

3. TIME FOR COMPLETION. The Contractor must complete the Work in accordance with the Contract Documents within One Year from the date specified in the City’s Notice to Proceed (“Time for Completion”).

4. REMEDIES FOR FAILURE TO TIMELY COMPLETE THE WORK. If the Contractor fails to fully perform the Work in accordance with the Contract Documents by the Time for Completion, or as such time may be amended by Change Order or other amendment or modification to this Agreement in accordance with its terms and conditions, and/or if the Contractor fails, by the Time for Completion, to fully perform all of the Contractor’s obligations under this Agreement that have accrued by the Time for Completion, the Contractor will become liable to the City for all resulting loss and damage in accordance with the Contract Documents and applicable laws and regulations. The City’s remedies for the Contractor’s failure to perform include, but are not limited to, an assessment of Liquidated Damages of no more than $500 per day for each and every calendar day’s delay in finishing the work in accordance with California Government Code Section 53069.85 and the Contract Documents, and/or obtaining or providing for substitute performance in accordance with the Contract Documents. In addition, further requirements for timely completion of individual portions of the project are listed in the General and Special Conditions, Project Plans and Technical Specifications.

5. CONTRACT PRICE AND PAYMENT. As full compensation in consideration of completion of the Work in accordance with the Contract Documents and in consideration of the fulfillment of all of the Contractor’s obligations under the Contract Documents, the City will pay the Contractor in lawful money of the United States the total price of Two Hundred Seventy-Two Thousand Two Hundred Dollars ($272,200) (the “Contract Price”) as specified in the Contractor’s completed Bid Schedule form dated August 27, 2024, and attached to and incorporated in this Agreement. Payment to the Contractor under this Agreement will be for Work actually performed in accordance with the Contract Documents and will be made in accordance with the requirements of the Contract Documents and applicable laws and regulations. The City will have no obligation to pay the Contractor any amount in excess of the Contract Price unless this Agreement is first modified in accordance with its terms. The City’s obligation to pay the Contractor under this Agreement is subject to and may be offset by charges that may apply to the Contractor under this Agreement. Such charges include, but are not limited to, charges for liquidated damages and/or substitute performance in accordance with the Contract Documents.

City Council/RSA Agenda 72 Tuesday, September 24, 2024
Agreement between City of Union 3
City and Bay Area Tree Specialists,
City Project No. 25-10

6. PREVAILING WAGES. In accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the Work is to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in the California Labor Code must be paid to all workers engaged in performing the Work. In accordance with California Labor Code Section 1770 and following, the Director of Industrial Relations has determined the general prevailing wage per diem rates for the locality in which the Work is to be performed. In accordance with California Labor Code Section 1773, the City has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the project. In accordance with California Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at the City Public Works Department - City of Union City, 34009 Alvarado-Niles Road, Union City, California 94587, and will be made available on request. Throughout the performance of the Work the Contractor must comply with all provisions of the Contract Documents and all applicable laws and regulations that apply to wages earned in performance of the Work.

Contractor agrees, in accordance with Section 1771.1 of the California Labor Code, that Contractor or any subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Contractor agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

7. THE CONTRACT DOCUMENTS. This agreement consists of the following documents (“Contract Documents”), all of which are incorporated into and made a part of this agreement as if set forth in full. In the event of a conflict between or among the Contract Documents, precedence will be in the following order:

7.1 This agreement and change orders and other amendments to this agreement signed by authorized representatives of the City and the Contractor.

City Council/RSA Agenda 73 Tuesday, September 24, 2024
Agreement between City of Union 4
City and Bay Area Tree Specialists,
City Project No. 25-10

7.2 The Special Conditions, General Conditions and change orders and other amendments to the General Conditions signed by authorized representatives of the City and the Contractor.

7.3 The Technical Specifications, addenda to the Technical Specifications signed by authorized representatives of the City and issued prior to bid opening, Equal Product Proposals accepted by the City and signed by authorized City representatives prior to bid opening, and change orders and other amendments to the Technical Specifications signed by authorized representatives of the City and the Contractor.

7.4 The Project Plans, addenda to the Project Plans signed by authorized representatives of the City and issued prior to bid opening, Equal Product Proposals accepted by the City and signed by authorized City representatives prior to bid opening, and change orders and other amendments to the Project Plans signed by authorized representatives of the City and the Contractor.

7.5 Notice Inviting Bids

7.5 Contract Check List and Bidder’s Check List, and Addenda to the Contract Check List and Bidder’s Check List signed by authorized representatives of the City and issued prior to bid opening.

7.6 Proposal to the City Council, Bid Schedule, List of Subcontractors and Bid Label, and amendments to the Proposal to the City Council, Bid Schedule, List of Subcontractors and Bid Label that are written and initialed by the individual signing the bid.

7.7 Bidder’s Bond and amendments to the Bidder’s Bond written and initialed by the individual signing the bid; Performance Bond and Payment/Labor and Materials Bond signed by the Contractor and the Surety; and Maintenance Bond, which must be executed prior to release of final payment under the Contract Documents, signed by the Contractor and the Contractor’s surety or sureties.

7.8 Optional Escrow Agreement for Security Deposits in Lieu of Retention.

7.9 Release Forms, if applicable.

7.10 Certificates of Insurance and Endorsements.

7.11 Title 23, United States Code Section 112 No-collusion Statement.

City Council/RSA Agenda 74 Tuesday, September 24, 2024
Agreement between City of Union 5
City and Bay Area Tree Specialists,
City Project No. 25-10

7.12 California Public Contract Code Section 10285.1 Statement; California Public Contract Code Section 10162 Questionnaire; California Public Contract Code Section 10232 Statement; and California Public Contract Code Section 7106 Noncollusion Declaration to be Executed by Bidder and Submitted with Bid.

7.13 Form 1093 Affirmative Action Program Amendment to Subcontract; Form 1094
Questionnaire on Personnel Practices for Contractors; Form 1095 Notice:

This Company is an Equal Opportunity Employer; and Experience and Financial Questionnaire.

8. INTERPRETATION OF CONTRACT DOCUMENTS. Any question concerning the intent, nature, scope or meaning of any provision of the Contract Documents, including, but not limited to, the Project Plans and Technical Specifications, must be submitted to the Public Works Director, or his/her designee, for issuance of an interpretation and/or decision on behalf of the City and in accordance with the requirements of the Contract Documents. Interpretations or decisions by any other person concerning the Contract Documents will not be binding on the City. The decision of the Public Works Director, or his/her designee, is binding on the Contractor and shall be final.

9. ASSIGNMENT PROHIBITED. The Contractor may not assign part or all of this Agreement, or any moneys due or to become under this Agreement, or any other right or interest of the Contractor under this Agreement, or delegate any obligation or duty of the Contractor under this Agreement, without the prior written approval of an official authorized to bind the City and an authorized representative of Contractor’s surety or sureties. Any such purported assignment or delegation without such written approval on behalf of the City and the Contractor’s surety or sureties will be void and a material breach of this Agreement subject to all available remedies under the Contract Documents and at law and equity.

10. CERTIFICATION RE CONTRACTOR’S LICENSE . By signing this Agreement the Contractor certifies that the Contractor holds a valid C-61/D49 issued by the Contractors State License Board of California, and that the Contractor understands that failure to maintain its license(s) in good standing throughout the performance of the Work may result in discipline and/or other penalties pursuant to the California Public Contract Code, California Business and Professions Code and other applicable laws and regulations, and may constitute a material breach of this Agreement subject to all available remedies under the Contract Documents and at law and equity.

11. NOTICE OF THIRD-PARTY CLAIMS. Pursuant to Public Contracts Code section 9201, the City shall provide the Contractor with timely notice of claims relating to this Contract filed by third parties no later than ten (10) business days City Council/RSA Agenda 75 Tuesday, September 24, 2024
Agreement between City of Union 6
City and Bay Area Tree Specialists,
City Project No. 25-10
from the date of receipt of the claim. The Contractor shall be responsible for reimbursing the City for its reasonable costs in providing the notification.

12. SEVERABILITY. If any term or provision or portion of a term or provision of this Agreement is declared invalid or unenforceable by any court of lawful jurisdiction, then the remaining terms and provisions or portions of terms or provisions will not be affected thereby and will remain in full force and effect.

Executed on _____________________, by

CITY OF UNION CITY, BAY AREA TREE SPECIALISTS
A Municipal Corporation
____________________________ ______________________________

JOAN MALLOY, CITY MANAGER RICHARD SMITH, OWNER
ATTEST:
___________________________
THAI NAM N. PHAM

CITY CLERK
APPROVED AS TO FORM:
____________________________
KRISTOPHER J. KOKOTAYLO

CITY ATTORNEY

City Council/RSA Agenda 76 Tuesday, September 24, 2024
Agreement between City of Union
City and Bay Area Tree Specialists,
City Project No. 25-10

EXHIBIT A

BID DOCUMENTS
City Council/RSA Agenda 77 Tuesday, September 24, 2024
City Council/RSA Agenda 78 Tuesday, September 24, 2024
City Council/RSA Agenda 79 Tuesday, September 24, 2024
City Council/RSA Agenda 80 Tuesday, September 24, 2024
City Council/RSA Agenda 81 Tuesday, September 24, 2024
City Council/RSA Agenda 82 Tuesday, September 24, 2024
City Council/RSA Agenda 83 Tuesday, September 24, 2024
City Council/RSA Agenda 84 Tuesday, September 24, 2024
City Council/RSA Agenda 85 Tuesday, September 24, 2024
City Council/RSA Agenda 86 Tuesday, September 24, 2024
City Council/RSA Agenda 87 Tuesday, September 24, 2024
City Council/RSA Agenda 88 Tuesday, September 24, 2024
City Council/RSA Agenda 89 Tuesday, September 24, 2024
City Council/RSA Agenda 90 Tuesday, September 24, 2024
City Council/RSA Agenda 91 Tuesday, September 24, 2024
City Council/RSA Agenda 92 Tuesday, September 24, 2024
City Council/RSA Agenda 93 Tuesday, September 24, 2024
City Council/RSA Agenda 94 Tuesday, September 24, 2024
City Council/RSA Agenda 95 Tuesday, September 24, 2024
City Council/RSA Agenda 96 Tuesday, September 24, 2024
City Council/RSA Agenda 97 Tuesday, September 24, 2024
City Council/RSA Agenda 98 Tuesday, September 24, 2024
City Council/RSA Agenda 99 Tuesday, September 24, 2024
City Council/RSA Agenda 100 Tuesday, September 24, 2024 City Council/RSA Agenda 101 Tuesday, September 24, 2024 Agreement between City of Union
City and Bay Area Tree Specialists,
City Project No. 25-10

EXHIBIT B

GENERAL AND SPECIAL CONDITIONS, TECHNICAL SPECIFICATIONS (FROM BID SOLICITATION)
City Council/RSA Agenda 102 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
46 PART II:

GENERAL CONDITIONS

1. DEFINITIONS.

The following terms, as used in any Agreement of which these General and Special Conditions are a part, are defined as follows:

1.1 Agreement: The Agreement between the City and Contractor concerning the Project, as evidenced by, and comprised of all of the Contract Documents.

1.2 Architect or Engineer: The person or persons so specified on the title sheet of the Project Plans and Technical Specifications.

1.3 Bid Package: All of the documents listed in the Instructions to Bidders as representing the full set of documents made available to bidders on the Project.

1.4 City: The City of Union City and its constituent entities, including, but not limited to, the City Council, the Office of City Clerk, the Public Works Department and as otherwise specified in the Contract Documents, and its employees.

1.5 Contract Documents: All those documents listed in the Agreement as comprising the entire Agreement between the City and the Contractor.

1.6 Contractor: The successful bidder for the Project and party to the Agreement with the City.

1.7 Construction Manager: The City’s authorized representative for administration and overall management of the Agreement and Work. The Construction Manager is the official point of contact between the City, the Architect and/or Engineer, and the Contractor.

1.8 Days: Unless otherwise specified in the Agreement, days mean working days.

1.9 Project: FY2024-2025 Tree Pruning Project, City Project No. 25-10, as described in the bid package.

1.10 Project Plans: The primarily graphic detailed requirements concerning the Project, contained in Volume 3 of the bid package and any Addenda to the Project Plans signed by authorized City representatives and issued prior to bid opening, Equal Product Proposals accepted by the City and signed by authorized City representatives prior to bid opening, and Change Orders and other amendments to the Project Plans signed by authorized representatives of the City and the Contractor in accordance with the requirements of the City Council/RSA Agenda 103 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
47 Agreement. In general, the Project Plans indicate dimensions, position, and kind of construction.

1.11 Section: One of the enumerated subdivisions of the General and Special Conditions, unless otherwise indicated by language to the contrary or context.

1.12 Subcontractor: A person, firm or corporation that is obligated as a party to a contract with the Contractor to perform part of the Work. For purposes of these General and Special Conditions, Subcontractors include, but are not limited to, those that are obligated as parties to a contract with the Contractor to specially fabricate and install a portion of the Project Work according to the Project Plans and Technical Specifications.

1.13 Technical Specifications: The detailed Project requirements contained in Volume 3 of the bid package and any Addenda to the Technical Specifications signed by authorized City representatives and issued prior to bid opening, Equal Product Proposals accepted by the City and signed by authorized City representatives prior to bid opening, and Change Orders and other amendments to the Technical Specifications signed by authorized representatives of the City and the Contractor in accordance with the requirements of the Contract Documents. In general, Technical Specifications indicate qualities, quantities, and methods of construction.

1.14 Work: The furnishing of all equipment, tools, apparatus, facilities, services, material, labor, and skill necessary to perform and complete in a good and workmanlike manner the Project as shown in the Project Plans and Technical Specifications and other Contract Documents in accordance with the Agreement and applicable laws and regulations.

1.15 Written Notice: Notice that will be deemed to have been duly served for purposes of these General and Special Conditions and any Agreement of which they are a part if delivered in person to the individual or to a member of the entity or to any office of the entity for whom the notice is intended, or if sent by registered or certified mail, to the last known business address known to the party giving notice. Unless otherwise specified in the Agreement, the last known address of the Contractor shall be that listed in the Contractor’s completed Proposal to the City Council and Bid Schedule.

2. SCOPE OF WORK.

2.1 Documents Furnished by City. The City will furnish to the Contractor, free of charge, five (5) sets of prints of the Project Plans and Technical Specifications for execution of the Work. Throughout the performance of the project Work, the Contractor must keep one copy of the Project Plans and Technical Specifications in good order and available for review by the Construction Manager, the Engineer, the Architect, and any other City contractors or representatives.

City Council/RSA Agenda 104 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
48 2.2 Ownership of Documents Furnished by City. All documents furnished by the City, including, but not limited to, the Project Plans and Technical Specifications, and any copies, are the property of the City. Any documents furnished by the City may not to be used on any other work. All documents furnished by the City must be returned to City upon completion of the Work.

2.3 Project Plans and Technical Specifications.

2.3.1 The Project Plans and Technical Specifications are complementary and intended to mutually describe the Work necessary to complete the Project in accordance with the Agreement.

2.3.2 Any Work indicated on the Project Plans and not mentioned in the Technical Specifications, or vice versa, must be furnished as though fully set forth in both. Work that is not particularly detailed, marked or specified shall be the same as similar Work that is detailed, marked, or specified.

The Contractor must furnish the equipment, tools, apparatus, facilities, services, material, labor, and skills necessary for the operation of equipment depicted in the Project Plans and Technical Specifications in a fashion that is suitable to allow such equipment to function properly at no extra charge.

2.3.3 The Contractor must notify the Construction Manager and the Architect or Engineer as soon as possible of any actual and/or apparent errors or inconsistencies, including, but not limited to, typographical or notational errors in the Project Plans and Technical Specifications and/or in work done by others affecting the Work. The Construction Manager will issue instructions concerning any such actual and/or apparent errors or inconsistencies. If the Contractor proceeds with Work impacted by actual and/or apparent errors or inconsistencies without instructions from the Construction Manager, the Contractor shall do so at its sole risk and shall have all of the obligations, and the City shall have all of the rights and remedies specified in Section 11 concerning any resulting damage or defect.

2.3.4 The General Conditions and Special Conditions apply with equal force to all the Work, including extra Work authorized by the Construction Manager in accordance with the Contract Documents. The Contractor must submit any required shop diagrams and/or drawings by the times and in the qualities, quantities and methods indicated in the Technical Specifications. Any such shop diagrams and/or drawings must show completely the Work to be done, which includes, but is not limited to, expanding on the Project Plans concerning details not previously shown, field conditions at the Project site and the condition of the Work. An Architect or Engineer review of such shop diagrams and/or drawings will only concern conformance with the requirements of the Contract City Council/RSA Agenda 105 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
49 Documents. The Architect or Engineer assumes no responsibility for the correctness or accuracy of the dimensions or any other contents of any shop diagrams and/or drawings submitted by the Contractor. The Contractor must check all dimensions at the Work site. Shop diagrams and/or drawings must be clearly marked with the name of the Project and the name of the Contractor, Subcontractor or supplier making the submittal, and must be stamped and signed by the Contractor and submitted under a signed transmittal letter from the Contractor certifying that all dimensions have been checked at the Work site. These requirements are mandatory. The Architect or Engineer will not review shop diagrams and/or drawings that do not satisfy these requirements.

The Contractor will be responsible for any and all discrepancies between dimensions of the actual Project site and/or Work and those shown on shop diagram and/or drawings submitted by the Contractor, and for any other errors or omissions contained in or resulting from such shop diagrams and/or drawings, including, but not limited to, errors in material and/or equipment quantities and any resulting errors, omissions, delays or additional cost in the performance of the Work. The Contractor will have all the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any discrepancies or errors or omissions in shop diagrams and/or drawings submitted by the Contractor, and concerning any resulting errors, omissions, delays or additional costs in the performance of the Work.

3. CONTROL OF WORK AND MATERIAL.

3.1 Construction Manager’s Status. The Construction Manager will administer the Project in accordance with the Contract Documents. After execution of the agreement and issuance of the Notice to Proceed, all correspondence and/or instructions concerning the Project between the Contractor and/or City shall be forwarded through the Construction Manager. Except as otherwise provided in the Contract Documents, the Construction Manager will not be responsible for and will not have control or charge of construction means, methods, techniques, or procedures or for safety precautions in connection with the Work. The Construction Manager, however, will have authority to reject materials and/or workmanship that do not conform to the requirements of the Contract Documents.

The Construction Manager will also have the authority to require inspection or testing of the Work.

3.2 Architect or Engineer’s Status. The Architect or Engineer will advise the Construction Manager concerning decisions on all claims of the Contractor and all other matters relating to the execution and progress of the Work or the interpretation of the Contract Documents. The Architect or Engineer will also advise the Construction Manger concerning Work that does not conform to the Contract Documents. Whenever, in the Architect's or Engineer’s opinion, it is necessary or advisable in accordance with the Contract Documents, the Architect City Council/RSA Agenda 106 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
50 or Engineer may recommend to the Construction Manager inspection or testing of the Work, whether or not such Work is then fabricated, installed or completed.

3.3 Inspection and Testing of Work and Material.

3.3.1 The City, the Construction Manager, the Architect or Engineer and their representatives will always have access to the Work wherever it is in preparation or progress. The Contractor must provide proper facilities for such access and for inspection.

3.3.2 The Contractor must inspect all materials as delivered and promptly return all defective materials without waiting for their rejection by the Construction Manager or Architect or Engineer.

3.3.3 If the Construction Manager, the Technical Specifications, or any laws regulations, ordinances, or any public authority require any Work to be tested or approved, the Contractor must give the Construction Manager timely notice of the Contractor’s readiness for inspection. Inspections will be promptly made, and where practicable, at the source of supply. Any Work subject to such testing that is covered up without timely notice to the Construction Manager or without the approval or consent of the Construction Manager must, if required by the Construction Manager, be uncovered for examination at the Contractor's expense. The Contractor will have all of the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any work subject to testing that is covered up without timely notice to the Construction Manager and/or that is not uncovered for examination at the Contractor’s Expense if required by the Construction Manager.

3.3.4 Tests of materials or qualification tests required by the Contract Documents must be made in accordance with the Technical Specifications, the California Building Standards Code, as adopted by the City, and other applicable laws and regulations. Copies of all testing reports shall be distributed to the Construction Manager and as required by the Technical Specifications, California Building standards Code, as adopted by the City, and other applicable laws and regulations.

3.3.5 The City or its representatives, including, but not limited to, the Construction Manager, may order a re-examination of questioned Work.

If ordered to do so, the Contractor must uncover such Work. If such Work is found to be according to the Contract Documents, the City shall pay the cost of uncovering and restoring the Work, unless such Work was subject to testing and covered up without timely notice to or approval of the Construction Manager. If re-examined Work is found not to be in accordance with the Contract Documents, the Contractor must pay the cost of uncovering and restoring the Work. The Contractor will have all of the obligations and the City will have all of the rights and remedies that City Council/RSA Agenda 107 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
51 are specified in Section 11 concerning any re-examined Work not in accordance with the Contract Documents that the Contractor fails to uncover and restore at the Contractor’s expense.

3.3.6 The Contractor must replace or correct, without charge to the City, any material or workmanship that is found not to conform to the requirements of the Contract Documents, unless the City consents to accept such material or workmanship with an appropriate adjustment in the contract price. The Contractor must promptly segregate and remove nonconforming material from the Work site. The Contractor will have all the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any failure by the Contractor to replace or correct without charge any material or workmanship that does not conform to the requirements of the Contract Documents and that the City has not consented to accept.

3.4 Samples Furnished by the Contractor. The Contractor must furnish all samples for approval, as directed by the Construction Manager, in sufficient time to permit the Architect or Engineer to examine, approve and select samples before they are required by the progress of the Work. Portions of the Work for which samples are required and for which the Architect or Engineer has selected samples must be in accordance with such approved samples. Samples must be sent prepaid to the office of the Construction Manager or to such place as the Construction Manager may direct. The Contractor will have all of the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any failure by the Contractor to properly furnish samples for approval by the Architect or Engineer or any failure by the Contractor to ensure that portions of the Work for which samples are required and for which the Architect or Engineer has selected samples are in accordance with such approved samples.

3.5 Materials and Substitutions.

3.5.1 Materials used for the Work must be new and of the quality specified by the Contract Documents. When not particularly specified by the Contract Documents, materials must be the best of their class or kind. The Contractor must, if required, submit satisfactory evidence to the Construction Manager as to the kind and quality of materials.

3.5.2 If the Contractor submitted complete information to the Public Works Department for products proposed as equals in accordance with the Bid Package, and the City approved such products proposed as equals in writing, the Contractor may either furnish such products approved as equals, or furnish the designated material, product, thing, or service by specific brand or trade name as provided for in the Project Plans and Technical Specifications. The City retains the right, in its sole discretion, to accept or reject any other proposed substitution. To be considered, City Council/RSA Agenda 108 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
City Project No. 25-10
52 proposals concerning products proposed as equals must include sufficient information to permit the City to determine whether the products proposed as equals will satisfy the same performance requirements as the designated material, product, thing, or service by specific brand or trade name. Such performance requirements may include, but are not limited to, size, strength, function, appearance, quality, reputation and preference among industry professionals, ease of maintenance and repair, and useful life requirements. If the City does not accept a proposed substitution, the Contractor must furnish the product specified in the Project Plans and Technical Specifications for the contract price.

3.5.3. During the performance of the Work, the Contractor must ensure that all materials are neatly stacked, properly protected from the weather and other adverse impacts, and placed so as to avoid interference with efficient progress of the Work, with other activities of the City, or with the use of existing City facilities by the public. The Contractor must ensure that all materials are delivered to ensure efficient and uninterrupted progress of the Work. Materials must be stored by the Contractor so as to cause no obstruction and so as to prevent overloading of any portion of the Work. The Contractor will be responsible for damage or loss of materials delivered to and/or stored at the Work site due to weather or other causes. The Contractor must promptly remove from the Work site all materials rejected by the City or its representatives as failing to conform to the requirements of the Contract Documents, whether such nonconforming materials have been incorporated in the Work or not. If the City or its representatives so direct, the Contractor must promptly replace and re-execute Work performed by the Contractor and order the replacement and re-execution of Work performed by subcontractors using non-conforming materials with materials that satisfy the requirements of the Contract Documents, without expense to the City. The Contractor will bear the expense of making good all Work destroyed or damaged by such removal. The Contractor will have all the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any failure by the Contractor to replace or re-execute Work using nonconforming materials, and/or to make good all work destroyed or damaged by such removal and/or execution.

3.6 Audit and Examination of Records. The City may examine and audit, at no additional cost to the City, all books, estimates, records, contracts, documents, bid documents, bid cost data, subcontract job cost reports and all other Projectrelated data of the Contractor, subcontractors engaged in performance of the Work and suppliers providing supplies, equipment and other materials required for the Work. The scope of the examination and audit may include computations and projections related to bidding, negotiating, pricing or performing the Work or contract modifications and other materials concerning the Work, including, but not limited to, Contractor daily logs, in order to evaluate the accuracy, completeness, and currency of cost, pricing, scheduling and any other ProjectCity Council/RSA Agenda 109 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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53 related data. The Contractor will make available all such Project-related data at all reasonable times for examination, audit, or reproduction at the Contractor’s business office at or near the Work site and at any other location where such Project-related data may be kept, until three years after final payment under the Agreement. Pursuant to California Government Code Section 8546.7, if the amount of public funds to be expended is in excess of ten thousand dollars ($10,000), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of the City, or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.

3.7 Advertising. No advertising signs of any kind may be displayed on the Work site, or on fences, offices or elsewhere adjacent to the Work site. The Construction Manager shall enforce the terms of Section 3.7 during Work on the Project.

3.8 Project Schedule. Within ten (10) days of receiving the executed contract documents from the City, the Contractor shall submit to the Public Works Department a schedule showing each task of Work, the sequence of each task, the number of days required to complete each task, and the critical path controlling the completion of the entire Work. The schedule shall allow for the completion of the entire Work within the time for completion.

3.8.1 City Review of Schedule. The City may review the Contractor’s submitted schedule and may note any exceptions. The Contractor shall correct any exceptions noted by the City within five (5) working days of being notified of the exceptions.

3.8.2 Update of Schedule. After submission of a schedule to which the City has taken no exceptions, the Contractor shall submit an updated schedule to the Construction Manager on a biweekly basis until completion of the Work. The updated schedule shall show the progress of Work as of the date specified in the updated schedule.

3.8.3 Float. The schedule shall show early and late completion dates for each task. The number of days between these dates shall be designated as “float”.

The float shall be designated to the Project and shall be available to both the City and the Contractor as needed.

3.8.4 Failure to Submit Schedule. If the Contractor fails to submit a schedule within the time period specified in Section 3.8, or the updated schedule as specified in Section 3.8.2, or submit a schedule to which the City has taken uncorrected exceptions, the City shall be entitled to withhold payment from the next application for payment that is submitted by the Contractor after the schedule or updated schedule becomes late.

3.8.5 Responsibility for Schedule. The Contractor shall have sole and exclusive responsibility for creating the schedule and properly updating it in City Council/RSA Agenda 110 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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54 accordance with the terms of Section 3. The City has no authority to approve the schedule. The City may note exceptions to any schedule submitted by the Contractor. However, it shall be the Contractor’s sole and exclusive responsibility to determine the proper method to address exceptions and the City’s review of a schedule shall not serve to place any such obligation on the City.

4. CHANGES IN WORK

4.1 City-Directed Change Orders. The City may, at any time during the progress of the Work, direct any amendments by issuing a Change Order to the Work or to any of the Contract Documents, including, but not limited to, the Project Plans and Technical Specifications. Such amendments will in no way void the agreement but will be applied to amend the contract price (if such amendments affect the contract price), the Project schedule (if such amendments affect the Project schedule) or any other provision of the Contract Documents, based on a fair and reasonable valuation of the amendment in accordance with Section 4.

4.2 Writing Requirement. A Change Order to the Project Plans and Technical Specifications or other Contract Documents may be made only by a writing executed by authorized representatives of the City and the Contractor.

4.3 Contractor-Proposed Change Orders. Unless the Construction Manager otherwise authorizes or the City and the Contractor otherwise agree, any Change Order Proposal submitted by the Contractor must be submitted to the Construction Manager no later than the time of the proposed change.

4.4 Submissions of Change Order Proposals. All Change Order Proposal must be submitted on completed Change Order Proposal forms as provided in the Contract Documents. All such Change Order Proposals must itemize all cost impacts of the proposed Change Order and include a total price for that Change Order and the amended contract price that would become effective upon execution of the Change Order. All Change Order Proposals must specify any change in the Project schedule, or in any Project milestone including, but not limited to, the time for completion under the proposed Change Order. It is understood that Change Orders that do not specify a change in any milestone, including, but not limited to, the time for completion, may be accomplished by the time for completion then in effect.

4.5 Change Order Pricing. Change Order pricing will be governed by the following:

4.5.1 Unit prices specified in the Contract Documents will apply to cost impacts involving items for which the Contract Documents specify unit prices.

4.5.2 Cost impacts involving items for which no unit prices are specified will be calculated by adding the itemized actual direct cost that would be added City Council/RSA Agenda 111 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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55 or reduced under the Change Order and an allowance for indirect costs in accordance with Section 4. Itemization for direct costs for required labor must include the classifications of labor required, the total hours required for each classification, the hourly rate for each classification and other labor-related costs, including, but not limited to, liability and workers compensation insurance, social security, retirement, and unemployment insurance. All other cost impacts for which no unit prices are specified must be itemized as appropriate, including, but not limited to, the cost of tools, vehicles, phones and other equipment and the cost of all required services, materials, or supplies. Indirect costs added under a Change Order may not exceed an allowance of fifteen (15) percent of the total of combined Contractor and Subcontractor direct costs added under the Change Order. Such allowance covers Contractor overhead and profit under the Change Order and includes the cost of insurance in addition to that required pursuant to Section 8.8, bond premiums, superintendent labor, clerical labor, home office expenses, worksite office expenses, and utility costs under the Change Order. Such costs may not be itemized as direct costs under a Change Order. Indirect costs deducted under a Change Order will be calculated in exactly the same way as indirect costs added under a Change Order, except that indirect costs deducted under a Change Order may not exceed an allowance of seven and a half (7.5) percent of the total of combined Contractor and Subcontractor direct costs deducted under the Change Order.

4.6 Force Account Payment. If, pursuant to Section 4, of the General and Special Conditions, the City directs the Contractor to perform additional Work, the basis for compensation for such Work shall be either: 1) extension of contract items or 2) a negotiated lump sum price.

If neither of the above alternatives can be agreed upon between the parties, Contractor shall nevertheless proceed with the Work and the method of compensation shall be on a force account basis as provided herein:

Such payment shall constitute full compensation to Contractor for performance of work paid for on a force account basis, and no additional compensation will be allowed therefor. Force account payment shall be made as detailed in Section

4.6. Labor, materials and equipment used in the performance of Work on a force account basis shall be approved daily by the Construction Manager.

4.6.1 The Contractor will be paid the direct costs for labor, materials and equipment used in performing the Work as hereinafter provided except where agreement has been reached to pay in accordance with Section

4.6.6. To the total of the direct costs computed as provided in Sections

4.6.2 to 4.6.4, inclusive, there will be added a markup which is not to exceed twenty (20) percent of the cost of labor, fifteen (15) percent of the cost of material, fifteen (15) percent of the equipment rental and five (5) percent of the cost of Subcontractors.

City Council/RSA Agenda 112 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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56 The above markups shall constitute full compensation for all overhead costs (general overhead, supervision, office expenses, field office facilities, utilities, and transportation) which shall be deemed to include all items of expense not specifically designated as cost or equipment rental in accordance with Sections 4.6.2 to 4.6.4, inclusive.

When Work paid for on a force account basis is performed by forces other than the Contractor, the Contractor shall reach agreement with such other forces as to the distribution of the payment made by the City for such Work. No additional payment, therefore, will be made by the City by reason of the performance of the Work by a Subcontractor or other forces.

4.6.2 The Contractor will be paid the cost of labor for the workmen (including foremen, when authorized by the City) used in the actual and direct performance of the Work. The cost of labor, whether the employer is Contractor, Subcontractor, or other forces, will be the sum of the following:

4.6.2.1 Actual Wages. The actual wages paid shall include any employer payments to or on behalf of the workmen for health and welfare, pension, vacation, insurance and overtime, plus other additives in accordance with applicable collective bargaining agreements; and

4.6.2.2 Labor Surcharge. In addition to the actual wages, there shall be a labor surcharge as set forth in the State of California Department of Transportation publication entitled “Labor Surcharge & Equipment Rental Rate Book,” with the applicable labor surcharge derived from the publication which was in effect on the date upon which the Work was accomplished. Such a labor surcharge shall constitute full compensation for all payments imposed by all applicable laws and regulations and for all other payments made to, or on behalf of, the workmen, other than actual wages and the actual subsistence and travel allowance.

4.6.3 Materials. The City reserves the right to furnish such materials as it deems advisable, and the Contractor shall have no claims for costs and markup on such materials.

Only materials furnished by the Contractor and necessarily used in the performance of the Work will be paid for by the City. The cost of such materials will be the cost to the purchaser, whether the purchaser is the Contractor, Subcontractor, or other forces, from the supplier thereof, unless the following are applicable:

4.6.3.1 If a cash or trade discount by the actual supplier is offered or available to the purchaser, the discount shall be credited to the City Council/RSA Agenda 113 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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57 City, notwithstanding the fact that such a discount may not have been taken.

4.6.3.2 If materials are procured by the purchaser by any method which is not a direct purchase from and a direct billing by the actual supplier to such purchaser, the cost of such materials shall be deemed to be the price paid to the actual supplier, as determined by the City.

No markup except for actual costs incurred in the handling of such materials will be permitted.

4.6.3.3 If the materials are obtained from a supply or source owned wholly or in part by the purchaser, payment therefore will not exceed the price paid by the purchaser for similar materials furnished from said source on contract items or the current wholesale price for such materials delivered to the jobsite, whichever price is lower.

4.6.3.4 If the cost of such materials is, in the opinion of the City, excessive, then the cost of such material shall be deemed to be the lowest current wholesale price at which such materials are available in quantities concerned delivered to the jobsite, less any discounts as provided under Section 4.6.3.

4.6.4 Equipment Rental. Compensation for equipment used on force account work shall be determined from the equipment rental rates as set forth in the State of California, Department of Transportation publication entitled “Labor Surcharge & Equipment Rental Rate Book”, with the applicable compensation derived from the publication which was in effect at the time the equipment is used. The equipment rental rates listed in the publication shall be used regardless of ownership and any rental or other agreement, if such ownership may exist or such an agreement was entered into by the Contractor for the use of the equipment. If it is deemed necessary by the City to use equipment not listed in the publication, a suitable rental rate for such equipment will be established by the City prior to the Work being done. The Contractor shall furnish any cost data which might assist the City in the establishment of such a rental rate.

The rental rate paid under Section 4.64 shall include the cost of fuel, oil, lubrication, supplies, small tools, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance and all incidentals.

Operators of rental equipment will be paid for as provided in Section 4.6.2.

All equipment shall, in the opinion of the City, be in good working condition and suitable for the purpose for which the equipment is to be used.

Unless otherwise specified, a manufacturer's ratings and manufacturerapproved modifications shall be used to classify equipment for the City Council/RSA Agenda 114 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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58 determination of applicable rental rates. Equipment which has no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer.

Individual pieces of equipment or tools having a replacement value of two hundred and fifty dollars ($250) or less, whether or not consumed by use, shall be considered to be small tools and no payment will be made therefor.

Rental time will not be allowed while any equipment is inoperative due to breakdowns or delayed maintenance.

4.6.5 Equipment at the Site of the Work. The rental time to be paid for equipment on the Work shall be the time the equipment is in operation on the Work being performed, and in addition, shall include the time required to move the equipment to the location of the Work and return it to the original location or to another location requiring no more time than that required to return it to its original location, except that moving time will not be paid for if the equipment is used at the site of the Work on anything other than such Work. Loading and transporting costs will be allowed, in lieu of moving time, when the equipment is moved by means other than its own power, except that no payment will be made if the equipment is used at the site of the Work on anything other than such Work. The following shall be used in computing the rental time of equipment on the Work:
• When hourly rates are listed, less than thirty (30) minutes of operation shall be one-half (1/2) hour of operation.
• When daily rates are listed, less than four (4) hours of operation shall be one-half (1/2) day of operation.

4.6.6 Equipment Not at the Site of the Work. For the use of equipment moved onto the site of the Work and used exclusively for Work paid for on a force account basis, the Contractor will be paid the rental rates as determined in Section 4.6.4 and for the cost of transporting the equipment to the location of the Work and its return to its original location, all in accordance with the following provisions:
• The original location of the equipment which is to be hauled to the location of the Work shall be agreed to by the City in advance.
• The City will pay the cost of loading and unloading such equipment.
• The cost of transporting equipment in low bed trailers shall not exceed the hourly rates listed in the State of California Department of Transportation publication entitled “Labor City Council/RSA Agenda 115 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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59 Surcharge & Equipment Rental Rate,” with the applicable hourly rate derived from the publication which was in effect at the time the equipment was transported in low bed trailers.
• The cost of transporting equipment shall not exceed the applicable minimum established rates of the California Public Utilities Commission.

The rental period shall begin at the time the equipment is unloaded at the site of the Work, shall include each day that the equipment is at the site of the Work, excluding Saturdays, Sundays, and legal holidays unless the equipment is used to perform the Work on such days, and shall terminate at the end of the day on which the City directs Contractor to discontinue the use of such equipment. The rental time to be paid per day will be in accordance with the following chart:

Hours of Operations Hours to be paid
0 4

0.5 4.25
1 4.5

1.5 4.75
2 5

2.5 5.25
3 5.5

3.5 5.75
4 6

4.5 6.25
5 6.5

5.5 6.75
6 7

6.5 7.25
7 7.5

7.5 7.75
8 8
Over 8 Actual hours in operation
The hours to be paid for equipment which is operated less than eight (8) hours, due to breakdowns, shall not exceed eight (8) less the number of hours the equipment is inoperative due to breakdowns.

When hourly rates are listed, less than thirty (30) minutes of operation shall be considered to be one-half (1/2) hour of operation. When daily rates are listed, payment for one-half (1/2) day will be made if the equipment is not used. If the equipment is used, payment will be made for one (1) day. The minimum rental time to be paid for the entire rental period on an hourly basis shall not be less than eight (8) hours or if on a daily basis shall not be less than one day.

City Council/RSA Agenda 116 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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60 Should the Contractor desire the return of the equipment to a location other than its original location, the City will pay the cost of transportation in accordance with Section 4.6.6, provided that such payment shall not exceed the cost of moving the equipment to the Work site.

Payment for transporting loading and unloading equipment, as provided by Section 4.4.6, will not be made if the equipment is used on the Work in any other way than upon the Work that is paid for on a force account basis.

When any work not specifically designated as Work in the Contract Documents is to be paid for on a force account basis, and the City determines that such work requires the Contractor to move on to the site any equipment which could not reasonably have been expected to be needed in the performance of the Contract Documents, payment for the use of such equipment at equipment rental rates in excess of those listed as applicable for the use of such equipment will be made subject to the following additional conditions:

The City shall specifically approve the necessity for the use of particular equipment on such work.

The Contractor shall establish, to the satisfaction of the City, that such equipment cannot be obtained from its normal equipment source or sources and those of its Subcontractors.

The Contractor shall establish, to the satisfaction of the City, that the proposed equipment rental rate for such equipment from its proposed source is reasonable and appropriate for the expected period of use.

The City shall approve the equipment source and the equipment rental rate to be paid by the City before Contractor begins work involving the use of said equipment.

4.6.6 Work Performed by Special Forces or Other Special Services. When the City and Contractor, by mutual agreement, determine that a special service or work item cannot be performed by the forces of the Contractor, or those of any of its Subcontractors, such service or item may be performed by a specialist. Invoices for such a service or work item, performed by a specialist on the basis of the current market price thereof, may be accepted without complete itemization of labor, material, and equipment rental costs when it is impracticable and not in accordance with the established practice of the special service industry to provide such complete itemization.

City Council/RSA Agenda 117 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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61 In those instances, wherein a Contractor is required to perform work necessitating a fabrication or machining process in a fabrication or machine shop facility away from the jobsite, the charges for that portion of the Work performed in such a facility, may by mutual agreement, be accepted as a specialist billing.

In lieu of the percent markups provided above in the Subsection entitled "Work Performed by Contractor", a fifteen (15) percent markup will be added to the specialist price, less a credit to the City for any cash or trade discount offered or available, whether or not such discount may have been taken.

4.6.8 Owner-Operated Equipment. When "Owner-Operated Equipment" is used to perform work to be paid on a force account basis, the Contractor will be paid for the equipment and operator, as follows:
• Payment for the equipment will be made in accordance with Section 4.6.4.
• Payment for the cost of labor and subsistence or travel allowance will be made at the rates paid by the Contractor to other workmen operating similar equipment already on the Project or, in the absence of such other workmen, at the rates for such labor established by collective bargaining agreements for the type of workmen and location of the Work, whether or not the "Owner-Operator" is actually covered by such an
agreement. A labor surcharge will be added to the cost of labor described herein, in accordance with the "Labor Surcharge" provision under Section 4.6.2.
• To the direct cost of equipment rental and labor, computed as provided by Sections 4.6.2 and 4.6.4, will be added the markups for labor and equipment rental as provided in Section 4.6.1.

If, at any time after the Contractor commences the force account work, a method of compensation other than that specified in Section 4.6 has been agreed upon for the force account work or a portion of such work, such compensation shall be made in accordance with such an agreement.

The Contractor shall keep accurate daily records of the actual cost to the Contractor for all work performed pursuant to Section 4.6 and shall make them available to the City upon reasonable notice and request.

Such records shall be maintained in such a manner so as to be completely discernible from records associated with the basic contract scope for the Project.

City Council/RSA Agenda 118 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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62 4.7 Liability under Unapproved Change Orders. The Contractor shall be solely responsible for any and all losses, costs, or liabilities of any kind incurred by the Contractor, any Subcontractor engaged in the performance of the Work, any party supplying material or equipment for the Work or any third party, that are incurred pursuant to a Contractor-issued Change Order Proposal prior to issuance of an approved Change Order executed in accordance with Section 4.

The Contractor will have all of the obligations and the City will have all of the rights and remedies that are specified in Section 11 concerning any work or resulting losses, costs, or liabilities pursuant to a Contractor-issued Change Order Proposal before issuance of an approved Change Order executed in accordance with Section 4.

4.8 Changes Subject to Contract Documents. Any changes in the Work and/or the Contract Documents pursuant to a Change Orders and any other amendments issued in accordance with the Contract Documents, including Section 4, will in all respects be subject to all provisions of the Contract Documents, including, but not limited to, the Project Plans and Technical Specifications, except as modified by such Change Orders or other amendments.

4.9 Change Order Disputes.

4.9.1 Disputed City Directed Change Orders. If the Contractor disputes a Citydirected Change Order following a reasonable effort by the City and the Contractor to resolve the dispute including, at a minimum, a meeting between appropriate representatives of the Contractor and the City, the Contractor must commence performing the Work consistent with the disputed Change Order within five (5) working days of the last meeting between representatives of the Contractor and the City to resolve the dispute, or within the time specified in the disputed City-directed Change Order, whichever is later. In performing Work consistent with a disputed City-directed change order pursuant to this provision, the Contractor will have all of the Contractor’s rights concerning claims pursuant to the Contract Documents and applicable laws and regulations.

4.9.2 Disputed Contractor Proposed Change Orders. If the City disputes a Contractor-proposed Change Order, the City and the Contractor will use reasonable efforts to resolve the dispute including, at a minimum, holding a meeting between appropriate representatives of the Contractor and the City. Regardless of and throughout any such efforts to resolve the dispute, the Contractor must continue performing the Work irrespective of and unmodified by the disputed Change Order. In continuing to perform the Work, the Contractor will retain all the Contractor’s rights under contract or law pertaining to the resolution of disputes and protests between contracting parties. Disputes between the City and the Contractor concerning any Contractor-proposed Change Order or other amendment do not excuse the Contractor’s obligation to perform the Work in accordance with the Contract Documents, excluding such ContractorCity Council/RSA Agenda 119 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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63 proposed Change Order or other amendment by the time for completion, or waive any other Project milestone or other requirement of the Contract Documents.

5. TRENCHING AND UTILITIES

5.1 Excavation More Than Four Feet Deep. In accordance with California Public Contract Code Section 7104, if the Work involves excavation that is more than four (4) feet deep, the Contractor must promptly notify the City in writing before disturbing: any material that the Contractor believes may be hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II or Class III disposal site in accordance with provisions of existing law; any subsurface or latent physical conditions at the Work site differing from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or any unknown physical conditions at the Work site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents. The City will promptly investigate any such conditions for which notice is given. If the City finds that the conditions do materially differ, or involve hazardous waste, and would cause a decrease or increase in the cost or time of performance of the Work, the City will issue a Change Order pursuant to Section 4. If a dispute arises between the City and the Contractor concerning whether the conditions materially differ, or involve hazardous waste, or cause a decrease of increase in the cost or time of performance, the Contractor will not be excused from any completion date provided in the Contract Documents but shall proceed with all Work to be performed under the Contract Documents. The Contractor will retain all rights under contract or law pertaining to resolution of disputes and protests between contracting parties.

5.2Excavation of Five Feet or More. In accordance with California Labor Code Section 6705, any Contractors performing a contract exceeding twenty-five thousand dollars ($25,000) in cost and involving excavation five (5) or more feet deep must submit for the City’s acceptance, prior to excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during such excavation. If the plan varies from the shoring system standards, it must be prepared by a registered civil or structural engineer. California Labor Code Section 6705 shall not be construed to allow the use a shoring, sloping, or protective system less effective than required by the Construction Safety Orders, nor shall it be construed to impose tort liability on the City or any of its employees.

5.3 Utility Relocation Costs.

5.3.1 In accordance with California Government Code Section 4215, the City assumes the responsibility for the timely removal, relocation or protection of existing main or trunkline utility facilities located on the Work site if such City Council/RSA Agenda 120 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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64 utilities are not identified by the City in the Project Plans and Technical Specifications made a part of the invitation for bids. The City will compensate the Contractor for the costs of locating, repairing damage not due to the Contractor’s failure to exercise reasonable care, and removing or relocating existing main or trunkline utility facilities located at the Work site and not identified with reasonable accuracy in the Project Plans and Technical Specifications. The City will also compensate the Contractor for the cost of equipment on the Project necessarily idled during such work. The Contractor will not be assessed liquidated damages for Work completion delays caused by the City’s failure to provide for removal or relocation of such main or trunkline utility facilities.

5.3.2 Nothing in California Government Code Section 4215 or the Contract Documents will be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the Work site can be inferred from the presence of other visible facilities, such as buildings, meter and junction boxes, on or adjacent to the Work site; provided, however, that nothing in this provision or the Contract Documents shall relieve the City from identifying main or trunklines in the Technical Specifications and Project Plans.

5.3.4. Nothing in California Government Code Section 4215 or the Contract Documents will preclude the City from pursuing any appropriate remedy against the utility for delays which are the responsibility of the utility.

5.3.5 Nothing in California Government Code Section 4215 or the Contract Documents will be construed to relieve the utility from any obligation as required either by law or by contract to pay the cost of removal or relocation of existing utility facilities.

5.3.6 If the Contractor, while performing the Work, discovers utility facilities not identified by the City in the Project Plans and Technical Specifications, the Contractor must immediately notify the City and utility in writing.

5.3.7 Either the City or the utility, whichever owns existing main or trunkline utility facilities located on the Work site, shall have sole discretion to effect repairs or relocation work or to permit the Contractor to perform such repairs or relocation work at a reasonable price.

6. PROJECT FACILITIES

6.1 Work Site Offices. Any Work site office facilities used by the Contractor and/or its privities must conform to all applicable codes, ordinances, laws and regulations. The cost of such Work site office facilities shall be included in the contract price.

City Council/RSA Agenda 121 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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65 6.2 City Rights of Access and Ownership. The City and its authorized representatives will, at all reasonable times while such office facilities are located at the Work site (including, at a minimum, all times during which the Work is performed), have access to any such Work site office facilities used by the Contractor and/or its privities. With respect to the right of access of the City and its authorized representatives, neither the Contractor nor its privities shall have a reasonable expectation of privacy pursuant to the Fourth Amendment to the Unites States Constitution or other applicable law or regulation concerning such Work site office facilities used by the Contractor and/or its privities. Without exception, any and all Project-related materials located at such Work site facilities will be deemed at all times to be City property, subject to inspection and/or copying by the City and its authorized representatives at all reasonable times while such facilities are located at the Work site (including, at a minimum, all times during which the Work is performed). Any interference by the Contractor or its privities with the City’s rights of access and/or ownership pursuant to Section 6 will constitute a material breach of the Agreement, subject to any and all remedies available pursuant to the Contract Documents and at law and equity.

7. PROSECUTION AND PROGRESS OF THE WORK

7.1 Liquidated Damages. Time is of the essence in the Agreement. The City and the Contractor agree that it will be difficult and/or impossible to determine the actual damage which the City will sustain in the event of the Contractor’s failure to fully perform the Work or to fully perform all of the Contractor’s obligations that have accrued pursuant to the Agreement by the time for completion. Accordingly, the City and the Contractor agree, in accordance with California Government Code Section 53069.85, that the Contractor will forfeit and pay to the City liquidated damages in the amount shown under ‘Agreement’ for each and every calendar day completion of the Work and/or performance of all of the Contractor’s obligations that have accrued pursuant to the Agreement and that results in a delay beyond the time for completion. The City and the Contractor further agree, in accordance with California Government Code Section 53069.85, that the liquidated damages sum specified in this provision is not manifestly unreasonable under the circumstances existing at the time the Agreement was made, and that the City may deduct liquidated damages sums in accordance with this provision from any payments due or that may become due to the Contractor under the Agreement.

7.2 No Damage for Delay Beyond City and Contractor Control. The Contractor will not be held responsible for delays in performance beyond the control of both City and Contractor, such as by strikes, lockouts, or labor disturbances that are not within the control of the Contractor to resolve, lack or failure of transportation, or acts or omissions of other government entities. This provision will not apply where the delay would not have occurred but for a previous Contractor-caused delay in the prosecution of the Work. The City will not be liable to the Contractor, any Subcontractor or other entity engaged in the performance of the Work, any supplier, or any other person or organization, or to any surety or employee or agent City Council/RSA Agenda 122 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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66 of any of them, for damages arising out of or resulting from delays beyond the control of the City and the Contractor including but not limited to fires, floods, epidemics, abnormal weather conditions, earthquakes and acts of God or acts or neglect by utility owners or other contractors performing other work, delays caused by the City, its officials, officers, employees, agents, or volunteers, or delays caused by the Construction Manager or the Architect or Engineer when such delays are reasonable under the circumstances and/or are within the contemplation of the City and the Contractor. An extension of the time for performance in an amount equal to the time loss due to such delay or delays will be the Contractor's sole and exclusive remedy for such delay or delays.

7.3 No Damage for Contractor-Caused Delay. The Contractor shall not be entitled to additional compensation for extended field or home office overhead, field supervision, costs of capital, interest, escalation charges, acceleration costs or other impacts for any delays, to the extent such delays are caused by the failure of the Contractor, or any Subcontractor or other entity engaged in performance of the Work to perform the Work in accordance with the Contract Documents.

The Contractor may be eligible for additional compensation in excess of the contract price for delays caused by the City and/or its privities.

7.4 No Damage for Other Delay. The Contractor will not be entitled to damages for delay to the Work caused by the following, which the City and Contractor agree will be deemed for purposes of California Public Contract Code Section 7102 either not caused by the City, and/or within the contemplation of the City and the Contractor, and/or reasonable under the circumstances:

7.4.1 Exercise of the City’s right to sequence the Work in a manner that would avoid disruption to the City and other contractors based on: the failure of the Contractor or any Subcontractor or other entity engaged in the performance of the Work to perform the Work in accordance with the Contract Documents, enforcement by the City or any other governmental agency of competent jurisdiction of any law or regulation, or enforcement by the City of any provisions of the Agreement.

7.4.2 Requests for clarification or information concerning the Contract Documents or proposed Change Orders or amendments to the Contract Documents, including extensive and/or numerous such requests for clarification or information or proposed Change Orders or amendments, provided such clarifications or information or proposed Change Orders or amendments are processed by the City or its representatives in a reasonable time in accordance with the Contract Documents.

7.5 Delays Caused by the City and/or Its Privities. Either the City or the Contractor may propose a change in the time for completion for delays that are purported to be caused by the City and/or its privities and that are not reasonable under the circumstances involved and/or not within the contemplation of the City and the Contractor. Such proposed changes in the time for completion will constitute a City Council/RSA Agenda 123 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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67 Change Order Proposals subject to Section 4. In accordance with Section 4, the City and the Contractor may agree upon pricing for the cost impacts, if any, resulting from such delays. If such pricing is in anticipation of cost impacts that may, but have not yet occurred, the City will be obligated to pay the Contractor for such anticipated impacts in accordance with the Agreement and any applicable approved Change Orders only to the extent the Contractor actually incurs the anticipated cost impacts. Notwithstanding anything to the contrary in Section 4.5.2, the City and the Contractor may agree to a daily rate, cap or lump sum that will apply to the cost impacts, if any, resulting from delay purportedly caused by the City and/or its privities subject to Section 7.5. However, if such a daily rate, cap or lump sum is in anticipation of cost impacts that have not yet occurred, the City will be obligated to pay such a daily rate, cap or lump sum only to the extent the Contractor actually incurs such cost impacts.

7.6 Weather Delays. Extensions of the time for completion will not be allowed for weather conditions that are consistent with the following list of anticipated rain days, based on historical weather data of the National Oceanographic and Atmospheric Administration of the U.S. Department of Commerce, for the record station that is nearest or most applicable to the Work site. Extensions of the time for completion for delays due to adverse weather will be allowed only if the number of rain days exceeds those listed in the following table and the Contractor can verify to the City’s reasonable satisfaction that such adverse weather caused actual delay in the timely completion of the Work. No extensions of the time for completion will be granted for rain days in addition to those in the following list that merely result in delays that do not or would not, themselves, result in failure to complete the Work by the time for completion.

Anticipated Rain Days
January, [10]; February, [9]; March, [7]; April, [3]; May, [1]; June, [0]; July, [0]; August, [0]; September, [3]; October, [7]; November, [9]; December, [10].

7.7 Delay Claims. Whenever the Contractor claims a delay for which the time for completion may be extended, the Contractor must request an extension of time with a Change Order Proposal, in accordance with Section 4, within five (5) days of the start of the delay. The request must be in writing and describe in detail the cause for the delay, and, if possible, the foreseeable extent of the delay.

7.8 Contractor Coordination of the Work.

7.8.1 The City reserves the right to do other Work in connection with the Project or other work in the vicinity of the Project by contract or otherwise, and the Contractor shall always conduct the Work so as to impose no hardship on the City, others engaged in the Work or other contractors working at the Work site. The Contractor will adjust, correct, and coordinate the Work with the work of others so that no delays result in the Work or other work at or near the Work site.

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68 7.8.2 If any part of the Work depends upon the work of the City or any other contractor for proper execution or results, the Contractor will, before proceeding with such Work, promptly report to the Construction Manager any apparent discrepancies or defects in such other Work. Failure of the Contractor to promptly report any apparent discrepancy or defect will be deemed an acceptance of the City’s or other contractor's Work as fit and proper.

7.8.3 The Contractor will anticipate the relations of the various trades to the progress of the Work and will ensure that any required anchorage or blocking is furnished and set at proper times. Any anchorage and blocking necessary for each trade shall be part of the Work except where stated otherwise.

7.8.4 The Contractor will provide proper facilities at all times for access of the City, the Construction Manager, Architect or Engineer, and other authorized City representatives to conveniently examine and inspect the Work.

7.9 Temporary Suspension of the Work
In addition to the right of the City to suspend Work under any other provision of the Agreement, the City may require the Contractor to suspend all, or part of the Work called for by this Agreement at any time, for up to ten (10) days, after a written Suspension Order is delivered to the Contractor, and for any further period to which the parties may agree. The Suspension Order shall include the following:
• A clear description of the Work to be suspended.
• Guidance as to the action to be taken on subcontracts; and • Other requests for minimizing costs.

Upon receipt of a Suspension Order, the Contractor shall comply with its terms immediately and take all reasonable steps to minimize cost allocable to the Work covered by the Suspension Order during the period of work stoppage. Within the period specified by the Suspension Order, or within any extension of that period to which the parties may agree, the City may:
• Terminate the Work covered by the Suspension Order.
• Cancel the Suspension Order; or
• Allow the period of the Suspension Order to expire.

The Contractor shall resume Work upon the cancellation or expiration of a Suspension Order. An equitable adjustment shall be made in the Work scope, contract price, or time for completion, as appropriate, and the Agreement shall be modified in writing in accordance with Sections 7.2 to 7.5, inclusive, where:

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69 • The Suspension Order results in an increase in the time required for, or in the Contractor's cost properly allocable to, the performance of any part of this Agreement.
• The Contractor asserts a claim for an adjustment within thirty (30) days after the end of the period of work stoppage; and
• The Suspension Order was not caused by the Contractor's default or other act or omission within the control or responsibility of the Contractor.

In preparation for and during suspension of work, the Contractor shall take every reasonable precaution to prevent damage to or deterioration of the Work. The Contractor shall repair or replace, at no cost to the City, Work that is damaged or deteriorated during a work suspension due to the Contractor's failure to comply with this duty. If the City determines that the Contractor is not taking reasonable precautions and the Contractor fails to take the corrective action within five (5) days after written notice from the City, the City may cause such action to be taken and recover the reasonable cost thereof from the Contractor.

8. CONTRACTOR RESPONSIBILITIES

8.1. Eligibility. By executing the Agreement, the Contractor certifies that the Contractor is not ineligible to perform work on public works projects pursuant to California Labor Code Sections 1777.1 or 1777.7. In accordance with California Public Contract Code Section 6109, contractors who are ineligible to perform work on public works projects pursuant to California Labor Code Sections 1777.1 or 1777.7 may neither bid on, be awarded or perform the Work. The Contractor shall hold harmless and indemnify the City from and against any and all damages, costs, and liability arising from or as a consequence of any violation of Public Contract Code Section 6109.

8.2 Supervision of the Work. The Contractor will be solely responsible for the performance of the Work, including portions of the Work to be performed by Subcontractors. The Contractor is charged with ensuring that all orders or instructions from the City, Construction Manager, Architect or Engineer are disseminated to and followed by all subcontractors engaged in performance of the Work. The Contractor will supervise the Work using the Contractor’s best skill and attention. At any time during the progress of the Work, the City, Construction Manager, Architect or Engineer may require the Contractor and/or Subcontractors engaged in performance of the Work to attend a Project meeting, and the Contractor will attend and ensure the attendance of any Subcontractors whose attendance is required by the City, Construction Manager, Architect or Engineer and/or advisable in light of the matters to be addressed at the meeting.

8.3 Contractor's Superintendent. The Contractor will keep on the Work site, throughout Work progress, a competent superintendent and any necessary assistants, who are all deemed satisfactory by the City. The superintendent may not be changed without the consent of the City. The superintendent will represent the Contractor, and all directions given by the City to the superintendent will bind the Contractor in accordance with the Agreement. Superintendent time included City Council/RSA Agenda 126 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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70 in the Contractor’s completed bid schedule and/or in approved Change Orders, if any, must be included in the Contractor’s approved overhead rate and may not be charged as a direct cost.

8.4 Competent Employees. The Contractor must always enforce strict discipline and good order among the Contractor’s employees and may not employ on the Work any unfit person or any person not skilled in the Work assigned, or any person incompetent or unfit for the duties required of them. When the City determines that a Contractor’s employee does not satisfy the requirements of Section 8.4, upon notice from the Cit, the Contractor must immediately ensure that employee performs no further Work and is no longer present at the Work site. Any such Contractor employee may not again be employed on the Work without City approval.

8.5 Items Necessary for Proper Completion of the Work. Except as otherwise noted in the Contract Documents, the Contractor will provide and pay for all labor, materials, equipment, permits, fees, licenses, facilities, and services necessary for the proper execution and timely completion of the Work in accordance with the Contract Documents.

8.6 Construction Reports. The Contractor must submit daily construction reports, detailing the daily progress of the Work, to the Construction Manager on a weekly basis.

8.7 Subcontracting.

8.7.1 By executing the Agreement, the Contractor certifies that no Subcontractor included on the list of proposed Subcontractors submitted with the Contractor’s bid is ineligible to perform work on public works projects pursuant to California Labor Code Sections 1777.1 or 1777.7. In accordance with California Public Contract Code Section 6109, subcontractors who are ineligible to perform work on public works projects pursuant to California Labor Code Sections 1777.1 or 1777.7 may neither bid on, be awarded, or perform as a subcontractor on the Work. In accordance with California Public Contract Code Section 6109, any contract on a public works project entered between a Contractor and a debarred Subcontractor is void as a matter of law. The Contractor will ensure that no debarred Subcontractor receives any public money for performing the Work, and any public money that may have been paid to a debarred Subcontractor for the Work is returned to the City. The Contractor will be responsible for payment of wages to workers of a debarred Subcontractor who has been allowed to perform the Work.

8.7.2 The Agreement and the performance of the Work are subject to the requirements of Chapter 4 of Part 1 of Division 2 of the California Public Contract Code, otherwise known as the Subletting and Subcontracting Fair Practices Act. If the Contractor fails to specify a Subcontractor or specifies more than one Subcontractor for the same portion of the Work City Council/RSA Agenda 127 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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71 in excess of one-half (1/2)of one (1) percent of the Contractor’s total bid, the Contractor agrees that the Contractor is fully qualified to perform that portion of the Work with the Contractor’s own forces, and that the Contractor will perform that portion of the Work with the Contractor’s own forces. If after award of the Agreement the Contractor subcontracts, except as provided for in California Public Contract Code Sections 4107 or 4109, any such portion of the Work, the Contractor will be subject to the penalties set forth in California Public Contract Code Sections 4110 and 4111, including cancellation of the Agreement, assessment of a penalty of up to ten (10) percent of the amount of the subcontract, and/or disciplinary action by the Contractors State License Board.

8.7.3. No contractual relationship exists between the City and any Subcontractor engaged in performance of the Work.

8.7.4 Incorporation of Contract Documents. The Contractor must incorporate the Contract Documents in each contract with a Subcontractor engaged in the performance of the Work. The Contractor shall be solely responsible for any delay or additional costs incurred because of its failure to provide adequate or accurate project information to a Subcontractor that results in improper submittals and/or work, or time or other impacts.

The Contractor will have all of the obligations and the City will have all of the remedies that are specified in Section 11.

8.7.5 Coordination of Subcontract Work: The Contractor is responsible for scheduling the Work of Subcontractors to avoid delay or injury to either Work or materials.

8.8 Insurance.

8.8.1 All required insurance shall be provided in the form of “occurrence”-type policies underwritten by admitted insurers in the State of California with a rating of A or better from the Best’s Rating Guide in use on the date of the execution of the Agreement. In addition, the required insurance provided by insurers authorized to transact business in the State of California by the Department of Insurance will also be acceptable, provided it meets the rating requirement above. All policies must be issued at the expense of the Contractor and must be maintained at the Contractor’s expense throughout the performance of the Work.

8.8.2 The Contractor and any Subcontractors engaged in performance of the Work must secure payment of workers’ compensation in accordance with California Labor Code Section 3700 and other applicable laws and regulations. The Contractor must verify that all Subcontractors comply with this requirement.

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72 8.8.3 Within ten (10) working days following Notice of Award the Contractor must submit to the City, along with executed copies of all other documents specified in the Contract Check List, certificates of insurance and endorsements evidencing that the Contractor has in effect and will maintain throughout the performance of the Work the following kinds and amounts of insurance:

8.8.3.1 Worker’s Compensation and Employee Insurance. Coverage as required by any applicable law or regulation, including the provisions of Division IV of the California Labor Code, and any act or acts amending it. Such insurance must cover the full liability of the Contractor. The Contractor’s Employer’s Liability Insurance must be in an amount no less than one million dollars
($1,000,000.00) per claim.

8.8.3.2 Commercial General Liability and Automobile Liability Insurance.

Coverage for liability due to bodily injury and property Damage, including, but not limited to the following coverage:
• Completed Operations and Products Liability.
• Bodily Injury.
• Personal Injury.
• Broad Form Property Damage Liability.
• Contractual Liability (ensuring the obligations assumed by the Contractor under the Contract Documents);
• Automobile Liability (including owned, non-owned and hired automobiles); and
• Coverage for the XCU hazards (Explosion, Collapse and Underground).

8.8.3.3 Commercial Umbrella Insurance. Coverage to insure losses above general liability limits, employers’ liability limits, and auto liability limits.

8.8.3.4 Builders Risk Insurance. The Contractor must, at the Contractor’s own expense, maintain a builder’s risk fire insurance policy, special form, including extended coverage and vandalism and malicious mischief endorsements. The policy must name the City and the Contractor as insured. Such insurance must be carried in the amount of one hundred (100) percent of the contract price. In the event of a partial or destruction by fire of any or all of the Work at any time prior to the completion and acceptance thereof, the Contractor shall promptly reconstruct all Work so destroyed or injured at the Contractor’s own cost and expense and at no cost to the City.

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73 8.8.4 The insurance furnished by the Contractor must be primary in the amount of any loss.

8.8.5 The limits of the insurance required above will be at least the following:

Comprehensive General Liability
Bodily Injury Liability $1,000,000 each occurrence
$1,000,000 each aggregate
Property Damage Liability $1,000,000 each occurrence
$1,000,000 each aggregate
Comprehensive Automobile Liability
Bodily Injury Liability $1,000,000 each person
$1,000,000 each occurrence
Property Damage Liability $1,000,000 each occurrence
Commercial Umbrella Insurance $1,000,000
Builders Risk Insurance issued for the value of the contract price.

8.8.6 For each insurance policy required under the Agreement, except for the required workers compensation insurance policy, the Contractor must provide endorsements that add the City as an additional insured. Said endorsement shall be at least as broad as Insurance Services Office form number CG2010 (Ed. 11/85). Such endorsements must:
• Provide that the insurance required to be furnished by the Contractor will be primary as regards the City, and that the City’s insurance will be in excess of and not contribute to the insurance required to be furnished by the Contractor.
• Provide that the City will receive thirty (30) days written notice of any reduction or cancellation of such insurance required to be furnished by the Contractor; and
• Include a severability of interest clause acceptable to the City.

8.9 Indemnities.

8.9.1 The Contractor will take all responsibility for the Work, and will bear all losses and damages directly or indirectly resulting to the Contractor, any Subcontractors engaged in performance of the Work, the City, its officials, officers, employees, agents, volunteers and consultants, and to third parties on account of the performance or character of the Work, unforeseen difficulties, accidents, or occurrences of other causes predicated on active or passive negligence of the Contractor or of any Subcontractor engaged in performance of the Work. To the fullest extent permitted by law, the Contractor will indemnify, defend and hold harmless City Council/RSA Agenda 130 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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74 the City, its officials, officers, employees, agents, volunteers and consultants from and against any or all loss, liability, expense, claims, costs (including costs of defense), suits and damages of every kind, nature and description (including, but not limited to, penalties resulting from exposure to hazards in violation of the California Labor Code) directly or indirectly arising from the performance of the Work.

8.9.2 The Contractor will indemnify, defend, and hold harmless the City, the City’s officials, officers, employees, volunteers, agents and the Construction Manager and Architect for all liability on account of any patent rights, copyrights, trade names or other intellectual property rights that may apply to the Contractor’s performance of the Work. The Contractor will pay all royalties or other charges as a result of intellectual property rights that may apply to methods, types of construction, processes, materials, or equipment used in the performance of the Work, and will furnish written assurance satisfactory to the City that any such charges have been paid.

8.9.3 The Contractor assumes all liability for any accident or accidents resulting to any person or property as a result of inadequate protective devices for the prevention of accidents in connection with the performance of the Work. The Contractor will indemnify, defend, and hold harmless the City and its officials, officers, employees, agents, volunteers, and consultants from such liability.

8.9.4 Approval of the Contractor’s certificates of insurance and/or endorsements does not relieve the Contractor of liability under Section

8.9. The Contractor will defend, with legal counsel reasonably acceptable to the City, any action or actions filed in connection with any claims and will pay all related costs and expenses, including attorney's fees incurred.

The Contractor will promptly pay any judgment rendered against the City, its officials, officers, employees, agents, volunteers or consultants for any claims. In the event the City, its officials, officers, employees, agents, volunteers or consultants is made a party to any action or proceeding filed or prosecuted against the Contractor for any claims, the Contractor agrees to pay the City, its officials, officers, employees, agents, volunteers and consultants any and all costs and expenses incurred in such action or proceeding, including but not limited to, reasonable attorneys' fees.

8.9.5 In accordance with California Civil Code Section 2782(a), nothing in the Agreement will be construed to indemnify the City for its sole negligence, willful misconduct, or for defects in design furnished by City. In accordance with California Civil Code Section 2782(b), nothing in the Agreement will be construed to impose on the Contractor or to relieve the City from liability for the City’s active negligence. By execution of the Contract Documents, the Contractor acknowledges and agrees that the Contractor has read and understands the insurance requirements and City Council/RSA Agenda 131 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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75 other requirements of the Agreement, and Section 8.9, which is a material element of consideration.

8.10 Licenses, Permits and Approvals. The Contractor must, without additional expense to the City, obtain all licenses, permits and other approvals required for the performance of the Work, including, but not limited to, a City business license. Work shall not begin until all licenses, permits, and approvals are acquired in accordance with all applicable laws, regulations, and ordinances.

8.11 California Labor Code Requirements.

8.11.1 In accordance with California Labor Code Section 1810, eight (8) hours of labor in performance of the Work shall constitute a legal day’s work under the Agreement.

8.11.2 In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the Work is limited to eight (8) hours during any one (1) calendar day, and forty (40) hours during any one (1) calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of eight (8) hours during any one (1) calendar day and forty (40) hours during any one (1) calendar week is permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one-and-one-half (1 1/2) times the basic rate of pay.

8.11.3 The Contractor and its Subcontractors will forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker employed in the performance of the Work for each calendar day during which the worker is required or permitted to work more than eight (8) hours in any one (1) calendar day, or more than forty (40) hours in any one calendar week, in violation of the provisions of California Labor Code Sections 1810 to 1815, inclusive.

8.11.4 In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the Work is to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the Public Works Department - City of Union City, 34009 Alvarado-Niles Road, Union City, California 94587, and shall be made available on request. The Contractor and Subcontractors engaged in the performance of the Work shall pay no less than these rates to all persons engaged in performance of the Work.

8.11.5 The Contractor and any Subcontractors engaged in performance of the Work must comply with California Labor Code Section 1775, which establishes a penalty of up to two hundred dollars ($200) per calendar day for each worker engaged in the performance of the Work that the City Council/RSA Agenda 132 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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76 Contractor or any Subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner. The Contractor or Subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a Subcontractor worker engaged in performance of the Work is not paid the general prevailing per diem wages by the Subcontractor, the Contractor is not liable for any penalties therefore unless the Contractor had knowledge of that failure or unless the Contractor fails to comply with all of the following requirements:

8.11.5.1 The contract executed between the Contractor and the Subcontractor for the performance of part of the Work must include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815; and

8.11.5.2 The Contractor must monitor payment of the specified general prevailing rate of per diem wages by the Subcontractor by periodic review of the Subcontractor’s certified payroll records; and

8.11.5.3 Upon becoming aware of a Subcontractor’s failure to pay the specified prevailing rate of wages, the Contractor must diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the Subcontractor for performance of the Work; and

8.11.5.4 Prior to making final payment to the Subcontractor for Work performed on the Project, the Contractor must obtain an affidavit signed under penalty of perjury from the Subcontractor that the Subcontractor has paid the specified general prevailing rate of per diem wages employees engaged in the performance of the Work and any amounts due pursuant to California Labor Code Section 1813.

8.11.6 In accordance with California Labor Code Section 1776(a), the Contractor and each Subcontractor engaged in performance of the Work, must keep accurate payroll records showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating that:

8.11.6.1 The information contained in the payroll record is true and correct; and
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77 8.11.6.2 That the employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.

8.11.7 The payroll records required pursuant to California Labor Code Section 1776(a) must be certified and must be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:

8.11.7.1 A certified copy of an employee’s payroll records shall be made available for inspection or furnished to the employee or his or her authorized representative on request; and

8.11.7.2 A certified copy of all payroll records shall be made available or inspection or furnished upon request to a representative of the City, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations; and

8.11.7.3 A certified copy of all payroll records shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the City, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement.

8.11.7.4The Contractor, on behalf of itself and any Subcontractors engaged in performance of the Work, shall comply with California Labor Code Section 1777.5, governing employment and payment of apprentices on public works contracts.

8.11.8 In case it becomes necessary for the Contractor or any Subcontractor engaged in performance of the Work to employ on the Work any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non-manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Contractor must pay the minimum rate of wages specified therein for the classification which most nearly corresponds to Work to be performed by that person. The minimum rate thus furnished will be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.

8.12 Laws and Ordinances. The Contractor and all Subcontractors engaged in the performance of the Work must conform to the following specific rules and regulations, as well as all other laws, ordinances, rules and regulations that apply to the Work. Nothing in the Project Plans and Technical Specifications is to be construed to permit Work not conforming to the following codes:

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78 • National Electrical Safety Code (published exclusively by the IEEE). • California Code of Regulations, Title 24 (California Building Standards Code), as adopted by the City;
• Manual of Accident Prevention in Construction (latest edition), published by A.G.C. of America.
• California Code of Regulations, Title 19, Division 1 (State Fire Marshall); • Applicable Local Fire Safety Codes; and
• California Labor Code, Division 2, Part 7 (Public Works and Public Agencies).

8.13 Guaranty. The Contractor guarantees all of the Work for one (1) year from the date the City accepts the Work. Upon receiving written notice of a need for repairs which are directly attributable to defective materials or workmanship, the Contractor must make good any defects arising or discovered in any part of the Work by diligently commencing the necessary repairs within seven (7) days from the date of notice from the City. If the Contractor fails to make good any defects in the Work in accordance with this provision, in addition to any other available remedy under the contract or at law or equity, the City may make good or have made good such defects in the Work and deduct the cost from amounts that may be due or become due to the Contractor, and/or call on the Contractor’s maintenance bond for the cost of making good such defects and for the City’s reasonable legal costs, if any, of recovering against the bond. The Contractor shall remain responsible for repairing any Work found to be defective, regardless of when such defect is discovered by the City.

8.14 Safety.

8.14.1 In accordance with generally accepted construction practices and applicable laws and regulations, the Contractor will be solely and completely responsible for conditions of the Work site, including safety of all persons and property during performance of the Work. This requirement will apply continuously and not be limited to normal working hours. For the purposes of California Labor Code Section 6400 and related provisions of law, the Contractor and the Contractor’s privities and any other entities engaged in the performance of the Work will be “employers” responsible for furnishing employment and a place of employment that is safe and healthful for its employees, if any, engaged in the performance of the Work. Neither the City nor its officials, officers, employees, agents, volunteers, or consultants will be “employers” pursuant to California Labor Code Section 6400 and related provisions of law with respect to the Contractor, the Contractor’s privities or other entities engaged in the performance of the Work.

8.14.2 Review and inspection by the City, the Construction Manager, the Architect or Engineer, and/or other representatives of the City of the Contractor's performance of the Work will not constitute review of the adequacy of the Contractor's safety measures in, on, or near the Work City Council/RSA Agenda 135 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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79 site. Such reviews and inspections do not relieve the Contractor of any of the Contractor’s obligations under the Contract Documents and applicable law to ensure that the Work site is maintained, and the Work is performed in a safe manner.

8.14.3 The Contractor will be solely responsible for the implementation and maintenance of safety programs to ensure that the Work site is maintained, and the Work is performed in a safe manner in accordance with the Contract Documents and applicable law.

8.14.4 Within ten (10) working days following Notice of Award the Contractor must submit to the City a copy of the Contractor’s Safety Plan.

8.14.5 The Contractor must furnish and place proper guards and systems for the prevention of accidents, including, but not limited to, those systems required pursuant to Title 8, Sections 1670 to 1671, inclusive, of the California Code of Regulations concerning safety belts and nets. In accordance with all applicable laws, regulations and accepted standards of the industry, the Contractor must provide and maintain any other necessary systems or devices required to secure safety of life or property at the Work site. The Contractor must maintain during all night hours sufficient lights to prevent accident or damage to life or property.

8.15 Assignment of Unfair Business Practice Claims. In accordance with California Public Contract Code Section 7103.5, the Contractor and any Subcontractors offer and agree to assign to the City all rights, title, and interest in and to all causes of action the Contractor or any Subcontractors may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to this Agreement. This assignment shall be made and become effective at the time the City tender’s final payment to the Contractor, without further acknowledgement by the parties.

9. MEASUREMENT AND PAYMENT

9.1 F.O.B. All shipments must be made F.O.B. destination to the Work site and/or other sites indicated in the Contract Documents. The contract price is all-inclusive, including sales tax. There shall be no additional compensation paid for containers, packing, unpacking, drayage, or insurance.

9.2 Payment.

9.2.1 On or about the first (1
st) day of each calendar month the Contractor will
submit to the Construction Manager a verified application for payment and schedule of values, supported by a statement showing all materials installed during the preceding month and the cost of labor actually City Council/RSA Agenda 136 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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80 expended in the performance of the Work. Unless otherwise provided in the Contract Documents, no allowances or payments will be made for material or equipment not placed at the Work site.

9.2.2 To be eligible for payment by the City, the Contractor’s applications for payment must include certified payroll reports prepared in accordance with California Labor Code Section 1776 and the Agreement, as to each employee of the Contractor and any Subcontractors engaged in the performance of the Work, during the preceding months. Applications for payment will not be processed without certified payroll reports.

9.2.3 In accordance with California Public Contract Code Section 20104.50, the City will review applications for payment as soon as practicable after receipt for the purposes of determining that the payment request is a proper payment request. Any application or part of an application that is determined to be improper will be returned to the Contractor as soon as practicable, but no later than seven (7) days after receipt by the City, along with a written description of the reasons why the application is improper.

The Contractor’s failure to submit a schedule in the time specified under Section 3.8, or its submission of a schedule to which the City has taken any uncorrected exception, shall serve as a basis for returning an application for payment in its entirety.

9.2.5 The City will pay the Contractor’s final invoice in accordance with applicable law and Section 9 following acceptance of the Work, provided that:

9.2.5.1 The Contractor has furnished evidence satisfactory to the City that all claims for labor and material have been paid, or the time for filing valid stop notices has passed and no stop notices have been filed, or all stop notices filed have been released by valid release or release bond acceptable to the City;

9.2.5.2 No claim has been presented to the City by any person based upon any acts, errors or omissions of the Contractor or any Subcontractor engaged in the performance of the Work.

9.2.5.3 No other claim or dispute exists under the Agreement or applicable law concerning payment of the Contractor’s final invoice and/or release of the Agreement retention; and

9.2.5.4 The Contractor has filed with the City the Maintenance Bond provided for in the Contract Documents with duly notarized signatures of an authorized representative of the Contractor and an Attorney-In-Fact of an admitted surety insurer acceptable to the City, and such Maintenance Bond binds the Contractor, as City Council/RSA Agenda 137 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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81 Principal, and the Surety, in accordance with its terms in the amount of ten (10) percent of the final contract price.

9.2.5.5 The Contractor’s application for final payment contains a written waiver of all claims against the City, of which the Contractor may not yet assert at the time of the submission of the application for final payment.

9.2.6 In accordance with California Public Contract Code Section 20104.50, if the City fails to make a progress payment within thirty (30) days after receipt of an undisputed, properly submitted application for payment from the Contractor, the City will pay the Contractor interest equivalent to the legal rate set forth in California Code of Civil Procedure Section 685.010(a). The number of days available to the City to make a payment without incurring an interest obligation, pursuant to Section 9.2.6 and California Public Contract Code Section 20104.50, will be reduced by the number of days, if any, by which the City has delayed return of an application for payment beyond the seven (7) day return requirement set forth in Section 9.2.5.

9.3 Non-Allowable Direct Charges. The following costs are not allowable direct charges under the Agreement and may only be paid under the Agreement, if at all, as part of any allowance for Contractor overhead and/or profit established under the Agreement:

9.3.1 Labor costs in excess of applicable prevailing wages pursuant to the Agreement and applicable laws and regulations, liability and workers compensation insurance, social security, retirement and unemployment insurance and other employee compensation and benefits pursuant to bona fide compensation plans in effect at the time specified for the opening of Project bids for Contractor and Subcontractor employees engaged in the performance of the Work. However, in no event will allowable direct labor charges under the Agreement include employee bonuses, employee vehicles or vehicle allowances, employee telephones or telephone allowances, or employee housing or housing allowances, whether or not such benefits are part of a bona fide compensation plan in effect at the time specified for the opening of Project bids for Contractor and Subcontractor employees engaged in the performance of the Work.

9.3.2 Superintendent labor and clerical labor;

9.3.3 Bond premiums;

9.3.4 Insurance in excess of that required under Section 8.8;

9.3.5 Utility costs;

9.3.6 Work site office expenses; and
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82 9.3.7 Home office expenses.

10. PROJECT ACCEPTANCE AND CLOSEOUT

10.1 Occupancy and/or Use. The City reserves the right to occupy and/or use any part, parts or the entirety of the Work before the Work is fully performed.

Subject to applicable laws and regulations, exercising this right will in no way constitute acceptance by the City of any part of the Work so occupied and/or used, or acceptance of the entire Work, nor will such occupancy and/or use in any way affect the times when payments will become due the Contractor, nor will such occupancy and/or use in any way alter or prejudice the City’s rights under the Agreement, any Agreement bonds, or at law or equity. Occupancy and/or use shall not waive the City’s rights to assess liquidated damages, in accordance with Section 7, after the date of such occupancy or use.

10.2 Work Completion and Final Inspection. When the Contractor considers the Work is completed, the Contractor will submit a written certification to the Construction Manager.

10.2.1 The written certification shall contain the following:

10.2.1.1 The Contract Documents have been reviewed.

10.2.1.2 The Work has been inspected for compliance with the Contract Documents.

10.2.1.3 The Work has been completed in accordance with the Contract Documents; and

10.2.1.4 Equipment and systems have been tested in the presence of the City’s representative and are operational.

10.2.2 The City and/or the City’s authorized representative will make an inspection to verify that the Work is complete and will notify the Contractor in writing of any incomplete or deficient Work. The Contractor will take immediate steps to remedy the stated deficiencies and prepare a Notice of Correction, submitted to the Construction Manager. Upon receiving a Notice of Correction, the City or the City’s authorized representative will re-inspect the Work. The Contractor must correct all punch list items within fifteen (15) working days after the issuance of the punch list.

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83 10.3 Work Acceptance.

10.3.1 All finished Work will be subject to inspection and acceptance or rejection by the City, the Construction Manager, and the Architect or Engineer and other government agencies having jurisdiction over the Work. Final acceptance of the Work as satisfying the terms of the Agreement will be at the sole discretion of the City.
9A.3.2The City will accept the Work in writing only when the Work has been completed to the City’s reasonable satisfaction. Progress payments will in no way be construed as acceptance of any part of the Work. 9A.3.3In evaluating the Work, no allowance will be made for deviations from the Project Plans and Technical Specifications or other Contract Documents unless already approved in writing in accordance with the requirements of Section 4.
9A.3.4The fact that the Work and materials have been inspected from time to time, and that progress payments have been made, does not relieve the Contractor of the responsibility of replacing and making good any defective or omitted work or materials in accordance with the Contract Documents.

11. REMEDIES AND DISPUTES

11.1 Failure to Correct Work. Within ten (10) working days of receiving written notice from the City describing Work that is defective or that is otherwise not in accordance with the requirements of the Agreement and/or applicable laws and regulations and directing that such Work be corrected, the Contractor and/or the Contractor’s sureties must give the City written notice of the intent of the Contractor and/or the Contractor’s sureties to correct such Work and commence correction of such Work in accordance with the City’s notice and the Agreement. If the Contractor and/or the Contractor’s sureties do not give the City written notice of intent to correct such Work and commence correction of such Work within ten (10) working days of receipt of the City’s notice, then the City may correct such work and/or have such work corrected for the account and at the expense of the Contractor and/or its sureties, and the Contractor and/or its sureties will be liable to the City for any resulting excess cost. The City may, in addition to all other remedies that the City may have under the Agreement and at law or equity, deduct any such excess cost of completing the Work from amounts that are due or that may become due the contractor.

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84 11.2 Termination.

11.2.1 In accordance with California Public Contract Code Section 7105, the City, in addition to all other available remedies that the City may have under the Agreement, and at law or equity, may terminate the Contractor’s control of the Work on the happening of any of the following conditions:

11.2.1.1 The Contractor or any of its Subcontractors engaged in the performance of the Work fail to timely perform the Work and/or any of the Contractor’s material obligations that have accrued under the Contract Documents, including, but not limited to, submission of an acceptable schedule, unless the failure to timely perform the Work and/or any of the Contractor’s material obligations is due to reasons beyond the control of the Contractor as specified by the Contract Documents;

11.2.1.2 The Contractor is adjudged bankrupt or makes a general assignment for the benefit of creditors, or if a receiver is appointed on account of the Contractor’s creditors.

11.2.1.3 The Contractor or any of the Subcontractors engaged in the performance of the Work persistently or repeatedly refuses or fails to supply enough properly skilled workmen or proper materials for the timely completion of the Work.

11.2.1.4 The Contractor fails to make prompt payment to Subcontractors engaged in the performance of the Work or for material or labor used in the performance of the Work, in accordance with the Contract Documents and applicable laws and regulations.

11.2.1.5 The Contractor or any Subcontractors engaged in the performance of the Work persistently disregards laws,
regulations or ordinances applicable to the performance of the Work, or the instructions of the City, the Construction Manager, the Architect or other authorized representative of the City; or

11.2.1.6 For any reason or for no reason, at the City’s sole discretion.

11.2.2 If the City intends to terminate the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 to 11.2.1.6, inclusive, the City will immediately serve written notice to the Contractor and its sureties in accordance with the Contract Documents. Notice of the City’s intent to terminate the Contractor’s control of the Work will be given by registered or certified mail and specify the grounds for termination, the required cure and the time by which the cure must be effected.

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85 11.2.3 Upon receipt of notice of the City’s intent to terminate the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 to 11.2.1.6, inclusive, the Contractor will have ten (10) days from receipt of the notice, or a longer time specified in the notice to cure its default. If the Contractor does not affect the required cure by the time specified in the notice, the City will issue a written notice of termination to the Contractor and its sureties by registered or certified mail. The notice of termination will specify that:

11.2.3.1 Upon receipt of the notice the Contractor’s right to perform or complete the Work, including on behalf of the Contractor’s sureties, is terminated.

11.2.3.2 The Contractor’s sureties will have the right to take over and complete the Work and perform all the Contractor’s remaining obligations that have accrued under the Agreement; and

11.2.3.3 If the Contractor’s sureties do not both give the City written notice of their intention to take over and perform the Agreement and commence completion of the Work and performance of all of the Contractor’s remaining obligations that have accrued under the Agreement within ten (10) days after receipt of notice of termination, the City may declare the Contractor’s sureties in default and take over the completion of the Work or have the Work completed for the account and at the expense of the Contractor and its sureties, and the Contractor and its sureties will be liable to the City for any resulting excess cost. The City may, in addition to all other available remedies that the City may have under the Contract Documents and at law or equity, deduct any such excess cost of completing the Work from amounts that are due or that may become due to the Contactor.

11.2.4 Upon termination of the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 to 11.2.1.6, inclusive, the Contractor will, if so directed by the City, immediately remove from the Work site any and all materials and personal property belonging to the Contractor which have not been incorporated in the Work and the Contractor and its sureties will be liable upon their bond for all damages caused the City by reason of the Contractor's failure to complete the Work.

11.2.5 Upon termination of the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 to 11.2.1.6, inclusive, the City reserves the right to refuse tender of the Contractor by any surety to complete the Work.

11.2.6 If the City completes or has completed any portion of or the whole of the Work, following termination of the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 through 11.2.1.6, inclusive, the City will neither be liable for nor account to the Contractor or the City Council/RSA Agenda 142 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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86 Contractor’s sureties in any way for the time within which or the manner in which such Work is performed, or for any changes made in such Work or for the money expended in satisfying claims and/or suits and/or other obligations in connection with completing the Work. If, following termination of the Contractor’s control of the Work for any of the reasons specified in Sections 11.2.1.1 to 11.2.1.6, inclusive, the unpaid balance of the contract price exceeds the expense of completing the Work, including compensation for additional legal, managerial and administrative services and all other amounts due for the completion of the Work and/or satisfaction of claims of the City and/or others arising out of the Agreement and any other charges that apply to the Contractor under the Agreement, the difference will be paid by the City to the Contractor. If such expenses of completing the Work exceed the unpaid balance of the contract price, the Contractor or its sureties will pay the difference to the City.

11.2.7 If the Agreement or Contractor’s control of the Work is terminated for any reason, no allowances or compensation will be granted for the loss of any anticipated profit by the Contractor.

11.2.8 In accordance with California Government Code Section 4410, in the event a national emergency occurs, and Work being performed by Agreement is stopped, directly or indirectly, because of the freezing or diversion of materials, equipment or labor, as the result of an order or a proclamation of the President of the United States, or of an order of any federal authority, and the circumstances or conditions are such that it is impracticable within a reasonable time to proceed with a substantial portion of the work, then the City and the Contractor may, by written agreement, terminate the Agreement.

In accordance with California Government Code Section 4411, such a written agreement will include the terms and conditions of the termination of the contract and provision for the payment of compensation or money, if any, which either party will pay to the other or any other person, under the facts and circumstances in the case. Compensation to the Contractor will be determined on the basis of the reasonable value of the work done, including preparatory work. As an exception to the foregoing, in the case of any fully completed separate item or portion of the Work for which there is a separate contract price, the contract price shall control. The parties may in any other case adopt the contract price as the reasonable value of the Work or any portion of the Work done.

11.3 Disputes.

11.3.1 In accordance with California Public Contract Code Sections 20104 and 20104.2, the following procedures apply to claims of three hundred and seventy-five thousand dollars ($375,000) or less between the Contractor and the City:

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87 11.3.1.1 The claim shall be in writing and include the documents necessary to substantiate the claim. Claims must be filed on or before the date of final payment. Nothing in Section 11.3.1.1 is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims.

11.3.1.2 For claims of less than fifty thousand dollars ($50,000), the City shall respond in writing to any written claim within fortyfive (45) days of receipt of the claim, or may request, in writing, within thirty (30) days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the City may have against the Contractor. If
additional information is thereafter required, it shall be requested and provided pursuant to Section 11.3.1.2, upon mutual agreement of the City and the Contractor. The City’s written response to the claim, as further documented, shall be submitted to the Contractor within fifteen (15) days after receipt of the further documentation or within a period of time no greater than that taken by the Contractor in producing the additional information, whichever is greater.

11.3.1.3 For claims of over fifty thousand dollars ($50,000) and less than or equal to three hundred seventy-five thousand dollars ($375,000), the City shall respond in writing to all written claims within sixty (60) days of receipt of the claim, or may request, in writing, within thirty (30) days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to Section 11.3.1.3, upon mutual agreement of the City and the Contractor. The City’s written response to the claim, as further documented, shall be submitted to the Contractor within thirty (30) days after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation,
whichever is greater.

11.3.1.4 If the Contractor disputes the City’s written response to the claim, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within fifteen (15) days of receipt of the City’s response or within fifteen (15) days of the City’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute.

Upon a demand, the City shall schedule a meet and confer conference within thirty (30) days for settlement of the dispute.

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88 11.3.1.5 Following the meet and confer conference, if the claim or any portion remains in dispute, the Contractor may file a claim as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division

3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written claim pursuant to Section 11.3.1.1 until the time that claim is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process.

11.3.1.6 The provisions of California Public Contract Code Sections 20104 to 20104.6, inclusive, do not apply to tort claims and nothing in California Public Contract Code Sections 20104 to 20104.6, inclusive, is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division

3.6 of Title 1 of the Government Code.

11.3.2 In accordance with California Public Contract Code Sections 20104 and 20104.4, the following procedures apply to civil actions to resolve claims of three hundred and seventy-five thousand dollars ($375,000) or less between the City and the Contractor:

11.3.2.1 Within sixty (60) days, but no earlier than thirty (30) days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of the City and the Contractor. The
mediation process shall provide for the selection within fifteen 15 days by the City and the Contractor of a disinterested third person as mediator, shall be commenced within thirty (30) days of the submittal, and shall be concluded within fifteen (15) days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of the City and the Contractor. If the City and the Contractor fail to select a mediator within the fifteen (15) day period, any party may petition the court to appoint the mediator.

11.3.2.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act of 1986 (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply City Council/RSA Agenda 145 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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89 to any proceeding brought under Section 11.3.2.2 to 11.3.2.4, inclusive, consistent with the rules pertaining to judicial arbitration. Notwithstanding any other provision of law, upon stipulation of the parties, arbitrators appointed for purposes of Article 1.5 of Chapter 1 of Part 3 of Division 2 of the California Public Contracts Code shall be experienced in construction law, and, upon stipulation of the parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the parties, except in the case of arbitration where the arbitrator, for good cause, determines a different division. In no event shall these fees or expenses be paid by state or county funds. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the attorney's fees of the other party arising out of the trial de novo.

11.3.2.3 The court may, upon request by any party, order any witnesses to participate in the mediation or arbitration process.

11.3.3 In accordance with California Public Contract Code Section 20104.6:

11.3.3.1 The City shall not fail to pay money as to any portion of a claim which is undisputed except as otherwise provided in the Agreement.

11.3.3.2 In any suit filed under California Public Contract Code Section 20104.4, the City shall pay interest at the legal rate on any arbitration award or judgment. Such interest shall accrue from date the suit is filed in a court of law.

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90 PART III:

SPECIAL CONDITIONS
These Special Provisions differ from the General Conditions in that they contain project specific requirements and as such, shall take precedence over the General Conditions. All costs associated with satisfying the requirements in these Special Provisions shall be included in the Contractor’s bid prices and no additional compensation shall be made.

1. LOCATION
All tree pruning and removal work is within the City of Union City, located adjacent to the street in the public right of way or on City owned land such as parks or facility properties. Initial grid work location to be completed are provided in the Volume 3, “Exhibits” Section of these specifications.

2. DURATION
Services will cover a one-year period and are anticipated to begin in September 2024.

At the City’s discretion, this agreement may be extended over an additional one-year period with the same contract terms and conditions. If such extension occurs, the Contractor agrees to accept a bid item unit price increase not to exceed 3%, based upon the Consumers Price Index for San Francisco/ Oakland/San Jose for the year ending July 31, 2025. The bid item increase will go into effect and cover any work performed after August 2025.

3. TIME OF COMPLEITON AND LIQUIDATED DAMAGES
The Time of Completion and Liquidated Damages shall be as described in the Agreement.

4. HOURS OF OPERATION
Regular working days shall be Monday through Friday except City legal holidays.

Normal working hours shall be from 8:00 a.m. to 4:30 p.m.; however, the Contractor and all subcontractors will need to comply with the City’s Construction Noise Ordinance (UCMC, Chapter 9.40.053) which limits construction noise to the hours of 8 a.m. to 8 p.m. Therefore, in residential areas, the use of power equipment that results in objectionable noise shall not be permitted before 8:00 a.m. Emergency responses are exempt from this requirement.

In addition, the following work hour restriction shall apply:
• No work involving a lane closure on a multi-lane roadway shall be performed between the hours of 8 a.m. and 9 a.m. nor between 3 p.m. and 6 p.m.

Any exceptions to these restrictions shall only be with prior approval from the City Representative.

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91 5. SEQUENCING AND ORDER OF WORK
The City shall have the ability to prioritize the order in which work gets completed and will discuss any desired sequencing prior to the start of construction.

6. LICENSES
The Contractor and all of their subcontractors shall hold current licenses for the craft that they are contracting for, as required by State and Local laws. The Licenses must be in good standing for the previous five (5) consecutive years without any official unresolved record of complaints registered or filed with the Board or California Department of Consumer Affairs.

The Contractor and all Subcontractors shall obtain a City business license, the cost of which shall be included in their bid unit prices.

7. SANITATION FACILITIES, WATER AND POWER
The Contractor shall be responsible for providing sanitation facilities for their crew and subcontractors or utilize existing public facilities.

8. STAGING / CONSTRUCTION AREA
Material and equipment staging shall be limited to areas within the public right-ofway that can be safely utilized without unreasonable impact to the traveling public.

All work areas shall be restored and available to the public at the end of each workday.

9. MEETINGS
Pre-Construction Conference: A Pre-construction Conference will be scheduled at the Union City Corporation Yard, 34650 Seventh Street, Union City, California, 94587 within ten (10) working days of the contract’s execution. The conference will address administrative items, the scope of work, the Contractor's proposed construction schedule and sequencing. At the Pre-construction conference the Contractor shall provide the following items:
• The proposed schedule (showing durations for each project area) • A draft notification letter to be handed out to impacted residents. • Typical work area and lane closure traffic control plans • Contact information, including after-hours and emergency response staff contact names and phone numbers.

The meeting shall be attended by the Contractor's project manager and field superintendent along with the City’s project manager and inspector.

Periodic Construction Meetings: While weekly construction progress meetings are not anticipated, additional meetings may be held at a date and time mutually satisfactory to the Contractor and the City’s Representative.

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92 10. SAFETY
The Contractor shall designate an on-site safety officer as one of the crew, to be present during construction and during the handling of materials, equipment, or waste. The on-site safety officer will ensure compliance with the Contractor’s health and safety plan and Occupational Safety and Health Administration (OSHA) requirements.

11. MONTHLY PROGRESS REPORTS
The Contractor shall provide detailed monthly summary reports of work completed in conjunction with monthly payment invoices. These reports are to include, at a minimum, the information shown in Sample provided in the Volume 3, “Exhibits” Section of these specifications.

12. PAYMENT
Full compensation for conforming to the work requirements described in these specifications shall be considered as included in the contract unit prices, or the proposed hourly rate and no further payment shall be made thereof. Travel time shall be included in the bid unit prices, except for emergency responses, where one direction of travel may be billed at the stated hourly rate.

The City reserves the right to increase or decrease the quantities of work included in the Bid Schedule or to delete an entire bid item from the bid schedule, either before execution of the agreement or during the agreement term.

13. WORK NOT INCLUDED IN THE BID SCHEDULE
During the agreement term, the City may request that the Contractor perform work not listed in the Bid Schedule. Compensation for these activities shall be negotiated under a written change order before the additional services are performed.

14. PERIODIC RELEASE OF RETENTION
Public Contract Code Section 7107(c) requires that the City release retention within 60 days following “completion” with completion defined as the time of beneficial use.

Given the nature of tree pruning and tree removal services, it shall be agreed that beneficial use shall coincide with the time that work is performed as summarized, reviewed and agreed upon in the monthly progress payments. Work completed and billed in February, for example, shall have the corresponding retention released approximately 60 days later as part of the April billing.

15. WITHHOLDING PAYMENT
The City may withhold payment to such extent as may be necessary to protect the City from loss due to one or more of the following reasons:
• Defective, unsatisfactory, or inadequate work not corrected.

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• Unrepaired property damage resulting from an incident.

END OF SECTION
City Council/RSA Agenda 150 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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94 PART IV:

TECHNICAL SPECIFICATIONS
These Technical Specifications define the standards under which the work is to be performed and shall take precedence over requirements stated in the Caltrans Standard Plans and Standard Specifications. All costs associated with satisfying the requirements in these Technical Specifications shall be included in the Contractor’s bid unit prices and no additional compensation shall be made.

PART 1 - GENERAL

1.01 WORK INCLUDED
Work includes a large range of tree maintenance activities, including (but not limited to) tree removals, tree pruning and emergency response. The total amount of work for these activities is estimated in the Bid Schedule with work to be paid based upon the actual quantity of work completed.

The Contractor is expected to perform tree pruning and/or tree removal work on trees based upon the estimated quantities shown on the Base Bid Schedule.

Additional quantities or adjustments in the quantities may be authorized as the work progresses. Initial grid work areas to be completed are shown in the Volume 3, “Exhibits” Section of these specifications.

The Contractor shall employ a workload management system that is capable of completing tasks efficiently and effectively and does not require constant supervision by the City. Daily electronic reporting of work completed shall be used to track the completion of the various work items, which shall then be provided in conjunction with monthly billings. Monthly summaries shall include, at a minimum, the information shown in Sample provided in the Volume 3, “Exhibits” Section of these specifications.

1.02 STANDARDS
Tree pruning and tree removal services shall be performed in accordance with the most current editions of the following benchmark standards:

1. American National Standards Institute (ANSI) A300 Pruning Standards

2. ANSI Z133.1 Safety Standards

3. The most recent ISA Best Management Practices: Tree Pruning

1.03 CERTIFICATIONS AND EXPERIENCE
The Contractor and the Contractor’s crews shall be subject to the following minimum requirements, skills and standards.
• Contractor's equipment, work procedures, and training practices shall comply with ANSI Z133.1 Safety Standards.
• Contractor shall provide current OSHA certification of aerial equipment to be used throughout the term of the project.

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• All tree crew members shall have:
- Certification in EHAP to be able to work in the proximity of electrical hazards.
- A track record of high-quality performance.
- The ability to operate equipment in accordance with the manufacturer’s recommendation.
- Current licenses for the operation of equipment utilized. - Mechanical ability to make the required operator adjustments to the equipment being used.
- Knowledge of safety regulations as they relate to tree care and traffic control.
- American Red Cross Standard First Aid training (a minimum of one member on each crew).

1.04 CERTIFIED ARBORIST
The Contractor shall employ a person certified by the International Society of Arboriculture (ISA) as a "Certified Arborist" throughout the duration of the contract.

The "Certified Arborist" shall be responsible for:
• Day to day coordination of the work crew assignments. • Providing inspection and on-site supervision of the work crews to ensure that work is performed in accordance with the standards specified in these Technical Specifications.
• To serve as Contractor's representative in routine dealings with the City, (i.e. crew scheduling, performance standards, time and material expenditures, and the resolution of such situational disputes as may arise between work crews, the City, and/or the public).

No separate or additional payment will be made for the services of the Certified Arborist. Costs are to be included and paid for as part of the Contractor’s bid unit prices.

1.05 CHARACTER OF WORKERS
All work shall be completed in a professional manner by skilled craftsman that are regularly engaged in the work to be performed at the Journeyman level or directly supervised by a Journeyman.

A basic crew shall consist of two (2) climbers each having the experience level of a Certified Tree Worker, one (1) ground worker, one (1) aerial lift truck (bucket truck), one (1) dumping chip box, one (1) brush chipper, and all other necessary tools and equipment (i.e. chain saws, climbing lines and saddles, personal safety gear, rigging lines, traffic control devices, etc.) to perform the required work. The required Certified Arborist may be a regular member of this crew. The required aerial lift City Council/RSA Agenda 152 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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Contractor employees shall wear company uniforms which shall consist of long pants and shirts with the company name on the shirt. When needed, the Contractor’s staff will utilize rain gear, rain boots, safety shoes and other high visibility and protective equipment. All contracted employees while on the site shall exhibit a clean, neat professional appearance. Contractor’s equipment and vehicles shall also be professional in appearance, exhibit the company name and phone number and be well maintained for safe operation.

1.06 DEFINITIONS
A. Objective: Pruning for Structure: Pruning to improve structure involves the removal of live branches and stems to influence the orientation, spacing, growth rate, strength of attachment and ultimate size of branches and stems. It is used on young and medium aged trees to help engineer a sustainable trunk and branch arrangement. It is used on large maturing trees to reduce certain defects and space main branches along one dominant trunk. This pruning type can be summed up as “subordinate or remove codominant stems and competing leaders”. This practice can limit the failure potential of branch attachments. The maximum diameter of reduction cuts will be specified in consultation with the City’s Representative prior to such work. Structural pruning is the foundation for other pruning types.

B. Objective: Pruning to Raise: Raising is the selective removal of branches to provide vertical clearance. Crown raising shortens or removes lower branches of a tree to provide clearance for buildings, signs, vehicles, pedestrians and views.

The percentage of live crown remaining shall be no less than 66% when raising is completed.

C. Objective: Pruning to Clean: Cleaning is the removal of dead, critical diseased, detached and broken branches ½” or larger. This type of pruning is done to reduce the risk of branch failure. Cleaning removes branches with cracks that may be prone to failure. Crossing or rubbing branches shall be managed by reducing or removing the branch in the pair that is damaged or causing the most damage or conflict in the tree. Care must be used to avoid stripping live branches and removing too much foliage from the interior of the tree crown. This practice which is known as "lion tailing'' is unacceptable. The location and diameter of branches to be removed should be discussed with the City’s Representative prior to completing the work.

D. Objective: Pruning to Reduce: Crown Reduction is the selective removal of branches and stems to decrease the height and/or spread of a tree. This is done to minimize leverage, risk of failure, to reduce height or spread or to clear vegetation from buildings, structures or utilities. Crown reduction shall be accomplished with reduction cuts to a viable lateral stem, not with heading cuts.

While reducing the tree crown, tree workers must adhere to basic tree pruning practices involving limb/branch size relationships and pruning outside branch bark collar to avoid injury to the remaining tree parts and the onset of decay at cut sites.

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97 E. Objective: Pruning to Restore: Crown Restoration is the selective removal of branches, sprouts and stubs from trees that have been previously topped, severely headed, lion tailed or previously damaged. On broken branches, a heading cut should be used retaining a suitable branch for re-structuring. On branches that were previously headed or severely cut, and sprouts are regenerating, the best one to three sprouts shall be selected to remain with consideration of proper spacing to allow for future growth.

F. Grid Pruning: Grid pruning consists of pruning four (4) or more trees located in close proximity, at the same address or at nearby street addresses. The term is used to reflect an economy of scale when pruning trees in one geographical area, based upon a reduction in travel time between trees.

G. Work Order Pruning: Work order pruning consists of specific assignments for individual addresses as assigned by the City. The work orders may be prioritized by the City to respond to priority needs, geographic layout, or other considerations.

H. Emergency Response: An emergency response crew shall consist of at least two (2) fully qualified workers capable of performing whatever pruning, branch, limb or tree removal is necessary. The hourly rate paid shall include the two-man crew along with a dump truck or aerial lift, brush chipper, chip box, and all other miscellaneous tools and equipment that may be necessary to handle the emergency.

PART 2 – MATERIALS AND EQUIPMENT

2.01 GENERAL
It shall be the responsibility of the Contractor to provide all crew and equipment necessary to perform the work described in a safe, efficient, aesthetically pleasing, and legal manner.

2.02 CERTIFICATIONS
The Contractor shall provide current OSHA certifications of aerial equipment to be used throughout the term of this project.

Cranes and other rigging equipment shall be properly certified, with evidence of such certification available for inspection prior to use. Crane operators shall be certified by the National Commission for the Certification of Crane Operators (NCCCO) and shall display current certification prior to operating the crane. The use of cranes and certified operators shall not result in additional charges to the City beyond the unit price for the work being performed (i.e., the price for tree removal).

2.03 EQUIPMENT
An aerial lift truck (bucket truck) is required and shall accompany the tree pruning crews every day that work is performed in order to ensure that end branch City Council/RSA Agenda 154 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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Pruning tools shall be sharp, clean and sized appropriately for the pruning cut.

Chainsaws shall not be used to remove branches 2” or less in diameter. Avoid the use of any pruning and climbing equipment that may cause damage to bark tissue.

Spikes (climbing spurs) shall not be used for climbing trees unless the tree is being removed.

Pruning tools shall be treated with a disinfectant (such as Lysol) when pruning trees infected with a pathogen that may be transmitted (on tools) from one tree to another of the same species, such as diseased Pears (Pyrus spp.). Disinfectants should be used before and after pruning individual trees.

PART 3 – EXECUTION

3.01 HOMEOWNER NOTIFICATION
The Contractor shall be required to notify residents and/or businesses within 100 feet of the scheduled tree pruning operations at least (48) hours prior to the work being performed. Resident and business notifications shall be made in the form of a City approved informational “door hanger” or flyer placed on the property in a visible accessible location. Notices shall inform the homeowner of the work to be done, the date that work is scheduled and provide a telephone number to a knowledgeable Contractor representative should there be any questions.

3.02 NO PARKING SIGNS
It shall be the Contractor's responsibility to furnish and install City approved “No Parking” signs as necessary to perform the work. “No Parking” signs shall be coordinated with the distribution of door hangers and be posted on barricades or delineators adjacent to individual tree, at least (72) hours prior to the work being performed. Nailing or stapling notices on trees is not permitted. Contractor is responsible for removing all “No Parking” posting promptly after completing the work.

3.03 STORM WATER POLLUTION PREVENTION
Consistent with the requirements of the Clean Water Act, the project is subject to storm water pollution prevention requirements, which include the implementation of a Storm Water Pollution Prevention Plan (SWPPP) and/or implementation of local storm water requirements which prohibit the discharge of pollutants from the project site. Curb inlets shall be protected against the intrusion of debris.

3.04 WORK ZONE
A work zone shall be established and maintained for each tree pruning location. The Contractor shall use all appropriate traffic control devices, as necessary, to establish and maintaining a safe work zone.

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99 No person other than members of the Contractor’s work crew may be allowed to enter the work zone. If they do, the Contractor shall immediately cease all work and shut down equipment until the work zone is clear.

3.05 TRAFFIC CONTROL
The contractor shall conduct operations so as to offer the least possible obstruction and inconvenience to the public and shall have under construction no greater length or amount of work than can be completed that day. At the end of each work period, all traffic control devices shall be removed from the traveled way, shoulder, sidewalk, and parking lanes.

The full width of the traveled way shall be open for public use on Saturdays, Sundays and designated legal holidays.

No work involving a lane closure on a multi-lane roadway shall be performed between the hours of 8 a.m. and 9 a.m. nor between 3 p.m. and 6 p.m.

The contractor shall submit typical traffic control plans for the City to review illustrating the means and methods that will be employed in each of the following scenarios:
• Work in shoulder or parking areas which do not require a lane closure or do not impact the opposite direction of travel (a typical residential work area). • Lane closure on a multi-lane roadway (such as Alvarado-Niles Road). • Half-street or partial intersection closure requiring cars to cross a centerline (flagger-controlled locations).

Traffic control plans shall be in accordance with the California Manual of Uniform Traffic Control Devices (CA-MUTCD) and/or the Caltrans Standard Plans (RSP T11 & T12).

On roads that are four lanes or greater (two in each direction), a minimum of one lane of traffic, not less than 11 ft. wide shall be maintained for each direction of travel and shall remain open for use at all times during the course of the work.

If streets are to be closed and traffic is to be detoured, a “Road Closed – Local Traffic Only” detour plan must be submitted and approved by the City prior to starting work. Police, Fire, and the Public Works Representative shall be notified at least 24 hours in advance of implementing any detours.

The Contractor shall be responsible for ensuring that the traffic control plan is properly implemented and maintained with delineators, signage and arrow boards (if necessary), at their own expense and shall immediately repair or replace any device in the traffic control system that is damaged, displaced or ceases to function as intended.

When flagging is necessary, the crew members serving as flaggers shall be exclusively dedicated to the task of flagging.

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3.06 PRUNING
A. General
Pruning shall be appropriate for the species and site conditions and shall address all of the following.
• Improve branch structure and reduce failure potential. • Provide clearance for pedestrians, vehicles, structures, and low voltage utilities.
• Improve safety and security for residents and visitors. • Repair failure potential and branch damage from wind loading • Improve aesthetic characteristics.
• Reduce future maintenance costs.
• Prevent or mitigate a pest or disease problem.

All persons engaged in tree pruning shall be familiar with each of the pruning types defined in the “Definitions” section of these Technical Specifications.

Selection of the appropriate pruning type(s) shall be based upon the most recent ISA Best Management Practices: Tree Pruning.

B. Branch Removal
All pruning cuts shall conform to ANSI A300 standards (Part 1: Pruning). Do not make flush cuts or leave branch stubs. Cuts shall be made outside the branch collar in a manner that promotes callous growth to cover wounds.

Not more than 25% of the live foliage or buds shall be removed within an annual growing season. The percentage of foliage removed shall be adjusted according to age, health, and species considerations. Up to 33% live foliage or bud removal may be accepted for Ulmus parvifolia (Chinese Elm) or other special species after consultation with the City’s Representative. Clearance pruning that does not comply with these requirements shall be conducted only after direct approval from the City’s Representative.

Heading cuts shall not be used when pruning mature trees, except in very limited cases with approval from the City’s Representative. Whenever possible, use reduction cuts to reduce height and branch removal cuts (thinning cuts) to reduce branch end weights. When reduction and branch removal cuts are not possible (such as when interior lateral branches are not present) and tree hazard potential is high, then heading cuts may be needed, but their use should be minimized.

Pruning to achieve necessary clearances shall be defined as providing the following distances:

Roadway- not less than 14’ from road surfaces
Sidewalk- not less than 7’ from sidewalk surfaces
Building- not less than 8’ from vertical building surfaces Roofs and Street Lights- not less than 10’ from building roof surfaces or streetlamps.

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Utility and Telecom Drop Lines- not less than 2’ or sufficient clearance to prevent contact and vascular tree growth onto wires.

Limbs one inch (1”) in diameter or greater shall be removed with a series of three (compound) cuts. Make the first cut on the underside of the branch not closer than one foot (1’) to two feet (2’) from the branch junction. The undercut should be at least one-third (⅓) of the diameter. Make the second cut one inch (1”) to three inches (3”) further from the branch junction than the first. Make the final cut just outside the branch collar in a manner that will stimulate rapid callus growth that will cover the wound.

Removal from a tree of branches three and one-half inches (3.5”) in diameter or larger, unless dead, broken or cracked, require prior approval from the City’s Representative, and once cut shall be lowered by proper ropes to the ground.

The Contractor shall not drop logs or trunks in a way that creates undue noise, shock impacts or damage.

While loading and handling debris, the Contractor shall maintain control at all times so as not to result in damage to the public rights of way or private property.

Any damage caused shall be repaired within five (5) days, at the Contractor's expense and to the satisfaction of the City’s Representative.

C. Unacceptable Pruning Practices
Pollarding or hat-racking is when a tree is severely pruned back to consist of one main trunk and a number of short lateral branch stubs. This type of pruning results in excessive shoot growth the next season. These new branches are typically weak because they develop from adventitious buds and there is no firm connection with the main wood frame of the tree. Pruning procedures that cut back to three inch (or larger) stubs weaken the structure of the tree as well as deter from the appearance of the natural form of the tree.

Round overs or "shearing" is when branches are cut to present a "sheared" appearance over the total surface of the crown or just on top. This type of pruning places cuts anywhere along a branch (not necessarily at the branch attachment) and results in severe sprouting. As in pollarding, these suckers have a weak structural attachment.

There are many practices used to over-prune trees, including over-thinning, lion’s tailing, lacing, framing and stripping foliage. These practices and techniques are not to be utilized.

D. Unusual Circumstances
Any structural weakness, significantly decayed trunk or branches, split crotches or limbs, insect infestations or critical disease discovered by the Contractor during the course of pruning shall be reported to the City’s Representative for determination of action, as soon as it is discovered.

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When working on a tree, the Contractor shall be responsible for the removal of all vines entwined in the tree or around its trunk, and for the removal of undesirable shoot growth from tree trunks.

E. Wildlife Protection
Prior to the commencement of any work in the vicinity of any tree, each tree shall be visually surveyed, from all sides, for the sole purpose of detecting the presence of bird nests or wildlife of any type. If a bird nest is found in a tree and is determined to be active, work shall not be performed in the tree without the written permission of the City’s Representative. At no time shall any nest or wildlife be removed from its location.

3.07 CLEAN UP
Unless otherwise approved by the City as an emergency circumstance, all debris resulting from tree pruning operations shall be removed from the work site on a daily basis. This shall include the removal of wood chips, leaves, twigs, etc. from the lawn, street, gutter and sidewalk through sweeping or blowing.

3.08 PRESERVATION OF PUBLIC AND PRIVATE PROPERTY
The contractor shall be responsible for the preservation of all public and private improvements at the site including, but not limited to, any irrigation line or heads, plant material, landscape features, fences, lights, utility boxes, etc.

Should any damage occur, it shall be reported promptly to the City’s Representative to determine the steps that will be necessary to restore it back to its former condition and to advise the homeowner of the need for repairs,

3.09 WOOD WASTE AND DISPOSAL
All wood waste shall become the property of the Contractor and in accordance with the City’s waste diversion ordinance, shall be reduced, reused or recycled. The City does not anticipate the need for any wood chips or firewood under this project.

3.10 EMERGENCY RESPONSE
The Contractor may be required to provide emergency on-call response for damaged trees as a result of storms or other reasons under this contract.

Emergency calls may occur at any given time. The Contractor will be provided with locations and the work to be done at each location via telephone from the City’s Representative. Emergency work shall begin within ninety (90) minutes of the initial telephone call to the Contractor. Contractor shall be required to provide a twentyfour (24) hour emergency contact phone number upon award of contract.

An emergency response crew shall consist of at least two (2) fully qualified workers capable of performing whatever pruning, branch, limb or tree removal is necessary.

The hourly rate paid shall include the two-man crew along with a dump truck or City Council/RSA Agenda 159 Tuesday, September 24, 2024 Union City FY2024-2025 Tree Pruning Project
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aerial lift, brush chipper, chip box, and all other miscellaneous tools and equipment that may be necessary to handle the emergency. The City guarantees a minimum of two (2) hours for each emergency call out which may include one direction of travel time along with the time spent responding to the emergency, under the hourly rate bid.

The Contractor shall be required to provide all necessary traffic control during the course of emergency work. Should the work involve any downed high voltage power lines or any other utility lines, the Contractor shall notify the responsible utility company.

3.11 WORK SCHEDULE
The Contractor shall provide the City’s Representative with work plan in the form of a two-week look-ahead schedule on a weekly basis, describing the dates and locations of anticipated tree maintenance operations.

3.12 CORRECTION OF DEFICIENCIES
Inspection of the work shall not relieve the Contractor of any obligations to complete the work as outlined in the specifications. Defective work shall be made good even if the defective work was not pointed out during the initial inspection and the work was accepted for payment. Any work found to be unacceptable by the City will be noted in writing to the Contractor. Upon receipt of notice of any deficiencies, the Contractor shall make a reasonable effort to correct the deficiencies within five (5) working days. If unacceptable conditions are not corrected within this time period, the City shall have the right to deduct payment or have services performed by others at the Contractor's expense.

PART 4 – MEASUREMENT AND PAYMENT

4.01 SCOPE OF WORK / BID ITEM DESCRIPTIONS
The bid items listed in the Bid Schedule are not intended to be exclusive descriptions of all the work necessary to complete the project scope. As such, the Contractor shall determine, segregate and include in their pricing for each bid item the cost for furnishing all labor, materials, tools, equipment and other incidentals which may be reasonably assumed as necessary to complete all of the contract work, complete in place, as described by the Contract Documents.

The cost associated with mobilization, demobilization, bonds, insurance, preparation of submittals, project phasing, the possibility for multiple move-ins and move-outs, supervision, coordination and meetings with City staff, movement of personnel, equipment, supplies and all other logistical or operational incidentals necessary to complete the work specified but which may not be specifically called out in the contract documents shall be included in the price paid for the various bid items of work.

The bid item descriptions and measurement and payment for each item on the Bid Schedule is as follows:

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A. Emergency Response – Hourly Rate for 2 Person Crew with Equipment (Bid Item 1)

When requested, the Contractor shall make available an emergency response crew consisting of at least two (2) fully qualified workers capable of performing whatever pruning, branch or limb removal, clearance, rigging or tree removal work that may be required. Crews shall respond to emergency calls for service within ninety (90) minutes of receiving the call. The City guarantees a minimum of two (2) hours for each call out which may include one direction of travel time along with the time spent responding to the emergency under the hourly rate bid.

This item shall be paid per HOUR and is revocable or expandable, depending upon need.

B. Tree Removal (Bid Items 2-4)
This work includes all the effort necessary to remove trees and grinding of their respective stumps, including the off-haul and disposal of all wood, branches, and clean-up.

This item shall be paid per EACH tree removed, categorized as either Medium (12” – 17.9”), Large (18” – 23.9”) or Very Large (24” and greater), measured as the diameter at breast height (DBH), 4.5 feet above ground.

C. Tree Pruning (Bid Items 5-12)
Work includes the pruning of trees to the standards defined in these technical specifications, with the labor and equipment required. All categories of pruning shall be considered and implemented, as appropriate, and in the best interest of the tree.

The tree pruning bid items have been categorized as either “Grid Work” or as an “Add-On”.
• Grid work shall be that work in which four (4) or more trees are clustered “together” within blocks (or grids) of the City, with together being defined as within 1,500 feet of each other. Grid Work may be anywhere in the City, however, it is anticipated that it will be concentrated within low volume, neighborhood streets. Most of the work under this contract will be Grid Work. Three (3) initial high-priority Grid Work area have been identified and are included in the Volume 3, “Exhibits” Section of these specifications.
• Add-on work shall be for locations where the contractor is directed to perform tree pruning at a remote location that involves pruning up to three (3) trees, with no other adjacent tree pruning within 1,500 feet. Add-on work may be anywhere in the City. Separate bid items have been created for add-on work to account for the potential inefficiencies of not being able to work concurrently on multiple trees in close proximity.

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Payment for pruning trees shall be per EACH tree pruned, categorized as either Grid Work or Add-on Work for Small (0” – 11.9”), Medium (12” – 17.9”), Large (18” – 23.9”) or Very Large (24” and greater) trees, measured as the diameter at breast height (DBH), 4.5 feet above ground.

D. Additional Cost per Tree for Enhanced Traffic Control Involving a Lane Closure Adjacent to High Traffic Volume Streets (Bid Item 13) Work under this item, if and when necessary, includes the additional cost for providing a lane closure as part of traffic control, when pruning or removing trees in medians or off the edge of roadway, adjacent to high volume streets. This item shall only apply when a lane closure is needed on a multi-lane (in the same direction) roadway and is intended to account for the cost of furnishing and maintaining an enhanced level of traffic control. An arrow board (stationary or truck mounted) shall be provided for all lane closures in accordance with the CA MUTCD. Note that if just the shoulder of a roadway is closed, and a lane closure is not necessary, this item shall not apply. Note the restriction on working hours when a lane closure is in effect, as stated in the Special Conditions section of these specifications.

Payment for this item shall be per EACH tree, regardless of size.

E. Monthly Progress Reports
The Contractor shall provide detailed monthly summary reports of work completed in conjunction with monthly payment invoices. These reports are to include, at a minimum, the information shown in Sample provided in the Volume 3, “Exhibits” Section of these specifications.

All work required to adequately document and prepare the monthly summary reports, along with all other administrative and incidental work under this contract shall be included in the bid unit prices of the various items of work listed on the bid schedule and no separate payment shall be made, therefore. * * *

END OF SECTION
City Council/RSA Agenda 162 Tuesday, September 24, 2024 Agreement between City of Union City and

THE PROFESSIONAL TREE CARE COMPANY,
City Project No. 24-10
7 CITY OF UNION CITY
34009 Alvarado-Niles Road
Union City, California 94587

PERFORMANCE BOND
.... KNOW ALL MEN BY THESE PRESENTS:
.... WHEREAS the City Council of the City of Union City has awarded to THE PROFESSIONAL TREE CARE COMPANY, (designated as the “PRINCIPAL”) a contract for the 2023-2024 TREE PRUNING PROJECT, City Project No. 24-10 , which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, said PRINCIPAL is required under the terms of the Contract to furnish a bond for the faithful performance of the Contract;
NOW, THEREFORE, WE, the PRINCIPAL and Western Surety Company___ as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California, are held and firmly bound unto the City (designated as “OBLIGEE”), in the penal sum of Three Hundred Ten Thousand Two Hundred Fifty ($310,250) Dollars lawful money of the United States for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, and administrators, and successors, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that, if the above bound PRINCIPAL, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract and any alteration thereof made as therein provided, on his or their part to be kept and performed at the time and in the manner therein specified and in all respects according to their true intent and meaning, and shall defend, indemnify and save harmless the OBLIGEE, it’s officials, officers, employees, volunteers and agents, as therein stipulated, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue.

And the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or to the specifications or the plans accompanying the same or to any other part of the contract documents, as defined therein, shall in any way affect said SURETY’s obligation on this bond, and the SURETY does hereby waive notice of any such change, extension of time, alteration or addition.

1. And the said SURETY, for value received, hereby stipulates and agrees that upon termination of the Principal’s control of Work for any of the reasons specified in Sections

11.2.1.1 through 11.2.1.6 of the General Conditions of the Contract, the OBLIGEE DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 163 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 164 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 165 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 166 Tuesday, September 24, 2024 Agreement between City of Union City and

THE PROFESSIONAL TREE CARE COMPANY,
City Project No. 24-10
9 CITY OF UNION CITY
34009 Alvarado-Niles Road
Union City, California 94587

PAYMENT/LABOR AND MATERIALS BOND
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS the City Council of the City of Union City has awarded to THE PROFESSIONAL TREE CARE COMPANY, (designated as the “PRINCIPAL”) a contract for the2023-2024 TREE PRUNING PROJECT, City Project No. 24-10 , which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, pursuant to California Civil Code Section 9550, the PRINCIPAL is required, before entering upon the performance of the Contract, to file a payment bond with and have such bond approved by the officer or public entity by whom the Contract is awarded; and
WHEREAS, pursuant to California Civil Code Section 9554, such payment bond must be in a sum not less than one hundred percent (100%) of the total amount payable by the terms of the Contract, and must satisfy the other requirements specified in that section; and
WHEREAS, the PRINCIPAL is required in accordance with the Contract to furnish a payment bond in connection with the Contract to secure payment of claims of laborers, mechanics and materialmen employed on work under the Contract in accordance with applicable law;
NOW, THEREFORE, THESE PRESENTS WITNESSETH:

That the PRINCIPAL and the undersigned_Western Surety Company_, as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California are held and firmly bound unto all laborers, material men, and all other persons named in California Civil Code Section 9100 in the sum of Three Hundred Ten Thousand Two Hundred Fifty ($310,250) Dollars lawful money of the United States, being a sum not less than one hundred percent of the total amount payable by the terms of the Contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, or assigns, jointly and severally, by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if the PRINCIPAL or any of the PRINCIPAL’s subcontractors, or the heirs, executors, administrators, successors, or assigns of any, all, or either of them, shall fail to pay any persons named in California Civil Code Section 9100, or fail to pay for any labor, materials, provisions, provender, or other DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 167 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 168 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 169 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 170 Tuesday, September 24, 2024 Agreement between City of Union City and

THE PROFESSIONAL TREE CARE COMPANY,
City Project No. 24-10
11 CITY OF UNION CITY
34009 Alvarado-Niles Road
Union City, California 94587

MAINTENANCE BOND
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS the City Council of the City of Union City has awarded to THE PROFESSIONAL TREE CARE COMPANY (designated as the “PRINCIPAL”) a contract for 2023-2024 TREE PRUNING PROJECT, City Project No. 24-10 , which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, the PRINCIPAL is required under the terms of the Contract to furnish a bond for the correction of any defects due to defective materials or workmanship in the work performed under the Contract.

NOW, THEREFORE, we the PRINCIPAL and the undersigned__Western Surety Company_, as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California, are held and firmly bound unto the City of Union City, (designated as the “OBLIGEE”), in the penal sum of Three Hundred Ten Thousand Two Hundred Fifty ($310,250) Dollars, lawful money of the United States, being a sum not less than ten percent (10%) of the final Contract price, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH that if, during a maintenance period of one (1) year from the date of acceptance by the OBLIGEE of the contracted work, the PRINCIPAL upon receiving written notice of a need for repairs which are directly attributable to defective materials or workmanship, shall diligently take the necessary steps to correct said defects within seven (7) days from the date of said notice, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

If any action shall be brought by the OBLIGEE upon this bond, a reasonable attorney’s fee, to be fixed by the Court, shall be and become a part of OBLIGEE’s judgment in any such action.

No right of action shall accrue on this bond to, or for the use of, any person or corporation other than the OBLIGEE named herein or the heirs, executors, administrator or successor of the OBLIGEE.

IN WITNESS WHEREOF, the above bound parties have executed this instrument under their seals this _18th day of _September_,_2023_ the name and corporate seals of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.

DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 171 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 172 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 173 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 174 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 175 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 176 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 177 Tuesday, September 24, 2024 DocuSign Envelope ID: 2967BD5D-3B07-4A19-8909-9EADDDE242B1 DocuSign Envelope ID: CF4641DC-764E-4836-AC55-A006912766FD City Council/RSA Agenda 178 Tuesday, September 24, 2024

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Union City City CouncilSeptember 24, 2024

Union City City Council
September 24, 2024